author: O’Brien, J. Van Brunt, P. J.

text:
    George Bliss et al., as Executors, etc., App’lts, v. Hiram Fogg, et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March, 1894.)

    1. Appeal—Who entitled.
    In an action by executors to compel the transfer of stock to them, a decision against their title places them in the position of parties aggrieved and entitles them to appeal.
    2. Will—Trust.
    If a trust is created, the beneficiaries acquire an interest which cannot be- divested by any act of either the trustee or the creator of the trust.
    3. Same—Void.
    A trust without a certain beneficiary, who can claim its enforcement, is void.
    4. New trial—Discretion.
    The granting of a new trial is a matter resting in the sound discretion of the court, which should be exercised whenever justice requires it.
    Appeal by plaintiffs and certain defendants from judgment of special term.

      J. Hampden Dougherty, for pl’tffs-app’lts; Levi S. Tenney, for def’ts-app’lts; William N. Cromwell, for resp’t Fosdick; James E. Chandler, for resp’t St. John’s Guild.
   O’Brien, J.

This action was brought to compel the transfer to . .plaintiffs of 1,000 shares of the capital stock of the Gutta Percha and Rubber Manufacturing Company, once the property of Elizabeth Fogg, plaintiffs’ testatrix, but assigned by her to the defendant Fosdick. Defendant Fosdick answered, setting up that the . stock was transferred to him by the plaintiffs’ testatrix, in trust, to divide among certain charitable institutions. The other defendants are Mrs. Foggs’ residuary legatees, and charitable institutions which, except St. John’s Guild, are beneficiaries under a codicil to decedent's will, which purported to dispose of said stock, and,, including St. John’s Guild, are likewise beneficiaries of the trust alleged by defendant Fosdick. St. John’s Guild was not originally a party defendant, and was not named in the codicil, 'but as it appeared on the trial that it was a beneficiary of the trust, if any, whereof the defendant Fosdick is trustee, it was made a party by order of the court, and has answered, setting up the trust in said defendant, and claiming to be entitled to share in the proceeds of the stock in question.

It is insisted that neither the executors nor the residuary legatees have a right to appeal, and this argument is supported by the statement that the charitable institutions who, with one exception, are entitled to take under both the codicil and the trust, do not appeal. The case of Bryant v. Thompson, 128 N. Y. 426 ; 40 St. Rep. 439, is cited as authority for this contention.

In that case the executors and trustees brought an action for the construction of a will, asking the court to determine which of the two parties was entitled to a certain fund in plaintiffs’ hands as trustees. The judgment rendered decided the question, which was acquiesced in by both parties to the fund, and it was therein held that the plaintiffs’ executors, were not parties aggrieved, and, therefore, under § 1294 of the Code, had no right to appeal.

The distinction between that case and this, we think, is apparent. This is an action brought by the executors for the purpose of compelling the defendant Fosdick, as trustee, to transfer the certificate of stock, and the question presented for decision is whether the executors or the said defendant are entitled to the certificate. Thus the question is one of title, and we think that a decision against plaintiffs’ title placed them in the position of parties aggrieved, within the meaning of the Code of Civil Procedure, and, therefore, that they have the right to appeal.

The right of the residuary legatees to appeal is more uncertain. There can be no doubt that a judgment rendered in plaintiff’s favor, upon the defendant’s default for failure to answer, would not leave to such defendant a right of appeal. But where, as here, the judgment rendered was not for the plaintiffs, by reason of a default in answering, but resulted from the service of the answer of a co-defendant demanding affrmative relief, which, by the judgment, was granted ; and when we remember that under the Code practice there- is no such thing as a defendant, upon whom a co-defendant so serves his answer, interposing any defense thereto, it is doubtful if a judgment awarded upon the answer of one defendant against his co-defendant leaves the person against whom the judgment is so awarded, though in default in his answer to plaintiff, in the position that he has no right to appeal.

It is not necessary, however, to determine the question whether the residuary legatees can appeal. Upon the motion made to dismiss the appeal of the executors, on the ground that they had no appealable interest, we held adversely to such contention, and, after a re-examination of the question, we adhere to our former opinion in holding that, upon the facts here appearing, which distinguish it from the case of Bryant v. Thompson, supra, the executors have the right to appeal.

With this preliminary question thus disposed of, it remains to be determined whether the stock of the Gutta Percha and Rubber Manufacturing Company is to be distributed under the codicil, or whether the stock vested in the defendant, Fosdick, as trustee, for certain charitable corporations.

Upon the trial it appeared that on January 3, 1891, Elizabeth Fogg, died, leaving a will, executed in 1888, and alsp a codicil, executed December 12, 1890, both of which instruments were admitted to probate.

The codicil, after certain bequests to servants in her employ, provided as follows : “ Second. Out of the proceeds of sale of one thousand shares of the Gutta Percha and Rubber Manufacturing Company, * * * and to transfer which a power has lately-been given to Mr. Charles B. Fosidick, I do hereby give and bequeath the sum of one hundred thousand dollars to be equally-divided among the following charitable associations ”—naming them.

Upon the death of Mrs. Fogg, the certificate of stock was found in her safe deposit box, with other securities belonging to her estate. She having died within twp months after the execution of the codicil, the residuary legatees, in order to cany out her wishes, executed a release of all claim to this stock.

All the parties, except the defendant Fosdick and St. John’s Guild, thought that the prayer of the complaint should be granted, requiring the transfer of the certificate by Fosdick to the executors for the purpose of having its proceeds distributed under the terms of the codicil, the residuary legatees going so far in that direction as not to interpose any answer. The defendant Fosdick, and subsequently St. John’s Guild, answered, alleging -that on December 19, 1890, Mrs. Fogg had requested him to accept from her, in trust, the certificate of stock, and to distribute the proceeds thereof among certain charitable organizations to be designated, in such amounts and proportions as she should direct; that she • indorsed the certificate to him that he might carry out the trust, and that on December 20th she delivered to him a letter, signed by her, as follows:

“I, this day place in your individual possession, conveying to you, all my right, title and interest in one thousand (1,000) shares stock of the Gutta Percha & Rubber Manufacturing Company. From the proceeds thereof I desire that you do appropriate the sum of one hundred thousand dollars in the name of Elizabeth Fogg, in sums of five thousand, dollars each, to the various charity organizations of which a list is hereto annexed.”

As correctly held by the learned trial judge, if a trust- was created, the beneficiaries acquired an interest which could not be divested by any act of either the trustee or the creator of the trust; and he cites with approval the language of the opinion in Levy v. Levy, 33 N. Y., 107, that, “if there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust without a certain beneficiary who can claim its enforcement is void, whether good or bad, wise or unwise.” While this may not ’be strictly so at common law, it is unquestionably the rule under our statute.

So far as Mrs. Fogg was concerned, it would appear from the testimony given as to the way in which the codicd came to be executed, that she intended to have the stock disposed of thereunder; but, as said, if a valid trust was created prior thereto, it was irrevocable, and the beneficiaries had the right to require its enforcement, notwithstanding the subsequent execution of the codicil.

There can be no doubt that on the 19th of December, 1890,. and up to the time that the letter to Mr. Fosdick was signed, Mrs. Fogg contemplated the creation of a trust, and the serious question in this case is, whether it was ever completed or rendered definite by the designation by Mrs. Fogg of the beneficiaries.

After the signing of the letter, it would appear that Mr. Fosdick concluded not to accept the trust, and suggested to Mrs. Fogg that the proper way to accomplish her purpose was to make some change in her will, and it was in accordance with this suggestion that the codicil was subsequently executed. All the elements essential to constitute a valid trust, the subject being personal property, were present except the designation of the beneficiaries. And whether these were or were not designated is the difficult question in this case. The letter states that thereto annexed is a list of the charity organizations who are to be the beneficiaries, but it is conceded that no list of beneficiaries was attached to that letter. The question, however, still remains whether a list which was prepared by a Miss Norton, who was an attendant on Mrs. Fogg, was ever delivered by Mrs. Fogg to Mr. Fosdick.

The learned trial judge states in his opinion, and has found, that, “ on the morning of the 20th of December, 1890, when said Fosdick called at her residence, the said list was delivered to the said Fosdick by the said Elizabeth Fogg.” If there is evidence sufficient to sustain this finding, then this conclusion is correct. And this involves an examination of the testimony given upon the trial to determine whether such finding is supported.

It is apparent that the only persons in a position to give testimony upon this subject are Mr. Fosdick and Miss Norton. The former, in testifying respecting this list, says: “If my recollection serves me now, when I went there in 'the morning (that is the 20th), Miss Norton had possession of that paper, and she handed that paper to me, and I handed it back again to her and told her she should keep it among Mrs. Fogg’s papers, and be sure it was preserved. That is my recollection of that paper.” “It was the morning I went‘there with that letter to be signed, and that letter is dated the 20 th; that is the only way I can remember it.” And in another portion of his testimony he repeated again that Miss Norton handed him the paper containing a list of the charity organizations.

Miss Norton testified that during the night of December 19th she was occupied in making out lists of charitable institutions ; that she made different lists until she got one pretty straight, and in the morning of the 20th gave it to Mrs. Fogg, and that Mr. Fosdick came there about nine o’clock. Being asked as to this list, the direct question whether Mrs. Fogg gave it to Mr. Fosdick, she answered as follows : “She gave it to Mr. Fosdick, I believe ; I can’t be sure about it." And she testified that Mr. Fosdick gave the paper back to her and told her to take care of it, and that it remained in her possession up to Sunday, the day of the execution of the codicil, and that she afterwards burned it, having copied the names onto another paper which she marked “Orginal,” and which was offered in evidence as Exhibit 3.

