author: Maynard, J.

text:
    Helen S. Sayles, App’lt, v. George F. Best et al., Ex’rs, Resp’ts.

      (Court of Appeals,

      Filed December 12, 1893.)

      f Will—Equitable conversion—Rights of lienors.
    Where the heir and thé distributee of the proceeds under the will are the same person, upon a conversion" of the realty into personalty by the execution of a power of sale given by the will, the intervening rights of purchasers and lienors will be protected.
    #. Same—Judgment—Executobs and administbatobs.
    One B., by his will, gave a life estate in certain land to his widow for life, and directed his executors to rent other land until his youngest child came of age, and upon the happening of that event and of the death of the widow respectively gave the executors power to sell said lands and distribute the proceeds among his legal heirs, share and share alike. The plaintiff is the owner of judgments recovered prior to B’s death against one of his heirs, and on which the latter’s interest was sold on execution after the events on which the power of sale depended had occurred. Prior thereto the heir had conveyed his interest to one W., and after said sale also conveyed his interest to the executor of the widow, who held certain notes made by him. The executors thereafter sold the property without notice of the execution sale, and upon an accounting were directed to pay said share of the estate to W. and the widow’s executor, which they did. Meld, that the heir took an estate in remainder in an undivided share of the first mentioned land and a present estate in fee in an undivided share in the latter, subject to the execution of the power of sale ; that such estate was alienable and was subject to the judgments ; that the deeds from the heir conveyed the share subject to the lien; that the execution of the power of sale transferred the lien of the judgments to the fund; that the executors were discharged from personal "liability by the accounting and payment in pursuance of the decree of the surrogate, and that plaintiff’s remedy was against the parties to whom said fund was paid.
    Appeal from judgment of the supreme court, general term third department, affirming judgment dismissing the complaint on the merits.
    Peter K Best died February 17,1878, leaving a will, by which he devised his homestead farm in Stillwater, Saratoga county, to his widow during life, and after her death he empowered his executors to sell the same at public or private sale at such time, upon such terms and in such manner as to them should seem meet and to the best interest of his estate, and to divide the proceeds therefrom equally among his legal heirs, share and share alike. He directed and empowered his executors to rent another farm upon which his son Jacob then lived, from year to year, until his youngest child became twenty-one years of age and then gave them the same power to sell and divide the proceeds as in the ease •of the homestead. He appointed his widow and the defendants Jeremiah I. and Tristram C. Best the executors of his will. The youngest child became of age March 21, 1887, and the widow died August 25th of the same year. The plaintiff is the owner of two judgments recovered against Alfred B. Best, one of the testator’s sons, in 1877 and 1878, upon one of which execution was issued and the interest of the judgment debtor in these two farms sold September 29, 1887, and the judgment creditor became the purchaser, and the usual sheriff’s certificate of sale was executed to him and filed and recorded in Saratoga county cleric’s office-October 7, 1887. The sheriff’s deed upon the sale was delivered December 31, 1888, and recorded January 16, 1889. The defendants, as executors, executed the power of sale given them in the will of April 2,1888, and sold both farms and received the proceeds, amounting to $22,700, of which the share of Alfred B. Best was $2,245. On March 6, 1884, Alfred executed to Edward T. Williamson a conveyance of all his interest in the property which came to him under the will of his father, which deed was recorded April 7, 1884. Alfred was indebted to his father in his lifetime upon two notes given in 1873, amounting to $2,200 and interest, which passed to the widow under the will, and were held by her at the time plaintiff’s judgments were recovered. On October 12, 1887, Alfred executed to the executor of his mother’swill a conveyance and assignment of all his right, title and interest in the estate of his father. The defendant Tristram C. Best knew of the existence of the plaintiff’s judgments on April 30,. 1879, bnt he had no personal notice of the sheriff’s sale and deed; and the defendant Jeremiah I. Best never had any personal knowledge or information in regard to the judgments until after the sale by the executors and the distribution of the proceeds. In April, 1888, the executors rendered a final account before the surrogate of Saratoga county, and such proceedings were had that a decree-was entered by the surrogate May 29, 1888, adjudging that Alfred had no interest in the property, and that Williamson and the executor of Jane B. Best were entitled to his share as grantees and assignees, and adjudging the amount which should be paid to each, which was immediately thereafter paid over to them by the executors as directed by the decree. February 25, 1889, the plaintiff demanded of the defendant Tristram C. Best the share of Alfred in the proceeds of the sale of the real estate, which he neglected to pay, and on March 1, 1889, plaintiff brought this action against the executors individually, in which he demanded judgment for the sum of $2,245, the amount of Alfred’s share received and distributed by them. The cause was tried before the court, without a jury, and upon findings embodying the facts here stated the complaint was dismissed upon the merits. The plaintiff has appealed from a judgment of the general term affirming the judgment entered upon the decision of the trial court.
    E. F. Bullard, for app’lt; Charles S. Lester, for resp’ts.

      Affirming 49 St. Rep., 576.

   Maynard, J.

Upon the death of Peter K. Best in 1878, his son Alfred became seized of an estate in remainder in the equal undivided twelfth part of the homestead farm, liable to be defeated by the exercise of the power of sale by the executors. 4 R. S. (8th ed.), p. 2489, § 59. With respect to the other farm the situation was different. No precedent estate in it was given to any one and no valid trust estate created in the executors. The utmost that can be said is that a power in trust was given to the executors to rent the lands until the youngest child became twenty-one, and then to sell and divide the proceeds among the heirs. Id., § 58. It follows, therefore, that immediately upon the death of the testator the son became vested with a present estate in fee to the undivided one-twelfth part of this farm, subject to the execution of the power in trust. His estate could not be defeated until the youngest child became of age, when the executors were authorized to sell and distribute the proceeds. The estate which Alfred had in both farms was descendible, devisable •and alienable in the same manner as if it had been an estate in possession. Id., § 85. It was consequently subject to the lien of any judgments that might be recovered against him while it continued, and to sale under execution thereon, and the purchaser would take the estate which he held and succeed to whatever rights he had in the property. Code Civ. Pro., §§ 1251, 8848, sub. 6. It must then be held that the plaintiff acquired a lien as a judgment creditor upon the estate which Alfred had in these farms by the judgments recovered against him in 1877 and 1878. The deed from Alfred to Williamson in 1884 conveyed this estate to the grantee, subject to the lien of the plaintiff’s judgment. The power of sale became operative as to the homestead farm June 25th, 1887, and as to the other farm March 21st, 1887, and the subsequent execution of the power on April 2d, 1888, became effective as of these dates respectively to extinguish the estate which Alfred had in the land, and resulted in an equitable conversion of the land into money as of the times when the power might have been exercised, and thereafter the rights of all parties interested in the estate which Alfred had in the land were transferred to the fund, including the lien of the plaintiff’s judgment. The sheriff’s sale on execution, September 29th, 1887, made no change in the relative rights of the parties to this action, inasmuch as the judgment creditor became the purchaser, and it was overreached by the subsequent execution of the power of sale.

On May 29, 1888, when the executors had their final accounting, the legal situation may be thus summarized: The executors had in their hands a fund of $2,245, which represented the share to which Alfred was originally entitled in the testator’s real property ; the plaintiff had a lien upon the fund for the amount of his unpaid judgments, and Williamson and another had the legal title to the fund by transfer from Alfred subject to the lien of plaintiff’s judgments. In a proceeding instituted by the executors in conformity to the statute, and to which all persons were presumably made parties whom the law required to be cited, the surrogate on that day directed the executors to pay over this fund to the grantees of Alfred, which decree the executors obeyed. The plaintiff was not a party to this proceeding, and the Code did not require his presence in order to confer jurisdiction upon the surrogate to make the decree, and his right to or interest in the fund was not affected by the decree. So far as he was concerned its sole effect was to discharge the executors from all further responsibility as custodians of the fund and transfer the fund into the possession of Williamson and the executor of Jane E. Best’s estate. Whatever lien he had on it in the hands of the executors remained unimpaired by the change of possession, and whatever remedies the law authorized him to adopt for the purpose of enforcing his lien were available to him after the payment of the money to the judgment debtor’s grantee to the same extent as before. The decree, therefore, did not operate to deprive him of any rights, and the guaranty of the Constitution that his property shall not be taken from him without due process of law was violated.

