author: McLaughlin, S.

text:
    In the Matter of the Application of Mary B. Will, Executrix, for Leave to Sell Real Estate.

      (Surrogate’s Court, Essex County,

      Filed March, 1893.)
    Guardians—Liability of estate of, for property of ward.
    The mere fact that a guardian in a foreign country had several years before possession of property of his wards, is not of itself sufficient to establish a claim in favor of the wards against the guardians’ estate in a proceeding taken by creditors to sell real estate for the payment of debts. Before such a claim can be established, either the property or the proceeds thereof must be traced to the specific property sought to be sold, or else the liability of the guardian must be fixed by an accounting had in some court having jurisdiction.
    Application for leave to sell real estate for the payment of debts.

      B. B. Bishop, for petitioner; F. A. Smith, for James Will, tutor of infant parties; P. J. Finn, W. H. Carr and W. T. Foote, Jr., special guardians.
   McLaughlin, S.

Charles Will, in or about 1870, married Rebecca Anderson. Rebecca died in 1880, and at the time of her death resided in Canada. She left her surviving Alexander, David, Arthur, John and Elizabeth T., the only issues of such marriage, all of whom were, at the time of her death, under the age of fourteen years. Shortly after her death, the father, Charles Will, made application, and was appointed, under the Canadian statutes, tutor (corresponding under our statute to general guardian) of all the infants, and as such tutor, in September, 1881, he made and filed an inventory of the property left by his wife, Rebecca, and belonging to his wards. This inventory shows that at the time of her death she was possessed of personal property of various kinds and an interest in certain real estate in Canada, the possession of which, at the time the inventory was made, was passed over to the tutor. By this inventory the tutor agreed “to represent the same when and where duly required.” Shortly after the filing of the inventory, and during the same year, Will married the petitioner herein, and removed with her and the children above named from Canada to Essex County, this State. Two children were bom of the-second marriage, Mary B. and James R. Will. Charles Will died about January 1, 1888, and left him surviving his widow, Mary B., the petitioner herein, and all the above-named children. At the time of his death he was the owner and in possession of certain real estate situate in the County of Essex, R". Y., and which real estate is now sought to be sold for the payment of his debts, his personal property being insufficient for that purpose. After the death of Will his last will and testament was admitted to probate by the surrogate of this county, and letters testamentary thereon issued to the petitioner herein on the 20th of February, 1888. She immediately entered upon the. discharge of her duties, filed an inventory of his estate, andón September 7, 1888, commenced the publication of a notice for the creditors to present claims, which notice was published as required by law. In pursuance of such notice a large number of claims were presented. The personal property was disposed of, and some time during the year 1890 she made application to this court for judicial settlement of her accounts as such executrix, and a final decree was entered in August of that year. The personal property left by the deceased was insufficient to pay his debts in full, and the decree directed that the moneys in the hand of the executrix at the time of such final settlement be paid fro rata among the creditors thereof. Among other creditors of the estate was the petitioner herein, and this proceeding is instituted by her for the purpose of selling the real estate owned by the deceased at the time of his death for the payment of his debts. Upon the return of the citation herein, James Will, who, after the death of Charles,- was appointed tutor in Charles’ place, under the Canadian statutes, of the children of the first wife, appeared and presented a ■claim as such tutor against the estate of Charles Will, amounting, besides interest, to the sum of $1,400; and the only question difficult of solution is whether such claim can be allowed as a valid claim against the estate of Charles Will, deceased.

Assuming that all the evidence offered in support of such claim is admissible, which is by no means clear, I am of the opinion that the claim cannot- be allowed. It is unquestionably the law that an action on the bond of a guardian or administrator -will not lie against- the sureties until there has been an accounting by the guardian or administrator, or, in case of death, by the personal representatives. Hood v. Hood, 85 N. Y. 561; Girvin v. Hickman, 58 How. 244. In other words, no action will lie against the sureties until there has been some judicial determination, in a direct proceeding taken for that purpose, fixing default on the part of the principal. I see no reason why this rule is not applicable to the case at bar. There i,s here no proof that any accounting has ever been made, either by Charles Will, as tutor, or, after his death, by his personal representative or successor, James. Will. There is no presumption that the property mentioned in the inventory signed by Charles was converged by Charles to his own use, or that the proceeds of that property went into the real estate subsequently purchased by him, and now sought to be sold. On the contrary, the presumption is that Charles did his duty as tutor, and did not convert such property to his own use, and at the time of his death held such property as tutor, or had previously accounted therefor. There seems to me to be an insurmountable objection to the allowance of this claim until there has been some judicial determination, fixing’ default on the part of Charles as tutor, either under the Canadian jurisdiction or in our own courts. The inventory itself, relied on by the claimant as showing the receipt by Charles, as tutor, of property belonging to the infants, would seem to indicate that such course was absolutely necessary before proceeding against the decedent’s estate. The. condition upon which he received the property as tutor was that he would “represent the same when and where duly required.” Has he been required to represent [return] it ? If so, when ? Where? To whom? The present tutor, James, was appointed in 1888. Has he, as tutor, received this property, or any part of it? Although present in court, he was not sworn as a witness, and there is absolutely no light thrown upon the question as to what has become of the property of these infants by him. It can hardly be assumed that the laws of a foreign country would permit property belonging to infants to pass beyond its jurisdiction without- at least requiring an accounting or security of some kind. Clearly, as against the creditors and others interested in this estate, it cannot be assumed that the deceased took the pronerty of the infants, and converted it to his own use, or used the same in purchasing the real estate in question.

The wisdom of the rule requiring the principal to account before oroceeding against a surety, or before proceeding against a principal’s estate, in case of death, is well illustrated in the case at bar. All of the evidence given in favor this claim may be true, and yet all of the property mentioned in the inventory filed by Charles Will, deceased, may have been turned over to bis successor, James Will, immediately upon James’ appointment. James may still have all of that property, or all of it may stand to the credit of or in the name of the infants. It will not do to permit claims to be established against a decedent’s estate by such evidence. The mere fact that a guardian in a foreign country had several years before possession of property of his wards is not of itself sufficient to establish a claim in favor of the wards against a guardian’s estate in a proceeding taken by creditors to sell real estate for the payment of debts. Before such a claim can be established, either the property or proceeds thereof must be traced to the specific property sought to- be sold, or else the liability of the guardian must be fixed by an accounting had in some court having jurisdiction. In Hood v. Hood, 85 N. Y. 561, it appeared that the executor had received certain property, but the court held that that fact alone was- not of itself sufficient to establish liability without an accounting. See, also, Matter of O’Brien, 45 Hun, 284, 10 St. Rep. 414. The evidence fails to satisfy me that the claim presented by James Will, as tutor, is a valid claim against the estate of Charles Will, deceased; and an order can be entered to that effect, and directing a sale of the premises in question for payment of claims allowed; order to be settled on notice. On settlement of order question of costs will be considered. Order accordingly.


source: Caselaw Access Project

author: Coffin, S.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Henry Jones, Executor.

      (Surrogate’s Court, Westchester County,

      Filed January, 1893.)
    Executors and administrators—Accounting—Claim by executor
    AGAINST ESTATE.
    On the judicial settlement of the accounts of an executor or administrator lie may prove any debt due to him from the decedent, but not one due to himself and others.

      Judicial settlement of accounts.
    F. T. Lee, for executor; W. Thompson, for contestants.
   Coffin, S.

The executor claims a balance of account of $2,000 against the deceased, growing out of dealings and transactions between the latter and the copartnership firm of Jones, Hall & Co. That firm was composed of Henry Jones, the executor, Thomas Hall and William Edgar. The other members of the firm are interested in this claim. It is therefore a claim of, the firm, and not of the executor, and is contested by the legatees, Mrs. Martin and Mrs. Gage. Much of the evidence taken relates to items of the account resulting in the balance claimed.

