text:
      In re Turfler’s Estate.

      (Surrogate’s Court, Rockland County,

      Filed May 16, 1892.)
    1. Will—Construction.
    A testator gave to Ms wife the income of all his property, both real and personal, “as long as she lives, for her benefit and support,” but out of the income she was to pay all necessary repairs upon the buildings, and all taxes, etc. The only authority the executors were to exercise during the wife’s life was to pay debts and funeral expenses. After her death they were directed to sell the property, and pay the legacies enumerated in the will. Testator also directed that his two sons should not .come into possession of their property until after his wife’s death, unless she consented thereto in writing. Held, that the widow took a life estate under . the will, and no title to testator’s property or control thereof during the wife’s life was given to the executors except to pay his debts and funeral expenses.
    2. Executors’ accounting—Commissions.
    In such case the executors were not entitled to include in their
    account the income of the estate collected by them during the widow’s life under an arrangement with her, nor the disbursements thereout for taxes during her life, nor commissions on such collection.
    4. Same.
    The compensation for such collection was a matter to be adjusted between the executor, as an individual, and the personal representative of the widow.
    ,4. Same.
    The persons interested in the estate agreed in writing with the executors that the real estate should not be sold; that for the purpose of fixing the executors’ compensation the same should be treated as of a certain value; and that the executors.would accept a certain agreed compensation. Held, that although the real estate was not sold, the beneficiaries and executor were mutually estopped, under this agreement—the former from depriving the executor of his commissions thereunder, and the latter from claiming more than the agreed compensation, which was less than the statutory allowance.
    5. Same.
    An executor’s commissions should not be included in his account. Commissions are allowed only by order of the Court, and on settlement of the account.

      6. Compensation to bookkeeper—Adjustment.
    Under the circumstances of this estate, a credit of $950 for the services of a bookkeeper was proper, but the same should be adjusted between the income estate of the widow and the estate held by the executors.
    7. Same.
    An item of $100 for the services of a.bookkeeper in preparing the executors’ account should be excluded from the account and be disposed of upon the taxation of the costs of accounting.
    Settlement oí the - accounts of Jacob C. Turfler and George E. Turfler, executors of the will of George C. Turfler, deceased.'
    Scott & Upson, for executors; T. C. Cronin and I. Newton Williams, for contestants.
   Weiant, S.

The testator, George C. Turfler, died, leaving a last will and testament which ivas admitted to probate in this court, and letters testamentary granted thereon to Jacob C. Turfler and George F. Turfler, the accounting parties herein, on or about May 17, 1875. This last will and testament contained the following provisions:

‘"‘First. My will is that my executors hereinafter named shall páy all my just and lawful debts, including funeral expenses "and physicians’ bills, as soon after my death as is practicable. Second. I give unto my beloved wire, Elizabeth, the income of all my property, both real and personal, as long as she lives, for her benefit and support; but out of the above income my wife, Elizabeth, must pay all necessary repairs upon the buildings, and all taxes, such as Croton, government, State, county and city, besides insurance, etc.; and after the death of my said wife, Elizabeth, my will is that all the property of -which I die possessed or seized (except as hereinafter stated) shall be divided' amongst my children and legatees as follows, viz.: * * ' * Third. My will further is that my executors hereinafter iiamed shall pay amto the following named persons the legacies I herein bequeath -within one year after the death of my beloved wife, Elizabeth, unto,” etc. Here follow the names of several legatees to whom specific sums are bequeathed, and then the testator further disposes of his estate in these words: “My will further is that my executors hereinafter named shall sell all my property, both real and personal (except such property as I hereinafter bequeath unto my two sons Francis A. Turfler and Jacob C. Turfler), and upon the sale of any of my real estate I do hereby authorize my executors to give good and sufficient deed- or deeds to the purchaser or purchasers thereof for the conveyance thereof. * * * The sale of the above property shall not take place until after the death of my wife, Elizabeth, and -within two years thereafter.” Then follow certain devises and provisions in relation to the testator’s three sons, and the testator then adds: “My will is, and I wish to be understood, that my -sons Francis A. Turfler and Jacob C. Turfler shall not come into possession of their property until after the death of my wife, Elizabeth, unless she consents thereto in writing.” “Eighth. After paying the legacies above described, my will further is that my executors pay all my just debts, and after that to dispose of the balance as follows.” Provisions making absolute disposition of such balance of the testator’s estate, and appointing the accounting parties herein executors of his will, then follow.

These executors caused an inventory of the personal estate of the testator to be made and filed August 2, 1875, showing an aggregate of personal assets of $42,006.16. From the accounts filed herein, and the summary statement thereof, it appears that the executors have charged themselves as having received the aggregate sum or amount of $166,569.20, and credited themselves as having paid out the sum of $161,181.83, leaving a balance in their hands of $2,115.40. Of the moneys or properties so charged to themselves as receipts, between $110,000 and $112,000 appear to have been rentals of the real estate devised by the testator, and some $5,000 to $8,000 as income from other properties and sources. Of the sum of $161,181.83 the amount of $1,962.20 appears to have been paid for burial expenses and a monument for the testator’s grave, the sum of $407.79 for his debts, while about $72,000 was paid to the widow as income, about $9,000 for repairs of buildings, about $25,500 for taxes, about $1,300 for insurance, for commissions to agents for caring .for and renting of houses about $900, and for services of a bookkeeper $950. The contestant objects to the allowance of the $950 for compensation to the bookkeeper, and the further-sum of $100 for the same purpose; to the item of $1,250 for services of attorney and counsel not heretofore paid; and to the. items aggregating $1,455, retained as commissions by the executors ; and insists that-the accounts of the executors-, so far as the same relate to or include the receipt and disbursement of moneys-.received by them for the rents of the real estate and for the payments made in respect thereto, that the same should form no part of their account as executors; that no commissions are therefore legally allowable thereon; and that no part of the expenses of managing the estate during the widow’s lifetime is allowable on this accounting.

, Thus the main question submitted for determination is whether or not the will devolved upon these executors the administration of the testator’s estate during the lifetime of the testator’s -widow. After careful consideration, I have reached the-conclusion that it was the intention of the testator to give his-widow a life interest or estate in his property, and to vest her with the possession and control thereof, and during her lifetimefo give no title thereto or control thereof to his executors, except-for the payment of his debts and burial expenses. The intention of the testator is controlling where he contravenes no rule of law, and to give effect to such intention is the primary rule-of construction applied by courts in construing wills. Redf. Law & Pr. Sur. Cts. 251. The testator, as we have seen, gives to his widow “the income” of all his property, “both real and personal, as long as she lives, for her benefit and support.” As he gives to no one else any authority or control over his estate, not even his executors, by any provision of the will, I think the necessary implication arises that his widow, who was to receive-the benefits accruing therefrom for her lifetime, must have been regarded by him as the one who should have the custody and control of such property, in order that such income could . be realized and received. But there are other provisions or the will that indicate that the widow, and not the executors, was to be the manager and possessor of the testator’s property during her lifetime. He adds to the bequest and devise of “the income” to her these words: “But out of the income my wife,.. Elizabeth, must pay all necessary repairs upon the buildings,, and all taxes, besides insurance.” The obligation to make these payments put upon her necessarily implies that upon her is. devolved the duty of also caring for and managing the properties. And clearly these specific provisions as to his widow’s right to receive the income, and the duty to maintain the property in due condition, and save it from the ordinary burdens, which a life tenant usually discharges, in the absence of any .authority, power, or trust in words conferred upon the executors, indicate that the executors, as such, were in no wise to act in that behalf during the widow’s lifetime. Even the power of .sale conferred upon the executors is in specific language restricted and prohibited until after the death of the widow. It thus appears that the testator intended that even this limited power given his executors should not be exercised during his-■widow’s lifetime, confirming the view that it was the testator’s purpose to make her the virtual owner, controller, and possessor of his property during her lifetime, free from the interference of the executors, or any of those who were made objects of his. bounty, and postponing all their rights and the enjoyment of' their estates until after her death.

A further circumstance indicating that the testator intended that his widow alone should have the benefits of his estate, and manage and possess the same, is furnished from the explicit language of his will, wherein he says: . ■

. “My will is, and I wish to be understood, that my sons Francis A. Turfler and Jacob 0. Turfler shall not come into possession. of their property until after the death of my wife, Elizabeth, unless she consents thereto in writing.”