The plaintiff seeks to make the executors individually liable upon the ground that money in the hands of one person to which another is entitled, may be recovered in a common-law action. Roberts, v. Ely, 113 N. Y., 128; 22 St. Rep., 185; Hovey v. Elliot, 118 N. Y., 124; 28 St. Rep., 761. But this principle has no application to the case of an executor having funds for distribution belonging to the testator’s estate. He owed no active duty to the plaintiff beyond that involved in the faithful administration of his trust. There is no law which authorized or required him to pay the- plaintiff’s judgments out of the moneys in his hands. His full duty was done when he brought the fund intact into the surrogate’s court, and, after citing the legatees and next of kin and creditors of the testator, if any, distributed it in accordance with the surrogate’s decree. If the plaintiff did not desire to be compelled to follow the fund into the hands of the distributees, there are different ways in which he might have protected himself; either by the proper equitable action to establish his lien, or by applying to the surrogate to be made a party to the proceedings for an accounting; or if he was not aware of the decree until after it had been entered by making a seasonable application to open it so far as it related to the distribution of this fund. He could have filed a caveat with the surrogate, disclosing his interest in the fund, and requesting to be notified of the proceedings for an accounting whenever they might be had, and it cannot be doubted that the surrogate would have complied with so reasonable a request. In any view of the situation the burden of activity was upon the plaintiff and not upon the executors, and he cannot complain if he is now required to assert whatever claim he may have to the fund against the party to whom, by the judgment of a competent tribunal, it has been transferred.

It has been urged by the respondents’ counsel that by the execution of the power of sale, the land was converted into personalty and the legal title of the heir was thereby divested and defeated, and that the legal title and estate of the heir failing the lien of the judgment must fall with it. That would necessarily be the result where the heir and the distributee of the proceeds under the will are different persons; but where they are the same person another rule, we think, must prevail. The conversion of the realty into personalty proceeds upon equitable principles. While the change in the quality of the property is made in accordance with the will of the testator, equity requires that the intervening rights of purchasers and lienors shall be protected.

A purchaser from the heir and distributee acquires a good title to the estate in the land before the sale, and to the proceeds after it has been coon verted. If the heir incumbers his estate in the land by mortgage, the conversion of the pledge into money, which still belongs to him, ought not to be permitted to involve the destruction of the security, and a judgment is a contract of as high a degree of solemnity by means of which he permits a lien to be created upon the land, and is entitled to equal protection. The-ownership of the property in both of the forms, which it may assume, is continuous and uninterrupted, and so far as practicable, all the incidents of ownership should be preserved. The stability of property rights should not be unnecessarily disturbed in effecting the transformation. In fact, the conversion may never occur, for it has been repeatedly held that the legatees may elect to take the lands instead of the money, in which case the power of sale is extinguished, and it was held by the supreme court at general term that where the heir and legátee conveyed his estate in the land before the power of sale became operative, that it was an election on his part to treat the property as realty, which as between him and the grantee becomes final. Reed v. Underhill, 12 Barb:, 113.

The judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    The People, Resp’ts, v. Matthew Johnson, App’lt.

      (Court of Appeals,

      Filed December 12, 1893.)

    1. Homicide—Evidence—Sketch of premises.
    On the trial of an indictment for murder in the first degree, sketches made by an artist showing the locality of the blood stains in and about the locality of the murder, shown to be accurate by the testimony of the person who made them, are admissible in evidence.

      2. Same.
    Where a witness, in answer to questions by defendant’s counsel as to an interview with one S., testified that the latter said that he came from defendant, the prosecution has a right to inquire of the witness as to the language used by S. in conveying that idea.
    8. Trial—Charge.
    On the trial of an indictment for murder where the evidence connecting-defendant with the crime was wholly circumstantial, the court refused to charge on request that direct evidence is always the most satisfactory, and that the jurors should be convinced as jurors when they would be convinced as men, and should doubt as jurors when they would doubt tómen. Held, no error; that the first proposition is untrue, and the other would eliminate the oath and responsibility of the jury.
    Appeal from the judgment of the New York general sessions, entered upon verdict convicting defendant of the crime of murder in the first degree.

      T. McCants Stewart, for app’lt; H. B. B. Stapler, for resp’t.
   Finch, J.

The death, and the violence which caused it, alleged in the indictment, were proved in this case by direct evidence as: the law now requires, and were put beyond controversy by the finding of the dead body, with the marks of murder upon it. But the guilt of the prisoner as the perpetrator of the crime was established, as it may be, by evidence wholly circumstantial in its ■character. It is assailed on this appeal as being equivocal and inconclusive, consistent with a possibility of innocence, and not strong enough to justify the verdict founded upon it. We have read it and reflected upon it with the care and deliberation due to the extreme gravity of the inquiry, but without finding any reason to doubt or distrust the conclusion reached by the jury. A sufficient and adequate motive .for the crime, consisting of revenge for a supposed injury, and supplemented by a desire to obtain the money known to have been paid to the deceased and which was stolen from his person ; a convenient and presumably safe opportunity arising from the prisoner’s familiarity with the premises, his knowledge of a place in which to hide until all the occupants of the building had departed after their usual habit, and leaving the engineer alone and unprotected while closing the premises and preparing for his own departure; the presence of the tools and instruments sufficient to effect the killing, the existence and locality of which were well known to the prisoner, and which were found near by, with blood and hair upon them; the track of the murderer from the basement to the washing closet on the fourth floor, shown by the bloody finger marks on the doors passed in the ascent and the stains upon the towel used in an effort to efface the marks which the struggle had left upon him; the theft of the black trousers left on the same floor, and which on the next day, were found in the possession of the prisoner, who sought to dispose of them to others; his display immediately after the killing of an amount of money, and in denominations closely corresponding to that which was taken from the pockets of the deceased, coupled with the fact that before the killing the prisoner was penniless, unable to pay his rent, borrowing small sums where he ■could, out of work and earning nothing, and pawning his clothing to relieve his want; his manifest falsehood as to the source from which he obtained the money, his effort to frame and prove a false defense of absence in New Jersey on the day of the homicide; the blood stains on the clothing and shoes which he wore on that day ; his attempt to avoid and escape arrest when the crime became known and suspicion was aroused; the fact that while offering himself as a witness and protesting with a vehemence almost amounting to blasphemy that he was innocent, he nevertheless gave no explanation of his possession of the stolen trousers, or of the money which he had displayed, but remained utterly silent where explanation was easy and imperative if innocence existed; all these incriminating facts, surrounded by and imbedded in others of less importance, point so surely to the prisoner as the author of the crime, and so exclude any other rational explanation as to compel our concurrence with the verdict of the jury. Their probative force lies largely in their combined and aggregate strength, each separate fact leading to and receiving from all the others a conclusiveness beyond its own. Some of them, alone and severed from their place in the sequence of the proof, have been criticised in the prisoner’s behalf, but are open to such criticism only in respects which are technical rather than substantial, and remain practically unaffected by it,

Thus it is said that the proof of blood stains upon the prisoner’s clothing lacked the necessary certainty, in view of the evidence that they might have come from the market in which he was in the habit of playing, and where the blood of animals was dripping; and that the expert called by the prosecution refused to swear positively that the stains were human blood. I doubt if any scientific ability can surely and with absolute certainty distinguish between the blood corpuscles of man and of some animals, under all circumstances. And it rather strengthens confidence in the opinion which Dr. Edson did express, that he refused to turn it into a positive assertion, and left it to stand as his judgment that the uniformity in size corresponding with that of human blood corpuscles, which characterized the stains examined, indicated that the latter were not caused by the blood of other animals. Nobody saw, nobody observed these stains before the afternoon of the murder, so far as the record shows, and that they were occasioned by human blood is indicated with, at least, a high degree of probability which is entitled to greater weight when put in connection with the other proof.

Again, it is argued that the prisoner’s expressions of malice toward the deceased were long before the killing, and followed by apparently friendly relations. That is true, but such relations continued only down to the time of his discharge, and after that the only direct proof we have which brings the two men together at all is that of the prisoner’s concealment on the premises, the vicious motive of which the deceased evidently suspected. And the prisoner’s animosity against the man whom he believed had occasioned his discharge might easily have resumed its influence and become Intensified when want of money and of work and the bitterness of absolute poverty revived its memory; and when to that is added the temptation of robbery adequate motives are shown, so far as such motives can be said ever to be adequate.

It is further urged that the money which the prisoner displayed was not absolutely identified as that which was paid to the deceased .on the day of his death. That also is true, but it does not weaken the facts that just before the killing the prisoner had no money, and no means of obtaining any, and was in distressing need of it, and immediately after the murder had in his possession almost exactly the amount paid to the deceased, and in the same denominations of currency, and that his explanation of where and from whom he got it was unquestionably false.

There was no error in permitting the drawings representing the premises to be put evidence. They were not photographs, but sketches made by an artist showing the locality of the blood stains in the basement and on the doors above. He swore to their accuracy from his own personal knowledge and observation. The learned trial judge was extremely careful about them. He required explicit proof of their accuracy, and where descriptive words were marked upon them stood ready to strike off any to which reasonable objection should be made. They served only to explain localities, and their accuracy was satisfactorily shown.