Uothing is better settled than that this court can try and de- . termine the disputed claim of an executor or administrator on his accounting, and that it cannot so try and determine the disputed claims of other creditors. In the case of Shakespeare v. Markham, 72 N. Y. 400, it was held, before the adoption of the eighteenth chapter of the Code, under 2 Rev. Stat. 88, section 33, that “this section must necessarily refer to all claims in which an executor is interested, and the circumstance that he is 'jointly interested in a demand, or owns a portion of that in which he has an interest by assignment, does not affect the authority of the surrogate to adjudicate in regard to it.” There he did own a portion of the claim, and had paid the other joint owners their shares previous to the accounting, and thus became subrogated to their rights, and was regarded as their assignee. •Hence it would seem that the dictum “that where he is jointly interested in a demand” the surrogate has jurisdiction to adjudicate it may justly be regarded as obiter. I have great respect for the learning of the able jurist who delivered the opinion in that case, and have grave doubts as to whether he considered this immaterial point with the accustomed acumen-displayed by him upon any material matter. Indeed, it is plain that his attention was given solely to the facts of that ease upon this point, for he says: “As he, the executor, was entitled to have his interest determined, it does not deprive him of that right, because he has procured a transfer of other rights.” And again, in closing, upon this branch of the case, he says: “I am unable to discover any reason why the surrogate should not try and determine the question as to the claim of the appellant.” . Let us see into what difficulties we might be led by following the dictum referred to. A surrogate can only decree the payment to an executor of what he may find due to him. Kow, in this case, about $2,000 is claimed to be due from the deceased to three persons composing the firm; one of them being the executor, and the others mere creditors. Shall the decree award the whole sum to the executor, to the exclusion of the other members of the firm, or shall he decree an equal division among the three ? But they may not be equally interested, and may differ among themselves as to their respective rights. Must this court then hear and adjudicate their respective interests,, and so assume burdens that do not properly belong to it, and over which no statute gives it jurisdiction ? The- Revised Statutes, supra, provide that “no part of the property of the deceased shall be retained by an executor or administrator in satisfaction of his debt or claim until it shall have been proved to, and allowed by, the surrogate.” The provision of the Code, section 2739, leaving the above section unrepealed, is that “upon a judicial settlement of the account of an executor or administrator he may prove any debt owing to him by the dece- ; dent. Where a contest arises between the accounting party and any of the other parties respecting any property alleged to belong to the estate, but to' which the accounting party lays . claim, or respecting a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, tire contest must be tried and determined in the same manner as any other issue arising in the Surrogate’s Court.” These provisions clearly contemplate a debt of which the executor or administrator is sole owner, or solely owes, and, if the former, when established, must be followed by a decree directing the payment or allowance thereof to him., and not to him and others. Had Hall and Edgar assigned their interest to the executor before these proceedings were commenced, then the case would have fallen within the principle decided in Shakespeare v. Markham, 12 N. Y. 400. Surrogate Rollins, in the case of In re Eisner, 5 Dem. 383, recognized, without much apparent consideration, the validity of the dictum in the case above criticized . as applicable to every case where a claim of a firm of which the executor is a member is involved. To' this I find myself unable to yield assent. It will not do .to say there is no other mode provided by which such a claim may be determined. The doors of equitable jurisdiction of superior courts are wide enough to admit, and then entertain and adjudicate, such a claim. But the necessity of a resort to such a court may be readily obviated. The executor may pay the firm (he would not •be likely to dispute" its claim) and, on filing a voucher therefor, aslc credit for the amount on the accounting. He will not thus violate the statute, which forbids him to retain property of the estate in satisfaction of his debt, and on such accounting any interested party may question the propriety of the act of payment. He may show, for instance, that the claim of the firm was barred by the statute of limitations, or that the amount paid was more than was actually due. The surrogate will not thus be trying what is known to the statute as a “disputed claim,” which is one disputed by the executor, hut simply testing his act in paying an alleged debt of the deceased, which is claimed not to be a proper charge against the estate. The statute, as is well known, allows the executor to prove before the surrogate a debt due to him. This is not a debt due to him, and it is not an incident of such power, which the surrogate may exercise, to allow the proving of a debt due to him and others. That would be to exercise a chief, and not an incidental, power.

The objection of the contestants is, therefore, sustained.


author: Weiant, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Millard F. Onderdonk, Executor of Edward D. Hesdra, Deceased.

      (Surrogate’s Court, Rockland County,

      Filed June 19, 1893.)
    1. Surrogate’s Court—Decision—Findings.
    An irregularity in the decision of a surrogate by reason of its failure to state separately the facts found and conclusions of law is waived by a failure of the aggrieved party to take an appeal and avail himself of his rights under section 2545 of the Code.
    2. Same—Laches.
    Motion to vacate the decree on the ground of a failure to file find'ugs of facts and conclusions of law cannot be made after the expiration of one year.
    Motion to- set aside the decree settling the executor’s accounts.
    Snider & Hopper, for executor; Charles S. Dunham, for creditors; L. Napoleon Levy, for legatee; George S. Wyre, for legatee and devisee.
   Weiant, S.

This is a motion to vacate and set aside a decree made in the above entitled proceeding on ¡November 6, 1891, adjusting and judicially settling the accounts of tire executor, on the ground that the surrogate failed to file in his office his decision in writing, stating separately the facts found and the conclusions of law, in compliance with the requirement of section 2545, Code Civil Procedure. It is true that, while a written decision was filed by the surrogate, yet it did not separately state the facts and conclusions found. Two objections are advanced, waiver of the irregularity, if any; and want of power in the court to grant relief at this late day, either of which is sufficient to defeat this motion. First, it would seem that the moving party has waived the irregularity, if any, by his own failure to take an appeal and avail himself of his rights under section 2545 of the Code as to findings, requests to find, and exceptions. In Matter, of Hood, 104 N. Y. 103-106, 5 St. Rep. 501, Judge Finch, writing the opinion, says, in answer to the suggestion of counsel that, in the absence of requisite findings, the decree is irregular:

“That does not follow. It is the duty of .the party appealing to procure to be made such findings or refusals as will present, through appropriate exceptions, the questions which he desires to argue. If he suffers this necessary step to be omitted he will find himself without the means of reviewing the rulings to which he complains.” The second objection is well taken. It is now too late to obtain the relief sought “A motion to set aside a final judgment for irregularity shall not be heard after the expiration of one year since the filing of the judgment roll.” Code, sections 724, 1282; Corbin v. Westcott, 2 Dem. 559; Hood v. Hood, 5 id. 50; Matter of Filley’s Estate, 47 St. Rep. 428; Matter of Post, 38 id. 1; Matter of Foulks’ Estate, 10 N. Y. Supp. 515. A Surrogate’s Court has power “to open, vacate, modify, or set aside” its decrees or orders. Code, section 2481, subd. 6. But “the powers conferred by this subdivision must be exercised only in a like case, and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” Id.; Matter of O’Neil, 46 Hun, 500, 12 St. Rep. 419; Matter of Carr v. Estate of Tompkins, 46 id. 585; In re Filley’s Estate, 47 id. 428. Thus it appears that sections 724, 1282, are specifically made applicable to Surrogates’ Courts, and the time within which the motion could have been made has expired. Corbin v. Westcott, supra In re Hood, supra; In re Tilden, 98 N. Y. 434-442; In re Foulks’ Estate, supra. Even if it be assumed that it is an irregularity for the surrogate to fail to make and file such a decision with such statement of facts and conclusions of law, and the court had the power to hear the motion, yet it is not an absolute right of a complaining party to have the decree made and entered set aside. Hood v. Hood, 5 Dem. 50. Upon the merits, even if the power existed, it is clear, within the authorities, that the motion should not be granted because of the laches of the applicant. “Where a party has had his day in court he must show that it was not his fault that he did not improve it before he can get another day on the same matter.” In re O’Neil, supra,; In, re Filley’s Estate, supra.

The motion is accordingly denied, with ten dollars costs.


author: Sheldon, S.

text:
    In the Matter of the Disposition of the Real Estate of the Estate of Stilman B. Sanders, Deceased, for the Payment of his Debts.

      (Surrogate’s Court, Herkimer County,

      Filed May 15, 1893.)
    1. Limitation—Payment.
    A payment, in order to have the effect of a renewal of the obligation or an extension of the time in which an action may be brought, must be made by the party who is sought to be held; not necessarily in person, but by him or by his agent authorized to do that act for him, so that it is his payment.
    2. Same—Suretyship.
    A note made by the decedent and one P. was given to the aunt of the latter to raise money to pay off a prior note made by P. and indorsed by decedent. All the payments on such note were made by P., who made all the indorsements. Decedent at one time asked to be allowed to take his name off, which the payee refused, but expressed no surprise, and decedent said that he would see that it was paid, and that P. had made enough on the place to have paid it. Held, sufficient to show that the payee understood that decedent was only a surety.
    3. Same.
    It was claimed that a delivery of hay by P. was a payment by decedent on the note. The evidence showed that on the payee sending •for hay, decedent said that P. was away, and that when he returned the payee could have it; that subsequently on examining the note he expressed surprise that the hay was not indorsed thereon, and the payee replied that she and P. were in the habit of letting their accounts run and indorsing them in one indorsement. P. testified that all the hay delivered was his property. Held, that a payment by decedent or by P., as his agent, was not shown.
    Upon the return of citations Hudson B. Farrington appeared and presented a claim to be proved against the estate based upon a promissory note assigned to him by the payee, Madeline Harter, which was dated March 8, 1875, for $1,200, executed by Thomas R. Petrie and Stillman B. Sanders, payable one year after date, with interest, and was the joint and several note of the said makers. Sanders died September 18, 1890. Thomas R. Petrie and Marietta S. Gardner were appointed administrators of his estate on October 9, 1890.
    The administrators interpose the statute of limitations as a defense to the claim against Sanders’ estate.
    On January 1, 1887, Thomas R. Petrie delivered h> Madeline Harter, to be applied as a payment on the note,‘1,235 lbs. of hay of the value of $8.02, and the claimant asserts that this payment was made by Petrie as the agent of Sanders, by Sanders’ direction, and was a payment by Sanders upon the note, and that by such payment Sanders renewed his obligation on the note.
    J. A. & R. E. Steele, for claimant; Steele & Prescott, for administrators.
   Sheldon, S.

It is well settled that one of the joint and

several makers of a promissory note cannot, by his own act in making a payment thereon, postpone or avoid the bar of the statute of limitations as to the other makers, and this is so whether the one making the payment is the principal debtor and the other makers are sureties, or whether the surety makes the payment. In any case a payment, in order to have the effect of a renewal of the obligation or an extension of the time in which an action may be brought, must be made by the party who is sought to be held, not necessarily in person, but by him or by his agent authorized to do that act for him, so that it is his payment. First National Bank of Utica v. Ballon, 49 N. Y. 155; Littlefield v. Littlefield, 91 id. 203.

