Johnson v. Weir, 76 N.Y.S. 76

Johnson v. Weir

76 N.Y.S. 76 | N.Y. App. Div. | 1902

Chase, J.:

The testatrix did not by her will make her debts a charge or lien on her real estate. The surrogate’s decree did not in terms nor as a matter of law make the claims in said decree mentioned a lien on such real estate.

Appellant claims, however, that the Special Term, in determining the rights of the parties to the action, should have adjudged and decreed that the items of $1,408.02 and $300, respectively mentioned in said decree, are equitable liens on the whole of said real estate and that the court should have directed that the same be paid from the proceeds of sale. The claim of $300 is in favor of one Lucy Weir. Whether she is the wife of the appellant and the same person named in the summons as Lucy M. Weir does not appeal’. The Statute of Limitations had apparently run against her claim even prior to the entry of the surrogate’s decree. Such claimant is either not a-party to this action or, if a party, she has made default in appearing and pleading. We fail to see how such account is now an equitable lien on the real estate or how appellant is interested to have a review of the judgment in this court so far as that claim is concerned. The only evidence of appellant’s claim of $1,408.02 consists of the surrogate’s decree. The decree shows that appellant then had in his hands a balance of $124 of the personal estate of testatrix, and it does, not appear what he has done with such balance. The decree does not disclose that appellant has ever accounted for any rents and income of the real estate since the death of the testatrix in 1891. The recitals in the decree show that appellant rendered an account as .executor,, and that a citation was thereupon issued, and the decree then contains, other formal recitals and the *330summary statement of receipts and disbursements of the personal estate, after which is the part quoted, by which it will be seen that appellant’s account as executor was settled, allowed and adjusted as stated. Thereupon follows a statement showing that appellant presented an account as trustee under the will of testatrix. The only trust mentioned in the will as distinguished from the ordinary duties of an executor is for the collection of the rent and income of the real estate and payment of the same to and for the support, education and maintenance of the plaintiff, and in case of a sale of the real estate for the investment of the proceeds and payment of the income in the same manner as said rents aré directed to be paid. The decree does not show any receipts by appellant as such trustee, but recites an account for board, lodging and other services and disbursements rendered and made by Alexander Weir for Martha Ann Johnson. The claim is in behalf of Alexander Weir individually, and the court proceeds to find affirmatively that “ the sum of $1,408.02 is a valid claim against the estate of Mary Jane Walsh aforesaid and that the same be and hereby .is allowed and decreed to be paid to said Weir in the amount hereinbefore stated.” This is not a case where an executor having the funds of an estate in his hands undistributed, all or some part of which belongs to an infant, advances money for the necessary support of such infant and asks to be allowed for such past maintenance, but it is a claim by an executor in his individual capacity to recover for board and other alleged necessaries against an infant when he did not at any time have any money in his hands to which such infant was entitled or from which the said infant, by the proceeding mentioned in section 2846 of the Code of Civil Procedure, could have obtained an order for such payment. An ordinary citation for an accounting by an executor does not call upon the infant to defend an affirmative claim like that of the appellant. Apparently there is no relationship between plaintiff and the appellant, and there was no duty resting upon the apjiellant to furnish the plaintiff with board and other alleged necessaries.

We are of the opinion that the appellant did not sufficiently establish his claim against the plaintiff to require the court to consider whether, in a determination of the rights of the parties in an action for partition, such a claim should be decreed to be paid from the *331proceeds of sale. It is unnecessary for us to consider the many other questions that arise in this case, or the legal objections urged by the plaintiff against making such a decree as desired by the appellant in any event. Judgment is affirmed, with costs.

Judgment unanimously affirmed, with costs.