The only evidence that could be construed into a statement by either witness that the paper had been handed by Mrs. Fogg to Mr. Fosdick is found in one question and answer in the testimony of Miss Norton: “Q. That is a list, and it is a correct copy of the one you handed Mrs. Fogg which she gave Mr. Fosdick ? A. It is a correct copy.’’ Nowhere in the testimony is there any clear or definite statement on the part of'either Mr. Fosdick or Miss Norton of a delivery of the list of beneficiaries by Mrs. Fogg to Mr. Fosdick, nor does it clearly appear that such delivery was made by any one else, either with the letter or at any other time.

Whether the trust, therefore, was ever completed or' not is a question of considerable doubt. But, upon the testimony, we would not, perhaps, be called upon to interfere with the conclusion reached by the trial judge were it not for other considerations which, we think, justify a new trial.

The granting of a new trial is a matter resting in the sound discretion of the court, which should be exercised whenever justice requires it; and we think that such an instance is presented in this case, not resulting so much from any error in any ruling or conclusion reached by the trial judge, but from the conduct of the parties and the way in which the questions were presented and tried before the court. As already stated, all the parties, except the defendant Fosdick, who set up this trust, including the residuary legatees, proceeded upon the theory that the stock should be transferred by Mr. Fosdick, to whom it had been assigned under an uncompleted trust, for distribution under the terms of the codicil; and the good faith of the residuary legatees, who are directly affected and interested in the judgment appealed from, rested upon the motion that this would be the disposition made, and they did not put in any answer.

The importance of the inquiry as to the delivery of the list of beneficiaries does not seem to have been sufficiently impressed upon counsel at the trial, although it does appear that both endeavored to elicit testimony upon the question; but, as shown by the condition of the report, from which quotations have been made, the whole subject was left in a hazy, doubtful and uncertain state. This doubt and uncertainty, in a matter of so much moment and involving so much money, we think should be cleared up by a new trial.

It is with less reluctance that we reach this conclusion, because there should be a modification of the judgment in respect to allowing, in addition to the $100,000, the dividends which were declared upon the stock to those held to be entitled to share of beneficiaries.

In the letter the beneficiaries were to receive $100,000, and in addition thereto they might be entitled to interest It would seem, both from the terms of the letter and of the codicil, which speaks of giving $100,000 out of the proceeds of sale of the stock, that it was worth more. There is no intention expressed, however, of giving such beneficiaries more than the $100,000. It appears that large dividends were paid upon this stock, and it is clear that the dividends would follow the stock. The certificate would become the property of the trustee, who was directed to sell the same, and out of the proceeds of sale to divide $100,000. This amount, with the possible exception of interest thereon, is all that we think the beneficiaries were entitled to. The value of this stock over and above the $100,000 and interest we think should have gone to the executors, to be distributed under the terms of the will.

Upon the whole case, therefore, we think that justice requires that an opportunity should be afforded to the residuary legatees to interpose an answer, when with all the parties before the court, and with the issues clearly defined, it can be clearly and definitely determined whether or not Mrs. Fogg delivered the list upon which appeared the names of the beneficiaries.

Our conclusion is that the judgment should be reversed, and there should be a new trial, without costs to any of the parties upon this appeal

Van Brunt, P. J.

(concurring) I concur upon the ground that there was no sufficient evidence to show that the list of beneficiaries were ever delivered to Mr. Fosdick by Mrs. Fogg or at her request.

Follett, J., concurs.


source: Caselaw Access Project

author: Me Adam, J.

license: Public Domain

text:
    Benjamin L. Curtis, Individually and as Trustee, etc., Plaintiff, v. William Ogden Giles et al., Defendants.

      (New York Superior Court, Equity Term,

      Filed March, 1894.)

    1. Reformation—Contract.
    In the absence of fraud, a contract will not be reformed, because it is not as one party wanted it but as the other intended it to be, nor because its effect proved different from what he expected when it is just what the other party supposed and intended it to be.
    3. Compromise—Release—Revival.
    In order to revive a claim after compromise and release, the proof must be clear and convincing.
    Bill filed by pl’ff to reform contract

      O. G. Leeds, for pl’ff; Robertson & Harmon, for def’ts.
   Me Adam, J.

Where there is error in reducing an agreement into writing, so that the written instrument fails through some mistake of the draftsman to represent the real contract of the parties, or omits or contains terms or stipulations contrary to the. common intention, equity may reform the instrument so as to. make it conformable thereto. This is elementary, but the proofs fail to bring the present action within the rule stated. The plaintiff has also failed to establish a case of mutual mistake, or of mistake on his part, and fraud on the part of either of the other parties to the contract, which seems to have been drawn with, unusual care and particularity even as to details. It expresses “ the desire of all the parties thereto that all matters in dispute between them be adjusted and finally settled,” and the eighteenth paragraph contains, in writing, the wordy phraseology of the usual' printed general release, which, after enumerating every conceivable right of action, including bills, agreements, promises and the like, discharges all such rights from the beginning of the world to the date of the agreement. The relief sought by the present suit is the introduction into the release of words excepting from its operation all demands held by the plaintiff individually against William 0. Giles, one of the parties to the .instrument. The con-, tract is executed by the plaintiff, both as trustee and individually,, and he is described therein both in his individual and reprc sentative capacity. The intention to discharge individual as well as trust claims is apparent throughout. Everything is expressed to> the most minute detail, even the conditions, reservations, exceptions and the like, but is significantly silent in respect to the matters now sought to be interpolated. The plaintiff, who is a lawyer, read the paper, his friend, Mr. Keasboy, also a lawyer, read it, and it is apparent that it was executed understandingly without any fraud or artifice to induce its execution.

The defendant, William 0. Giles, occupied no confidential relation to the plaintiff and owed him no active duty." He was "not bound to instruct the plaintiff as to the legal effect of the instrument, for he, as a lawyer, was presumed to understand this as intelligently as any of the parties to it. The parties interested were making for themselves the best terms they could, and in consummating the arrangements it was obviously every one for himself. There had been no judicial settlement of the estates represented by the plaintiff for years' past previously, the amount involved was large, and the plaintiff, fearful of trouble, and anxious to relieve his mind from the worry and care of the situation. The plaintiff in the numerous consultations leading to the agreement, never referred to his individual claims against Giles ; these seem to form the smallest part of his anxiety. He never asked to have them excepted from the operation of the agreement, though he, as a lawyer, must have known that they were discharged under and by force of its terms. There is no proof that the agreement executed differs from that agreed upon, or that Giles would ever have consented to it with the proviso in, which the plaintiff now seeks to have inserted. The plaintiff does not ask to rescind the contract by restoring all the parties to their former rights, but desires to amend it in a manner favorable to himself. He ought to have suggested this amendment at the time, that it might have been discussed and some decision reached concerning it.

In the absence of fraud, a party cannot obtain reformation of a contract because it is not as he wanted it, but as the other intended it to be, nor because the effect proved different from what he supposed when it was just what the other party supposed and intended it to be. Equity may right wrong, but there is nothing for it to operate upon in the cases put. The mistake to be corrected must be one of fact and not of law. Ignorantia juris non excusat. Pomeroy’s Eq., § 842.

Stress is laid on the omission of Giles to ask the plaintiff for the return of his note. It was past due at the time the release was signed, and was a mere evidence of debt which the release operated upon and canceled as effectually as a surrender would have done.

While equity will give effect to the mutual understanding and intention of parties, and reform written agreements to conform thereto it cannot make new contracts for new parties against their will. These conclusions find warrant in Paine v. Jones, 75 N. Y. 593; Mead v. Westchester Fire Ins. Co., 64 N. Y. 453 ; Ranney v. McMullen, 5 Abb. N. C. 246; Berringer v. Schaefer, 52 How. Pr. 69; Moran v. McLarty, 11 Hun, 66 ; aff’d, 75 N. Y. 25 ; Wilson v. Deen, 74 N. Y. 531; Avery v. Equitable L. As. Soc., 117 N. Y. 451; 27 St. Rep. 699; Kent v. Manchester, 29 Barb. 595; Stoddard v. Hart, 23 N. Y. 556; Halliday v. White, 50 St. Rep. 549 ; 21 N. Y. Supp. 878; Paisley v. Casey, 41 St. Rep. 339: 18 N. Y. Supp. 102; Kelsey v. McNair, 33 St. Rep. 749; 11 N. Y. Supp. 804.

The court finds that there was no recognition of liability by Giles after the release was executed. In this class of cases the plaintiff’s proofs must be clear and convincing. Pomeroy’s Eq., § 859 ; Ranney v. McMullen, 5 Abb. N. C. 246; Mead v. Westchester Fire Ins. Co., 64 N. Y. 453; Miaghan v. Hartford F. Ins. Co., 12 Hun, 321; Stryker v. Schuyler, 20 St. Rep. 452; 3 Supp. 513; Sidway v. Sidway, 26 St. Rep. 898; 7 N. Y. Supp. 421. The proofs furnished are not of that persuasive character. For the reasons stated the court decides that there is no equity in the bill, which must be dismissed, without costs.


author: Bischoff, J.

text:
    Claude Gindre et al., Pl’ffs, v. Cyrus V. Kean, as assignee, etc., Def't.

      (New York Common Pleas, Equity Term,

      Filed. March, 1894.)

