100 N.Y.S. 378 | N.Y. Sur. Ct. | 1906
The executor in his accounting states 'that, among the assets left by the deceased was a note for $12,000,. which was made by one Moritz Hammerschlag, and also two certificates of stock of the .Waverly Refining Company, each for fifty shares of the par value of $100, as collateral to the same; but 'that such note was uncollectable and that the company whose stock was thus pledged as collateral was insolvent and, therefore, he was unable to obtain this money for the estate. The contestant, however, asserts that the executor could, with due diligence, have collected such note and that his failure to collect it is solely attributable to his neglectful and improper conduct; and that, therefore, he should not be given credit for the amount of the note but his acounts should be surcharged with the value of the same.
In the accounting of an executor, where he seeks credit for not collecting any :asset of the deceased by reason of the same being worthless, the burden of establishing this fact must be borne by the executor, as insolvency of a person, or the mere inability to pay his debts and obligations, will not only not be' presumed, but, on the contrary, the law indulges in the presumption that all persons are solvent. Matter of Hosford, 27 App. Div. 427.
The court in this case held (at page 434) : “ The executors,, finding among the estate of the deceased this note for so large a sum, were bound to act with vigilance for its collection. And' on the accounting the onus was upon them to show a fair reason why they did not commence an action for its collection. The presumption is that it could have been collected, as the usual
The question is, therefore, whether the executor has shown affirmatively that he acted with due diligence in endeavoring to collect the note under consideration and that the same was uncollectable notwithstanding that he so acted.
The note in question is a somewhat peculiar document. It, was dated January 6, 1899; but it was not made payable at any bank or trust company, as is usual in such cases, but at a private house, which was evidently the residence of the deceased. Instead of being made payable at the expiration of two, three or four months, or on demand, the ordinary and usual course in regard to negotiable paper, it is made payable one year after date. In addition, there is, upon the back of the note, a statement, evidently made at the time of its signing, as follows:
“ Brooklyn, Jan. 6, ’99. I hereby agree to give six months’ notice after this note is due if payment is required.
“(Signed) Eioolaus Joost.
“ John 0. Robebtson,
“ Witness.”
The shares of stock held by the deceased as collateral contain a proviso that such stock was redeemable at par on the 1st day of January, 1900. Such certificates were not indorsed by the maker of the note. It is to be observed that the day of the redemption of such stock is five days previous to the note’s becoming due in accordance with the provisions on the face of the note. The counsel for the contestant repeatedly suggested upon the trial that the provision on the back of the note, extending the time of payment for six months, was illegal; and, in some of the correspondence between the parties, 'this suggestion was also made, and, in addition, it was contended that certain counsel could establish its illegality. There are no reasons shown why this proviso is illegal, nor is it apparent why it should be re
■If this was correct, then no proceedings could be taken to -collect.the amount of such loan until failure to pay the same on July 6, 1900. If Hammerschlag was insolvent at that time, then the executor is not responsible for his inability to collect .such note. But it is also urged that, as Mr. Joost had died before January 1st, when the note became due, it was the executor’s duty to collect on the first of January (when such collateral became redeemable by such company), the amount of such stock and hold the same as collateral with which to- meet the face of the note. This suggestion brings up for careful consideration •the proposition of law which the executor contends protects him for his failure to collect the amount due.
The testator herein had died before the expiration of the year during which the note was to run. The executor herein •had a conversation with Hammerschlag in relation to- the payment of the note and also requested him to indorse- the collateral
• so that it could be transferred., if necessary. Hammerschlag stated that it was impossible for him to pay this note when it became due and that he would have to insist upon the six
■ months’ notification provided upon the back thereof; and he also refused to indorse the stock certificates in question. Before ■January 1, 1900, the executor had this matter -submitted to an -attorney, a Mr. G-reenhall. Mr. Greenh-all advised that no- pro- ■ ceedings could be taken to collect the note until the expiration of the six months’ notification provided for on the back thereof, • and that, in .the meantime the executor -could not take any pro- • ceedings to compel Hammerschlag to indorse the certificates of
The executor is only required to bring to the discharge of his duties the intelligence which an ordinarily good business man would use in like matters; and where, in the course of the administration of his trust he is confronted with any question which requires the advice of a skilled specialist and in good faith seeks such advice, receives the same and acts thereon, he is not held .accountable for the consequences of following it. And this is particularly true of intricate propositions of law. If, in spite of .the advice of his counsel herein, he had persisted in instituting an expensive litigation for the purpose of endeavoring to realize upon this note, and the final result of the same had been disadvantageous to the estate, he would have been criticized for bringing such a fruitless .action and would have been compelled to bear the expenses thereof himself. O’Conner v. Gifford, 117 N. Y. 275. At page 280 of this case the court said: “ In this case we cannot see that the executor, under all the facts, was guilty of such a lack of diligence as should charge him with the value of these bonds. The result of a suit was entirely too doubtful to require us to hold the executor liable
Matter of Ball, 55 App. Div. 284 (at p. 288), which states that the “ executor had a right to assume that lawyers residing in that State who had been employed and trusted by their testator were sufficiently learned therein to render their advice and counsel a safe guide to follow.”