The word “income,” as used by the testator, clearly means all benefit and profit whatsoever coming from the property, whether from use or otherwise; and the necessary implication follows that the widow was given the right to use or occupy the same, or otherwise obtain income or profit or benefit therefrom. A gift to a widow of the rents and income of real estate for life creates an estate in the realty itself, and, if no duties are charged upon the executors with respect to their collection or application, no estate or trust is created in them in respect thereto. Macy v. Sawyer, 66 How. Pr. 381. This is not a case like Marx v. McGlynn, 4 Redf. Sur. 455, cited by the counsel for the executors. There the testator’s will read: “It is my will that my executor pay A. B. all the income derived from my estate after paying the necessary expenses accruing thereon.” Hor is it similar to Betts v. Betts, 4 Abb. N. C. 317, where the testator directed that the income," rents, etc., be paid by his executors to a beneficiary. Hor to Tobias v. Ketchum, 32 N. Y. 319, where the executors were clothed with full power to rent, lease, repair and insure. In j?e Blauvelt, 30 N. E. Rep. 194, the Court of Appeals recently decided that where a widow was given a life estate in the testator’s property, and with a power of sale, the executrices, as such, were not entitled to receive the rents and income of the property; that they had no power over or right in the possession of the property in its original form or of the proceeds after the sale thereof, or to compel an accounting therefor; that the executrices, as such, had no interest in the matter, and that they were not accountable or responsible for the income or the principal estate during the widow’s lifetime. To entitle an executor to receive and hold property under the will of his testator and receive compensation for managing or administering the same, it must appear affirmatively from the instrument and the rules of law applicable to the construction of the same that such right or power is conferred upon him. The only pro-. vision in this will that is to be given effect by the executors during the lifetime of the widow is the one directing the payment of the funeral expenses and debts. 27othing appears that requires or empowers them to receive the rents and profits, or during such times imposes upon them any trust. “A devise of lands to executors, or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees, but the trust shall be valid as a power, and the lands shall descend to> the heirs, or pass to the devisees of the testator subject to the execution of the power. 1 Rev. St. p. 729, sec. 56. Thus it appears that the lands of this testator passed to his widow for her lifetime, and the title immediately became vested and remained in her until her death, and no one but her was entitled to the possession of the same, or could lawfully receive the rents or profits there.from. Clift v. Moses, 116 N. Y. 144-152, 22 N. E. Rep. 393. “There does not appear to be any question but that an lieir-atlaw or a devisee under a will, where there is no charge upon the real estate, or where the real estate is not converted into personalty, is entitled, as against the personal representatives or creditors of the deceased, to receive and retain as his own the rents and profits arising from the realty until the same is sold for the payment of debts.” Clift v. Moses, supra, and cases there cited.

The counsel for the executors urge that the evidence shows that the parties interested in the estate acquiesced in the executors receiving the rents and income of the estate, and the payment therefrom of the necessary sums to discharge the current expenses imposed upon the properties, and the balance thereof to the widow; and that thereby a practical construction was given to the wd.ll as -imposing a trust upon the executors appertaining to the administration of the estate. Evidence was adduced tending to sustain that view, but it is insufficient to establish that proposition; and, in any event, I am of the opinion that on this accounting the provisions of the will and the rules of law applicable to the construction of the same preclude the -consideration of a practical construction that is not borne out from, and in accord "with, its provisions. I doubt very much whether beneficiaries under a will can by their conduct place a construction upon a will and give to the same a different meaning from what its terms import and the law supplies, so as to make the same obligatory upon a court called upon to judicially administer the estate. Upon taking the testimony having relation to this question the court reserved the consideration of the accuracy of its rulings, and now determines that the same should stand as the same appear. The purpose of this testimony waste establish an arrangement between the executors and the widow, under which they, as executors, were to collect and disburse the income of the estate given her by the testator’s will, and thus constitute the same an estate transaction, by virtue of .which they should entitle themselves, as executors, to incur the usual expenditures in behalf of the estate, and to claim and receive the usual statutory commissions of executors. Practically, the rulings on these questions make little or no difference .to those interested in this estate, for, if it be admitted that this -income was received and disbursed by them as executors, then it follows that the income fund to which the widow alone was entitled must bear all the expenses of the administration of the ■same, as also the commissions of the executors, and not the principal estate. But the personal transactions and communications between the executor and the widow, sought to be elicited .in his examination in' his own behalf, and claimed not to fall within the restrictive provisions of section 829 of the Code, were to be put in as evidence to establish a claim of the executor-for -such expenditures and commissions against this estate of the testator. The questions, therefore, called for incompetent testimony as hearsay, if offered for the purpose-of binding the estate of the testator; and as incompetent, under section 829 of the Code, if it were offered to bind the estate, or those interested in the same, of the widow, Elizabeth Turfler. The executor was testifying in his own behalf as against the contestant, a person, claiming and having an interest in both estates. Pope v. Allen, 90 N. Y. 298. The construction that has thus been given to the will of the testator, and which must be adopted and applied in the adjustment and settlement of the accounts of the executors herein, precludes from consideration as a part thereof all income from tire estate property as a part of the estate with which tire executors are chargeable, and which they were required to administer, and also all disbursements credited in the accounts .'as paid therefrom; and the decree herein to be entered should adjust the executors’ accounts with all such receipts and payments excluded.

In the Matter of Brown, 5 Dem. Sur. 223, it was held that, where one who is executor of a will sells the testator’s real property under a power conferred upon him by that instrument, personally, and not as executor, he should not include the proceeds ■of the sale in his official accounts; nor are the same chargeable with executorial commissions. The matter of the compensation .for the services of the executors in the management of the properties during the lifetime of the widow, the collections of the income, and the payments therefrom, it seems to me, constitute an individual transaction between the executor or executors performing such service and the widow, and is a matter to be adjusted between such executor or executors, as individuals, and the pe3*sonal representative of the estate of the widow. The power of attorney put in evidence as an exhibit shows that such management of the testator’s property during the lifetime of the widow was a matter between her and the executor, Jacob 0.; Turfler, individually, and not as executor, and is a strong circumstance indicating that this income was not received and disbursed by him as executor. The true basis for the compensation of the commissions of the executoi’s is therefore the aggregate receipts and payments, excluding all income and disbursements therefrom, and to be computed at the statutory rates. Phoenix v. Livingston, 101 N. Y. 451-456, 5 N. E. Rep. 70. Of course, in speaking of excluding income and disbursements thereof, I have reference only to the income and payments therefrom from the death of the testator to the death of the widow.

There is, however, another question submitted for consideration. touching the compensation or commissions of the executors. They claim that they are entitled to commissions on the realty as if the same had been actually sold, and tire proceeds distributed in accordance with the provisions of the will. The will, as we have seen, provides that after the death of the widow the executors shall sell all the testator’s property, “real and personal, except,” etc., “and to convert all stock, bonds, and other personal property into money, the same to be divided by my executors as follows: the sale of the property not to take place until after tire death of the widow, and within two years thereafter.” This direction is specific and mandatory upon the executors, and, when considered and construed in connection with, the other items of the will providing for the distribution of the testator’s estate in accordance with his intention, upon the death of the widow, the same became personalty in contemplation of larv (Smith v. Buchanan, 5 Dem. Sur. 169, and cases there cited) ; and the executors would be entitled to commissions thereon in the event of a sale by them and a distribution of the proceeds (id.) ; but it seems not if the lands remained unsold (Phoenix v. Livingston, 101 N. Y. 451, 5 N. E. Rep. 70.) The lands not having been sold would, therefore, be decisive of the matter, were it not for the fact that by a certain instrument entered into on March 15, 1886, it was agreed by and between, the contestant and all parties interested in the estate, for reasons therein set forth, that the real estate should not be sold in pursuance of the provisions of the testator’s will, and that George. F. Turfler, Jacob 0. Turfler, the two executors, herein, and Francis A. Turfler, should thereafter manage said properties as trustees, and therein specifying the powers and prescribing their duties as such. It was provided by said agreement that the executors of the said George 0. Turfler. “may at any time after the said 1st day of June, 1886, submit their final-accounts in the Surrogate’s Court as such executors, and it shall be deemed a full and sufficient accounting on their part of and for all the said property herein referred to, and all income, rents and profits thereof, as of any time subsequent to the 1st day of June, 1886, if they submit upon such final accounting this instrument.” It was further thereby “agreed that the executors, shall be, and they hereby are, except for the purpose of such final accounting, released, discharged, and wholly exonerated from any further duty or obligation of any kind respecting the-said property from and after the said 1st day of June, 1886.” .“And for the purpose of fixing the statutory compensation of the said executors respecting the said property, it is further agreed that the said property may be valued upon such final accounting at the round sum of one hundred thousand dollars, and may, for the purposes of fixing such compensation, be taken in such accounting as if it were such sum in cash.” Under the-same date, and as a part of the above arrangement, the said executors executed an instrument whereby they agreed, as such executors, “to and with the heirs-at-law and devisees of said estate, to accept $1,000, or $500 to each, in full for all commissions as executors or trustees of said estate of G. O. Turfler which Ave may be entitled to, or coming to us and each of us, out-of the real estate OAvned by George C. Turfler at the time of his demise, and situated in the city and county of ¡New York; such sum, when paid, to be a full release of the heirs of said estate-for the said real estate or the commissions we might have earned from the sale of same under said will.” This arrangement seems clear and specific. It related solely to the real property, and left the remainder of the estate to be administered and disposed of by the executors in accordance with the terms of the will1 of the testator, and to account for the same, and to receive their commissions thereon in accordance with the usual practice, and at the rates prescribed by statute; and, so far as that portion of" the estate is adjusted and settled upon this accounting, the-executors’ commissions must 1 e computed and allowed accordingly.

