Opinion
07-10-1902
LOEHNBERG v. LOEHNBERG et al.
T. S. Anderson, for plaintiff. Wm. H. Morrow, for defendants.
Suit by Herman Loehnberg against Lizzie Kass Loehnberg and others. Demurrer to bill sustained.
T. S. Anderson, for plaintiff.
Wm. H. Morrow, for defendants.
EMERY, V. C. Complainant's bill is a bill by a creditor of testator, August Loehnberg, filed on behalf of himself and other creditors, against the legatees and devisees under testator's will. Complainant is one of the sons of the testator, and his claim as set out in the bill is based upon moneys paid, laid out, and expended, at testator's request, in and about the maintenance, support, and burial of testator's wife in Germany, in the years 1894 and 1895, amounting in all to about $1,275, and also upon an account of these expenses rendered by complainant and defendant, and settled between them, which testator on February 1, 1896, promised to pay on request. The testator died June 14, 1896, his will was proved by the three executors named on June 30, 1896, and one of the executors died in 1897. The executors of the will were also appointed trustees to carry out the trusts of the will, and, as appears by the bill, the accounts of the surviving executors and trustees were presented to the orphans' court, and allowed on June 8, 1900, and the balance on the accounting, being over $116,000, remains in the hands of the trustees, who also hold the legal title to the lands devised in trust. It does not appear that complainants' claim was presented to the executors, or that it has been admitted by them or established by judgment at law.
The general jurisdiction of the court of chancery for enforcing the payment of debts of a decedent is based on the general administration of the estate, and when the jurisdiction is invoked, not for this purpose, but for the collection of the complainant's claim only, it is not to be exercised, in the absence of facts showing that the ordinary procedure at law, and under the statutes, for the collection of debts and settlement of the estates of decedents, is not applicable or should be superseded. No circumstances requiring a general accounting or administration of the estate appear in this case, and the only special relief by way of accounting asked by the bill is that all the legatees and devisees contribute ratably with complainant (who is one of the legatees) to the payment of complainant's debt. The entire amount of money legacies, including the one to complainant of $5,000, is. $7,500; and, as the residuary personal estate seems to be over $116,000, no reason is apparent why there should be any accounting, if complainant's debt is established against the executors. Until it is so established at law, or is admitted by the executors, a bill in equity, by a mere creditor at large, to enforce payment, will not lie against the legatees or devisees. Borough of Rutherford v. Alyea (Err. & App. 1896) 54 N, J. Eq. 411, 34 Atl. 1078; Edwards v. McClave, 55 N. J. Eq. 151, 35 Atl. 829, affirmed on appeal (Err. & App. 1896) 55 N. J. Eq. 822, 41 Atl. 1115. These decisions also expressly settle the practice, previously indicated in Dodson v. Sevars (Err. & App. 1895) 53 N. J. Eq. 347, 33 Atl. 388, that a creditor proceeding in equity for the recovery of his debt against a legatee or devisee should show sufficient grounds for not resorting to the ordinary course of collecting it from the funds primarily liable in the hands of the executor or administrator; and they qualify to this extent the statement by Chancellor McGill in Dodson v. Sevars, 52 N. J. Eq. 611, 618, 30 Atl. 477, as to the exercise of the jurisdiction in chancery before the establishment of the claim at law.
The orphans' court act (Revision 1898, p. 740, § 72) provides for the presentation of claims to the executor after settlement of the estate, and before distribution of the surplus (which is the case here), and for the establishment of disputed claims. In this case, it does not appear that the claim was ever presented to the executors, and the executors are not made parties defendant in that capacity. As the persons who appear by the bill to be in possession of funds sufficient to pay the debt, and primarily liable for It, the executors, as such, are necessary parties to a suit brought to charge the legatees or devisees with its payment. Congregational Church v. Benedict (Stevens, V. C. 1899) 59 N. J. Eq. 136, 139, 44 Atl. 878. The cases relied on by complainant's counsel to sustain the jurisdiction in this case have been examined, and they seem to be either cases where jurisdiction for the purpose of discovery or accounting or general administration of the estate in equity was necessary in order to enforce the payment of complainant's debt, or cases in which there was some other special equity upon which to base the jurisdiction.
The further contention was made, at the hearing, that complainant's relief as a creditor against the devisees was in equity only, because he was himself a devisee, and therefore could not bring an action at law for the debt, under the heirs and devisees act. But, assuming that these facts sufficiently appear by the bill, the contention is not well founded: First, because under the will, so far as it is set out in the bill, the trustees appear to be the devisees of the legal title, and as such devisees are subject to suits at law by complainant against them; and, secondly, because the personal estate is first liable for the debts, and must be exhausted before a creditor is entitled to file a bill in equity to indorse a lien upon the real estate. Borough of Rutherford v. Alyea, supra. Complainant's bill does not seek payment of his legacy, but only of his alleged debt, and no adjudication is intended to be made on his claim as legatee.
The demurrer is sustained.