In the case last cited it appeared that the holder of a joint and several note long past due went to one of the makers, who> was a surety for the other maker, and in substance asked for payment. The surety asked the holder to wait until the maker came home and sent the principal maker a message by the holder saying, “Tell him for me that he must pay the interest and as much of the principal as he can; and that 1 say so:” The principal maker came home, and the holder delivered the message as directed, and some months afterward the principal made a payment on the note and afterwards told the surety of malting the payment and the surety said that it was all right. It is clear that the effect of the acts of the parties was not otherwise than as though the surety had gone to the principal maker of the note and said to him “You must malee a payment on that note; pay the interest and as much of the principal as you can;” in pursuance of this direction the principal maker makes a payment upon the note, and soon after informs the surety of it, and the surety says “All right; that is what I told you to do.” Such a payment is one made with the knowledge and approval of the surety, and in one sense by the direction of the surety, for he instigated the payment^ he set the maker in motion, and directed him to make the payment and the payment inured to the benefit of both principal and surety in the reduction of the debt, and if such payment was the joint act of principal and surety it would be a payment by the surety, and he could not avail himself of the statute of limitations until six years thereafter, but such payment cannot be held to be the joint act of principal and surety; the principal makes the payment out of his funds; he is only discharging his obligation both to the holder of the note and to the surety; the surety in urging the principal to make a payment was only urging him to do his duty. It is competent for the surety to direct the maker to make a payment as the act and payment of both, although made with the means of the principal, and if so made, it will have tire same effect as though made personally by the surety, but to establish such a payment the proof must be clear and unequivocal. In a case where the makers of a joint and several note were equally liable as between themselves, and one of the makers had upon the request and direction of the others made a payment upon the note, or in a case where the surety made a payment upon the request of the principal maker of the obligation, there is ground for contention that such payment is the joint act of the one requesting and the one making the payment, because the principal maker, who requests and induces the surety to make a payment, is thereby discharging his own duty, and contracting a fresh obligation to the surety for the money advanced by the surety to make the payment for the principal.

In the application of these principles to the case in hand, I will first consider in what relation t-o the other maker of the note was Stillman B. Sanders. It is clearly shown that, at the date of the note, Petrie was the maker and Sanders one of the indorsers of a note held by William Reynolds, upon which there was due $1,765, upon which Petrie was the principal debtor, and Sanders was surety, and that the consideration of the note in suit was $1,200 furnished by Madeline Harter, the payee, to pay off the Reynolds note. I think it must be found as a fact that Madeline Harter knew of the fact that Petrie had the benefit of the $1,200, and that as between themselves Sanders was only surety for Petrie upon the note: Miss Harter was Petrie’s aunt. Petrie testifies that before getting the money he had talked with Miss Harter about it, and told her that he was paying Reynolds a bonus for the use of his money which he wished to get rid of, and this testimony is not contradicted. Reynolds was paid at Newport., and Miss Harter went to Newport on the day of the payment with either Sanders or Petrie to furnish the $1,200. In support of this finding some weight must be given to the fact that Petrie personally attended to making the payments. None of the indorsements are in Sanders’ handwriting; and all, except one made by Miss Harter, are in Petrie’s writing; there is no dispute but that nearly all the payments of interest were made by Petrie with his own funds. The fact, as testified to by Mary A. Farrington, the wife of the claimant, that in the spring of 1887 Sanders asked Miss Harter to allow him to take his name off the note, and her reply refusing, but without surprise at such request, and Sanders’ remark following in the same conversation that he should see that it was paid; that Petrie could have made enough on the, place to have paid it long before now, but that she should have,, her pay, and that he considered that and one other* as sacred, and that these were all that he was holden for; all this indicates a mutual understanding between Miss Harter and Sanders that Sanders was only a surety on the note:

I think it must also be found that the hay delivered to Miss Harter January 1, 1887, to apply on the note was the property of Petrie, and that Miss Plarter so understood it. Petrie testified that about the year 1871 he made an oral agreement with Sanders, whereby he was to give Sanders $100 a year and his support for the use of the farm, and that he occupied the farm under that agreement down to 1890.

There was no direct contradiction of Petrie’s testimony in this respect, and he testified also directly that all the hay delivered to Miss Harter, as well as the other products of the farm delivered to her, all of which was applied upon the note in question or upon other notes of Petrie’s held by her, was his property. Mow, what is the testimony relied upon to show that Sanders, the surety, made a payment upon the note by Petrie as his agent with and by means of the load of hay, which was Petrie’s property ?.

Yarnum S. Farrington, called as a witness, in behalf of the creditor, testified that at the request of Miss Harter he delivered a message from Miss Harter to Sanders as follows: “I told Mr. Sanders that Miss Harter, or Lainy, wanted him to send her some hay for her cows, and he said that Petrie was not at home, and when Petrie came home he would send the hay to her.”

Mary A. Farrington, the wife of the creditor, was called as a witness in his behalf and gave testimony concerning a conversation between Sanders and Miss Harter in the spring of 1887 at her house, as follows: “They talked for some time about church matters; then he asked if the interest had been paid on the note, and she replied, not all of it; he then asked if she had any objections to his seeing that note of his and Petrie’s; she said no, and got the note for him to see; he looked at the note, and seemed surprised, and asked if she had not had that hay; he said that he had told Petrie to bring the hay to apply on the note; he told him to do so, and supposed that he had done so, and she replied that he had brought the hay, but that she and Petrie were in the habit of letting their accounts run, and then footing them up and indorsing them in one indorsement.” In the same conversation Sanders made the remark “that Petrie could have made enough on the place to have paid it long before now.”

It is claimed that this conversation referred to the hay delivered to Miss Harter hy Petrie January 1, 1887, although it is far from clear that this was so; for by the hay hills it appeared that Petrie had delivered a load of hay to Miss Petrie Hovember 24, 1886; another load January 1, 1887, and another load February 10, 1887. These several loads of hay were all payments, upon the note, and while it is not impossible that one of these loads of hay was sent by Sanders as a payment by him, the more natural and probable view of the case is that the payments of hay all stood upon the same footing, and that Sanders’ view of the transaction, at each time that Petrie took a load of hay to Miss Harter, was that Petrie had done his duty, had made a payment; and it is not probable that it ever came into his mind that he, Sanders, had made a payment to Miss Harter.

Sanders, the surety, could not easily have supposed or intended that when Petrie, the principal debtor, wras delivering his own property in payment of his own debt that he, the surety, was making the payment, although at the request of Miss Harter he had told Petrie to bring the hay.

It is evident that Miss Harter knew of no reason for treating* any load of hay delivered about this time as a payment by Sanders, or any differently than any other of Petrie’s payments. She supposed the payments to be Petrie’s payments, for she told Sanders that Petrie had brought the hay, “but that she and Petrie were in the habit of letting their accounts run and then-footing them up and indorsing them in one indorsement.”

A careful consideration of the circumstances and the inferences to be drawn from the testimony does not permit of the conclusion that Petrie was acting as the agent of Sanders when he delivered hay to Miss Harter about Jan. 1, 1887, to apply as a payment on the note. Mr. Sanders did not make that payment. Therefore, the statute of limitations had barred an action on the note as against Sanders prior to his death, and the note and the claim cannot be established as a debt to be paid out of Sanders’ real estate in this proceeding.


text:
    In the Matter of the Judicial Settlement of the Accounts of Hattie Clapsaddle, Administratrix of Dennis L. Clapsaddle, Deceased.

      (Surrogate’s Court, Herkimer County,

      Filed June 19, 1893.)
    1. Limitation—Payment.
    The only indorsement within' the statutory time upon a note of decedent to his wife was one for $50, on back interest, which was not signed by him. His daughter testified that she was present when the indorsement was made, and that decedent said: “There, the note is
    all right now; my indorsement makes it all right;” that no money passed at the time; that she had seen her father hand her mother money at other times, but could not tell the amount. Held, insufficient to prove a payment, and that the note was barred by the statute.
    2. Payment—Presumption—Husband And wife.
    When the delivery of money is from husband to wife or from father to child, the presumption that the delivery of money was in payment of a debt will not arise.
    3. Executors and administrators—Verification of claim.
    An affidavit in support of a claim by an administrator which does not state that no payments have been made thereon is insufficient.
    Upon the accounting in the above entitled proceeding the administratrix sought to prove and have established as a debt due from the estate to her the amount of a promissory note dated April 4, 1867, made by Dennis L. Clapsaddle and Lawrence Clapsaddle, promising to pay jointly to Harriet Clapsad-. die, three years from date, $2,100, with use.
    J. M. Hyde, a creditor, filed objections to the claim of the administratrix, viz.: First, that the claim was barred by the statute of limitations. Second, that the administratrix had not made sufficient proof of the claim, and that the proof and papers submitted were not sufficient to authorize the allowance of the claim.
    ' The note had indorsements written upon it in the handwriting of Dennis L. Clapsaddle, as follows: “May 1, 1871, received $200.00 as interest on within note. May 1, 1875, received $200.00 as interest on within note. May 1, 1879, received $200.00 as interest on within note. May 1, 1890, received, fifty dollars towards back interest.”’
    The administratrix presented on the hearing as her claim a •copy of the note and indorsements, and statement that the amount claimed to be due from the estate of Dennis L. Clap-saddle to the claimant on the note September 30, 1891, for principal and interest, was $6,635.68, and this was verified by the affidavit of the administratrix, “that the amount of the above promissory note, as stated in the within note, is now justly due and owing to her from the estate of Dennis L. Clapsaddle, and that there are no offsets thereto1.”
    James Conkling (James B. Rafter, of counsel), for administratrix ; Charles D. Thomas, for creditors.
   Sheldon, S.