    1. Principal and agent—-Factor—Del credere.
    The factor’s liability, under del credere agreement, is that of a surety only.
    2. Same—Debtor and creditor.
    But where, by express or implied agreement, the factor becomes definitely and primarily liable upon a sale for the purchase price of the goods consigned, the ordinary relation of debtor and creditor arises.
    Action by the consignors of merchandise to recover moneys collected by defendant subsequent to an assignment to him for the benefit of the creditors of the assignor, the latter having been the consignee as well as the consignors’ factor under a del credere commission; such moneys being the proceeds o£ sales of the consigned merchandise made by the consignee and factor before his assignment.

      Stephen Van Wyck, for pl’ffs ; J. Hampden Dougherty, for def’ts.
   Bischoff, J.

Pursuant to Gindre & Co.’s proposition of April 24, 1889, and accepted by Benjamin on the 7th of May following,, the former were to consign the silks of their manufacture for sale, the latter to receive a commission of six per cent, upon the sales for guarantee, storage, insurance and all other expenses. That this constituted the parties principle and factor respectively is clear and conceded. Gindre & Co.’s right, therefore, to repossess themselves of the goods consigned and remaining unsold at the time of Benjamin’s assignment, and to insist upon payment to themselves of all moneys remaining at the time unpaid from the purchasers upon all sales effected by Benjamin for their account before his assignment, and to recover from Benjamin’s assignee the specific moneys received by him from the purchasers on account of such sales is indisputable upon abundant authority. Kent’s Commentaries, Lacy’s ed., vol. II, p. 623, etc.; Baker et al. v. N. Y. Exch. Bk., 100 N. Y. , 31; Wallace v. Castle, 14 Hun, 106 ; Converseville Co. v. Chambersburg Woolen Co., id. 609 ; Donovan v. Cornell, 3 How. N. S. 525; Springville Mfg. Co. v. Lincoln, 16 Daly, 318 ; 32 St Rep. 668. It remains, therefore, to consider whether, by the course of dealings adopted by the parties, they had so far modified or changed their original agreement that their relation upon a sale of the consigned goods was divested of its fiduciary character and con verted into the ordinary one of creditors and debtor. Nat. B. & D. Bk. v. Hubbell, 117 N. Y. 384; 27 St. Rep. 396.

Benjamin's del credere liability was wholly independent of any -duty which devolved upon him as a factor. As factor merely it was his duty, upon receipt of moneys for his principals' account, to remit the specific moneys paid him, and,-until remittance, to keep the moneys distinct and separate and apart from his own. Before payment to him his principals could at any time elect to revoke his agency, and insist upon payment from the purchasers to themselves. That he was answerable for the purchase price under his del credere agreement in the event of the purchaser’s default in payment did not operate to deprive his principals of the right to insist upon performance of his duty as factor. Notwithstanding the del credere agreement the purchaser continued to be the principals' primary debtor, the factor’s liability under such an agreement being that of a surety only. The principals could, therefore, pursue their remedies against the purchaser while the purchase price remained unpaid to the factor, or against the factor, for the moneys paid him for their account, and were not confined to the del credere agreement if remittance of the purchase price was omitted. "Kent’s Commentaries, Lacy’s ed., vol. II, p. 624 ; Story on Agency, § 33 n. 4; Thompson v. Perkins, 3 Mason, 232; Springville Mfg. Co. v. Lincoln, 16 Daly, 318, 324; 32 St. Rep. 668.

It is contended for defendant that the course of dealing between Gindre & Co. and Benjamin had so far altered their original agreement that upon a sale of the consigned goods by Benjamin he became liable to his principals at once for payment at fixed times and at fixed prices without regard to the credits upon which or the prices at which the sales were made, and that under this arrangement Benjamin was constituted the primary debtor. Upon the evidence, however, I am unable to agree with the learned counsel for the defendant that Benjamin was accountable to Gindre & Co., upon a sale by him, at prices other than those at which the consigned goods were sold. It was claimed for defendant that one Molson, an employee of Benjamin, was authorized by Gindre & Co., whenever a sale was about to be effected, to determine the prices to be returned and accounted for by Benjamin to Gindre <& Co., and that the prices so determined in many instances differed from the prices at which Benjamin had actually sold, sometimes being greater and at other times less: and testimony was adduced which tends to show that Molson had assumed to act as stated. The evidence is, however, insufficient to show that Gindre & Co. had invested Molson with such authority, or that they knew of any difference in the prices obtained and returned by Benjamin, and so that Gindre & Co. had ratified Molson’s acts or acquiesced in his exercise of authority. The acts and declarations of an assumed agent alone are incompetent to bind the alleged principal, and, in the absence of proper evidence, I cannot assume that in the course of his business dealings with Gindre & Co., Benjamin, either with or without the knowledge or sanction of his principals, acted repugnantly to the duty which is ordinarily devolved upon a factor or other agent, namely: to account to his principals for the money actually received or agreed to be paid him upon a sale of the consigned goods. I shall, therefore, dismiss from my further consideration in the determination of the question litigated in this action the alleged fact that Benjamin was accountable to Gindre & Co. whenever a sale of the consigned goods was effected by him, at prices fixed between them either before or contemporaneously with the sale, whether or not those were the prices actually realized.

It now remains to consider whether Benjamin was accountable to Gindre & Co. for the purchase price of the goods sold in advance of actual payment by the purchaser to him or before expiration of the credit allowed upon the sale. It appears that in the course of their business Benjamin kept and from time to time rendered to Gindre & Co. both an account sales and an account current. The account sales was rendered at least once in every month and as often as Benjamin thought the aggregate amount of the sales made warranted it. This account sales matured thirty days after the expiration of the particular month in which the several sales were made. Upon maturity of the account sales Benjamin remitted to Gindre & Co. the moneys actually received by him upon sales made by him and such for which his liability had become definitive under his del credere agreement upon the purchaser’s default, less the amount of his commissions, and for some time also he remitted for such of the sales in which the credits allowed to purchasers had not yet expired and the purchase prices had not yet been paid, deducting for these, besides his commissions, a discount for the advances. The remittances were debited by Benjamin to Gindre & Oo. in the account current, and they were credited therein for the purchase prices paid to Benjamin and for such moneys as accrued from him under his del credere agreement for the purchase prices remaining unpaid at the expiration of the credits allowed. Because 'of the anticipatory remittances, it is urged the agreement is inferable that Benjamin was bound to remit to Gindre & Co., at fixed times, without regard to payments to him or the terms of the sales effected by him, and that thus he was primarily liable for the purchase price whenever a sale was made by him. Hence, it is further urged, Gindre & Co. must share with other creditors of Benjamin in the. distribution of the assigned estate, and have no rights in the proceeds of the sales of their consigned goods which are superior to those of general creditors.

The inquiry now is pertinent: Was it Benjamin’s duty to remit before payment of the purchase price to him, or before the credits allowed upon sales effected by him had expired and the purchasers were in default? Turning to Gindre & Co.’s proposition of April 24, 1889, they say to Benjamin : “ You will charge us with the customary discount of the market, which varies from five to six per cent., according to the values given, and count that you will only charge us the exact value given.” I do not regard it as by any means clear that Gindre & Co. thereby intended, or that Benjamin thereby understood, or was justified in understanding, that it was obligatory upon him even if so required by Gindre & Co., to discount the account sales and remit accordingly. But, however that may be, it is indisputable that the agency created by the proposition and acceptance was revocable at the pleasure of Gindre & Co. They could, therefore, at any time, with Benjamin’s approval, alter the terms of the agency, and, as altered, continue it. On January 22, 1892, Gindre & Oo. wrote to Benjamin : “ In future we do not wish to pay jmu interest. In consequence, please do not make any remittances to us except at maturity of account of sales, only for the sum that you find due us at the time. We will refuse all remittances made under other conditions,” to which Benjamin replied on February 5th, following : “ I understand you to say that you only want a remittance when there is that amount to your credit, and that you do not want the account of sales discounted. I had contemplated sending you two to three thousand pounds sterling to-day, which I regret not doing on account of your letter not allowing it.” Here, then, we have Gindre & Co.’s explicit repudiation of Benjamin’s obligation except as factor for moneys actually received upon sales for his principals’ account and for such further amounts as would accrue from him as surety under his del credere agreement, and his acquiescence therein. Any inference, therefore, which is sought to be drawn from the course of business, and to the effect that Benjamin became primarily liable for the purchase price upon a sale by him is plainly repugnant to the facts in evidence. Thus the case at bar is not only destitute of all evidence from which it may be made to appear, either expressly or inferentially, that Gindre & Co. did not intend to preserve their rights as principals against Benjamin as their factor and against the purchasers of the consigned goods, but the evidence is plainly inconsistent with any such claim.

The principles which should control the decision of the case at bar, and which are tobe deduced from the adjudged cases, are that whenever the agreement o£ the alleged principal and factor, whatever they may style themselves or their relation and whether the agreement be express or only inferable from the course of business, clearly manifests an intention that the alleged factor shall become definitively and primarily liable upon a sale for the purchase price of the goods consigned, it is in legal effect a sale by the alleged principal to the alleged factor, out of which arises the ordinary relation of creditor and debtor. The liability of the alleged factor under such agreement is repugnant to that of a mere agent whose duty to remit is commensurate only with the amount of the money which he has actually received upon sale for his principal’s account.

