Hart v. Bulkley

2 Edw. Ch. 70 | New York Court of Chancery | 1833

The Vice-Chancellor:

The question in this case is, whether the complainant, as surviving assignee of Moses Q. Wood, is entitled to be paid the balance of nine hundred and eighty-four dollars and ninety-one cents, and which remained in the hands of his co-assignee, out of the assets held by the defendant as administrator of such co-assignee who died insolvent, in preference to and in exclusion of the general creditors of the intestate 1

If he is to be regarded in the light of a creditor, he can have no such preference: having acquired no lien upon the funds or assets of the estate. In such capacity he could only come in with other creditors for a rateable proportion in the course of administration. However, the complainant contends for a trust fund belonging to him as surviving assignee; and that, as such, it ought to be delivered over to him.

In order to give the complainant the benefit of this position, the money should appear to have been kept separate from the other fund of the intestate. As'for instance, that it had been kept in a bag by itself or been deposited in a bank to his credit as assignee or that it had, in some way, preserved its identity and individuality as money belonging to the estate of the assignor, Moses Q. Wood. No such fact exists in the present case. The intestate mingled the moneys, received by him as one of the assignees, with his own funds. It has, consequently, lost its identity and cannot be distinguished from the intestate’s other property; and, of course, cannot be followed and taken hold of for the purpose of being delivered Over. The law on this subject is well settled Paley on Agency, 83, 84.; Whitcomb v. Jacob, 1. Salk. 160.

I am decidedly of opinion the complainant has not shown a right to the money or assets in the hands of the defendant as a part of the trust estate under the assignment; and that ilie complainant has no greater i-ights to the balance admitted Shan a simple contract creditor of the intestate. He is only entitled to come in pari passu with other creditors. This bill is not filed for an account of the assets and payment of the claim as a debt against the estate of the intestate. It is mot adapted to such a case. Indeed, there was no necessity for filing a bill in this court for the complainant’s proportion as a creditor. It appears that repeated offers were made to pay him a just dividend. I shall not retain the bill even for this purpose. And if I had a desire to do so, the necessary parties (other creditors) are not . before the court and She complainant has not shaped his bill so as to let them in. It must be dismissed; but as he has attempted to sue for the benefit of others, and, as I must presume, in good faith, he is ■excused from paying the costs of the defendant.