The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-07-19
THR PARISH WILL CASR.


THR PARISH WILL CASR.
eurr0gatc's Court.
OPINION OF THE SURROGATE ON THE PETITION oil
THE COLLECTOR OF THE ESTATE.
Sefore A. W. Bradford, EsS
The Surrogate yesterday decided upon the petition d
Hon. William Kent special collector Of this estate pray
ing for the permission Of the Surrogate to commence
suit law against Mrs Parish the widow Of the ,estao
to some 100000 Of the assets Of the estate
which she had refused 10 deliver to him. II admtte
that during his illness she received all his income bot
rncipal and interest moneys, and invested the Who'll
mount either III her or in securities traus
ferable by delivery and ger making in any instanc
uring that period an Investment In the name OF he
usband IL also admitted that she had transferre
some OF his old stock to herself under power atto
ey apparently signed with bis signature but which th|
contestants deny was signed by him. Mrs. Parish claim
ed and insisted that all these transactions wer
thus made by and with the consent aud directo
OF MI Parish, as gifts TO her iniependeJt of thy
will and codcis. The Surrogate permits III
collector to commence suit against Mrs. Pari. !
TO the amount for the benefit Of the ca NJ
By the SuRRoGATE--Opnion. special collector an
pointed in tins has presented application for lea
to institute suit law against the widow Of III aeI
ceden for the recovery OF certain aud securities
standing in her name and claimed by her her pro|
perty amounting in value TO the sum of three hundred
and eighty two thousand dollars The petition al,ege
that of these assets were purchased after Mr. Paris
attacked with paralysis in July, 1S49, with fua
derived from his estate, and that the rest
ferred by Mrs. Parish TO her own nsnne under alleged
power OF attorney, subsequent to the period Thes
facts are denied, but by the affidavit nerposed M
answer the petition IL is set up by Mrs Parish tina
the investments made in her name, and the transfer
under the power Of attorney were specifically, in eac
instance made by the wish and direction 10 that effect
Now. II is obvious that the validity Of these gifts thu
lifetime Of Mr.. Parish and after his attack in 1849, will
probably involve much the same questions as those nn
will and codics; and should the determination herd
possibly be adverse to the codicls the claim to Tho
gifts must afterwards be settled in another formnI
Under this OF facts the collector declares that hid
deems his duty to collect aud hold all the securities and
property which, after the decedents attack, Of
accumulated from his funds assets, and to conI
test the validity OF all transactions divertng tho sand
from his estate. He accordingly asks that he be permit
ea 10 DIsg sun i0r .na ana nave no
the codics valid, and the property is claimed b.
Mrs. Parish under them then the assets should DO placed
in the hands of the collector who represents the estaeI
and they should be left in the contract Of legate
who has neither title nor official capacity IT. on tho
other hand, there be desire TO stand by the claim
the property under the gifts then there be no lega
why the gifts should not be tried in the appropn
ate tribunal for that class Of actions court Of law
attending such an action have not the slightest weight
No tribunal can ever admit the plea from party wh
sets up claim, that it is inconvenent TO try thd
ed that II the codicls sustained the suit at law vii
not be necessary. That suggestion Is met how
codics are not sustained a suit at law will be ne
cessary and argument Is just food the other
unless can intimate which party has the better That
certainly shou not do even had the means power
The but midway in progress and II s not only
duty of the Court 70 abstain, far possible from
definite opinions un.l ai.er inc maj hearing o.
dictate them. without entertaining expressing any
views either 70 the result Of this contest ts presen
poeiton before me- propose to grant this application,
the ground among Others that ought restrain thd
collector from bringing such actions at law he may
deem proper unless can say he is clearly wrong in III
nj san has.usa
involves my having and expressing an opinion on tn
present merits Of the controversy and its probable
suits. But sti further, IL must not be overlooked thu
the collection of this estate devolves upon the special id
mimi TRAITOR and not upon He is the officer appointed
by the law for that express object and he personally
espopsbe 70 all parties interested tor neglect breach
OF duty. In respect 10 suits, he stands the foot
ing all other administrators, and he Is the judge Of thu
propriety OF his Of action subject only u hi
accounts are settled before the Surrogate. II he L
10 institute suits at the instance of parties ID
interest, upon the offer OF sufficient indemnity agAns
ost he may be held accountable for the loss resulting
from his refusal T1c authority he receives consists ID
special letters OF administration authorizing the pro
ervaon and collection OF the goods Of the deceased
nd the statute expressly declares that he shall has
over o collect the goods, chattes personal estate and
debts OF the deceased, and TO secure the 1t sC
essonable expense the Surrogate shall allow and
those purposes lie may maintain suits as administrator
The law therefore, empowers him 10 bring suits las ad
minstrator and this, too, Of his own motion. and wfh
out being compelled In the first place To ask the oerms
sion Of the Surrogate II Is manifest, therefore, that
Eau not IN Tie order directing the appointment OF col
ector, restrained him from bringing actions without ny
consent he might have acted in this respect at his plea
sure under the authority conferred upon him by he
statute That restraint was placed In the order more
satisfy objections, that numerous prosecutions might
instituted, than from suppoeition on my part that would
become necessary check against undue exerron Of on
cal power II simply postponed from that time TO tbs
the question whether the Collector should be prevented
from testing the title 10 these gifts in court Of law
permitting him 10 bring the proposed suit give him
directions, but simply restore him TO his statutory
express opinion whether tho Of action
well taken or not do suggest any advice 10 h
course but my Official duty Is satisfied In say ing that
the claim has been advanced, can no reason sbl
ground for denying TO the collector the opportunity
having II determined In the proper tribunal, II he sha
be 70 advised II u the statute which authorizes him
cue, and simply let the statute have ts course il tn
absence OF any sufficient cause for impeding H. Tbt
assertion Of title by way Of F II adverse 10 the estate
and presents ndep ndent legal question entirely be
You'd the Jurisdiction Of the Probate Judge. II would b
an unwarran,abe assumption on my part and certainly
without a single precedent, TO enIon the ofnccr who
represents the estate from appealing TO court Of Law
decide purely legal title, upon any supposed reasons
to the party in possession OF the property
An order must therefore, be entered allowing the coec
tor 10 bring action 10 test the validity Of these gs