First Baptist Church of Hoboken v. Syms.

executor's privies so far as the personalty coming to him, the primary fund for the payment of debts and legacies, is concerned (Castellaw v. Guilmartin, 54 Ga. 299; Redmond v. Coffin, 2 Dev. (N. C.) Eq. 437; Hooper v. Hooper, 32 W. Va. 526), and the entire personal estate may at once be applied to its payment, to the complete exhaustion of the personalty, leaving yet unpaid a portion of the judgment and the entire amount of the indisputable debts, the payment of which will be thrown upon the real estate.

The judgment against the executor is not conclusive upon the heirs and devisees, who are not in privity with him (Birely v. Staley, 5 Gill & J. 432, 453; Collinson v. Owens, 6 Gill & J. 4; McCoy v. Nichols, 4 How. (Miss.) 31, 39; Beckett v. Selover, 7 Cal. 215; Stone v. Wood, 16 Ill. 177, 179; Robertson v. Wright, 17 Gratt. 534), because they do not claim under him and are not parties to the suit, and are not in position to adduce evidence in opposition to recovery, controvert the testimony offered in support of the plaintiff's case or appeal from the judgment when rendered, and, for the same reason, it is not conclusive upon the legatees so far as their legacies are charged upon and payable out of the realty; and when, therefore, the executor seeks the realty for the payment of that judgment, those who are entitled to interest in the real estate are not bound by the judgment, but may question the claim which underlies it and is its foundation. It thus appearing that the judgment is conclusive upon the legatees as to the personalty, and is not conclusive as to realty, it would seem to follow that, if it stands and may be used as a shield to the executor, it will protect him in applying at least the personalty in its payment and estop the legatees from questioning such application, and their right of ultimate contest will be limited to the remnant of it which comes over upon the realty unpaid.

Yet another consideration: The proceeding to sell land for the payment of debts is a statutory substitute for an action against the heir, devisee or legatee whose legacy is charged upon the realty. But the prerogative court holds that in it a debt actually claimed cannot be contested. Surely, the persons inter

First Baptist Church of Hoboken v. Syms.

ested in the land should not be obliged to submit to the sale, and thereby, perhaps, sacrifice of their property to make an amount sufficient to pay such invalid claims as the executor may be pleased to report, merely because the orphans court, in which the proceeding is conducted, has not power to investigate the merits of the claims. Such a condition of affairs exhibits a strong necessity for the interposition of equity when it shall clearly appear that the proceeding is unjustly conducted to injure and defraud the applicant for its assistance.

The substantial reasons, then, for an attack upon the judg ment at this time are-first, to preserve the personalty for the payment of just debts and, to the extent of the unjust portion of the claim underlying the judgment, exonerate the real estate from the charge of those debts; and, second, to reduce the amount of money to be made out of the real estate.

This court cannot sit in judgment upon the lawful acts of other courts and review the conduct of those tribunals, to see whether, in the exercise of their rightful powers, they have committed error either in law or in fact, but its power to give relief against a judgment which has been procured by fraud or imposition upon another court, is beyond all question. Glover v. Hedges, Sax. 119; Boulton v. Scott's Administrator, 2 Green Ch. 236; Tomkins v. Tomkins, 3 Stock. 512; Reeves v. Cooper, 1 Beas. 223; S. C., 1 Beas. 498; Stratton v. Allen, 1 C. E. Gr. 229; Doughty v. Doughty, 12 C. E. Gr. 315; S. C., 1 Stew. Eq. 581; Cairo and Fulton Railroad Co. v. Titus, 1 Stew. Eq. 269; Mechanics' National Bank v. Burnett Manufacturing Co., 6 Stew. Eq. 486; Cutter v. Kline, 8 Stew. Eq. 534; Herbert v. Herbert, 4 Dick. Ch. Rep. 70; S. C., 4 Dick. Ch. Rep. 566. It deals with the consciences of the parties to a judgment, and will inquire whether those parties, or either of them, have intentionally withheld or concealed from the court in which the judgment was rendered, any fact which, if disclosed, would have shown that there was either no cause of action or no warrant for the amount of the recovery. Doughty v. Doughty, supra; and Fulton Railroad Co. v. Titus, supra.

Cairo

In the present case the charge is that both parties to the judg

First Baptist Church of Hoboken v. Syms.

ment colluded to so control the proceedings in the law court and conceal from that court pertinent facts as to procure an unjust judgment, which could be used, in effect, to defeat the will of Samuel R. Syms, and, incidentally, the payment of the complainant's legacy.

It appears that William J. Syms, of the city of New York, died testate on the 2d of April, 1889, leaving a large estate. He had no children. By his will he bequeathed to each of his brothers, Samuel R. Syms and John G. Syms, and to his sister, Mary E. Serrell, a legacy of $50,000, and, after making sundry other legacies, among which was one of $10,000 to his nephew, Parker Syms, the son of his brother Samuel R., he disposed of the residue of his estate to his widow, Catharine E. Syms. His widow, his brother Samuel R., Dr. McBurney and Mr. Henry C. Tucker were respectively appointed executrix and executors of the will.

