text:
    Charlotte Wolz, Adm’rx, App’lt, v. The Dry Dock, East Broadway & Battery R. R. Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Negligence—Pleading. .
    In an action to recover for injuries caused by defendant’s car being thrown from the track against plaintiff, the complaint alleged that defendant so negligently and unskilfully conducted itself in not keeping the track and switch at that point in proper condition “ that its cars at many different times prior to the accident hereinafter mentioned were there thrown from the proper track, of which fact the defendant had knowledge.” On motion, the court struck out the words quoted as irrelevant and immaterial. Held, error; that the facts alleged were material and pertinent to the question of notice of the defect and were not objectionable as introducing other accidents to have an effect on the one in question.
    Appeal from order striking out certain allegations in the complaint as immaterial and irrelevant.

      U. H. Underhill, for app’lt; James & Thomas H. Troy, for resp’t.
   Barnard, P. J.

The complaint states that the plaintiff’s husband was killed by the negligence of defendant. Apart of section 2 of the complaint was stricken out by the order appealed from. The whole section is as follows:

“ That the defendant so negligently and unskillfully conducted itself in not keeping the track and switch of said road at tho corner of Grand and Forsyth streets in said city in proper condition, that its cars at many different times prior to the accident hereinafter mentioned were there thrown from the proper track, of which fact the defendant had knowledge.”

That part of this section which avers that the defendant’s cars had been thrown from the track by a defective switch and track on previous occasions was stricken out. The pleading was proper as it stood. The fact that cars were repeatedly thrown from the track with the knowledge of defendant was material and pertinent in view of the fact subsequently stated that the accident happened at the corner of Grand and Forsyth streets, and that it was caused by the defective condition of the track and switch as to which the averment in the section is made. The complaint taken as an entirety is that the defendant kept a bad track and switch at the corner of Grand and Forsyth streets, one which would not hold the cars in place and which repeatedly failed, to defendants knowledge, and that- on the 8th of Nov., 1886, th.e car was cast against plaintiff’s husband by this very condition of the switch and track, and he was killed. The former instances of failure are only addressed to the question of notice of the defect and are not objectionable as introducing other accidents to have an effect on the one involved in this action.

The order should be reversed, with $10 costs and disbursements.

Order reversed, with $10 costs 'and disbursements, and motion denied.

Dykman and Pratt, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    George McArthur, as Com., Resp’t, v. Henry Gordon et al., App’lts.

      (Court of Appeals,

      Filed March 3, 1891.)

    Appeal—Reargtjment.
    The judgment below having been reversed by this court on a point not argued ture, and, so far as it appeared from the record, not much, if at all, considered at any stage of the case, and there being a wide divergence of views among the members of this court as to the point, Held, that a re-argument would be granted.
    Motion for reargument

      Matthew Hale, for motion; A. D. Wait, opposed.

       See 35 N. Y. State Rep., 386.

   Per Curiam.

We reversed the judgment below on a point not argued before us, and, so far as we can learn from the record, not much, if at all considered at any stage of the case, and there is a wide divergence of views among the members of this court as to the point, and, therefore, without a critical examination of the authorities to which the learned counsel for the plaintiff has called our attention, and without forming any judgment upon them, we think that justice requires a reargument of the case. Upon the reargument, besides the point just mentioned, and any other points which the counsel for either party may desire to bring to the attention of the court, we invite attention to the following points, to wit, upon the assumption that Larmouth was not bound to take his support upon the farm :

1. Was the plaintiff entitled to recover the interest awarded to him?

2. Were the defendants in default in not furnishing Larmouth with support elsewhere while he and the plaintiff were repudiating the trust and in the absence of any demand for such support ?

3. Was the plaintiff entitled to recover the net rental value' of the farm, or .only the amount needed for Larmouth’s support ?

4. In the absence of any proof that Larmouth was indebted for his support to any one, was the plaintiff entitled to recover the large sum awarded to-him ?

5. Was the plaintiff entitled to take the fund out of the hands of the trustee and administer it or dispose of it, the trustee not having been removed?

Motion granted.

All concur.


author: Potter, J.

text:
    Louis Griesheimer, Assignee, App’lt, v. Moses Tanenbaum et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed March 3, 1891.)

    1. Evidence—Sale—Payment—Ledgbr-entries.
    In an action brought to recover the price of a bill of goods sold by plaintiff’s assignors to the defendants, the latter claimed that the goods were to ' be paid for by applying their price as a credit upon a bill for a larger amount which, the defendants had against R. K. & Co., another firm, of which one of plaintiff’s assignors was a partner. Seld, that it was error to allow defendants to show by entries in their ledger that they had performed their part of the contract and had given credit to R. K. & Co.
    2. Same.
    Until actual application and settlement, the entry upon the books of a party signifies nothing more than that'party’s understanding or wish as to the mode of performance.
    (Bradley, Haight and Brown, JJ., dissent.)
    Appeal from a judgment of the general term, fifth department, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury.
    The question upon the appeal rests upon an exception taken to the ruling of the trial court admitting an entry upon the ledger of the defendants as evidence. The action was brought to recover the price of a bill of goods sold by plaintiff’s assignors to the defendants. There was no question in relation to the price, amount or delivery of the goods. The only question is whether the goods were to be paid for in cash by the defendants, or by applying the price of them as a credit upon a bill for a larger amount which the defendants had against another firm, of which one of the plaintiff’s assignors was a partner.
    There was a plain contradiction between the oral testimony of the plaintiff’s assignors and the defendants as to the existence of an agreement in respect to the mode of payment.
    The defendants were allowed to introduce as evidence to support their contention an entry upon their ledger, over an objection and exception by the plaintiff. The entry was upon a page of defendants’ ledger bearing their account with the firm of the third party (of which one of the plaintiff’s assignors was a member), and was as follows: “August 29th, by merchandise, Oct. 1, 6, 30, $2,226.50.”
    There was proof that there was an entry respecting this matter in pencil in a book of original entries. That book was not produced upon the trial, though its existence and probable whereabouts were proved. There was no proof that either of the assignors of plaintiff, or that any of the members of the firm of the third party, was present at the making of the entry in the book of original entry, or in the ledger of the defendants, or had ever seen or been informed of such entries.
    The goods in question were received by the defendants about the 2d day of September, 1884. The evidence did not show when these entries were in fact made other than may be inferred from the entry itself. The evidence showed that the entry in the ledger was not a copy of the entry in the book of original entry.

      Raines Bros., for app’lt; Sampler & Platezeh, with Theodore Bacon, for resp’ts.

       Reversing 28 N. Y. State Rep., 653.

   Potter, J.

We think the learned trial judge committed an error in the admission of the entry upon the defendants’ ledger" as evidence.

There is and can be no pretence, it seems to me, that an entry in the ledger was admissible under the rule allowing the account book of a party as evidence in his favor, for the reasons that the evidence in this case shows that the original entry was upon another book, and an account book is only evidence of sales and dealings in the ordinary course of business, and not of special contracts of the character of the one in this case under which a party claims to have paid a claim against him by crediting such claim upon an account he has against another party. McGoldrick v. Traphagen, 88 N. Y., 334. Besides, the evidence shows the entry in the ledger is not a copy of the entry in the book of original entry, but is a “ totalling ” of it, whatever that may be. Nor is it suggested in the opinion of the learned general term, in affirming the judgment, that the entry in the defendants’ ledger was a part of the res gestee between the parties to the action. Upon the contrary, it is assumed, in the opinion of that court, that the entry was not a part of the res gestee.

But in that opinion the ruling of the trial court is approved upon the ground that the entry shows that “ the defendants did as they agreed, and in fact did offset the price by crediting the third party’s account ’ with the purchase price ” of the goods in question. The question upon this appeal is, therefore, brought to this, whether a party to a contract, the terms of which are in dispute, may give in evidence his own statements, either oral or written, made subsequent to the contract, in corroboration of his version of the contract ?

The question is not whether the defendant had performed the contract, but what the contract was and as to the defendants’ right to perform it in the manner pursued by them.

The general rule is. that such statements and entries are inadmissible for any purpose. There was no pretense that the defendants could not recollect the terms of the contract and so reference to contemporaneous memoranda might be resorted to to refresh a dull or defective memory. The rule in such case is limited to an original entry made by the witness at the time of the transaction. For the general rule and the exceptions to it, see opinion of this court by Judge Bradley, 114 N. Y., 280; 23 N. Y. State Rep., 220, and the cases there cited.

The entry in the ledger of defendants was not the book of original entry, nor made at the time of the transaction nor made by the witness who testified in relation to it. It seems to me that it would be a somewhat novel, not to say dangerous, rule of evidence upon a trial to determine a dispute as to what the contract between the parties is, to allow one of the parties to testify that he had performed it in harmony with his testimony as a witness.

But the case under consideration goes much further than that. It allows the party to show in corroboration of his testimony, flatly contradicted by the other party to the disputed contract, not the actual performance of the disputed contract, but a performance upon paper by an entry made subsequently to the contract by himself or under his direction, upon his own books, of the way and manner-he intends or-hopes to perform it; for the entry of a credit upon the books of .one party in his accounts with another party is not the .performance of a contract. .It is the actual adjustment and settlement of the entry upon the book, that can constitute performance: Until actual -application and settlement, the entry .-upon the .books of-a party signifies nothing more than that party’s understanding or wish as to the mode .of performance.

The settlement or the-performance of'the contract between the parties in this case required the assent of the .plaintiff’s assignors, and:the assent .of the.third party who owed defendants, that the debt might be paid in this way, and that the-third party thereby become the debtor .to the.plaintiff, before the contract' as claimed by the defendants; could ;be-performed.

Ho such assent or action .was shown, .and the entry upon the defendants’ books„signifies-nothing in-the way of .actual performance of:the contract

I think the judgment should be reversed and ¿a new ■ trial granted, with costs, to-, abide .the event.

