On appeal from a judgment of the Camden County Court of Common Pleas, whose opinion is reported in 15 N.J. Mis. R. 48.
For the appellant, Walter R. Carroll.
For the respondents, Carl Kisselman.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. The judicial rulings assigned for error are (a) the denial of defendant's motion to strike out the complaint on the ground that it does not disclose a cause of action, and (b) the striking out of defendant's answer, on plaintiffs' motion, and the entry of summary judgment in favor of plaintiffs, severally.
The motion to strike out the answer was grounded in the claim that it was sham and frivolous. While the order is not specific in this regard, the memorandum filed in the court below indicates that the answer was deemed to be frivolous.
This is the case exhibited by the complaint: Elizabeth Clement died testate on March 12th, 1933. Her will devised and bequeathed the residue of her estate to defendant, "upon trust to hold and invest the same and to pay the net income" to her sister, Sarah C. Githens, during her life; and certain general legacies were given to plaintiffs, severally, upon the termination of the life estate. The life cestui died on January 22d, 1935. It is alleged that on or about October 29th, 1934, defendant, "as trustee, received the sum of $7,691.79, * * * more than sufficient to pay in full all of the legacies provided for" in the will; and the pleader proceeds upon the hypothesis that, while the "sum" in question was "received" by defendant, "as trustee," it is liable to the legatees in an action at law in its separate corporate capacity, as distinguished from its fiduciary character. The theory expounded by counsel on the brief is that defendant's "duty as a trustee was a naked one," and that it had received, in its corporate capacity, moneys which in equity and good conscience it ought to turn over to plaintiffs.
The answer denies both jurisdiction and liability in defendant's corporate capacity. It alleges, inter alia, that defendant qualified as the designated executor of the will, probated on April 5th, 1933; that the deceased, at the time of her death, [121 NJL Page 392] was possessed of certain mortgage securities and choses in action, including a deposit with a closed national bank; that, after due administration of the estate, defendant filed its final account as such executor, showing the residuary estate to consist of $7,426.22 of corpus and $303.32 of income, and such proceedings were had thereon that on September 28th, 1934, a decree of allowance as presented was entered in the Camden County Orphans' Court; that, with the exception of cash amounting to $256.96 and household goods and jewelry inventoried at $37.75, the residuary estate then consisted of unconverted securities and the bank deposit at the inventory value; that, following the allowance of the account, defendant, as executor, "transferred and delivered the foregoing assets and cash" to itself as testamentary trustee, and that in such latter capacity it undertook the "burden of administering the trust created and established" by the will; that defendant "has been unable to reduce said assets to cash and to find a reasonable market for the same except at a tremendous sacrifice in value;" that, "as trustee," it "is under no duty, liability or obligation to the plaintiffs * * * other than to file its account as such trustee in the Orphans Court of Camden County and to turn over and deliver" the said unconverted trust assets "to the legatees entitled thereto * * * in kind, if said legatees can agree upon a distribution * * * among themselves, or, as an alternative to such distribution in kind, to reduce said assets to cash by sale thereof in open market for the best and highest price obtainable, and to distribute the proceeds of such sale or sales among said legatees according to their respective rights and interests;" that defendant has not been cited to file its account as testamentary trustee, and that plaintiffs "have at all times, prior to the institution of this" action, "acquiesced in the retention and holding of said assets by said trustee, well knowing that said assets were being held by said trustee in the hope that a market could be found therefor which would admit of a sale reasonably fair and advantageous to said legatees;" and that, in its "separate corporate capacity," defendant "does not own,
or have, or claim to own or have said assets, or any of them." These allegations were verified by affidavit.
Plaintiffs established, likewise by affidavit, that on October 29th, 1934, defendant, as testamentary trustee, executed and delivered to itself, as executor of the will, "a receipt and release," wherein it acknowledged receipt as trustee of "the sum of $7,691.79, being the balance of principal in the hands of said executor of $7,426.22, less the value of chattels held by said executor, appraised at $37.75, plus the balance of income amounting to $303.32, which sums were found to be the balances in the hands of said executor in and by an order of the Camden County Orphans Court dated September 28th, 1934," and further, that there had been "paid over" to it as trustee "the sum of $7,691.79, in full payment and satisfaction" of the trust estate so created by the will. But the proceedings in the Orphans Court on defendant's final account as executor, of which plaintiffs had due notice, established that, at the time of the decree of allowance, the mortgage securities and choses in action adverted to had not been converted. In the schedule listing the investments, annexed to the account, the nature of the corpus of the estate was set out in detail.
The Common Pleas judge ruled that the words "the sum of $7,691.79 can only refer to money or cash." Invoking the parol evidence rule, he held that defendant could not "vary the terms of the release already on file in the surrogate's office, by offering proof that it was not money that passed" thereunder, "but securities." On the theory that the release "was executed for the benefit of the wards," he observed that to permit the "fiduciary to come in and offer evidence" to the contrary would controvert "public policy" and subvert "the interest of the helpless wards."
First: Respondents move in limine to dismiss the appeal on the ground that appellant, by bill in equity still pending, seeks to enjoin the "collection of the judgment," and has thereby released "any alleged errors in the action at law," and "has made an election of the forum, barring its ...