177 A.D. 63 | N.Y. App. Div. | 1917
Elizabeth Cosgrove, the defendant’s testatrix, died April 11, 1912, leaving a last will and testament executed April 1, 1912,
The decedent had for a number of years been a domestic servant. In May, 1911, she gave up service and entered a hospital in Troy, N. Y., for a surgical operation. On May seventeenth while in the hospital she executed a will which was destroyed after the probate of the one above mentioned. In the following month she left the hospital and took up her residence in Troy with the plaintiff, who was her sister, and continued to live with her until the following December, when she again went to the hospital, where she remained until her death.
On September 20, 1911, while the two sisters were living together, they sent for a lawyer and each executed a will giving to the other the property each possessed. The decedent had about $1,000 in a bank and trust company, and the plaintiff not as much. The decedent left one other sister, the mother of the defendant, one brother, and children of a deceased brother, her only next of kin. By the will of April 1, 1912, she gave to this defendant all her estate except §625 in legacies, including §200 given to the plaintiff.
It is the contention of the plaintiff that she and the decedent entered into a contract at about the time when the deceased left the hospital in June, 1911, that they would live together and that the plaintiff would provide the decedent with a home and care for her as long as they both lived, and that in consideration thereof it was mutually agreed between them that each would execute a will giving all her property to the other. Such an arrangement has been found by the jury, and the finding of the jury has been adopted by the court.
The evidence sufficiently sustains the conclusion reached by the trial justice and the jury that an arrangement as above indicated was made by the two sisters. We are not unmindful of the strict rule which generally prevails in regard to claims against estates of decedents, but in this case we think the evidence is sufficient. The two sisters were in fact living together
It is not essential that the legatees in the last will should be made parties to this action for the purpose of having the claim of the plaintiff established against the estate. Whatever the form or nature of this action may be, it is quite analogous to that of any ordinary claim against an estate. In substance the plaintiff claims under a contract whereby she was to render certain services and was to receive in return the entire estate of the decedent. The enforcement of a contract of that kind against an estate differs in no essential particular from the enforcement of any ordinary claim for services, and in such an action the legatees and parties interested under the will are represented by the executor and are bound by the judgment without being made parties to the action. (See Riggs v. Cragg, 89 N. y. 479, 488.) Such is the common practice.
The judgment, however, in some particulars is erroneous. The action is not brought against the defendant individually but solely in his representative capacity, but the judgment is directed against him individually for the amount of the éstate, less certain expenses and debts paid by him, and provides that an execution may issue against him therefor. A judgment must be secundum allegata et probata. There is nothing in the complaint to charge the defendant individually, and the action is not in form against him individually, and it would seem to follow that a judgment cannot, therefore, be recovered against him individually. Neither should costs have been imposed on him. The plaintiff regards this as an equity action, and as such costs are discretionary. In an action for a sum of money only costs could not be awarded against the executor except for unreasonable resistance or neglect. (Code Civ. Proc. §§ 1835, 1836.) A harsher rule should not be applied in the present case. There is no suggestion in the case of fraud or unfairness on the part of the defendant. His duty to the estate requires him to give it protection, and the circumstance that he is the residuary legatee and is largely interested personally should not militate against him in the absence of a suggestion of fraud or overreaching conduct.
We think also that the estate should be administered in the
The judgment should be modified by striking out the provisions therein contained for payment by the defendant as executor or individually and for costs, and for a recovery against him herein, and by providing that the estate be paid to the plaintiff in the due course of administration in Surrogate’s Court after deducting therefrom debts and proper funeral and testamentary expenses allowed by said court, and as so modified affirmed, without costs. The order modifying the judgment becoming by this decision academic the appeal therefrom is dismissed, without costs. Order restraining defendant from disposing of the estate modified so as to allow payments in accordance with the directions of the courts, and as so modified affirmed, without costs.
Judgment modified by striking out the provisions therein contained for payment by the defendant as executor or individually and for costs, and for a recovery against him herein, and by providing that the estate be paid to the plaintiff in the due course of administration in Surrogate’s Court after deducting therefrom debts and proper funeral and testamentary expenses allowed by said court, and as so modified unanimously affirmed, without costs. The order modifying the judgment