Opinion
07-10-1888
BOLLES et al. v. BOLLES et al.
Herbert Baggs, for the motion. Joseph D. Gallagher, opposed.
(Syllabus by the Court.)
On motion to dismiss, or, failing in that, to strike out part of the bill; made on notice under paragraph 224 of the rules.
Herbert Baggs, for the motion. Joseph D. Gallagher, opposed.
VAN FLEET, V. C. The bill in this case prays for three distinct measures of relief: First, that a deed made by Enoch Bolles, as surviving executor of Enoch Bolles, Sr., deceased, to the grantor's daughter, Phebe T. Bolles, for land on West Park street, in the city of Newark, may be set aside, on the ground that the same was made in fraud of the rights of the complainants; second, that Enoch Bolles may, as the surviving executor of Enoch Bolles, Sr., deceased, be decreed to account for his administration of his testator's estate; and, third, that Enoch Bolles may be removed as executor of Enoch Bolles, Sr., deceased, and that some fit person may be appointed administrator with the will annexed in his place. Although the first and second measures of relief are treated in the prayer of the bill as distinct matters, yet, when the main purpose of the bill is considered, it is entirely obvious that the first is a mere incident of the second, and that it would be impossible to give the complainants what they are entitled to under the second without deciding whether or not they are entitled to what they ask in the first. But this subject may be more conveniently discussed at a later point in the opinion.
Application is made to strike out that part of the bill which asks for the removal of Enoch Bolles as executor, and that some fit person may be appointed in his place. I think this application must prevail. This court has power to remove a trustee, but not to remove an executor. In a note to 3 Williams, Ex'rs, p. 2033, it is said: "A court of equity has no power to remove or discharge one executor, and appoint another in his place." Two cases are cited: Haigood v. Wells, 1 Hill, Eq. 59; Ex parte Galluchat, Id. 148. These cases distinctly hold that while it is within the power of courts of equity to remove a trustee, and appoint another in his place, they cannot exercise a like power over an executor. They may protect the beneficiaries under a will against the fraud or other wrong doing of an executor, by restraining him from acting, or they may even take the possession of the assets from him, and place them in the custody of a receiver, but they cannot remove him. Courts of equity almost uniformly decline jurisdiction in purely probate matters. Barnesley v. Powel, 1 Ves. Sr. 284; Broderick Will Case, 21 Wall. 510; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. Rep. 327.
Application is also made to dismiss the bill for multifariousness. The definition of multifariousness given by Lord COTTENHAM in Campbell v. Mackay, 1 Mylne & C. 603, has, I believe, been generally adopted as correct. He says it exists when a party is able to say he is brought as a defendant upon a record with a large portion of which, and of the case made by which, he hasno concern whatever, but that it does not exist in a case where it appears that the complainants have common interest, and the defendants are interested in all the different questions raised on the record, and the suit has a common object. The objection of multifariousness raises merely a question of convenience in conducting the suit. It does not go to the merits of the complainant's case, and call upon the court to decide whether the complainant has a case against any of the defendants; but the court, in dealing with it, is simply called upon to exercise its discretion, and to decide whether both or all the causes of action set forth in the bill should be tried in a single suit, or should be split up, and tried in two or more suits; or whether a defendant who is a necessary party in respect to one or more matters covered by the bill has a sufficient interest in or connection with the other matters involved in the suit to make him a proper party in respect to such other matters.