Nor was there error in admitting what is here criticised as being hearsay evidence. The witness Sawyer, when examined by the counsel for the prisoner as to an interview with Seay, was asked if the latter said that he came from Johnson, to which the witness replied in the affirmative. The answer involved his construction of what Johnson said to him, and indicated some sort of authority, or some requested action on the part of the latter, which, if disclosed, would explain or limit the answer. The prosecutor asked what it was that Seay said, or, in substance, what language he used in conveying the idea that “ he came from Johnson.” The prisoner’s counsel had drawn out that statement, and the prosecutor had the right to know the words which Seay used in making it. The door was opened to that extent at least, and the question and answer involved no error.

The charge of the court to the jury was careful, just and fair, so much so that no exception was taken to it; but it was followed, by a large number of requests to charge, most of which were granted, and a few only refused. That refusal in most cases was because the requests had already been covered by the charge, but in some because the propositions were erroneous. Thus there was a request to charge that direct evidence is always the most satisfactory, and that the jurors should be convinced as jurors when they would be convinced as men, and should doubt as jurors when they would doubt as men, each of which propositions sets up an unsafe and inaccurate standard by which to guide the judgment- The one is untrue and the other eliminates the oath and the responsibility of the jury.

I am unable to see any ground upon which the judgment against the prisoner should be reversed. The trial was fair and conducted with a careful regard for the rights of the accused; the judge presiding evidently realized that the prisoner was a helpless colored boy, without friends or money, and so entitled to have every possible right preserved with more than the usual care; the attorney who defended him at the trial did so faithfully and with all the resources at his command, and on the argument here the accused was represented by a counsel of his own race, who argued the case with courage and zeal and a professional ability worthy of commendation. We cannot see that any mistake has been made or any injustice been done, and so are compelled to decide that the verdict must stand.

The judgment should be affirmed.

All concur.


author: Gray, J.

text:
    Jacob F. Miller, Ex’r, Pl’ff, v. Robert Campbell, Def't.

      (Court of Appeals,

      Filed December 19, 1893.)

    1. Insurance (life)—Married women.
    An assignment by a married woman, who had a child living, of a policy in favor of herself and children, made prior to the enabling statute of 1879, is void.
    2. Same—Endowment policy.
    An assignment of an endowment policy made by husband and wife prior to 1879, will not be set aside at the suit of the wife where the husband survived the specified period, as in such event the interest of the wife ceases, and the right of the assignee under the assignment from the husband becomes perfect.
    Appeal by both parties from judgment of the New York superior court, general term, modifying judgment entered upon, findings and conclusions made by judge at special term.

      Jacob F. Miller, for pl’ff; George W. VanSlyck, for def't.

      Affirming 51 St. Rep., 596.

   Gray, J.

This action was originally brought by Hannah, wife of Eilev A. Brick, to set aside certain assignments of life insurance policies made to the defendant, and to compel their re-delivery by him to her. Pending the action she died, and her executor has continued it. The policies were five in number, and were all issued in 1872, upon the life of Mr. Brick. Four of them were issued by New York corporations, and one by a Massachusetts corporation. The assignments were made in 1877, and were intended to secure an indebtedness of Mr. Brick, the husband, to the defendant At the time of their making there was one child living; who died in the year 1882. A judgment rendered for the defendant upon a previous trial was appealed from, and being reviewed in the second division of this court, was there reversed. Brick v. Campbell, 122 N. Y., 337; 33 St. Rep., 520. A new trial was ordered, but previous thereto, the defendant conformed, in part, to the decision in the court of appeals, and delivered up three of his insurance policies. Of the two policies remaining, one was issued by the New England Mutual Life Insurance Company, of Massachusetts, and the other was issued by the New York Life Insurance Company, of New York With respect to the former, the conditions are unchanged from what they were when the case was before the second division .of this court; but the defendant insists that the question of a married woman’s capacity under Massachusetts laws was considered under an erroneous assumption as to what those laws were, and that the proofs do not warrant a decision that she was incapable of disposing of a policy for her benefit. That policy, unquestionably, was a Massachusetts contract; but that fact does not influence the consideration of the validity of the agreement by Mrs. Brick to assign it. As between the Massachusetts corporation and the assured, the contract would be governed bv the laws of that state; for it was made and was to be performed there.

Bat the contract which is in question here, is the agreement by the married woman to assign the policy, and its validity depends upon her capacity under New York laws to make it. Her status as a married woman was regulated by statute, and the disabilities under which she was at common law have disappeared in this state, only as they have been by successive legislative enactments specifically removed. Chapter 80 of the Laws of 1840 was an enabling act with respect to the married woman, which permitted her to insure, or to cause to be insured, the husband’s life for her, or her children’s benefit. It did nothing more towards enlarging her legal capacity with respect to such insurances; as it was held upon the previous decision in this court, following along line of cases, commencing with that of Eadie v. Slimmon, 26 N. Y., 9. Chapter 821 of the Laws of 1873 conferred capacity upon her to dispose of a policy, provided there was no child, nor issue, living, and finally,'in 1879, chapter 248, Laws of 1879, the legislature removed 1¡he restrictions upon her power to assign.

The terms in which the act of 1840 and its successive amendments were couched, are of general application to all insurances by or for married women upon the lives of their husbands, and are not to be deemed as affecting only insurances effected in this state. It was the policy of the law of this state, until the acts of 1873 and 1879, that the benefit of any such insurance should be beyond the power of the wife to lose by her acts. Hence, without further adding to the discussion of the question had upon the former appeal, it is our opinion that Mrs. Brick had no legal capacity to assign the policy of insurance to the defendant, quite irrespective of what the statutory law of Massachusetts may have been on the subject. The question of her capacity to contract was referable to the enabling laws of this state. I may add, however, this observation, that the law of Massachusetts respecting insurances made payable to married women in force when this policy was issued, as construed by the courts of that state, seems to warrant the inference that such an insurance was regarded as an irrevocable provision for the benefit of the family. Laws of 1864, chap. 197 ; G. S., 1873, chap. 58, § 62; Knickerbocker Life Ins. Co. v. Weitz, 99 Mass., 157 ; Gould v. Emerson, id., 154.

The other of the two policies, issued by the New York Life Insurance Company, was an endowment policy insuring Mr. Brick s life for fifteen years. The agreement of the company was to pay the amount of the insurance to Mrs. Brick, his wife, as the assured, “ for her sole use, if living, * * * and if not living to the children * * * or to the executors, etc., of the person whose life is insured * ^ ; or, if the. person whose life is insuied shall survive said term of fifteen years, * * * the sum above insured shall then be paid * * /* to him.” As the case came before the second division of this court, its decision was based upon the record as it stood. When the previous trial was had, this policy had not matured by its terms; the fifteen years period not having yet expired. After the reversal in this court, and before the last trial came on, a supplemental answer was allowed, which set up the separate assignments by Mrs. Brick and by her„ husband; the husband’s .survival of the policy period of fifteen years, and the consequent cessation of Mrs. Brick’s interest. Upon the trial these allegations were established by the evidence, as was the fact that the insurance company had paid the amount of the insurance moneys to certain persons to whom the policies had been assigned by the defendant, and at a date subsequent to the expiration of the fifteen years period mentioned in the policy. The trial judge, however, ordered judgment for the plaintiff as to this, as well as to the Mew England Insurance Company’s policy ; but at the general term the judgment was modified by striking therefrom so much as adjudged that the title to the Sew York Life Insurance Company’s policy was in Mrs. Brick. It was there held that her interest had ceased under the terms of the policy, and we think the modification of the judgment was correct.

While the fifteen years of the policy were running the policy was non-assignable by Mrs. Bi'ick, and the former decision rendered in this court, was, therefore, perfectly right. Subsequently, however, and before the new trial, an event had happened, by the expiration of the period of fifteen years, which deprived Mrs. Brick of her interest in the policy and vested every interest in her husband, Mr. Brick, to whom, by its express terms, the amount of the insurance had become due. The previous assignment to the defendant, however, had operated to transfer whatever interest he had in the policy, and the title of the defendant to the policy, which before was contingent upon Mr. Brick’s surviving the period of fifteen years, and thus acquiring a transferable interest, became perfect, and carried the right to him.or his assigns to receive payment from the company. It made no difference, in the case of this policy, that it was on what is called the endowment plan. It was equally non-assignable during its running, under the principle declared by the cases as to insurances for the benefit of wife or children. Brummer v. Cohn, 86 N. Y., 11. But, differing from ordinary life insurance, a certain period is fixed'by the contract, or policy, within which the obligation of the insurer runs to the wife, children, or personal representatives, and they had no right to receive payment under it beyond that period. Such an endowment policy combines, in its plan, an insurance of the life and an investment of the moneys paid. In the former feature it looks forward to and makes provision for a state of widowhood or orphanage in the case of the death of the person whose life is insured, pending the period specified, while in the latter feature, it secures to the person effecting the insurance upon his life for a certain period for the benefit of his family, a presumably profit able return of the original investment of his moneys with the company, and thus may be regarded as a provision for an advanced period of his life.