Follett,-Gh. J., Vann and -Parker,.'JJ., concur ¡ Bradley, Haight.-and. Brown, JJ., .dissent


author: Parker, J.

text:
    In the Matter of the Final Settlement of the Accounts of Mortimer F. Reynolds, as Ex’r.

      (Court of Appeals, Second Division,

      Filed March 3, 1891.)

    1. Will—Construction op.
    Testator, by the third.subdivision of his will, gave his-son a building ..known as .the, Arcade, “and all the furniture and personal property in ana upon the same, or in any manner connected therewith,".etc. .After certain .devises to his wifein'lieu of dower, he gave .the,residue of his estate to his son'in trust,‘to'be divided among certain persons-named. Held, that a '.bank book, -with certain securities which-were .found in a -vault in the Arcade, did not pass .to the son by the third subdivision, but the bequest was limited to such -personal property, in addition to furniture, as properly belonged to-and was employed by the testator in-the use which he, made of the.- buildingidevised.
    3. -Same.
    ‘General words following an enumeration of articles in a bequest should be.limited to-things of the same general character as those enumerated, unless they occur in a general b.equest of-the whole of testator’s estate or in a residuary clause, or where the will does not contain a residuary disposition.
    3. Executors and administrators—Payments.
    . An executor Will not "be allowed to credit himself with a sum of $250 presented as a gratuity-to a commandery of which testator was a member for parading at the funeral.
    Appeal from a judgment of the supreme court,, general term, fifth department, entered on an order affirming a decree of the surrogate’s court of Monroe county.
    The record presents the proceedings had.qpon therfinal judicial settlement of the accounts of Mortimer F. Reynolds,, as executor of the last will and .testament of Abelard Reynolds, deceased. The decree in which such proceedings finally resulted proved unsatisfactory to the executor and "appellant in two respects. , 1st It decreed that certain stocks, bonds, leases and bank books of the value of about $12,000, which were in a safe in th'e-Arcade at the time of" testator’s death, did not pass to Mortimer F. Reynolds individually under the third clause of the will, but became a part of the residuary estate provided for by the fifth clause. 2nd. It adjudged that the payment "of "$250 by the executor to the Monroe Commandery was not chargeable against the estate" as part of the funeral expenses.
    The will of Abelard Reynolds provided as follows: First. I give and devise to my wife Lydia S. Reynolds, the homestead where I now reside, on Fitzhugh street in said city of Rochester, with all the lands, privileges and appurtenances thereto belonging or appertaining, to have and to hold the same to her own use during the continuance of her natural life.

      iSscond. I give and bequeath -to my said wife" all the "provisions and supplies of every kind which may be on hand" at my said homestead at the time of my decease, and the "use during her life of all the household furniture,, goods, horses, carriages, harnesses and all other personal property (other than money, choses in action and securities)which shall be in or upon the premises at my said homestead, or habitually kept there, at the time of my decease.

      Third. I give, devise and bequeath to my son, Mortimer F. Reynolds, my property situated upon West Main street (formerly Buffalo street) in said city of Rochester, extending through to Exchange Place in the rear, known as Reynolds’ Arcade, including also East Arcade (so called) with all the lands, buildings and appurtenances thereunto belonging or in any wise appertaining, and including all the furniture and personal property in and upon the same, or in any manner connected therewith, to haveand to hold the same to his Own use and -benefit forever; subject, however, to the payment of the following sums, which are hereby made a distinct charge thereon, viz.: An annuity of'$3,000 to my said wife, to be paid to her in four equal quarterly payments from and after my decease, in each year, during the continuance of her natural life. Also the sum of $50,000, with annual interest-thereon from the time of my deceaise, to my granddaughter, Clara L. Amsden, and the like sum of $50,000, with like interest, to my granddaughter, Sophia 0. Strong, tobe paid to them, respectively, as follows, -viz.: In annual instalments of at least $10,000 per annum to each of them, to be applied first to the payment of the interest which may be then due, and the residue upon the principal, until the whole is paid; the first instalment to be paid at the expiration of one year from the time of my decease, with the privilege,-however, of paying-a greater amount at any time, to the extent-of all that may remain due and unpaid.

      Fourth. In case my said wife should -refuse -to accept the-foregoing provisions made in her behalf, which, -if accepted, are intended to be in full satisfaction and discharge of her right of dower, and of-all other interest or claim which she may have in or upon" any portion of my estate,- real - or personal, then, and in that case, ‘only two-thirds of the aforesaid sum of $50,000, bequeathed to each of my. granddaughters, with the interest thereon, that-is., upon the said two-thirds, shall be payable during the lifetime of my wife; but, upon her decease, all that may remain unpaid of the whole bequest of $50,000 to each of- my said granddaughters, with interest • thereon, shall become due and payable, and the instalments hereinabove provided for shall" be continued until the whole is paid. No interest; however, is to be computed or paid upon the one-third, payment of which is suspended during the life of my said wife, except from and after the time of her decease.

      Fifth. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my said son and. executor, Mortimer F. Eeynolds, in trust, to sell and dispose of the same and convert the whole into money or into good and safe-securities, and out of the proceeds to pay first, to my granddaughter, Sophia 0. Strong, a sum which, when added to the advances made to her either by myself or my deceased son, William A. Eeynolds, in his. life time, and now charged upon my books, shall. be equal to the advances ■ similarly, made to my granddaughter, Clara L. Amsden, also charged upon my books; and -after • such payment to pay to" himself, or retain out of .the residue of such, proceeds, a sum which, when added to the - sum .charged against him, the said Mortimer F. Eeynolds, upon my books, shall be equal to the sum so advanced to each of my granddaughters. The remainder of the trust funds to be realized from -the sale herein directed to be divided equally between my two granddaughters, one-half to each. -
    The furniture and personal property, the use of which is given in connection with the homestead to my wife, is not,-however, to-be sold, in case she accepts the provisions herein made for her - benefit, until after her decease, and whenever sold the avails are-to be divided equally between my said granddaughters.
    Sixth. At any sale which may be made in pursuance of the foregoing directions, the said Mortimer F. Eeynolds is to be permitted to bid and to have the same right and privilege of becoming a purchaser as if he were not named or acting as trustee.

      Seventh. As I have already provided for my sister, Mary, by gifts heretofore made, I make no further provision for her in this will:

      Lastly. I hereby constitute and appoint the said Mortimer F. Eeynolds sole executor of this my last will and testament.

      Theodore Bacon, for app’lt; Spencer Clinton, for resp’t.

       Affirming 38 N. Y. State Rep., 985.

   Parker, J.

The testator’s office was in the building devised to his son by the third subdivision of the will; connected with it was a vault; and within the vault a safe in which money and securities were kept.. When he died a bank book, certain securities of different kinds and money were there. These the appellant contends passed to him under such subdivision, by which 'the testator devised to him, subject to a charge, the “ Arcade, * * * ineluding all the furniture and personal property in and upon the same, or in any manner connected therewith.’’ -And he challenges'the determination of the surrogate’s court that a proper construction of the will limits the bequest to such personal property in addition to furniture as properly belongs to and was employed by the testator in the use which he made of the building devised.

Our attention has not been called to any authority in this state which can be made serviceable in determining the question presented. But in England and in several states in this country the courts have had under consideration the rule which should guide the court in determining whether general words following an ■enumeration of .articles in a bequest should be limited to things of the same general character as those enumerated, or be given the most enlarged meaning of which they are capable.

Appellant’s counsel calls special attention to Campbell v. Prescott and Hotham v. Sutton, 15 Ves., 500 and 319. In Campbell's case the court refers with approval to the observation of Lord Mansfield that the word “effects” is equivalent to “property” or “worldly substance.” And in Hotham's case the words “ other effects,” in the connection in which they were there used, were held not to be restricted to things of the same kind as those specially enumerated.

In the first case the general words following an enumeration occurred in a residuary disposition, and in such cases the settled rule is that they will be given the broadest and most comprehensive meaning of which they are susceptible, in order to prevent intestacy as to any portion of the testator’s estate.

In the latter case the testatrix, having two sons and a daughter, B., G. and D., bequeathed for their benefit a sum in consols, and gave all the residue of her personal estate to her youngest children, O. and D. On the same day she executed a codicil and revoked •so much of her will as related to the bequest to her son 0. of a share of her “ plate, linen, household goods and other effects '(money excepted),” and gave the whole thereof to her daughter.

It was held that the words “ and other effects ” were not restrained- by the prior terms to articles ejusdem generis, and therefore the revocation extended to the general residuary personal estate. Lord Eldon, in delivering the opinion of the court, declared the doctrine to be settled that the words “ other effects in general mean effects ejusdem generis." But held the rule not applicable to the case under consideration, because the exception made it apparent that the testatrix did not so understand it. He said “ money cannot be represented as ejusdem generis with plate, linen and household goods. The express exception of money out of the ‘ other effects ’ shows her understanding that it would have passed by those words; that express words were required to exclude it; and by force of the exclusion in the excepted articles she says she thought that the words of her bequest would carry things not ejusdem generis.” ■ ■

In Swinfen v. Swinfen, 29 Beav.; 207, the will recited : “ I give to Mrs. Swinfen, my son’s widow, all my estate at Swinfen or thereto adjoining; also all furniture and other movable goods here.” It did not contain a residuary clause. And it was held that the general words were not restricted to things ejusdem generis. And therefore the live stock and implements of husbandry on the lands, as well as money in the house at testator’s death, passed to-the legatee.' ' '

_ In Michell v. Michell, 5 Mad., 69, the bequest was of “ all and singular his plate, linen, china, household goods and furniture and effects that he should' die possessed of.” The court said that, while the words furniture and effects are frequently used in a restricted sense, meaning goods and movables, that the fact that the word furniture was preceded by the word “and,” and “effects” followed by the phrase “that he should die possessed of,” leads to-the conclusion that it was used in a more enlarged sense and embraced all his personal estate.

