2 N.Y.S. 851 | N.Y. Sup. Ct. | 1888
The recovery secured by the judgment was for a debt contracted by Henry Pfenning in his life-time. By his will, he devised bis real and personal estate to his wife during her natural life, and, after her decease, in equal shares to his three children. The defendant was one of these children, and the recovery in the action is against her, as devisee, and also as the heir at law of one of the other three children, who died after the testator, and before the commencement of this action. The loaning by the plaintiff to the testator of $500, on or about the 14th of February, 1878, was proved, beyond any fair ground of controversy; but as to the additional sum of $500 the evidence was by no means so clear. It was, however, shown that the testator, at the time when the loans are stated to have been made, was desirous of obtaining the sum of $1,000. He applied to another person, who was a witness in the action, for the loan of about that sum of money. The witness did not himself make the loan, or any part of it; and, on account of his declining it, the testator exhibited a degree of indifference towards him which led him to believe that the omission to make the loan had given him offense. And on this account he had a conversation with the testator, in which the latter stated to him that he had got the money, and could have got more if he had wanted it; and he added that he had got it at Slater’s, in Philadelphia, which was the name of the plaintiff at that time. The conversation with the testator, he said, took place in the winter of 1878 and 1879, and in the course of it his statement was that the testator said he did not want to go over to Philadelphia; but he added: “I got it over there, from the Slaters, and I could have got more if I had wanted it. ” And as the proof was clear and distinct that he had obtained the first $500 from the plaintiff, there was good reason for inferring, from this evidence, and other testimony in the case, that he had secured a second sum of $500, making the amount $1,000, which was the subject of the conversation, from the plaintiff in the action. As to this latter part of the loan, the testimony was sufficient to render the inquiry one of fact, whether the testator had, or had not, obtained, this sum of money from tile plaintiff. And the court having decided the fact against the defendant, upon evidence supporting that conclusion, the decision cannot be set aside because of any infirmity in this part of the proof.
Under this proof the defendant, as devisee of one-third of the testator's estate, was liable for the payment of that proportion of the indebtedness, for it was made to appear in the action that tile plaintiff could not recover or collect her debt by proceedings in the surrogate’s court against the executor of the estate. But, as to the one-half of another third of tile indebtedness, the defendant does not appear to be liable under the provisions of the statute. The ground of this liability, as the statute has defined it, arises out of the fact that the person liable has been made a devisee under the will of the testator. By section 1843 of the Code of Civil Procedure, devisees, after the heirs, are declared to be respectively liable for the debts of the decedent, only to the extent of the estate, interest, and right in the real property effectually devised to them by the decedent. And the only property so devised by the will of the testator to the defendant was one-third of his estate. When there may
In the judgment which was awarded, the costs and disbursements of the action were allowed against this defendant. That allowance has been complained of as erroneous, for the reason that the statute has provided that, in such an action as this, what the plaintiff is entitled to recover for damages and costs must be apportioned among all the defendants, in proportion to the value of the real property descended or devised to each devisee, in the same manner as is declared in section 1839 of the Code. But these sections clearly apply only to an action brought against two or more devisees. They have no application to the case, where the action is against a sole defendant, as heir or devisee. In such an action, no. apportionment of the costs is directed to be made. The extent of the liability of the devisee has been defined and declared. Whether the suit be against a devisee, as the person who alone is liable, or against two or more, the liability for the indebtedness is still the same. But as to the costs, no apportionment has been directed, or can be made, under the provisions of the statute, where, as in this case, the action is against a sole devisee. The judgment, however, should be so far modified as to limit the liability of the defendant to one-third of the indebtedness, with interest upon it; and, as so modified, it should be affirmed, without costs of the appeal to either party.
Yan Brunt, 1*. J„ and Brady, J., concur.