By the provisions of section 395 of the Code of Civil Procedure: “An acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract wherehy to take a case out of the operation of the statute of limitations.” But this section does not alter the effect of a payment of principal or interest.

The indorsement in the handwriting of Dennis L. Clapsaddle, dated May 1, 1890, was an acknowledgment by him at that date that he was indebted upon that note to the holder in the amount .of the note and interest, less the payments indorsed thereon. But the acknowledgment, though in writing, was not signed by the decedent, and therefore was not alone sufficient to lift the bar of the statute.

The indorsement, however, is the admission and declaration ■of both the holder, Harriet Clapsaddle, and the maker, Dennis L. Clapsaddle, that fifty dollars was paid on the note on the day of the indorsement, and a payment made that day would have the effect of renewing the note from the date of the payment.

If this indorsement were the only proof on the subject of the payment represented by that indorsement, it would be sufficient to support and require a finding that a payment of fifty dollars was, in fact, made on May 1, 1890, on the note by decedent.

Additional evidence upon the subject of that indorsement and the payment supposed to be represented by it was given, and the effect of it must be considered.

In the case of Hulbert v. Nichol, 20 Hun, 457, Maynard, County J., says: “When it appears upon the face of the instrument- declared upon that the statute has run against it, the burden is upon the party claiming under it to show, that- the case is excepted from the statutory bar; and where the exception contended for consists of a constructive acknowledgment of the debt arising from part payment, the partial payment must be •clearly established, and not be a matter of conjecture merely,” and “The evidence to establish a part payment from which an acknowledgment of the debt and a promise to pay it is to be implied ought to be as clear, explicit and unequivocal as that required to support a written acknowledgment or express promise to pay; evidence which is just as consistent with the theory that no payment was made as with the presumption of payment ■should not be deemed sufficient.”

The only testimony in support of the claim was given by Ellen H. Clapsaddle, a daughter of decedent and the claimant, who testified that she was not quite twenty-six when her father died.; and that she had always lived at home with her father and mother; and that her father was a farmer; that about 1881 she saw her father pay her mother some money; and that at the time of the indorsement of May 1, 1890, she saw hex father write the indorsement on the note and hand it back to her mother and say: “There, the note is all right now; my indorsement makes it all right.” The foregoing was upon direct examination. Upon cross-examination she testified respecting the payment made about 1881: “I do not know the amount; I saw the money; I do not remember the denomination of the bills; all I mean about that transaction is, that in 1881 I saw my father hand my mother some money; I cannot say there was more than two hills; I cannot say I recollect of seeing distinctly more than one; during all the years of which I have testified my father and mother were living together, and my father furnished the money for the usual wants of the family.”

Upon re-direct she testified: “In 1887 or 1888 I saw my father pay my mother money, and I think in 1889. I am able, to swear positively that at various times in 1887 and 1888 I saw my father pay my mother money.” Upon ref-cross examination she testified: “I saw him pay her money in 1890 on several occasions; I mean by pay, hand her money. On a few occasions I saw her buy articles with the money handed to- her; I could not say whether the sums were large or small. I do not know that there were seasons of the year when he gave her money more frequently than others. It was about as frequent-through the years one with another. I remember one. occasion when something was said. I think it. was later than 1879. I cannot give the date. I have given all that I remember of what was said when the last indorsement was written. I did not see my father hand my mother any money- on this occasion. My mother produced the note. The indorsement having been made, my father re-delivered the note to my mother. I did not see any other paper there. I had been with my mother nearly all the day. I did not-see at any time- any money paid by 'father to mother that day.” -

Ordinarily the mere fact tliat money is delivered by one person to another raises a presumption that the money was delivered in payment or to apply in satisfaction of an obligation previously incurred. Bradner v. Fitzhugh, 4 W. Dig. 516.

But such a presumption is by no means conclusive, and its strength must depend upon circumstances. When the delivery of money is from husband to wife or from father to child the presumption that the delivery of the money was in payment of a debt will not arise. This case is similar to that of the rendition of services, concerning which, in the leading case of Williams v. Hutchinson, 5 N. Y. 317, Pratt, J., says: “Under certain circumstances, when one man labors for another a presumption of fact will arise that the person' for whom he labors is to pay him the value of his services. It is a conclusion to which the mind readily comes from a knowledge of the circumstances of the particular case and the ordinary dealings between man and man. But where the services are rendered between members of the same family no such presumption will arise.’5. The deliveries of money by decedent to his wife are not proved to have been made under such circumstances as to lead to any-other inference than that they were made to supply ordinary' domestic wants.

The witness by whom these receipts of money from decedent by the claimant was proved appeared entirely candid and truthful ; and from the -interest in favor of the claimant which her natural affection as a daughter would inspire it may well be supposed that all the facts which she could give tending to show payment were given in evidence. The situation of the witness was such that it is difficult to suppose that payments or any payment upon the note wras made without the daughter hearing anything said upon the subject between her father and mother. The fact that nothing was said at the time of the indorsement, or at any other time, so far as appears, about a payment on the note, and that the actual payment first attempted to he proved as the payment for which the indorsement was made was stated to have been made in 1881, and that all the alleged deliveries of money by decedent to the claimant were for domestic purposes probably, and not payments upon the note, and that the attempt of the claimant to show' actual payment upon the note, aside from the force of the indorsement, has failed, leads to the conclusion, which is also supported by what was said by the decedent at the time of making the indorsement, that the decedent and claimant agreed to have the indorsement put upon the note, not as evidence of any payment ever actually made, but acting under the impression that the indorsement would, of itself, renew the note, and save it from the operation of the statute of limitations.

The literal meaning of the w'ords used by the decedent, accompanying his indorsement, express the idea that the indorsement alone made the note all right; he said “There, the note is all right now; my indorsement makes it all right.”

■ Taking all the evidence into consideration, the conclusion is reached that the claimant has not successfully sustained the burden of proving a payment upon the note May 1, 1890, or at any time within six years prior to the death of Dennis L. Clapsaddle.

The contesting creditor also raises the objection that the administrator is required, but has omitted, to present-the affidavit which the administrator may require each creditor to present in support of his claim, viz., “that such claim is justly due; ' that no payments have been made thereon; and that there1 are no offsets against the same to the knowledge of such claimant.” That a claim in favor of the administrator shall not he deemed proved and may not he allowed by the surrogate unless the affidavit is made and presented is held by the following authorities: Williams v. Purdy, 6 Paige’s Ch. 166; Clark v. Clark, 8 id. 159; Terry v. Dayton, 31 Barb. 519; Wood v. Rusco, 4 Red. 384.

The affidavit presented by the administratrix was defective in not stating that no payments had been made on the claim.

The rule makes a requirement in excess of the demands of the statute, and compels a creditor who happens to be the administra tor to do an act that, if omitted by an ordinary creditor, would not bar a recovery by action or upon a reference under the statute of his demand. The rulo seems a technical one, but if there be reason for requiring the affidavit, there is the same reason for requiring that the affidavit should conform to the rule, and not only state that the claim is justly due, and that there are no off-sete against the same to the knowledge of the claimant ; but that no payments have been made thereon. Upon the authority of the cases cited I am constrained to hold that this ground of objection is also well taken, and that for the reasons stated the claim must be disallowed.


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    In the Matter of the Judicial Settlement of the Accounts of Bridget Lucy et al., Administrators of Cornelius D. Lucy, Deceased.

      (Surrogate’s Court, Herkimer County,

      Filed July 11, 1893.)
    Tenants in common—Use of property for common profit.
    If, by agreement between tenants in common, the common property is used for the purpose of making a profit, either tenant in common may have an accounting in equity of the rents and profits and disbursements, and the tenant to whom there is found a balance due will have an equitable lien upon and right to reimbursement .out of the share of the common property from which such balance is found due.
    2. Same—Eight to reimbursement from estate of co-tenant.
    The owners of a farm agreed that one of them should carry on a dairy and general farming business thereon, the products to be divided between them in a certain manner. The business was so carried on until the death of the one conducting it, who received the moneys from sales and mingled the same with his other money, and the other tenant received nothing. The estate proved insolvent. Held, that the co-tenant was entitled to be paid in full for his share of the profits out of the moneys so received, and, if necessary, out of the proceeds of any property owned by the parties in common and used in the business, and that only so much as remained after such payment should he considered assets for the payment of general creditors.

