van Buren v. Plainfield Trust Co.

• Decision Date: 15 October 1941
• Parties: VAN BUREN v. PLAINFIELD TRUST CO.
• Court: New Jersey Court of Chancery

22 A.2d 189

130 N.J.Eq. 244

VAN BUREN

v. PLAINFIELD TRUST CO.

Court of Chancery of New Jersey.

Oct. 15, 1941.

Syllabus by the Court.

1. The will of the decedent construed, and held, that complainant is entitled to the money on deposit in the business account of decedent and to the difference, if any, between business bills receivable and payable.

2. Where complainant filed exceptions to the intermediate account of the executor in the Orphans' Court, and later withdrew such exceptions, and it appears that the opportunity was afforded complainant in such exceptions to that account to raise the questions which he now raises but failed to do so, his suit in this Court in reality constitutes an indirect attack upon the decree allowing the account and it is fundamental that the account cannot now be inquired into collaterally in this Court.

3. The time for appeal from the decree of the Orphans' Court allowing such account having long since expired, and there being in this Court no charge of fraud or mistake, that decree is conclusive.

4. While the remedy of the next of kin for the recovery of a "distributive share" is by bill in equity, we are not here concerned with a "distributive share". A distributive share is that share which a person takes in personal property of an intestate.

Suit by Edward M. Van Buren, Jr., against the Plainfield Trust Company, executor of the estate of Edward M. Van Buren, deceased, for construction of a will.

Bill of complaint dismissed.

Budd & Larner, of Newark, for complainant.

William A. Coddington, of Plainfield (Colie and Waltzinger [Frederick J. Waltzinger appearing], of Newark, of counsel), for defendant.

STEIN, Vice Chancellor.

Edward M. Van Buren, Sr., in his lifetime was an insurance broker in New York. Complainant, Edward M. Van Buren, Jr., was in that business with his father. The Plainfield Trust Company is the executor and trustee under the will of Edward M. Van Buren, Sr., deceased.

In the fifth paragraph of his will the father gave to his son "the general insurance business which is now being conducted by me in the City of New York." In the second paragraph he provided: "* * * (c) All other personal effects, acquired by me prior to my marriage to my wife, Ruth M. Van Buren, including books, pictures, furniture and household effects, exclusive of all farm implements, machinery, live stock and equipment located on my farm in the Township of Easton, Talbot County, Maryland, I give and bequeath in equal parts, unto my three children, Edward M. Van Buren, Jr., Alison Crary Van Buren and Julian Morris Van Buren, or to such of them as shall survive me, the same to be theirs absolutely and forever."

Upon the decedent's death he left two bank accounts in The Plainfield Trust Company, the one in the sum of $3,789.91, which was his business account; the other designated "Personal Account" in which there was a balance of $3,783.43, the two totalling $7,573.04.

In this suit the complainant seeks construction of his father's will and a decree that the sums aforesaid on deposit passed to him under the fifth paragraph of his father's will, together with all unearned commissions on fire and insurance policies written by the deceased from the date of his death to the expiration of the policies, amounting to about $9,828.23, and unearned commissions on life insurance policies for the same period amounting to about $400. Under the second paragraph of the will above set forth complainant charges that he was entitled to one-third of all his father's personal effects therein mentioned and that the executor and trustee failed to distribute his share to him.

Under the fifth paragraph of the decedent's will, the complainant is entitled to the money on deposit in the business account and also the difference, if any, between the business bills receivable and payable. Coyle v. Donaldson, 91 N.J.Eq. 138, 108 A. 308; Murphy v. Murphy, 118 N.J.Eq. 108, 177 A. 682, affirmed, 119 N.J. Eq. 83, 180 A. 829.

However, complainant admits that he received $1,755.82 from the Plainfield Trust Company on account of commissions on policies cancelled after the death of the testator and before the expiration of the date of such policies. It is also established by the evidence that at the request of complainant and by an arrangement made with him the executor and trustee paid $8,621.06 to complainant for moneys due insurance companies at the date of the decedent's death and to assureds for return premiums due at the date of the decedent's death, and delivered to complainant the insurance business having an inventory value of $4,451.97.

Further it appears that in the year 1936 the executor and trustee filed an intermediate account in the Union County Orphans' Court to which account complainant filed certain exceptions. One of the exceptions raised the...