48 N.Y. 232 | NY | 1872
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *234 The finding that in the final decree of the surrogate the plaintiff was to be paid ratably with the other creditors is not only without proof to sustain it, but the evidence furnished by the decree itself is to the contrary. The error being rather in favor of the defendants than otherwise, is not a ground of exception by them; nor does the finding that the plaintiff did not appear in the proceedings before the surrogate after filing his objection, though not literally accurate, prejudice the defendants, unless he appeared, waiving his objection against the right of the defendants to include as assets, to be distributed among the creditors, the rent which had accrued out of the leasehold premises since the death of Edward Knox. He did not present *236 his claim to the defendants as one against the estate, verified in any way in compliance with the order of the surrogate, or do any other act from which it could be inferred that he intended to waive his protest against the right of the defendants or of the surrogate to appropriate the income of his property to those to whom it never belonged, and who not as against the plaintiff had the slightest equitable claim to it. On the contrary, as is quite clear from the facts that the estate was insolvent, the income from it much less than the rent reserved, and that he withdrew from before the auditor, before his report was made, and commenced this action, he never intended to submit the claim sued upon to the judgment of that officer.
The finding that the defendants, immediately after their appointment as administrators, entered into the possession of the demised premises, and continued therein and collected the rents therefrom until the first day of June, 1864, is fully sustained by their account rendered to the surrogate; and although that account does not contain an admission, in terms, that they entered into possession of the premises, the admitted fact that they collected the rents for that period amounts to the same thing. (In re Galloway, 21 Wend., 32, 33.) The conclusion of law, that the proceedings before the surrogate were no bar to this action, was, upon principle, right, and is fully sustained by authority. The estate of Edward Knox was worth but about twenty per cent of his indebtedness; the value of the leasehold estate did not, since his death, exceed in amount the rent reserved; and hence nothing came to the defendants' hands to be divided among his creditors. (Toller, 143, 279; Rubery v.Stevens, 4 Barn. Ad., 241, and note a; Wms. on Exrs., 4 Am. ed., 1489, 1490.) It was against the plaintiff's protest that the surrogate took jurisdiction of the rents collected, and, without right, distributed them. The conclusion that the plaintiff was entitled to recover was also right. Upon that point the authorities were, as BRONSON, J., said In re Galloway (21 Wend., 33), all one way. It is not so clear that the referee *237 was right in ordering judgment for a sum exceeding the amount received for rent; but upon this point no exception was taken, and hence the question is not up for consideration. The judgment must be affirmed.
Concurrence Opinion
The lease from Quackinboss to Charles Knox provided that the lessee should have the privilege of remaining in possession after the specified time, for the further term of five years, at the yearly rent of $1,500. On the 10th day of February, 1858, Charles Knox assigned this lease to Edward Knox, who entered into possession of the premises, and remained in possession until May 11, 1863, when he died. After his death the defendants, as his administrators, took possession of the premises, and let them and collected the rents. I have no doubt that the privilege, under the lease, of extending the term, passed to Edward Knox as assignee. And the occupancy of the premises by him and his administrators, after the expiration of the original term, furnished prima facie evidence that he had availed himself of this privilege, and that the premises continued to be occupied according to the terms of the lease. This lease, upon the death of Edward Knox, passed to his administrators, and became a portion of the assets in their hands. If the lease was worth anything, it was their duty to sell it, or to assume control of the premises and collect the rents, or in some form secure the profits thereof. If they either took possession of the premises or received the profits or collected the rents thereof, they became personally liable for the rent, to the extent of the rents or profits received by them. Administrators do not become personally liable for the full amount of the rent reserved in the lease, unless the rent or profits of the premises are at least equal to the amount of the rent. A landlord, after the death of his tenant, always has these remedies for rent accruing after the death: He may collect the same of the estate of the deceased, or he may collect the same of the administrators or executors personally to the extent of the rents or profits received by them of the premises; and he *238 may collect of the executors or administrators so much of the rent as they are personally liable for, and the balance, of the estate. This personal liability of the administrators and executors grows out of the fact that it is their duty to receive the rents and profits, and to the extent of the rent, apply them in payment thereof, instead of placing them among the general assets. That the rents and profits are not sufficient to pay the rent is, however, strictly matter of defence, as the law primafacie supposes them to be sufficient. These principles are abundantly established by the authorities. Remnant v.Bremridge, 8 Taunt., 191; Matter of Galloway, 21 Wend., 32;Fisher v. Fisher, 1 Bradf., 335; Taylor's Landlord and Tenant, 211; Williams on Executors, 1491.) In Matter ofGalloway, COWEN, J., says: "It is perfectly well settled that when rent or money for breach of covenant falls due after the death of the testator or intestate, and the executor or administrator enters, or, which is the same thing, receives the rents and profits, he is chargeable in the debit and detinet or directly on the covenant as an assignee, and need not be named as executor or administrator. In certain special cases he may, it is true, defend in fact, as when he has no assets, and the land is in truth worth less than the sum due. But this is strictly matter of defence; prima facie, the land is worth more."
Here the defendants did not allege in their answer and did not attempt to prove upon the trial that the lands were worth less, or that the rents collected by them were less than the rent reserved, and hence there was no error in awarding judgment against them personally for the full amount of the rent, unless the proceedings in the Surrogate's Court of New York in some way, furnish them a defence.
As a creditor of the estate of the intestate, the plaintiff was a proper party to the accounting. He became such by the service upon him of the citation. His position was not altered because he appeared and filed objections. He presented no claim, litigated nothing and withdrew from the proceeding. There was no adjudication upon his claim for *239 rent. He was a proper party, as he was a creditor of the estate, having the right to look to the estate for the payment of his rent. His claim against the defendants personally was in no way involved and could in no way be brought in question in that proceeding, and he is therefore not precluded by it. (2 R.S., 94, § 65.)
The judgment should therefore be affirmed with costs.
All concur, except LEONARD, C., not sitting.
Judgment affirmed.