      On January 1, 1891, Ambrose Arnold and Cornelius D. Lucy were the owners as tenants in common, each owning an undivided half of a farm of 160 acres, and a dairy of 40 cows upon it, situated in the town of Fairfield, N. Y. On or before January 1, 1891, Arnold and Lucy entered into an agreement that Lucy should, during the year 1891, cany on and conduct dairy and general farming business with the said farm and dairy, and that Arnold should have three-tenths, and Lucy should have seven-tenths, of the products of the farm. The principal product of the farm ■was cheese, and by 'agreement the milk produced from the dairy of tire farm was taken to a cheese factory, and with the milk of many other patrons of the factory made into cheese, which cheese, after being cured, was sold by the salesman of the factory, and the money received for it checked out to the patrons in proportion to amount of milk contributed. The milk from the farm of Arnold and Lucy was credited at the factory by consent to Lucy, and the proceeds paid to him during his life, and after his death to his administrators.
    Lucy carried on the farm business from January 1, 1891, to the time of his death, which occurred October 17, 1891, and after his death his widow, Bridget Lucy, on November 2, 1891, was, with John C. Murphy, appointed administrator of Lucy’s estate, and the administrators carried on the farm business to' January 1, 1892.
    Of the products of the farm, aside from cheese, a portion was sold by Lucy, and the remainder by the administrators, and none of the moneys received from the business rvere kept separately from other moneys, either by Lucy or the administrators; and nothing has been paid to Arnold on account of his share in the product of the farm. The amount of money received by Lucy in his lifetime from sales of cheese by the factory was $577.93; from sale of butter was $50, from sale of pigs and pork was $40, from sale of calves was $44. After Lucy’s death, his administrators received from sales of cheese made by the factory from milk taken to the factory before the death of Lucy, $225.31, and from milk taken to the factory after the death of Lucy, $182.56. ^

      The administrators also received from sale of butter from the farm, $10, and from sale of pigs and pork, $39.
    At some time during the year 1891 Lucy sold a bull from the dairy which was owned equally by Arnold and Lucy, and received the price, which was $25. In 1892- Ambrose Arnold died, and Thomas Arnold was appointed administrator of his estate. At tire timo of Lucy’s death the money found in his possession was only $100. The first money received from the cheese factory by the administrators was $90, received by Airs. Lucy and paid out by her. The other cheese, butter and pork moneys, received by the administrators, was mingled with the moneys received from sale of cows, horses and farming impler inents, etc. Part of the debts, the funeral expenses and expense of administration have been paid from this fund by the administrator.
    On July 30, 1892, Hath an B. Arnold recovered a judgment against the administrators in the Supreme Court for the sum of $4,771.41, to be paid in due course of administration out of the assets. This proceeding is the final accounting of the administrators, and the foregoing facts have been stipulated by all parties, except those in default, and the same parties have stipulated to waive all question of jurisdiction of the surrogate to determine the questions presented.
    The administrator of the estate of Ambrose Arnold claims that three-tenths of the proceeds of the farm products, viz.: '$350.64, should be paid in full. This claim is controverted by Hath an B. Arnold, who contends that it must be treated as an ordinary debt, to be paid ratably with the other debts against the decedent.
    P. H. McEvoy, for administrators; R. H. Smith, for Nathan B. Arnold; A. M. Mills, for administrator of Ambrose Arnold.
   Sheldon, S.

It is well settled that a tenant in common of either personal or real property may have an action against his co-tenants in a court of equity for a partition of the common property, and if the interests of the parties require it such partition will be made by a sale of the property and a division of the proceeds. Tinney v. Stebbins, 28 Barb. 290; Tripp v. Riley, 15 id. 334; Andrews v. Betts, 8 Hun, 325; Shehan v. Mahar, 17 id. 130; Prentice v. Janssen, 7 id. 86; Smith v. Smith, 10 Paige, 470.

Where one tenant in common has the occupation and enjoyment merely of the whole of the common property, without any agreement with his co-tenants, express or implied, to render any thing for the use, and receives nothing in the nature of rents and profits from the use of the property, he cannot be called upon by his co-tenant to account or pay for tire use and occupation, but if he receives rents and profits he may be called to account for them in an action for partition. McCabe v. McCabe, 18 Hun, 154; Scott v. Guernsey, 48 N. Y. 124.

And such rents and profits are upon partition a lien upon the share of him from whom they may be due. Scott v. Guernsey, 48 N. Y. 124.

If one tenant in common, with the assent of the other, lays; out his money in repairs or improvements upon tire common property, or if by agreement the common property is used for the purpose of making a profit, either tenant in common may have an accounting in equity of the rents and profits and disbursements, and the tenant in common to whom there is found a balance due will have an equitable lien upon and right to> reimbursement out of the share of the common property from whom such balance is found due. Green v. Putnam, 1 Barb. 500; Prentice v. Janssen, 7 Hun, 86; Dyckman v. Valiente, 42 N. Y. 564; Mumford v. Nicoll, 20 Johns. 634; Willard’s Eq. Jur. 106; Wright v. Wright, 59 How. 186,

The reason of the rule is well stated by Meewin, J., in the case last cited, as follows: “The increase or rents are common property as much as the principal or the original estate. When one, therefore, takes of the increase or rents, he takes a part of the common fund or property; and it may well be said that there1 is an implied agreement to have what he has received applied on his share, or that on division he will bring it in, to the end that it may be charged to him on division, and that a court of equity works out this result through the operation of an equitable lien.”

When an agreement is made between tenants in common for the use of the common property, and sharing the profits obtained from such use, the tenants in common do not become partners generally, although such relation is sometimes called a special partnership for the particular adventure. Thus, in Mumford v. Nicoll, before cited, Chief Judge Spencer, who wrote the prevailing opinion, says: “I must not be supposed to overrule the distinction between partners in goods and merchandice and part owners of a ship. The former are joint tenants, and the latter are, generally speaking, tenants in common, and one cannot sell the share of the other. Exit I mean to say that part owners of a ship may, under the facts and circumstances of this case, become partners as regards the proceeds of the ship, and if they are to be so regarded, the right of one to retain the proceeds until he is paid what he has advanced beyond his proportion is unquestionable.”

The gist of the decision in Mumford v. Nicoll is stated as. approved by Foster, J., in Dyckman v. Valiente, above cited, as follows: “And in Mumford v. Nicoll, 20 Johns. 611, it was held that where one of two part owners of a ship receives or gets possession of the whole funds of a vessel and of the voyage he has a right to retain them until he is paid or indemnified for what he has advanced or paid more than his share for outfits, repairs or expenses of the vessel for the particular voyage or adventure.”

Although an agreement between tenants in common for the use of the common property for the purpose of making a profit or income, to be divided, may not constitute a partnership, yet after the undertaking has been commenced the rights and liabilities of the parties are to be determined upon the same principles as are applied by courts of equity to partnership transactions. King v. Barnes, 109 N. Y, 267, 15 St. Rep. 52; Dyckman v. Valiente, 42 N. Y. 551; Wilcox v. Pratt, 34 St. Rep. 477.

Ambrose Arnold and Cornelius D. Lucy entered into an agreement for the use of their common property, for the purpose of making a common profit. The contracting parties carried on the business provided for until the death of Lucy, and his administrators taking his place, the business was carried on by them, with the assent of the other party to the adventure, until the completion of the enterprise. The proceeds of the business ■came to the hands of Lucy in his lifetime, and to the hands of his administrators after his death. The administrator of the estate of Ambrose Arnold was entitled to go into a court of equity and have an accounting with Lucy’s administrators of the year’s business and the proceeds of it. Such an accounting has in effect been had, and from it there appears to have been received by Lucy and his administrators as the proceeds of the year subject to a division the sum of $1,168.80, of which Arnold’s share was $350.64; and it also appears that Lucy sold a bull which was owned in equal shares by Ambrose Arnold and himself as a part of the dairy, and received $25 for it, of which $12.50 would be properly added to the $350.64, making $363.14 as the amount found due the administrators of Ambrose Arnold upon the accounting. The estate of Lucy is insolvent, the amount of assets to be used in payment of debts being less than $1,000, and the indebtedness amounting to over $5,000. As a part of the assets there appears to have been received by the administrators over' $400 as proceeds of the farm arising from the sale of cheese, also over $400 from the sale of Lucy’s interest in the dairy owned in common with Ambrose Arnold. Such being the facts, the administrator of Ambrose Arnold claims that only such part of the proceeds of the fárm and of the common property as remains after the payment of his share, viz., $363.14, should be considered as assets applicable to the payment of general creditors.

The principal creditor, Nathan B. Arnold, resists this claim, and insists .that the proceeds of the farm products, and other common property, sold by Lucy and his administrators, must be treated as though it were Lucy’s individual property and as being general assets; and the amount shown to be due upon the accounting to the administrator of the estate of Ambrose Arnold, as his share of the proceeds of the year’s business, must be treated as an ordinary debt and only entitled to the same percentage of the assets as the other debts. I am of the opinion that there are equities founded upon the relations of the parties growing out of their undertaking for the use of the common property for the purpose of getting common profit that authorizes and requires that Ambrose Arnold’s share of the profits be paid to him out of the money received from sale of the products of the farm, and, if necessary, out of the proceeds of any property owned by the parties in common and employed in the business. The learned counsel for Nathan B: Arnold asserts in his brief, upon the authority of Taylor v. Bradley, 39 N. Y. 129, that the contract between Ambrose Arnold and Lucy was in the nature of a partnership.

