71 N.Y.S. 163 | N.Y. App. Div. | 1901
All of the objections made to the decree herein, except so far as they relate to payments subsequent to the filing of the first account, were made to the decree of 1896, and were considered and passed upon by this court on the first appeal. Unless the testimony produced on the retrial changes the facts as they were then presented, we should adhere to the opinion then expressed.
The executors paid one Atwood, an attorney, for services and disbursements in foreclosing mortgages in cases where the estate was obliged to purchase the property on the sale, the sum of $1,492.81; being his actual disbursements therein and the taxable costs in such several cases. They also paid him the taxable costs and disbursements in another case on appeal, amounting to $64.50; also for disbursements and general services rendered to the executors during a period of about seven years and three months the sum of $3,100; making a total payment to the said Atwood of $4,657.31; and during the same time they paid to other counsel employed in the trial of litigated cases the sum of $1,879.25. Since the filing of the first account the executors have also paid their present attorneys and counsel for services and disbursements allowed by the surrogate’s court the sum of $1,981, which sum includes their services and disbursements in litigated cases, and an allowance of $750 made to them by the surrogate’s court on the first accounting herein. It now appears that $272.01 of the amount paid said Atwood for the foreclosure of mortgages was for services and disbursements, substantially all of which were rendered and incurred prior to the death of the testator, and that $243.50 thereof was for costs and disbursements in one case which were repaid to the executors on a transfer of the claim in suit shortly after such costs and disbursements had been paid by them to said Atwood. On the former appeal the court said:
“We think that the charges in the bill of Atwood for the amount of taxed bills of costs in the several actions to foreclose mortgages were sufficiently proved on the accounting.”
At the time of the death of the testator, he held a note of $11,000, made by Charles Wild and Mary A. Wild, his wife, dated January-19, 1882, payable one year from date, on which payments had been made on account of interest, leaving then unpaid the principal thereof, and between two and three years’ interest on the same. The National Union Bank of Kinderhook at that time held a note made by said Charles Wild for $7,500, indorsed by the testator. For some time previous to the death of the testator the $11,000 note had been in the hands of his attorney, and an effort had been made by him and by the testator to have the same secured or reduced. The only payments obtained thereon were small payments on account of interest, as stated. Charles Wild was a cotton manufacturer, and the evidence received on the last trial in regard to his property and the property of Mary A. Wild is substantially the same as the evidence received on the previous trial herein. The executors, and each of them, called on the said Wild and his wife in regard to said indebtedness soon after the probate of the will of the testator, and as frequently as once in two months thereafter until the failure of the said Wild and of his wife. The result of the efforts so made by the executors was that on April 2, 1888, they obtained a mortgage on the homestead property owned by Mary A. Wild, as security for the $7,500 note so indorsed by the testator, and subsequently the property covered by said mortgage was sold for the amount of such note, and the same was paid, and the estate relieved from its liability thereon. Nothing was collected on the $11,000 note. When the executors first called on said Wild, he stated that he would try and provide for the note indorsed by the testator, by getting some one else on it, and, as soon as he could thereafter, would talk about the $11,000 note. When the mortgage was given as collateral to the note of $7,500, Wild said that if he was allowed to continue business he would pay the $11,000 note, but if he was prosecuted on these old notes he would not lie able to pay any df his old debts, and he further stated that he was obligated to others for current expenses. Wild was very largely indebted. The National Union Bank of Kinderhook, the National Bank of Kinderhook, the testator, and others, held notes against him, some of which were indorsed by his wife, and all of which were accommodation loans. It was necessary for Wild to pay his current bills, to maintain his ability to purchase supplies for his mill and retain his help. Wild was sworn as a witness on this trial, and stated that he could not have continued business if an action had been brought against him on this $11,000 note. He further stated that, in case of suit on any of the old notes, he would have been obliged to have gone down, or to have protected himself. The executors consulted the re
“To excuse the executors from failing to institute legal proceedings to collect this note, they were compelled to show on the accounting that the note could not have been collected had an action been commenced thereon.*169 It was not enough tor them to produce evidence from which we might guess that legal proceedings would have been useless. They should have produced testimony which left no reasonable doubt in that regard.’’
On the former trial herein the testimony in regard to the conversations with Theodore Snyder, the residuary legatee, under whom the appellants now claim, and the evidence in regard to the bringing of suits against the said Wild and the said Wild and his wife, and the failure to recover on the judgments obtained therein, were not before this court. We think the testimony mentioned, and other testimony received on this trial, change entirely the conclusions to be drawn in regard to the failure of the executors to bring suit on the $11,000 note, and that, on the evidence now before us, the findings of the referee and of the surrogate’s court that the executors should not be charged with the amount thereof should be sustained.
At the time of the death of the testator, he held three notes against one John Raeder, amounting in the aggregate to the sum of $8,149.37, on one of which notes, amounting to $3,078, other persons were liable. There were at the same time in the National Union Bank of Kinderhook notes of said John Raeder, indorsed by the testator, amounting to about $10,000. The opinion of this court on the former appeal herein does not refer to the notes of Raeder that were indorsed by the testator, and which were subsequently paid by his executors, but the record and account in regard to the same was the same on the first appeal as it is now. The evidence on the last trial in regard to the Raeder matter does not differ materially from the evidence on the first trial, except that a greater amount of testimony was taken in regard to the same, and greater detail has been entered into relating thereto, and in relation to the extent of the business carried on by said Raeder. At the time of testator’s death he held a mortgage of $6,000 on a farm known as the “Fox Hollow Farm,” as collateral to the indebtedness held by him against the said Raeder, which mortgage was dated December 9, 1879, but was never recorded. The Fox Hollow farm had a mortgage thereon, given by the said Raeder, antedating said mortgage given to the testator, which mortgage amounted to $3,638.20, and was owned by one Wendover. After the testator’s death, the executors had repeated interviews with the said Raeder, and were told by him that if they pressed their claim and sued him thereon, or attempted to get a judgment, they would not get anything, and that the National Union Bank of Kinderhook had a blanket mortgage on all his property. The executors made further inquiry in regard to the said Raeder, and found that his affairs were in bad shape, and his real property covered by mortgages. They had interviews with the legatees, including the said Theodore Snyder, and obtained substantially the same advice from them in regard to the Raeder notes that they had given in regard to the Wild notes. The executors collected from Raeder from time to time, for interest, the sum of $544.69. The National Union Bank of Kinderhook did hold a blanket mortgage covering the real property of the said Raeder, including the said Fox Hollow farm, as collateral to notes of large amount held by said bank against the said Raeder. In December, 1888, Raeder. offered
The decree of the surrogate appealed from is modified on the facts and the law by including therein as a charge against the executors