Page:Federal Reporter, 1st Series, Volume 9.djvu/91

76 FEDERAL REPORTER. �To the bill the defendants have interposed six pleas, supportinjj the same by an answer. Tbey substantially allege ; �(1) That the complainant has made no reasonable demand for the legacy or relief prayed for. �(2) That no suit can be maintainod against an executer, in a court of equity, for a legacy, or other such relief as is prayed by the bill, on such allega- tions as are made in the bill, until a reasonable demand has been made for such legacy or relief, and that no reasonable demand has been made. �(3) That by the statute law of New Jersey no suit at law can be maintained for a legacy or bequest until after reasonable demand miwle upon the executer who ought to pay the same; and that no such demand lias been made for any part of the relief prayed for, or for any action on the part of the executors, in relation to the discharge of their duties under the will. �(4) That no persons interested in the estate of a teatator as legatee or cestui que trust can lawfully cite executors tp account, alleging only the facts alleged in the bill of corn plaint, until after a year from the probate; and in. case of a suspension of their authority by an appeal from the probate until one year after the afflrmance of the probate; that in the present case the probate was granted May 29, 1880;" that it was appealed from by John S. Cathcart and oth- ers on the flrst of June, 1880, and was affirmed by the court of errors and ap- peals, March 1, 1881 ; that said appeal suspended all rights and powevs of the executors, except such rights and powers as they had before the probate ; and that they were unable to sue, or be sued for or in respect of any matter stated in the bill, until they had an unsuspended authority for one year after probate, and that when the bill was filed,to-wit, June 7, 1881, they had had an unsus- pended authority for only 102 days. �(5) That by the laws of New Jersey an order may be made by the ordi- nary, or other authority granting probate, that the executors of an estate give notice to creditors of the decedent to bring in their demanda against the estate within nine mpnths, on the expiration of whieh time the court may decree that all creditors who have not brought in their claims shall be barred ; that such order was taken in this case, March 12, 1881, which was the earliest time that an effectuai and undoubted order could be obtained in consequence of the suspension of their authority by the appeal ; that until the date of the expiration of said order, to-wit, December 12, 1881, it cannot appear that there is any residue of the estate after paying creditors ; that many persons have made claim to all, or a large portion, of the testator's assets, under deeds of trust and secret trusts created by testator before his death, not dlsclosed; and that these claimants to the corpus of the estate should be barred before any decree against the executors. �(6) That by statute no action can be brought, either at law or in equity, against executors within six montha after probate granted, unless upon sug- gestion of fraud; and that six months has not elapsed from and after probate was granted to them of said will, within the meaning of said statute. �These pleas have been set down for argument under the thirty-third equity rule, and the respective parties have been fully heard. After ��� �