Howell v. Wallace

56 N.Y.S. 280 | N.Y. App. Div. | 1899

Spring, J.:

The plaintiff seeks to charge the defending legatees in accordance with sections 1837 et seq. of the Code of Civil Procedure. It is very obvious Christeon Howell, the plaintiff’s testator, intended to treat the defendant Pease as the exclusive debtor. He knew of the fact that Pease had purchased the interest of his former copartner ■of his executor, that by this purchase Pease assumed the paymént of the firm’s indebtedness, and after this Howell recognized and assented to this agreement by accepting rent from Pease and treating him as his tenant. Of course the agreement between the executor and Pease would not ipso facto absolve the executor from liability to Howell for any indebtedness outstanding against Schenck at the time of his death ; but the facts exonerating the executor do not depend upon that circumstance, but upon other facts arising from it. After a few months the landlord had a casting up of accounts with his tenant; he included in ins statement the firm note and the rents up to that date, and credited whatever payments had been made by Pease, and also whatever store account the latter or the firm had against him, and this entire account, thus commingled, was liquidated by Pease paying a part and giving his note for the major part of the indebtedness. There was no suggestion that this transaction was effected by Pease as surviving partner. The note is by him individually. After this payments were made on the note, and Pease continued paying rent to Howell and occupying his store until his failure. Then there was no offer to return the note to Pease, but, instead, Howell recovered judgment against him. With this judgment still in existence he sought to enforce his demand against the legatees of Schenck. The complaint does not contain an offer to return this note or cancel this judgment. There is no averment and no proof assailing as fraudulent the .conduct of Pease in giving the note, and not the slightest suggestion in the record that the executor, by selling the interest of. Schenck in the firm assets to Pease, was. engaged in any endeavor to defraud Howell. The scheme to make the legatees pay this claim was an afterthought originating in the suspension of business by Pease. Howell was in no situation to rescind his arrangement with Pease, as he possessed as much knowledge as the executor of his circumstances and of everything pertaining to the assumption of the firm’s debts by him. With that knowledge he accepted the fruits of the arrangement by receiving payments • from Pease and receiving money for the use and occupation of the building by him. In no event can this action be maintained. If the plaintiff’s contention is- correct, he must bring a suit in equity, offering to rescind the arrangement with Pease and to cancel the judgment, with suitable averments showing Howell was the victim of a trick and a fraud.

There is still another insuperable objection to plaintiff’s recovery in this action.

The practice provided in section 1837 and succeeding sections of the Code of Civil Procedure permits a creditor of a decedent to pursue the property after distribution in the hands of the legatees, or next of kin, and provides that each person taking is liable to the extent of the property received by him, and section 1839 provides for a ratable apportionment among the recipients of the decedent. This contemplates an action in equity to adjust these various rights. That is well illustrated in this case. The legatees are eight in number, receiving varying sums, and not one $150 in amount. Yet, if plaintiff’s contention is correct, each legatee is liable personally for the full amount of this indebtedness, which is vastly in excess of what any legatee has received. The whole scope of the practice provided by these sections is to limit the liability of the legatee or next of kin to the property derived from the decedent.

The judgment of the trial court is affirmed, with costs.

All concurred.

Judgment affirmed, with costs.