A further question is presented, however, as to what, if any, commissions or compensation shall be awarded the executors for the disposition of the real estate. TUd executors carried out the provisions of the will by selling Ibis real property and ■distributing the proceeds thereof, it would have been entirely ■clear that they Avould have been entitled to their commissions thereon at the statutory rates. This has not been done. Pursuant to the above agreement, entered into, the real estate AVas not sold, and the executors do not account for the same, and have not, therefore, from a strictly legal standpoint, placed them,-selves in a, position to claim their commissions thereon according to the usual practice and legal requirements. The executors ■claim, however, even admitting that to be so, that the agreement entered into entitles them to the compensation therein agreed upon. Its terms are clear and explicit in favor of their claim, and it would be a gross injustice to them to permit the parties thereto and interested in the estate to now repudiate the same, :and send the parties out of court without compensation. It ;seems that a Surrogate’s Court has power to prevent this injustice. Paxton v. Brogan, 10 N. Y. Supp. 563. It is binding upon the parties, and can this court gire force and effect to the «ame ? I shall so hold. The writings, having been acted upon, •constitute an estoppel. They should not now, after the executors have relied and acted upon the same, and failed to sell the realty, and thus put themselves into the regular way to entitle themselves to demand their lawful commissions, be permitted to '.repudiate this agreement, and turn the executors aAvay without •compensation, upon a claim that the executors have not complied Avith the provisions of the will, and disposed of the proceeds of the sale thereof, so as, according to the usual practice and rules of law, to entitle them to demand their laAvful commissions. Ledyard v. Bull, 119 N. Y. 62, 23 N. E. Rep. 444; Singleton v. Smith, 2 N. Y. St. Rep. 173. Again, it seems to me that the agreement may be regarded as one where an interested party has accepted specific articles or pieces of property "in lieu of cash, in which instances the commissions are earned -and allowable. McAlpine v. Potter, 126 N. Y. 291, 27 N. E. Rep. 475; Code Civil Pro. sec. 2744; Phoenix v. Livingston, 101 N. Y. 451-456, 5 N. E. Rep. 70. If it be objected that, in order that this may be done, it is essential that the accounting party ■.should set forth and state the property in his accounts, and credit himself with payment over of the same, as if the cash had been actually received and paid over, I will permit the executors to so amend and state their accounts accordingly. That seems to be the proper rule. In re Selleck, 111 N. Y. 234, 19 N. E. Rep. 66.

For the reasons above given for bolding that the parties interested in the estate, and who entered into this agreement with the executors, are estopped from repudiating the same, I determine that the executors have waived and forfeited any further compensation than that fixed by such agreement, although it may be less than the statutory allowance would have been. In re Hopkins, 32 Hun, 618. The executors claim a full rate of compensation to each, on the ground that the personal estate of the testator exceeded $100,000, and contend that, for the purpose of fixing such valuation, the real estate must be regarded as personalty. When real estate is devised to executors in trust to use and distribute the proceeds, and such sale and distribution have been actually made, the proceeds thereof will be considered personal property; and if they bring up the estate to more than $100,000, then each executor will be entitled to the full commissions provided by Code Civil Pro., section 2736. Smith v. Buchanan, 5 Dem. Sur. 169. That seems to be a well-considered .■authority, and I am of the opinion that the rale there laid down is correct. That being so, each executor is entitled to full commissions on so much of the assets1 as exceed $100,000, unless he has lost such right by failure to convert the real estate by an actual sale. The agreement as to the commissions precludes the ■executors from more than they have stipulated for on the $100,-■000 fixed as the value of the realty. Counsel may be heard further on this question on settlement of the decree.

The executors should restate their accounts so as to exclude the items therefrom retained for commissions. Commissions are allowed only by order of court, and on the settlement of the account. Those claiming them have no authority to appropriate sums to their own use, as commissions, until they are judicially allowed. Freeman v. Freeman, 4 Redf. Sur. 211; Whitney v. Phoenix, id. 180; Wheelwright v. Wheelwright, 2 Redf. Sur. 501; Wheelwright v. Rhoades, 28 Hun, 57; Carroll v. Hughes, 5 Redf. Sur. 337; In re Butler’s Estate (Surr.), 9 N. Y. Supp. 641; In re Willard’s Estate, id. 555-557.

As to the amount, of $950, claimed as a credit for the employment of a bookkeeper, I think the evidence is sufficient under the circumstances disclosed as to this estate and the administration thereof, to sustain the claim that it was proper and essential to employ a bookkeeper. There is no serious contention that the services were not worth the amount charged and paid. This, entire amount, however, cannot be charged to the principal estate, nor allowed the executors on this accounting. The services of the bookkeeper were rendered for the benefit of the income estate of the widow as well as the estate held by the executors, and a portion thereof should be paid by her or her estate. This sum should be apportioned according to the extent and value of the services rendered for each estate, respectively,, which may be done upon the settlement of the decree, at which time counsel may be heard thereon. The other item, of $100,. sought to be charged for services of this bookkeeper, must be' disposed of upon the taxation and adjustment of the-costs of this, proceeding, as such services were rendered in preparing the.* accounts rendered in this proceeding.

The stipulation entered into upon the hearing on April 8,, 1892, disposes of the $1,250 item for counsel and attorney’s charges, and the same may stand disposed of in accordance-therewith.

Let a decree be presented for settlement and entry in accordance with the conclusions above set forth, costs to each party to be adjusted and inserted in the decree, payable out of the estate.


source: Caselaw Access Project

author: Weiant, S.

license: Public Domain

text:
      In re Ver Varen’s Estate.

      (Surrogate’s Court, Rockland County,

      Filed April, 1892.)
    1. Executors and administrators—Business carried on by decedent
    AND ADMINISTRATOR.
    An administrator will not be allowed to deduct from the amount of the inventoried estate, on his accounting, the value of the chattels belonging to a milk business, on the ground that the same belonged to him, and not to the estate, when it appeared that decedent (administrator’s father) bought the milk route and property necessary to carry it on, and that the expenses of the sale of the property were charged to and paid out of the estate moneys by the administrator, and that it was upon a farm belonging to decedent and through the milk business that the father and son, by mutual family relations, without any definite fixing of rights, provided a livelihood and home for themselves.
    2. Same.
    Such administrator is chargeable with the proceeds of the sale of the “good will” of such milk business.
    3. Same—-Profits on sale of estate.
    An administrator cannot make profit out of the estate by purchasing articles at an auction sale of chattels of the estate and reselling them at a profit, and on his accounting will be chargeable with the profits so made.
    Settlement of accounts of Isaac Ver Valen, Jr., as administrator of the estate of Isaac Ver Valen, deceased.
    Abram A. Demarest, for administrator; Garrett Z. Snider, Arthur S. Tompkins and William T. B. Starms, for contestants.
   Weiant, S.

The estate of the deceased was inventoried at $910.50, and for this sum, less allowances for unavoidable losses, the contestants claim that the administrator should be charged on this accounting. The administrator contends that, in addition to the deductions for such losses, there should be deducted therefrom the value of all chattels and properties included in such inventory which constituted a part of the milk business, and were therein valued at $372, on the ground that the same were his individual property, and not a part of the estate. I think that the claim of the contestants must prevail. The evidence clearly shows these chattels and goods to have been' the property of the intestate. The administrator admits that his father, the intestate, bought the horses, wagons and cans in question and inventoried, and that he paid Mr. Maroney for the milk route $125 or $130. He testifies that he only made one payment on the milk route, and that was $20, to a Mrs. Partridge. He says his father made all the rest, and that most of these notes against the estate were given for borrowed money to buy this milk route or purchase the properties used therewith. He testified that he supposed that the milk route belonged to his father, because he had no papers showing it belonged to him. He inventoried this property as a part of the estate, making the usual affidavit thereto, but designated it as disputed. He paid the claim of Louis Biltz, of $38, against the estate, and this he testifies was a difference on a wagon trade, made before his father’s death, of a running gear of a milk wagon for another, which was the new one sold at the auction. This is one of the articles that he claims to have been his individual property. Further, the administrator in his accounts filed herein on October 26, 1891, charges himself with these articles, and swears to the amount accordingly without reservation or qualification. He some time subsequently, during the hearing, asked that his accounts might be amended, reducing the sum for which he should be charged to the extent of the value of these articles in question. The decision thereof was reserved, and now, in accordance with the facts, must be denied. The expenses of the sale of all this property were charged up by him to the estate, and paid out of the estate moneys. His verified accounts show this. It thus appears that all of this property appertaining to this milk business was acquired by the intestate, and that the administrator really believed and understood that he had not acqxiired any title to the same. Conceding, as he does, that it was all his father’s at one time, to sustain his claim he must have shown the acquisition of the property from his father in some form. This he has not done. All of the property, including the farm, belonged to the father, and it was upon this farm and through this milk business that the father and son, by mutual family relations, without any definite fixing of rights, provided a livelihood and home for themselves. I think that is the only interest this administrator had in this property and business.