For the reasons given, the judgment appealed from should be affirmed, with costs.

All concur.


text:
    In the Matter of the Final Accounting of Frederick E. Barnes, Assignee.

      (Court of Appeals,

      Filed December 19, 1893.)

    1. Assignment fob creditors—Liability of assignee fob interest on FUNDS DEPOSITED IN INDIVIDUAL BANK ACCOUNT.
    The mere deposit by an assignee for creditors of the fund to his individual credit pending an action to set aside the assignment is not per se such a misappropriation as to subject him to a charge for interest greater than the possible loss by his omission to deposit it where some rate of interest might have been allowed ; he cannot in such case be charged the full legal rate.
    S'. Same—Taxable costs collected.
    The taxable costs collected by the attorney in suits brought against the assignee cannot be charged against the assignee on his accounting, although a gross sum was allowed for services as counsel; such costs belong to the attorney when collected.
    Appeal from order of the New York common pleas, general term, affirming order directing that the assignee be charged with interest on the moneys of the estate in his hands, and with the amount of taxable costs received in an action affecting the estate.

      Howard Y. Stillman, for app’lt; Winthrop Parker, for resp’t.

      Reversing 53 St. Rep., 119.

   Maynard, J.

The appellant, as assignee for the benefit of creditors, has been charged by the court below with interest upon the trust funds in his hands at the rate of six per cent per annum. He deposited the moneys in a national bank where he kept an individual account, and they were credited to him in this account as deposited. The assignment was executed March 2, 1887, and on January 8th, 1888, an action was brought to set it aside, which was pending for upwards of three years. A reference to take and state his account was ordered, and the referee reported in favor of charging him with two per cent interest upon the balance in his hands from time to time from the commencement of the action to the date of the report. The referee held that, as it must have been apparent when this litigation began, the distribution of the fund would necessarily be delayed, it was the duty of the assignee to have deposited the money in a trust company where it could have earned at least two per cent intei’est and been withdrawn on demand; and his account was surcharged accordingly. The special term, upon the motion to confirm the referee’s report, increased the interest charge to six per cent, the general term affirmed the order, and the assignee brings this appeal. _

_ This is not a case where the trustee held a fund for investment. In such cases if he fails to invest in such securities or in such manner as the law authorizes or the terms of his trust require, when he has the opportunity to do so, or might by due diligence make a proper investment, he is responsible to the beneficiaries for the loss they may sustain by his neglect of duty. Here the law neither authorized nor permitted the assignee to make any investment of the moneys received by him in his trust capacity. It was his -duty promptly to convert the assets of the insolvent’s estate into money; to keep the funds securely, and' at the time and in the manner required by law to distribute them among the creditors and other persons entitled to them.

The authorities, therefore, which hold that under certain circumstances a trustee may be liable for loss of interest because of an omission to invest, have no application. It may be that if he perceived that the fund must lie idle for a long period of time on account of the pendency of a suit which involved the validity of the trust, and he kept the money in bank, and there were solvent financial institutions known to him in the same city where it might be deposited subject to withdrawal on demand and interest be allowed, he should deposit it there, and if he failed to do it, he might be charged with the rate of interest which the fund might have earned. That question is not before us, for the appellant is satisfied with the account as stated by the referee. What he objects to is the difference between two and six per cent, with which he has been charged by the court below, not upon the ground that by any lawful use which he could have made of it, the fund could have earned six per cent., but because he deposited in a bank to his individual credit and not to his credit as assignee.

Except where there is a loss of interest by a failure to make an authorized investment we do not think a trustee can properly be made liable for interest not earned, and which could not have been earned by the exercise of diligence, unless there has been a misappropriation of the fund, or some misfeasance of the trust equivalent to it. If the trust moneys have been misappropriated, the trustee becomes the debtor of the estate to the extent of the misappropriation, and the law prescribes the rate of interest upon every indebtedness, where it is fixed by the agreement of the parties. Matter of Myers, 131 N. Y., 409 ; 43 St. Rep., 265. In the present case the assignee made no use of the trust funds in his business, or otherwise imperilled them. He always had on deposit to his credit at the bank, an amount in excess of the balance in his hands belonging to the estate; and we are asked to hold that the mere act of depositing the moneys in his individual name, with■out adding his title as assignee, was per se such a misappropriation of the funds as would subject him to a charge for the full rate of interest.- It is difficult to see upon what principle of justice such a claim can be founded.

The fund was not subjected to any greater peril than if it had been deposited in his name as assignee. In either case it might have been drawn out at his pleasure, and for such purposes as he might designate. The bank would not be responsible for the proper use of the moneys by the trustees. Mor was it, correctly -speaking, a commingling of trust moneys with his own. When deposited the identity of the money was lost and its ownership ■changed. Thereafter the relation of the bank to the depositor was that of debtor and creditor. The moneys were as secure against misappropriation as if they had been kept in his own safe or -strong box. Wherever they were they were necessarily under his •control and subject to his disposition. A dishonest trustee always las it in his power to misappropriate the trust funds. The appellant cannot be so classed for he preserved the fund in its integrity. Unquestionably it was his duty, if he deposited the funds in bank, to make the deposit in his name and to his credit as assignee of the insolvent debtor. A deposit of trust moneys should always-be in the name and to the credit of the trustee and not in his individual account. The condition of the fund will then, at all times' and in all contingencies, be more readily ascertainable and the temptation to use it for private purposes less. If the trustee omits his duty the risk is his own. But if there is no loss to the fund, the mere deposit to his individual credit will not subject him to a charge for interest, for this court has very recently held that where an investment of the fund is not permissible the trustee cannot be charged with interest which has not been earned unless there has been an actual misappropriation of the fund. Price v. Holman, 135 N. Y., 124, 134; 48 St. Rep., 381; Beard v. Beard, 140 N. Y., 260; 55 St. Rep., 408.

Upon the facts appearing in this case there was no conversion of the fund by the trustee to his private use, and it is not just that he should be charged with any greater amount than the possible loss to the fund by his omission to deposit it where some rate of interest might have been allowed. Matter of Cornell, 110 N. Y., 357; 18 St. Rep., 200.

The appellant has also been charged, and, as we think, erroneously, with $100, the amount of costs collected by his attorney in suits brought against the assignee which were unsuccessful These costs belong to the attorney and not to the estate. Wherever the legal title to costs may be as between attorney and client before collection, after they have been collected by the attorney his lien upon them has been reduced to possession and the client cannot ihsist upon their payment to him in the absence of aspecial agreement entitling him to receive them. The attorney was allowed for his services as counsel,in the litigation to which the assignee was a party a gross sum by the referee and the court below ; but it is very clear that this sum did not include, but was intended to be in addition to the costs collected. As the order stands the assignee will be compelled to pay the attorney the full amount allowed. He cannot deduct from it the costs collected by the attorney or require him to refund them. As the order stands the assignee is in effect required to pay $100 out of his private funds.

The orders of the general and special term must be reversed, with costs in all courts to the appellant, to be paid out of the estate, and the report of the referee confirmed and decree modified in accordance with this opinion.

All concur.


text:
    Frances D. Hall et al., Trustees, Resp’ts, v. Fanny Brennan et al., Ex’rs, App’lts.

      (Court of Appeals,

      Filed December 19, 1893.)

    Limitation—Death op debtoe.
    The maker of a note dated September 17, 1880, payable in one year, died. August 12, 1887, but letters testamentary were not issued until March 23, 1889. Action was brought on the note on March 21, 1890, Held, that the action was not barred by the statute of limitations ; that the period of eighteen months from the death of the maker not being a part of the time within which to commence the action, at the expiration thereof whatever remained of the time limited at the maker’s death should be added, and letters of administration having been issued within six months before the date so ascertained, the creditors had one year from the granting of the letters in- which to commence the action.
    Appeal from judgment of the supreme court, general term third department, affirming judgment in favor of plaintiffs.
    The promissory note sued upon was made by defendants’ testator of the date of September 17, 1880, and became due by its terms on September 20, 1881. The limitation of six years for the commencement of an action would have expired September 21, 1887. The maker died August 12, 1887. Letters testamentary were issued March 23,1889. This action was commenced March 21, 1890. The defense that it was barred by the statute of limitations was overruled at the circuit, and the judgment entered for the plaintiffs was affirmed at the general term. The defendants have appealed from the judgment of affirmance to this court.

      J. W. Houghton, for app’lts; Matthew Hale, for resp’ts.

      Affirming 46 St. Rep., 777.

   Gray, J.

