Opinion
04-25-1904
EVANS v. EVANS et al.
John S. Voorhees, for complainant. W. P. Voorhees, for defendant Mary F. Evans.
Suit by William G. Evans against Mary A. Evans and Mary F. Evans, administratrix. Heard on bill and demurrer. Demurrer overruled.
John S. Voorhees, for complainant.
W. P. Voorhees, for defendant Mary F. Evans.
EMERY, V. C. The substantial question raised by the demurrer in this case is whether the complainant, one of the cestuis que trustent under his father's will, and now entitled thereunder to an annuity of $300 from the income of the trust estate, can, after the death of one of the two trustees, sustain a bill against both the surviving trustee and the administratrix of the deceased trustee for an accounting of the trust estate and its income. The accounting for income is sought as well for the income received by the deceased trustee in his lifetime, as the income received by the surviving trustee. The testator, Rees Evans, the father of complainant, died August 1, 1887, and gave and devised all the residue of his estate (real and personal) to his trustees, his wife, Mary A. Evans, the defendant, and John C. Evans, and to the survivor of them, in trust to receive the income and apply the net income so as to pay his wife $500 annually, to pay complainant $300 annually, and testator's son John H. Evans $200 annually. On the death of his wife, part of the real estate and personal property was devised and bequeathed to each of his two sons, with a direction in each devise that in case the devisee died without legal heirs, leaving his brother surviving, the property devised and bequeathed, real and personal, should go to the surviving brother. The brother John H. Evans died in February, 1902, and although the bill does not expressly allege that he died without leaving issue, it does allege that complainant, upon the death of his brother, under the provisions of his father's will, became entitled to the property left to his brother John H. Evans by the will; and, if this statement of complainant's right is considered to be admitted by the demurrer, complainant is not only an annuitant under the will, but is entitled to a vested interest in the whole trust estate, real and personal, subject to the devise to the trustee and the survivor for life. And he is, in any event, entitled to a one-half interest, subject to said estate. The two trustees were also executors, and the bill alleges that in their final account as executors, allowed by the orphans' court of Middlesex county, November 13, 1888, they charged themselves with $8,876.39, to be held as trustees; that subsequently, on July 27, 1892, and May 24, 1897, they accounted jointly as trustees in the same court. By the last account they charged themselves with trustproperty in their hands amounting to $4,409.60, of which $949.60 was furniture and personal property in the possession of the widow. The bill charges that John C. Evans was the active trustee; that he died on February 5, 1902; and that at his death all of the trust funds mentioned in the account were in his possession, except the furniture, which was in the possession of the widow. The bill charges that after the settlement of the last account (in 1897), John C. Evans, the deceased trustee, collected rents from the trust real estate, and has made no accounting thereof to complainant or the other persons interested. Mary F. Evans, the widow of John C. Evans, the deceased trustee, has been appointed his administratrix, and complainant is unable to obtain from her or from the surviving trustee any information in regard to the disposition or custody of the trust funds. The bill prays a discovery and account against both the surviving trustee and the administratrix of the deceased trustee, and a decree that the administratrix may pay over the trust funds in the possession of John C. Evans at his death. To whom payment is to be made is not indicated in the prayer of the bill.
The administratrix of the surviving trustee files a several demurrer, the main ground urged being that the surviving trustee is the only person who is entitled to call the representative of the deceased trustee to account for the trust property or income. The cases relied on show that the surviving trustee, under a devise and bequest of this character, does succeed to the legal title to all the trust property, and has also equitable rights as such surviving trustee for an account and for the delivery of the trust property; but they are not authority for the position that if the representative of the deceased trustee has not accounted to the surviving trustee, or to any of the cestuis que trustent, for the trust funds in his hands, the beneficiaries have no right to equitable protection against both defaulting parties, and in a proceeding against them jointly.
The rule applicable under the circumstances disclosed by this bill is the rule stated in 1 Daniell, Ch. Prac. *253, in reference to suits to administer the assets of a decedent's estate, where one of the administrators or executors is dead, and an account is sought not only against the surviving executor or administrator, who also succeeded to the legal title, but against the deceased executor. "The practice in these cases is now settled, viz., to make the personal representatives of a deceased executor parties, where he had received assets of the testator, for which he has not accounted with the surviving executor, and in respect to which it is sought to charge his estate, but, where this is not the case, to introduce into the bill an allegation that the deceased executor fully accounted with the survivor, and that nothing is due from his estate to the estate of the testator, and not to make his representatives parties." In Carpenter v. Gray (Runyon, Ch., 1883) 37 N. J. Eq. 389, 392, the right of a beneficiary for life to discovery and account of the trust fund from the administrator of a deceased trustee, on a bill against the administrator and the surviving trustee, was enforced. The general rule as to trustees is that the representatives of a deceased trustee are liable, to the extent of assets received by them, for a breach of trust committed in his lifetime, and they may all be joined, that their relative rights be determined in one suit. Perry on Trusts, § 877. There should be but one accounting in this case, and that should be against both the surviving trustee and the representative of the deceased trustee, from the time of the settlement of the last account; and all persons interested in the account should be made parties, so that they may be barred by the account allowed. Speakman v. Tatem (Runyon, Ch., 1889) 45 N. J. Eq. 388, 17 Atl. 818. All persons interested in this accounting are parties to this suit, either as complainant or defendant.
The further objection is made that the jurisdiction for proceedings against the administratrix to account is in the orphans' court, under the statute. Orphans' Court, Revision 1898, § 118 (P. L. 758). This section authorizes the executor or administrator to settle the accounts of the deceased trustee in the orphans' court, but it is doubtful whether the jurisdiction under this section extends beyond accounts thus voluntarily filed, and the statute certainly did not deprive the Court of Chancery of its jurisdiction, especially in cases where a beneficiary is entitled to an accounting against all trustees. The settlement of the former accounts of the trustees in the orphans' court does not operate to make all future accountings subject to its exclusive jurisdiction.
If the administratrix of the deceased trustee had voluntarily applied to settle the accounts of the trust estate, in the orphans' court, under the statute, and the account was now pending there, special circumstances to oust this jurisdiction should perhaps be shown, under the practice usually followed by this court, and illustrated in the cases relied on by demurrant. But as this course has not been taken, and the jurisdiction of the orphans' court to order such account from the administratrix is very doubtful, and as the complainant should be put to but one proceeding for accounting, the jurisdiction of this court to require accounting from both defendants in a single suit should be exercised.
It further appears by the bill that complainant has been appointed substituted administrator of his brother John H. Evans, one of the annuitants under the will, who died in February, 1902. It is therefore claimed that the bill is multifarious, in that by this allegation it claims to prosecute therights of John H. Evans' estate to an account, and that this further claim to accounting makes the bill multifarious. But manifestly this is a proceeding for a complete accounting as to the trust estate since the last settlement, in 1897, and, as there should be but one accounting, and one suit for that purpose, all persons interested as beneficiaries under the trust are proper parties, and could be properly joined as complainants. Complainant, having stated in his bill that he is also substituted administrator of the estate of his deceased brother, John H. Evans, and having asked generally an account, is sufficiently before the court, and a party, to the suit in that capacity, as well as individually, and for all the purposes of the accounting, although he only describes himself individually in the commencement of the bill. Evans v. Evans (Zabriskie, Ch., 1872) 23 N. J. Eq. 71, 75; Ramson's Ex'rs v. Geer (Van Fleet, V. C, 1878) 30 N. J. Eq. 249, 253; Plaut v. Plaut (McGill, Ch., 1888) 44 N. J. Eq. 18, 13 Atl. 849. The demurrer will be overruled.