| New York Court of Chancery | Mar 3, 1840
The objection that the surrogate had no jurisdiction to call the executor to account for the proceeds of the real estate, was not well taken. The act of the 17th of April, 1822, expressly authorized the surrogate in whose office the will was proved, to call the executors to account for the proceeds of the real estate which had been sold by them for the payment of debts or legacies by virtue of a power contained in such will. (Laws of 1822, p. 283.) And the same provision, in substance, was incorporated into the revised statutes. (2 R. S. 110, § 57.) The language of the legislature in both statutes is generalj and no good reason can be suggested why it should apply only to wills made after the passing of the original act, and to subsequent sales. It was perfectly competent for _ the legislature to authorize a proceeding in the surrogate’s court to compel the executor to account for the proceeds of sales theretofore made. And where there is nothing in the language of the act indicating an intention to confine the remedy to subsequent sales, it is not the duty of the court to give such a restricted interpretation to a remedial statute.
As the claim in relation to the land bid in for the executor and executrix, upon the statute foreclosure, was adjusted between the parties upon the hearing before the surrogate, it is too late to urge the objection here that the surrogate had not the power to do justice between the parties ; and that a court of equity alone could give the adequate relief. I cannot, however, see any difficulty in relation to the power of the surrogate as to that matter. This was not a case in which a trustee to sell had himself become the purchaser, through the medium of a third person, for his own benefit, in violation of his duty. On the contrary, it was the duty of the executor and executrix, as faithful trustees, if the premises mortgaged to them were likely to
The will did not constitute the widow the testamentary guardian of the property of the children, but the guardian of their persons merely. And the use of their property, that is the income of it, was evidently intended to be given to her during her widowhood, for their as well as her support, so long as they were not in a situation to maintain themselves. If the appellant, therefore, chose to take his nephew into his own family, instead of permitting him to remain with the widow, and to receive his support out of the income of the estate in common with the other children, there is no good reason why that expense should be charged against his share of the capital of the estate to which he became entitled upon the death of his mother. And if either the mother or the uncle suffered him to remain in idleness after he was old enough to earn his own living, they have no equitable claim against him for having . furnished him with what could not, under such circumstances, be considered as necessaries ; as it would have been a palpable breach of_ duty for the guardian of the respondent to have suffered him to live in idleness, when he was able to earn his own support, unless he was preparing himself for future usefulness by obtaining an education. I cannot, in the absence of all evidence on the subject, presume he did not earn his living during the time he remained with her. The surrogate was therefore right in not making any allowance against the cap
There is no foundation whatever for the claim for the $700, supposed to be due from the testator to the appellant, at the time of his death. The declarations of the widow were not evidence, even if she had admitted the existence of this pretended debt, as it was barred by the statute of limitations before the death of her husband. She said nothing, however, which, if it had been said by the testator himself, would have amounted to an acknowledgment of an existing indebtedness. She told her children, what was undoubtedly true, that several years before, when their father was poor, his brother had been very kind to him in raising money to enable him to purchase and pay for his farm. But there was not even an intimation that the debt remained unpaid at the death of her husband. What, however, is conclusive to my mind, that this claim is wholly fictitious is, that the appellant did not venture to make it in the sworn answer which he put in before the surrogate, when he was first cited to account. To authorize an executor to retain for a debt due to himself from the estate of the testator, he must, himself, in addition to the usual proof, swear to the existence of the indebtedness after allowing all payments and offsets, in the ordinary form; if the existence of the debt is not admitted by the adverse party. (See Williams v. Purdy, 6 Paige’s Rep. 166.)
The only remaining question is, whether the appellant was liable for the money which he has paid over to his co-executrix. Although it does not distinctly appear who received the money which was paid by Brown on his note, in May, 1813,1 think very little doubt can exist that nearly the whole of it was applied to pay the first instalment on the mortgage to Curtis, which was paid on the 3d of May, in the same year, and which payment is credited to the appellant in his account. It will be seen that the money was received from Brown and the payment made to Curtis, a very short time after the death of the testator, and some months before probate of his will had been granted.
I think this case comes clearly within the principle of law recognized by this court in Covenhoven v. Shuler, (2 Paige’s Rep. 122,) that the bequest of the use of a residue for life or any shorter period does not give the legatee the right to the possession of the fund in the meantime ; and that the executor should either retain the fund and pay over the income thereof to the legatee, as it accrues; or he should take ample security for the return of the principal at the termination of the particular estate therein, if he suffers it to go into the hands of the legatee to enable her to enjoy the use or income thereof. There is very little doubt in this case that the appellant paid over the whole of the fund to the widow in good faith, believing that she would so use it for the benefit of her children as to exonerate him from liability. Under those circumstances, it is to be regretted that the respondent should not have adopted the course which his brothers and sisters pursued, instead of bringing disgrace on the memory of l is mother, and attempting to render his uncle liable, by showing that
As it appears by an affidavit which has been sent to me, that the appellant died in June last, the decree of affirmance must be entered nunc pro tunc, as of the first of June, 1839. And the proceedings must remain in this court; with liberty to the respondent to apply to revive the same here, if the debt and costs are not paid without further litigation.