In Fleming v. Burrows, 1 Russ., 276, the bequest was to testator’s son of “ my furniture, plate, books and live stock, or what, else I may then be possessed of at my decease.” It was followed by a few specific bequests, and the question was whether the general residue of the testator’s property passed to the son. It was urged that the word “then” was evidently-written by mistake-instead of “ there ” ; that it should be read as intended; and if that be done, the bequest having reference to locality must be treated, as specific and not general. The court did not agree with such contention, and held that it disposed of the entire personal estate,, remarking in the course of the opinion that the instrument- contains no residuary clause unless the words “ or what else I may then be possessed of at my decease ” are to be so construed.

In Re Scarborough, 30 L. J. Prob., 85, the bequest was of “ all my personal effects, and everything of every kind that I-' now have or may have at the time of my decease in my apartments at the above named 13 Plaistow Grove West, or elsewhere.” "Upon the application for letters of administration a- doubt was suggested' whether the personal estate of testatrix, not in her apartments in Plaistow Grove or other apartments, was, embraced in the-bequest or passed to the. next of kin because as to it she diedin,testate. It was held that the words “or elsewhere” referred not to the.locality of apartments, but to the effects, of deceased, and disposed of all the personal estate.

In Taubenhan v. Dunz, 125 Ill., 524, the bequest to the devisee and legatee- named in the will was as follows: “Also $3,000 in money to be paid to her by my executor; also all the loose property in, on and around the homestead, consisting of one, cow, two hogs; and a lot of wood, and all property of every kind.”

The testator owned other promissory, notes for money.loaned., It was held that as to them he did not die: intestate; that they passed to the legatee under the. will. In Mahony v. Donovan, 14 Irish Ch, 262-388, a bequest of “-all my right and title, to my ■property in the- town of R., namely, my dwelling-house and household furniture, and all things therein, especially my car horse and- covered side- cars,” was held to pass, bank notes; known by th,e.testator to be in the house at toe time.the-will' was- made. The Master, off the. Rolls, m the course of his opinion, said: “It is also to be observed that there, is no, residuary clause, in. this will, and the court is disinclined to put such a construction, on a will as will-lead to an intestacy as to part of the property.”

We have now' referred to the cases cited by the learned counsel for the appellant in support of his contention, and it .will be observed that in every case, excepting Hotham v. Sutton and Michell v. Michell, in which the court held that the general words preceding or following enumerated articles should not be limited to things ejusdem generis, they either occurred in a general bequest of the whole of testator’s estate, in a residuary clause, or the will did not contain a residuary disposition. With the exceptions thus noted it seems to me a settled rule of construction that when certain things named are followed by a phrase which -need not, but might be construed to include other things, it will be confined to articles of the same general character as those enumerated. Johnson v. Goss, 128 Mass., 434; Dole v. Johnson, 3 Allen, 364; Spark's Appeal, 89 Pa. St., 148. Hotham v. Sutton, supra, recognizes and asserts this rule of construction, but held it not applicable there because of an exception which manifested that the testator thought otherwise. In Jarman on Wills, 760, after considering various English decisions in which it was held that general words would not be limited to things ejusdem generis, the author said: “ It is to be observed, however, that in all the preceding cases there was no other bequest capable of operating on the general residue of the testator’s- personal estate, if the clause in question did not.' Where there is such a bequest it supplies an argument of no inconsiderable weight in favor of the restricted construction which is there recommended by the anxiety always felt to give to a will such, a, construction as will render every part of it sensible, consistent and effective.” He alludes in that connection to Woolcomb v. Woolcomb, 3 P. Wms., 112, Cox’s ed., where the testator bequeathed to his wife “ all the furniture of his parsonage house, and all his plate, household goods and other goods (except books and papers), and all his stock within doors and without, and all his corn, wood and other goods belonging to his parsonage house,” and gave the residue of his personal estate to J. S. The question was whether - ready money cash and bonds would pass to the wife ? The court refused to give to the general words their broad meaning, but restricted them to goods ejusdem generis, inasmuch as a different construction would, operate to frustrate the-bequest of the residue.

Applying then the rule of construction deducible- from the authorities, it may be conceded that if there were no residuary clause,fin the, will,.so that as to the money and securities, of the amount and value of $12,000, Abelard Reynolds would have died intestate unless it should, be held to have passed by the bequest, the words “'and personal property in and upon the same or in any manner connected therewith,” would be given the most comprehensive meaning of'which they are susceptible for the purpose of"preventing intestacy as to a portion of the. estate.. But,there is a residuary clause. In the fifth provision the testator says-: “I give, devise and bequeath all the rest, residue and. remainder of my estate, both real and personal * * * in trust to sell and dispose of the same and convert the. whole into money or into good and safe securities,’ and after directing that out of the proceeds there should be paid to Sophia 0. Strong and Mortimer F. Reynolds each such sum as, added to their respective advancements, will place them on an equality with the advancement made to Clara L. Amsden, he directed that the remainder be divided equally between his two granddaughters.

A case is therefore presented which requires the general words in the bequest to Mortimer F. Reynolds to be limited to things ejusdem generis. Such must be deemed to have been the intention of the testator. Indeed it is difficult to conceive that he could have intended otherwise in view of the fact that it would have substantially resulted in a. disappointment of the residuary disposition.

In the second subdivision of the will the testator bequeaths to his wife for use during her life “ all household furniture, goods, carriages, ■ harness and all other personal property other than money, choses in action and securities, which shall be in or upon the premises at my said homestead or habitually kept there at the time of my decease.” And the appellant insists that the omission to make a similar exception of “money, choses in action and securities ” in the third subdivision must be taken as an indication of his intention to give to the words “ personal property ” therein their most comprehensive meaning. That fact is not controlling, bnt is a circumstance to be considered in connection with the whole will in the effort to so construe it as to give effect to the intention of the testator. And our conclusion in that regard is in accord with the result reached by the learned surrogate.

The refusal to credit the executor with the sum of $250 donated to a commandery of which testator was a member for parading at the funeral was not error. Mo reason is offered for this attempted charge against the estate. It does not appear that such sum or any other was required as a condition of participation on the part of the commandery. It was a mere gratuity on the part of the executor, which he then or subsequently concluded to permit the residuary legatees to assume.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Browst, J.

text:
    Wesley Mandeville, as Rec’r, App’lt, v. Edward H. Avery, Impl’d, Resp't.

      (Court of Appeals, Second Division,

      Filed March 3, 1891.)

    1. Chattel mortgage—Assert by creditor.
    An assent by a creditor to an arrangement between the mortgagor and mortgagee which would preclude him from asserting his rights as a credit- or of the mortgagor against the mortgaged property must be such as to create against him an equitable estoppel or it must exist in agreement, and in such case must be supported by a valid consideration.

      3. Same.
    A creditor cannot be deprived of his legal rights as a result of an agreement made with his agent without some evidence that he knew'of the defect in the mortgage, and had authorized his agent to make an agreement in reference thereto or had acquiesced in it when made.
    3. Same—Consideration.
    Beck, the defendant, applied to Ross to sell him goods, and informed him that Mr. Avery, the president of the bank, was to loan him $1,000, without security, and Ross sold the goods, but on finding that a chattel mortgage had been given to Avery, Ross’ agent, Gordon, told Beck that if he would continue in business and pay Ross a little now; and then he would be satisfied, and that if Beck would return certain goods to Ross he should have credit; Avery said that any arrangement Gordon might' make with Beck would be satisfactory. Held, that as no payments were made and no goods returned, the mere promise to release in case Beck returned the goods did not constitute a consideration for the promise of Gordon.
    4. Receiver—Supplementary proceedings.
    A receiver in supplementary proceedings has the right to prosecute actions to set aside all transfers of property made by the debtor to defraud his creditors, and possesses the same lights as the creditor, under whose judgment he was appointed, would himself have had.
    5. Bar—Pendency.op former action.
    To sustain a plea of former action pending, it must appear from the pleadings in the first action that it was for the same cause as .the second or involved necessarily the same question. It is .not enough that the same property is in controversy in both actions.
    (Pollett, Oh. J., dissents.)
    Appeal from a judgment of the general term of the fifth judicial department, entered upon an order made June 20, 1890, affirming a judgment entered upon a decision of the court at special term.
    The action was brought to have two chattel mortgages, executed by the defendant, Henry J. Beck, to the defendants, Edward H Avery and the National Bank of Auburn, adjudged fraudulent and void, and to require the defendant Avery to account for the proceeds of the sale of the mortgaged property and pay over to the plaintiff such part of said proceeds as was necessary to satisfy the judgment of Lewis P. Boss, a creditor of said Beck, with the costs of supplementary procéedings, etc. The opinion states the facts.

      David Hays, for app’lt; J. 0. Avery, for resp’t.

       Reversing 32 N. Y. State Rep., 267.

   Browst, J.

The mortgage to the National Bank of Auburn, was subsequently assigned to Avery, was executed January 24, 1887. The mortgage to Avery was executed February 8,1887. As to the first mortgage the court found that it was not accompanied by an immediate delivery or followed by an actual or continued change of possession of the chattels mortgaged, and that it was executed upon an agreement with the bank that the mortgagor might remain in possession of the property covered by the mortgage, and sell the same at retail in substantially the same manner as before the execution of the mortgage and use the avails.

Similar findings as to the Avery mortgage were refused. The court found, as a conclusion of law, that the mortgage to Avery was valid and that the mortgage to the bank was not fraudulent and void as-against the judgment of said Ross'-nor "the plaintiff in this action.

