Opinion
09-11-1901
VAN DYKE v. VAN DYKE et al.
J. J. Crandall, for complainant. Godfrey & Godfrey, for demurrant F. A. Van Dyke. E. A. Higbee, for defendant Wm. B. Van Dyke.
Bill by Amy A. Van Dyke against Frederick Van Dyke and another, administrators of the estate of Sarah E. Buck, deceased. Motion by complainant to strike out demurrer to the bill, motion by one defendant to dismiss the bill, and motion by the other defendant to vacate the service of a subpoena. First motion granted; latter two refused.
J. J. Crandall, for complainant. Godfrey & Godfrey, for demurrant F. A. Van Dyke.
E. A. Higbee, for defendant Wm. B. Van Dyke.
GREY, V. C. In this case three motions were made and heard at the same time. The complainant moves under rule No. 213 to strike out the demurrer of the defendant Frederick A. Van Dyke to the bill, because it is alleged to be frivolous. The defendant William B. Van Dyke moves to dismiss the bill under the same rule, because he alleges that the subject-matter of the complaint appears on its face to be already under consideration in another court. The defendant William B. Van Dyke also moves to vacate the service of subpoena upon him.
The bill discloses these facts: Sarah E. Buck died intestate, leaving, her surviving, her two brothers, the defendants, and her mother, the complainant. The decedent was seised of real estate of considerable value, and also of a large amount of personal property. In her lifetime certain persons had contracted with her to purchase some or all of her lands. These contracts were unperformed at the time of her death. If they operated to convert the decedent's lands into money, the share of the complainant (the mother) in the decedent's estate would be substantially affected. The defendants, who are the brothers of the decedent, took out letters of administration upon her estate in Atlantic county in March, 1900. They have filed in Atlantic county orphans' court what they claim to be an inventory of the estate of the decedent, but have omitted to inventory or to disclose the contracts for purchase of the decedent's lands as part of her personal estate. The complainant alleges that this suppression of these contracts by the brothers of the decedent, who are her administrators, is fraudulent, and done for the purpose of retaining the land whereof the decedent died seised as land descending to the defendants, the brothers of the decedent, as her heirs at law, and hiding from the complainant the contracts of purchase which the complainant claims operated to convert the lands into personalty, in the surplusage of which she is entitled to share. The bill further charges that the decedent was possessed of large sums on deposit in bank in the state of Pennsylvania, and also of other personal property, none of which is inventoried, and which has come to the possession of the defendants under their appointment as ancillary administrators of the decedent's estate in the state of Pennsylvania. The bill prays discovery of these contracts, and of the action taken by the defendants to enforce payment of the purchase money, and of any moneys collected by them on account of these contracts, and a disclosure of the property received in Pennsylvania, and of the proceedings of the defendants upon their ancillary administration upon the decedent's estate undertaken by them in that state. The bill asks no other relief than discovery upon the matters noted. The bill was filed on June 7, 1901. The subpoena is tested June 6, 1901, but is made properly returnable. Service thereof was acknowledged for the defendant William B. Van Dyke by his solicitors on June 6, 1901. The solicitor of William B. Van Dyke gave two notices, both without date. One that they would on July 16, 1901, move to dismiss the bill because the orphans' court of Atlantic county had assumed full jurisdiction in the matter, and the other that on the same day they would move to yacate the service of subpoena upon William B. Van Dyke, without naming any reason therefor.
If the acknowledgment of service for the defendant William B. Van Dyke was ineffectual to bring him into court, because the teste antedates the filing of this bill, his notice to dismiss the bill, upon the grounds stated, was a recognition and assertion that he was a party defendant, having a status to move the dismissal of the bill of complaint for cause appearing on its face. Under the operation of rule 213, William B. Van Dyke's motion to dismiss the bill is in the nature of a demurrer to the whole bill. Having puthimself in court by a general defense to the bill, a motion to vacate the service of process calling him into court cannot be entertained. This motion is refused, with costs.
The defendant Frederick A. Van Dyke has demurred to the bill upon the ground that the complainant has not stated a case entitling her to either discovery or relief in a court of equity. The special ground advanced in argument to sustain the demurrer is that the complainant's bill shows that jurisdiction over the subject-matter of the complaint has been taken in Atlantic county orphans' court, and that the bill exhibits no special equity justifying the complainant in applying to this court for the relief which she here seeks. This demurrer the complainant moves to strike out, because she claims that in view of the plain exhibition in the bill of special circumstances justifying the invocation of the fuller and more satisfactory powers of this court such a demurrer is manifestly frivolous. The relation of a suit begun in this court touching a pending accounting in the orphans' court was quite fully discussed in the case of Bird v. Hawkins, 58 N. J. Eq. 237, 42 Atl. 588, and cases there cited. It was there held that the "assumption of jurisdiction by the orphans' court does not exclude this court from entertaining a suit touching the pending accounting, unless it has been filially disposed of; but that no such suit will be sustained in this court unless there is some sufficient special cause which should lead this court to interfere." In this case the complainant states her special ground for relief on the face of her bill. She demands a present discovery, touching what she alleges are certain assets of the decedent's estate which the defendants are interested in suppressing, to her injury and their own profit. She shows that they have delayed the final accounting in the orphans' court for a considerable period after the statutory time for settlement, that they have made no exhibition of the assets in question, and that those assets are of such a character (being contracts alleged to have operated to convert land into personalty) that her interests require a full disclosure of their nature and incidents, of the parties to them, and the subject-matter of them, before she can with safety accept any settlement by the administrators in the orphans' court. The same situation is alleged in the bill as to the proceedings by the defendants in their ancillary administration of that portion of the decedent's estate received by them in the state of Pennsylvania.
These allegations in the bill do manifestly and plainly show such special cause for the interference of this court in the matters in question as justified the complainant in filing her bill. The demurrer, which is in argument attempted to be sustained solely on the ground that jurisdiction has vested it in the orphans' court, seeks to raise a question which is not worthy of submission to the court, and must be stricken out, with costs, with leave to plead or answer.
The motion of the defendant William B. Van Dyke to dismiss the bill upon the same ground urged in support of the demurrer of the defendant Frederick A. Van Dyke is also refused, for the reasons above stated, with costs, with leave to answer, etc.