Cocks v. Haviland , 5 Dem. Sur. 11 ( 1886 )

The Surrogate.

It is difficult to understand what provision of the 18th chapter of the Code, the counsel for the petitioner had in view, when the petition in this matter was prepared. The object is not to enforce obedience to a decree directing the payment of money, for those who were so directed are not made parties ; nor does the proceeding seem to be instituted under the provisions of § 2717, for there is no prayer for a citation as therein provided, and if there were one prayed for as against Mrs. Haviland, it would not be sufficient, as, it seems, all of the executors should be cited under that section; nor is the object to compel Mrs. Haviland to show cause why she should not render an account, with the view to obtaining the payment of the legacy. It seems to be rather a general statement of facts addressed to the equitable consideration of the court as if it were possessed of general common law powers, and without regard to the fact that its jurisdiction must be exercised only in the cases, and in the manner, prescribed by statute.

The decree referred to directs the executrices and executors to convert into money certain securities and assets then in the hands of Phebe C. Haviland, one of their number, and to invest the same as directed by the will, in her name as executrix. They were all interested in the performance of this duty; none of them have resigned or been removed, and they should, therefore, be made parties to any proceeding instituted by the widow to enforce what she claims to be her just rights under the will. The allegation in the petition that the Barlows and Harrison Cocks are insolvent, and have no assets of the estate in their hands, does not obviate the necessity of citing them, as they would otherwise be deprived of the right to file a written answer, as provided by § 2718 of the Code.

The application, in its present form, must be denied, with leave to the petitioner to renew it in such mode as she may be advised ; it being suggested, however, that such a course ought to be adopted as will lead to a final judicial settlement of the account of the executors.