Ex parte White, re Nevill, L. R. 6 Ch. App., 397, aff’d by the house of lords sub. nom. Towle v. White, 21 W. R., 465 ; also cited at length in the text of Benjamin on Sales, sec. 598, relied upon by defendant’s counsel is, upon the principle stated, distinguished from the case at bar. There it appeared that the consignee was permitted to manipulate the goods consigned to suit the purposes of his trade ; that he was to be liable upon a sale by him at fixed rates, irrespective of the prices at which he had sold ; and that he was furthermore to pay at fixed times without reference to the fact of payment to him or the terms upon which the sales were effected by him. Lord Justice James remarked : “If he (Nevill) was entitled to alter them, to manipulate them at any price he saw fit after such manipulation, and was still liable only to pay for them at a price fixed beforehand without any reference to the price at which he had sold them, or anything else, then the fact that he had sold them in a particular month, it seems to me impossible to say that the produce of the goods so sold was the money of the consignors, or that the relation of vendor and purchaser excited between Towle & Co., (consignors), and the different persons to whom Nevill (consignee) sold the goods * * * It appears to me, therefore, to be the necessary conclusion that as regards these transactions Hr. Nevill was in the position of a person having goods “on sale or return.” Lord Justice Hellish was of the same opinion, observing: “But if the consignee is at liberty to sell at any price he likes and receives payment at any time he likes, but is to be bound if he sells the goods to pay the consignor for them at a fixed rate and at a fixed time, in my opinion, whatever the parties may think, their relation is not that of principal and agent * * * and in point of law the alleged agent in such a case is mahing on his own account a purchase from his alleged principal and is again reselling.’’

Ex parte White (re Nevill) was followed and approved in Nutter v. Wheeler, 2 Lowell [U. S. Ct.]; 346 and re Linsort, 4 Sawyer [U. S. Ct.], 370, but in both cases the facts resembled those, in the principal case and were unlike those in the case at bar. In Nutter v. Wheeler it appeared by the course of business between the alleged principal and agent that the defendants were in the' habit of sending goods manufactured by them to plaintiff’s assignor for sale upon such terms and at such prices as the latter saw fit, he to remit to them, whenever a sale was made at specified rates. It was held that the facts constituted a sale to plaintiff’s assignor and ownership of the proceeds of the sale by him passed to the assignee of the insolvent agent. The court stated that by the terms of the agency the consignee may be the agent of the consignor until the goods are sold, and when they are sold become, as between him and the consignor, the purchaser and principal debtor for the goods sold. In re Linforth, A had agreed to to supply B with goods less a certain discount. B was to pay all storage and other charges. He was also required to account for and pay over the proceeds of the sales made by him once in ever three months and at the end of the year if A should so require, to pay for all goods then remaining unsold. It was held that the parties were vendor and purchaser and that B having become bankrupt, A could not recover of his assignees the proceeds of sales effected by B before his bankruptcy which had come into the hands of his assignees.

Plaintiffs are entitled to judgment for the relief demanded, with costs.


author: Pryor, J.

text:
    John J. Adams, Pl’ff, v. Marietta R. Stevens et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed February, 1894.)

    1. Pleadings—Demurrer.
    In a complaint against several defendants, causes of action may be united, unless each affects all the defendants.
    2. Same.
    The defendants may jointly demur for misjoinder of causes of action.
    3. Same.
    Such demurrer lies, though the causes of action are undistinguishably blended in a single count or complaint.

      Melville H. Regensburger for pl’ff; Noel Gale for def’ts.
   Pryor, J.

In an action by an attorney for professional services, the defendants jointly demur to the complaint for misjoinder of causes of action, in that the two alleged causes of action do not affect both defendants.

If the complaint in an action against two defendants states facts showing a cause of action against each separately, but not a cause of action against both jointly, the defendants may demur jointly on the ground of the misjoinder of causes of action. Hess v. B & N. R. R. Co., 29 Barb. 39.

And the demurrer is not obviated by the fact that the several causes of action are undistinguishably blended in a single count or complaint. Goldberg v. Utley, 60 N. Y. 427; Wiles v. Suydam, 64 N. Y. 173; Harris v. Eldridge, 5 Abb. N. C., 278; Zorn v. Zorn, 38 Hun, 67.

By section 484 of the Code of Civil Procedure, the plaintiff may unite in the complaint two or more causes of action on contract, “ where they affect all the parties to the action. Nichols v. Drew, 94 N. Y. 22, 26.

The question for decision is, whether, two causes be apparent upon the complaint; and if so, whether they affect both defendants?

That two causes of action are stated in complaint is manifest beyond doubt. One cause of action is against the defendant Stevens; and it arises on her retainer of the plaintiff in March or April. The other cause of action is against the defendant Ban-kin ; and it arises on his subsequent and independent retainer of the plaintiff. True, Bankin’s retainer of the plaintiff was, if you please, by ratification of Stevens’ previous retainer of the plaintiff ; but, all the same, it is Bankin’s contract that constitutes the basis of his obligation. True, too, that the services which plaintiff was to render on Bankin’s retainer were in respect, if you please, of the same subject-matter of litigation for which Stevens retained Bankin ; but then, this subject-matter had been assigned by Stevens to Bankin ; and so, after all, plaintiff’s services were for the benefit of Bankin and in pursuance of his retainer But, in truth, the services rendered by plaintiff to Stevens wet e in and about the recovery of certain securities, stocks and other property; and the services rendered to Bankin were in and about the recovery of different stocks, securities and property, which became his by assignment from Stevens.

It is open to plausible conjecture that Mrs. Stevens simply substituted Bankin in the litigation as her agent during her sojourn in Europe; but the complaint asserts a right of action against Bankin, and I am only to decide whether, on the face of the pleading, such cause of action affects the defendant, Stevens. Higgins v. Crichton, 11 Daly, 114. I cannot perceive how, by possibility, Stevens is concerned in a claim by plaintiff against Bankin for services rendered on his retainer and for his benefit.

Still clearer is it that Bankin has no conceivable concern in plaintiff's claim against Stevens for services rendered to her upon her retainer and before Bankin succeeded to any interest in the subject-matter of those services. The case is not of a joint or mutual interest between Stevens and Bankin in the subject-matter and the services, but of successive and separate interests in the subject-matter and the services. A joint liability is the effect of a joint obligation. Rider Life Raft Co. v. Roach, 97 N. Y.,. 378, 382.

The conclusion upon the reason of the case is sustained by authority. Tidbits v. Percy, 24 Barb. 39, 42; Brewster v. Silence, 8 N. Y., 207, 215; Hess v. B. & N. F. R. R. Co., 29 Barb., 391, 394; Kelly v. Newman, 62 How., 156; Taylor v. Manhattan R. Co., 53 Hun, 305; 25 St. Rep. 226; Pracht v. Ritter, 48 Supr., 509; Barton v. Speis, 5 Hun, 60; De Caumont v. Morgan, 21 Wk. Dig., 357; Gray v. Rothschild, 112 N. Y. 668; 20 St. Rep. 789; Church v. Stanton, 9 St. Rep., 121; Bort v. Yaw, 46 Iowa, 323; Johnson v. Kirby, 65 Cal., 482; Doan v. Holly, 25 Mo., 357.

I observe nothing inconsistent in plaintiff’s citations.

Of course, the infirmity in the pleading is not repaired by the formal allegation of a joint and several indebtedness. Abbott’s Trial Brief on the Pleadings, 238.

Demurrer sustained, with direction to divide the action.


author: Gtegerich, J.

text:
    In the Matter of the Application of William L. Patton, for his Discharge from Imprisonment.

      (New York Common Pleas, Special Term,

      Filed March, 1894.)

    Insolvent debtor—Discharge.
    Upon an application for the discharge of a debtor from imprisonment, the schedule of property must set forth facts, and not mere conclusions.
    Application for the discharge of an imprisoned debtor from imprisonment.

      Oudin tfe Oalcley, for petitioner; Bobert D. Honeyman, for judgment creditor, opposed.
   Gtegerich, J.

It is essential to the jurisdiction of the court, in proceedings for the discharge of an imprisoned judgment ■debtor from imprisonment, that the papers upon which the application is founded should conform with exactness to the provisions ■of the statute. People v. Bancker, 5 N. Y., 106; People v. Brooks, 40 How., 165; Bullymore v. Cooper, 46 N. Y., 236; Schaffer v. Risley, 114 N. Y., 23; 22 St. Rep. 168; Bishop on Insolvent Debtors, 2nd ed., p. 87. The Code requires that the petitioner must annex to his petition, and present therewith, “ a schedule containing a just and true account of all his property, and of all charges affecting the same, as the property and charges existed at the time when he was first imprisoned, and, also, as they exist at the time when the petition is prepared.” Code of Civ. Pro., § 2203. Before the court can direct an assignment it must be satisfied “ that the petition and schedule are correct, and that the petitioner’s proceedings are just and fair.” Code of Civ. Pro., § 2208.

The petition herein is accompanied by an account of the prisoner’s property, and the charges affecting the same, at the time when he was first imprisoned; There is also annexed the following statement: “III. A just and true statement of all my property and charges affecting it as it existed at the time my petition was prepared, to wit: March 6th, 1894. There has been no substantial change in the condition of my property since I was first imprisoned.”

This is the only statement contained in the moving papers relating to the prisoners’s property at the timé of preparing the petition, and, in my opinion it wholly fails to comply with the requirements of the provisions of the Code above cited. Such is not the “just and true account” contemplated by the statute. The facts, not the mere conclusion from facts, must be set forth in order that the court may determine whether the schedule is •correct and whether the petitioner’s proceedings are just and fair.

