The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-11-22


part Of the bill; that IL not barred BY the nmits
ton either OF ten years or twenty years referred
one seventh part esoh Of the ssstors real and Dor
sonsl estate Is BY the terms OF his will subject t.
the payment Of his debts and also 70 the devise Of
one third Of the real estate after payment OF said
debts TO the widow for life and the division IL
b made until ell the debts aud the of $40 OO0
the widow and executor have been
for and the bill shows the received
ssts raised moneys sufficient to pay the debts yet
that so late as March 1888, the testators debts to
large smcunt, by the executors showing were
unpaid ard that the ten years limitation (supposng
1t In case to operate rerospeotvely cannot apply
to that part OF the bill which seeks discovery
relief in respect TO the personal estate for ths bill
states and alleges that the test estate yet
and he alleges for the settlement of such e.tate
and that IN regard to the real estate neither the twenty
years the ten years itstion can apply because
the widow whom third Of the real estate after
pc yment of debts devised for life did die until
1881 and therefore neither In respect the third de-
vissd to her in respect to the other two thirds
pcstion Of the twenty years staiuei and lastly the
bill Is sufficiently certain and precise respect all
matters material to the discovery AMI relief sought
and contains everything requisite TO enable defendant
to know what Is objected agains. him, and what he
quired to Mr. Butler continued TO there
were several points in the demurrer which the defen-
dants counsel did not think proper to state. and
therefore might be fairly inferred that the points
omitted by him are untonable. He then went on to
answer the argument of the defendants counsel.
He said the bill seeks full account of both
the real and personal estate We fnd, said he,
that defendant is not only clothed with a DO wer
to sell, but with power to mortgage aud lease
the real estate that, in q word the will gives
him the most plenary powers 10 deal in every way
with this estate and can there b- possible to
doubt that the court has not jurisdiction to compel
him to give account OF his. stewardship? Has not
this court general jurisdiction TO call
account, and the more especially as the de-
gsges. and has never tiled an inventory! IL 1t
not therefore the duty OF this court to call such
executor to give I'm account Of his dealings with th,
estate Upon this part OF the case said Mr. Butler
both myself and my associate thought 1t scarcely
necessary to refer to any authorities lie then handel
up list of authorities and continued his argument un
til the court adjourned The argument will he "a.
sumed this morning.
Nov 2O.-Mr. Butler resumed the argument thi
morning and in doing said, that In reference to
multarousne.s it was impos ble to find any general
rule to govern in all cases In every case Of this
kind he said the court ought aud would b. Cover ned
BY Its peculiar circumstances. Now let US what L.
Is that Is multfarous ia this bill 1t vas filed by
lsgatee against another and charges that defendant
In his capacity OF executor has been guilty various
breaches or trust lie shows that, notwithsts nding
twenty one years have elapsed the exscstor-hp still
remains unsettled; that account has besn
dered, and that debts of TIE testator still unpsit;
and be further shows, that the executor himself ad
mits that he has been still acting in his capacity OF
executor in executing deeds and orgegss of part OF
the tsrtators estate AID in leasing other rars tor the
purposes of settling and winding up thu tsstator's
Affairs and We, by our bill call for an account Of all
these transactions, and seek to 81, aside OF tbs
convoysnosso the ground that they breaches OF
trust ana that defendant had macy eaoagh in his
hs nds TO pay tesaors dsbts and that therefore 1t
was unnecessary tor him to make such convey auces
and for this purpose t was necessary that we should
have before the court every person that has auy
fercst In the real estate Now IL rgnt in this
view, it Is absolutely necessary thst the Farmers
Lo.n and Trust Comptny, and the North American
Trust and taDKing Company. should be made parties
to this bill LIE: therefore who 1t is that makes
this objection certainly not either OF these com
pennies for ono Of them has answered the bill, and
II the objection may be made By any one 1t
is by them. and not by Mr.. Carroll and 80
far as tho question Of multfaiousness is con-
cerned, II ia for them and not tor him TO raise
the objections moreover, 10 ia Impossible tor detead
ants accounts TO bs setted without having those par
ties before the court, for your Honor ~Ili that
those deeds cannot be- set aside without giving those
parties an opportunity OF being heard Your Honor
will perceive that the objection takea to tn. bill "a
tv told First that defendant called to account
for ali monies be receeved executor, aud also to
set aside there deeds Now, 10 understand Why those
companies have been made parties to the bill let
call the attention OF the court to tolios 81 and IS OF
the bill ana also to ioos AZ to a. ia which the trusts
oil the deed are set out. aud IL will appear that the
covenants we're not only macs with deiendant but
with his aso; by thee covenants the
panies bind themselves not only 70 the deenisnt
but his successor that " Is obvious for the purpose
Of calling him to general scoount aud TO impeach
those deed' We must have those parties before the
court. In regard TO the North American Trust Com
prDy, Il alleged that dsien became stockhold
er OF that company Ia hi, d,idual capacity, a. wo
Ia his capsciy OF executor. aud the bili contains
averment at folos o., o. aud co. that he claimed
20 execute, and did execute the mortgage in his in
dividuai capacity by virtue OF the clause Of the win
which devses to him 1000 of lsod hi, option
IN lieu Of the bequ.st OF $40 90 and no claims
ci that long before he OF the
teststSr's eEtste apd applied IL his use, by
DO cspnot aiterusrd, turn round and take
Ia. land TO scrys bis osn purpose. Mr.. But
Ter cencludts by saying that be had present.
