The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-05-06

ArHM 8-Dsniet J. Csveu ". CAovies H. Csron Z
Mjeien and Rsesi,s~Ths history Of the case n, ~s
been reced by Judge King all the chief points Of whcS
have appeared IN the Herald he proceeded state in
relation to the mortgage to the Farmers Loan Trust
Company II do not discover that he Charles H. Car
roll the Of the win OF Charles Carroll hs father
who died in 1921 includes the amount received on this
mortgage in the amount he admits to have received ON
account Of the estate and the terms Of the affidavit
suchthe bill expressly charging this mortgagng not to
have been made for the purpose raising money for the
estseas to lead to the conclusion that the money
ceved this mortgage not raised for the benefit Of
the esate-that the estate not to be credited with tho
amount charged with the cost Of removing the in
cumbiance and ~ it appears, that the executor has
received from the sale Of lands and judgments belonging
to the estate larger than the specific amount he
claims to have paid for debts due by the estate and al
vanced to the complainant and he does not state the
amount Of advances he has made to the other parties
interested In the estate it Is think fair Inference
that the mortgage to the Farmers Loan and Trust Com
paDy was not made to pay debts due by the testaor
legsciss due to the testators children and there
fore, in violation Of the directions Of the will aud, to
that exit mt breach Of trust.
Opnion-The appointment Of receiver is for the
protection Of the fund while the controversy con-
tinues In this case, 1t does not appear that there
is any property which could be transferred to
a receiver. The executors affidavit is positive that
ne mas no properly S IN his possession be
sion Ct the lands of the testator and claims title
thereto except as one OF his devisees in with
the other devisees. The appointment Of receiver
appears to be unnecessary and useless and it is there
fore denied There appears to be object either for
removing the executor from his Office majority of tho
parties interested in the estate who represented
this motion, desire that he should be removed HIS
principal remaining duties consist in defending suits sim
pending against the estate and passing his accounts
executor II proper under these circums tances,
tnat he should not be removed from his office, but be
permitted still to act in the defence Of the suits
pending But TO bill filed TO compel account Of his
execuorshp he has interposed defence Of the statute
of limitations, by way Of demurrer which has been
ruled which only have been intended for the pur-
poses Of delay from the afidavits used this
on II does not appear that the defence could have bees
made by plea Moreover the transaction with
the Farmers Lean and Trust Company far As it
be gathered from the papers before me was breach q
trust on his part 1t proper therefore, that he
should be restricted in his executor to the de-
fence Of the suits pending against him in that cha
Iacter and that the prayer Of the compliments petit
ion should be far granted that injunction issue,
restraining the defendant, Charles IL. Carroll. from
cutting the power Of selling. leasing. morgaging the
tesators real estate given him by his fathers WILL and
from further acting executor Of the deceased except
in the defence of suits pending which may be brought
against him in that character until the further order u
this court but he to be at liberty to apply for permits
sion to execute the aforesaid power Of leasing mortgage
ing or selling necessary to do to raise money to pay
the caims against the estate II established the
penes Of defending the suits pending which mag
be brought against him such executor.
(SienedD JAMES G. KING, Jr.
MAY i, 1851.