Phillips' v. Phillips

BIRD, V. C.

On motion to dissolve injunction.

G. O. Vanderbilt, for the motion. W. Y. Johnson, contra.

BIRD, V. C. This bill is filed to have the accounts of the complainant, who is executor of the last will and testament of his father, stated and passed in this court, and also to restrain one of the defendants, Ephraim Phillips, from prosecuting certain proceedings in the orphans' court, requiring him, the complainant, to state an account between them in said orphans' court. All that requires attention at this time is whether or not the injunction heretofore allowed, restraining Ephraim from so proceeding, should be dissolved. The controversy between the complainant and Ephraim arises upon a devise of a tract of land made to the complainant in the last will of his father, which devise is accompanied with certain express conditions; that is, "subject, however, to the payment to his other children of ten thousand dollars, within two years after the death of his said widow, to-wit, Wm. W. L. Phillips, three thousand; to Francis, four thousand,—and to invest the remainder of the said ten thousand, either on bond and mortgage, or otherwise, in his own name, but to be held by him and his executors in trust, nevertheless, for said Ephraim, the interest thereof during his life, and at his death to. divide the same between his children, the child or children of deceased child to take parent's share," etc. The said widow died in June, 1877. The complainant took possession of the said homestead farm under said will, and has occupied it ever since the death of his mother, or received the rents, issues, and profits thereof. But he has never accounted to Ephraim for the interest upon the said $3,000, or for any part of said interest. Hence Ephraim cites him, the complainant, to account for the interest so due to him in the orphans' court. If I fully understand the argument of counsel his claim to relief in this court is (1) that the orphans' court has not jurisdiction of trusts of this nature; and (2) if it has, it has not the power, under the statute, to administer adequate relief.

Upon the question of jurisdiction it was asserted with no little confidence that whatever the legislative provision might be, the constitution nowhere authorized the legislature to extend this contemplated power to the orphans' court, and if such power were granted by the constitution, and the legislature had committed to the orphans' court jurisdiction of trusts generally, it had not attempted, in the exercise of that function, to confer the power to administer trusts of this nature. While the two propositions are so distinct as to admit of separate discussion, they are so intimately blended as not to justify the time or space that would be required for that purpose. And I might say that if constitutional authority is ever to be interpreted and ascertained by almost contemporaneous and continued legislative declarations it may be said we have the surest guide in this case. The language of the orphans' court act throughout seems to be unmistakable in its effect upon the mind in reaching a conclusion in this regard. See sections 2, 96, 98-105, 107-110, 114-116, 118. And not only from this source would it appear that the orphans' court might deal with this subject with a liberal hand, but also from the act respecting assignments. So broad, indeed, are the provisions to which I have referred that it would seem difficult to create a pure trust by will which could not administered in the orphans' court. After these observations it is scarcely necessary for me to observe that I have been unable to find anything in the bill which shows that the orphans' court has not the power to state and settle an account between the complainant and Ephraim.

But, in the second place, it is said that if the orphans' court has the power to state an account it cannot administer adequate relief. On this head I have no greater difficulty than in the former. The complainant does not show that he is entitled to anything at the hands of Ephraim which the orphans' court cannot aid him in procuring. His claim is that he is entitled to set off against the interest which he owes his brother the amount of certain judgments which he holds against his brother. Did the law regard these judgments as a proper set-off and payment? I can perceive no reason why the orphans' court should not make the proper application of them. And if that be done, then what? The balance being ascertained, it would only remain for the complainant to discharge such balance by paying. To do this he would not need the aid of any court, and consequently he can obtain relief to the extent desired without invoking this jurisdiction. But if this question of set-off be at all embarrassing, such embarrassment is removed by the consideration that he is not entitled to set off any such claim against a trust of this nature. Hardenburg v. Blair, 30 N. J. Eq. 645; Force v. Brown, 32 N. J. Law, 118; Lippincott v. Evens, 35 N. J. Law, 553. Therefore, so far as the matters set up in the bill have reference to proceedings by Ephraim in the orphans' court, which aim at requiring the complainant to state his account as trustee, I find no necessity for the interference of this court, by injunction or otherwise. The only relief which the complainant can ask for in any court is to be discharged from his responsibility as trustee, by paying the amount due to the cestui que trust as such amount accrues from time to time; and where there is no disability in the cestui que trust, the trustee is enabled to obtain all the relief desired by the simple act of payment, thereby completely performing his duty without calling upon any court for assistance. I think the injunction should be dissolved, with costs.