We think the judgments below were right It is perfectly clear- that the action was commenced within the time limited by the statute, as a brief consideration of its provisions and of the facts will show. At the time of the death of the maker of this note, the six years had not run out by forty days. The event of his death operated, under § 403 of the Code of Civil Procedure, to suspend the running of the statute of limitations upon the liability. That section explicitly provides that the term of eighteen months is not part of the time limited for the commencement of an action against the executor or administrator. The eighteen months mentioned, being computed as calendar months, expired on February 13, 1889, under the familiar rule that in the computation of time, the day of the date of the event from which time runs is excluded. When the suspension, caused by the intervention of the statutory provisions referred to, was at an end, on February 13, the running of the sixth year was resumed. Of that year there had remained just forty days, when testator died, and if we compute that period of time from February 13, 1889, we are brought down to March 25, 1889. But bn March 23, letters testamentary had been issued upon testator’s estate, and, under § 403 of the Code, the plaintiffs had one year thereafter to commence their action. That section provides that if letters are not issued at least six months before the expiration of the time to bring the action, as extended by the eighteen months, the term of one year after their issuance is not a part of the statutory limitation of time. As the limitation of time expired, as I have shown, on March 23, the failure to issue letters six months before that date operated to give the plaintiffs one year more from their actual issuance, within which to commence their action. This they did.

According to the appellants’ contention, we should not add the number of days which remained at testator’s death in August, 1887, to complete the full sixth year; upon the theory that what the statute contemplated was simply to add eighteen months to the six years and, thus, to limit the computation to the whole time, within which an action must be commenced, to seven years and six months from the day when the note might have been sued upon. „ Upon this theory the seven years and six months would have expired on March 21, 1889, or two days before the issuance of letters testamentary. The difference, as it is easily seen, arises from the number of days being less in the month of February than in the month of August. The basis of the contention of the appellants is that § 403 is to be construed as requiring letters to issue before the expiration of the time to bring the action, in order that the creditor may have the benefit of the extension of one year thereafter, and, hence, thq additional year mentioned in the section should not be allowed here. It is' linnecessary to consider how correct is the construction thus attempted' to be given to the section; it suffices to say that the language of the provision in the section, respecting the term of eighteen months after the death of the person, is so clear as to be susceptible of but one meaning. If the eighteen months are not a part of the time limited for the commencement of an action, as it reads, then, when the death occurs, the operation of the statute of limitations is immediately suspended or cut off, and whatever then remained of the time limited necessarily must still remain when the suspension ceases.

Whatever interpretation we might give to the “ Construction Act ” of 1892, which appellants cite, and which defines the meaning of the term year to be twelve months, when used in statute -or contract, the provision of the Revised Statutes, in force at the time, was that the term year should be taken to consist of 365 days. 1 R. S„ 606, § 3. Upon that statutory provisión the plaintiffs had the right to rely, and, admitting that by the repeal of that provision of the statute a different computation plight become necessary, the legislative act could not operate to affect a valuable right which, by force of the statutes in existence, had become vested in a person. It was, therefore, within these plaintiffs’ rights to compute the time remaining of the six years, after the expiration of the eighteen months of suspension, by the number of days which were left of the sixth year when interrupted by the death of the maker of the note.

For the reasons stated, the judgment should be affirmed, with costs.

All concur.


author: Andrews, Ch. J.

text:
    Walter Logan, App’lt, v. The McCall Publishing Co., Resp’t.

      (Court of Appeals,

      Filed December 19, 1893.)

    Supplementary proceedings—Foreign corporations.
    Proceedings supplementary to execution may be instituted against a foreign corporation doing no business and having no agency in this state.

      Appeal from order of the Hew York common pleas, general term, affirming order denying motion to extend a receivership to plaintiff’s judgment.

      George W. Stevens, for app’lt; no appearance for resp’t.
   Andrews, Ch. J.

The order of the special term, which was affirmed by the general term, denied the motion to extend the receivership under an appointment in a prior action, to the judgment of the plaintiff in this action, on the ground that the provisions of the Code do not authorize supplementary proceedings against a foreign corporation in any case. It was held under the former Code that the provisions of. that Code relating to supplementary proceedings applied to natural persons only. Hinds v. C. & N. F. R. R. Co., 10 How., 487; Sherwood v. Buffalo, etc., R. R. Co., 12 id., 136. These were cases of supplementary proceedings under judgments against domestic corporations, and it was decided that remedies against such corporations, in case of insolvency, must be had under the provisions of the revised statutes. In this case it appears that the defendant is a foreign corporation, not doing any business in this state nor having any business or fiscal agency therein, or agency for the transfer of its stock, and by § 1812 of the Code of Civil Procedure such a corporation is excluded from the operation of § 1810, providing for the appointment of receivers of the property of corporations.

Section 2468 is a new provision, and seems by necessary implication, to authorize supplementary proceedings in a case like this. It declares: “ This article doe's not apply where the judgment debtor is a corporation created by or under the ' laws of this state, or a foreign corporation specified in § 1812 of this act, except in those actions or special proceedings brought by or against the people .of the state.” The defendant is not one of the foreign corporations specified in § 1812. The article in which § 2463 is found is the one regulating proceedings supplementary to execution. Section 2435 authorizes supplementary proceedings against a “ judgment debtor,” making no distinction between a natural person and a corporation. Section 2458 requires that the execution, in case the judgment debtor is not, when the execution is issued, a resident of the state, must have been issued to the sheriff of the county where the judgment roll is filed, unless the execution was issued out of a court other than that in which the judgment was rendered, and in that case to the sheriff of the county where the transcript of the judgment is filed.

Section 2452 provides how the order for the examination may be served upon a corporation. The only limitation upon the right to take proceedings supplementary to execution against any class of debtors is contained in § 2463, and this plainly does not embrace a foreign corporation doing no business and having no agency in this state; and this was the situation of the defendant.

The case presented to the special term showed a compliance with all the conditions precedent to the maintenance of supplementary proceedings. The plaintiff had a valid judgment upon which execution had been issued to the proper county and returned unsatisfied. The defendant was a nonresident It was not a corporation specified in § 1812. The plain implication from § 2463 rendered it subject to proceedings supplementary to execution. The policy of the state does not preclude the creditor of such a corporation from obtaining a preference upon assets here.

We think the orders of the special and general terms should be reversed, and that the matter should be remitted to the special term for further proceedings.

All concur.


author: Earl, J.

text:
    The People ex rel. The New York Hotel & Restaurant Co. et al., App’lts, v. Edward P. Barker et al., Com’rs of Taxes, Resp’ts.

      (Court of Appeals,

      Filed December 19, 1893.)

    1 Taxes—Application fob behission—Cobpobations.
    Section 822 of the consolidation act is applicable as well to domestic cor-orations as to individuals.
    2. Same.
    When a domestic corporation, by the absence of illness of all its officers and agents who had charge of the matter, is prevented during the proper time from making an application for correction of a tax against it, such corporation may afterward make the application under § 822.
    Appeal from order of the supreme court, general term, first department, affirming order denying motion for a peremptory writ of mandamus.

      Alfred B. Cruikshank, for app’lts; D. J. Dean, for resp’ts.

      Reversing 58 St. Rep., 590.

   Earl, J.

The relator, the Hotel and Eestaurant Company, is a domestic corporation, having its principal place of business in the city of New York, and its personal property was assessed for the purposes of taxation for the year 1892 at the sum of $200,000.

It is provided in the consolidation act relating to tbe city of New York, chapter 410, Laws of 1882, §§ 817, 818, 819 and 820, that the assessment books shall be kept open by the commissioners of taxes and assessment for examination and correction from the second Monday in January until the first day of May in each year, and that during that time application may be made by any person considering himself aggrieved by the assessment of his personal or real estate to have the same corrected.” Section 822 provides as follows:

“Sec. 822. The commissioners of taxes and assessments are hereby invested with power to remit or reduce a tax imposed upon real or personal estate. It shall require a majority of the commissioners to correct or reduce the assessed valuation of the personal property of any person, and no tax on personal property shall be remitted, Canceled or reduced unless the applicant or party aggrieved shall satisfy the commissioners that he has been prevented by absence from the city or by illness from making his complaint or application to them within the time allowed by law for the correction of taxes. Any remission or reduction of taxes upon real .estate must be made within six months after the delivery of the books to the receiver of taxes for the collection of such tax. The board of aldermen shall have no power to remit or reduce any tax.”

Within the six months specified in this section the relator applied to the commissioners upon affidavits to have the assessment canceled and removed from the assessment books, upon the ground that the corporation had no personal property liable to assessment, and the commissioners, after hearing the relators and reading the affidavits, determined that their application should be dismissed, and they refused to pass upon the merits of the same, upon the sole ground “ that the said commissioners had no power to entertain or grant the same, for the reason and claiming that a domestic corporation, having its place of business in the city of New York, could not be prevented by absence or illness from making complaint within the meaning of the Consolidation Act.”