The contestants also ask that the administrator should he charged with $150, the sum for which he sold the milk route to Wood; the sum of $50, realized by him over and above the price he paid for a wagon at the auction sale; the sum of $10, that he received over and above the price at which he purchased a horse at the auction sale; and, also, the sum of $17.50, being the difference between the price at which he inventoried and sold the one-half interest of a colt belonging to the estate. The facts, undisputed, are that the administrator did, after the auction sale of the inventoried property, sell the milk route, the right to serve customers, and the cans, to one Wood, for $200; that $50 of this price was retained to stand against tickets that the Ver Valens then had out in the hands of customers, and $25 was the value of the cans. The cans, as I understand, are already charged against the administrator’, and whatever that value is should be deducted from the $150. The wagon in question was purchased hy the administrator at the auction sale for $10, and subsequently sold, in about three or four months, to one Tuttle, for $55 or $60. The horse “Boll” he also purchased, for $165, and sold it within five or six weeks thereafter to George Lyeth for $175. The half interest in the black colt was inventoried at $12.50, and the colt was sold at the auction for $41, bought in hy the administrator, and subsequently sold by him for $60. IJnder the rules of law and equity applicable to' the rights and duties of trustees it seems clear that the administrator must account for these profits arising from the trust estate. Equitable as well as legal rules are applicable. Upson v. Badeau, 3 Bradf. Sur. 13. A trustee cannot make any profit to himself from a secret transaction, initiated while, the relation of trustee and cestui que trust exists. Green v. Green, 2 Redf. Sur. 408; Gardner v. Ogden, 22 N. Y. 327; Mitchell v. Reed, 61 N. Y. 123. The principle of the rule of equity which prohibits purchases by parties placed in a situation of trust or confidence is that no such person can be permitted to purchase an interest in property and hold it for Ms own benefit, where he has a duty to perform in relation to such property which is inconsistent, with the character of purchaser on his own account. Van Epps v. Van Epps, 9 Paige, 237, Hawley v. Cramer, 4 Cow. 717; Willink v. Vanderveer, 1 Barb. 599. This rule is recognized in Harrington v. Bank, 101 N. Y. 259-264, 4 N. E. Rep. 346. It is there stated to be a “well-established doctrine that a trustee cannot purchase or deal in the trust property in his own behalf, or for his own benefit, directly or indirectly. This is a rule of equity, and is not to be impaired or weakened.” In Mitchell v. Reed, supra, Judge Earl, writing the opinion, says, at page 126, speaking of the relations of partners:

“The functions, rights and duties of partners in a great measure comprehend both those of trustees and agents, and the general rules of law applicable to such characters are applicable to them. 27either partner can, in the business and affairs of the firm, clandestinely stipulate for a private advantage to himself. He can neither sell to nor buy from the firm at a concealed profit to himself. Every advantage which he can obtain in the business of the film must inure to the benefit of the firm. These principles are elementary, and are not contested.”

In Estate of Barlow, 15 N. Y. St. Rep. 721, it was held that the sale by the administrator of a deceased partner of his interest in the partnership property to the survivors, and the subsequent purchase by the administrator individually, is an unlawful transaction, whether or not the sale was in good faith. One executor or trustee can make no valid agreement to purchase or take the trust property at a fixed valuation from his co-executor or trustee without being liable for the profits, if any ■are made by the agreement. Case v. Abeel, 1 Paige, 393. An executor who compounds debts or buys in for less than is due ¿cannot take the benefit to himself. Van. Horne v. Fonda, 5 Johns. Ch. 388. Ho profit can be made by executors or administrators by increase of the estate. 3 Rev. St (5th Ed.) p. 179, sec. 63. He must answer for the true value. Zilkin v. Carhart, 3 Bradf. Sur. 376. As to so much of the $150 received by the administrator on the sale of the milk route for the “right to .serve customers,” I may add that it appears he is chargeable for the same as an asset of the estate. It was a sale of the “good will” of the milk business that belonged to the intestate, and for whatever he may realize therefrom he is accountable. In ■re Benedict, 13 Abb. N. C. 67; In re Randell’s Estate (July 27, 1889) (Surr.), 8 N. Y. Supp. 652; Zilkin v. Carhart, supra,; Hitchcock v. Coker, 6 Adol. & E. 438; Howe v. Searing, 19 How. Pr. 14; Gibblett v. Read, 9 Mod. 459. Let a decree be settled and entered accordingly adjusting and settling the accounts.


author: Davie, S.

text:
      In re Riley’s Estate.

      (Surrogates Court, Cattaraugus County,

      Filed July 6, 1893.)
    1. Legacy—Answer—Sufficiency.
    A motion to dismiss a petition for payment of a legacy bequeathed to the executor in trust for petitioner will be denied when the written answer filed in pursuance of Code Civ. Pro. section 2805 does not contain a specific denial of the validity of the claim, and an affirmative allegation of facts showing the doubtful nature of the claim, as required by that section, but merely presents an issue as to' the manner in which the trust is being executed, as to which the surrogate has jurisdiction under Code Civ. Pro. see. 2472, subd.
    2. Will—Construction—Legacy for support.
    A testator bequeathed to his brother $1,000 in lieu of all claims of his brother against his estate, and, appointed his son trustee of the bequest “to use it for the comfortable support of my said brother, and to pay his funeral expenses,” and if any part should remain after the ■decease of his brother, to divide same amongst testator’s sons and daughters. Meld, that the will neither expressly nor impliedly conferred upon the trustee any authority over petitioner’s person, and. that he could not compel the latter to reside with him, nor dictate as. to where he should reside.
    3. Same.
    The petitioner was entitled to demand and receive from the trustee-such portion of the legacy as was necessary for his support, without regard to the question of. his ability to support himself.
    4. Same.
    As the will- did not authorize the trustee to determine the amount, to be paid for the support of the beneficiary, and did not authorize the beneficiary himself to determine the amount, such amount should be-fixed by the court.
    Petition to compel payment of legacy. Granted.
    T. H. Dowd, for petitioner; M. B. Jewell, for trustee
   Davie, S.

The will of James Riley, deceased, was admitted' to probate by the Surrogate’s Court of Cattaraugus County on. the 21st day of September, 1891, and letters thereupon issued to James J. Riley, executor. The will, among various other bequests, contains the following:

“I give and bequeath to my brother, John Riley, the sum of" one thousand dollars; said sum of one thousand dollars to be in lieu of, and in full for, any claim that my said brother may have, or claim to have, against me or against my estate, after my decease, and, if not accepted by him in lieu of any such claim, said bequest to become a part of my residuary estate. I hereby appoint my son, James J. Riley, sole trustee of said bequest, without bonds, to take charge of said sum of one thousand dollars, and to use it, for the comfortable support of my said brother, and to pay his funeral expenses; and, if any part of said sum shall remain after the decease of my said brother, said residue or remainder shall be divided equally between my son and daughters.”

On the 29th day of Hay, 1893, the legatee, John Riley, filed his petition under section 2804, Code Civil Pro., alleging among1 other things, that the said executor and trastee had failed and refused to provide a comfortable home for the petitioner, and to pay him any money from said legacy with which to provide himself a home. On the return of the citation the trustee appeared, and tiled an answer in writing, duly verified, denying the charge of neglect and refusal to provide for the petitioner, and alleging “that he has provided, and been willing to provide, sufficient funds and a home for the said John Eiley, and all things sufficient and proper for his comfort and support according to his station in life, but that said John Eiley insists on going away from home, and being influenced by the advice of others, who want tire funds which may'be procured by the petitioner;” and thereupon the said trustee moved for a dismissal of said proceedings, pursuant to the requirements of section 2805, Code Civil Pro.

The determination of the jurisdictional question thus raised was reserved until the final submission of the case, and is now the first subject claiming consideration. The section of the-Code referred to (2805) provides that if, upon the return of the citation, an answer in writing, duly verified, be filed, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality absolutely, or upon information and belief, a decree must be made dismissing the petition. The requirements of an answer under this section are the same as under section 2718,. where a creditor files a petition to compel the payment of a deht. The character of its contents is distinctly defined. It must contain both a specific denial of the validity of tire claim, also an affirmative allegation of facts showing the doubtful nature of the claim. An answer denying tire validity of the claim, without alleging the facts-, is insufficient. In re Macauley, 94 N. Y. 574. So is an answer which alleges the facts without the denial of validity. Lambert v. Craft, 98 N. Y. 343. The answer-filed in this proceeding is insufficient, in both form and substance, to divest the surrogate of jurisdiction. It contains no distinct denial of the legality or validity of the claim,' nor does it deny the execution or probate of the will, or the existence or validity of the trust. It does not allege an insufficiency of funds, or any other valid reason for not performing the trust in accordance with lire spirit and intent of the bequest. It .simply alleges, in substance, that the trustee has performed, and is willing to perform, the duties of the trust. The only issue presented hy the answer relates to the manner in which the trust is being executed, and that is a matter peculiarly within the jurisdiction of the Surrogate’s Court. Express authority is conferred upon Surrogate’s Courts to direct and control the conduct of testamentary trustees (section 3472, subd. 3); and to hold that an answer which simply puts in use the conduct of the trustee ousts the court, of jurisdiction would render the provisions of the Code, "last above cited, practically nugatory. The motion to dismiss the petition herein must be denied, and the case disposed of upon its merits.