In this position I think the learned counsel is correct, and that the rights of Lucy’s administrator in the common property must be determined by the rule that applies to the administrator of a deceased partner. In such a case, the administrator takes or retains, as assets, only such a part-' of the common property as may be found due after an adjustment of the partnership accounts upon equitable principles. Thomson v. Thomson, 1 Bradf. 24; Hooley v. Gieve, 9 Abb. N. C. 11; Leserman v. Bernheimer et al., 113 N. Y. 45, 22 St. Rep. 606.

The conclusion, therefore, is reached that the administrator of the estate of Ambrose Arnold must be paid in full out of the money received for the common property, and the remainder of the property in the hands of Lucy’s administrators be distributed among his creditors ratably.


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    In the Matter of the Accounting of George H. Morgan et al., Executors of George D. Morgan, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed September, 1892.)
    Executors and administrators—Death of legatee.
    Where a legatee dies before the legacy is payable, and no administrator has been appointed for him, the case is not one within sections 2747 or 2748 of the Code, and the court, on the accounting of the executors of the estate, will direct such legacy to be paid into court, to be delivered ultimately to any one who can establish a legal right to its possession.
    Judicial accounting of executors.
    Testator gave a legacy to his grandson, George D. M. Fullerton, to he paid when he should become 21 years of age. The executors filed a petition for a settlement of their accounts, hut the infant legatee died before service of the citation on him,, and no administrator of his estate was appointed. He left as his next of kin-his father, who claimed that the legacy should be paid to him.
    Eugene Smith, for executors; M. M. Silliman, special guardian.
   Coffin, S.

There seems to be no provision of law precisely covering the facts of this case, hut it is provided by section 2729 of the Code that a petition of an executor or administrator may be presented, praying that the creditors and decedent’s husband or wife, next of kin, and legatees, “or, if either of those persons has died, his executor or administrator, if any, may be cited to attend the settlement.” Hence, had this minor died before filing the petition, it would seem his administrator would have been the only proper party to the proceeding, if he had any. The statute does not authorize the citing of a next of kin of a deceased creditor, husband, wife, legatee or next of kin, and they are, therefore, in no sense proper parties to the proceeding, and payment cannot be decreed to he made to them, simply, but it' may decree such payment to the executor or administrator of any of them. Of course the death of the minor does not cause the proceeding to abate, but his administrator, if he had any, might intervene, and be made a party, or he could be brought in and made a party, under the provisions of section 2743. Simply as next of kin, the father cannot, under the-authority of section 2731, appear upon the hearing, and make himself a party to the proceeding, because he is not a person interested in this estate. His interest is in the estate of his deceased son. If, instead of being a minor, the deceased legatee had been of full age, to whom the legacy had been directed to be paid when he reached the age of 40, it is very certain that a vested legacy could be paid only to his executor or administrator, to be administered as a part of his estate. It is not discovered that the fact of his being a minor can make any difference. It 'does not seem to me that this is a case for a direction in the decree., as contemplated by either sections 2747 or 2748.

The first provides that, where the person entitled to a legacy is unknown, the decree must direct it to be paid into the State treasury. That, it would appear, contemplates a legacy to an individual or a class of persons, as to the child or children of A. B., who are unknown, and cannot be ascertained. Here the legatee is known. The next section, which enacts that the descree must direct the executor to pay to the county treasurer a legacy which is not paid to the person 'entitled thereto at the expiration of two years from the date of the decree, etc., contemplates a case where the decree directs payment to a legatee who is known, and is alive, and is, as Surrogate Rollins well says in the case of Koch v. Woehr, 3 Dem. 282, “of universal application,” but that the insertion of such a provision in the decree “is generally of no practical importance, and in most cases may with propriety be omitted.” There being found no statute directly applicable to the facts as presented here, resort must be had to subdivision 11 of section 2481 of the Code, in search of a power authorizing a solution of the difficulty. Legislative wisdom has there furnished the way to escape from it. This court is there clothed with power, “with respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of this court, according to the course and practice of a court having, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute; and to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred.” The Court of Chancery formerly, and not the Supreme Court, would undoubtedly have power, in a like-case, to direct the legacy or fund to be paid into court, to be delivered over ultimately to any one who could establish a legal right to its possession. Therefore the decree herein' should contain such a provision. Thus the difficulty supposed to have been encountered in Matter of Lane, 20 N. Y. Supp. 78, did not really exist.


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    In the Matter of the Probate of the Will of John Otis, Deceased.

      (Surrogate’s Court, Essex County,

      Filed November, 1892.)
    1. Will—Undue influence.
    Undue influence, when relied upon to annul a testamentary provision, must be proved; it cannot be presumed. It need not necessarily be proved by direct evidence, but, if not, then such circumstances must, be proved from which that conclusion logically and irresistibly follows.
    2. Same—Testamentary capacity.
    Incapacity to make a will cannot be inferred, alone, from advanced years, poor health or a weak mind.
    Prohate of will.
    A. K. Dudley, for proponents; F. A. Smith, for contestants.
   McLaughlin, S.

John Otis died on the 10th of March,. 1891, having on the 1st of April, the year previous, made and published his last will and testament, which is now offered for probate, and the validity of which is challenged by his son, John W. Otis, upon the ground, mainly, that it was obtained,, and the execution thereof procured, by fraud, circumvention and undue influence brought to bear against and upon the testator by Sara D. Bruce, or some other person or persons unknown to the contestant, and also upon the further ground that the testator, at the time of the execution of the will, did not possess sufficient testamentary capacity to make a will. Other formal objections were made to its probate, but upon the hearing the evidence was directed mainly, if not entirely, to the question, of undue influence and want of capacity, and upon the argument the same course was adopted by the learned counsel for the contestant. The will was drawn at the house of the deceased, in Elizabethtown, by Milo C. Perry, an attorney of high standing and character. Mr. Perry was also one of the witnesses to the will. The day previous to its execution the testator sent for Mr. Perry, with whom, as we may infer from the-evidence, he was on very friendly terms. Mr. Perry, in answer to the summons, went to the house of the- deceased. They were closeted toglher for some time, no other person being present, and the deceased then gave him “instructions as to how he wanted his will drawn.” Mr. Perry, after receiving such instructions, repaired to his office, and prepared a draft of the "will, and on the following day returned to the house of the deceased, with whom he was again closeted for some time, during-which time the will was read to the deceased by Mr. Perry, and the deceased read it himself. The will was then signed by the deceased, and witnessed by' Mr. Perry and one Wilbur H. Brownson. All of the statutory requirements as to the execution and publication of the will were closely followed and carefully observed. Therefore, the questions presented are, whether undue influence was used in procuring the testator to make the will, and also whether the testator had sufficient testamentary capacity to make a will.

The contestant’s counsel very ingeniously and strenuously urged the argument that the testator, being aged and infirm, was unfairly, so far as the contestant was concerned, and improperly, influenced in making the will; but the position of the learned counsel in this respect is not at all sustained by the proof. He utterly failed to call the attention of the surrogate to any evidence which would justify such a conclusion. The court of last resort in this State has declared that, to avoid a will on the ground of undue influence, “it must be made to appear that it was obtained by means of influence amounting to moral coercion, destroying free agency, or by importunity which could not be resisted, so that the testator was constrained to do that which was against his actual will, but which he was unable to refuse, or too weak to resist.” Brick v. Brick, 66 N. Y. 144, 149. “It must not be the promptings - of affection, the desire of gratifying the wishes of another, the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive wan tantamount to force or fear.” Society v. Loveridge, 70 N. Y. 387, 394; Jarm. Wills, 36, 37; Gardner v. Gardner, 34 N. Y. 155. Undue influence, when relied upon to annul a testamentary disposition of property, is in one sense a fraud, and, as such, it must be proved. It cannot be presumed. It need not necessarily be proved by direct evidence, but, if not, then such circumstances, at least, must be proved from which that conclusion logically and irresistibly follows, flatter of Smith, 95 N. Y. 516; Seguine v. Seguine, 4 Abb. Ct. App. Dec. 191. Applying to this case the rule laid down in the authorities above referred to-, there is, as it seems to me, a total failure of proof showing, or tending to show, undue influence upon the testator. The will, then, must be admitted to probate, unless the evidence shows that the testator did not at the time possess sufficient testamentary capacity to make a will. What evidence is there from which the conclusion could be reached that he did not possess that capacity? After the most careful consideration 1 have failed to discover any.

There is no standard of mental capacity which it is necessary for a person to possess to enable him to malee a disposition of his property by will. All that} is required is that the testator have sufficient intelligence and mental power to understand what he is doing, and the legal effect of the instrument he is making. If he possess such intelligence, he may bestow his bounty as he likes, even if the disposition he makes of his property may appear, and in fact be, unjust and inequitable. The law gives to every person in other respects competent to make a will the right to make whatever disposition of his property he chooses, however absurd or unjust. It is true that the testator was at the time seventy-eight years of age, but there is no presumption against his capacity to make a null because at the time it was executed he was advanced in years. Indeed, incapacity to make a will cannot be inferred, alone, from advanced years, poor health or a weak-mind. Horn v. Pullman, 72 N. Y. 269; In re Gray’s Will, 5 N. Y. Supp. 464, 24 St. Rep. 345. But, notwithstanding the age of the deceased at the time of the execution of the will, he possessed his usual intelligence and mental powers. The evidence, including the will, shows that he comprehended fully tire situation. He sought by his will to provide for the support of his aged wife, giving her for that purpose, if need be, his entire property, in value about $1,000, and if, after her death, anything was left, it passed to the unmarried daughters. The will does not seem to be unjust, unnatural, or, under the circumstances, even inequitable. Several motions were made by the proponents, at the close of the evidence, to strike ■out certain testimony, which motions were reserved by consent until the final disposition of the case, but the foregoing views render it unnecessary to pass upon the several motions reserved, for the reason that, admitting all of the testimony offered, I think the will should be admitted to probate, and an order can, be entered to that effect.