The principal object of the suit in this case is to compel Enoch Bolles, as surviving executor of Enoch Bolles, Sr., deceased, to account for the estate of his testator, in order that a decree may be made giving the complainants what they are now entitled to out of that estate. The complainants claim to be entitled, under the will of Enoch Bolles, Sr., deceased, and an appointment made by Charles O. Bolles, deceased, pursuant to power conferred upon him by the will of Enoch, to four-fourteenths of Enoch's estate, with a right to an immediate payment or transfer to them of their shares. They admit that the defendant Phebe T. has a like right, acquired in the same way, to three-fourteenths of the same estate. As incidental to the main relief they seek, the complainants ask that a deed which Enoch, as surviving executor of Enoch, Sr., deceased, recently made to the defendant Phebe T., for lands of which Enoch, Sr., died seized, may be set aside as fraudulent as to them. These lands the complainants claim constitute a part of the property which they are entitled to under the will of Enoch, Sr., deceased, and the appointment made by Charles O., deceased. This statement of the objects of the suit, and of the grounds on which the complainants' right of action rests, would seem to make it entirely clear that the complainants have a common interest. The rights of each flow from the same source, and are in all respects identical, except as to the quantum of interest; Mrs. Holbrook, one of the complainants, being entitled to two-fourteenths, while the other two complainants are only entitled to one-fourteenth each. And it would seem also to be entirely plain that both of the defendants, in whose behalf this application is made, are vitally interested in both questions raised by the bill; namely, whether or not the deed shall be set aside, and also how the account to be rendered by Enoch, as surviving executor, shall be stated. It is manifest that neither question could, according to the established course of procedure in equity, be determined so as to finally conclude all interests, and prevent all further litigation, except all the persons now before the court, as parties to this suit, were parties to the suit in which such determination should be made. And it remains to be said, in view of the statements of the bill, that it is clear, beyond dispute, that the suit has an object, common not only to the three complainants, but also to the defendant Phebe. Its main object is to enforce the joint rights of the four, created by the will of Enoch, Sr., deceased, and the appointment made by Charles O. This being so, there would seem to be no doubt, under the rule laid down in Campbell v. Mackay, supra, that, so far as respects parties, the bill is not multifarious.
Nor is there, in my opinion, a misjoinder of causes of action. As already stated, the main purpose of the complainants' suit is to compel Enoch Bolles, as surviving executor of Enoch Bolles, Sr., deceased, to account in order that a decree may be made giving the complainants their just shares of that estate. Until it is known what Enoch should be charged with, no decree can be made fixing the amount of his liability, nor ascertaining and defining the shares of the complainants, nor declaring what their shares consist of,—whethermoney, or part money and part land. Until the question whether the conveyance to Phebe is valid or invalid has been settled, it cannot be known whether Enoch should be charged, in his account, with the consideration named in that deed or not. So that it would appear to be quite undeniable that the determination of that question is an incident inseparably connected with the accounting. It is a necessary part of the accounting,—as much so as if Enoch had made a conveyance for a full and fair price, but had attempted to keep back a part of the purchase money for his own use, or had accepted, in payment of the purchase money, something which he knew was either worthless, or worth much less than he had agreed to allow for it. This case, in all its material features, is the counterpart of Pointon v. Pointon, L. R. 12 Eq. 547, and the rule adopted in that case should, 1 think, be adopted as the rule of decision in this. There it was held that the court would not allow distinct subjects to be mixed up in one suit when it would result in inconvenience to the court, or in any injustice to the parties; but, where nothing of that kind was to be apprehended, it was perfectly proper, in a suit to compel executors to account for the administration of their testator's estate, to also call upon the survivor of a firm of which the testator had, in his lifetime, been a member, and who was also one of the testator's executors, to render an account of the partnership affairs. The court, in that case, said: "It is quite clear that, if there are to be separate suits, they must be closely intermixed, and the winding up of the principal suit must await that of the other or others; and, before it can be found out what the estate of the testator consists of, the partnership accounts must be taken. I am wholly unable to discover why they should not be taken in this suit." Just so here. Until it is known whether the deed made to Phebe is valid or not, it is impossible to tell of what the testator's estate consists. The determination of that question is manifestly indispensable to a full and fair accounting. Neither justice nor convenience requires two suits. On the contrary, to compel the complainants to split up their demands, and to bring two suits, when one can conveniently be used to do full justice to both parties, would, in my judgment, have somewhat the appearance of an attempt to baffle and delay the complainants in the pursuit of their rights. The application to dismiss for multifariousness must be denied.