1 Bradf. 335 | N.Y. Sur. Ct. | 1850
The testator, by his will, set apart the rents of certain leasehold estate in William and Pearl Streets, in the city of Mew-York, for the purpose of forming a fund, out of which his executors should pay specified legacies and annuities ; and within one year after all the legacies should be paid or compromised, he directed his executors to sell all his remaining property, and divide the avails among his eight children, or their representatives. Until the time arrived for the sale and distribution, it was the duty of the executors to collect the rents of this leasehold property and apply them to the payment of the legacies and annuities. The collection of the rents was, by the consent of some of the parties in interest and of the other executors, intrusted to the charge of Leonard Fisher, one of the executors, who for his services in this respect charged, and was paid by the executors, five per cent, commissions, besides the regular statutory commissions claimed by all the executors jointly on this accounting. Where an agent has been necessarily employed by executors in the collection of rents, his commissions may be allowed as an expense attending the management of the estate, and in the city of Mew-York, five per cent, is under ordinary circumstances a fair and usual charge. But when an agent has not been in fact employed, and the executor has himself performed the service, he cannot be allowed any other commissions than those directed (1 Hopkins' R., 28; 2 Paige, 287; 3 Paige, 412,) by the statute regulating his compensation. It is said the rents were collected by the executors as trustees, but I do not see how that affects the rule, the trust, if it be regarded as one, relating to personalty, and being in them as executors and not as individuals nommatim. (2 Barb. C. R., 438.) As trustees, however, they remain under the application of the same rule in regard to commissions, being limited to the statutory compensation, provided for executors, except in case of the expences attendant on the actual employment of an agent.
Annual rents or annual accounts, are often directed or
The only remaining objection to the account of the executors, arises out of their failure to renew the Corporation leases of ETos. 267 and 269 William Street. These leases commenced in March, 1826, and expired May 1, 1847. They contained a covenant on the part of the lessee, to have the buildings on the premises made fire-proof, within two years from the date, and a covenant on the part of the lessors, to renew or to pay “ the mime of such buildings as should be erected in pursuance of the leaseP The buildings were old and dilapidated, the lessee broke his covenant in not making them fire-proof, and the term expired without a renewal. One of the executors bought the fee or reversion, before the expiration of the term, and sold it some years afterwards at an advanced price.
Terms for years vest in the executor, who becomes personally responsible for the subsequent rent to the extent only of the profits of the land, which he is bound to apply to that purpose; for the proportion of the rents which exceeds the profits, he is chargeable only as executor. (Toller, 143, 279.) If the executor renew, the new lease of course becomes assets ; (3 Bac. Ab., 58; 11 Vesey, 392; 3 Meriv., 190; 3 Russ., 225; 3 Russ., 241; 1 M. & K.,
On the 19th March, 1832, the testator mortgaged part of his real estate to G. L. Morton, for $2000. The property thus mortgaged was devised to George Fisher and his children, and the devisee claims that certain assets, which have come into the hands of the executors, from Bobert D. Hepburn, should have been specifically applied to the ex-tinguishment of this mortgage.
It appears that Hepburn negotiated the loan, that the
In December, 1832, Hepburn gave the testator a bond and warrant of attorney for §3000, which were found among his papers at his decease, and upon which no interest had been paid; and in November, 1835, Hepburn transferred to the executors, a bond and mortgage belonging to him, amounting to §3000, as collateral security for the payment of his bond of $3000 to the testator. The bond and mortgage so assigned, were subsequently paid, and this of course discharged Hepburn’s bond for $3000, as collateral security for which they were assigned.
In the consideration of an equitable claim, I am disposed not to be trammelled by the particular shape in which the transaction has been thrown; for substantial justice could seldom be attained in equity, if the Court regarded forms instead of substance. There is no doubt that as between the testator and Morton, the testator was the borrower, and Morton the lender; but as between the testator and Hepburn, it is just as clear, that Morton was the lender, Hepburn the borrower, and the testator and his land the sureties. The testimony of Morton and Harrison, and the subsequent payment of the interest by Hepburn, make this too plain for discussion. Before the testator took Hepburn’s bond for $3000, he certainly could have compelled Hepburn to pay the Morton mortgage, whenever it fell due.- T also think, that the precise consideration of the bond and warrant of attorney not being indicated, it is a natural as well as legal presumption, that it covered the amount of the Morton loan. Besides, the whole transaction, the terms of the bond, the non-payment of interest on it, the: payment of interest by Hepburn on the-Morton bond, the acquiescence of the executors in this construction of the. affair, and their acts based on such an under
The transaction would have been capable of another version, had the testator treated the bond of $3000 as a liquidation of all his claims against Hepburn, and while himself assuming the payment of the Morton mortgage, principal and interest, looked to Hepburn’s bond of $3000, and treated it as an original and independent security. This was not done; after Hepburn gave his bond, as before, he went on paying the interest to Morton, and there is nothing to show, that the bond of Hepburn was regarded as a substitute for or an extinguishment of the obligation of Hepburn to pay the Morton mortgage. One was not taken in lieu of the other; the original relations of the parties were not changed; but a bond and warrant of attorney taken, the parties continuing after, to act the same as they had done before.
Regarding then Hepburn’s bond as security to the tes
It is no answer that the land must pay its own mortgages. The statute is explicit as to this. But if the devisees pay the Morton mortgage, they have a right to the fund put in the hands of the executors, by Hepburn, to pay it. The devisees do not “ resort” to the executors. They resort to Hepburn; and he having paid the executors, they claim the application of the fund so paid, to the purpose for which it was paid. They ask nothing of the executors, as executors, out of the general assets; but only seek against the executors as trustees of a specific fund, its proper appropriation. (Harsall vs. Smithers, 12 Vesey, 119.) In Parry vs. Ashley, 3 Sim., 97, the proceeds of a policy of insurance effected by the executrix, who was devisee in fee, subject to an annuity to the testator’s widow, were declared to be affected with a trust for the benefit of the parties interested in the real estate, and not to be considered as part of the testator’s personal estate. The principle that executors