For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
This was an appeal to the Superior Court, Appellate Division, but was certified here on our own motion.
It is an appeal from an order of the Hudson County Court entered December 6, 1949, vacating a writ of execution and setting aside a levy made upon funds of the estate of Agnes Grace Williams, deceased, on deposit in the Franklin National Bank of Jersey City, and quashing a rule to show cause directed to the said bank "why the moneys levied under the said writ of execution should not be turned over to the plaintiff."
The record before us is meager and we have examined previous litigation in this same estate but that record throws no light on one or two important questions here involved. Robinson v. Hodge, 139 N.J. Eq. 189 (Ch. 1947); affirmed, 140 N.J. Eq. 473 (E. & A. 1947).
The respondent was appointed administrator c.t.a. of this estate on March 3, 1943. A rule limiting creditors was taken August 16, 1943. As far as appears no decree barring creditors was ever taken and no final settlement of the estate or distribution has been made although seven years have now elapsed.
An intermediate account, likewise meager in form, was filed September 21, 1944, which was not finally approved until January 18, 1946. Ten days later a judgment in favor of the appellant was entered in the Hudson County Pleas in the sum of $1,953, together with costs of $87.28, which recovery was for services rendered the testatrix during her last illness. We have to assume that this claim was presented to the administrator and disputed and that suit was brought pursuant to R.S. 3:25-8, on which judgment was entered January 28, 1946. The intermediate account filed clearly indicates the estate was solvent. It sets forth realty valued at $15,600, personal assets of $3,027.18, estate debts amounting to $277.57 were allowed, at which time the administrator was awarded commissions of $312.14 on corpus and income and also attorney's fee of $500. From the date of the appellant's
judgment down to date the respondent has resisted every effort to collect this judgment and in the meanwhile has taken few steps to administer and close out this estate.
On August 6, 1946, appellant caused a writ of execution to be issued on her judgment and a rule issued on the defendant to show cause why the judgment should not be paid. This was never decided. On September 19, 1946, the administrator presented a petition to the Orphans' Court and obtained a rule to show cause, returnable on November 22, 1946, seeking to sell the five parcels of real estate, devised by the decedent, for the payment of debts. This petition showed a deficiency of $4,627.63, $4,400 of which was to cover administration expenses, commissions and counsel fee, and included the plaintiff's judgment. On September 20, 1946, the administrator obtained a rule to show cause directed to the plaintiff, with ad interim restraint, why she should not be enjoined from further proceedings on the judgment. This application was never decided.
On November 18, 1946, the appellant filed a bill in Chancery asking that the court impress a lien upon the real property belonging to the estate but this bill was dismissed on the ground that equity's jurisdiction of executor's accounts is withheld unless it appears that the jurisdiction of the Orphans' Court is inadequate or there is some special reason calling for equity's intervention, and that a judgment creditor must establish that he has used all available remedies at law against the debtor and that efforts to collect the judgment are fruitless before a court of equity will intervene. This dismissal was affirmed on appeal September 25, 1947.
In this case the respondent took a position with respect to the levy on moneys in the bank accounts directly opposite to the one now asserted and insisted that appellant should pursue her rights under the pending execution and levy. Robinson v. Hodge, supra.
On December 5, 1947, the said administrator obtained an order in the Orphans' Court permitting him ...