Bogert v. Furman

| New York Court of Chancery | Dec 5, 1843

The Chancellor.

By the foreclosure of the mortgage the equitable interests of the children and grandchildren of Elizabeth Furman the elder, in the equity of redemption of the mortgaged premises,were converted into personal estate. And the fund must be distributed, as such, among the legatees and next of kin of the several parties who from time to time became entitled to the same. The personal representatives of the several deceased parties are the proper persons to receive their shares and distribute them among the next of kin after the payment of their debts, if they owed any. But as all the deceased children, and grandchildren, whose personal representatives are not before the court, died intestate more than twenty years since, and probably under age and out of debt, it would be a useless expense to require those who have succeeded to their rights, under the statute of distributions, to take out letters of administration upon their respective estates at this remote period of time.

The master has ascertained the facts substantially as directed by the order. But he has erred in attempting to apportion the fund among the several persons who are interested .therein. For he appears to have proceeded in that respect upon the supposition that the fund in question was to be considered and treated as real estate, and to-pass according to the law of descents, and that Elizabeth Furman the elder was not entitled to any part of the personal property of her children, and grandchildren, who died intestate and without issue in her lifetime. As the order of reference, however, did not direct him to apportion the fund, but merely to ascertain who were interested therein, and to report the facts," the court can make the proper order for distribution. For it is a mere matter of computation, upon the facts stated in the report. And where there is an error apparent upon the face of the report, in a matter of mere computation, it may be corrected by the court, although no exceptions have been filed. (Hawkins v. Day, 1 Ves. sen. 189. White’s ex’rs v. Johnson, 2 Munf. Rep. 285. 1 Barb. Ch. Pr. 557.)

1 have before said that the fund in question was personal estate, from the time of the sale under the decree in 1805. And upon the death of Elizabeth Furman the younger, in 1808, without issue, her mother became entitled to a distributive share in her portion of the fund, in common with her six surviving brothers and sister, and the two children of G. Furman who took by representation the share which their father would have been entitled to if he had then been living. (1 R. L. of 813, p. 314, § 16.) So upon the death of each of the widow’s three sons, who died in 1812 and 1813, she not only became entitled to a distributive share of their original shares of the fund, but also of the shares which belonged to them respectively as next of kin of their sister and of their brothers who had previously died without issue. The rights of the widow and of her three surviving children and of her two grandchildren in the fund, in August, 1815, were therefore as follows : Jacob was entitled to his original eighth, and to one-fifth of four-eighths which came to him as one of the next of kin of his brothers and sister who had died subsequent to 1805 without issue. His whole interest in the fund was therefore nine-fortieths, instead of one-fifth. Richard and Maria were each entitled to an interest in the fund to the same extent at that time; and the two grandchildren together were entitled to nine-fortieths of the fund. And Elizabeth Furman the elder was entitled to one-fifth of four-eighths of the fund, as one of the next of kin of her four deceased children ; thus making up the remaining four-fortieths of the whole fund. Jacob only conveyed one-fifth, or eight-fortieths, of the fund to his uncle $• and the remaining one-fortieth still belongs to him if he is living. But tvliether he is living or dead is not stated in the master’s report.

Upon the death of the first of the two children of George Furman, in the lifetime of the grandmother and after the death of their mother, the whole of the interest of the deceased child in the fund went to his surviving brother, to the exclusion of his uncles and aunt and of his grandmother. (Evelyn v. Evelyn, Amb. Rep. 191.) But upon the death of the surviving child of George, intestate and without issue, leaving no maternal grand parents, his whole interest in the fund went to his paternal grandmother, Elizabeth Furman the elder, to the exclusion of his uncles and aunt. This is the settled law under the statute of distributions. For in the case of Blackborough v. Davis, (1 Peer Wms. R. 41,) which came before the court of king’s bench in 1701, upon an application for a mandamus to the spiritual court to grant administration to the aunt of the intestate, it was decided that the grandmother was nearer of kin to the decedent than the aunt; and that she was entitled to administration and to the personal estate to the exclusion of such aunt. And this decision was followed by the court of chancery in the cases of Woodroff v. Wickworth, (Prec. in Ch. 527,) and of Mentney v. Petty, (Idem, 593.) By the death of her two grandchildren, therefore, Elizabeth Furman the elder became the owner of nine-fortieths of the estate, in addition to the four-fortieths to which she was entitled, in August, 1815 ; the whole of thirteen-fortieths which was bequeathed to Maria Francis by the will of her mother.

G. W. Francis, therefore, as the administrator of his mother, and the administrator of the will annexed of his grandmother, is entitled to the interest of the whole fund up to the time of the death of Elizabeth Furman the elder, on the 28th of October, 1842, and to twenty-two fortieths oí the capital of the fund, and of the interest thereon since that time. McCalla, as the assignee of the interest of Richard Furman the younger, is entitled to nine-fortieths ; E. R. Furman, as administratrix of Richard Furman the elder, who was the assignee of Jacob Furman of one-fifth of the fund, is entitled to eight-fortieths. And the' remaining one-fortieth belongs to Jacob if living, or to his personal representatives if he is dead, to be distributed among his legatees or next of kin. The costs of the petition, and of McCalla, and of E, R. Furman, and of G. W. Furman and his mother, upon the reference, and on this application, except so much of the costs as have been produced by the litigation between McCalla and other claimants of the share of Richard Furman the younger, must be taxed and paid out of the fund. And the residue of the fund must be paid to the several parties interested therein in the proportions above mentioned. The interest which had accrued previous to the death of Elizabeth Furman the elder must also be paid to G. W. Furman, as her administrator with the will annexed.

The moneys due upon the bond and mortgage must be called in by the assistant register and distributed, as well as the moneys in the trust company, unless some of the parties interested choose to take an assignment of the bond and mortgage, and to pay the amount due thereon beyond their shares. And if the share of Jacob Furman in the fund is not called for by him, or his personal representatives, within six months after the making of the order upon this decision, the assistant register is to be directed, in the order, to deposit it in the trust company, to accumulate until the further order of this court.