35 N.Y.S. 294 | N.Y. Sup. Ct. | 1895
John Morton died, intestate, in March, 1883, leaving, him surviving, the defendant Fidelia R. Morton, his widow, the defendant Jennie M. Gary, and Helen M. Vick, the intestate of the defendant administrator, his children and next of kin. In August, 1883, two judgments were entered against Morton, for $219.01 and $374.02 damages and costs, upon verdicts rendered against him prior to his death in favor of one Northrup. Those judgments, through mesne transfers, were assigned to the plaintiff, who brought this action in May, 1894, against the defendants, as the surviving wife and next of kin of Morton, deceased, to recover the amount remaining due upon those judgments, pursuant to the statute. Code Civ. Proc. § 1837. Letters of administration on the estate of Morton, deceased, were duly issued to his widow7 in July, 1883; and the assets which came to her hands as such administratrix amounted to $3,540. In July, 1884, she, by notice then and thereafter duly published for six months, gave notice to creditors to exhibit their claims to her on or before January 5, 1885. No claim founded upon the judgments before mentioned was presented to her. In December, 1892, the plaintiff, by petition, instituted a proceeding in the surrogate’s court of Monroe county to require the administratrix to pay the judgments; and in February, 1894, it resulted in the determination that there
The fact that there had been no judicial settlement of the accounts of the administratrix in the surrogate’s court furnished no objection to the determination of this action on the merits. It is within the equitable powers of this court to require the personal representatives of deceased persons to render an account, with a view to relief sought dependent upon such accounting. The jurisdiction of the surrogate in that respect is not exclusive, but concurrent with that of this court. Rogers v. King, 8 Paige, 210. In view of the limited amount of the estate of the decedent, the conclusion of the referee was justified that the amount paid for the monument was excessive, and that the sum reasonably applicable to the funeral expenses, including the burial lot and monument, did not exceed $1,000. Wood v. Vandenburgh, 6 Paige, 277; Patterson v. Patterson, 59 N. Y. 574; Owens v. Bloomer, 14 Hun, 296; Allen v. Allen, 3 Dem. (Sur.) 524.
The question arises whether, by reason of that excessive expenditure, any portion of the amount of it should, in behalf of the plaintiff, be treated as assets distributed or paid to the widow and next of kin. When six months after the completed publication of notice to creditors had expired, the administratrix had reason to suppose that no creditors existed whose claim had not been presented, and she was then at liberty to make distribution of the assets. Not having any “knowledge or notice of the claim of the plaintiff or his assignor,” she, with the consent of the next of kin, put $1,400 into a monument. It must be assumed that in doing so they acted in good faith. Neither of them derived any pecuniary benefit from the expenditure, nor
There remains for consideration the sum of $475.77, paid to Helen on account of her distributive share of the assets; the sum of $315.38, expended in improvements and repairs upon the real estate; and $254, appropriated to pay funeral expenses of Helen, who died in 1886. Those sums were paid out by the widow with the consent of the defendant Cary; and that for the improvement of the realty, by the consent of both her and Helen. Neither of the two sunis last mentioned was appropriated to purposes within the purview of the authority of the administratrix, and therefore the widow and the defendant Cary, as one of the next of kin, may be treated as equally charged with having and disposing of those sums of the assets, and each equally with Helen chargeable for the amount so applied in making the improvements upon the real estate. As to creditors, Helen alone was responsible on account of the amount so received by her on her distributive share of the assets, including one-third of the amount so expended upon the real estate. It follows that, as relates to the distribution of the assets which remain the subject for consideration, the estate of Helen must be deemed chargeable with $580.90, the widow with $232.13, and the defendant Cary with $232.13. Their liability, respectively, is such that the sum which the plaintiff is entitled to recover against them must be apportioned among the defendants in proportion to the distributive share received by each of them. Code Civ. Proc. § 1839. As the plaintiff has not appealed, the recovery against the personal representatives of Helen M. Vick cannot be increased on this review. On the basis before mentioned, the proportionate share of the liability of each of the two defendants Horton and Cary to the plaintiff on his claim as of the time of the referee’s report was made is $150.21. No other question requires consideration.