124 N.Y. 361 | NY | 1891
The testatrix died April 5, 1873. Her will was admitted to probate and letters testamentary issued to George A. Powers April 10, 1873. His petition for judicial settlement of his accounts was presented to the surrogate September 29, 1887, and until then he had filed no account. The referee, by his report, which was confirmed by the surrogate's decree, in stating the account charged the executor with $119,618.69, and allowed to his credit $62,773.43, leaving a balance in his hands of $56,845.26 subject to reduction by his commissions, and the costs and expenses of the accounting. And the referee found that at the time of the death of testatrix she was indebted to the executor for moneys loaned to and expended for her by him to the amount of $37.636.66, the interest on which to the date of the report was $43,341.46; and that on December 11, 1872, the testatrix made to the executor her promissory note for $25,000, which remained unpaid, and that the interest upon it amounted to $27,722.20. And the referee further found that the executor was entitled to retain and apply in part payment of his claims the balance before mentioned remaining in his hands after payment of his commissions and the expenses of the accounting. The main questions arising upon the contestant's exceptions to the referee's report and to the decree of the surrogate are: (1) Whether the executor's claim was established; (2) Whether it was barred by the Statute of Limitations; (3) Whether he was entitled to application upon his claim of the proceeds, with which he was charged, of the sale of certain real estate by him. The testatrix owned considerable real estate in the city of Brooklyn, and in 1868 she, by power of attorney to Powers, vested him with powers quite plenary for its control and management, and to transact business for her and in her name, and his account with her was annually stated and certified by them in writing. The last statement subscribed by them May 1, 1872, was that all accounts having been examined, approved, *365
passed and settled, they released each other from all further examination of them, and there remained a "balance in favor of George A. Powers of thirty-seven thousand six hundred and thirty-three, sixty-six-one-hundredths ($37,633.66) dollars, which is carried to the new account commencing May 1, 1872, and is to draw interest from date." This established the balance due Powers at that date, and there is no evidence of the situation of the accounts between those parties thereafter during the life of the testatrix other than what appeared in his account filed with the surrogate, which charged him with a balance in his hands arising out of the transactions of that period of $9,052.25. This he sought in his account to apply by way of reduction of the balance of May 1, 1872, but upon the objection of the contestant it was not so deducted, but treated as assets in the hands of the executor. It does not appear that he refused to produce the account kept by him after that date, or to render it available to the contestant as evidence. The balance of the account so adopted by those parties in view of the rendition by the executor of what purported to be a statement of the subsequent account justified the conclusion of the referee on the subject. (Lerche v.Brasher,
It is urged that as fourteen years after the death of the testatrix elapsed before the claim of the executor was presented to the surrogate for proof and allowance, it was barred by the Statute of Limitations. Upon that subject the statute in force at the time of such death, provided that the Statute of Limitations should not be available as a defense to a debt or claim of an executor or administrator against the estate represented by him "provided the same shall be presented and claimed at the first accounting, and provided the same was not barred at the time of the death of the testator or intestate." (Laws *366 of 1837, ch. 460, § 37, as amended by L. 1868, ch. 594.) And on the repeal of this statute in 1880, that substituted for it provided that "From the death of the decedent, until the first judicial settlement of an account of his executor or administrator, the running of the Statute of Limitations, against a debt due from the decedent to the accounting party, or any other cause of action, in favor of the latter against the decedent, is suspended. * * * After the first judicial settlement of the account of an executor or administrator, the Statute of Limitations begins again to run against a debt due to him from the decedent or any other cause of action in his favor against the decedent." (Code Civ. Pro. § 2740.) The contention that it was not within the legislative contemplation that the suspension of the Statute of Limitations should be continued beyond six years succeeding one year after the granting of tetters testamentary or of administration, has no support in the plain language of the provision above mentioned. The executor might within that time be required to account; and assuming that after that time he could not be required to do so, he may voluntarily do it thereafter as well as before; it is the first judicial settlement by him which relieves the statute from its suspension in its application to his claim as relates to the time within which he may prove and establish it in the Surrogate's Court. And such was the settlement of the executor in the proceeding founded upon his petition before mentioned. The statute was then no bar to his claim.
The further and more difficult question arises in respect to the disposition of $10,850, the proceeds of real estate sold by the executor. And its consideration calls attention to the provisions of the will. After bequeathing all her household furniture, ornaments, clothing, pictures, plate, etc., in and about her house, the testatrix devised to the executor certain buildings and premises in the city of Brooklyn, in trust to receive the rents, profits, issues and income thereof and after paying therefrom interest of incumbrances and taxes, to apply the residue to the use of her granddaughter Sarah A. Van Zandt, *367
during her life, and on her death gave the property to her children. The testatrix devised and bequeathed one-third part of the residue of her property and estate to the executor in trust to receive the rents, profits, issues and income thereof, and after paying therefrom one-third of the interest of incumbrances and taxes, to apply the residue from time to time to the use of her son Robert, during his life, and on his death she gave such one-third of the residue of her property and estate to the children of such son; and she gave and devised the other two-thirds of such residue to the executor upon a like trust to the use of another son and daughter (one-third each) during their lives, and on their deaths, respectively, gave the property to their children. And by a subsequent provision in the will she authorized and empowered the executor at any time before the final division and settlement of the estate, whenever he should think proper, either for the purpose of paying off incumbrances or of protecting her real estate or more equitably or conveniently dividing the same "or for any other purpose which in his discretion may render it advisable so to do, to sell and convey, or to mortgage any part or parts, portion or portions, share or shares" thereof, and to execute and deliver sufficient instruments for conveying or mortgaging the same. By the first clause of her will the testatrix says: "I direct that all my just debts (not secured by mortgage) and my funeral and testamentary expenses be paid by my executor out of my property, together with the legacy duties and taxes or other moneys which may be due to the United States in respect to the same, and all other taxes and assessments which may be due thereon at my death." It is urged on the part of the executor that by this provision of the will the debts of testatrix were charged upon her real estate. The mere direction for payment of the debts out of her property is in effect nothing more than a direction to pay them. In either case the purpose is indicated that they be paid out of the property of the decedent; and to render a provision in a will effectual to furnish a greater security than that given by law for the payment *368
of debts in due course of administration, by charging them upon the real estate of the testator, the purpose must quite clearly appear. The question in that respect as to legacies has frequenty arisen, as to debts, seldom; and, although the intention to give such effect to the former must be expressly declared or clearly inferred from the language of the will (Lupton v. Lupton, 2 Johns. Ch. 614), the courts may resort to extraneous circumstances bearing upon the intention of the testator in aid of construction (Hoyt v. Hoyt,
Assuming that it was within the contemplation of the testatrix that if deemed by him necessary to do so, the executor might exercise the power of sale for the payment of debts, that would not have the effect to make the debts a lien upon the real estate, but rather that the proceeds of realty produced by sale for that purpose would be assets in his hands applicable to payment of them. Such would be the result of the exercise of a general power of sale. (Erwin v. Loper,
All concur.
Judgment affirmed.