18 Mills Surr. 479 | N.Y. Sur. Ct. | 1917
From the stipulation filed in the cause' it appears that Edwin 0. Brinckerhoff, now deceased, in his lifetime
By the will of the testator, Edwin 0. Brinckerhoff, one-half of his residuary estate was given to a friend, Edwin R. Liver-more, who predeceased the testator, and such one-half of the residuary estate upon the death of the testator passed under the laws of intestacy to the next of kin of Edwin 0. Brincker
It is also stipulated in the submission of facts that during the lifetime of the testator and while he was confined in the asylum several of the next of kin of Edwin 0. Brinckerhoff applied to the Supreme Court of the county of Hew York and obtained therefrom orders directing the committee to pay out of the surplus income of the incompetent person various amounts towards their maintenance and support. Copies of such orders are annexed to the agreed statement of facts submitted-in evidence. The amounts advanced to such orders are as follows: Evelina D. Clark, $7,818.33 ; Louise B. Armstrong, $4,950; Frederick W. Cooper, $4,524.17; Daniel D. Brinckerhoff, $1,100; Julia M. Harrison, $2,325; Angelina Cboper, $2,450. The Supreme Court also allowed, it seems, $210.36 out of the estate of Edwin O. Brinckerhoff for the funeral expenses of said Angelina Cooper. Angelina Cooper predeceased the testator and was not one of the next of kin, and her estate is not now entitled to take any part of the estate of Edwin O. Brinckerhoff.
On the judicial settlement of the account of the Farmers’, Loan and Trust Company as the temporary administrator of the estate and as administrator with the will annexed of the above named testator the question arises, What- is the proper
Before considering the effect of the orders of the Supreme Court, let me consider for a moment the contention that “ hotch-pot ” governs here. “ Hotch-pot ” is a technical term, in the common law. It is true, as I shall hereafter explain, that “ hotch-pot ” is sometimes used in modern decisions in a, secondary sense or as the equivalent of “ collatio bonorum.’* This metaphorical use of technical terms is open to objection. When a contention is made that “ hotch-pot ” governs a succession, it is necessary to consider what precisely is meant. It will not do to he vague in this court about principles governing successions to estates. It is true that “ hotch-pot ” is sometimes defined by common-law writers as the blending and mixing property of different persons “ in order to divide it equally.”* But this is not a definition of “ hotch-pot ” but of the effect of “hotch-pot.” “ Hotch-pot ” itself denotes in law but one single application of a principle.
While the term “ hotch-pot ” is found in recognized use in England as early as 1292, there was hut a single instance at
In the records of the province of Yew York prior to independence I have never been able to find any succession where the principle of “hotch-pot” was applied. I think we may safely conclude that in our local common law “ hotch-pot ” was only applicable before the year 1114 to coparceners where one had taken in frank marriage. That the principle of the customary collation, sometimes called “ hotch-pot,” was adopted sub modo in our first Statute of Distributions I shall presently indicate. If there were no similar and other principle here relavent, the Statute of Distributions in terms would exclude the application of “ hotch-pot ” to this case now before me.
If there is any authority for the application of the rule known as collation, or “ collatio bonorum,” to this proceeding it is to be found either in the system of equity made by the
Before considering the equitable rules of our own system, if any, applicable to this proceeding, let me advert to the doctrine of collatio bonorum, because if there are no equitable rules of our own system applicable, then we may be authorized by the common law annexed to this court to appeal to the civil law. Collatio bonorum in the civil law indicates the obligation which that system of jurisprudence ordinarily imposes on the successors to an inheritance to return to the common inheritance gifts which they received from the “ estate-leaver ” during his lifetime to the extent that they were enriched thereby. (Ulpian, 28, 4; D., 37, 6-8; Code, 6, 20; Novel, 18, c. 6; Novel, 97, c. 6.) Collatio bonorum applied to successions either ex testamento or ab intestato. It will be observed that collatio bonorum applies to all unjust enrichments even if there was not an express understanding with the “ estate-leaver ” that on the final succession there should be collatio bonorum. It applies whether there was or was not a testament or, in other words, it does not apply to intestate successions only. If, however, the “ estate-leaver ” expressly exonerated the taker from collatio, the rule did not apply unless such exoneration violated some principles of legitim.
That courts of equity would, in an administrative suit, quite independently of “ hotch-pot ” or the Statute of Distributions, compel the recipients of advances to bring back the sums advanced into the account on a general distribution there can be no doubt. (Edwards v. Freeman, 2 P. Wms. 435; Phiney v. Phiney [1708], 2 Vern. 638.) In a note to this last case an editor of a century ago states: “ It is apprehended a gift of personalty in the lifetime of the intestate to his heir at law must be brought by the heir in all similar cases into ‘ hotch
Whether such decisions in equity, and they are many, were founded on the civil law relative to eollatio bonorum or reached independently" by our chancellors is of no consequence. The point is that it was a general doctrine of our courts of equity that sums advanced to those entitled to the succession could be adjusted on equitable principles in the distribution of estates. That the surrogate has now succeeded to the equitable powers in accounting' proceedings to adjust the equities of the parties is clear. "The statute and decisions both so affirm.
But if equity in our system could not compel those advanced in this instance to bring their advances into the general account on a distribution, the common law of this state, as adopted by the Constitution, now enables the surrogate to decree a eollatio bonorum. It will be remembered that even in states as far apart as "Massachusetts and Nebraska the law regulating the former English courts of probate has been held applicable. In this old state this is expressly so both by legislation and custom. Consequently, if there is now no principle of our own la.w, common or statute, applicable, the civil law controls in this court, and this is a proper instance to apply it. What is collatio bonorum of the civil law I have indicated above. But it is quite unnecessary here to rely on this point, and it is therefore not elaborated.