I he petitioner, who is now of the age of about 60 years, having no family of his own, had resided with the testator for ■several years prior to the decease of testator. After his death the trustee, who is one of the principal legatees under the will, ■continued to maintain the homestead, and petitioner resided with him continuously until the 25th of May, 1893, and during such period was reasonably well supplied with the comforts of life by the trustee. On that day, however, an altercation took place between petitioner and the trustee, and, in consequence, petitioner went to reside with a brother in the village of Salamanca. The attitude of the trustee in this matter, which perhaps is not so distinctly indicated hy the answer as hy the evidence produced upon the trial, is that he is willing to support and maintain petitioner at his own home, but that he is unwilling to advance any money out of said legacy to procure support for him elsewhere. The trustee asserts that he is clothed with a discretion as to the particular manner of executing this trust, and that his requiring the petitioner to reside with him is only a reasonable and legitimate exercise of such discretion, with which the court should not interfere. It is undoubtedly true that, where a trustee is given a discretion as to the method of performing the trust, courts will not ordinarily interfere with a reasonable use of such discretion; but the claim of the trustee in this case is neither sustained by law, nor consistent with the equities. It is quite apparent that the legacy to the petitioner was not a gratuity prompted by love and affection, but a legacy in satisfaction of a debt. Hence, if there was any ambiguity in the terms of the bequest, it should receive a liberal construction in favor of the petitioner. But no such ambiguity exists. The will neither by its express terms nor by implication confers upon the trustee any authority over the person of the petitioner, nor does it give him the right to dictate as to where the petitioner shall reside. The bequest of the $1,000, or so much thereof as may be necessary for the maintenance of petitioner -during life, is absolute, not dependent to any extent upon his place of abode. Petitioner has the free and unrestricted right to reside where he desires. Forman v. Whitney, 2 Abb. Dec. 163.

The petitioner is entitled to demand and receive from the trustee such portion of said legacy as is necessary for his support and maintenance, without regard to the question of his ability to support himself. Holden v. Strong, 116 N. Y. 471, 22 N. E. Rep. 960.

The will, in this case, does not make the trustee the judge of the amount required by the petitioner for his support., nor does it make the petitioner himself the judge of his own necessities. Where a will does not authorize the trustee to determine the amount to be paid for the support of the beneficiary, and does not authorize the beneficiary himself to determine the amount, such amount should be fixed by the court. Bundy v. Bundy, 38 N. Y. 410. The petitioner is a man of usually good health for one of his age, and at the present time undoubtedly capable of contributing to some extent, by his own exertions, to the expense of his maintenance. It does not appear that he has any property, aside from the avails of the legacy. Consequently, a proper regard for his future welfare and comfort dictates an economical management of this fund, and no greater amount) should he directed to be paid to him than actually necessary:, and I am satisfied,.from the evidence in the case, that the sum of $150 per annum will be sufficient. And in fixing the limit at the comparatively small sum named I have considered the interests of the petitioner, alone, and not, to any extent, those of the residuary legatees, who are entitled to take whatever may remain of this fund after the death of the petitioner.

The evidence given upon the trial was largely directed to the conduct of the parties on the 25th of May, 1893, when the difficulty arose between them; the petitioner claiming that the .trustee, on that occasion, assaulted and beat him without reason,, and the trustee, on his part, denying such charge, and asserting that such injuries as the petitioner then received were occasioned by his intoxication. The evidence is very contradictory, and by no means satisfactory, upon this subject; but it. is of little consequence who was the party in fault at that time, so-long as it now appears that the feeling of ill will thereby engendered, and still existing, between the parties, would render the home of the trustee by no means a congenial place of abode for the petitioner, and affords an additional reason for holding that the support and maintenance of the petitioner is not dependent to any extent upon- the continuance of his residence with the trustee.

The amount to which the trustee is entitled on account of expenses incurred in the support of the petitioner will be adjusted and allowed to him upon his judicial settlement as such trustee, and in the meantime the trustee should file in the office of the surrogate an annual account of his proceedings as such trustee, and should also set apart the balance unexpended of this legacy, keeping the same invested, so far as practicable, for it is more than likely that the trustee would be required to account for interest upon this fund in case the principal proves insufficient for the support of petitioner during his lifetime.


author: Coffin, S.

text:
      In re Odell’s Estate.

      (Surrogate’s Court, Westchester County,

      Filed March, 1893.)
    Will—Construction.
    A testatrix bequeathed a portion of her estate upon trust to pay the income to her nephew William for life, and upon his decease to pay the principal to his daughter Ella should she survive him, but in the event of her decease without issue her surviving, “subject to the trust hereby created,” the principal was to be paid to her two nieces and a grandnephew. Held, that the time of the death of Ella referred to her death without issue pending the trust, that is, during her father’s lifetime, and as she had survived him, and the trust was therefore ended, she was entitled to the principal absolutely.
    Proceeding to construe the following clause of the will of Ophelia P. Odell, deceased.
    “Eleventh. I give, devise and bequeath unto my executor hereinafter named one undivided one-fourteenth part or portion of my estate in trust, nevertheless, to collect, receive, and invest the same, and out of the rents and proceeds thereof to pay over the interest and income thereof to my nephew William P. Slater for and during the period of his natural life; and upon his decease I give, devise and bequeath said one-fourteenth part or portion of my said estate unto Ella Slater, daughter of my said nephew, William P. Slater, should she survive him; to have and to hold the same to her, her heirs and assigns, forever. In the event, however, of the decease of the said Ella Slater without issue her surviving, subject to the trust hereby created I give, devise and bequeath such undivided one-fourteenth part or portion unto my said nieces Emma Caswell, Caroline Smith and Ophelia Weeks, share and share alike; to have and to hold the same unto them and each of them, and to their heirs and assigns, forever.”
    Mitchell Levy, for executors; Calvin Frost, for Charles J. Smith, general guardian of Ella Slater; Thomas J. Purdy, for Caroline Smith, etc.
   Coffin, S.

The question to be determined is whether the one-fourteenth part of the estate' of which William P. Slater had the use for life now belongs to his daughter, Ella, sometimes, called Hi ary Ella, absolutely, or to the executors to hold until it shall be determined whether she shall die without issue; in other words, whether it shall be decreed to be paid to her general guardian or to be retained by the executors. Counsel have, in their briefs submitted, discussed the question, among other things, as to whether the time of the death of Ella Slater referred to her death without issue during the lifetime of the testatrix or subsequent thereto. The learned counsel for the general guardian has cited many authorities to sustain the affirmative of the proposition, and, among others, the cases of Livingston v. Greene, 52 N. Y. 118, and Quackenboss v. Kingsland, 102 N. Y. 128, 6 N. E. Rep. 121, which appear to sustain that view. In behalf of the claim of Caroline Smith and others, their counsel has cited some decisions of courts of other States,, to which access has not been had, as supporting that claim. Hot much consideration has been given to this question, for the reason that the matter is determinable upon another ground, taken on behalf of the general guardian, which seems quite unanswerable. In construing wills it is well stated that the intention of the testator, when discoverable, must control. Here that intention, gathered from the will itself, appears to be perfectly plain. The use of the share is given to Ella’s father for life, with remainder to her absolutely; but, should she die without issue pending the trust—in other words, while he was alive, then to' Caroline Smith and others, subject to the same trust But Ella has not died without issue subject to the trust, nor can she, seeing that the trust no longer exists; so that the distribution of this fourteenth among the other three is impossible of accomplishment. It was given to Ella absolutely if she survived her father, the cestui que trust, but, in case she died without issue during his lifetime, it should go to the others at his death. But he is dead. The trust is ended. Ella survives, and she takes, the share absolutely. Such is in accordance with the plain intention of the testatrix. The decree will direct that the share be paid to her guardian on his filing the usual bond.


author: Eggleston, S.

text:
      In re Hathaway’s Estate.

      (Surrogates Court, Cortland County,

      Filed July 15, 1893.)
    1. Executors and administrators—Leave to issue execution.
    An order will not be made for leave to issue execution upon a judgment obtained against an administrator for a debt due by decedent,, under Code Civ. Pro. sec. 1825, providing that an execution shall not issue against an administrator in his representative capacity unless an order permitting it to issue has been made by the surrogate from whose court the letters issued, which order shall specify the sum to be collected, and the execution must be indorsed with a direction to-collect that sum, when it appears that the administrator fully accounted for all the assets which came to his hands, and there was no property of the estate in his hands, more especially when Code Civ. Pro. see. 2552, provides that an order permitting such an execution to issue is,, except upon appeal therefrom, conclusive evidence that the administrator has sufficient assets to pay the amount of the execution.
    2. Same.
    In such ease it is not essential, in an action brought by the petitioning creditor to set aside fraudulent conveyances of property made by the decedent, that the complaint should allege the issuing of execution upon the judgment against the administrator, nor is the fact that, the execution has not issued a bar to the action, but if otherwise, some-other authority should be given the surrogate to permit the execution, to issue.
    3. Same.
    Even if the court could issue such an order under the circumstances,, facts should be presented which would enable the court to make an order specifying the amount that should be paid upon the judgment,, or the pro rata share to which the petitioner would be entitled.
    Application by a creditor of decedent for an order under CodeCiv. Pro., section 1825, permitting execution to issue on a judgment obtained by petitioner against the administrator for the.amonnt of his debt. Denied.
    Horace L. Bronson, for petitioner; Kellogg & Van Hoesen,. for administrator.
   Eggleston, S.

