31 N.Y.S. 310 | N.Y. Sup. Ct. | 1894
On the 3d day of July, 1863, Hazard Lewis, a resident of Binghamton, N. Y., died, leaving a will which was duly proved in Broome county on the 15th July, 1863, and letters testamentary issued to Frederick Lewis, Clinton F. Paige, and Horace S. Griswold, the executors therein named. The decedent left, him surviving, his widow, Maria Lewis, and three children, Frederick Lewis, Jane E. Drake, wife of Patrick H. Drake, and Caroline L. Paige, wife of Clinton F. Paige. By the will, after certain general bequests and devises were made, all the residue after the payment of debts and expenses was devised and bequeathed to the wife and the three children equally, one-fourth part thereof to each. The testator, at the time of his death, owned a bond and mortgage given by Freeman Randall to secure the payment of $3,500, and the principal and some interest thereon was then unpaid. The mortgage covered about 201 acres of land in the town of Fenton. The bond and mortgage passed
It is found by the referee that Frederick Lewis, in the foreclosure sale, purchased the premises for the benefit of the estate, and paid no part of the purchase price; that after he ceased to be executor, in 1873, he could not convey the premises, or any interest therein, and that the deed to Maria A. Lewis through Van Name, as well as the mortgage to Seymour, was inoperative; that plaintiff, individually and as administratrix of Patrick H. Drake, was the owner of a three-fourths interest in the property, and that the administrators of Caroline F. Paige owned the other one-fourth. The referee also found, at the request of the appellants, that the premises in question have not been in the actual possession of any person within the past 20 years; that no action appears to have been taken by any person interested in the estate of Hazard Lewis to set aside the deed from the sheriff to Frederick Lewis until the beginning of the present action, in March, 1889; that the premises in question were to be treated as personal assets in the hands of Frederick Lewis, so far as the heirs and legatees of Hazard Lewis are concerned. It also appears that prior to May, 1887, there was a proceeding in the surrogate’s court of Broome county entitled “In the Matter of the Intermediate Accounting and Judicial Settlement of the Accounts of Frederick Lewis, Clinton F. Paige, and Patrick H. Drake, as Executors of the Will of Hazard Lewis, Deceased”; and on the 16th May a decree was made, whereby it was adjudged, among other things, that Clinton F. Paige pay Maria Lewis the sum of $1,691.03; that Clinton F. Paige and Frederick Lewis jointly, as such executors, pay to Maria Lewis the sum of $11,128.39; and that the executor Frederick Lewis pay
“State of New York, Surrogate’s Court, Broome County.
“In the Matter of the Accounting and Judicial Settlement of the Accounts of Frederick Lewis, Clinton F. Paige, and Patrick H. Drake, as Executors of the Will of Hazard Lewis, Deceased.
“Stipulated, that Frederick Lewis be, and hereby is, fully discharged from all liability for all money, property, and choses in action and property rights which came to his hands as the property of the estate of Hazard Lewis, and a decree of surrogate’s court of Broome county fully discharging him may be entered at any time without further notice; and his acts as executor of the will of Hazard Lewis, deceased, are closed and settled, and he is fully discharged as such executor from all further liability; and a decree to this effect, making it a final decree so far as the liability of said Frederick Lewis is concerned, may be entered at any time. Sept. 7th, 1887.”
This was signed by the attorneys for Clinton F. Paige, by Clinton F. Paige and Jane L. Paige as administrators of Caroline L. Paige, by the plaintiff herein, Julia R. Duane, and her attorney, and by Maria Lewis. At the same date, and as a part of the same transaction, Maria Lewis, and Maria A. Lewis, who claimed, as assignee of Maria Lewis, to own the interest of Maria Lewis in the estate and in the amounts awarded to her in the decree, executed and delivered a satisfaction of the decree. No money was paid them except the sum of $1,950 furnished by Frederick Lewis by means of an insurance policy. The delivery of this satisfaction was the consideration of the release. It is found by the referee that the parties executing the release did not intend to include therein the premises in question, or the avails thereof, and that there was no agreement or understanding that the title of Frederick Lewis and Maria A. Lewis to the premises in question should not be questioned; and he held that neither Maria A. Lewis nor the holder of the Seymour mortgage could derive any benefit in this action from the release.
1. Upon the trial the plaintiff called as a witness the defendant Clinton F. Paige. Among other things, he testified that he was present at the foreclosure sale in 1867, that the other executors, Griswold and Lewis, were there, and that Lewis bid off the property, and that Griswold was the attorney who brought the suit. The question was then asked him: “Did Mr. Lewis pay the $2,400 to the plaintiff’s attorney in the action?” This had reference to the bid for the 201 acres. The objection was made by the appellants that under section 829 of the Code the witness was not competent to testify as to the transaction, in that he was personally interested in the case, and was testifying in his own interest to a personal transaction with a deceased person, against that person’s representatives in interest. The objection was overruled, and exception taken, and the witness answered, “He did not” Mr. Paige was a party, and interested in
“If active participation in the conversation was necessary to exclude an interested witness, and he should, as an observer, he permitted to testify to transactions in form between the deceased and third persons, although such transactions were in his interest, it would furnish an easy and convenient method, in every case, of evading the statute. The decisions have enforced the spirit of the statute by excluding such evidence, and have treated transactions between the deceased and third persons in the presence of interested parties as if the witness actually participated therein.”
