The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-09-24

Before Hon. Judge Mitchell
DANIEL ]. CAHR0LL VS.. CHAs. H. 0ARRohL' LEWIS
CURTIS AND OTHERS. 49,.
EEPT. 23.-Ths case, out OF which 50 Mucn nu'
cation has arisen for many years, came on nov, On
Q motion to compel defendants to account; mr.: y
| r. Butler appeared for the plaintiff The dsfbn-
d6ts were represented by Messrs. Kirkland for the
| executors), Noyes for trustees), Titus (tor the
receiver), and Benny (for special receiyer). The
proceedings are very voluminous, occupying several
The following are the principal points submitted
by Mr. Butler, for the plaintiff
lit being admitted by defendants answer that
his account, as executor, is wholly unsettled, aud
that no distribution has yet been made under the
will, the plaintiff is clearly entitled to decree for
ageneral account, as prayed in the bill.
I'm taking the account, the referee should be
directed to hold the defendant, Charles H. Carroll
responsible for an amount Of personal estate suf-
cent to discharge all the tcstators debts, subeo to
the right OF defendant to discharge himself by
due proof. LIST. The defendant having neglected,
deliberately, and, as he admits, for unawfup ur
pose, for twenty seven years to file an inventory II is
to be presumed, Until he proves the contrary that he
received, as executor, sufficient to discharge all the
testator's debts. (Twinebarne, part s, SEQ. 6, p.
4ol, Orr vs. kaines, 2 yes, sen 1874; Hart VS.. Ton
Eyck, johnson, CHI. l, so) Sd. This presump-
ton is not successfully rpelled by the statements
In the answer, because they are vague and unsatis
factory, and without any specification OF particulars
BIN taking the account, the referee should be
directed TO charge the said defendant with all
moneys received by him from the testators estate,
and especially with all moneys received from the
real estate whereof the testator Charles Carroll de-
ceased, died seized wheresoever situated, either rs
| rents profits Of said lands, or by means of the
sale Of said lands, or by virtue Of mortgages there
Of, by him made under the power in the will con-
tanned I'd. To make to the defendant all just nj.
lowances for moneys By him paid, executor, for
! or on account Of said estate. Sd To take an nc
count OF all the real estate left by the said tes,ator
and also of all such estate yet remaining unso!d,
and Of its present condition IN respect to contracts
OF sale ana membranes made by the defendant.
as executor. 4th To take and stare an account as
between the plaintiff and defendant as executor,
and rs between each Of the devisees and legatees,
or their present representatives, and the defendant,
as executor, Tor the purpose Of ascertainng what
has been paid by said executor to each Of said par
ties, and h.ir rights relatively and individually in
the said estates 9th. To cali in, by ADVERTISEMENT a.
ashert GATE TO be named ali creditors OF the testator
and report what debts, and to whom owing, yet re-
main unpaid; and 9th. To ascertain aud report all
other matters neediul to the complete winding up
and SETTLE ment OF the estate.
"A receiver should also be imm ediately APP
pointed, 70 proceed to sell all the real estate Of the
testator, such terms the Court shall Judge fit,
to the end that the creditors may be paid, and the
residue of the estate be distributed amongst the
parties entitled thereto 1st. As executor (rreSpec
tive Of the special provisions in the wilD tho de-
fendant has no authority to sell the real estate.
I'd. The power of sale and mortgage conferred on
him in the will, so far as the same is yet uneKe-
cuted. cannot deprive this court of its Jurisdiction
to administer ana marshal the assets Sd. After
the delay and misconduct Of the executor, it is duo
to the creditors devsees, and legatees, that they
should not be left for the settlement Of the estate
to depend any longer upon him.
The following are the points of Mr. Kirkland's do.
fence for the execut0rs:-
This case is noticed for hearing on the
bill. answer, and replication, lit being cause
pending in the late Court Of Chancery) When a
cause is brought to hearing BILL answer and rep
cation, (where, in this the answers on oath
as required by the bill, the allegations in the
swer. which are responsive to allegations in the BILL
are to be taken as true, and the matters thus
sponsyey stated are for all the purposes of the
gument and decision, to be regarded as proved.
2.-Before a decree or judgment could be
the state of the pleadngs requires that certain
facts should be proved or established in order
that the Court, in decreeing an account should de-
cree the principles which the account should be
these facts, the plaintiff, by bringing on the plead
ngs, admits the facts and the decree must therefore
ajjudge that these facts established, and that
the account is to be taken accordingly, an account
can be dscreed at all.
3-Copsequently, if the Court now DEGREES that
the defendant account, IL viii be Ia the same do
cree provided that the accounting, the matters Of
the answer which are responsive rs the bil are to
be decreed and taken as proved, namely--that 1T is
proved that the tile to the lands, mortgages &C.,
&c was in the defendant, Q IL. Carroll, and not in
the testator and, therefore, that the defendant is
net bound TO account to these that G.. ii. Car
roll elected TO take and did take the one thousand
acres and, therefore, is not bound 10 account to
these lands and so in reference to all other msterai
matters alleged in the BILL and TO which the alega-
tons in the answer are responsive; and this would
include the defendants statement of his account of
his receipts and expenditures The Decree therefore,
in this state Of the cause, and this bearHg, would
simply be that defendant account on the basis OF the
answer.
4-But the bill having called on the defendant to
answer and account under oath, and the defendant
having done SO, the plaintiff cannot merely on the
bill, answer and replication sare decree Tor any
further accounting and the defendant having, as
the case now stands, fully accounted and shown
balance in his favor, the plaintiffs bill, this
hearing, must be dimissed with costs.
Mr Noyes, on behalf of the defendants, Lewis,
Curtis and others, submits the following points,
I-Charles II. Carroll, as executor had authori-
ty to mortgage the estate, by the express terms OF
his fathers will, to pay debts, legacies, &c Bill
mort gage, If the latter power had not been ex.
pressly given. l, Sugden on Powers, 53S y I'd
i'd, 49S Mills VS.. Banks, 3, p WINS. 9. l, Pow
ell on Devices, 234, note 8.
2.-He could properly execute the mortgages to
obtain stock, as that was OF the means OF pay
ing off the debts, Sc, which he was bound to dis
charge.
there were $50, 600 Of oebts due from the estate;
this alone authorized the execution of the mort
cages, but was not necessary for the party receiv-
log them to prove that debts actually existed The
executor, who had the confidence of the testator,
and was charged with the duty of paying the debts
ard taking care of the estate, to whom, in fact,
fee is devised by the will, has admitted the debts
and the necessity for executing the mortgages, and
the party receiving them in good faith, is not bound
10 prove the cxtence of the debts In this respect
the onus is on him who attempts to defeat the
mortgages, especially as the will admits the debts,
in express terms. Angel on Linn, POI, 296, 2S7.
Angel and Ames, 290. johnson vs.. Beardsley. 10
j. Il,
III Charles II. Carroll has executed the mort
cages without the existence Of debts, still, as the
mcigss,ls received them in good faith and parted
with k,aable consideration for them, the plain
tin reroody if any, should be against him for a
violation oi his duty executor; aud even u he
could in any event resort 10 suit TO set aside the
bonds al mortgages, decree to that effect should
only be made on condition that he should first
ha1st his remedies against the executor in the first
instance
5.-By the will, the testator, owning the property,