Calvin L. Hathaway, of Solon, Cortland: County, N. Y., died August 15, 1885, intestate. Upon the 7th' •day of October of that year Riley Champlin was appointed administrator of his estate, duly qualified, and entered upon the discharge of his duties as such administrator. May 6, 1891, the administrator, upon his application, had a final accounting before the surrogate, and was discharged from further duty or liability in the matter. At the time of the accounting, it appeared that the estate was insolvent, and, upon the final distribution of the assets of the estate, the same were paid upon cer"tain judgments rendered against Hathaway in his lifetime, which judgments were entitled to a preference in payments. The majority of the creditors received nothing upon their claims. June 30, 1891, Platt Peck, the petitioner herein, obtained a judgment against Riley Champlin, as administrator of the estate, for the sum of $6,625.60, which judgment, was duly docketed in the clerk’s office of Cortland County. The judgment obtained against the administrator was for an indebtedness which was created by the intestate during his lifetime. Execution was never issued upon the judgment, and nothing "has ever been paid upon the same. Upon the accounting before the surrogate, Peck, the petitioner, who was a creditor of the estate, having been duly cited, appeared with others, and filed' •objections to the account of the administrator; but subsequently Re, with the others, withdrew the objections, and the accounting' was had without objection, and a decree entered discharging the ■administrator from further duty or liability in the matter. The petitioner now asks for an order or leave to issue execution upon said judgment, alleging in his petition recovery of the judgment, and upon his information and belief, that the administrator has in his possession or under his control personal property belonging to the estate, and also - alleging that Hathaway, ■prior to the time of his death, had made fraudulent conveyances of his real estate to other persons for the purpose of cheating ■and defrauding his creditors, and that petitioner is desirous of bringing an action to set aside such alleged fraudulent conveyances and transfers of property; that he is advised and believes that an execution must issue and he returned unsatisfied upon the judgment as a condition precedent to the bringing of an action in equity against tile persons to whom it is alleged the fraudulent conveyances and transfers were made. Hpon the return of the citation issued in this proceeding against the administrator to show cause why an order should not be made that execution issxxe, t-lxe administrator interposed axx answer, alleging the fact of the accounting had before the surrogate, the settlement of his account, and his discharge as sxxch administrator. The ansxver admits the rendering of the jxxdgment against the administrator as alleged in the petition, and further alleges that the administrator has paid oxxt, in the dxxe administration of the estate, all the moneys in his hands, and that the same have been paid in accordance with the sanction and direction of the court. There is no claim that the administrator has any property or funds ixx his hands belonging to the estate, or that, he has not f ally accounted for all of the property or assets of the estate which came into his hands as such administrator, and it xvas conceded xxpon the argument by the attorneys for the petitioner that the administrator has accoxxnted for the assets of the estate xvhich came into his hands, and that ho has not noxv in his hands any property belonging to the estate of the deceased.

The only question to be determined here is: Bo the facts presented in the papers xxpon this application jxxstify the making of an order permitting execution to be issxxcd xxpon the jxxdgment against the administrator ? No proof in support of the allegations in the petition was made xxpon this application before the surrogate. By section 1825 of the Code of Civil Procedxxre it is provided as follows:

“Axx execution shall not be issued xxpon a jxxdgment for a sum of money against an executor or administrator in his representative capacity xuxtil an order permitting it to be issxxed has been made by the sxxrrogate from xxdxose court, the letters are issxxed. Sxxch an order must specify the sxxm to be collected, and the execution must be indorsed with a direction to collect that sxxm.”

The section just quoted should he considered in connection, with section 2552 of the Code, which reads: “A decree directing payment hy an executor, administrator, or testamentary trustee to a creditor of, or a person interested in, an estate or-fund, or an order permitting a judgment creditor to issue an execution against an executor or administrator, is, except upon appeal therefrom, conclusive evidence that there are sufficient assets in bis hands to satisfy the sum which the decree directs, him to pay, or for which the order permits the execution to-issue.”

It is difficult to see from the papers in this case, considered in the light of the concession made—that the administrator has fully accounted for all of the assets which came into his hands— how such an order as the one sought for can be made. It is argued by the counsel for the petitioner that while they do not seek to reach any property in the hands of the administrator, and while they do not claim that there is any property in his hands belonging to the estate, it is necessary to obtain an order-for such execution to issue, and that execution should be issued upon the judgment before an action can be brought by a judgment creditor to set aside the transfers alleged to have been fraudulently made by the intestate in his lifetime; and the order-is sought only for the purpose of avoiding the decisions of the court making it necessary that such an order should be obtained before the court can have jurisdiction of the action. The case of Lichtenberg v. Herdtfelder, 33 Hun, 57, cited by the counsel for the petitioner,-seems to be an authority in point in support of their position upon this motion. In that case the court, at General Term, held that, as no execution had been issued upon-the judgment, the action brought to set- aside certain fraudulent conveyances of real estate made by the deceased in his lifetime-could not for that reason be maintained. Upon a review of the-same case in the Court of Appeals, found in 103 N. Y. 302, 8 N. E. Rep. 526, the court- seemingly does not' concur in the decision made at the General Term upon that point, and Justice Eabl, in his opinion, says: “At the General Term, as appears. from the opinion there pronounced, the judgment was affirmed because no execution had been issued upon plaintiff’s judgment. We think this action is without precedent, and that the judgment should be affirmed, but not for the precise reason stated in the court below.”

It is to be regretted, especially in view of the fact of the dissenting opinion of Justice Davis in the case at General Term,, that the Court of Appeals, upon review of the case in that court, did not more fully explain tc what it referred when it stated that the action was “without precedent,” and in some way pass, directly upon the question decided at General Term.

Why is it necessary that execution should issue upon the judgment obtained against the administrator of Hathaway before an action can be brought by a judgment creditor for the purpose of setting aside any conveyances claimed to have been fraudulently made by Hathaway in his lifetime ? Certainly, the administrator was not a party to such conveyances, nor can he he held liable in any way for any act done by the intestate, nor does he have any interest in or control of the real estate of the deceased, unless it becomes necessary to sell the same under the direction of the court to pay the debts against the estate. Then, again, the administrator has accounted for all the personal property that came into his hands as such administrator, and there is nothing in his hands that can be reached by execution. If there were assets remaining in his hands for which he should account, or if there were assets belonging to the estate, then such proceedings should have been had in Surrogate’s Court as avouM tend to bring the property into that- court for distribution upon the final and judicial settlement of the estate; hut, as it is not claimed that there is any personal property in the hands of the administrator for which he is accountable, that question is of but little importance here.

It will he observed that the judgment was obtained against the administrator in his representative capacity, and is not a judgment rendered against Hathaway in his lifetime. By section 1893 of the Code it is provided that “Real property which belonged to a decedent is not bound or in any way affected by a judgment against his executor or administrator, and is not liable •to be sold by virtue of an execution issued upon such a judgment, unless the judgment is expressly made by its terms a lien upon specific real property therein described, or expressly directs the sale thereof.”

Executions authorized by section 1825 of the Code are such only as can be issued against personal assets which are in the possession or under the control of the executors or administrators, .and have no relation whatever to real estate. 103 N. Y. 306, 8 N. E. Rep. 526. Upon what theory, then, can it be claimed with any force that, in order to maintain an action to set aside such conveyance, it shall be necessary to have an execution issued upon a judgment such as was rendered against the administrator ? It seems to me it would be as idle a ceremony as could be imagined, involving considerable labor that would be absolutely useless. “It is a maxim of law and of equity that it will not demand a vain thing.” If it is the law that in cases like this it is incumbent upon a party bringing an action to- set aside alleged fraudulent conveyances, to show that an execution has been issued upon a judgment rendered against an administrator, then some authority other than as provided for now should be •given the surrogate to make such an order, and permit the execution to issue for that purpose. That a party should be permitted to bring his action goes without saying, and he should not be deprived of that right by any obstacle which he is utterly unable to overcome. He makes his application to the Surrogate’s Court for the order, and that court is unable to make the order, for the reason that there are no assets or property belonging to the estate in the hands of the administrator. By the sections of the Code referred to, the order must specify the sum to be collected, and the execution must be indorsed with a direction to collect that sum; and when that order is made, unless the same is appealed fron¥} it is conclusive evidence that there are sufficient assets in the hands of the administrator to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue. Such an order would i be unjust to an administrator who had faithfully performed his duties, and accounted for all the assets which came into his hands, and might place him in contempt, as the only alternative he would have would be to appeal or to pay. Before the surrogate can make the order, he must find that there are assets in the hands of the administrator sufficient to pay the sum for which an execution is authorized to issue. Possibly, the order might be made that the execution issue for nothing, as that would be the only reasonable order that could be made in fairness to the administrator. The case of Adsit v. Butler, 87 N. Y. 585, cited: by the counsel for the petitioner, is not a case in point, as-in that-case j'udgment -was obtained against the testator in his lifetime-; though I am unable to see, even if the judgment in question had been obtained against Hathaway in his lifetime, under the exists ing circumstances, how the order asked for upon this application could be made.