The will was admitted to probate by the surrogate of the city and county of New York on the 22d of April, 1889, and the nominated executors and executrix qualified and assumed the burden of the administration of the estate.

It appears that Parker and Robert Syms, the sous of the executor Samuel R. Syms, shortly after the probate, determined to contest the will, and, because they were not heirs-at-law or next of kin to their uncle, sought the co-operation of their father and their other uncle, John G. Syms, and their aunt, Mary E. Serrell. Their father, after some consideration and conference with counsel, refused to take part in the contest because of his executorship, and their uncle, John G. Syms, did not enter it because he had been paid a portion of his fifty-thousand-dollar legacy, which he was unable to return. Mrs. Serrell hesitated for a time, but finally, upon the urgent solicitation of her nephews, Parker and Robert Syms, consented to become the contestant. She insists that it was understood that the contest was to be made for the benefit of her brothers and herself, and that she and they were to share equally in whatever profit should result from it, and, in case of an unsuccessful and fruitless litigation, were to equally bear the losses; that her brothers were not to appear personally

First Baptist Church of Hoboken v. Syms.

in any agreements or negotiations, but were each to be represented by a son; that at first it was understood that Parker Syms should represent his father, but afterwards Robert was substituted for Parker because the latter, who is a physician, was associated professionally with the executor Dr. McBurney, and his active participation in a suit against the will might be resented by Dr. McBurney in such a way as to disturb their amicable relations; besides, as has been noted, he was a legatee of the will to be attacked. In behalf of John G. Syms, his son George N. was to act. As will presently appear, the defendants deny the truth of this insistment, taking the ground that Robert Syms acted for himself and not for his father.

The contest was commenced late in April, 1890, and on the 7th of May Mrs. Serrell and her nephews Robert and George entered into an agreement in writing with one Bomeisler, a lawyer of the city of New York, by which Mr. Bomeisler was entrusted with the management of the litigation for a fee contingent upon its success and the amount of recovery. In this agreement Mrs. Serrell and her nephews were parties, apparently in their own right, and, by recital, Mr. Bomeisler was styled "their" attorney. About the same time a paper was presented to Mrs. Serrell by either Parker or Robert Syms for her signature, whereby she was to bind herself, among other things, to share the profits of the contest with her nephews, Robert H. and George N. Syms. This paper Mrs. Serrell refused to sign, because, she says, she had verbally promised to divide the profits with her brothers and was unwilling to renew that promise in writing or to sign any paper which would apparently recognize the brothers' sons as entitled in their fathers' stead.

Very soon after the agreement with Mr. Bomeisler was signed, negotiations were had for a settlement of the contest, which, early in June, resulted in a compromise, whereby, upon the payment of $175,000 to Mrs. Serrell, the litigation was discontinued, and, to effectuate the compromise, general releases were given by Mrs. Serrell and also her brothers Samuel R. and John G., not only to the residuary legatee and devisee of William J. Syms, but

First Baptist Church of Hoboken v. Syms.

also to the estate of William J. Syms and the executors of his will.

Prior to the 7th of June the $175,000 was paid to Mrs. Serrell, and, after she had disbursed therefrom $27,262 for the expenses of the litigation, she divided the remaining $147,738 between her brothers and herself, to each $49,246. At the time of payment, because she feared that by her contest she had incurred the displeasure and resentment of Catharine E. Syms, she exacted an agreement with her brothers, which Samuel drew with his own hand, whereby, to use the language of that document,

"in consideration of the division of money obtained by said Mary E. Serrell in compromise of the contest of the will of their brother W. J. Syms and of other valuable consideration," they agreed "that in case Mrs. Catharine Syms, widow of their late brother W. J. Syms, should give by will or otherwise to either of the parties hereto any sums of money or property, at any time, that they will share the same equally with each other, the intent being that the parties hereto shall be equally benefited by any gifts from her or proceeds from her estate."

Samuel R. Syms was then pecuniarily embarrassed by pressing -obligations, among which was an indebtedness of $30,000 to his sister, Mrs. Serrell, and in urgent need of money. When Mrs. Serrell paid him a share of the profits of the compromise she made the payment by giving him the difference between the $49,246 and his indebtedness to her, and canceled that indebtedness.

She testifies that when she promised to pay her brother Samuel one-third of the amount to be realized from the contest, he had declared that he would not assist in the litigation, but, as executor, would, on the contrary, resist it; also that he did not claim a right in any portion of the moneys that might be realized through the contest, but at the same time he said that his sister could do as she pleased in paying part of those moneys, and if she should pay him anything such payment would be her free gift. She says that it was with the understanding that she was to pay him one-third of the net proceeds that she went into the .contest.

Both Parker and Robert Syms deny that it was understood as Mrs. Serrell claims, and in Robert's behalf they assert that after