Rogers v. Maguire

Headnote

1. Action—Form.

In determining what is the form of action intended to be brought, it is proper to consider the prayer for relief.

3. Same.

Where the necessities of the case require a party to come into a court of equity, allegations, which would otherwise be held to he those of an action at law, will be treated as belonging and appropriate to an equitable action.

Appeal from an interlocutory judgment overruling a demurrer to the complaint.

The opinion of Mr. Justice Andrews at special term is as follows :

It was held in McGregor v. McGregor, 35 NT. Y. 218, “that one coexecutor may maintain an action in equity against another co-executor to compel the payment of a debt owing by him to the estate.” The learned counsel of the defendants, as I understand it, concedes that this decision has never been overruled nor questioned, but his contention is that the action at bar cannot be regarded as one of equity. Under the authorities, this contention is not well founded. It is true that, leaving out of consideration the prayer for relief, the complaint sets forth a cause of action at law to recover money alleged so have been loaned by the plaintiff’s testator to the defendants. It is to be noticed, however, that the complaint does not ask for any money judgment against the defendants. The prayer for judgment is as follows: “Wherefore these plaintiffs pray judgment, adjudging that the defendants are indebted to these plaintiffs to the amount of such indebtedness, and granting to these plaintiffs such other or further relief as may be just and equitable in the premises, together with the costs of this action.” The reason for the rule of the common law that no action lies by an executor or administrator against his corepresentative, and the reason why courts of equity entertain jurisdiction of actions of that character, is clearly stated in Smith v. Lawrence. 11 Paige, 206, in which case the chancellor said: “In the common law courts one executor or administrator cannot bring a suit against his coexecutor or coadministrator, to recover a debt which was due from the latter to the testator or intestate, for each has the same right to the possession of the fund, which belongs to both as the representatives of the estate,' of which they are joint trustees ; and the effect of a common-law judgment in favor of one against the other would be to give to the former the right to issue an execution and transfer the whole fund to his own, exclusive possession. A court of equity, however, from its peculiar mode of administering justice, can settle the questions as to the fact of indebedness, and as to the amount due from one of the executors to the estate of which both are trustees, whenever the decision of this question becomes necessary, without changing the possession of the fund. When the amount of such indebtedness is ascertained, the court may make such disposition of the fund as justice and equity shall then require.” In that case one executor cited his coexecutor to account before a surrogate, and the latter objected to the jurisdiction of the surrogate to call upon him to account upon the application of his coexecutor. The surrogate sustained the objection, but his decision was reversed by the chancellor. In Decker v. Miller, 2 Paige, 150, an action in equity was maintained, which was brought by two of

the executors of one Egbert against their coexecutor, to compel payment of two bonds given by the defendant to the testator. Of course, an. action upon the bonds would have been an action at law, and under the rule above mentioned could not have been maintained by two executors against their coexecutor. A case which, if possible, is still more clearly in point is that of Wurts v. Jenhins, 11 Barb. 546 . This was an action in equity, brought by two executors against their coexecutor to compel the defendant to pay the sum of $1,345, which it was alleged he owed the testator at the time of his death for goods sold and delivered. The defendant demurred to the complaint upon various grounds, and, among others, upon the ground “ that the plaintiffs have not legal capacity to sue, being coexecutors with the defendant.” Harris, J., speaking for the court, delivered an opinion, which was concurred in by his associates, reviewing the authorities, and expressly deciding that, although the plaintiffs could not maintain an action at law to recover said sum of $1,345 for goods sold and delivered, they could maintain an action in equity to have the question determined whether the defendant was indebted to the estate in that sum, and to obtain such other relief as a court of equity could give under those circumstances. These authorities are decisive of the present case, for they conclusively establish the doctrine that where there are several executors of an estate, and it is claimed that one of their number is indebted to the estate, while part of the coexecutors cannot maintain an action at law, which, if successful, would result in the transfer of the possession of the fund in dispute from the defendant to the plaintiff, they may maintain an action in equity to have the question determined whether the defendant coexecutor is indebted to the estate, and to obtain such other relief as may be appropriate to the case. Nor is is necessary that the defendant should be described as executor. What was said in McGregor v. McGregor is applicable to the present case : “ As the cocxecutor is made the defendant to the suit, and is brought in by actual service, it is not necessary that he be described as executor. Indeed, it may be questioned whether such description would have been proper, as the object of the suit is to revive an action in which relief was sought against him in his individual character only.” In the case at bar no relief is sought against the defendant as executor. The object of the action is to have it determined whether the defendant as an individual is indebted to the estate of which he is an executor, and, if he is so indebted, to obtain such relief against him individually as a court of equity can give under the circumstances. The demurrer must be overruled, with leave to the defendant to answer on payment of costs.