Martin v. Martin

19 N.J.L. 44

• Court: Supreme Court of New Jersey
• Decided: September 15, 1842
• Status: Published

Opinion

The opinion of the Court, was delivered by

Hornblower, C. J.

The order for leave to prosecute, is founded upon an allegation, that the plaintiff in Certiorari, had failed to account, as he had been requested to do, by the citation. Whereas, it appears by the return to the Certiorari, the plaintiff had filed what he considered an account. It was to be sure, especially on the debit side of it, a very imperfect one. Such as it was, however, the co-administrator filed exceptions to it; and the court ought to have taken some order upon it. But instead of this, they treated it as a nullity, and thereupon made an order giving the defendant in Certiorari, leave to sue the plaintiff. This proceeding was not according to, nor warranted by the statute. The tenth section, Elm. Dig. 361, authorizes the Orphans’ Court, upon sufficient reasons given, to “order and direct” one administrator to account with his co-administrator for all assets, which have come to his hands; “and whenever the court shall judge it necessary,” to compel such defaulting administrator to give security to his co-administrator for the true payment of the balance remaining in his hands, towards the satisfaction of creditors, legatees «fee. of the intestate; and on his neglect or refusal so to do, the court may authorize the applying administrator to sue the other.

Hence it is clear, the court cannot order a suit for not accounting ; but only for neglecting or refusing to give such security as the statute authorizes them to require. If the administrator refuses to account, the court may proceed against him as for a contempt, and perhaps, if contumacious, he may be required by a rule of the court, to give security, as directed by the statute, and on his neglect or refusal to do so, a suit may be ordered.

The proceedings in this, case are erroneous, and must be reversed.

Proceedings reversed.