There wits 'ample evidence to support -the findings aforesaid, and the validity of the Avery mortgage cannot be questioned on this appeal

The finding quoted in referenced the mortgage to the' bank rendered it void as to the creditors of the mortgagor. Gardner v. McEwen, 19 N. Y., 123; Russell v. Winne, 37 id., 591; Southard v. Benner, 72 id., 424; Potts v. Hart, 99 id., 168; Brackett v. Harvey, 25 Hun, 502; Bainbridge v. Richmond, 17 id., 391. And the term creditors includes all persons who were such while the. chattels remained in possession of the mortgagor under that-‘agreement, and it was not essential to their rights that they- did not obtain judgment or a specific lien until after delivery -of the property to the mortgagee. Stimson v. Wrigley, 86 N. Y., 332; Dutcher v. Swartwood, 15 Hun, 31. The conclusion that this mortgage was not void as against the judgment of Ross or the plaintiff was based upon a finding that Ross, the judgment creditor, with full knowledge that the agreement in reference "to the possession of the mortgaged property had been entered into, assented to such arrangement

This finding is challenged by the appellant on the ground that there is no evidence tending to support it, and whether there is or not is the vital question-in the case. - We-are of the opinion that this finding cannot be sustained.

An assent by a creditor to an arrangement between the mortgagor and mortgagee which would preclude him from asserting his rights-as a creditor of the mortgagor against the mortgaged property, must be such as to create against him an equitable estoppel, or it must exist in agreement, and in such case must be supported by -a valid consideration.

It-could not be claimed in this case-that there was -an estoppel. The mortgage .was executed and delivered and the-illegal -agreement made before -Ross-or his agent knew of it, and there is "no evidence and no claim that Mr. Avery did .-any-act >to his own prejudice or adopted any line of conduct by reason of-anything said Or done by Ross or on his behalf. -Hor-was-there'any valid agreement Without stating in detail the evidence, it appears that Beck, when .he applied to Ross to -sell him goods, - informed him that Mr. Avery, who was president of -the bank, -was to loan him *$1,000-to-be used in "his business without-security. .Ross inquired of Avery by letter if that statement waS true, and Avery replied -that he had agreed to help him to the -extent of $1,000.

Ross -understood this as an affirmative answer -to bis question, and made the sale. Soon after the mortgage was -given Ross learned of it, and -sent his agent, Gordon,.to Auburn to -inquire about it He-called on Avery and asked him why "he took the mortgage after-it was-understood that the loan was "to -be without security. Avery told him that Beck had offered to give it, as he had used some of the iyoney -loaned -him in paying incumbrances on his -property, and that the bank would let him go on as if no "mortgage had been made. Gordon replied that if Beck -would continue in - business and pay Boss a little now and then, he would be satisfied, and that Beck had' some of the goods which Boss had sold .him which, were out, of-season, and if he would return them he would have credit Avery said that any arrangement that Gordon made with Beck about payment orrreturn.of the goods would be satisfactory to him.

This conversation took place on February 3d, and on February 8th Beck gave Avery another mortgage, whereupon he ■ immediately took possession of the stock in the store, and proceeded to sell it out under both mortgages.

There is no evidence in the case that Gordon had any authority from Boss to make an agreement to waive or surrender his right to attack the mortgage as fraudulent, or that the fact of such an agreement ever-was‘communicated to him, or that he acquiesced therein if it was told to him, and.none-thathe ever knew, prior to the commencement of this suit, of the agreement ¡between the mortgagor and mortgagee which rendered the mortgage void.

I -think a creditor could not be deprived of his legal rights as a ■result of an agreement made with his agent without some evidence that he knew of the defect in the mortgage, and had authorized his agent to make an agreement in reference, thereto, or had acquiesced in it when made, and this case is barren of any evidence tending to show any of these facts. But it is not necessary to rest our decision on that ground.

Assuming Gordon to have had full authority to negotiate with Avery and make the arrangement testified to, -there .was no consideration for the agreement The only consideration claimed is in the implied promise of Avery to release from the lien of his mortgage the goods that Beck should return to Boss, and the payments that he would make to him presumably out of ithe proceeds of sales at the store. But no payments were ever made and no goods were returned, and the mere promise to.release in case Beck returned the goods did not constitute a consideration. It was conditioned solely on Beck’s action and could become operative and binding only in case the goods were returned .and payments made. :It would be a remarkable proposition that Boss could be held to his contract in consideration of .the return of goods never delivered to him and payments on account of his claim never made. The agreement, if it may be called such, was conditioned solely upon acts of Beck which were never .performed. Moreover, it does not; appear that Gordon expressed himself as satisfied that the bank .should .hold the mortgage, but .with the,statement of Avery that the‘bank would let. Beck go on with 'the business. Avery testified rthat .he told Gordon that-it was his desire .that he (Beck) should continue, and he-saw no reason why he should not; that-there was no disposition by the bank to injure him .or press him and ¡that he hoped he would ;go on and continue business and pay his ¡liabilities ; that it was for the interest .of all parties that he should;go on and finish .his work and make it valuable, and that Gordon said “-that would be satisfactory to ¡him.” If this was evidence of a contract .it ¡certainly meant rthat "Avery would not enforce the mortgage, and assuming that Gordon knew that the agreement between the bank and' Beck rendered that instrument void as to creditors, he might very well have expressed his satisfaction with the situation. Both parties were thus left in their original situation with reference to each other. Neither had preference over the other and both relied upon the business to repay their debts, and this is all that, in my judgment, can fairly be inferred from the testimony. The judgment must, therefore, be reversed, unless the other points made by the respondent can be sustained.

It is claimed that the plaintiff, as receiver, cannot maintain this action.

A receiver appointed in supplementary proceedings under the code is vested with the legal title to all the personal property of the judgment debtor and has the further right to prosecute actions to set aside all transfers of property made by the debtor to defraud his creditors.

For the purpose of maintaining such actions he represents the creditors and possesses the same rights as the creditor, under whose judgment, he was appointed, would himself have had, Becker v. Torrance, 31 N. Y., 631; Bostwick v. Menck, 40 id., 383; Wright v. Nostrand, 94 id., 31, and his rights in this respect were not confined to the assigned property, but he could follow the fund or proceeds of the sale thereof into the .possession of any person not a bona fide owner or holder thereof.

If the creditor could have secured a levy by execution upon the mortgaged property before a sale thereof, the fraudulent mortgagee could not have held the property against the sheriff. Brewing Co. v. Hart, 48 Hun, 393; 16 N. Y. State Rep., 321; Sperry v. Baldwin, 46 Hun, 120; 11 N. Y. State Rep., 609; Stimson v. Wrigley, 86 N. Y., 332. The right to collect the debt out of the mortgaged -property could not be defeated by the mortgagee simply by selling the property.

The same right that existed against the property would exist in favor of the creditor against the proceeds of the sale in the possession of the mortgagee, and an action to reach such a fund would be maintainable either by the creditor or by a receiver appointed in supplementary proceedings under the judgment. To hold otherwise would be to decide that the beneficial provisions of the statute could be defeated by a fraudulent mortgagee or vendee, by merely selling the assigned property,' and as this could, in the great majority of cases, be done before a judgment could be obtained by the creditor and a levy made, the statute would be practically annulled. Dutcher v. Swartwood, 15 Hun, 31.

The general term, however, based its decision upon the ground that the debt to the bank having been a valid one, and having been paid out of the' mortgaged property before any lien was ■ obtained thereon, another.creditor could not compel the mortgagee to refund the money on the ground that as against creditors generally the mortgage given to secure the paid debt would have been adjudged void. . Two classes of cases are cited by that learned court to sustain this conclusion.

First, those holding that an assignee acting under a void assignment will not be held accountable for such of the proceeds of the assigned property paid out by him to creditors in pursuance of the assignment before any other creditor has obtained a lien upon the assigned property.

Second, that the objection that a chattel mortgage is void is not available when, before any creditor had questioned its validity, the mortgagor delivered the chattels to the mortgagee and authorized an immediate sale thereof by him.

I am unable to see that the first class of cases has any application to the facts before us.

As to the second there is no doubt as to the right of a debtor to prefer any creditor and to pay his debt in full, either in money or property, to the exclusion of all others.

But to apply that principle to this case is to ignore completely the facts pleaded and found by the court. There was no claim that the property sold was turned over by Beck to Avery in payment of the debt. The complaint alleged that the property was sold by Avery under the mortgage, and this fact was not denied by the answer. The court also found that Avery by virtue of both mortgages took possession of the mortgaged property and as such mortgagee caused the same to be advertised at public sale and sold under said mortgages.

There is nowhere any suggestion in the evidence or findings that the mortgage was waived or abandoned, or that the debtor had voluntarily delivered the property to Avery with authority to sell it.

Everything that was done was pursuant to and under the mortgages. Avery could not and did not claim to have received the property or the proceeds of the sale in payment of his debt as the voluntary act of the debtor, but as mortgagee. He cannot, therefore, assert against the claim of other creditors the honesty of his own debt. The mortgage being void all proceedings under it were void, and although he may possess an honest claim, he cannot retain property obtained by him under a fraudulent mortgage against a pursuing creditor. The proceedings taken to collect the debt are unlawful Murtha v. Curley, 90 N. Y., 372; Billings v. Russell, 101 N. Y., 226-231; Wells v. Langbein, 20 Fed. Rep., 183. It is further claimed that the judgment in the case of Avery v. Mead was a bar to this action. That was an action brought by the defendant to recover possession of the mortgaged property from the sheriff, who had levied upon it under an attachment issued in favor of Boss and against Beck.

It appeared upon the trial that the judgment in that action, which was set out in the answer and which adjudged Mr. Avery tb be the owner and entitled to the possession of the mortgaged property, had been reversed and a new trial granted, but the court found as a fact that the action was still pending.