Eo facts in this regard, having been presented, I am unable to determine whether the assertion of the prisoner, that there has been no material change in the condition of his property since he was imprisoned, be true or false.

Application denied, with leave to renew on sufficient papers.


text:
    Frederick S. Myers, Pl’ff, v. Moses S. Rosenback, Def’t.

      (New York Common Pleas, Special Term,

      Filed March, 1894.)

    1. Pleadings—District court.
    District court has no power to allow a supplemental answer.
    3. Same—Removal.
    Nor has the common pleas such power in a case removed from the district court.
    S. Same—Relief.
    Under the words “ and for such other and further relief,” etc., in a motion for leave to serve a supplemental answer, the court may permit an amended answer to be served.
    Motion for leave to serve a supplemental answer in twelve actions.

      Olio Horwitz, for def’t and motion; Hamilton R. Squires, for pl’ff, opposed.
   Gtegerich, J.

This action was removed from a district court to this court. The defendant now seeks, by a supplemental answer, to set up an additional defense. The counsel for the plaintiff contends, substantially, that the district court had no power, before the removal of the action, to allow a supplemental answer, and that, consequently this court has no power to grant the same. On the removal of a cause from a district court to this court, it continues to be, in effect, an action in a district court, subject to the incidents of such an action, including the right of amendment of the pleadings. Latteman v. Fere, 11 Civ. Pro. 217; Walker v. Scott, 3 Misc. R., 329; 53 St. Rep. 632; 23 N. Y. Supp. 334; 23 Civ. Pro. R, 90. And as a condition of allowing an amendment, the court may, in its discretion, require the payment of costs to the adverse party, Code of Civ. Pro., § 2944, which is.made applicable to district courts by § 1347 of the Consolidation Act, Laws of 1882, chap. 410.

The power of district courts to allow a supplemental answer to be filed was questioned by this court in Russel v. Ruckman, 3 E. D. Smith, 419, 426 ; and I have not been referred to nor have I been able, after diligent research, to find any authority which confers such power upon them.

Sections 2934 to 2944 (both inclusive) of the Code of Civil Procedure, which relate to pleadings in district courts and amend - merits thereof, Const. Act, § 1347, are silent as to supplemental pleadings; the provisions of the Code, § 544, regarding the same being expressly limited to courts of record. Code of Civ. Pro., § 3347, sub. 4.

While the proposed additional defense cannot, for these reasons,be set up by a supplemental answer, still; the same result may be accomplished by an amended answer.

That substantial justice will be promoted by such an amendment appears to my satisfaction from the papers submitted. Plaintiff’s counsel insists, however, that, inasmuch as the defendant has not applied for leave to serve an amended answer, the motion should be denied; but under the words “ and for such other and further relief in the premises as to the court may seem jnst and proper,” in the notice of motion, the court is empowered, in its discretion, to grant other relief than prayed for. Van Slyke v. Hyatt, 46 N. Y. 259, 264. Therefore, the defendant will be permitted to amend his answers by setting up, in addition to the defense already interposed, as a plea in bar in these actions, the judgment in the action in the city court, upon conditions that, within ten days after the entry of the order hereon, he serve such amended answers.

As the judgment in question was not entered until recently, and as tlm defendant has not been guilty of any laches, I am of the opinion that the only terms which should be imposed, as a condition to allowing the amendment, are $10 costs to the plaintiff in each action to abide the event.


author: Dwight, P. J.

text:
    Charles H. Clark et al., Resp’ts, v. William Wilcklow et al. Impleaded, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed, January, 1894.)

    Deposition—Examination of party before trial.
    Examination of defendant before trial, to discover whether a company name represents a corporation or a co-partnership, and who are the members of the latter, is properly granted, where the plaintiñ has no other means of proving such facts than by the defendant himself.
    Appeal by the defendants, William Wilcklow and Mary A. Fry, from an order of the supreme court, made at special term anil entered in the office of the clerk of Monroe county on the 25th day of September, 1893, denying a motion to vacate an order for defendants’examination before trial, theretofore,granted by a justice of the supreme court upon the application of the plaintiffs.

      J. H. Barhite, for app’lts; W. W. Armstrong, for resp’ts.
   Dwight, P. J.

The action was on a written agreement which the complaint alleges was executed on the part of the defendants, in the name of “ The Sanitas Soap Yase Co., by William Wilcklow, manager,” for services to be performed by the plaintiffs for the defendants; and, on information and belief, that the defendants were partners in business under the firm name of “ The Sanitas Soap Yase Co." The answer denies 'the co-partnership and denies that the two defendants other than Wilcklow had any interest in the business or in the contract mentioned.

The affidavit upon which the order in question was obtained, after the formal averments required by § 872 of the Code of Civil Procedure, states that the plaintiffs have no knowledge of what the defendant company is or of whom it consists, and no information on the subject other than the statement of the Secretary of State to the effect that no articles of association of such company were on file in his office, and the statement at one time of tlxe defendant Wilcklow, that it consisted of the defendants in this action, as co-partners. The affidavit also states that the facts bearing upon the question above mentioned are within the personal knowledge of the defendants alone, and that the plaintiffs know of no other source from which those facts can be obtained ; that it will be necessary for the plaintiffs to establish those facts upon the trial of the action, and they desire the testimony of the defendants in relation thereto in advance-in order to prevent surprise on the trial.

We think the case'made was a peculiarly proper one for the order in question, which confined the examination of the defendants to the matters above stated in the affidavit. The plaintiffs have no other means of proving the fact of which they have been informed by one of the defendants, than by the defendants themselves. The declaration of Wilcklow is not evidence against the other defendants, and the fact, so far as the plaintiffs know, is locked in their breasts. Must the plaintiffs await the day of trial and submit to the surprise and defeat which there await them in case the defendants deny the co-partnership, or may they avail themselves of the process furnished by the Code and ascertain beforehand whether the fact can be established as they believe it to be ? If not, they have the opportunity to withdraw from the litigation and save the further useless expenditure • of time and money, to the defendants as well as to themselves.

We perceive no respect in which the case made by the affidavit falls short of the requirements of the statute (§ 872, supra), which, among other things, expressly provides that, in case of the proposed examination of a party to the action, the affidavit need not state any of the facts tending to show that his testimony cannot probably be procured at the trial. Subd. 5, last clause.

We think the order was properly made to the judge at-chambers and that the order of special term denying the motion to vacate it must be affirmed.

Lewis and Haight, J. J., concurred.

Order appeal from affirmed, with ten dollars costs and disbursements.


author: Addington, S.

text:
    In the Matter of the Estate of John Morton, Deceased.

      (Surrogates Court, Monroe County,

      Filed February, 1894.)

    1. Executors, etc.—Disputed claims.
    Knowledge, by the representative, of the existence of a claim against the estate does not avoid the necessity of its due presentation.

      3. Same—Presentation-.
    A claimant, who does not present his claim within a reasonable time after publication of the statutory notice, cannot complain of the disposition of the personal estate made with the consent of the persons interested.
    3. Same—Form.
    The presentation must be in some writing, stating the nature and amount of the claim, and demanding its payment.
    • Proceeding by judgment creditor to compel payment of his claim. .

      W. M Davis, for petitioner ; Louis E. Jack, for administratrix.
   Addington, S.

John Morton died on the 23d day of March,. 1883. Shortly before his death verdicts had been rendered against him in two actions pending in the supreme court, but judgment had not been entered thereon at the time of his death.

On August 10th, 1883, judgments were entered on said verdicts against said "Morton, one for $219.01, and the other for $374.02. The judgments, however, were irregular in that no memorandum of the defendant’s death was made, as required by § 1210 of the Code of Civil Procedure.

On July 7th, 1884, said judgments were assigned by the plaintiff in the actions to one Sanford, and on October 1st, 1892, by said Sanford to Benjamin C. Miller, the petitioner herein.

In November, 1892, on Miller’s application, the entry of the judgments was corrected to conform to the provisions of the Code just mentioned, and thereafter this proceeding was begun by said Miller to compel the payment of. said judgments by Morton’s administrator.

Letters of administration on decedent’s estate were granted to his widow on July 12th, 1883, and she duly published the statutory notice for presentation of claims by creditors, and the six months’ publication of such notice ended January 5th, 1885.

In the summer of 1883 or 1884, and before the time limited by such notice for the presentation of claims, the attorney for the plaintiff in the aforesaid actions called oti the administrator, as he says, “in reference to the judgments.” His testimony is that he talked with her in regard to the claims growing out of the judgments, and tried to arrange with her for their payment; that he told her the amount of them, which lie thinks he had there upon a slip of paper, and that she said that she knew nothing about the judgments, though she had known of the litigation, and referred him to her brother, an attorney. Soon afterward the judgments were assigned, and neither assignee ever presented his claim thereon to the administrator, or took any steps to collect-the same, until Miller began the pending proceeding.

Assets to the amount of nearly $4,000 came into the hands of the administrator, and, after paying the debts of decedent, she expended nearly the whole sum remaining, about $3,000, in the purchase of a cemetery lot, the erection of a costly monument to the decedent, in improvements upon real estate left by him, and advances to the next of kin. This was all done with the consent of the next of kin, and pursuant to an agreement between them and the administrator, and in entire good faith.

