Opinion
November Term, 1899.
Mark Cohn, for the appellant.
G.B. Wellington, for the respondents.
If Hester Way, at the time of her death, held the $4,000 in question as executrix of the unadministered estate of Ira A. Way, and not as legatee thereof under his will, then the complaint was properly dismissed, since, in such case, the $4,000 belonged to Ira A. Way's estate, and not to the plaintiff, whose right to the possession of the money would have to abide the event of such administration. ( Matter of Moehring, 154 N.Y. 423.)
But if the administration of Ira A. Way's estate had been perfected by his executrix, Hester Way, who was legatee for her life of the income of the $4,000 in question, and also residuary legatee and devisee under the will of Ira A. Way, then as between herself and the plaintiff she held the legacy in trust for the plaintiff, to be paid to him upon her death; this trust attended the fund, and the fund upon her death passed to her executor, John H. See, charged therewith, and after his death passed to these defendants, his successors in the administration of Hester Way's estate, upon their receipt from See's executrix of the moneys in the latter's hands belonging to Hester Way's estate, of which this legacy was a part. The defendants are her privies in estate, and they received the trust fund, charged with the trust which she assumed in accepting the legacy. ( Rundle v. Allison, 34 N.Y. 180.)
Under the complaint the plaintiff could have adduced evidence tending to establish the latter case. The complaint alleges that Hester Way acted as sole executrix of Ira A. Way's estate for twelve years, and does not specifically allege that she completed the administration, but it alleges that there remained in the hands of the executrix of her executor, six years after her death, the sum of $10,311.28 of the same property bequeathed to her by Ira A. Way, including the legacy of $4,000 here in question, which amount the surrogate decreed that the executrix of her executor should pay to these defendants. The complaint also alleges that there are no claims existing or outstanding against the estate of Ira A. Way.
Hester Way, probably, never had any judicial settlement of her accounts as executrix of the will of her husband, Ira A. Way. Such settlement would be for her protection, but if she did in fact fully and properly administer Ira A. Way's estate, then the business of administration is at an end; a judicial settlement would be the formal and more complete evidence of it, but the fact may exist without such evidence. By her failure to procure a judicial settlement she may have left the administration open to question by parties claiming to be prejudiced, but in the absence of mistake she was concluded by her own acts executed in favor of the legatee holding under her. ( Ledyard v. Bull, 119 N.Y. 62; Herrington v. Lowman, 22 App. Div. 266.)
Under the complaint and evidence proper to be adduced in its support, the trial court might have found that the administration of the estate of Ira A. Way was completed by Hester Way, and that she received and held the $4,000 as legatee and not as executrix. The complaint does not specifically assert the completeness of the administration of the estate of Ira A. Way by Hester Way, or of the receipt by her of the assets of his estate, or the payment of the $10,311.28 by the executrix of the executor of the estate of Hester Way to these defendants, the present administrators of Hester's estate, yet enough is stated in the complaint to suggest these facts. The counsel for the defendants makes no captious objection upon this ground. Upon the trial, in the absence of a demurrer, it would be proper to supply by distinct statement what seems to rest only in suggestion.
A defense is stated in the answer which we do not mean to prejudice, but as the case stands, the judgment should be reversed and a trial granted, costs to abide the event.
All concurred.
Judgment reversed and a new trial granted, costs to abide the event.