We may, therefore, treat the defense as a plea of a former action pending. To sustain such a plea it must appear from the pleadings in the first action that it was for the same cause as the second or involved necessarily the same question. It is not enough that .the same property is in controversy in both actions. Dawley v. Brown, 79 N. Y., 390.

The complaint in Avery v. Mead alleged that on February 16th, 1887, the plaintiff was. lawfully possessed of property therein described, which was the mortgaged property, and that the defendant wrongfully -took said property from the- plaintiff: The defendant justified under an attachment issued in the suit- .of Boss v. Beds and alleged that the goods levied upon by him were the property of Beck and “ that any pretended transfer- of ' said goods to the plaintiff was in fraud of creditors- and void.”

We need not speculate what result might follow the trial! of that action. It is plain- that to succeed in his defense the sheriff ■would necessarily be- compelled to establish the invalidity of both of the mortgages held by Mr. Avery. But it was not essential to Avery’s success that he should establish the’ validity of both. The right to the-possession of the mortgaged property could have-been successfully asserted under the second’ mortgage and the-validity of the mortgage-to the bank'did not, therefore, necessarily come in issue. Avery might have recovered' possession of the mortgaged-, property in the action against the sheriff and not be able to sustain the: validity of the bank mortgage. In other words, the validity of. the bank mortgage, which is the-sole inquiry here, was not necessarily involved in the action against" the sheriff. Hence the pendency of that action- was not a defense-to this.

The judgment should be-reversed- and-u new trial granted,.with, costs to -abide the event"

All concur, except Follett, Ch. J., dissenting, and Bradley and Haight, JJ., not sitting.


text:
    Deborah Taylor Lee et al., Resp’ts, v. Charlemagne Tower, Jr., et al., Ex’rs, App’lts.

      (Court of Appeals, Second Division,

      Filed March 3, 1891.)

    1. Wills—Trust—Equitable conversion.
    Testator, a resident of Pennsylvania, by hia will, after giving bis wife his household goods and the use of a house for life, gave the rest of his estate to trústees- in-a trust which would be void-under tlie-statute-of tbis state.against perpetuities, and directed that four-tenths of the income be paid to his wife, in lieu, of dower, which she elected- to take: Held, that the general term properly held: that from the provisions of the will and the surrounding circumstances it could-not-be said that testator intended that- his real estate should'in all-events be sold; and that -the-trust was void as to lands in tbis state, but that it erred- in bolding that the widow was entitled to dower id the real estate situated-in this state, as to which it was-adjudged'the testator died-intestate.
    2. Same. ■ ■ ■ ; ■ -
    The testator having, contrary to-hiáintention, died:intestate .astO' a portion of his property,, tbe statute,- not the court,, declares who-are interested in it. The widow might have been, but she elected otherwise, and thus reliéved'the rCal'estate-from the burden of'dower.
    Appeal from a judgment of' the-general.-term, off tbe,supremecourt of the fourth department,.rendered, upon a.controv-ersy without action..

      Earl B. Putnam, for app’ltsHenry- T.. Utley,, for, résp-ts.

       Modifying: and afflrming 34 N. Y. State Rep., 829.

   Parker, J.

This controversy was submitted without action pursuant to the provisions § cedure.

Charlemagne Tower, a resident of Pennsylvania, died leaving a last will and testament, which was admitted to probate at Philadelphia, May 21,1889, and subsequently duly recorded in the counties in this state wherein are situated the lands which occasion this contest.

The questions submitted were whether the provisions of the will, so far as they related to real estate situated in the state of New York, were valid, and if invalid, whether the widow of Charlemagne Tower has a dower interest therein.

The court adjudged that the attempted disposition of such real estate was invalid because in contravention of the statutory provision that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance' of not more than two lives in being at the creation of the estate.

We agree with the conclusion reached by the learned general term, as well as the reasoning on which it was founded. It is deemed unnecessary, therefore, to refer to the provisions of the will, which fully appear in the opinion of the general term.

The court also held that the widow is entitled to dower in the real estate situated in this state as to which it was adjudged the testator died intestate. In that view we do not concur.

The testator, after providing for the payment of debts and funeral expenses, gives to his wife absolutely his household goods, horses and carriages; also the occupation and use of his residence in the city of Philadelphia during her natural life; and directs that the taxes, water rents and repairs thereon during her occupancy shall be paid out of the income of his estate. All the rest of his property he devises and bequeaths in trust, and directs, among other things, that four-tenths of the income thereof shall be paid to her during the term of her natural life. The will.further provides as follows: “The provisions herein made for the benefit of my dear wife I declare to be in lieu, substitution and satisfaction of her dower, thirds, and all. other in- ■ terest in my estate, real, personal and mixed.” And the widow has elected to accept the provisions of the will.

It may be observed that this is not an action brought to relieve the widow from the effect of her election on the ground that it was induced through mistake, she at the same time offering to surrender the benefits which the testator declared to be given in ' lieu of dower. It is not suggested .that the widow would now • prefer to take that which the law would allow her had she refused to accept the provisions of the will.

The position she assumes, and which has been sustained by the general term, is that the testator intended that she should have two-fifths 'of the income of the land in' question, and that as such intention has been frustrated by the statutes of this staté, .she is entitled to dower in such land and still retain the benefit of the provisions of the will giving to her certain property absolutely, with the use of other property during life, and two-fifths of the income of that which passed to the executors in trust, notwithstanding the declaration of the testator that if accepted it must be “in lieu, substitution and satisfaction of her dower and thirds and all other interests (not in the estate disposed of by the will) but in my estate, real, personal and mixed," including necessarily that of which the testator died intestate as well as testate.

When the widow accepted the provision made for her she, in legal effect, consented to all the terms and conditions annexed to it, and yielded every right inconsistent therewith. No one can be allowed to disappoint a will under which a benefit is accepted, but on • the contrary must concede full effect to the dispositions thereof. Chamberlain v. Chamberlain, 43 N. Y., 424-442. And when one is thus put to an election it matters not whether that which is taken turns out to be greater or less in value than that which is surrendered. Brown v. Knapp, 79 N. Y., 136-143.

We have then a bequest coupled with a condition and an acceptance thereof.

The condition in clear and comprehensive terms provides that the acceptance of the bequest by the legatee must be in lieu of dower. It makes no exception. It was evidently the intention of the testator that there should be none, and the court must so declare. But, it is said the testator intended that she should have two-fifths of the income of the real estate of which he died intestate. True, and that fact gives support to. that which seems obvious on a mere reading of the condition, that it was the intention of the testator that the widow should not have dower in these lands. He intended, and attempted, to provide that she should have two-fifths of the income. That attempt was unsuccessful because, in some respects, the provision was in hostility to the statute. Effect, therefore, cannot be given to the testator’s intention in that direction. But the frustration of his wishes as to the disposition of the income of his real estate, by the operation of the statute, does not permit the court to disappoint his expressed intentions in regard to dower. The miscarriage of his plans, therefore, cannot be partially remedied by an adjudication that she is entitled to dower in such lands, for the court is without power to so adjudicate. It can no more relieve the widow from a full operation of the intentions of the testator than it can from the effect of the statute. The duty of the court in the premises is to construe the will, not to make one. It cannot correct the testator’s mistakes nor piece out the equities according to the conscience of the court. The testator having, contrary to his intention, died intestate as to a portion of his property, the statute, not the court, declares who are interested in it. The widow might have been, but she elected otherwise, and thus relieved the real estate from the burden of dower. Chamberlain v. Chamberlain, 43 N. Y, 424; Matter of Benson, 96 id., 499; Vernon v. Vernon, 53 id., 351-362: Caulfield v. Sullivan, 85 id., 153; Hone v. Van Schaick, 7 Paige, 221-232.

The doctrine of estoppel cannot be invoked against the heirs, for there is nothing on which to found it. The. widow does not claim to have been misled into the making of an election by anything which they said or did. It is not even suggested that, had she been put to her election with knowledge of the invalidity of so much of the will as related to the New York real estate, she would have acted differently.

The judgment should be modified by striking out the following, “ subject, however, to the right of dower therein of the defendant Amelia Malvina Tower, widow of the said Charlemagne Tower, deceased, to be admeasured the same as if he had died intestate,” and as thus modified affirmed, with costs to both parties payable out of the estate.

All concur.


author: Bradley, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of George A. Powers, Ex’r.

      (Court of Appeals, Second Division,

      Filed March 3, 1891.)

    1. Executobs and administbatobs—Limitation of claim by.
    The running of the statute of limitations against a claim in favor of the executor or administrator against the decedent is suspended until the first judicial settlement of his accounts. The contention that such suspension cannot continue beyond six years succeeding one year after granting of etters has no support in the language of the statute.
    3. Same—Poweb of sale.
    A power of sale for the purpose of paying off incumbrances or of protecting testator’s real estate or more equitably or conveniently dividing it or for any other purpose^ which in the executor’s discretion might render it advisable, places it within his power to make sale when in his judgment it is required to pay debts, taxes or other expenses, and to the extent by him deemed necessary for such purpose, subject however to the qualification that some permissible occasion exists for the exercise of his discretion in that respect.
    3. Same.
    The executor’s claim not having been proved at the time of the sale of real estate, the sale cannot be treated as made to pay it, but after the executor’s claims are proved and allowed, the proceeds of such sales should be treated as assets in his hands and as properly applicable to the payment pro tanto of his claims.
    Appeal by" Mary L. O’Blynn, a beneficiary of the will of Sarah Macomber, deceased, from the judgment of the general term of the supreme court, in the first judicial department, affirming a decree of the surrogate of the city and county of New York, settling the accounts of the executor and allowing in his favor certain claims presented by him against the estate of the testatrix.

      Wm. J. Gay nor, -for app’lt; Edward E. Sprague, for executor, resp’t.

       Affirming 88 N. Y. State Rep., 913.

   Bradley, J.