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    In the Matter of the Probate of the Will of William Porter, Deceased.

      (Surrogate’s Court, Essex County,

      Filed November, 1892.)
    Will—Probate.
    A will signed by a cross-mark cannot be admitted to probate where . only one witness, who did not see the mark made, is produced, the other having died, unless other evidence is produced showing that the deceased actually made the mark.

      Probate of will.
    The will in question was signed by a cross-mark. Only one attesting witness was produced at the hearing, the other having died.
    George W. Watkins, for proponent.
   McLaughlin, S.

Following the decision in Re Reynolds, 4 Dem. 68, I think probate must be denied. “Before a written will is admitted to probate, two-, at least, of the subscribing witnesses must be produced and examined, if so many are within the State, competent and able to testify.” Section 2618, Code Civ. Pro. Provisions is made for the 'proof of a will where one of the witnesses is unable to testify, by reason of death or otherwise, by proving the handwriting of the absent witness and the handwriting of the testator. Section 2620, Code Civ. Pro.,, provides that, “if a subscribing witness, whose testimony is required, is dead, the will may nevertheless be established upon proof of the handwriting o-f the testator and of the subscribing witnesses, and also of such other circumstances as will be sufficient to prove the will upon the trial of an action.” There is no proof of the handwriting of the deceased. Such proof must be given. It is a positive requirement of the statute where a will is sought to be proved by the testimony of one of the subscribing witnesses. Proof of this character can only be furnished by some person possessing knowledge of the general form and characteristics of the writing of the deceased person which enables the witness to identify it and distinguish it from the signature and writing of another. The only evidence produced is the testimony of one of the subscribing witnesses, and it falls far short of this requirement. Indeed, it is hard to see how any evidence could be furnished wdiich would enable one to distinguish a cross mark from a similar mark made by another person. It is difficult to see how any will, under the provisions of the statute above quoted, could be admitted to probate where the deceased signed by a cross mark, and only one of the subscribing witnesses is produced, and that witness did not see the mark made. The difficulty would undoubtedly be obviated if other, evidence could be produced, showing that the deceased actually made this mark. The provision of the statute, though seemingly working injustice in this case, is a wise one, and must be enforced. Probate refused.


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    In the Matter of Proving the Last Will of Carl Sohn, Deceased.

      (Surrogate’s Court, Herkimer County,

      Filed January 8, 1891.)
    Will—Construction.
    By testator’s will he gave his property to his wife “to have full control of all my real and personal estate during her natural life or so long as she may remain my widow, but if she should remarry her control and interest in my property is to cease and shall pass to the heirs hereinafter named,” and provided that “in the event of any of the above named heirs previous to the death or remarriage of my wife, their share of my estate shall be inherited by those remaining whose names appear above, and in no event shall my daughter, Mary Sohn, have any portion or share in my personal or real property.” Held, that testator did not die intestate as to any portion of his property ; that the legal effect of the will was to give an estate for life to the widow, liable to be terminated by her marriage, and that upon her death or remarriage the property passes absolutely to the heirs named, subject to the contingency specified in the will.
    Probate of will.'
    Mary Sohn, a daughter of the testator, filed objections to the probate of his will, but upon the hearing withdrew the objections to the probate, but demanded that the will be construed to be an effectual disposition of the real and personal property of the testator only for the life of Caroline Sohn, testator’s wife; that only a life estate is created by the will, and that as to the remainder the deceased died intestate.
    The will, omitting the formal part, is as follows: “I give, devise and bequeath to my wife, Caroline Sohn, to have full control of all my real and personal estate during her natural life or so long as she may remain my widow; but if she should remarry, her control and interest in my property is to cease and shall pass to the heirs hereinafter named, viz.: Charles F. Sohn, George W. Sohn, Louisa Pugh, wife of William Pugh, Dora Sohn, Lena Sohn, Leonard Sohn, my grandson, son of Sophia Sohn, deceased, all the above named children and grandchild to share and share alike. In the event of the death of any of the above named heirs previous to the death or remarriage of my wife, Caroline, their share of my estate shall be inherited by those remaining whose names appear above, and in no event shall my daughter, Mary Sohn, have any portion or share in my personal or real property.”
    William C. Prescott, for proponent; Henry F. & James Coupe, for contestant.
   Sheldon, S.

The intention of Carl Sohn that his daughter Mary should not inherit any of his real estate or share in his personal property after his death cannot be doubted, for, not content with leaving her name out of the list of the recipients of his property, he added his emphatic declaration to that effect in the concluding clause of his will. It cannot be supposed, therefore, that he intended to die intestate as to any of his property. All parties agree that the decedent by this will has given his real and personal property to his wife for life,but her life estate is subject to be defeated by her remarriage. The contestant says the only further provision is contained in the literal reading of the words “but if she should remarry her control and interest in my property is to cease and shall pass to the heirs hereinafter named, viz.,” that is the life estate of Caroline Sohn should, upon her marriag’e pass as an estate per autre vie to the “heirs hereinafter named,” and of course terminate upon her death, thereby making an intestacy as to the remainder; as according to such construction there is only a life estate disposed of by the will.

But such construction leaves meaningless the provision made for a case where one or more of the remaindermen should die before the termination of the life estate; for I think it must be assumed that the testator by the words “their share of my estate” refers to the share given them by this will, which, upon the construction of the contestant, would be nothing prior to the death or remarriage of Caroline Sohn. I think the various provisions are harmonized and the clear intention of the testator expressed and made effectual by supplying the words “or die” after the word “remarry,” and the word “it” after “and” and before “shall pass,” so that the clause will real, “but if she should remarry or die her control and interest in my property is to cease and it shall pass to the heirs hereinafter named.” The two events, death or remarriage of the widow, are coupled in the will in carving out the first estate; they are coupled also in providing for the event of the death of one or more of the remaindermen previous to the termination of the life estate, and there can he no doubt but that it was by mere inadvertence that the two events were not coupled in the clause which specifies who-' should receive the property when it should pass from the first taker.

It seems to me a very narrow, technical and unnatural eonstniction to suppose that the testator intended to give to the persons named in the second clause nothing except in the event-of the remarriage of his widow, and in that case only the enjoyment of the property divided among six takers for the remainder of her life, leaving intestacy as to the fee.

In the opinion of the court by Finch, J., in Phillips et al. v. Davies et al., 92 N. Y. 204, is found a statement of the rule of construction which supports the view which I have concluded must he taken of this will. The language of the opinion is as follows: “If such was the real meaning and intention of the testatrix, if an examination of the whole will forces that conviction, if its plain and definite purposes are endangered by. inapt or inaccurate modes of expression, and we are sure that we know what the testatrix meant, we have a right, and it is our duty, to subordinate the language to the intention. In such a case the court may reject words and limitations, supply them or transpose them to get at the correct meaning,” citing Pond v. Bergh, 10 Paige, 140; Drake v. Pell, 3 Edw. 251; Mason v. Jones, 2 Barb. 229.

The same rule is stated in Riker v. Cromwell, 7 St. Rep. 316; Roe v. Vingut, 17 id. 124, 117 N. Y. 204, 27 St. Rep. 238; Vanderpoel v. Loew, 7 St. Rep. 304; Austin v. Oakes, 15 id. 949 ; Holt v. Jex, 16 id. 270.

An estate may undoubtedly pass by implication. Jackson v. Schauber, 7 Cow. 195; Willis v. Lucas, 1 P. Wms. 472.

The law prefers a construction of a will which will prevent a partial intestacy to one which will permit it. Vernon v. Vernon, 53 N. Y. 351; Thomas v. Snyder, 6 St. Rep. 592.

This rule of construction is especially applicable to a case like the present, where the testator has in his will declared a purpose which a partial intestacy would thwart.

I am therefore of the opinion that the legal effect of the disputed provisions and the true construction is that the will gives the estate for life to the widow, which is liable to be terminated by her marriage, and that upon her death or remarriage the property passes absolutely to Charles E. Sohn, George W. Sohn, Louisa Pugh, wife of William Pugh, Dora Sohn, Lena Sohn, and Leonard Sohn, son of Sophia Sohn, in equal shares, subject, however, to the contingency specified and provided for in the will.

A decree should be prepared in accordance with the foregoing opinion.


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    In the Matter of the Application of Josephine B. Burdick, Administratrix, for disposition of the real property of decedent for the payment of debts.

