67 N.Y. 400 | NY | 1876
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We agree with the General Term that the surrogate erred in allowing to the executor the amount of the promissory note made by him to Mary Kyle. The reasons, as far as they are given by the General Term, are sound. The learned counsel for the executor claims that they present but a partial view, and that the action of the executor will be upheld in equity, and says that equity will give aid to a doweress after her remedy at law is gone, and cites Johnson v. Thomas (2 Paige, 384), and other authorities to the same end as that. He claims that equity treats the heir at law of the premises as a trustee for the widow of her arrears of dower. But that is not the sole question here. Another is, can a widow claim and recover rents and profits of her dower until it has been assigned? And further than that, has an executor of the heir a right to charge the estate of his testator, or expend the assets in his hands, for the payment of such arrears in such case? Equity was wont, before the Revised Statutes gave the widow a better remedy at law for her dower and the rents and profits than was theretofore furnished, to entertain her bill for an assignment of her dower, and gave it either by metes and bounds, or an alternate use of the property, or an assignment of a third of the rents and profits, or by a gross sum reckoned by the annuity tables; as the circumstances of the case required, (seeCoates v. Cheever, 1 Cow., 476), and in so doing it held the heir at law, or devisee of the premises, as trustee for her of the arrears, though dower had not been demanded. And when she had died before she had established *405
her right, there was, in favor of her representatives, decreed an account of rents and profits since the time her right had accrued. But we are not aware that this has been done in this State, save in an action brought by her for an assignment of dower, and as an incident to it. No express authority that it has been, or can be done, has been produced to us by counsel. It has been strongly intimated in Maryland that it will not. (Kiddall
v. Trimble, 1 Md. Ch. Dec., 143.) It has been held in Mississippi that it will (Harper v. Archer,
These provisions of the statute, even if taken in the nature of statutes of limitation, are to be observed both at law and in equity, for equity as a general rule follows the law in such cases. (1 Story Eq. Jur., § 64 a.) It is apparent then, how inconsiderate on the part of the executor, and how inequitable to the estate, was the arrangement he made with the widow. It is claimed that equity is not bound by statutes in this matter. (Johnson v. Thomas, supra.) But at the common law, a widow was entitled to damages from the time only when she *407 recovered her judgment for her dower. It was by statute that she first became entitled to arrears. Though equity has asserted a freedom from that statute, we think that by the Revised Statutes it was meant to prescribe the sole rule for the amount thereof, both at law and equity, and that it is now by statute alone in this State that she may recover, either at law or equity. Certainly equity is bound by the statutory limitation of twenty years for the demanding of her dower. (1 R.S., 742, § 18.) By the Revised Laws (1 R.L., 60, § 1) she might prosecute at any time in her life. The revisers meant to limit the right in accordance with the law as to other claims to real estate, (5 R.S. [Edm. ed.], 504), and their notes show that they sought a like end of public policy in fixing the amount of arrears that might be recovered. (Id.) The reason why equity in former times did not limit the widow to any period in her recovery of arrears, was that there was no limitation at law. (Oliver v. Richardson, 9 Ves., Jr., 221). Now, in England, equity follows the statute. (Bamford v. Bamford, 5 Hare, *203.) The rule should be the same here. In the absence of a judgment for dower, without action brought therefor, in the absence of any demand of dower, without explicit contract shown with the widow to pay for the use of it, we do not perceive the right of the executor to pay the widow therefor upon the manifestly illegal basis adopted by him, out of the assets of the estate, and still less to charge the estate directly or indirectly by an executory contract to make such payment.
We do not lose sight of the clause in the deed from three of the co-heirs at law to the brothers, the testator and executor. Doubtless it created an obligation from the grantees in the deed to the grantors. It may be that in equity the widow could avail herself of it, but only in accordance with its terms. The obligation is joint, upon George the executor, as well as David the testator. The personal obligation yet bears upon George, as much as upon the estate of David. George had no right or power as executor of the estate, to put the whole burden upon the estate, to the relief of himself.
To avoid misapprehension, it is well to say, that we intimate *408 no opinion as to the right of the widow of John Kyle, if now alive, to sue for and recover her dower, with such arrears as the law allows.
We agree with the General Term, also, that the surrogate had jurisdiction to hear and adjudge upon the debt alleged to be due from the testator to the executor. The statute forbids the executor to retain any part of the property of the testator for the satisfaction of his own debt or claim, until it shall have been proved to, and allowed by, the surrogate. (2 R.S., 88, § 33.) It has been held that the proof must be other than by his own affidavit. (Williams v. Purdy, 6 Paige, 168.) It must be by the testimony of witnesses and all or any of the evidence known to the common law, to be produced by him. It would be absurd to say that the surrogate was restricted in his inquiry, to the testimony of witnesses brought by the executor. If he is to take proof, and allow the debt or claim only after it is proven to his satisfaction, he must be permitted to hear also the testimony brought against the claim by those interested adversely to it. It is the result of the statute, giving him jurisdiction to allow upon proof, that he has such power. It is true, that he may not adjudicate upon a disputed claim of an alleged creditor of the estate. But the cases are not alike, for there no statute gives him the power. (Tucker v. Tucker, 4 Keyes, 148.)
It has been held that the surrogate may hear and determine upon a claim against the executor in favor of the estate. (Gardner v. Gardner, 7 Paige, 112.) It is for the reason, that unless he may do so, those interested in the estate have no remedy save by bill in equity, inasmuch as no suit at law can be brought; for the executor, who is the legal representative of the estate, cannot sue himself. The same reason is applicable here, and is probably the base of the statute cited.
We do not agree with the General Term, that this was the only point available to the appellants, Fanny Kyle and her son, upon this branch of the case. We think that the General Term should have passed upon the sufficiency of the evidence, to sustain the decree of the surrogate allowing the *409 claim of the executor. Their petition of appeal distinctly presented as one ground of appeal, that the surrogate erred in adjudging that the estate was indebted, upon the proofs, to George Kyle for the $1,500.
In reviewing the judgment of a General Term on an appeal to it from the decree of a surrogate in such case, this court must look into the testimony, and reach a conclusion upon the facts of the case, and determine whether the adjudication of the surrogate was sustained thereby. (Robinson v. Raynor,
All concur.
Ordered accordingly.