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Carey v. Thieme

Decided: March 4, 1949.

RICHARD J. CAREY, EXECUTOR OF THE LAST WILL AND TESTAMENT OF MARGARET MCELROY, DECEASED, PLAINTIFF,
v.
LHOE O. THIEME, ET AL., DEFENDANTS



Civil action. On final hearing.

Jayne, J.s.c.

Jayne

On December 4, 1934, Margaret McEvoy of Trenton, New Jersey, died testate. The plaintiff, Richard J. Carey, was nominated executor, and on December 17, 1934, he duly qualified as such in the Mercer County Surrogate's Court.

The decedent, by her will, disposed of the major portion of her estate to a large number of her next of kin residing in various parts of the British Empire. The executor's petition for probate properly designated and also exposed the names and addresses of all of the surviving beneficiaries of the decedent's estate. One of the beneficiaries predeceased the decedent, leaving three children entitled to his share. Other beneficiaries who survived the decedent have since died and personal representatives to administer their estates have been appointed. A small portion of the estate was left by the decedent to other next of kin, residents of this country, who are not parties to these proceedings. On or about January 19, 1935, all of the foreign beneficiaries with the exception of the three children of the beneficiary who had predeceased the decedent executed powers of attorney to the defendant Lhoe O. Thieme. By the terms of each, that defendant was authorized inter alia to represent and appear for them in all proceedings in the decedent's estate, to accept service of process for them, to retain and discharge on their behalf attorneys and counsel of his own choosing, to collect and receipt for their respective shares of the estate, to institute, conduct or defend all litigation concerning the subject matter of such powers, to advance moneys for any and all cognate purposes and to reimburse himself for his services and disbursements out of the funds coming into his hands from the estate. The instruments also purported to give him a first and prior lien upon the respective shares of the beneficiaries, to defray his charges and all advances, costs, and expenditures made by him, and by their terms the powers thus conferred were expressly declared to be irrevocable. Said

powers were duly filed and recorded in the Mercer County Surrogate's Office.

On June 21, 1937, the plaintiff, after the allowance of his first intermediate account as executor of the testatrix's estate, paid to the defendant Thieme, as attorney in fact for said foreign beneficiaries, the sum of $4,075, comprising one-half of the total amounts of the pecuniary bequests payable to them by the terms of the will of the testatrix. Since then, the defendant Thieme has failed and refused to pay to the surviving beneficiaries and the representatives of beneficiaries now deceased, or any of them, any part of their respective shares of such sum other than three small payments totaling not more than $184. Thieme asserts that such disbursements amount to $275.70. Nevertheless, repeated requests addressed to Thieme to account for the balance of the moneys paid over to him have been unproductive.

From and after August 1938 all of the now living beneficiaries and the representatives of decedent's beneficiaries (with the exception of Henry Morrison, executor of the estate of Mary McEvoy Coughlin Killen, who died on April 3, 1936) executed written instruments evidencing the revocation of the powers of attorney theretofore executed by them in favor of Thieme. These instruments of revocation were likewise recorded in the Mercer County Surrogate's Office.

In November 1945 and thereafter, all of the now living non-resident beneficiaries and the personal representatives of the non-resident beneficiaries now deceased executed new powers of attorney to the defendants British Consul-General and Canadian Consul-General respectively, each of the City, County, and State of New York. These latter authorizations confer upon the respective Consuls complete right, power, and authority to represent such beneficiaries and the personal representatives of the deceased beneficiaries, in the collection of their respective bequests from the decedent's estate.

In consequence of the conflicting claims of the alleged attorneys-in-fact, each of whom has demanded payment of the balance due to the beneficiaries whom he assumes to represent, the plaintiff, in pursuance of a bill of interpleader filed in the

Court of Chancery, and by virtue of the interlocutory decree made in the cause on March 2, 1948, has paid into this court the sum of $16,749.54, representing the balance of the decedent's estate in his hands for distribution.

The following paragraphs of the supplemental pre-trial order merit serious attention and their significance ...


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