The testatrix died April 5, 1873. Her will was admitted to probate, and letters testamentary issued to George A. Powers April 10,1873. His petition for judicial settlement of his accounts was presented to the surrogate September 29, 1887, and until then he had filed no account. . The referee, by his report, which was confirmed by the surrogate’s decree, in stating the account charged the executor with $119,618.69, and allowed to- his credit $62,773.43, leaving a balance in his hands of $56,845.26, subject to reduction by his commissions and' the- costs and expenses of-the accounting. And the referee found that, at the time of the death of testatrix, she was indebted to the executor for moneys loaned to and expended for her by him to the amount of $37,633.66, the interest on which’ to the- date of the.report was $43,341.46; and that on December 11, 1872, the testatrix made to the executor her promissory note for $25,000, which remained unpaid, and that the interest .upon it amounted to $27,722.20. And the referee further found that the executor was entitled to retain and apply in part payment of his claims .the balance before mentioned remaining in his hands after payment of his commissions and the expenses of the-accounting. The. main questions arising upon the contestant’s exceptions to the referee’s report and to the decree of the surrogate are:

1. Whether the executor’s claim was established.

2. Whether it was barred by the statute of limitations.

3. Whether he was entitled to application upon his claim of the proceeds, with which he was charged, of the sale of certain real estate by him. The testatrix owned considerable real estate in the city of Brooklyn, and in 1868 she by power of attorney to Powers vested him with powers quite plenary for its control and management and to transact business for her and in her name; and his account with her was annually stated and certified by them in writing. The last statement subscribed by them, May 1, 1872, was that all accounts having been examined, approved, passed and settled, they released each other from all further examination of them, and there remained a “balance in favor of George A. Powers of thirty-seven thousand six hundred and thirty-three 66-100 ($37,633.66) dollars, which is carried to the new account commencing May 1, 1872, and is to draw interest from date.” This established the balance due Powers at that date, and there is no evidence of the situation of the accounts between those parties thereafter during the life of the testatrix other than what appeared in his account filed with the surrogate, which charged him with a balance in his hands arising out of the transactions of that period of $9,052.25. This he sought in his account to apply by way of reduction of the balance of May 1, 1872, but upon the objection of the contestant it was not so deducted, but treated as assets in the hands of the executor. It does not appear that he refused to produce the account kept by him after that date or to render it available to the contestant ás evidence. The balance of the account so adopted by the parties, in view of the rendition by the parties of what purported to be a statement of the-subsequent account, justified the conclusion of the referee on the subject. Lerche v. Brasher, 104 N. Y., 157; 4 N. Y. State Rep., 335. And the presumption which otherwise may have arisen that the note before mentioned was made and taken in settlement of the accounts between those parties the- referee was per- • mitted to find was repelled by evidence to the effect that the note was given for services rendered by the payee for the maker;

It is urged that as fourteen years after the death of the testatrix elapsed before the claim of the executor was presented to the surrogate for proof and, allowance, it was barred by the statute of limitations. Upon that subject the statute in force at the time of such death provided that the statute of limitations should not be available as a defense to a debt or claim of an executor or administrator against the estate represented by him, “ provided the same shall be presented and claiihed at the first accounting, and provided the, same was not barred at .the time of the death of the testator or intestate.” Laws of 1837, chap. 460, § 3.7, as amended by Laws 1868, chap. 594.

And on the repeal of this statute in 1880 that, substituted for it, provided that - “ from the death of. the decedent, until the.first judicial settlement of an- account of his executor or administrator, the running of the statute of limitations against a debt due from the decedent to the accounting party, or any other cause of action in favor of the latter against the decedent, is suspended . * * *

After the first judicial settlement of the account of an executor or administrator, the statute of limitations begins again to run against a debt due to him from the decedent or any other cause of action in his favor against the decedent.” Code Civ. Pro., § 2740. The contention that it was not within the legislative contemplation that the suspension of the statute of limitations should be continued beyond six years succeeding one year after the granting of letters testamentary or of - administration has no support in the plain language of the ■ provision above mentioned. The executor might within that time be required to account; and assuming that after that time he could not be required to do so, he may voluntarily do it thereafter, as well as before; it is the first judicial settlement by him which relieves the statute from its suspension in its application to his claim as relates to the time within which he may prove and establish it in the surrogate’s court And such was the settlement of the executor in the proceeding founded upon his petition before mentioned. The statute was then no bar to his claim.

The further and more difficult question arises in respect to the disposition of $10,850, the proceeds of real estate sold by the executor. And its consideration calls attention to the provisions of the will After bequeathing her household furniture, ornaments, clothing, pictures, plate, etc., in and about her house, the testatrix devised to the executor certain buildings and premises in the city of Brooklyn, in trust to receive the rents, profits, issues and income thereof and after paying therefrom interest of incumbrances and taxes, to apply the residue to the use of her granddaughter Sarah A. Van Zandt, during her life, and on her death gave the property to her children.

The testatrix devised and bequeathed one-third part of the residue _ of her property and estate to the executor in trust to receive the rents, profits, issues and income thereof, and after paying therefrom one-third of the interest of incumbrances and taxes, to apply the residue from time to time to the use of her son Robert daring'his life, and on his death she gave such one-third of the residue of her property and estate to the children of such son ; and she gave and devised the other two-thirds of such residue to the executor upon alike trust to the use of another son and daughter (one-third each) during their lives and on their deaths respectively gave the property to their children. And by a subsequent provision in the will she authorized and empowered the executor at any time before the final division and settlement of the estate, whenever he should think proper either for the purpose of paying off incumbrances or of protecting her real estate or more equitably or conveniently dividing the same, “ or for any other purpose which in his discretion may render it advisable so to do, to sell and convey or to mortgage any part or ' parts, portion or portions, share or shares ” thereof and to execute and deliver sufficient instruments for conveying or mortgaging the same. By the first clause of her will the testatrix says : “I direct that all my just debts (not secured by mortgage) and my funeral and testamentary expenses be paid by my executor out of my property, together with the legacy duties and taxes or other moneys which may be due to the United States in respect to the same, and all other taxes and assessments which may be due thereon at my death.” It is urged on the part of the executor that by this provision of the will the debts of testatrix were charged upon her real estate. The mere direction for payment of the debts out of her property is in effect nothing more than a direction to pay them. In either case the purpose is indicated that they be paid out of the property of the decedent; and to render a provision in a will effectual to furnish a greater security than that given by law for the payment of debts in due course of administration, by charging them upon the real estate of the testator, the purpose must quite clearly appear. The question in that respect as to legacies has frequently arisen, as to debts seldom ; and although the intention to give such effect to the former must be expressly declared or clearly inferred from the language of the will, Lupton v. Lupton, 2 Johns. Ch., 614, the courts may resort to extraneous circumstances bearing upon the intention of the testator in aid of construction. Hoyt v. Hoyt, 85 N. Y., 142. And may not overlook the relation of the beneficiaries of the will to. the testator. Scott v. Stebbins, 91 N. Y., 605; McCorn v. McCorn, 100 id., 511; Briggs v. Carroll, 117 id., 288; 27 N. Y. State Rep., 468.

In fact, to support such charge of legacies, the search for the intention of the testator is quite liberally extended, and properly so, as it is generally his purpose that they be paid, and in default of personalty the legatee is otherwise remedúess. The debts are by law a charge upon the realty for three years from the granting of letters; and thereafter, in case of deficiency of personal estate, the creditors' have their remedy against the heirs and devisees to the extent in value of the real estate descended or devised_ to them. ’ Those facts evidently may qualify or limit the application of some of the inferences, especially from extraneous circumstances, which may properly b.e considered in aid of interpretation in respect to legacies. In re City of Rochester, 110 N. Y., 159; 17 N. Y. State Rep., 146; Clift v. Moses, 116 N. Y., 144; 26 N. Y. State Rep., 405.

Assuming that it was within the contemplation of the testatrix that if deemed by him necessary to do so the executor might exercise the power of .sale for the payment of debts, that would not have the effect to make the debts a lien upon the real estate, but rather that the proceeds of realty produced by sale for that purpose would be assets in his hands applicable to payment of them. Such would be the result of the exercise of a general power of sale. Erwin v. Loper, 43 N. Y., 521; Glacius v. Fogel, 88 id., 434. The power was given to the executor to sell for any purpose which, in his discretion, should render it desirable to do so. This placed it within his power to make sale when, in his judgment, it was required to pay debts, taxes or other expenses within his trusts, and to the extent by him deemed necessary for such purpose, subject, however, to the qualification that some permissible occasion existed for the exercise of his discretion in that respect The doctrine of the McComb case, 117 N. Y., 378; 27 N. Y. State Rep., 259, is not applicable.

There the discretionary power of sale given to the executors was to be exercised only for the benefit of the devisees, and subject to the direction to apply the proceeds to their use ; and it was held that it could not be converted into a power to sell to pay debts. The executor in the present case could not retain any of the property of the decedent in satisfaction of his claims until they were proved before the surrogate. 2 R. S., 88, § 33. And they were subject to proof and contest upon a judicial settlement of his account, as was any other claim against the estate. Code Civ. Pro., § 2739. His debt not having been proved at the time of the sale of real estate, the sale cannot be treated as made to pay it By reference to the state of the executor’s accounts during and until the end of the year 1874, it appears to have been such as to permit him to deem it advisable to make the sale of real estate made by him in that year. During that time his disbursements as executor and trustee, exclusive of the proceeds of such sale, exceeded in amount the funds in his hands and derived from the estate within that period. It may, therefore, be assumed, in view of such deficiency, that the discretion exercised by him in making the sale of November, 1874, for $8,500, was within the power conferred upon him by the will. And the balance of the proceeds of that sale may be treated as assets in his hands as executor. But there seems to have been no occasion to make, for the payment of debts or expenses, the three sales of real estate made in March, 1876, for $1,100;' July, 1879, for $750, and May, 1883, for $500. My view that the proceeds of those sales, amounting to $2,350, should be treated as held by him for the benefit of the residuary devisees, would lead to modification of the surrogate’s decree. But, as it is the opinion of my associates that, after the executor’s claims were proved and allowed, the proceeds of such sales should be treated as assets in his hands and as properly applicable to the payment pro tanto of his claims, the judgment must be affirmed.

