38 Misc. 276 | N.Y. Sur. Ct. | 1902
On the 4th day of October, 1901, Henry A. Conway, as trustee in bankruptcy of Pierce D. Kane, deceased, filed in this court a petition, praying that James H. Kane, as surviving administrator of the estate of Francis Kane, deceased, might be ordered to render his account as such administrator, and pay to such trustee about $7,000 alleged to be in his hands. Thereafter, and on the 24th day of December, 1901, such administrator filed his petition for judicial settlement of his accounts in compliance with an order of this court, together with an account of his proceedings, and citation was issued by which Pierce D. Kane, Jr., Nicholas J. Kane, and Elizabeth D. Mahoney, next of kin of Francis Kane, deceased, and Henry A. Conway, as trustee in bankruptcy of Pierce D. Kane, deceased, were brought into court. An amended account and answer of the administrator was filed, alleging that whatever money had been received by such administrator was proceeds of insurance policies upon real prop
On the 16th day of April, 1899, Francis Kane died, aged fourteen years, intestate, and without having had a temporary, general, or testamentary guardian. It is undisputed that he left no debts. He possessed no personal estate, but did own in common with his three brothers and one sister an undivided one-fifth interet in certain real estate. Upon his death his interest in such real estate descended to his father, Pierce D. Kane, who then became the owner of the same in common with his four children. On the 19th day of September, 1899, the buildings on this real estate were destroyed by fire. There was insurance upon such buildings to the amount of $48,000 written in the names of the five children, including Francis, then deceased, the name of Pierce, the father and owner of an undivided one-fifth of such property, not appearing in any of such policies,' although eight policies, amounting to $14,500 of insurance, had been taken out after the decease of Francis. Pending negotiations for the settlement of the loss the father, Pierce, and his son James, were appointed administrators of the estate of Francis, on December 22, 1899. The insurance was finally adjusted at $39,991.57, and
This peculiar condition then existed, viz.: The name of James as administrator of Francis, whose estate had no interest in this fund appeared in all the transactions, while that of Pierce D. Kane, who was the absolute owner of an undivided one-fifth of this fund did not appear.
On the 17th day of July, 1900, Pierce D. Kane died intestate, unmarried and apparently ’ insolvent. No representative of his estate has been appointed. Therefore withdrawals were made from such bank account in the same names as before, and about the 19th day of December, 1900, a settlement between the four children of Pierce was made, apparently giving.to each a fourth of the fund, and checks were drawn on the account closing the same. James, as surviving administrator of Francis, is now asked to account to the trustee in bankruptcy of Pierce for one-fifth of such fund.
The question has been presented as being one of real estate or personal property, whether the insurance money remained real estate, or had been changed in character by the acts of the parties so that it had become personal estate, and was therefore the subject of an accounting by the administrator of Francis as personalty. Such question is not the real one involved. It is not the question of the character of this fund, but of the ownership of it which is controlling.
When Francis Kane died the real estate which was subsequently destroyed by fire descended immediately and absolutely to his father Pierce. He left no personal estate. His adminis
The building which was burned was real estate, as such the title to it was vested in the father as heir of Francis Kane, and its subsequent destruction by fire could not convert it into personal estate, so as to divert the right of the heir or give a new direction, or character to the money payable by way of indemnity for his loss. Wyman v. Wyman, 26 N. Y. 253-258.
The fact that the insurance policies at the time of the fire were in the name of Francis together with others did not divest Pierce of the title to the property, or the proceeds of the policies. The fact that the names of the insured had not been changed when one undivided interest had descended to Pierce could not affect the title to the property, whatever might be said as to that fact affecting the validity of the insurance. If the personal assets are ample for payment of debts the heir or devisee is entitled to the proceeds of the insurance policy. Matthews v. American Cent. Ins. Co., 9 App. Div. 339.
Where the policy stands in the name of the deceased his administrator may sue on the same as the trustee of an express trust for the heirs. But such money when received is not received, held or accounted for as administrator, but as trustee for the heirs. Lawrence v. Niagara Fire Ins. Co., 2 App. Div. 267; Wyman v. Wyman, supra.
If Pierce D. Kane, in January, 1900, had demanded and received from the administrators of Francis Kane, one-fifth of the
Property that descends to heirs of an intestate, or passes under the will of a testator to devisees does not go to executors, or administratorsj and if they assume possession of it, and collect the rents, the remedy of the persons entitled to it is by a proper action at law. A surrogate has no jurisdiction to determine con
The Surrogate’s Court has no jurisdiction to control the conduct of an administrator in relation to property wrongfully taken possession of by him under color of his letters of administration. In the eye of the law such property must be deemed to be held by them in some other capacity, and the remedy of the injured party to compel a delivery of it, or to restrain from the interference with it must be sought in some other court. Matter of Coll-yer, 4 Dem. 25.
The surrogate has no authority to inquire into or settle the rights of the heirs-at-law to property in the hands of the administrator. Shumway v. Cooper, 16 Barb. 556. It has been repeatedly held that the surrogate has no power to direct or control an administrator as to property to which he did not have title, or of which he had no right to take possession as administrator. Matter of Blow, 32 N. Y. St. Repr. 290.
. Francis Kane never had a dollar of real or personal estate "which came into the hands of his administrator as such. Of personal estate he had none. His real estate was owned by his father for five months before the fire destroyed it. It was necessary "to have an administrator of bis estate appointed not to administer his personal estate, as he had no creditors, but to act as trustee for his heir in receiving payment from the insurance companies, because his name was in the insurance policies as one of the owners. When he received the proceeds of the policies jointly with the other persons named in the policies he was by law acting .as the trustee for Pierce, the sole heir. His subsequent dealings with the fund are entirely consistent with that relation, and are entirely inconsistent with the ordinary duties as administrator, as he neither filed an inventory nor advertised for creditors of Francis, or did any other act appertaining to the office of adminis
If the creditors of Pierce D. Kane, deceased, desire to have James H. Kane account for the moneys they must proceed against him individually, or as trustee in some other court, and not against him as administrator of Francis Kane in this court.
The main question having been disposed of against the contention of the trustee in bankruptcy it is not necessary to decide upon his standing in this proceeding.
Decreed accordingly.