The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-29

stated that w made this application two grounds,
enc VI which We have abandoned but insist that
ths ether ground namely msma Of the estate,
We are entitled 10 whstws ssek. We have shown this
rem tbs sndaviss the other side In the place,
the OF ths defendant for twenty years to
ssn and wind up the estate is primo scie evidence Of
ths ether side The testator died in lsA the viii
proved in 1924 and the Court will observe that b. NE
very frst clause, he provides for tho payment Of
h debts Now, it Is possible the teststor nisht have
b~en embarrassed st the time but If he he
less man, and had the highest Of hts RESPONSE
ouiy, fer clearly appears that he intended his
debts sAou!d te fully and speedily paid and for that
&. Laws Of n. SnsS him with
fu powers TO m,rtgsge sell for payment Of debts Tho
Court will please TO bear In mind that the bill alleges the
debts TO be about $50 go And DO not find any
denial Of that straightforward it is Of complaints
that No cannot get from the executor although have
been for ve or Fix trying to induce him to give IT,
what was the amount Of the stator debts mt the time
Ct his decessc although lie il very particular in telling
the number Of suits in regard to them Upon this point
hs statement is very vague; but at all events enough
appears in il to show that these debts have not a been
disposed Of and that Of them least yet remain
be paid Now, the Court will that it is impossible for
to know exactly tho state Of the tesators affairs at
the time OF his death without knowing the amount Of
his debts. The charge in the bill that they
saocoo and If that not he ought to have denied it,
Now in regard 10 the excuse made in his affidavit for
not winding up the affairs OF his trust lie has had
twenty-seven years to do 1t. Tho common law allows
yeals and the statutes Of this State only allow
year and half; but said before he has had twenty
years to do it. and at the end Of the twenty
years. fer from settlement were.
Now. what the the defendant
in his sidayt lie assumes to give certain cunstruc
ton to the will according to which one has amy nte
rest under it That question very fully argued before
Mr. Justice Edmond- and he came to- very different
cucn under the ecccsastcal law and the statutes of
this State refer the Court TO the revised laws Of 1913.
page 3ll and TO he devised Statutes "a volume sections
II to % and which explicit the subject;
but it enough for purpose that at the time Of his
appointment he was charged with tho duty of fling an
inventory within six months. The Importance Of this
matter will be further illustrated by reference to case
in I'd John Is Reports; and here may add that the gene
down to the present time has been recognized by our
courts which is that If the executor does not nile in
ventory he should make good out % his estate any
demands that may be mace against him. and the reason
Of the rule is that il will be assumed him that he
had sufficient in his hands to pay all demands And
here would state and the law considers it, that all
the money due AT the time much assets the
rents and profits. &c and he states, by his affidavit,
that he only received 81 eco and that the widow
titled to the whole Of it, Now there might arise some
very serious questions here to who entitled to it.
1t may be question whether it should not be applied
in the first instance to the payment of debts that
the excuse he makes, after ALL amounts but to
sumption OF power determine the of the
will by himself and to set aside the law Of the land,
which required lin to file the inventory and until he
does So cannot 80 on to settle this estate He also
states that he has been 1T all times ready to account
Well So would ask how happens that he refuses TO
the bill instead Of which he has put in two demur
setting up technical objections and amongst others,
the statute OF limitations Now, gentleman who has
for y years refused to account and when at the end Of
that period, no is called to account up the
statute of limitations, because there has been delay
produced by himself, your Honor will at once see
that such a defence Is the very highest evidence
Of misconduct and Encouragement, and which calls
this Court to take the property out Of his hands
and put it into the hands Of some who will
not set up the statute Of limitations against
Let now lock at the prominent statement in the
petition and will appear that he has received by sales
mortgages Sis and The bill states that the
deeds AL record but he says in regard to the
land in Livingston county which he admits sold by
him. that it belonged himself and that he took it in
lieu of the $4,000 left him by the will Now this state
mcnt requires 10 call the attention Of the court to
folio IS Of the bill Now he has not, by his AFFIDAVIT
bat.