Another and further reason might be urged why this order should not be made upon the papers presented. At the time of the final settlement of the estate, it appeared that the assets of the estate were inadequate to pay the claims against the estate, and certain of the creditors, having a priority of payment of their claims, received nothing upon the same. There is no proof in this proceeding of the amount of the claims remaining unpaid, nor is any evidence given from which to determine the amount which the petitioner would be entitled to receive- upon his judgment. Even if there was property in the hands of the administrator which could be reached under an execution, the petitioner would only be entitled to a pro rata share of the same,, and that, too, after the judgments and claims having a priority had been paid. Ho facts are presented which would enable the court to make an order specifying tire amount that should be paid upon this judgment, or the pro rata share that the petitioner would be entitled to. Assuming that there, was $6,625.60 in the hands of the administrator undisposed of, it could not be claimed that an order should be made that an execu-tion issue in favor of the petitioner against the administrator for the collection of that sum, as the petitioner would .not be entitled to that amount. Other creditors would be entitled to a portion of the money at least, and the petitioner would obtain no right to the money from the fact that he had been vigilant in attempting to recover the same, nor would he have any claim to the money over and above the rights of the other creditors.

Eor the reasons stated, the application for an order that execution issue should he denied, and I come to this conclusion more willingly for the reason that I do not deem it essential, in an action brought by the petitioner to set aside any alleged fraudulent conveyance of property made by Hathaway in his lifetime, that the complaint must allege the issuing of an execution upon the judgment rendered against Champlin, the administrator ; nor do I deem the fact that such execution has not issued any bar to the petitioner’s right to maintain the action, if the action can otherwise be successfully prosecuted to judgment.


author: Glass, S.

text:
      In re Jones’ Estate.

      (Surrogates Court, Onondaga County,

      Filed March, 1893.)
    1. Executors and administrators—Accounting—Jurisdiction.
    Surrogates’ Courts have power under Code Civ. Pro. see. 2472 (providing that such courts may, upon an executor’s accounting, construe the provisions of a will whenever necessary to make the decree as to distribution), to determine as to the validity of an antenuptial agreement made by decedent and his intended wife, made in contemplation of death, whose subject matter is the distribution of his property after his death.
    ■2. Antenuptial contract—Fraud—Burden of proof.
    The presumption is against the validity of such a contract, and the burden of proof is cast upon the husband or his representatives to show perfect good faith, and strict proof will be required, especially where the provision for the widow is inequitable.

      3. Same.
    Decedent, when 70 years of age, married his deceased wife’s niece,
    ' aged 52. He was then worth $20,000. Prior to the marriage he had an agreement drawn up by his attorney by which his intended wife was to receive on his death $2,000 in lieu of dower and interest in decedent’s personal estate. This was signed by decedent and his wife the evening prior to the marriage, and there was no evidence of prior negotiation in reference thereto. The wife testified it was not read to her, and she only became aware of its contents after the marriage, and decedent admitted to several persons that in having the paper signed he wished to convince his sisters that his wife had not married him for his money. Held, that although the wife had subsequent to the marriage acquiesced in the agreement, the burden of proof which the law placed upon the husband’s representatives to show perfect good faith had not been met with, and the agreement was invalid.
    Judicial settlement of the accounts of George A. Warburton, as administrator of the estate of William Jones, deceased.
    Brooks & Walrath, for administrator; Fuller & Glen, for "widow and contestant.
   Glass, S.

This is a proceeding upon the petition of George A. Warburton., administrator of the estate of William Jones, Tor the final judicial settlement of his accounts, and for the distribution of tiie surplus of the estate among the persons entitled thereto. The intestate died on the 31st day of August, 1890, ••at Camillus, in this county, leaving him surviving no descendant nor parent, but leaving him surviving Margaret A. Jones, his widow, and two sisters, residing in this county, and three nephews and a niece, children of a deceased sister, residing in England, his only next of kin, all of whom are parties to this proceeding. In the account filed the administrator charges himself with the sum of $23,954.66 in cash and good securities, and credits himself with having paid out for debts, taxes, funeral expenses, and expenses of administration the sum of $1,317.72, and also with having invested the sum of $2,000 in a certain bond and mortgage to secure the payment of an annuity to the widow, in supposed pursuance of the terms of an ante-nuptial agreement hereinafter referred to. The administrator, in Ms petition, which is the basis of this proceeding, among1 other things, alleged: “That said decedent, William Jones, in. contemplation of his marriage with his said surviving widow* Margaret A. Jones, entered into an antenuptial bond, duly sealed and acknowledged by them, under and by the terns of which said widow was to receive, after the death of said William Jones, from his estate, in case she survived him, interest of $2,000, payable annually, in lieu of all right of dower or interest in said decedent’s personal estate, Avhich said bond is hereby-referred to and made a part of this petition.”

Upon the return of the citation, the widoAV appeared specially* objecting to the distribution of the estate in this proceeding,, principally because the alleged antenuptial bond was void for Avant of due execution, and because of the practice of fraud upon her at the time of its execution, and alleging that she had commenced an action to set aside the said agreement, and 1» have-the same declared null and void, and asking for a postponement, of this proceeding until the determination of an action which. she had commenced in the Supreme Court to have said bond declared null and void. Such postponement Avas made 'for some-months, but it appears that the Supreme Court action was subsequently discontinued, and the- avíJoav appeared generally in this--' proceeding by her attorneys, and filed an ansAver raising objections to sundry items of the account, and, among others, to the above-mentioned item of $2,000, invested for the benefit of the widoAV, and alleging the invalidity of the said antenuptial agree^ ment, because, among other things, of fraudulent misrepresentation and concealment of its contents practiced upon her by the-' intestate at the time she signed it Upon the hearing, no objections raised by the "widow’s answer Avere pressed, except those-relating to the validity of the antenuptial agreement, which-would necessarily include the $2,000 item above referred to. A considerable amount of testimony Avas taken upon that issue, and at its close the petitioner’s counsel raised the objection that this court had no jurisdiction to determine as to the validity or invalidity of the antenuptial agreement in question; so that* practically, the principal questions now to be decided are: First, has this court jurisdiction in this matter to adjudicate as to the validity of the antenuptial agreement ? Second, is the ante-nuptial agreement valid and binding upon the widow so as to-cut her off from what would otherwise be her distributive share of the estate ?

The question raised as to jurisdiction is a serious and perplexing one. If this court has the power in this proceeding to determine as to the validity of the agreement in question, it is a power- implied from and incidental to the authority conferred by section 2472 of the Code of Civil Procedure upon the Surrogates’ Courts, “to direct and control the conduct and settle the accounts of executors, administrators, and testamentary trustees;” to enforce the * * * distribution of the estates of decedents.” That this section of the Code confers power upon Surrogates’ Courts in a proceeding having for its object the settlement of an executor’s accounts, and tire obtaining of a decree directing the distribution of a fund in his hands, when all the-parties in interest are present, to construe the provisions of a will, and determine their meaning and validity, whenever necessary in order to make the decree as to distribution, is now settled beyond all question. Garlock v. Vandevort, 128 N. Y. 374, 28 N. E. Rep. 599; Riggs v. Cragg, 89 N. Y. 480. And if the provisions of a will may be construed, and their validity determined, by the Surrogate’s Court, why, upon principle and by analogy, may not a like jurisdiction extend to the construction or determination as to- the validity of an agreement made by the decedent, and tire person who is to become his wife, and possibly his widow, signed by the decedent himself, made in contemplation of his death, whose very subject matter is the distribution of his property after his death ? The similarity in these-respects between an antenuptial agreement and a will seems to suggest a reason why the numerous cases- cited by the petitioner’s counsel holding that the Surrogate’s Court has no power-to determine as to the validity of a release by a legatee or next-of kin to the executor or administrator, or of an assignment of ■a legacy or distributive share to a third party, may not be applicable to the present case. In all of those cases, as I remember, the instrument, agreement, or deed whose validity the surrogate was held to have no power to determine was one made, not by the testator in contemplation of the future distribution of his property, but by other persons, after his death. But whatever doubts I should otherwise have as to my jurisdiction to adjudicate upon the validity of the instrument in question, the case of Pierce v. Pierce, 71 N. Y. 154, seems to be decisive upon the ■question, and seems to leave no way open but for me to hold that this court has jurisdiction in this proceeding to determine as to the validity of the instrument in question. That was a proceeding precisely like this, before the" surrogate of Delaware ■county. Upon the final accounting of the administratrix of •one Pierce, the validity of an antenuptial agreement made by the intestate with his intended wife was in question before the ■surrogate. The widow7, upon the accounting, maintained that the agreement was void for fraud practiced upon her which induced her to sign it. The surrogate held the agreement to be valid and in full force, and that for that reason she was not ■entitled to a share as his widow in the distribution of his estate, and only allowed her the amount named in the agreement. The •General Term of the Supreme Court, upon appeal, held that the agreement was invalid, by reason of the fraud perpetrated upon the wife, and modified the decree of the Surrogate accordingly, and allowed to the widow her distributive share of the estate, and the judgment of the General Term was affirmed by the Court of Appeals. It seems to follow as a necessary and logical conclusion that the Court of Appeals must have considered that the surrogate had the jurisdiction when the proceeding was before him, to make the same determination in the case which the Supreme Court made upon appeal to it. I do not feel at liberty to disregard the authority of the case of Pierce v. Pierce, and therefore hold that this court has jurisdiction in this proceeding to determine as to the validity of the agreement in question.