The petitioner maintains that as against him these outlays and advances should be disallowed, and the administrator held to have the moneys on hand for the payment of his claim. I do not think his contention can be maintained. He took the claim subject to any defense arising from the acts or laches or bis predecessors in interest. An administrator who lias conformed to the requirements of the statute, and has published the prescribed notice, has a right to assume that all persons having claims against the decedent, which they intend to enforce, have presented the same and .demanded payment thereof; and if, he thereafter distributes the assets to those entitled to them, or expends them in a manner to which they have given their approval and consent, he should not be accountable for such assets to a creditor who never presented his claim or took any legal proceeding to collect it while the funds were in the administrator’s hands. O'Conner v. Gifford, 117 N. Y. 275, 283; 27 St. Rep. 453 ; Erwin v. Loper, 43 N. Y. 521.

An administrator’s knowledge of the existence of a claim against the estate does not avoid the necessity of its due presentation. Livingston v. Gardner, 4 Redf. 517, note; Jones v. Lightfoot, 10 Ala. 17-24; Pfeiffer v. Suss, 73 Mo. 252.

Unless, therefore, the claim arising out of these judgments was duly exhibited or presented to the administrator within a reasonable time after the publication of the statutory notice, the petitioner cannot complain of the disposition which, with the consent of the persons interested, has been made of the personal estate of Mr. Morton.

The petitioner’s counsel relies on the conversation between the plaintiff’s attorney and Mrs. Morton, heretofore mentioned, as a sufficient exhibition or presentation of the claim under the statute. There is some doubt whether, under his general retainer to prosecute the action, the attorney had authority to exhibit or present this claim to the administrator, and it is also doubtful whether the claim could properly be presented and recognized as “ a debt to be paid in the course of administration ” until after the entry and docket of the judgments had been made to conform to § 1210 of the Code of Civil Procedure.

But, assuming for present purposes that these doubts are resolved in favor of the petitioner, still I do not think that what occurred between Mr. Jones and Mrs. Morton was a legal presentation of the claim, even conceding the correctness of the former’s version of the conversation, a point which is disputed by the administrator.

The creditor is required, by the notice given under the statute, to exhibit his claim, with the vouchers thereof, to the executor or administrator, who may, if he choose, require the claim to be supported by the affidavit of the claimant that it is justly due, that no payments have been made thereon, and that there are no offsets to it. Eev. Stat. part 2, chap. 6, tit. 3, art. 2, §§ 34, 35.

The statute plainly intends that the claim shall he presented or exhibited in some writing, stating its nature and amount, the owner’s name, and demanding its payment. The personal representative of the estate is then in possession of information which will enable him to act intelligently, and either to admit the claim or take such steps to protect the estate against it as he shall deem prudent and necessary. This is the construction placed on the statute by the courts of this state, and by those of other states iñ whose statutes similar provisions and regulations are found. Cruikshank v. Cruikshank, 9 How. Pr. 350, 351; King v. Todd, 27 Abb. N. C. 149, 150; Robert v. Ditmas, 7 Wend. 523; Gansevoort v. Nelson, 6 Hill, 392; McDowell v. Jones, 58 Ala. 35; Farris v. Stoutz, 78 id. 134; Pfeiffer v. Suss, 73 Mo. 252.

There is some evidence which tends to show that a larger sum might have been realized from the decedent’s interests in the property of the firm of which he was a member at the time of his death, but the disappearance, or destruction, of the firm books makes an accounting with the surviving partner impracticable, and the testimony is not sufficiently definite to warrant a finding that the administrator should be charged with any specific sum on account of the partnership business, except'the $200 received from Mr. Fisk for woolen cloth sold to him.

There will be an unexpended balance in the administrator’s hands of about $500, and that may be decreed to be applied on the petitioner’s claim, after deducting the expenses of this accounting.

Ordered accordingly.


author: Coffin, S.

text:
    In the Matter of George Metcalfe, as Executor, etc.

      (Surrogate’s Court, Westchester County,

      Filed January, 1894.)

    1. Surrogate—Jurisdiction.
    A surrogate has jurisdiction to construe a will on an accounting.
    2. Will—Construction.
    Where a will gives the use of property to the husband, and says that, on his death, “I wish my property to be equally divided between my nephews and nieces,” he takes a life estate only, with remainder to the nephews and nieces.
    Application to compel an accounting by an executor.
    Robert H. M. Dawborn, an heir of the deceased, claiming to be interested in her estate under her last will and testament, cited said executor to show cause why be should not render an account. On the return day of the citation he claimed to show cause, which was to the effect that all of the estate,except some specific bequests which the legatees had received, belonged to him by virtue of the will, under its first clause, which reads as follows: “After all my lawful debts are paid, I give to my husband, George Metcalfe, the use of all my property, both real and1 personal. At the death of my husband, George Metcalfe, I wish my property to be equally divided between my nephews and nieces,” naming them, among whom was the petitioner. It further appears that the property of the deceased consisted of a farm of land, a number of shares of railroad stock, and an indebtedness of $1000 due to her. Objection is made on behalf of the petitioner to the effect that this court has no power" to construe the will.

      Charles «7 Banks, for petitioner; D. J, M. O' Callaghan, for executor.
   Coffin, S.

— It is well settled that the surrogate has jurisdiction to construe a will on accounting, and this is such a proceeding.

The will gives the use of all the property, real and personal, to the husband, in effect, for life. It does not, either in terms or by fair inference, give him the property, but only its use. It does not “leave” it to him to be enjoyed by him for his sole use and benefit, as in the case of Campbell v. Beaumont, 91 N. Y. 464, cited by the executor’s counsel, nor can we anywhere gather from the will any such intention. It cannot be pretended that the title to the farm would pass under the provisions for its use, and the word embraces and is applied to both kinds of property. If it will not pass the title to the farm, how can it be held that it does so as to the personalty? Can we so construe it as to give it a double meaning? Evidently it was used in a single and ordinary sense. 'The word “wish,” as used in the following sentence, making a final disposition after the death of the husband, is sometimes construed as a mere precatory word, and sometimes as equivalent to the words “will” or “direct” Here it appears to me to have been employed in the sense of the latter word. It is accordingly determined that the executor has a life estate only, with remainder to the nephew and nieces. This appears to have been the intention of the testatrix as gathered from the will, which was drawn by herself.

The right to use the implements and machinery on the farm in conducting farming operations by the husband is a question for subsequent consideration.

It must, therefore, be held that sufficient cause has not been shown why the executor should not file his account, and the further order provided by statute in such case may now be entered.

Ordered accordingly.


author: Coffin S.

text:
    In the Matter of Petitions of Ella C. Paton, as General Guardian of Herbert H. Dickson et al., Infants.

      (Surrogate's Court, Westchester County,

      Filed February, 1894.)

    1. Guardian—Legacy.
    The general guardian of an infant legatee is not a person entitled to the legacy within the provisions of § 2722 of the Code.

      2. Same.
    No provision is made, in this section, for the application of the legacy, or any part thereof, to the support or education of infants.
    The petitions are substantially alike except as to amounts asked for. They set forth that the petitioner was, on the 3rd day of May, 1893, duly appointed by the surrogate of Hew York guardian of the persons and property of said infants, who were residents of that county, and are under • fourteen years of age ; that, upon such appointment she gave the necessary bond to each of said infants in a penalty of $8,000; that said minors are legatees under the will of Sarah H. C. Wilson, late of Yonkers, to the-extent of about $4,000 each; that said will was admitted to probate in Westchester county on the 14th day of September, 1892, and letters issued to John M. Cornell, the executor, on the same day; that said executor has assets sufficient to pay said legacies or a portion thereof; that said minors have no property or means of support other than said legacies; that their mother is dead and their father is possessed of no property or income except what is derived from his daily labor, and is unable to to care for and support them; that the surrogate of Westchester, by an order made-in July, 1893, directed the executor to pay to the petitioner, on account of the legacy to said Margerite, the sum of $1,000. -And the prayer of the petitioner is that said legacies, or such parts-thereof as the executor may have funds in hand sufficient to pay, may be ordered to be paid to her, and that she may be authorized to apply the same to the support of said minors. The executor files answers in which he admits the facts stated and alleges that he has in hand sufficient funds to pay on account of the legacy to Margerite $1,860, and on-that to Herbert the sum of $2,860, on-account thereof, without diminishing the amount in his hands requisite for the payment of debts and expenses against the estate, of all legacies which are entitled to priority over the claims of said infants and of the like proportionate part of all legacies or distributive shares of the same class. The petitions were verified in the state of South Dakota.

      Eugene E. Sackett, for petitioner; Lemuel Skidmore, for executor.
   Coffin S.

Courts are watchful in the protection of minors and their interests. In general, a guardian may not, without permission of court, encroach upon the corpus of the trust estate in his expenditures for the ward’s benefit. But where a proper case is made out, upon application to the court, such permission might be granted. These are common-law principles, and the court of chancery had superior control over minors and their guardians. When that court was abolished its powers in this regard were devolved upon the supreme court, while most of them were long since conferred upon and exercised by the surrogates’ courts. By § 2846 of the Code a surrogate may-make an order directing -the application, by the guardian of the infant’s property, to the support and education of the infant of such a sum as to the surrogate seems proper out of the income of the infant's property; or, where the income is inadequate for that purpose, out of the principal. Again, § 2746, in the article on accounting, etc., provides that where a legacy or distributive share is payable to an infant the decree may, in the discretion of the surrogate’s court, direct it, or so much of it as may be necessary, to be paid to his general guardian, to be applied to his support and education, and the may, in its discretion, by its decree, direct any legacy not paid or applied as aforesaid, which is payable to an infant, to be paid to the general guardian on his executing and depositing with the surrogate a bond to such infant in double the amount of such legacy, conditioned that he will faithfully- apply such legacy, etc. The court may then, in its discretion, from time to time authorize or direct the guardian to expend such part of the legacy in the support, maintenance and education of such infant as it deems necessary. § 2722 provides that a petition may be presented to the surrogate’s court, praying for a decree directing an executor to pay the petitioner’s claim, by a person entitled to a legacy, at any time after one year has expired since letters were granted. The surrogate, on the return of a citation issued thereupon, must make such a decree in the premises as justice requires, but must dismiss the petition without prejudice to an action or an accounting in behalf of the petitioner where it is not proved to his satisfaction that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction. By § 2723 it is provided that the surrogate may in his discretion, entertain such a petition at any time after letters are issued, although a year has not expired; and that if in such a case it appears that a decree for payment may be made as prescribed in the last section, and that the amount of money and the value of the other property in the hands of the executor applicable to the payment of debts, legacies and expenses exceed bv at least one-third the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner’s claim, and of all legacies of the same class, and that the payment or satisfaction of the legacy or some part thereof is necessary for the support or education of the petitioner, the surrogate may make a decree directing payment or satisfaction accordingly, on the filing of a bond as therein specified.