      (Surrogate’s Court, Herkimer County,

      Filed July 23, 1891.)
    Executors and administrators—Sale of real estate—Limitation.
    In 1882 decedent gave a note for $1,000, payable in one year, and died in 1887. Letters of administration were granted December 19, 1887, and the claim upon the note was presented and allowed, and a payment made thereon on the final accounting in 1890, the personalty being insufficient to pay the debts. In a proceeding for distribution of a surplus arising from a foreclosure sale of the realty, held, that the claim was barred by the statute of limitations.
    (Church v. Olendorf, 49 Hun, 440, 19 St. Rep. 700, followed.)
    On April 1, 1882, Byron L. Huntley made, executed and delivered his note as follows:
    “$1,000. West Winfield, April 1, 1882.
    “For value received I promise to pay J. Frank Huntley or hearer, one thousand dollars with use one year from date:
    “Byeon L. Huntley.”
    The note was transferred by Huntley to, and is now the property of Esther A. Bentley. On May 1, 1887, Byron L. Huntley died intestate, leaving a widow and several minor children.
    On December 18, 3887, letters of administration were issued to Josephine B. Huntley, the widow of the intestate, and Vose W. Palmer. The administrators advertised for claims against the estate of decedent for six months, commencing Hovember 29, 1888. On the 24th day of June, 1889, Vose W. Palmer, one of the administrators, hied a petition for a final settlement of the accounts of the administrators, and such accounting was thereafter had, the account having been hied, Hovember 6,1890, and a decree settling the accounts of the administrators was hied and entered in the surrogate’s office on that day. By the account and decree made thereon it appears that the administrators received in assets the sum of $980; that claims of creditors had been presented and allowed, including the claim of Esther A. Bentley, to the amount of $1,850.09; and that there was $241.73 in their hands which by said decree was ordered paid to said creditors ratably.
    This proceeding for the disposition of the real property of the deceased for the payment of debts was commenced Hovemher 30, 3890, by the administrators, by filing a petition in this court, which alleged, among other things, that the deceased was the owner in his lifetime of certain real estate upon which was a mortgage which, subsequent to his death, was foreclosed; and " a surplus arising therefrom amounting to $1,101.41, paid to- the county treasurer of this county; that the debts of 'decedent amounted to $1,608.36, exclusive of interest, and that the personal property of decedent was insufficient to pay his debts. That the decedent left a widow, one of the petitioners, and three minor children, his heirs, named Lee Huntley, Adell Huntley and Estella 'Huntley. Lipón the hearing for the proof of claims in this proceeding, Esther A. Bentley appeared, and upon offering proof of her claim the special guardian of the infants, heirs, filed and interposed an answer pleading the statute of limitations, viz.: “That the cause of action and claim now presented as aforesaid arose and accrued more than six years before-the commencement of these proceedings.” Proof was given of the making and ownership of the note, that it had been presented to the administrators and admitted by them to be a valid claim, and that- upon the final accounting they had paid upon the note $232.29.
    Charles D. Thomas for creditor Esther A. Bendley; A. B.. Steele, special guardian, for heirs.
   Sheldon, S.

The only question in this case is whether the-right to the relief sought- by the creditor in this proceeding is barred by the statute of limitations.

The statute of limitations affects only the remedy. Kincaid v. Richardson, 25 Hun, 237; Rogers v. Murdock, 45 id. 30, 9 St. Rep. 660; Rose v. Henry, 37 Hun, 397; Johnson v. A. & S. R. R. Co., 54 N. Y. 416.

In the cases of Kincaid v. Richardson and Rose v. Henry it is held that the statute of limitations only affects the remedy by action, and that execution may issue on a judgment, although an action thereon would be. barred by the statute. It is also-held in Rose v. Henry that statutes of limitation must be strictly construed, and it would see-m to be the duty of the court to save the claim from the bar of the statute, unless it appears that the clear and necessary construction of the various provisions applicable forbids. Section 352 of the Code of Civil Procedure provides that an action upon a contract obligation or liability, or an action to recover upon a liability created by statute, must be brought within six years, and “special proceeding” may be read for action in the same provision. Section 415 of the Code of Civil Procedure provides that “the periods of limitation prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defense or otherwise as the case requires, to the time when the claim to that relief is actually interposed by the party as a plaintiff or defendant in the particular action or proceeding.”

In this ease a right to maintain an action (not a special proceeding) arose April 4, 1883, against the decedent, and had he lived that right of action would have existed six full years and have been as perfect the last day of the six years as the first. Huntley died May 1, 1887, and personal representatives were appointed who took title to his personal property and who were liable to be sued in the place of decedent upon the cause of' action against him. The right to that relief was based simply on the fact that Huntley had not performed what he had contracted to do; and the relief to be sought was the judgment of the court that the plaintiff recover the sum which Huntley had contracted to pay. It did not become necessary in this case for the creditor to obtain a judgment against the administrators in order to exhaust the personal property of decedent in payment of his claim, for the claim on presentation was admitted, and the creditor’s share of the personal estate afterwards paid to her in due course of administration.

The statute of limitations commenced running against an action on April 4, 1883, because an action might then have been brought.

When did the statute of limitation commence running against this special proceeding? When did the right to relief by this proceeding accrue to the creditor ? In considering the question of when the “right to relief” by this special proceeding accrued the nature of the relief may vTell be examined.

The relief is equitable in its nature, and very comprehensive.

It comprises the taking and sale under the direction of the court of all the real estate of which the decedent was seized at his death, whether in the hands of his heirs or devisees or their grantees, and the equitable distribution of the money derived from such sale in payment of the claims existing against the decedent at the time of and which survived his death, and among all parties equitably entitled thereto.

The proceeding is against the land. The necessary parties are the creditors, all persons interested in the land, and the personal representatives of the decedent.

The facts which must exist, and be established in order to entitle a party to the relief, are the death, the appointment of personal representatives, the existence of claims against decedent valid at the time of his death to an amount that tire personal assets applicable will be insufficient to pay, and “that all the personal property of the decedent; which could have been applied to payment of the decedents debts and funeral expenses has been so applied, or that the executors or administrators have proceedéd with reasonable diligence in converting the personal property into money and applying it to the payment of those debts and funeral expenses, and that it is insufficient for the payment of the same, and that the decedent was the owner at the time of his death of the land sought to be taken. The existence of these facts gives the right to relief. Can the right to relief be said to have accrued until these facts all exist ? Did the statute of limitations commence running as against this right of relief until these facts existed ?

In Mead v. Jenkins, 95 N. Y. 31, the facts were as follows: The claim was due February 11, 1871, and the intestate died March 19, 1871. Letters of administration were granted Aoril 14, 1871. The proceedings in question were commenced February 6, 1880. The administrators accounted on the 17th day of October, 1877. The court, upon these facts, held as follows: “The proceedings here could not be commenced until after the accounting, and hence the statute did not commence to run until the accounting in 1877. The proceeding was commenced February 6, 1880, about two years after the accounting, ‘and the statute had not then run so as to constitute a bar.” The case of Merritt v. Reid, 13 W. Dig. 453, was an action on a note for six months, dated August 7, 1872. The action was commenced October 14, 1879. The note was made by a corporation called '“Manhattan Sewing Machine Company,” and the defendant was a stockholder of that company. By the provisions of the statute-a stockholder could not be made liable for a debt of the company unless an action to recover the debt should be brought against the company within a year from the time when the debt became due, and judgment recovered in such action and execution issued upon such judgment returned unsatisfied. Execution was returned unsatisfied October 23, 1873, upon the judgment against the company.

The defense was the six years statute of limitation, and in the trial court it was sustained. The court, on appeal, held that, as the return of execution unsatisfied against the corporation was a prerequisite to an action against a stockholder, the right of action against him did not accrue and the statute did not commence to run until the return of the execution, and that the action was brought in time. It would follow from this case that if the claim was a valid and enforceable one at the time when the new right of relief arose upon it, the new right of relief would not be lost at the expiration of six years from the time when the note was due.

The same dictrine is stated in Duckworth v. Roach, 81 N. Y. 50. Upon the foregoing considerations and the authority of Mead v. Jenkins, I should be of opinion that the claim of Esther A. Bentley is not barred by any statute of limitation, were it not for the case of Church v. Olendorf, reported in 19 St. Rep. 700; s. c., 49 Hun, 440, which was decided in thns department in 1888. The case of Mead v. Jenkins, 95 N. Y. 31, is cited and recognized as .authority for the proposition: “As the law stood prior to September 1, 1880, the respondent could not have commenced such a proceeding as this until after the executor or administrator had rendered his account, and thus such a proceeding was stayed by statutory prohibition until September 1, 1880.”

It seems difficult to distinguish as to statutory prohibition between the requirement that an accounting shall be had before this proceeding be commenced, and the requirement as the law stands now that letters of administration shall have been granted •and the further requirement that the personal estate shall have-been applied to the payment of the claims, or that in effect:

It may be claimed that the case of the issuing of letters as a. prerequisite differs from the case of an accounting, because the creditor can himself apply for letters; but so could the creditor as the law stood prior to 1880 apply after eighteen months for ■an accounting, and in the case of Mead v. Jenkins the accounting Avas more than six years and six months after letters were issued. It seems clear, therefore, that the question of whether or not the running of the statute of limitation is suspended by statutory prohibition is not to be determined by the diligence or laches, or in truth any action of the creditor. Why, then, should the running of the statute in Olendorf’s case have been suspended until September 1, 1880, and not after that and until letters of administration were issued ? Were it not for the-decision in the Olendorf case it would seem to me more reasonable to say, in vieAv of section 415, that the running, of the statute is not suspended, but that the statute as against this relief and remedy does not commence to ran until at least after letters are issued. But, controlled as I am by the authority of the Olendorf case, I must hold that the claim of Esther A. Bentley is barred in this proceeding by the statute of limitations.