The New York herald., 1851-07-16
Che Carroll VIII Case.

Charles H. Csrro, executor dds Da,iel p. Cared The
following is the opinion Of Judge Mitchell the demar
Ter to the bill on the Carroll will case:-The bill WIS Ill
in December, 1876 1t shows that Charles Carroll the
testater made his viii in 1928 and died Ia Oatober IN
next Of kin, and the defendant Charles H. Carrei hi.
executors and that the will proved by the uor ia
1924 who from that time to 1888 has acted executor
receiving the present estate leasing mortgagng and
conveying the lands under the powers contained in the
will So late March l. 1888 he mortgagcd Of the
lands to the Farmers Loan and Trust Company for $4
GOO for the purpose alleged in the mortgage Of rails
ing funds to pay of and discharge existing debts and
liabilities upon againt the estate of said testaor
He therefore, during period within nine years before
the hlng OF the BILL continuing to act professedy
in settling up claims against the estate which be
paid before the heirs egatees could claim thing
The will gave him full power to SELL lease mortgage
any part or the whole Of the real estate for the payment
OF the debts OF the estator and Of sce and for the
equal division OF the balance among the seven child
rem of the tesator. The defendant having borrowed
ssySs against the devisees that the debts
were all that and more than ten years be-
fore the bill ~ hed and that they could therefore have
called him to account than years ago those
matters and now barred by the statute Of limitations
He has by his acs held himself out to the devisees
engaged in winding the estate and dischargng claims
that would be prior to theirs, and while he do.
ing, or protesting to do, this the statute Of mits-
tions could not against them, who had
rights as against him until those prior claims
paid Every act OF his in raising money as ex-
ecutor out Of the estate to pay the debts OF the tes
tatCr, was efectua Acknowledgement Of his Continu
Gus acting executor and his continuance II unbroken
liability as executor as if in each case he had promised
tor lie was bound to eppy the personal estate first to
pay the debts the testator having died before lS30O
and If that Of the estate with other parts received
by him on sales mortgages leases Of the real estate
were sufficient TO all the debts OF the estator then the
devsees are entitled to compel him to account for the
$4,000 raised by him. about 1st March, 1888 under
The pretence (as it then would be that it raised to
pay the debts Of the testator If the mortgage would
be protected in such by the fact that there
debts still due by the deceased, the executor who had
received the pay those debts from other
of the estate would be allowed keep both in his
An no
widow was entitled to all the persona! estate absolutely
as her title would be limited TO what remained after the
payment Of debts the executor must render account
Of the personal estate that be whether the
allegation set by him, when he borrowed the $4,000
was true vzthat the mortgage necessary for the
purpose of paying the debts OF the deceased If the
personal estate and other property received by him from
true as between him and the plaintiff and ii not true,
he Is clearly for the received
lean This is sufficient ground to oyerrue all the de-
murrers that set statute of limitations II there
are any circumstances not disclosed by the bill which
could make the statue apply the defendant set those
up IN his answer II need not now be determined whether
the widow entitled to the personal estate absolutely
or not whether the plaintiff claimed only legatee
he would be barred lie is entitled account of tho
personal estate the before stated The
tor next objects that he cannot be called TO account for
the real estate, for several reasons;-lst Because
the legal title in the devisees and consat,
but they could have had possession at any time.
The bill alleges that the defendant, c. H. Carroll,
took possession Of all the real estate. well the
personal This he could do through tenants under him.
by virtue Of his power Of leasing and then If the plain
TIL ald time, it is bus
ness OF the defendant to ege that by way Of defence
demurrer must generally depend on that which ap
pears in the complaint, and not that qod coGt,
unless this last Is an essential to pmd d cause Of ac
ton. The object Of the BILL too is to make the plaintiff
account not for what he did not receive but for what
lie did receive and limited to what he received
under the power OF leasing mortgagng and selling This
also answers the second of objection viz that the
defendant had OIL y of sale so was not bound
look after the plaintiff lands but he is bound to
der account of what he got the mortgage SALE
lease Of the plaintiff lands The third clause is this
hat tha DIFF fba int tha
ton OF his power the plaintiff has ornpaint make
and he did not sell the plaintiffs title is not affected
Neither OF these positions is correct II the lands
sold in the due executio Of the power before first March,
1S3S. The plaintiff has right TO account of what
received by the executor and pay those debts that
he may know whetl er the mortgage Of first March 1885,
was valid whether he is entitled to any and if to
how much Of the money raised by it. the sale
der the preence c debts being unpaid when the
tor had assets TO pay them with purchaser might per-
more just to resort to the executor and make him
suffer for wrong doing than to innocent pur-
chaser 1t is said the bill isvague and uncertain and
a tshing bill. There no vagueness or uncertainty
IN the allegations contained in the bithe facts
clearly detaed nor is there any Objectionable vague
of the exact amount Of moneys that The has real
lied from the estate but that is matter peculiarly
within the executors knowledge, and which the plain
till for tnat is entitled fsh outn of the execu
tor prayer Of discovery "A fishing bill in the obec
onate sense one IN which the plaintiff shows
q action and eDdeavors to compel the defendant to dis
close ooe in the plaintiff favor bill for discovery and
relief shows as this does cause OF actsn and prays for
the discovery Of particular facts alleged be in
fact but which peculiarly within the knowledge Of
the defendant The matters here to be discovered
merely matters Of amount and merely evidence and
that not much that the plaintiff has a OF action
a. what the amount Of his recovery should be- The bill
Is raid to be mufarous Is relates in fact sim
gle matter the agency Of the defendant executor of
the estate and everything introduced into the bill arises
out Of II at subject Fer this among Others
the defendant, g. H. Carroll insists that the mortgages
to the Farmers Loan and Trust Cornpsuy and to the
North American Trust and Banking Company, not |
valid; and those companies had common interest with
the executor to show that from the true state OF the
counts there debte Of the tetator t due which
authorized the mortgages deeds TO them There being
this sufficient ground for making the companies par.
ties. there nothing to prevent the plaintiff from
showing that the convysnces held by those companies
bad also for other The companies do not
raise the objection but the executor who is not injured
decision to be made in this action will litigation
hereafter on the same subject between him and those
companies. The order at special term, overriding the
alaId lie lirnal lXritl