The exception was, we think, well taken. The referee also received in evidence, over the objection and exception of the appellants, statements made by Frederick Lewis in January, 1888. This was after the rights of Maria A. Lewis and of Mr. Seymour had accrued, and his declarations as against them were not competent. They related to what occurred at the foreclosure sale and the conduct of Lewis afterwards, and tended to support the plaintiff’s theory on the subject. Statements of Lewis made after this suit was commenced, and shortly before Ms death, were also received in evidence over proper objection and exception. They related to the extent of the interest he or those claiming from him had in the property. We do not see how these rulings can be sustained. It is, however, claimed that the rulings referred to, if erroneous, were harmless, and did not affect the result. That is not entirely clear.
2. A more important question arises as to the effect to be given to the stipulation or release of September 7,1887; and in considering this question we may assume that Frederick Lewis did not, by the transaction upon the foreclosure, become individually the owner of the property, but that he held the title for the benefit of the estate. In such a case, as said in Lockman v. Reilly, 95 N. Y. 64, 70, “the legal title to the land is in the executor or administrator; but as between him and the legatees, next of kin, and creditors of the deceased party, it is personal estate, and he holds it as the legal representative of the deceased.” On page 71 of the Lockman Case it is said:
*316 “That land bought In by executors on a foreclosure of a mortgage belonging to the estate is to be treated as personal property, which the executors may sell, and for which they are accountable as such, has been frequently decided, and it is immaterial whether the deed is taken in the names of the executors as such, or in their individual names. Clark v. Clark, 8 Paige, 152; Schoonmaker v. Van Wyck, 31 Barb. 457; Valentine v. Belden, 20 Hun, 537; Cook v. Ryan, 29 Him, 249. In all these cases, land thus purchased by an executor or administrator is regarded as a substitute for the mortgage foreclosed, and takes its place for all purposes, as between the executor or administrator and the parties interested in the estaté. It is not treated as land belonging to the testator. His heirs or devisees take no direct interest in it, and cannot dispute the title of a purchaser from the executor, though no power of sale be contained in the will. The heirs of an intestate cannot question the title of a purchaser from, his administrator, who has purchased land under such circumstances. Long v. O’Fallon, 19 How. 116; Williams, Ex’rs, p. 650, note d.”
In Clark v. Clark, supra, it is said that if, upon an accounting, the land so bid in remains unsold, the surrogate may direct a sale thereof, and a distribution of the proceeds as a part of the estate. The expression- in the release, “all money, property, and choses in action and property rights which came to his hands as the property of the estate of Hazard Lewis,” is broad enough to include the property in question. It came to his hands, for he took the title to himself individually, and he did not, when he resigned, transfer it to his coexecutor. It remained still in his hands, to be accounted for as personal assets. That being so; the release applies, unless for some .good reason this property is to be excepted from its operation. In this line it is found that it was not the intention of the parties to include this in the release. If by this it is meant to be found that there was a mutual mistake in making the language so broad, then the evidence does not, I think, warrant that conclusion. The evidence does not show that Maria A. Lewis or her assignor, Maria Lewis, who together furnished practically the consideration of the release, did not intend that the release should include the property in question. On the contrary, there is evidence that Maria A. Lewis relied on the fact that this property would be released. Neither they nor Frederick Lewis agreed that it should not be. The attorneys for the plaintiff and for Mr. Paige testified that nothing was said in the negotiations about this property, and that they did not know that Frederick Lewis had the title in his own name. It, however, appears that Mr. Paige had known of it for several years, and the plaintiff had brought a suit for partition, including this property as a part of the real estate owned in common, so that she or her attorney must have known that the mortgage had been foreclosed, and the title bid in by some one; and the record showed who took the title, and that a mortgage had been afterwards given thereon. It is not claimed that any of the parties, when they signed the release, did not fully know its contents. It is said on the part of the plaintiff that all that Frederick Lewis wanted was a discharge of the decree. Still, plainly, the release is more than that, and it is presumed that all parties knew it when they signed it. Nor does the evidence show that as between Maria Lewis, Maria A. Lewis, and Frederick Lewis of the one side, and the other parties who signed the release upon the other side, there was any agreement except such as is indicated by the
3. Clinton F. Paige is the surviving executor of the estate of Hazard Lewis. He is not a party to the action in his representative capacity, and is not, as such, bound by the result. Rathbone v. Hooney, 58 N. Y. 467; Landon v. Townshend, 112 N. Y. 93, 19 N. E. 424; Hall v. Richardson, 22 Hun, 444. The plaintiff in this case seeks to reach assets which, if they exist at all, primarily belong to the personal representative, and are to be by him administered upon. It would seem that the executor, as such, was a necessary party to a complete determination of the controversy, and that under section 452 of the Code he should be brought in, although the objection of want of proper parties is not taken. Osterhoudt v. Board, 98 N. Y. 239; Peyser v. Wendt, 87 N. Y. 322; Bear v. Telegraph Co., 36 Hun, 403. There has been no final settlement of the estate.
Judgment reversed, and new trial ordered; costs to abide the event.