11 Paige Ch. 87 | New York Court of Chancery | 1844
Upon a full examination of all the testimony in this case, I have no doubt, that the defence set up by the appellant, that the farm never belonged to the testator, was not true in fact. In the first place, it is wholly improbable that the father, in apportioning his real estate among his four sons, would devise this farm to the appellant by such a description, if he had not himself purchased it; although I have no doubt that he actually intended, at the time of such purchase, to let the son have the use of it, and to devise it to him by his will, charged with a proper portion for the sisters. This will account for all the testimony as to the appellant being the active man in making the bargain. He was also, most probably, the agent of the father, in his lifetime, in making the payments upon the bond and mortgage. • It is not improbable also, that the appellant furnished some part of the funds, either to make the payment of one half of the purchase money at the time of the purchase, or for the first instalment on the bond and mortgage. And it was probably for that amount that the bond of the 1st of January, 1800, for if 1000 was given. The language of the will is such as to admit of no doubt. And unless the father intended to insert a wilful falsehood in his will, without any apparent reason for so doing, he must have been the purchaser of this farm from the Allgetts. He devises it by this description: “ I give, devise, and bequeath unto my son Abraham Sleight, and to his heirs and assigns forever, all that farm now in his possession, which I bought of Jacobus Allgett, Adam Allgett, John Allgett, and his two sisters.” At the time the deed from these Allgetts was given to Abraham Sleight, for the farm, in May, 1800, there were three Sleights in the town of Fishkill, bearing the Christian name of Abraham — the father, son, and grandson; the father, a man somewhat advanced in life, the son, who was married some fifteen or sixteen years before, and the grandson, then a boy but thirteen years old, as appears by the testi-
The fact that the appellant paid his fourth of the legacies to his sister, Mrs. Cook, and to his niece, Mrs. Huger, yhich legacies were also charged on the farm thus devised to him, is wholly inconsistent with the supposition that the farm was conveyed to himself originally, and that the appellant received nothing under the will of his father. These witnesses, too, so contradict some of the material parts of the appellant’s answer, as to discredit such answer; so that no reliance'can be placed upon any part of it, as evidence in the appellant’s favor. It appears also, by the documentary evidence, that the appellant claimed and received from his brothers only their several proportional parts of the bond of £400 to himself and of the bond due from the decedent to Yan Wyck. This is also inconsistent with the idea that he received nothing under the will. For if that were so, he would not have been likely to pay the one fourth part of the debts himself, instead of leaving the devisees of the testator’s estate to pay them. And from the testimony, I infer that he was not a man of such unbounded liberality as to volunteer to pay one fourth of his father’s debts and legacies when he believed he was under no legal or equitable obligation to do so.
The statute of limitations was no bar. The legatee was a feme covert when the legacy became due and payable, four years after the death of the testator; and of course the remedy was not barred as to her at the time of her death, in December, 1826, even if an action at law could have been sustained for this legacy without any promise to pay it. The defendant swears that he never did agree to pay any part Of the legacy, and that he never paid the interest thereon. If so, there never was a remedy at law. The testimony, however, shows pretty satisfactorily, that he not only agreed to pay the interest to his sister, but that he did pay some part of it at least. It is, however, doubtful whether he ever agreed to pay the principal, to her or to her husband. Although the law may not raise an implied promise to pay, in such a case, so as to enable the legatee to bring an action, yet if this cohrt is satisfied that the legacy is still due, it must give the
Nor is the objection that the complainants have not sued out administration de bonis non on the estate of the wife of their testator, as the legatee, a valid objection to this suit. Previous to the revised statutes the husband could not have sustained a suit for a legacy, or debt, due to his deceased wife before coverture, without administering upon her estate; nor could his representatives maintain such a suit, after his death, without suing out letters of administration de bonis non on her estate. But in the recent case of Rosevelt, adm'r, v. Ellithorp and others, (10 Paige's Rep. 415,) I came to the conclusion that where the husband survived the wife and afterwards died, the revised statutes authorized his personal representatives to sue for a debt due to his estate on account of, or in right of his deceased wife, without administering on her estate also.
The personal property of the wife, of every description, except her separate estate which she makes a valid disposition of by will under a power of appointment, belongs to the husband un-' der the statute of distributions, where he survives her. And the only object in requiring letters of administration on her estate is to have some responsible person who may be answerable to her creditors, if there should be any. If the husband inter-meddles with the deceased wife’s estate, without taking out letters of administration, the revised statutes make him liable for her debts; upon the presumption that he has assets belonging to her estate to pay them. But if the husband survives the wife and dies, either before or after taking out letters of administration on her estate, leaving any assets of his wife unadministered, the statute directs that they shall pass to his executors or administrators, “ but shall be liable for her debts to her creditors in preference to the creditors of the husband.” (2 R. S. 75, § 29.) If the only object of this provision was that the property of the wife,
The decree appealed from must be affirmed, with costs.