Cd 70 the court ali that occurred TO him on the
doctrine Of multitarioonsss, and would only trouble
the court with iew cares Oh the subject.
Mr. wood who on ne same eide with Mr. But.
Ter. then sddressedthe court lie raid that his
cate Lad gone into the 20 fully that he would be
very brief on the subject lie would first call thv at
teniiOa Of the court TO the bill ahch b,h tor
account that involved both real aud perso pr
~ and especially the proceeds OF that part OF tbs real
estate which had besn sold the rents sud profits
OF the real estate whsh the defendant has received In
his alsdged capacity OF executor and trustee nov,
these are diaer.Dt objects I mention this, said Mr.
Wood, because duiendants counsel takes two classes
Ohje etonsthe one general aud the other In detail
the general objection involves mutiariousness, and
the objection In osai IN srEes general principles the
objection In detail s that account Of per
soBsl estate whereas VI. have right 70 such
10 by the gentleman on the other side the answer g.
that bis constr uction is not the trus one, al
though 10 may bs trus, that n the language OF the
clAuse stood alone u would convey the gsntl-m.ns
idea MIR. Wood hers read the btquast O. the tssts-
tore wife aud said that the laugusse stosi By IT.
the court give d-d tor
BY his advertsry but when IL coupled with the other
parts q the will 10 cannot BE- made to bear that con-
struetion. MIR. Wood said that the great principles
Which govern the Court OF Equity In deter nining
the true construction % all intruuens and opecial
~ wills, T. 10 maze all parts consistent vito each
said be mistake that the t,statoT gave
all bis children, one seventh Tart OF his estate, alter
payment OF hs debts, ana you cannot give Inc VIA
ans construction, except sueh -iu carry QUO
his intention; "a you give any her you take from all
those lsgatees the benedt their father intended item
Now, are we calling on you to give construction 10
this will that Diver e. US benefit! No. We only
call ON you 10 do thai witch you are bound 10
do; u " only to change small word the change
q which you'd express the true meaning OF Oh. tes-
taior aud the course ts then clear. by putting this
contraction the will she THE widow would rsceve
third Of the estate subject OF courte 20 the suh'a
ugsnt bequets; and this s going further than has
been gone IN thousand cases before; by d'iug vAoh
you make the different parts Of this sill hhrmOrfs
spprbend. from this plain view ~ the cess. we
have right 70 one seventh part Of this sstate after
PAY m@pt Of debts and lsgscse and 10 that view We
have right to the account call Tor, because tt Is
essential IN order 10 obtain the relief soek In regard
~ the real estate; and, for the reason, must
hav" an sceount "a the persunal uftats and o. the
rents I'd profits 81 the lands ssscd 10 order 90 CON,
20 F-usral rssult Witch cannst BE- Obtained without
those .ccounts Their. d-bts md legaeies 30 b.
paid. and We want 70 see how much 81 the personal
esse ard hoe mach OF the proceeds 81 the res, estate
we ere entitled to sud how much OF u ought 70 D.
applied 20 the payment OF those debts amt lssAclss
Noe, cir osnnot help ssy log that an 'urT reed tue
esfsbdant would tsse thfs preliminary Objection