The relators then applied to the special term for a writ of mandamus, directed to the commissioners, commanding them to entertain and consider their application for the cancellation of the assessment. Their application was denied upon the same ground taken • by the commissioners, and the order denying the writ was affirmed by the general term upon the same ground.

We think the construction of section 822 by the commissioners and the courts below is too. narrow, and that the section is applicable as well as to domestic corporations as to individuals. It is a remedial provision of law which should be fairly and comprehensively construed, with the view of giving all parties aggrieved the benefit of the remedy therein provided. The purpose of the provision is to prevent unjust and unequal taxation, and no reason can be perceived for denying the application to domestic corporations. Literally speaking, a domestic corporation cannot be “ sick ” or “ absent from the state; ” but corporations must act through their officers and agents, and if they are all absent from the state or are prevented by sickness from making the application within the time limited by the prior sections, we know of no reason why they should not have the benefit of section 822. The terms “he,” “his” and “person,” used in the statute, may comprehend a corporation. Various decisions and authorities upon this subject are found in the brief for the appellants, and are referred to without repeating them here. There is no reason why the party aggrieved in such a case may not act by an agent who has sufficient knowledge of the facts to present the proofs, and if the party should be absent from the state, or confined by illness to his house for several months,, it would be a very narrow construction of the statute to hold that he could not appear and make the application under that section by an agent or attorney who had sufficient knowledge of the matter. We have held that on what is called “grievance day,” the person assessed may appear by agent to procure a reduction or correction of an assessment made against him. Matter of Corwin, 135 N. Y., 245; 48 St. Rep., 238.

So, too, we think it is a fair construction of this section that if the owner of property residing in the city of New York, places his entire business in the hands of an agent who has full knowledge in respect thereto, such agent may appear for the owner and make the requisite proof upon an application for the correction of an assessment; and if that agent be prevented by absence from the state, or illness during the proper .time from making the application, it may be made afterward under this section. In such case the party assessed has been 'prevented by “ absence from the state ” or by “ illness," to wit, by the absence or illness of his agent from making the application. So when a domestic corporation, by the absence or illness of all its officers and agents who had charge of the matter, is prevented during the proper time from making the application, such corporation may afterward make the application under § 822.

It is undoubtedly true that this section may be construed as it has been by the commissioners and the courts below; but we think the intention of the legislature and the beneficient purpose of the provision will be best subserved by the construction we give.

Our conclusion, therefore, is that the orders of the general and special terms should be reversed and the case remitted to the special term for its action upon the application for the peremptory writ; and that the appellants recover their costs in all the courts of the respondents.

All concur.


text:
    Herman Kountze et al., Ex’rs, Resp’ts, v. Fannie Ida Helmuth, App’lt.

      (Court of Appeals,

      Filed December 19, 1893.)

    1. Vendor and purchaser—Waiver of defects of title—Knowledge OF ATTORNEY.
    As it is not the duty of an attorney to communicate any facts concerning the title of real estate which his client is about to purchase before the time when the balance of the purchase price is to be paid and the deed taken, it will not he presumed that any knowledge which he had on the subject was communicated to his client before that time.
    2. Same—Sale of fixtures pending investigation of title.
    A purchaser who, without having the actual possession, or the right to the possession of real property, undertakes to sell to some third person, pending the investigation of the title, some fixtures or other portions of the freehold does not thereby waive defects in the title.'
    Appeal from judgment of the supreme court, general term, first department, overruling defendants exceptions and rendering judgment for plaintiffs.

      L. Laflin Kellogg, for app’lt; George W. Van Slyck, for resp’t.
   Gray, J.

The action was to recover damages for breach by defendant of a contract for the sale of certain real property to plaintiffs’ testator. The title was rejected for defects appearing upon the records and that the title was objectionable, under the contract, is a question not in dispute here. But it was and is insisted for the defendant, as ground of error, upon which she is entitled to a reversal of the judgment entered upon a verdict directed for the plaintiffs, that there was evidence, upon the trial, of a waiver by plaintiffs’ testator of the defects in the title; which should, at least, have been submitted to the jury, if it was not conclusive in law. The waiver is said to have been evidenced in the taking of possession by Mr. Kountze of the premises, under the contract of sale, and in selling a portion of the freehold after full knowledge of the defects in the title. An abstract of the title was handed to Mr. Kountze’s attorney, when the contract was made, and an examination of its contents would have revealed the matter's relied uponas defects in the title. The knowledge imputable to the attorney is sought to be charged to the client; but, whether the attorney had actually, during the time the contract was running, the requisite knowledge from the abstract, or from an examination, or not, the principle contended for would be beyond what could find justification in the law. It was the attorney’s duty to examine and to form an opinion of the title, and it became his duty to advise Mr. Kountze concerning it, at the time when, by the terms of the contract, the balance of the purchase money was to be paid and the deed to be taken. As it was not his duty to communicate any facts concerning the title before that time, it will not be presumed that any knowledge which he had upon the subject was communicated to his client. Such a communication, if deemed to be material, must be proved as any other fact.

The application of the principle contended for by the appellant’s counsel was in this state of facts. Dr. Helmuth, the vendor’s husband, desiring to take with him from the house certain bookcases, which were built into, or substantially fastened to, the walls of the library of the house, made a proposition for their purchase, which was eventually agreed to by Mr. Kountze. Dr. Helmuth commenced to remove them forthwith and without waiting for the closing of the contract It was argued that this act of selling was an act of ownership by Mr. Kountze, and a taking of possession under the contract We do not so regard it. It is immaterial, in our judgment, that Mr. Kountze may have supposed and stated, at the time he agreed to the transaction, that the title was satisfactory. Such a statement to a third person could not amount to a waiver. The facts did not evidence an intention to waive any objections to the title, which is essential to be shown, nor any assumption of ownership. It is not pretended that Mr. Kountze was ever let into, or ever went into actual possession. The vendor, Mrs. Helmuth, remained in possession, and Mr. Kountze had until the day fixed by their contract to complete his investigation of the vendor’s title to the premises. The agreement to sell the fixtures was subject, for its validity and enforcement, to the vesting of the title, to be evidenced in the way provided for in the agreement of sale, or by some conclusive act as between vendor and vendee anticipating the formal closing of their agreement Such an act was not only not proved, 'but the supposition that the vendor believed that Mr. Kountse had waived the defects in the title is wholly negatived by the extensions of time granted to her to make an effort to cure the' defects. Moreover, that Kountze did not intend to waive any objections to the vendor’s title is pretty clearly evidenced by his note to Dr. Helmuth, written the very next day after arranging for the sale of the bookcases, in which he suggested that he should wait until thé examination of the title was completed before removing the cases. Upon the question of the waiver by acts of ownership on the part of the vendee of land, counsel for the appellant refers us,' with seeming confidence, to the English case of Burnell v. Brown, 1 Jacob & Walker Ch., 168. But it is not at all apposite in its facts. That was a sale of an estate by auction in September, 1812.

In January, 1813, an abstract was delivered by which a reservation of the right to shoot over the estate appeared. In April following the defendant, at his own request, was let into possession. The greater part of the purchase money was paid without objection until in October following, when the purchaser claimed he-should have some compensation, by way of deduction from the price, because of the reservation over the estate. There is no such likeness to this case as to make it an authority in point; nor is it conceivable that any authority can be found which would go to the extent of holding that a purchaser has waived defects in title, who, without having the actual possession,or the right to the possession of the real property, undertakes to sell to some third person, pending the investigation of the title, some fixtures or other portions of the freehold. Such an agreement, however expressed, is dependent upon the future consummation of the contract of sale between the parties.

The judgment should be affirmed, with costs.

All concur.

      Affirming 51 St. Rep., 795.


text:
    In the Matter of the Judicial Settlement of the Accounts of Executors of Frederick D. Hodgman, deceased.

      (Court of Appeals,

      Filed December 19, 1893.)

    1. Legacies—Dividends.
    Testator devised certain real and personal property, and also the further legacy of “the sum of $50,000, which may he invested in bank stock, Fort Edward and Wyoming, Iowa, and in bonds” in lieu of dower. The legacy was directed to be paid by the executors as soon “ as convenient.” The widow, about sixteen months later, received the amount of the legacy in the bank stock mentioned and cash, and receipted for the amount of the legacy. Held, that the legacy was not specific, but general, and did not carry with it accrued dividends on the stock.
    8. Same—Interest.
    In such case the legatee is not entitled to interest.
    8. Executors and administrators—-Commissions.
    Where, in a general settlement between the parties out of court, an executor accepts a certain sum and describes it as “ my fee as executor of said estate,” and such allowance has been approved by the surrogate, the executor cannot be allowed to recover -further commissions.

