90 N.Y.S. 190 | N.Y. App. Div. | 1904
By the judgment from which this appeal is taken the plaintiff has recovered specific sums of money from each of three of the defendants individually, and from the fourth as administratrix — such sums being proportionate parts of an amount to which he claimed to be entitled under peculiar facts which are set forth in the complaint and which are not seriously contested by the defendants. They are as follows:
Lewis R. Blair died in December, 1893, leaving a last will and testament disposing of real and personal property in which the plaintiff and the defendant Lewis R. Blair were nominated executors. It was presented for probate to the Surrogate’s Court of the county of Hew -York. Objections to probate were filed by the present defendants, 'William E. Blair, Charles H. Blair and Wesley S. Blair. The plaintiff had thus cast upon him the duty of defending the will, and in the performance of that duty he employed Mr. James O’Heill as his attorney to represent him in the probate contest. After protracted proceedings the will was admitted to probate, and thereupon letters testamentary were issued to the plaintiff, who duly qualified as executor. Thereafter the contestants appealed to the General Term of the Supreme Court from the decree of the surrogate admitting the will to probate, and that decree was reversed (Matter of Blair, 84 Hun, 581), whereupon the executor appealed to the Court of Appeals, where the judgment of the General Term was affirmed in March, 1897 (152 N. Y. 645), and in April, 1891, an order was entered in the Surrogate’s Court revoking the probate of the will. Prior to the determination of the General Term the plaintiff had paid to his attorney, Mr. O’Heill, the sum of $2,150 from
An appeal was taken from the decree of the surrogate referred to in that agreement, and in the determination of that appeal it was-held by this court that counsel fees owing by the executor and paid by him after the probate of the will was set aside and he was appointed administrator, must be credited to him in his account as-executor, and not in his account as administrator, and that his account as executor might be opened for that purpose. The decree
We do not perceive how an action for contribution can be maintained on this agreement. Its terms are precise, its stipulations are perfectly clear, and the parties who made the deposit of the - bonds ■are not obliged to respond to the plaintiff’s claim otherwise than in accordance with the terms of their agreement, which contemplated adjudications in the proceedings that were then pending, and nothing else. Considered as an action founded alone upon the agreement that agreement can be enforced only according to its terms. The conditions under which the plaintiff might claim a resort to the •deposit of bonds have not arisen, and we cannot construe the instrument so as to establish new relations between the parties never contemplated by them, or determine that from it arises an obligation "to pay money under conditions never anticipated by any of the parties.
In this aspect of the case we cannot consider a general equity as being the key to the interpretation of a specific contract, and import into that contract an obligation which the defendants never assumed. They did not agree to pay a proportionate share of the $2,700 in any event, but only to provide a fund from which that sum might be paid in the event of its being established as a charge upon the estate in the proceedings then pending. The plaintiff
This claim, therefore, never having been a charge against the estate, and there being nothing in the agreement between the parties set forth in the complaint which requires them to contribute to the payment of a claim not established against the estate, there is no alternative but to reverse the judgment.
Van Brunt, P. J., Hatch and Laughlin, JJ., concurred; O’Brien, J., dissented.
Judgment reversed and new trial ordered, with costs to appellants to abide event.