know whether he had not received previous to the SALE
more than 1000 and appropriated it to his own use
lie gives vague but does not answer the mate
rial part Of the a,gaonthat is whether he had not
received the $4,000 after his fathers DEATH
and appropriated II to his own use Nor has he denied
that the lands sold in the District Il Columbia for
which he received $4,000; "A part of testator's
estate, and belonged TO him at the time of his death
Tho bill expressly charges at folio H. that the teator
was seized Of large real estate la the States of New
York, Kentucky &c Ac., and at folio IL. speches the
property in kentucky: and he admits by his affidavit
there land in Kentucky which he had sold and from
which lie received $4,000 whchshr says conveyed
HIN by testator hut which the other parties claimed
to b. part Of TIE tstator estate and tor the purposes
q this motion we have right to consider and to
put it in issue. We have now shown that he has re-
cey1d considerably than the debts. lie admits
have recev,d ss0oO and in this lie does not include
what lie received for the 1000 acres; but in respect to
that have already shown how IL stands on the b and
that he ought To account for IL; and i'm conncxion
with that question must consider the other facts
in the bl and until they are disproycd he Il to
be held responsible. lie admits he received sSSOo0;
and after tScnty-scyen ycsrS, he refuses to give
account, hut says hi- afiayit, that he paid
u $1,000 Now he might have shortly after his fathers
death paid $1,000 and the interest OF that, t. this
time, would amount to $1,000 lie might have also paid
other small sums. the interest on which would also run
up; and in that way he might have paid IT, Now must
say that plaintiff Is well entitled to his portion of his
fathers any other leatce but lac has been kept
OF il by the defcndant for twenty seven years aud
when lac files his hill he Is met by the def Of drmur
setting up the statute Of limitations: aud to this day
he has never received any account. Dir. Butler
tnu,d bis argument at considerable length, and
eudcd by oder that The defendant would undertake
gfN lI .fuys this
his motion. which was declined.
Mr. Kirkland made a forcblc reply. Of which can
only give the substance. MIR X. said referring TO Mr
CAROLS affidavit that notwih tandiug the sweeping
charges that lad been made in the petition against the
defendant every one Of them met BY nat denial
In regard 10 the charge. that he the decndant) in
years lie that the embarrassed which
the lcsator affairs wcre at the time Of his death it was
impossible fer him wind up the estate; that imne-
diatoly after his fathers death, suits commenced
against him os executor by the United States govern
mcut and several other parties that the validity II those
claims difpucd by the tcstator Ia lis ctimc, and
the defendant a. Ills executor t bound TO resist thrm
also; that these claims ttf Undetermined, and II
would be impossible Tor defendant to come T. tnsl ret
tement unt those various suits decided In regard
10 the reisonai property admitted 10 be received that
Wiz tie property o. the estItors widow under the be-
quc-t Ia tie viii We have also shown that the pcti-
torer has received sum 81 $4,000. much than
any CthcT legatee and IL as we contend much more
than d. i entitled TO. We have also shown that all the
lcgatcts, or thCir representatives.. except who
resids in the state II Missouri with whom we have hid
no opportunity 81 communicating, and except the
plaintiff. have expressed their appreciation Of de-
iendaut's conduct in administering tn estate and
the court wi perceive that w. have the aiidavts of
three II the parties viz MIR Fitsbus, Mr.. Lttlej0hs
aud Mr. VIM ]. carroll Mr. ftzhuc j. the brcther-in-
law Of the plaintiffs anIicfandant, Mr. Littlohn q
rid 10 their niece aud Mir. William r. Carroll IL their
brother and one . the legaecs under the viii would
call the attention oi the court 20 tbs aavit u these
gentlcmenthcy oil swear that they opposed to this
nd that II receiver H. appointed. II Will b.
Judicial the estate aud to the parties Interested AMI
the court Will further remark that Mr.. VIVA II. Carroll
swearS that De has advanced at various times q tie
plaintiff several 81 money aud tnat hr, the pain
hAs executed - Linn assignment of all bis interest
under tho VIII to secure hun in the payment Of those
advances.
CourtThis assignment II mentioned In the AFFIDAVIT,
but 1t a. .tated shehrr IL IL absolute condi-
tionai assignment Ii III were absolute assignment,
would stop the proceedings cuce the piantin could
have right to proceed
MIR Huterlf there be any assignment at all II Is but
conditional which would not deprive the plaintiff Of his
right 10 prCcrcd
Etfki i IL not Lnoys nov fhp Ia hut I