Judgment affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Thomas Hogan, Adm’r, Resp’t, v. The Central Park, North & East River R. R. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed March 3, 1891.)

    Negligence—Railroads.
    Plaintiff’s intestate, a lad fifteen years of age, was, with others, stealing a ride upon the rear platform of one of defendant’s cars, and when the driver started to go towards the rear platform for the purpose of compelling them to leave the car, he jumped off, and falling under one of defendant’s cars on the other track was killed. Testimony was given that the coming car could have been seen by the boy, and that the driver did not let go the lines or approach within several feet of the boy nor threaten violence. Held, that it was error for the court to refuse to charge the jury that if the boy’s want of care in jumping off the car was the cause of the injury, he was guilty of contributory negligence, and plaintiff could not recover.
    (Bradley, J., dissents.;
    Appeal from a judgment of the general term of the superior court of the city of New York, which affirmed a judgment entered on a verdict, and also affirmed an order denying defendant’s motion for a new trial made on the minutes.

      Daniel P. Hays, for resp’t; Henry Thompson, for app’lt.

       Reversing 33 N. Y. State Rep., 702.

   Follett, Ch. J.

This action was begun February 10, 1888, to recover, under § 1902 of the Code of Civil Procedure, damages of the defendant for having, as it is alleged, on the 18th day of August, 1887, negligently caused the death of the plaintiff’s son, a lad twelve years old. At the date of the accident the defendant owned and operated a surface railroad in Fifty-ninth and in other streets in the city of New York, using in part cars drawn by one horse and managed solely by a driver. About nine o’clock in the evening of August 18th, the decedent and several boys not intending to pay their fares got on to the rear platform of one of defendant’s cars then going west in East Fifty-ninth street and between First and Second avenues. Before the car reached Second avenue all of the boys at the command of the driver left it, except the decedent, who sat on the south or left side of the rear platform. As the car crossed Second avenue Frank Ribarvarro, a lad fifteen years old, got onto the north or right side of the same platform for the purpose of having a free ride. When the car was about- opposite number 224 East Fifty-ninth street the driver started to go towards the rear platform for the purpose of compelling the boys to leave the car, but before he reached them -choy jumped off, Ribarvarro on the north and the decedent on the south side, the latter falling under one of the defendant's cars running east on the other track and was killed. It is not asserted that the driver touched either boy, but it was testified that he went towards them in a threatening manner and so terrified them that they jumped off in the manner described, and it is alleged that the defendant’s driver negligently caused the accident. Whether he threatened the lads with bodily harm was contested on the trial, and the question of liability was held to turn upon the decision of that question of fact. The jury was instructed: “If you believe from the evidence that this driver advanced in a menacing manner upon these boys at that instant and impressed himself or manifestly was likely to impress upon their minds the fact that they were in danger of assault, no matter how little, from him in his ■effort to drive .them, and chiefly the deceased boy, from the car, why, then, so far that would be an element that would warrant you in coming towards the conclusion that the driver of the car was negligent in his conduct towards the deceased boy.” To this instruction the defendant excepted and requested the court to charge: “ If the jury believe that the plaintiff’s intestate was stealing a ride on defendant’s car and that the driver intended no personal injury to the plaintiff’s intestate, but ordered him off and made a feint as if to go and put him off, because he believed it to be the least harmful mode of removing him, the defendant is not liable.” The court declined to charge on this subject otherwise than it had, and the defendant excepted. Thereupon the defendant requested the court to charge: “If the boy’s want of care in jumping off the car was the cause of the injury, then he was .guilty of contributory negligence and the plaintiff cannot recover.”

The court refused so to charge, and the defendant excepted. 'Testimony had been given tending to show that the car which the ■decedent jumped or fell in front of could have been seen by him for some little time before the accident. It was also testified that the driver did not let go of the lines with which he managed his horse, did not approach within several feet of the boys, nor threatened them with violence. The evidence being sufficient to have authorized the jury to find that the decedent negligently and unnecessarily jumped towards or in front of the moving car, it was error for the court to refuse the request last above quoted, for which a new trial must-be granted.

This case is quite different from Clark v. N. Y, L. E. & W. R. R. Co., 40 Hun, 605; 2 N. Y. State Rep., 249; aff’d, 113 N. Y., 670; 23 N. Y. State Rep., 994, in which case there was no conflict of evidence. The defendant called no witnesses, and it was established beyond dispute that the plaintiff was driven from the steps of the moving cabodse on a steam railroad by an assault of the defendant’s employes.

In the course' of the charge several expressions were let fall well ■calculated to excite prejudice and hostility in the minds of the jury towards the defendant, and sympathy for the plaintiff, which had not a tendency to induce a deliberate and impartial consideration and determination of the issues between the parties, and we think the remarks referred to quite sufficient to have justified the general term in granting a new trial because of them. Hamilton v. Third Ave. Railroad Co., 53 N. Y., 25; Standard Oil Co v. Amazon Ins. Co., 79 id., 506; Baylies on New Trials and Appeals, 125.

The judgment must be reversed, and a new trial granted, with costs to abide' the event.

All concur (Haight and Brown, JJ., in result), except Bradley, J., dissenting.


text:
    Edward Hauselt et al., Ex’rs, Resp’ts., v. Elizabeth Patterson et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 3, 1891.)

    1. Legatees, heirs, etc.—Liability upon mortgage—1 R. S., 749, § 4— Code Civ. Pro., § 1852.
    The design of 1R. S., 749, § 4, was not to create a personal liability, of the heir for the amount of the mortgage debt, but to make, so far as .practicable, the realty primarily chargeable with the payment of a debt of the" decedent secured by mortgage on his land, and when with the mortgaged, premises the heir inherits other lands of the same ancestor he .takes them cum onere the mortgage debt, if there was a personal liability of the decedent to pay at the time of his decease.
    2. Same.
    The liability of the heirs to pay the mortgage out of the property is proportionate with the real estate inherited by them respectively, and the judgment must be entered and execution issued accordingly.
    3. Same.
    The omission to plead the defect of parties defendant is a waiver merely of that defense to the action, without increasing the extent of the liability of the defendants or the amount which the plaintiffs would be entitled to-recover against them respectively.
    (Follett, Ch. J., dissents.)
    Appeal from judgment of the general term of the supreme court, in the first judicial department, entered upon an order made November 18, 1889, which affirmed a judgment in favor of the plaintiffs’ testator entered upon a decision of the court on trial at special term.
    The action was brought to recover the amount of the deficiency of a mortgage debt of John H. McCunn, who died in July, 1872, leaving a will, by which he devised all his real estate to trustees. He left surviving as his heirs at law capable of inheriting real estate his sister of half blood, Jane McCunn, afterwards McDonald, and three nieces, Elizabeth Patterson, Catharine Bonner and Martha Hettrick. In April, 1873, Mrs. Patterson brought an action for partition of the land of which McCunn died seized, founded upon the alleged invalidity of the devise of his real estate, and the action resulted in the determination that such devise was void, but no partition or sale was made pursuant to the judgment, which was entered November 1, 1881, nunc pro tunc as of January 25, 1878. McCunn died seized of several parcels of land, one of which was a certain lot bounded on Twenty-third street in the city of New York, upon which he, in December, 1854, made a mortgage to the City Eire Insurance Company to secure the payment one year thereafter of the sum of $5,000, according to the condition of a bond also made by him to such company. He paid no part of the principal sum, but did pay the interest up to February 1, 1872. In March, 1874, the insurance ■company, in an action brought for that purpose, recovered a judgment of foreclosure and sale of the mortgaged premises, and in October, 1876, the plaintiffs’ testator, becoming the owner by assignment to him of such judgment, afterwards caused the premises to be sold pursuant to it. The proceeds of the sale furnished nothing to apply upon the mortgage debt, and in November, 1881, judgment for deficiency was entered amounting to $7,606.54, and interest from January 1, 1879, against the executors of the will of the decedent. About the time of the commencement by Mrs. Patterson of her action before mentioned, the heirs of McGunn severally conveyed certain portions of their interests in the land to Christopher Finn, amounting together to 44-120 parts of such lands. And before the commencement .of this action Mrs. Hettriclc died intestate, leaving her surviving five children, and Jane McDonald died, leaving a will, by which she devised her real estate to two trustees, with the right of succession to the survivor of them. The defendant Stevenson is such surviving trustee.
    This action was commenced in 1885, against the present defendants and the children of Mrs. Hettriclc, deceased. The first trial resulted in a judgment of dismissal of the complaint, which judgment was by the general term reversed as to the appellants and affirmed as to the other defendants. 51 Hun, 321; 21N. Y. State Rep., 408. The last trial resulted in a judgment in favor of plaintiffs’ testator for the amount of that for deficiency in the foreclosure action.

      Prestan Stevenson, for app’lts; Lewis Sanders, for resp’ts.

       Modifying and affirming, 32 N. Y. State Rep., 1078.

   Bradley, J.