      4. Will—Provision in lieu of dower—Effect of acceptance.
    The right of a widow to take, as distributee, a share of lapsed legacies is lost when she accepts a provision made for her in lieu of dower.
    5. Executors and administrators—Accounting—Appeal.
    Where an executor has brought an action against his co-executors to compel an account, and has brought into the proceeding everyone interested in the result, he has no further duty in their behalf nor any interest in the decree beyond what affects his own rights, and cannot appeal save from the portion affecting such rights.
    6. Same—Overpayment.
    The law does not recognize an overpayment, and does not permit the executor to credit himself with the excess.
    '7. Same.
    Where the executor paid the full amount to a legatee voluntarily, and claimed and was credited with it on his accounting, he cannot recover back a portion thereof .as an overpayment.
    (Gray and Maynard, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, third department, modifying, and affirming as modified, the decree of the surrogate of Washington county settling the accounts of the executrix of the decedent and of the executors of deceased executors.

      Charles S. Foote, for applt C. H. Sturges and Edgar Hull, for resp’t.

      Affirming 52 St. Rep., 727.

   Finch, J.

There are some questions in this case which touch the personal interest of the appellant, and upon which she has a right to our judgment. The facts upon which they arise cover but a small part of the general controversy, and are as follows:

The testator, Frederick D. Hodgman, died in 1873 and after having made and executed his last will and testament, by the terms of which his widow, now Mrs. Yates, and who is the present appellant, was made executrix, and Alfred 0. Hodgman, Philander 0. Hitchcock and James Cheeseman executors. Letters -testamentary were issued to them on February 13, 1874, and.all four qualified and entered upon the performance of their duties. Cheeseman died in 1882 and is represented in these proceedings by James H. and Olive Cheeseman, his executor and executrix. Hitchcock died in 1888 and letters testamentary under his will were issued to Asahel B. Wing. The present proceedings were commenced in 1889 and took the form of a final accounting before the surrogate of the representatives of the deceased executors, and of the surviving executrix and executor, and it is from ¡the ■decree rendered on that accounting that Mrs. Yates now appeals, claiming the right to do so as executrix, as widow and as legatee. The testator by his will, devised to his wife the property real and personal which constituted their home, the value of which was nearly eleven thousand dollars, and which she retained and kept as her own without any dispute or contention, and which formed no part either of the inventory or accounts. He then gave her a further legacy phrased thus: “ I also give to my said wife the sum of $50,000, which may be invested in bank stock, Fort Edward and Wyoming, Iowa and in bonds.” He then declared that the devise and the legacy w.ere to be accepted by the widow “ in full satisfaction and recompense of and for her dower or thirds which she may or can in any wise claim or demand ” out of his estate. Some other legacies were given, one of which was the sum of $500 to the executors, which they were directed to invest and keep invested and expend the interest in the care of testator’s cemetery ' lot. A residuary clause covering all the rest of his property carried everything remaining to his nephews and nieces in equal shares. Outside of the home, specifically devised with its belongings, there was inventoried personal property to the amonnt of a little over ninety-six thousand dollars, and there were in addition several pieces of real estate.

The widow received the full sum of $50,000 on the 22d day of June, 1875, which was about one year and four months after the issue of letters testamentary, and gave a receipt for it which reads thus: “Received from the executors of F. D. Hodgman, deceased, fifty thousand dollars, the amount of the legacy left by the said Hodgman.” She accepted payment in the Fort Edward bank stock at an agreed premium, in the Wyoming bank stock at par, and in cash to the amount of $7,854.50, which made up the balance. The will specifically directed the payment to the wife thus: “ I desire the legacies to my wife paid as soon after my death as convenient to my executors.”

The widow now claims that certain dividends upon the bank stock collected and received by the executors belonged to her and should be accounted for to her. That would be true, if the bank stock had been specifically given to her, but not otherwise. The legacy is of the sum of $50,000, and is merely demonstrative and not specific. It points out the source from which payment was expected to be made, but is to be regarded as a general and not a specific legacy, and so the dividends accruing before payment did not belong to the legatee. Giddings v. Seward, 8 N. Y., 865; Newton v. Stanley, 28 id., 61.

But it is further claimed that if regarded as a general legacy it drew interest from the date of testator’s death, and such interest should have been allowed. There are exceptional cases of that character, but they are those in which the testator has not prescribed the time of payment and we are permitted to infer an intent that it should be made earlier than the year fixed by statute. In this case the testator himself directed that it should be made as soon 'after his death as should be convenient to his executors,, and he made his wife executrix so that she could pay herself,_ or at least know when the time of payment should arrive. Hothing in the case shows that payment was unduly postponed. The widow’s conduct indicates that it was not. She accepted the principal in full of the legacy without claim of interest, and as that, was not given by the will and was chargeable, if at all, only as damages for delay, her acceptance of the principal excludes the right, more than ten years later, to demand the interest. Cutler v. Mayor, 92 N. Y., 166.

She further makes a, claim for commissions. There are two answers to that. One is that she was paid and accepted $353 for her commissions which she described as “ my fee as executrix of said estate.” This payment was made when it is evident that there was a general settlement out of court in progress among the parties, meant to include all interests. As she never took any charge of the estate the allowance was liberal, and having been approved by the surrogate and the general term as an equitable proportion due to her we onght not here to reconsider it in the face of her own written assent.

But she further claims, as distributee, a share of certain lapsed legacies. She has no such right. It was altogether lost when she elected to take the provision which the testator made for her. That was in lieu of her dower and thirds, or, in other words, of any right as dowress or distributee “ which she may or can in anywise claim or demand out of ” the estate. There is not the least doubt of the meaning of the provision, and whatever may be said about the lapsed legacies she has no interest in them and is entitled to no part of them. Matter of Benson, 96 N. Y., 499.

I do not see how the appellant is or can be affected, beyond the questions considered, by the settlement of the accounts of the other executors, as adjudicated by the surrogate’s decree. If I could see in the result the faintest trace of danger to her I should not hesitate to advise a reversal of this decree as manifestly wrong in many important respects. In that event we should seek to ascertain how an estate of about $128,000 and which owed at its owner's death, so far as I can see, not to exceed fifteen or twenty thousand dollars, has, after paying not more than eighty thousand dollars of legacies, become totally bankrupt and indebted to one of the executors for about ten thousand dollars, which there are no assets to pay.

We should inquire, also, why Hitchcock, after having been once credited with the Cobb trust, fund of ten thousand dollars, as delivered by him to one or more of his associates, and which was paid to the legatees by Mrs. Yates, and for which her account is credited, is a second time credited with that sum and permitted to swell his account to that extent against the estate. We should seek to know on what principle payments made to the residuary legatees were credited to the executors when the result reached shows that no residue remained. And we should consider whether a jumble of items made up in total disregard of the rules for stating such accounts should be allowed to serve as the basis for deliberate judicial action. Such an inquiry might or might not change my present belief that the estate of Hodgman does not owe the estate of Hitchcock a single dollar; but I am saved its necessity by the fact that none of the parties affected by it complain of it, and that Mrs. Yates is the sole person appealing. It may be that she did her duty in calling her co-executors to account, but when she brought into the proceeding everybody interested in the result she ceased to be in any respect their protector or representative, and had no further duty in their behalf. When the accounts were settled she ceased to have any interest in the decree beyond what affected her own rights, and had no authority to proceed on the appeal as the champion of those who submitted to the decree and did not appeal at all Bryant v. Thompson, 128 N. Y., 426; 40 St. Rep., 439.

It is suggested, however, that the unpaid debt found due from the Hodgman estate to the Hitchcock estate may compel an abatement of the appellant’s legacy. I cannot see any such possible danger. The surrogate had jurisdiction, and it was his duty to make the final distribution. If for that purpose an abatement of legacies was necessary, the account should have shown it, the executor should have claimed it, and the decree should have so provided. The law does not recognize an over-payment, and does not permit the executor to credit himself with the excess, for the inquiry always is what the estate owes, and .the surrogate has jurisdiction to decide that question. In re Underhill, 117 N. Y., 475; 27 St. Rep., 720. His decree, therefore, is conclusive upon all the parties duly cited, Code, §§ 2742, 2743, and settles that the allowances made to the accounting party in payment of legatees and ■others are correct Here the Hitchcock estate credited itself with the full legacy paid to the widow. That was an admission of a sufficiency of assets for the purpose, made when all the facts were known, and a payment which the surrogate by its allowance to the executor has adjudged to be correct, and, therefore, a debt which the estate was liable to pay in full. The decree will as a consequence be conclusive upon the executor in that respect. If it be granted, as probably it must be, that an executor may, at least in equity, recover an over-payment to a legatee under peculiar circumstances which excuse bis mistake, Walker v. Hill, 17 Mass., 384; Lupton v. Lupton, 2 Johns. Ch., 627; Gallego v. Att’y Gen., 3 Leigh, 485, 486, yet that can never be in a case where the executor not only paid the full amount voluntarily, but .on an accounting claimed credit for it as a just and proper charge against the estate, and has been credited with it as such in the final decree. It would be a strange process to allow the payment to the executor as in part the basis of his recovery against the estate, and then permit him to dispute the allowance in order to get his pay. The Hitchcock estate is, therefore, bound by the decree, and can have no future action for an abatement or ^ refunding, and the danger suggested does not exist. And that is more strongly true where the decree shows on its face that the deficiency of assets disclosed is.largely, and perhaps entirely, the result of payments to residuary legatees which must first be applied and exhausted as assets before any resort can be had to the general legacies.

