1 Redf. 276 | N.Y. Sur. Ct. | 1849
As to the first objection. — If the statement offered as an account comprehended a full detail of all assets received and paid out, and of the condition of the estate, I do riot know that a Surrogate’s Court, not being a court of record, can lay down strict rules for the government of litigants as to the form of presenting their rights; but a confused and miscellaneous statement must always be looked at with suspicion; particularly where the statute itself points out the effect of the account when passed. The account ought to present clearly, so as to be seen at a glance, those results in reference to which the decree is final, and so as to enable the court readily to make the abstract required by law. A deviation from established practice must be looked upon as being intended to obscure the investigation, and therefore the presumption must be against their accuracy in weighing evidence; but I do not know that I have the power to reject accounts simply because the different elements are intermingled. This objection I must, therefore, overrule.
In reference to the second objection, it is urged, that if the administrator with the will annexed choose to become responsible for the sum inserted as the price of the lands, the heir cannot be prejudiced, as his title to the land, if any, would remain unimpeached. But I apprehend that the effect of a decree, on the basis of admitting this item, and the payment of the amount to the next of kin, would be precisely the same
It beqomes necessary, in the first place, to consider the power of an executor, as such, at common law. That power will be found to be strictly confined to the personal estate; of that he was the “ hierres nominatusthe residuary legatee, after payment of debts and legacies. It was only by help of a supposed claim on his conscience, by words of trust in the will, he was subjected to the jurisdiction of ecclesiastical tribunals as trustee for the next of kin. Every elementary writer, even the most modern, defines and treats him as such representative of personalty alone. Blackstone entitles him “ the person to whom the execution of a last will and testament of personal estate by the testator’s appointment is confided.” (2 Com., 503; see Farrington v. Knightly, 1 P. Wms., 548, 549.) As far back as Shepherd’s Touchstone, the only things described as assets in his hands, are “goods, chattelsj actions, and commodities,” all being personal. This principle is adhered to and taken for granted in all existing statutes, in regard to the duties, powers, and control over executors and administrators. Letters of administration are entitled of the “ goods, chattels, and credits,” of intestate persons (2 Rev. Stat., 73, § 63), which in subsequent parts of the statute are considered as synonymous with assets. Their power to commence suits is confined to the personalty. (2 Rev. Slat., 113, § 3.) The inventory which is to be filed, is of goods, “chattels, and credits” (2 Rev. Stat., 82, § 2), which are termed assets in the enumeration of what are to be assets (Id., § 6), and in one section (§ 7), the distinction between an executor and a devisee is marked. The final account which
“ But,” as an excellent writer on the powers of executors observes (2 Williams on Ex., 1033), “ there are besides various interests frequently forming part of the estate of an executor or administrator, which are not recognized as assets in law, and which, therefore, if administered at all, must be administered in equity. This latter portion of the estate, in the hands of an executor or administrator, is called equitable assets, in contradistinction 'to the former, which is called legal assets. In other words, legal assets are such as are liable to debts in the temporal courts, and legacies in the spiritual, by the course of law. Equitable assets are such as are liable only by the help of a court of equity.” The grand practical distinction to suitors, as to those two kinds of assets, was, that legal assets were subject to preferences among creditors, while the other were distributable equally; this distinction is observed in the only cases where, by .statute, proceeds of lands in the hands of an executor are made amenable to the jurisdiction of Surrogates’ Courts. Generally, the assets in the hands of an executor are to be applied in a certain order of priority to the payment of debts. (2 Rev. Slat., 87, § 27.) If a will orders real estate to be sold to pay debts, where the conversion is “ out-and-out,” the surrogate before whom it is proved, has jurisdiction to decree distribution; but then the same order of preference as to debts is to be observed as if originally personal property. (2 Rev. Stat., 110, § 57.) But in case of a sale of land by order of the sun’ogate (2 Rev. Stat., 106, § 38), or whez'e it is merely authozdzed by a will to be sold by executors {Laws of 1837, 537, § 75), (which is discretionary), the proceeds are to be divided equally among all creditors, without observing any preference. While this distinction seems to have been kept in view by the framers of those statutes, they seem also to have considered distinct and separate provisions necessazy
The statutory provisions referred to, make the distinction between an out-and-out conversion and a discretionary authority, by a marked difference in the language. In addition to this, the three sections relating to the sale of real estate under an authority contained in a will (2 Rev. Slat., 105, §§ 31, 32, 33), use only the word “ executorsyet in all other parts of the statute, where a duty common to both is spoken of, “ executors and administrators” are always coupled together; taking for granted, therefore, that such power can only be exercised by an executor.