It is not entirely clear which of these sections of the Code is invoked to support these applications, as the prayers of the petitioner and allegations of both petitions and answers indicate that features of both the last-mentioned sections were had in view in their preparation ; but it may fairly be assumed to be § 2722, for the next section is applicable only to a case where the application is made before the expiration of the year. Then that section proceeds to define what may be done “in such a case.” Here the year has long since expired, and hence this is not “such a case.” Whether it be that, or the section immediately preceding, the petition is not presented “by a person entitled to a legacy * * * under the will.” The general guardian is not such a person, and it was held in Peyser v. Wendt, 2 Dem. 221 that an assignee of a legatee was not such a person, and his application could not be entertained, but it is not proposed here to further consider that question.

It would seem that. the petitions and answers were prepared with both sections in view, for while the petitions state that the executor has sufficient assets in hand applicable to the payment of the legacies topay the same or portions thereof, and the prayer is for an order directing the executor to pay said legacies, or such parts thereof as he may have funds in hand sufficient to pay without injuriously affecting the rights of others entitled to priority or equality of payment, and authorizing the petitioner to apply the same to the support of said minors, the answer admits sufficient funds in hand to pay to or for each the sum of $2,860, including the $1,000 paid on account of Margerite’s interest, without diminishing the amount in hand requisite for the payment of debts and expenses against the estate, of all legacies which are entitled to priority over the claims of said minors, and the like proportionate part of all legacies or distributive shares of the same class. It will be observed that nowhere is there any allegation that the amount of money and the value of, the other property in the hands of the executor exceed, by at least one-third, the amount of all known debts, claims, legacies, etc., as provided by § 2723, and th,e preceding section makes no provision for the application of the legacy, or a part thereof, for the support or education of infants.

The surrogate has no power to authorize an encroachment upon the corpus of the estate, except in the cases and in the manner expressly conferred by statute. In this case he cannot do so under § 2846, for the reason that it is based upon the assumption that the guardian already has the fund in hand. Nor can he act under the áuthority conferred by § 2746, because that is to be exercised only in an accounting proceeding; nor under § 2722, for the reason that no such power is conferred by its provisions; nor under § 2723, because this is not a proceeding under that section.

As stated, more than a year has expired since letters testamentary were issued, and these infants, or any person in their behalf, may cite the executor to account, and in the decree-entered in that proceeding the surrogate could determine what provision, if any, should be made for them. As there need be no delay in instituting such a proceeding, there can be no serious injury likely to result to these children from the dismissal of these proceedings.

It may be proper to remark that the facts stated are not sufficient to enable the court to judge understandingly, what allowance would be proper to make, had it the power to make it now. It is not stated when the legacies become due, whether there is any income derivable therefrom, what their respective ages are, except that they are under fourteen, in what labor their father is employed, what wages he receives, what their social standing and consequent needs may be, nor what disposition has been made of the $1,000 paid. The legacies are stated to be about $4,000 each, and it is sought through the order of the court that nearly three-quarters of the fund, Including what has already been allowed on behalf of Margerite, be paid to the guardian by the executor, and that even without the security to be furnished in such case on an accounting.

The fact that the $1,000 paid for the support of one of the minors has been expended in six months gives rise to the suspi«ion of a misapplication thereof, and this suspicion is intensified by the application now made for $1,860 inore. At this rate the funds would soon be dissipated. If the .legacies had been properly invested they would have produced an income annually of perhaps $200 each. This, with what the father could contribute from his earnings, ought to be sufficient for a comfortable support of infants in their apparent station in life. Many a father in like ease does it without any aid whatever.

The petitions should be dismissed without prejudice to an action or an accounting in behalf of the petitioner.


text:
    In the Matter of the Application of John J. Mansfield et al., for Payment of Legacies by the Executor.

      (Surrogate's Court, Westchester County,

      Filed February, 1894.)

    1. Executors—Payment of legacies.
    Section 2722 of the Code makes no provisions for the payment of a part of a legacy, except where there is not sufficient funds to pay all, and there has to be an abatement of legacies.
    3. Same.
    In such case, the decree may direct payment of the proportional part, if the facts are agreed upon; but, where they are in dispute, they can only be ascertained on an accounting, which cannot be had in a proceeding under this section.
    The testatrix, by her will, after making some specific bequests, and providing for the erection of a monument, the expense to be paid out of her personal estate, gave all the rest and residue of her personal estate to the petitioners. She then ordered and directed her executors to sell and convey her real estate, and tq divide and distribute the proceeds, in certain shares, among certain relatives of her deceased husband, among whom the petitioners were not included. These latter, in their petition for the payment of their claims, show that the am'ount of the inventory of the personal estate, as filed, is $27,906.43, and that the real estate so. ordered sold is of the value of $18,000; that they have each been paid $2,500 on account of their respective legacies, and that the debts and estimated expenses of administration will not exceed about $7,500, and they ask for a decree directing the executor to pay to each of them the further sum of $9,000, claiming that the real estate was converted into personal by the will, and thereby subjected equally with the other personal property to the payment of debts and expenses. The verified answer of the executor, among other things, refers to the will, and denies that the proceeds of the real estate are subjected equally with other personal property to the payment of debts and expenses, and alleges that said personal estate is the primary fund for the payment thereof.

      Remsen & Parsons, for petitioners; M. G. Hart, for executor.'
   Coffin, S.

Neither seems to have had a strict regard to the provisions of § 2722 (formerly 2717 and 2718) of the Code in preparing the petition and answer. Each of the petitioners, however, states his and her claim at $9,000. The answer, in effect, sets forth facts calculated to show that it is doubtful whether the petitioners’ claims are valid and legal to the extent claimed, and also substantially denying their validity or legality as a whole. The facts gathered from the petition show that the

personal estate was valued at............■........ $27,906.48-

Debts and expenses, estimated, at........ $7,500

Paid on account of petitioners’ legacies.... 5,000

12,500.00

Leaving the residue, from inventory, at....... $15,406.48

One-half of which is................... 7,703.21

or $1,296.79 less than is claimed by each. This deficiency is sought to be supplied by talcing -the necessary amounts from the proceeds of the sale of the real estate, which it is claimed will be legal assets when the actual conversion shall have been effected, which has not as yet been done, and which proceeds will be equally liable with the residue of the personal estate for the payment of debts and expenses of administration. The effect of making the decree for the payment to each petitioner of the sum now asked would be to relieve the strictly personal estate from its liability to the extent of about $2,600, and shift it to' the proceeds of the sale of the real estate. Can this be done in this case ?

Ordinarily, the rule is well established that an equitable conversion of realty into personalty takes effect at the death of the testator, and the proceeds are to be regarded as money from that period, and, where no other direction for their disposition is given, may be applied to the payment of debts and expenses of administration, the same as if they had been money in hand at the time of hjs death.

But where real estate is directed to be sold only for a certain purpose it is converted only for the purpose of the will, and that a devise for such a purpose, i. e., the payment of certain legacies, does not throw open the fund to simple contract creditors, where there is sufficient personal property to pay the debts. Gibbs v, Ougier, 12 Ves. 413. So, where a devisor directs his land to be sold, and the produce divided between A. and B., the obvious purpose of the testator is, that there shall be a sale for the convenience of division; and A. and B. take their several interests in money and not land. Bogert v. Hertell, 4 Hill, 492, citing Smith v. Claxton, 4 Mad. 484. To bold otherwise would be to ignore and subvert the expressed intention of the testatrix.

This is the sole question discussed in the brief submitted.

These principles of the law on the subject are not here stated for the purpose of a decision of the question, but in order to show that there is some matter I cannot now try, as well as to show that it is not proved to my satisfaction that there is money or. other personal property of the estate, applicable to the payment or satisfaction of the petitioners’ claims, which may be so applied without injuriously affecting the rights of others entitled to priority- or equality of payment or satisfaction. See Matter of Hedding M. E. Ch., 35 Hun, 315.

Some of the debts and the expenses of administration, it is understood, have not been fully paid, and the decree asked for would thus injuriously affect the rights of others entitled to priority of payment.

There seems to be no provision in the section for the payment of a part of the claim except where there is not sufficient funds of the estate to pay all, and there has to be an abatement of legacies or a pro rata share of the debts fixed in which cases the decree may direct payment of their just proportional parts where the facts are agreed upon, but where they are in dispute they could only be ascertained on an accounting, which cannot be had in this proceeding. Matter of Hedding M. E. Ch., 35 Hun, 315. A “just proportional part” cannot be arrived at by mere approximation, estimate, guess-work. However, that is not the case. The claim is for $9,000 by each, and there is not sufficient money to pay them without resort to the proceeds of the sale of the realty, and I am not satisfied that such resort can be had, and, therefore, the petition must be dismissed, without prejudice to an action or an, accounting, if desired, may be at once had on application therefor.