Inasmuch as the descent on which this action is founded was cast upon the heirs of John H. McGunn prior to the repeal by Laws 1880, chap. 245, of art. 2, of tit. 3, chap. 8, part 3 of the Revised Statutes, the inquiry is suggested by counsel whether the provisions of the latter were for the purposes of the remedy still operative. Code, § 3352. That, however, is a matter of no importance in this case, as those provisions of the Revised Statutes, so far as applicable to it, and the substituted provisions of the Code of Civil Procedure are substantially the same. The right to maintain this action is dependent upon the construction and effect of the statute which provides that “ whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator that such mortgage be otherwise paid.” 1 R. S., 749, § 4. Prior to this statute the personalty was the primary fund for payment of mortgage debts as well as others of the ancestor. And at common law the heir was not chargeable with simple contract debts of such decedent, nor was he, unless mentioned in the bond of the ancestor, liable for debts by specialty of the latter, and when so named his liability was to the extent only of the land which descended to him.

This liability of the heir was in this state at first extended so as-to embrace simple contract debts as well as specialties, whether the heir was mentioned in them or not; and for the purpose of charging him by means of action at law, a system of practice was provided by statute. Laws 1786, chap. 27; 1 R. L., 316. That was superseded by the Revised Statutes, which furnished provisions-for suits by and against legatees and against next of kin, heirs and devisees and between heirs and devisees. 2 R. S., 450. Under those provisions the liability of heirs and devisees was secondary and dependent upon the insufficiency of the personal estate of the decedent. The only exception to the primary charge of the debts.' upon the personalty was in the provisions of § 4 of the Revised Statutes before mentioned. And that did not in terms charge the heir with personal liability, nor was it contemplated.by the statute that he should be so liable irrespective of the property which descended to him, but rather that his liability to pay the mortgage out of his own property should be measured by and not exceed that which descended to him from his ancestor. The evident purpose of the revisers was, in the case provided for, to make the land the primary fund for the payment of the mortgage debt. 3 R. S., 2d ed., 600. And to give it practical effect, that section and the other provisions of the statute on the subject, so far as applicable, are in pari materia. In that view the remedy is by action in equity having the nature of a proceeding in rem in such sense that when the land has not been aliened by the heir the execution of the judgment shall be had by levy upon the estate descended to him. 2 R. S., 454, § 47; Code, § 1852; Butts v. Genung, 5 Paige, 259; Schermerhorn v. Barhydt, 9 id., 28; Wood v.Wood, 26 Barb., 356. And to hold, as urged by the defendant’s counsel, that the remedy is confined to the mortgaged premises, would not give effect to the apparent purpose of the statute as represented by its terms. Such limitation is not consistent with its provision that the heir shall satisfy and discharge the mortgage out of his own property. ISTor is it reasonable to suppose that the statute was intended to create a personal liability of the heir for the amount of tlie mortgage debt, but, as we construe the statute, its design was to make, so far as practicable, the realty primarily chargeable with the payment of a debt of the decedent secured by mortgage on his land, and that when, with the mortgaged premises, the heir inherited other lands of the same ancestor he should take them altogether cum onere the mortage debt, assuming that there was a personal liability of the decedent to pay it at the time of his decease. Roosevelt v. Carpenter, 28 Barb., 426.

This, however, was not intended to give such creditor a preference over other creditors of the decedent in the proceeds of the lands not covered by the mortgage when there is a deficiency of the personal estate to pay them. 2 R. S., 453, _§§ 89, 40; Code, § 1856. The preference of the mortgage creditor in the mortgaged premises is only available to him by foreclosure of his mortgage, and not by action under the statute. And in such action the heir may allege in his answer and prove that there are other debts of the decedent unsatisfied belonging to the same or prior class of that on which the action is founded and properly chargeable against the land by reason of deficiency of personalty. Schermerhorn v. Barhydt, 9 Paige, 45. The statute provides that the action be brought against all the heirs jointly. Laws 1837, chap. 460, § 73; Code, § 1846. That the amount which the plaintiff is entitled to recover shall be apportioned among them in proportion to the value of the real estate descended to the heirs respectively, and that the costs recovered shall in like manner be apportioned among them. 2 R. S., 455, §§ 52, 53 ; Code, § 1847. In the view thus taken the only substantial advantage of the mortgage .creditor over other creditors in respect to land inherited by the heirs, other than that covered by his mortgage, is in the fact that his right of action is not dependent upon a deficiency of ■ personal assets of the decedent. Hothing in that respect arises in this case, nor is there any question having relation to any other creditors.

It appears by the former adjudication, to that effect, that McCunn died intestate as to his real estate, -and none of it seems to have been aliened by the heirs except about one undivided third part of it to Mr. Pine. There is no question about its sufficiency in value to pay the amount of the plaintiffs’ claim represented by the judgment for deficiency in the foreclosure action in favor of their testator. The amount was not, nor were the costs recovered in this action apportioned among the defendants, nor did the judgment direct that its amount be levied of the land which descended to the heirs. These are statutory requirements, 2 R. S., 454, § 47; Code, § 1852, and it is with ■ a view to such judgment and its execution that it is made essential for the complaint to contain a description of the land. Id., § 44; Id., § 1851. It is only when the land has been aliened by the heirs that they are personally liable for an amount not exceeding its value. Id., § 49; id, § 1854.

The form of the judgment in this case is not very important, provided the execution upon it be levied upon this undivided real estate which descended to them for the amount only with which the defendants are chargeable. But as one-sixth part of the estate which Mrs. Hettrick, one of the heirs of McCunn, inherited is not represented by any party defendant, that share is not subject to levy of execution upon the judgment. Schermerhorn v. Barhydt, supra. The defendants Patterson and Bonner and the testatrix of Stevenson took, by descent, five-sixths of the real estate, and they are chargeable with only that proportion of the plaintiffs’ claim, and for that amount only the property of the defendants is subject to the levy of such execution. The views here given have relation to the liability of the heirs in the case mentioned and have no reference to other remedies of the mortgage creditor or to any question relating to the right of exechtors or administrators to subrogation in case he collects the deficiency of his mortgage debt from the personalty, in the event there remains realty which descended to the heirs. While the statute does not deny to a mortgage creditor the right to seek payment of his debt from the personal estate of the decedent, the court of equity will not permit him to do so in the first instance to the prejudice of other creditors, but he will be required to resort to the land covered by the mortgage, which, in view of the statute, is the primary fund for that purpose, and it is only for deficiency that he will be permitted in such case to seek payment from the personalty. Johnson v. Corbett, 11 Paige, 265. The deficiency referred to is that remaining unpaid of the debt after the application, in due course, of the proceeds of the premises upon which the mortgage to secure it was a lien. The other real estate which descended to the heirs is subject to the remedy before mentioned by action not dependent upon any lien, but upon the statutory liability of the heirs..

The contention that a recovery was barred by the statute of limitations is not sustained. Although the remedy is given by the statute, the cause of action is founded upon an obligation of the ancestor of the defendants to pay the sum secured by the mortgage represented by his bond. And the statute of limitations is no more available to the heirs than it would have been to McCunn if he had been living. The interest was paid by him upon it in 1872, and this action was commenced within twenty years thereafter. It is unnecessary to consider the question, in the view presented by counsel, on the assumption that the recovery was treated as in an action at law, since the action must be regarded as one equitable in character.

Nor is there any support for the alleged defense of a former adjudication founded upon the fact that an action had been brought by the plaintiffs’ testator against McCunn’s executors, these defendants and others, to vacate the judgment determining the invalidity of the devise in the will, and for direction that the executors sell sufficient of the real estate to' pay his debt, and for such further relief as the court should see fit to grant, and that upon demurrer to it the complaint was dismissed. That action in its nature and purpose was distinct from the present one, and while the complaint there embraced many of the facts essentially in that of the present action, the issues tendered by the former, as well as the relief in view, were quite unlike those represented by the complaint in this action.

A further question is raised as to the right of the plaintiffs to maintain the action against the defendant Stevenson, who is sued as surviving trustee of the will of Jane McDonald. She at the time of her death was a resident of the state of New Jersey. By her will, which was admitted to probate in that state, she appointed Stevenson and one Lozier executors and trustees, and devised to them all of her real estate in the state of New York in trust for certain specified purposes, and gave the survivor of them power to execute the trust. Letters testamentary were issued to them in the state of New Jersey, and the will was recorded in the office of the surrogate of the city and county of New York, but never was formally admitted to probate in this state. The defendant Stevenson is the surviving trustee, and as such has proceeded in the execution of the trust. It is unnecessary to consider the question in the aspect which it would be presented if this were an action at law to charge him with personal liability. His right to take the land, with the power to control and dispose of it in execution of the trust, was given by the will, and in respect to it the trustee is subject to the equitable jurisdiction of the courts of the state within which the land is situated, and such jurisdiction will be exercised by the court in behalf of creditors within the state.

The denial of the motion to dismiss the complaint as to the defendant Stevenson, therefore, was not error.

The liability of the heirs to pay the mortgage out of their property is proportionate with the real estate inherited by them respectively. And although no question arising out of the non-joinder of any representative of the estate which descended to Mrs. Hettrick is raised by the answer or otherwise, the defendants are not liable to pay out of their property any amount greater than that with which they are charged by the statute. The omission to plead the defect of parties defendant was a waiver merely of that defense to the action, without increasing the extent of the liability of the defendants or the amount which the plaintiffs would otherwise be entitled to recover against them respectively. It may be observed that the liability of the heirs to pay out of their property is not joint, nor is the estate which descended to any one of them subject to the proportion of the mortgage debt chargeable to any other of the heirs. The portion which descended to Jane McDonald was one-half and to each of the defendants Patterson and Bonner one-sixth. And inasmuch as the recovery in the court below was for the full amount of the mortgage debt, and the defendants represented only five-sixths of the estate which descended to the heirs, the judgment should be so modified as to charge the defendants with only five-sixths of the amount of such recovery and direct the levy of it, duly apportioned, of the real estate which descended to Jane McDonald and the defendants Patterson and Bonner, and, as so modified, affirmed, without costs in this court to any party.

All concur (Haight, J., in result), except Follett, Oh. J., . dissenting.