From these considerations, it follows, that- by this body of statutory law, the character of the executor and his peculiar trust are preserved. The court, by whom he is appointed, and who has jurisdiction over his conduct, is confined in its exercise to personal property. Express additional jurisdiction is conferred on it only in specific cases, in which the distinction between the trust property which passes into his hands as trustee or as executor is still preserved. In giving such additional jurisdiction, its exercise is confined in terms to the original trustee, and not extended to any substitute appointed by the Surrogate’s Court. And lastly, th'e commission of such substitute in the shape of letters of administration, is simply to administer “ goods, chattels, and credits.” (2 Rev. Slat., 78, § 23.) Provisions, therefore, for conferring additional powers upon the administrator, must necessarily be anomalous, and not intended to be subject to the general provisions of the statute, and can derive no support from-the .general scope and object of the statute; or in other words, ought to be strictly construed.
This view will be found to be greatly strengthened by a variety of other provisions in the statute, which would render the execution of a power of sale of lands, or a trust to sell
But if such a power be anywhere given, it would clash
I think the clause of the statute" in question (2 Rev. Stat., 72, § 22) may, after this examination of other .statutes upon similar subject-matters, be handled without any danger of giving it an extended signification heyond its ordinary interpretation, unless too plain to admit of doubt: in such case, we are bound to think the lawmakers had some object in view which has escaped our observation. The language, which is peculiar, is as follows: “ The administrators with such will -annexed shall have the rights and powers, and be subject to the same duties, as if they had been named executors in such will;” not, “ the persons named as executors in the will,” nor even, “ as if they had been executors;” birt
I therefore do not see that the literal interpretation of the
But it may be wondered how so apparently sweeping a provision crept into the statute. If we trace it to its source, it will be found to have originated in a statute whose object was not to prescribe the powers of those who were to distribute, but the rights of the distributees, and formed an isolated provision in the English statute of distribution (2 Ed. Stat., 395, § 9), from which it passed into the revision of the laws of this State, in 1787 (1 Greenl. L., 368, § 16), directing the will of a testator to be observed, even where there was an administrator. In laws passed in 1801 (1 Rev. L., 541, § 20), whose title did not have the slightest reference to real estate, and only prescribed the duties of executors, was added
With this mass of concurring testimony, I am constrained to decide according to the opinion of the Supreme Court in Conklin v. Egerton (21 Wend., 432), that the administrator with the will annexed cannot exercise a power of sale contained in a will, though some judges of the court above, on an appeal taken in that case (25 Id., 225), seem to have come to a summary conclusion to the contrary. Their views are mere obiter dicta, as the decision was put on other grounds: for neither is the language as broad as they seem to suppose, as Rtliink I have shown; nor is the inconvenience of appointing a testamentary trustee by the Court of Chancery greater than that of appointing any other trustee; and the section to which I have already referred (2 Rev. Stat., 71, § 15), on which so much stress is laid, only prohibits powers “ as executor,” and not generally; and it may be more rationally doubted whether the' appointment of an administrator, the mere representative of personal estate, at all affects trusts or powers created by devise, than whether he acquires control over them.
For these reasons, I must hold the sale of lands by the administrator with the will annexed void, and the proceeds thereof, as well as the rent of the land, must be excluded from the accounts, as well as all moneys paid out on account of the real estate.
In regard to the third objection to this account, as to the omission to charge the administrator with money or property in- the hands of the executor, he is not chargeable with any
The account must, therefore, be referred to an auditor with the usual powers, who is to amend it by excluding therefrom all charges for the proceeds of real estate sold, or any payments or expenditures on account of real estate, and is only to charge against the administrator moneys lost by his negligence, or the value of any articles left in the hands of a legatee who had a life-estate therein.