Opinion
Argued March 24, 1885
Decided as of March 24, 1885
E.M. Harris for appellants. E. Countryman for respondent.
The plaintiff brought this action against Bolton and Scriber "as administrators, with the will annexed, of Zara Comstock, and Gray, as the administrator of the goods, etc., of Lucinda Comstock, deceased. For cause of action, he alleged the execution and delivery of his bond and mortgage to said Lucinda, whereby, he promised to pay her $1,000; that it is now due and payable, and he is ready to pay the same, but that each party defendant claims the money; that B. and S. are in possession of the bond and mortgage, and claiming that they belong to the estate of Zara Comstock, refuse to surrender or satisfy them, except on payment of the money; that Gray, as administrator of Lucinda, makes a similar claim, and refuses to satisfy the mortgage unless the money is paid to him. The plaintiff asks that these persons interplead, and that it be determined to whom he shall make payment, and be discharged from further liability.
The defendants answered separately. The answer of the defendants Bolton and Scriber is so drawn that we cannot discover from the record how much of the complaint is admitted, or how much denied. For such information the pleader refers to certain folios which are plainly not the folios of the case, but of the complaint as originally prepared, and not reproduced here. The method of referring to parts of the complaint as "at" or "between" certain folios, however convenient and easy in the first instance, serves no useful purpose upon appeal, nor does it conform to the spirit of the Code, which requires pleadings to be made out "in words at length, and not abbreviated." (Code Civil Proc., § 22.)
But they set up affirmatively that by the will of Zara Comstock, Lucinda was appointed executrix, and as such received letters testamentary, but that "she died leaving" his "estate unadministered and in her possession;" that the consideration of the bond and mortgage was derived from assets of the estate, and should have been taken by Lucinda as executrix, and not in her own name. They ask, therefore, that the bond and mortgage be reformed and corrected so as to run to the said Lucinda as executrix, or to themselves as administrators of Zara Comstock, with the will annexed, and that the plaintiff pay the amount thereof to them.
Gray admits the allegations of the complaint, with exceptions not now material, and alleges that the bond and mortgage "belong to, and are of, the assets of the said Lucinda," and that as her administrator he is entitled to their possession and the administration thereof. He asks judgment that Bolton and Scriber restore to him the securities, and that the plaintiff be required to pay the amount to him for administration.
Upon the trial, the court found facts making it proper for the plaintiff to institute this action; that the bond and mortgage were executed by him to Lucinda Comstock individually; that Gray, as her administrator, has the right to the possession of the bond and mortgage for the purpose of receiving the money and canceling the same, and Bolton and Scriber were directed to deliver them to him, and he was directed to discharge the same upon payment by the plaintiff. No additional finding was asked for by either party. Judgment was entered in conformity with the conclusions above stated. Upon appeal to the General Term by Bolton and Scriber, the judgment was affirmed.
Neither at the General nor Special Terms was it thought material to give any construction to the will of Zara Comstock, nor does the judgment rendered by those courts make it necessary for us to determine what interest Lucinda Comstock took under it. We agree, therefore, with the learned counsel for the appellants that any question arising upon its provisions may properly be left for adjustment by the surrogate, if any controversy should bring the matter before him. If it turns out that in equity the consideration of the bond and mortgage were assets of the testator Zara, so as to make the estate of Lucinda Comstock accountable, it would not follow that the bond and mortgage could be enforced by the administrator de bonis non. The dealing of the plaintiff was not with her as executor, but as an individual. She loaned the money and took the security in that character, and upon default in payment the cause of action accrued to her personally, and not by reason of any right of her testator. Whether in so dealing she was guilty of a wrong or devastavit could not be determined in this action. The finding of the trial judge is indeed that the first executor (Lucinda) "received and collected divers amounts of money" from "the goods, chattels and credits of the estate of Zara Comstock," and that from these moneys she loaned the plaintiff the money described in the bond and mortgage. If that be the case, then (leaving, as I do, any right which she may have as devisee and legatee, out of the question), by the very act of collection as executrix she became liable, and with that liability her estate may eventually be chargeable. If the moneys have in fact gone into the securities in question, her personal representative is the one interested in rendering them available, and he only can enforce them.
In Dale v. Roosevelt (8 Cow. 333) it is said that a debt which formed part of the estate of a testator, when merged in a judgment recovered by an executor in his own name, is no longer part of the estate of the testator, but part of that of the executor. This was before the Revised Statutes (Vol. 1, p. 449, §§ 13, 18), by which an administrator de bonis non was authorized to issue execution to enforce a judgment recovered by his predecessor. But the reasoning of the court holds good as to contracts entered into by him. ( Patterson v. Patterson, 59 N.Y. 574; Austin v. Munro, 47 id. 360; Ferrin v. Myrick, 41 id. 315.) The grounds on which the cases cited by the appellants ( Walton v. Walton, 4 Abb. Ct. App. Dec. 512; Luers v. Brunges, 56 How. Pr. 282) stand, are not in conflict with the doctrine to which I have adverted. Both arose on demurrer, and in both it was admitted that the property in question was assets of the testator, remaining unadministered by the first executor. Walton's Case was an action for an account and payment of assets, consisting of moneys received by the executor in payment of debts due the testator at the time of his death, or debts due from the executor to him, or real estate bid in by the executor for the benefit of the estate on the foreclosure of a mortgage running to the testator, and the court held there was ground for an account. Luers' Case was for the foreclosure of a mortgage executed by the defendants to the original executors of Luers' estate as such and "payable to them and their successors," and the court held that by demurring the defendant conceded that the mortgage was taken and held by the executors as an asset and as the property of the estate of the decedent; that "the language of the mortgage impresses it with a special and limited character as to the fund it represents and the direction in which it is to go." The obligation by its very terms declared the rights of the plaintiff to hold and enforce payment. But the court say, "although in fact given to secure a debt due to the estate, had the mortgage been executed to Fuller and Brunges individually and not in their representative character, other questions would have arisen." The case thus supposed is the one before us, and it has, I think, been properly answered by the judgment in this case, but as it is suggested that in some future litigation the determination may be construed as bearing upon the rights of Lucinda Comstock under the will of Zara, it should be so modified as to be without prejudice to the rights of any party in any subsequent proceeding to determine her rights, whether upon an accounting before the surrogate or otherwise, and as so modified, affirmed with costs to be paid by the appellants Bolton and Scriber to the respondent Gray.
All concur, except RAPALLO, ANDREWS and EARL, JJ., not voting.
Judgment accordingly.