The tenor and effect of the orders of the various justices of the Supreme Court awarding sums out of the estate of Edwin 0. Brinckerhoff, an incompetent person, must be considered in this proceeding before any determination can be reached. The surrogate has no jurisdiction which would enable him to vary these orders of the court of general jurisdiction in law and equity known as the Supreme C<mrt. In legal theory any Supreme Court justice may look into the validity of any'surrogate’s order before him judicially (Matter of Pye, 21 App. Div. 266) ; but the converse proposition is by no means true. After the reign of Henry YI1T any justice of the King’s
But while the surrogate cannot in this proceeding pass on the validity of any orders of the Supreme Court the meaning and effect of its orders, awarding sums out of the estate of the incompetent, which is now the subject of this accounting, can and must be considered. Copies of the orders are annexed to the agreed stipulation of fact submitted to the surrogate. Such orders of the Supreme Court, even if jurisdictional, contain no direction on their face that the sums granted to the various heirs or next of kin should be brought into the reckoning on the final distribution oí Mr. Brinckerhoff’s estate. In other words, such orders fail to conform to the practice of the Court of Chancery both of England and of this state.
Whether the justices of the Supreme Court inherited the jurisdiction of the lord high chancellor to make any such orders at all was a question perhaps for their learned consideration. The learned justices may have overlooked, when making such orders, that the courts of equity of this state inherited only the equity jurisdiction of the lord high chancellor, and not the prerogative jurisdiction exercised by the lord chancellor as the representative and delegate of the king. By the statute “ De Praerogitiva Regis ” the care and custody of lunatics and their estates belonged to the crown, as parens patriae, and the lord chancellor, not as the líead of the Court of Chancery, but as an officer of state, 'was bv- delegation the official guardian of lunatics, at least after the sixteenth century. The lord chancellor’s power to make allowances out of lunatics’ estates was not, I think, a judicial power, or, if it was, it certainly rested on very
In the English Chancery, where the power to make allowances was certainly more extensive, the orders made for allowances out of the estates of lunatics always expressly provided for a eollatio bonorum, or, in other words, that the sums advanced under such orders should be brought into the final reckoning on the succession of those advanced to the estate of the lunatics. In Matter of Frost, 39 L. <T. Oh. 808,- where advances were made out of the estate of a lunatic, it was said: “ Of course all sums paid under this order will be brought into account when the shares come to be ascertained.” This seems to have been the invariable doctrine in the English Chancery. The sums so advanced must, in other words, be brought into the account of the succession on the principle of eollatio bonorum. When we come to the chancery practice under our state government after 1775', we find that Chancellor Walworth said
. This brings me to an important question on the proper construction of the orders of their honors in the Supreme Court, i. e., although such orders failed to conform to the practice in equity, is not a direction for collatio bonorum to be implied from the orders themselves ? The learned justices in the Supreme Court, I assume, did not mean to give the property of the lunatic absolutely aAvay, in disregard of all established practice or principle. They would have no right to arrogate to themselves any such power. I assume that they did not.
The surrogate has now been at some pains to show that “ hotch-pot ” is a technical term of limited application in our law. To some extent “ hotch-pot ” is now incorporated in our present Statute of Distributions. Eeither the Statute of Distributions nor “ hotch-pot ” applies to the advances in question in this proceeding. It has been shown that equity has, however, jurisdiction to direct that such advances as those here in question should be brought into the account on the final distribution of the lunatic’s estate or that part of it which passes as if ah intestate. It has also been held that the surrogate is now competent in proceedings of this kind to decree equity. It has also been intimated that “ collatio bonorum ” is a part of the common law of this court in proceedings of this character for distribution, and consequently that if the jurisdiction of courts of equity is in any way defective the principle of collatio bonorum is here applicable. But this point is not esseential to the decision, because there is not much difference in principle be
I am unable to find any adjudication of this state which denies to equity the right to decree a eollatio bonorum in a proper case. Our cases on the Statute of Distributions do hold that the statute has no application to advances by those who die testate or partly testate or to advances made to others than to children. There is nothing new about this. It was so held under both the old Statute of Distributions (22 & 23 Charles II, chap. 10), and the custom of London on which this part of the old statute was founded. (Hedges v. Hedges, Finch Free., chap. 269; Morthev v. Strange, 1 P. Wms. 340; Hume v. Edwards, 3 Atkyns, 450; Eqxxity Cas. Abridged, 262, Customs of London.) The cases in this state do not hold and cannot hold, as I understand it, that equity cannot decree that sums advanced shall be brought in a proper case into the final accoxxnt on distributions other than those enumerated in the Statute of Distributions. To so hold would extend the operation of the Statute of Distributions in a most unwarranted manner and contradict the whole course of equity.
In view of what has been said it is decreed that the sums advanced under the orders of the Supreme Court shall be adjxxdged in this proceeding as advances where those so advanced are entitled to share in the distribution. The sums advanced to Angelina Cooper cannot be so adjusted as she is not entitled to share in the distribution. This is so held both in equity and in the Roman law relating to eollatio bonorum. The advances to be collated mxxst be taken at their face value at the time they were received. Mo interest is chargeable thereon. The doctrines relating to charging interest have no application to collation. This is so both by the common law and the civil law. .
One other point is raised in this accounting. The Mew York Association for Improving the Condition of the Poor, a charitable corporation, objects that it is not exonerated from any
Decreed accordingly.