The agreement substantially provided that, in consideration •of the payment of the interest on $2,000 annually during her life to the intended wife, she relinquished all dower and all interest in the personal property of her intended husband in case she survived him. The intestate was at the time of the marriage worth at least $20,000, and she thought him worth, as she swears in answer to the question of the petitioner’s counsel, $40,000. She was at the time 52 years of age, and he was 70. She was a niece of his first wife, who died in 1869. She had known him as her uncle by marriage for 40 years or more, and during her aunt’s lifetime was accustomed to visit in the family •about once in two years, and stay a month or so at a time, but from 1872 to 1885 it appears her visits ceased entirely. In the fall of the latter year she made a visit of a week’s length at her uncle’s house, which apparently led to a mutual agreement to marry, as arrangements were made that the marriage should take place on the following 13th of January, at her brother’s home in Saratoga Springs, where she made her home. Before leaving for Saratoga Springs he had procured the agreement in question to be drawn up by Mr. Lyboult., his attorney at Camillas, and as drawn up by Mr. Lyboult it. was a complete instrument in all its details, even to the insertion of the date of the instrument, which was written the 13th of January, the proposed wedding day. He took it with him tb Saratoga Springs, where he arrived at her brother’s house early in the evening of •January 12th, and after an interview alone with his intended wife, when, presumably it was signed by both of them; later in the evening, together with her, acknowledged the execution ■ of it before a notary who had been called in for that purpose. This acknowledgment was taken in the presence of the widow’s brother and other members of his family, but nothing was said by any one at the time of the acknowledgment as to the object or contents of the paper, except that, before the notary left, the decedent told him that he was “doing well by Maggie.” He had also earlier in the evening, while asking the widow’s brother to procure a notary to “take the acknowledgment of a paper of a matter between bimself and Maggie,”’ told the brother that he was “going to fix Maggie nicely,” and had also told the brother’s wife earlier in the evening, while waiting for the notary, that he was going to give his wife $2,000. The paper was presented by him to the notary already signed, and, after the notary had filled out and signed his certificate of acknowledgment, was taken possession of by the decedent, and he put it in an envelope-into his pocket. How long he kept it does not appear clearly,, but it is apparent that for several months at least-, soon after the-marriage, it was in the possession of the wife, but, as she claims, in a sealed envelope. She testifies that she never read the paper or heard it read, and the earliest date which the evidence tends to impute knowledge to her of the contents of the paper, aside from such presumptions as flow from the fact of signing and having possession of the writing, is the summer after her marriage.

The essential fact to be determined is, what took place be-r tween these parties when the instrument was signed by them which led to its being signed by Mrs. Jones ? The one party is-not here to give his version of the transaction; the lips of the other are closed by the wise mandate of the law; and we are left in the solution of this somewhat vexatious question to depend upon other and not always the most satisfactory kind of evidence. Without attempting to further detail the circumstances leading up to and attending the execution of this antenuptial agreement, or the relations of the parties prior or subsequent to their marriage, in January, 1886, or the circumstances disclosed by the testimony tending to prove or disprove knowledge on the part of the widow, even before the death of Mr. Jones, of the terms of the agreement, I am convinced by the proofs in the case that at the time, the paper was signed, Mrs. Jones did not know its contents; that its contents had been fraudulently concealed from her by the intestate; and that, she was induced to-sign it by representations made to her by the intestate at, or shortly prior to, its execution, that it contained provisions more favorable to her, than it did in fact contain. In the first place, the very terms of the contract itself, viewed in the light of the surrounding circumstances, arouse the suspicion that she did not know what she was signing when she signed this paper. It is apparent that the marriage was one based not entirely upon sentiment, and it is fairly deducible from the facts that the bettering of her financial condition may very naturally and very properly have been one of her motives in entering into this relation. He was worth $20,000, and it is safe to say her estimate «of his possessions was not smaller than that sum. With these •circumstances in mind, it is hard to believe that she would have knowingly agreed to accept so comparatively trifling a sum as the interest on $2,000 during her lifetime as her share of the «estate, in case she should survive him. The fact, too, that he had the contract drawn up complete in every detail, even to its date, before he started for Saratoga, leaving nothing open for negotiationhetween himself and the other party when he should meet her, is also a significant circumstance in the case. It may be, of course, that the details of the agreement had previously been settled between the parties, but there is no evidence in the •case showing any prior meeting of the parties more recent than the occasion of her week’s visit to Cainillus in the fall of 1885; so that no opportunity was afforded for such prior negotiation, •except through the mails or through third parties; and there are no suggestions either of correspondence or of the intervention of third parties in the case.

The statements made by the deceased to George Langdon and to Hr. Corey, the notary, at the time the paper was being acknowledged, that he was “going to do nicely by Maggie,” and to Mrs. Langdon, that he was going to give his future wife $2,000, I am forced to believe, were made by him for the purpose of warding off scrutiny on the part o«f the relatives into the contents of the paper. I can hardly believe that Mr. Jones himself felt that the provision which the agreement made for his widow was a liberal or adequate one. But, if three reputable witnesses in this case are to be believed,- the decedent, in his lifetime, made admissions relating to this contract and the eircumstaiices attending its execution which, with the other facts of the case, leave no room for doubt but that the intended wife was-deceived into signing this paper by the intended husband’s fraudulent concealment of the contents of the writing, and partly, at least, by his representation to her that his purpose in having the instrument signed was to show to his sisters, to convince them that she did not marry him for his money, by way of' reconciling them to his remarriage. Miss Frances Langdon, a sister of the Avidow, testified that on the evening the paper was signed, at her brother’s house, in Saratoga Springs, and after it was signed and acknowledged before a notary, she (the witness) and Mr. Jones and his intended Avife were sitting in the back parlor, conversing on general topics, when her sister-spoke up, and, addressing Mr. Jones, said, “William, I ought to-have read that paper before I.signed it;” and that he said, “Margaret, that would make no difference; it is a paper that I have had draAvn up to show my sisters that you have not married me for my money, but it will never make any difference to’ you.” Mrs. Frances M. Oliver testifies to a conversation had at her house in Syracuse, between herself and the deceased, after-the marriage and after the separation of the parties, in which she asked the decedent if his wife realized that she was signing-away her rights Avhen she signed this paper, and he said, “Ho; she didn’t.” “And I asked him if he said to her that he only asked her to sign that paper to satisfy his sisters that she didn’t marry him for his money, as they thought she did, and he said he did, and that she shouldn’t lose anything by it.” And, again, Margaret A. Clark, a former matron of the “Home” in this city, testifies that on an occasion, Avhen Mrs. Jones Avas staying-at that institution, after her separation from her husband, Mr. Jones came there to request of her (Mrs. Clark) to use her-influence to persuade Mrs. Jones to accept a certain sum as a weekly alloAvance, and in the course of the, conversation Mrs. Clark asked him: “Did you ask Margaret to sign a paper, or-did she sign a paper the night before she was married ? He-said ‘Yes.’ I said, ‘For why and for Avhat ?’ He says, T Avished to convince my sisters that she Avas not marrying me for-my money.’ I said, ‘Did Margaret know what she was signing’ -when she signed that paper ?’ The first time I asked the question he shook his head, and didn’t speak. Then I asked it again, and he said ‘No.’ ” These admissions, made by the intestate to' three different persons, on three separate occasions,, are absolutely inconsistent with the existence of good faith on his part in dealing with his'intended wife on the occasion of his-securing her signature to the instrument in question, and they go a great way in leading me to believe and to find that the intestate fraudulently concealed from his intended wife the full import and contents of the paper which she signed. The law applicable to these facts is furnished by the same case (Pierce v. Pierce, 71 N. Y. 154), as follows: “While an antenuptial contract by which the future wife releases all claims against the-estate of her husband upon his decease will be sustained when fairly made, yet, from the confidential relations between the parties, it will be regarded with the most rigid scrutiny; and, where the circumstances establish that the woman has been deceived, or induced by false pretences tp enter into the contract, it will be held null and void. It seems that the presumption is against the validity of such a contract, and the burden of proof is cast upon the husband or his representatives to show perfect good faith, and strict proof will be required, particularly where the provision made for the wife is inequitable and unreasonably disproportion ate. ”

Judging the facts in this case by this standard of legal principles, it may safely be said that so much suspicion has been east upon the transactions which resulted in the signing of this paper that the burden of proof which the law, after proof of such facts, places upon the representatives of the husband to show perfect good faith, has not been met by the administrator. There is considerable proof in the case, and some of it of great force, brought out by the petitioner, tending to show, both before and after the intestate’s death, knowledge on the part of Mrs. Jones of the contents of this paper, as well as acquiescence by her in its provisions; and this class of evidence, however, while-it is entitled to great weight in affecting the probabilities of the matter, at most, as it seems to me, tends to show that she thought .she was bound by the agreement, and does not bear upon the vital question in this case—viz., what took place at tire time of the execution of this instrument ?—with the same degree of force as do the admissions of the intestate as to the very transaction itself. The agreement in question must be held to be null and void. A decree may be entered upon five days’ notice judicially •settling the accounts of the administrator as filed, except the item of $2,000 above referred to, included in the disbursements, which is disallowed, and also allowing, after making proper deductions for cash already paid her, $150 in-cash and any household articles (or their value) which ought to have been set off to her as widow as her exemption, and distributing the surplus of the estate among the widow and next of kin, as provided by the statute. All questions of costs and allowances for counsel in this proceeding are reserved until the entry of the decree.