We agree, therefore, with the general term that the executrix has no interest in the ultimate questions depending upon the correctness of the account

The judgment should be affirmed, with costs.

All concur, except Gray and Maynard, JJ., dissenting.


text:
    John Cahill, Ex’r, App’lt, v. Mary A. Russell et al., Resp’ts.

      (Court of Appeals,

      Filed December 19, 1893.)

    1. Will—Power of sale.
    While a deficiency of personal estate for the payment of legacies will not of itself be sufficient to raise a power of sale, yet where words are used fairly expressive of an intent that the executor shall sell, but their import is uncertain or equivocal, the necessity of a sale, in order to give full effect to the will, may properly be permitted to have great weight in the construction of the instrument.
    2. Same.
    By a clause of the will in question the testatrix gave the use of a portion of certain premises, free of rent, to her sister “until the sale and conveyance by my executor as hereinafter provided;” but in no other part of the will was a power of sale mentioned. By codicil she cut down the legacies one-half, and gave the residuary estate to a grandson. At her death the personal and other real estate was insufficient to pay the legacies. Held, that there was an intent to give a power of sale to the executor and that the special term properly held that he had such power.
    Appeal from judgment of the supreme court, general term", first department, modifying judgment of special term construing a will.

      C. Elliott Minor, for app’lt; George W. Cotterill, for resp’ts.

      Reversing 52 St. Rep., 760.

   Maynard, J.

Mrs. Broderick died in 1890 leaving a will and five codicils, the judicial construction of which is sought in this action. She was the owner of premises known as number 227 East Fifty-second street, New York city; and the principal contention of the parties involves the question whether a power of sale of this property is given to her executors. In the will she bequeathed to various legatees sums aggregating $27,000, including a legacy of $5,000 to her only heir at law, an infant grandson. There was no residuary clause, and in the last paragraph she appointed an executor, bnt did not confer upon him a power of sale in express terms. The second paragraph of the will reads as follows : “ Until the sale and conveyance of said premises by my executor as hereinafter provided, I give and devise unto my sister, Catherine Denny, the use of the top floor of the house and premises known as No. 227 East Fifty-second street, New York city, free of rent.

In the codicils she revoked legacies to the amount of $13,500, and in the last one, executed three days before her death, she inserted the following residuary clause: “All the rest, residue and remainder of my estate, both real and personal, and wheresoever situated I give, devise and bequeath to my grandson, Joseph H. Brennan, absolutely forever.”

The final result of her testamentary efforts was to bequeath general legacies to the amount of $13,500, and to give the grandson the entire residuary estate in addition to the legacy of $5,000. All the legacies were given to near relatives except $1,000 bequeathed for charitable purposes. Her net personal estate did not exceed $3,000. The Fifty-second street property is valued at $12,000, and she owned the equity in a lot in One Hundred and Thirty-ninth street worth $2,000. If the executor has authority to sell the premises in Fifty-second street, the legacies can be paid in full and leave for the residuary legatee a surplus of $1,500 and the lot in One Hundred and Thirty-ninth street.

The special term decided that there was an implied power of sale given to the executor, but the general term reversed the judgment in this respect, and the executor has appealed.

It is evident that the testamentary plan which the executrix had formulated in her own mind contemplated the grant of a power of sale to her executor. If the form adopted to express her intention is ambiguous or incomplete the intent nevertheless should prevail. Formal words are not necessary to create a power and, to quote the language of Sugden, “ However obscurely in a will the intention may be expressed, yet if it appears that a power of sale was intended, a sale will be supported.” 8th ed., p. 426, § 7. If the authority to sell is eliminated from the second paragraph it is difficult to give its provisions a rational interpretation. The limitation which she placed upon her sister’s right of occupancy pre-supposes the existence of the authority. It is certain that she did not intend that Mrs. Denny should have the use of a part of the premises for life, or that it should vest in her and her heirs in fee; and yet the one conclusion or the other must follow if the right of the executor to sell is denied. The clause might well be paraphrased in the language of the testatrix without violence to its meaning so as to read: I intend that my executor shall sell and convey my Fifty second street property and until sold and conveyed by him, I give the use of the top floor to my sister, Mrs. Denny.” There is scarcely room for doubt that this was the thought which she attempted to express, and she put it in words which do not differ from it in legal significance and effect. It is too narrow a view of this clause to say that its principal or primary object was to make a temporary provision for her sister. What was in her mind apparently when she undertook to frame it was the disposition of the entire premises. She knew that if her will was to be carried out they must be sold and converted into money in order to pay the general legacies, and, anticipating that some period of time must necessarily elapse after her death before the sale could be had, she desired that her sister might occupy a part of the property meanwhile free of rent. The provision for the sister was incidental to the main purpose which she wanted to accomplish. In the preceding paragraph she had 'given Mrs. Denny a legacy of $3,000. It appears from the second codicil, executed eighteen months afterwards, that the sister had died in the meantime, and in the codicil she revokes the legacy and makes other disposition of the money bequeathed ; but the second paragraph is not touched. It may be assumed that it would also have been revoked if it had been regarded as containing nothing more than a provision for the sister.

If the phrase, “ as hereinafter provided,” had not been interpolated into paragraph two there would have been no ground for controversy. But the sense is complete without these words, and they may be rejected as redundant. They must ,be so regarded if their retention will have the effect to render the entire provision nugatory. Whether qualifying or descriptive they must be subordinated to the main purpose of the author of the paragraph. It is'difficult to determine exactly what office they were intended to perform. They may be construed as indicative of an intent to confer express authority to sell in some subsequent clause, but which was unintentionally left out. They may have reference to the time and manner of sale, and other directions as to the exercise of the power which the testatrix then expected to give, but which she afterwards decided to omit. Or they may be restricted in their application to the subsequent appointment of the executor, who had not yet been named, and for whose appointment provision was thereafter to be made in the instrument. It is noteworthy that whichever view is taken of the meaning of this phrase the cardinal question of intent is not disturbed. They all assume that a sale was intended and are consistent only with the existence of a power to effect it. It is urged that this phrase may have been used because the testatrix intended to make a codicil in which a power of sale would be conferred, aud that she subsequently changed her mind in this respect. But snch a presumption is not admissible. The will at the time of its execution must be assumed to be the completed testamentary act of the maker. It is not to be presumed that she then intended to supplement it by further directions for the disposition of her estate, but rather to the contrary. The execution of a codicil is indicative either of a change of circumstances or a change of intent occurring after the execution of a will, which leads to a corresponding change in its provisions. This is strikingly exemplified in the case at bar. The codicils are mainly devoted to a revocation of general legacies. The amount thus bequeathed is cut down one-half. It is evident that after the will was made the testatrix discovered that she had overestimated the value of her estate, or that there had been an unexpected shrinkage in its value, and she reduces the amount given in general legacies accordingly.

In determining whether a power of sale was intended, it is important in a doubtful case to ascertain whether the general scheme of the will seems to require it. Here, if the power does not exist, the legacies must abate to the extent of nearly four-fifths of their amount. While a mere deficiency of personal estate for the payment of legacies will not, of itself, be sufficient to raise a power of sale, yet where words are used fairly expressive of an intent that the executor shall sell, but their import is uncertain or equivocal, the necessity of a sale, in order to give full effect to the will of the testator, may properly be permitted to have great weight in the construction of the instrument We, therefore, think the decision of the learned judge at special term was right in holding that the executor had power to sell, and it is not important to determine whether the power is imperative or not The executor is seeking to enforce it, and when executed the real property will be converted into personalty, and thus rendered available for the general purposes of administration, including, the payment of debts and legacies. Erwin v. Loper, 43 N. Y., 521; Matter of Hood, 85 id., 561 ; Glacius v. Fogel, 88 id., 434; Matter of Powers, 124 id., 361; 36 St. Rep., 347: In re Gantert, 136 N. Y., 109; 48 St. Rep., 889.

The judgment of the general term must be reversed, and that of the special term affirmed, with costs to the plaintiff and the infant defendant Brennan in this court and at general term, to be paid out of the estate.

All concur.