The opinion of the Court was drawn up by
Davis, J.The defendant, as executor of Benjamin Dalton, claims to hold the funds in the hands of the trustees, as part of the estate of said testator. He excepts to the order charging the trustees for the benefit of the plaintiff.
The exceptions seem to indicate that said defendant, as executor, had made an “ application” to the Court to be admitted to contest this question with the plaintiff. If so, he should have been admitted, and, upon the issue made up, the jury, or the Court, as the parties preferred, should have found, not whether the trustees were chargeable, but whether the funds belonged to the estate of Benjamin Dalton.
If the defendant, as executor, did make such an application to be admitted to contest this question, it has not been copied. It is not before us. But, in such case the proceedings were irregular. An issue of fact must be framed, which the parties may submit to the jury, or to the Court if both parties consent. As defendant, he was no party to the disclosure of the trustees; and the question of his rights, as executor, to the funds, had no connection with the question of his own indobtment to the plaintiff.
The question in this case is not whether the trustees have funds in their hands, but to whom do the funds belong ? This question was not properly tried; and it was not decided at all by the Court, except by implication. The proceedings having been irregular, the exceptions must be sustained, and the case remanded to the Court sitting at Nisi Prius for further proceedings.
Tenney, C. J., and Appleton, Cutting, Goodenow, and Kent, JJ., concurred.