Decreed accordingly.


author: Titus, Ch. J.

text:
    The People ex rel. Edgar P. Reynolds et al., Pl’ffs, v. The Common Council of the City of Buffalo, Def’t.

      (Buffalo Superior Court, Special Term,

      Filed February, 1894.)

    1. Attorney and client—Costs.
    As between attorney and client, the costs awarded in the action belong to-the former.
    3. Same—Counsel.
    A party cannot employ counsel and call upon the attorney to pay him out of his agreed compensation.
    Motion to amend judgment by directing the payment of the costs to the attorney of record of the original relator.

      0. 0. Cottle, for relators; M. Shire, for Daniel McIntosh.
   Titus, Ch. J.

This motion is brought before me on an order to show cause why the judgment entered herein should not be amended by directing the payment of the costs herein to Daniel McIntosh, instead of the relators. The taxable costs in this case accrued in proceedings instituted by Amelia E. Reynolds to compel the defendant to pay her the amount of an award for damages sustained by her property in opening Elmwood avenue.

Daniel McIntosh, a counselor of this court, was the attorney for Mrs. Reynolds in the various proceedings'therein had, and Mr. O. 0. Cottle was her counsel. After the case had been taken to the court of appeals Mrs. Reynolds died, and the plaintiffs as her representatives were substituted as parties plaintiff, and Mr. Cottle was employed by them, and substituted as attorney of record in the place of Mr. McIntosh, and proceeded to tax the cost of the proceeding at $352.73, and entered a judgment directing the ■defendant to pay that amount, with the award, to the plaintiffs. A warrant for the same has been made out by the defendant to 0. 0. Cottle, and is now in the hands of the comptroller awaiting the decision of this motion. ■

The Code provides, § 3228, that the costs awarded in an action belong to the party, but where they are for services rendered by an attorney in a case, for all ordinary legal purposes they belong to the attorney. In the Matter of Bailey, 31 Hun, 608 ; Marshall v. Meech, 51 N. Y. 140.

It seems to me, therefore, that Mr. McIntosh, being the attorney of record for Mrs. Reynolds, and as such having charge of the case, is entitled to the costs. I cannot find that as between attorney and client this doctrine has ever been questioned in this state.

The terms of the agreement which the plaintiffs claim to have been made are not fully set out in the affidavits, and no copy has been furnished me. It may be conceded that an attorney of record has the right to make an agreement surrendering his taxable cost to his client, but the court should be satisfied by an examination of the agreement that such was the intent of the parties before holding that such a contract had been entered into.

In considering the question I have not assumed that such a contract was made.

It is customary in the profession to employ counsel to assist the attorney of record in difficult cases, but that concerns the party, and he cannot hereby deprive the attorney of record of his right to the taxable costs, nor can a party employ counsel and call upon the attorney to pay him out of his agreed compensation. Mead v. Tuckerman, 105 N. Y. 560; 8 St. Rep. 182.

The motion should be granted and the judgment entered herein be amended so as to require the defendant to pay Daniel McIntosh the amount of the costs as taxed by the clerk.

Motion granted.


author: Coleman, S.

text:
    Matter of the Estate of Albert H. Robbins, Deceased.

      (Surrogate's Court, Orange County,

      Filed February, 1894.)

    1. Executobs, etc.—Claim.
    The provision of § 2739 of the Code does not include a claim assigned to the executor or administrator.
    2. Same—Limitation.
    Though presented to, and admitted by, the representative, claims against decedents are barred by the statute of limitations in seven years and six months after their maturity.
    3. Same—Renewal.
    To renew such claim, a payment, acknowledgment or promise in writing signed by the representative, is necessary.

      4. Same—Acknowledgment.
    A petition by him for leave to sell a legacy, which sets forth the names of the creditors and the nature of their claims, is a sufficient acknowledgment, as to such creditors, for this purpose.
    Judicial settlement of accounts.

      J. W. Oott, for administrator; Wm. D. Mills, for various creditors ; F. H. Cassedy, special guardian, for infant children of deceased.
   Coleman, S.

This is a proceeding for a judicial settlement of the accounts of the administrator. The deceased died in 1886, and Charles M. Thompson, the administrator, was appointed in March of that year. The available assets at that time amounted to $310.40, $150 of which was set apart to the widow, $95 paid for funeral expenses, and the balancé, $65.40, was paid to the widow July 14, 1890, upon certain claims made by her against the estate. The only other property belonging to the estate was a legacy of $2,500 payable to the deceased upon the death of his mother, who, at his death, was upwards of eighty years of age. By reason of the great age of the mother of the deceased the administrator did not, by sale, convert it into money at once, but on the 28th day of July, 1890, the administrator filed a petition in this court, setting out the names of the creditors and the nature of their claims, amounting in all to about $7,000 and prayed that such creditors be cited to show cause, etc., why an order should not be made directing the sale of said legacy. Objection was made by the most of the creditors to a sale, under the circumstances, because of the probability of an early maturity and the sacrifice incident to a forced sale. The matter rested until in July, 1893, when the administrator again moved, the life tenant being still living, and obtained an order for a sale, and the legacy was sold shortly thereafter and converted into cash. On the 1st day of November, 1893, the administrator filed a petition for a judicial settlement and a citation has been served on all the creditors and next of kin. Intervening the filing of the petition of July 28, 1890, and that of November 1, 1893, a period of more than seven and a half years has elapsed since the greater part of said indebtedness became due and payable, and upon this settlement the special guardian of the minor next of kin objects to the payment of such claims upon the ground that they are now barred by the Statute of Limitations. No question is made but that all of said claims have been regularly presented to and admitted by the administrator. The claim formerly owned by Mrs. Bobbins, the widow, was assigned by her on the 14th day of July, 1890, to Mr. Thompson, the administrator, and it is now urged in his behalf that by §. 2739 of the Code of Civil Procedure the operation of the statute was suspended as to such claims until this judicial accounting. The language of this section only speaks of “a debt due from the decedent to the accounting party,” and does not, therefore, include a debt of the decedent to a third party which has been assigned to the administrator, notwithstanding the fact, as urged by the counsel for Mr. Thompson, that he could not bring an action for the debt against himself. He had other remedies. It rested entirely with himself when he should institute the proceeding for a judicial settlement and in such proceedings establish claims owned by him.

The law is well settled that debts against decedents become barred by the Statute of Limitations in six years and eighteen months from their maturity, notwithstanding their presentation to and admission by the representative of the estate. Butler v. Johnson, 111 N. Y. 204; 19 St. Rep. 85. To renew or continue the contract after this period there must be “ an acknowledgment or promise, contained in a writing signed by the party to be charged thereby” (§ 395, Code Civ. Proa), or there must have been a payment made thereon within that period by the decedent, or by his executor or administrator. McLaren v. Mc Martin, 36 N. Y. 88. Eo payment was made on any of these claims by the decedent nor by the administrator, except the payment of sixty-five dollars and-forty cents made July 14, 1890, by the administrator to Mrs. Eobbins. It is stated in the receipt signed by Mrs. Eobbins that it was received “ as a part payment of my claim against said estate.” And no written acknowledgment or promise to pay has been made, unless it is found in the petition filed for leave to sell the legacy. This petition fully set forth the names of the creditors and the nature of their claims; it was signed by the administrator and prayed that a citation issue to such creditors, which was done, and they were served. The next of kin were not made parties to this proceeding.

I do not think the proceeding to sell the legacy gave the crédito^ any special claim upon the fund realized from the sale. The administrator might have made a perfectly valid sale without the surrogate’s order, but he could also avail himself of any protection which an order, made upon notice, might afford him. The allegations of the petition may, however, work other results than that for which- it was primarily intended! There is an acknowledgment to the persons made parties to the proceeding of their claim against the estate, and it is in writing signed by the party who legally represented the debtor, and an acknowledgment upon which it may reasonably be claimed -that they might rest without bringing their action. Such an act the administrator might legally perform, and the next of kin are bound by its legal consequences.

The case of Visscher v. Wesley, 3 Dem. 301, has been cited as sustaining an opposite view of the law." In that case an administrator had been required, at the instance of a creditor, to render an account, and in his answer to such application the administrator alleged that a certain judgment was entitled to a priority of payment. Surrogate Rollins held, in a subsequent proceeding for a judicial settlement, that the written answer in the former proceeding “was not such an acknowledgment of that judgment as to give it a new vitality.” And the learned surrogate seems to be of the opinion that it was not such an acknowledgment because the judgment creditor w7as not a party to the proceeding in which the written acknowledgment was made, and that his action was not influenced thereby, quoting authorities showing that the acknowledgment must be made to the debtor, or to some one representing him. The case may, therefore, be considered an authority sustaining the view that to a party to the proceeding the acknowledgment would have been good, and such is my opinion.

The administrator cannot, however, avail himself of his own acknowledgment, and thereby continue his claim which had been previously assigned to him by Mrs. Eobbins, but I am of the opinion that the payment made by him to her upon this claim was sufficient to arrest the running of the statute.

My conclusion is that the claims of the creditors mentioned in the administrator’s account, and those which have been assigned to him, are still valid against the estate of the deceased.

Decreed accordingly.