Dunn v. Campbell

The accounts rendered by Sanford and the administrators of' his estate, appear by the bill to have been duly allowed by the orphans court. The decrees allowing them are conclusive against all persons interested in the estate, until they shall be attacked and set aside for fraud or mistake. Rev. p. 775 § 108. If there-is fraud in the accounts, as the bill suggests, it is the right of the legatees and the duty of the complainant to institute proceedings to correct them. If such proceedings should be unsuccessful, the-balance already found in favor of Sanford must be paid by the-complainant from such assets of the estate of Mrs. Schmidt as-*7shall remain in his hands after the expenses of his administration of that estate shall be paid. 3 Wms. Ex. 1861.

The balance due to Sanford’s estate is part of the expense of administering the estate of Mrs. Schmidt., and is not to be treated as a debt due to a creditor of the decedent, and it is not barred by the decree which the complainant obtained under Rev. p. 764. § 62, against creditors of the decedent who had not presented their claims.

The bill does not present a case in which a bill of inter-pleader will lie. The complainant, as executor, is bound to claim an interest in the fund. He has not accounted, but he must do so. The expenses of his accounting and administration must be ascertained and paid. His commissions have not been paid. It is not possible yet to know the amount of the fund that he will have, either to pay to Sanford’s administrators or to distribute to the residuary legatees of Mrs. Schmidt. He does not stand as a disinterested stakeholder.

The real position of the complainant is this: He does not. know of any fraud in the Sanford accounts, but he fears that if he shall pay the balance exhibited by those accounts in Sanford’s favor, the residuary legatees of Mrs. Schmidt will dispute the allowance of his claim for that payment when he accounts. It is impossible for him to show the fraud which is necessary to open. Sanford’s accounts. The residuary legatees say that there is fraud, but at the same time they refuse to disclose, or cannot disclose, what it is.

Under such circumstances, the complainant’s obvious course is to inquire diligently for the fraud, and if he fails to find it, and, notwithstanding that fact, the residuary legatees persist in forbidding him to pay the balance due to the Sanford estate, he may apply, by bill, for the directions of this court as to the payment, making the residuary legatees and an administrator of Sairford, to be appointed in this state, parties to his bill. Such a bill is in the nature of a bill of interpleader, in that it brings defendants with adverse interests before the court, who, so far, at least, as the complainant is concerned, will be concluded by the, court’s action. But it is not a bill of interpleader, for the com-. *8plainant does not surrender the fund, but holds it and retains his property in it for the purposes of his trust. The heirs at law, next of kin and foreign administrators of Sanford would not be proper parties defendant. The foreign administrators cannot be sued in this state, and the next of kin and heirs at law do not represent the estate in this matter. The next of kin may have an administrator appointed here who can be sued in our courts. If they fail to do so, the complainant may apply to the ordinary to appoint an administrator ad prosequendum.

The demurrer to the present bill must be sustained, and the bill be dismissed.