Therefore, the executor acted upon the advice of counsel who assured him that he had no right on January 1st to have the collateral redeemed and that any litigation looking to that end would be fruitless, and the executor, by following such advice, is absolved from blame. But, conceding that this was a doubtful question, let us examine the question as to whether any such litigation could have been instituted, and if so instituted,, whether any effectual result would have been secured for the estate thereby.
The executor shows that the business of this refining company, of which Hammersohlag was the president, had been declining for two or three years prior to January 1, 1900; that several of the prominent men in the company had resigned from the same and organized opposition companies; that Hammerschlag had been trying to keep the same alive by means of loans which he obtained from confiding friends, such as the loan which he obtained- from the testator herein, and that, at the period in question, January 1, 1900, both Hammersohlag and the said company were practically insolvent, Hammersohlag keeping the company alive solely in the hope that he might realize something from the trust which was in contemplation of being organized. The testimony of the contestant not only does not contradict this condition of affairs, but, on the contrary, seems to substantiate it, as the allegations with reference to the time when the company was doing a good business and paying-
With this doubtful question of the solvency of the company and with the doubt in relation to the legal status of the executor In regard to this stock, it certainly would be an extreme application of the law covering the conduct of trustees to hold that he was responsible for not, in some way, collecting the amount of money represented by the face of this collateral. The only thing, it seems to me, that possibly could be suggested was that a suit might have been instituted in equity by the executor to have the company set apart the value of the face of the collateral so that, in the event of the note not being paid in July, the sum so set apart could be applied to the payment of the same. I am not prepared to say whether such an action as this could be sustained in equity or not, as it does not seem to me that that is the measure of a trustee’s duty. He is not required to use
The sole other question is whether, when the note became due in July, due diligence was used in the endeavor to collect the same. It appears that, immediately upon the expiration of the time within which the note was to be paid, the same was- placed in the hands of counsel for collection. 'Shortly thereafter suit was instituted by the attorney against Hammerschlag to recover the amount of such note. In addition, the said counsel instituted a careful examination into the affairs of Hammerschlag •and, as a result of such examination, it became evident that Hammerschlag had been for a long period of time practically insolvent and that also for the like period of time the corporation had been in a state of insolvency. After endeavoring to see if some possible settlement could not be made by means of ( Hammerschlag’s raising the money from some other source, judgment was finally entered thereon from which the execution was returned unsatisfied. Examinations were held from time to time of said Hammerschlag in supplementary proceedings, but he died before the same were terminated. The will of Hammerschlag was admitted to probate in this city. In the probate proceedings it was recited that the value of his entire estate did not exceed the sum of $100. Hone of these .allegations of the executor, which it is to be observed were made after careful examination, is disputed or contradicted in any way by the con
It appears, however, that a few years later the administratrix^ with the will annexed of Hammerschlag collected the sum of $8,000 insurance, which was immediately distributed; and, although it is not shown that the executor had any knowledge of the collection of this insurance or that there was any such amount due, yet it is sought to charge him for not collecting the same. The facts surrounding the insurance policies upon which' the money was realized are as follows:
Hammerschlag had his life insured in two policies in which his wife was named as a beneficiary, with a proviso that, in the event of her death, the moneys realized therefrom should be paid to her children. In 1898, in a petition to the court in New Jersey, in which he was guardian of two of the children who were under age, he recited that his wife had died and he was unable to longer maintain such policies or to pay the premiums thereon; that an arrangement had been effected by which, if the policies were made payable to him, he would transfer the same to a loan company which would advance the moneys to take care of the premiums so as to keep the said policies alive; that the adult children of his wife were willing to sign such a provision and he asked leave of the court, as the guardian of his infant children, to join in such contract. An order of the Surrogate’s 'Court was made, accordingly, and the policies were made payable to said deceased; and he, thereupon, assigned to the loan company in question his rights under such contract. Upon his death, the amount due on such policies was reckoned' up, and, after paying to such loan company the amount which it had advanced thereon and to which it was entitled under the contract in question, a balance amounting to $8,000 was paid as hereinbefore recited.
Ate I view the transaction in relation to these policies, assum
The attorney for the executor admits that a statement in connection with this matter was submitted to him by Mr. Hammerschlag and that, in his judgment, it was impossible for the executor to have collected such polices. The facts, therefore, do not justify the holding of the executor responsible as for a devastavit on this note.
■It is, no doubt, unfortunate that this estate is unable to collect this large amount of money, which was unquestionably due to the deceased; but it must be appreciated that the fault, if any, is rather due to the act of the testator in making such a loan and accepting thereon the doubtful security offered to him by Hammerschlag. He having done this, we should not exact from the executor herein that he should 'accomplish the impossible or indulge in expenses which would only result in the sending of good money after bad.
The account of the executor is, therefore, approved and he is ■-allowed the credit for not collecting the note in question.
-Decreed, acordingly.