17 Barb. 15 | N.Y. Sup. Ct. | 1853
If this case- is ‘"hot distinguishable from that of Colt v. Lasnier, (9 Cow. 320,) there can be no doubt that the plaintiff will be entitled to recover. That case, if I mistake not, establishes the following propositions, and it is to be held decisive as to the law in this state upon them, viz: That any person receiving from an executor, the assets of his testator, knowing that such disposition of them is a violation of the executors duty, is to be adjudged conniving with the executor to work a devastavit, and is accountable to the person injured by such disposition, for the property thus received, either as purchaser or a pledgee. So if the facts in this case show that the defendant purchased the Harris bond and mortgage knowing that they belonged to the estate of David II. Sacie, and that the executor from whom ho purchased intended to appropriate the proceeds to his own use, which was in violation of his duty as such executor, I do not see how he is to escape the consequences of such an act.
But it is very ably argued by the counsel for the defendant that this case entirely differs from the one just cited, and that the defendant has not acted wrongfully and has not connived with the executors to work a devastavit, and that he stands fully justified in the purchase of the bond and mortgage, for the reasons, 1. That he purchased and took the assignment from the testator’s sons, they being attorneys at law and the executors of his will, and acting and assuming to act as individual owners as well as executors.
In the case of Hill v. Simpson, (7 Vesey, 152,) Joseph Simpson was the nephew of Elizabeth Smith, and was her heir at law' and one of the executors of the will. Several legacies ivere
This case is quoted with approbation in Colt v. Lasnier, Oh. J. Savage closing his remarks in relation to it by observing that the whole scope of the argument went to prove that the purchaser or banker who receives the property of the testator from the executor knowingly, ‘for purposes inconsistent with his duty as executor, is responsible for such property to the creditors or the persons in interest. That case, it will be perceived, is like the present in many of its features. There, as here, the purchasers were dealing with the heir at law. There, as hero, they alleged that they believed the executor ivas the owner of the property which he assigned. There, as here, they asserted that they did not know the rights of legatees were concerned, and did not know any thing about the contents of the will: and' there as here they might justly infer from the personal guaranty of the executor that he wras the only beneficiary in the will; and yet the very fact that the purchaser knew) that the executor was about to appropriate the proceeds to his own use and for his own benefit, was held sufficient to charge him, on the ground among others, that such knowledge should have induced him as a. matter of prudence to go farther, and make proper inquiries as to the contents of the will. It is agreed that the executors were authorized, by law, to sell and assign the bond and mortgage, and that the assignment is valid, and the assignee cannot be called to account to the legatees, without showing fraud and collusion on the part of the assignee, with the executors. The case of Wheeler v. Wheeler, (9 Cowen, 34,) relied upon by the counsel, decides that an executor may pledge or assign a noté as collateral security for a judgment obtained against the estate of his testator $ and that such an assignment is valid so far as it respects the general power of the executor. Such assignment is not appropriating the funds or assets to his own use. The case of Sutherland v. Brush, (7 John. Ch. R. 17-21,) is also cited by the counsel. The chancellor there says that the general
The distinction is sought to be taken between this ease and the cases cited, that the purchase was here made by an advance of money at the time of the assignment, and not for any antecedent debt of the testator or his executor. It is true, it is remarked in some of the cases, particularly in Colt v. Lasnier, that as a general rule the purchaser does not become a party to the fraud by buying or receiving the assets as a pledge for money advanced at the time, and as a general rule he is such party by buying or taking them in pledge in satisfaction of an antecedent debt of the executor, but that there are exceptions to both rules. One exception noted is that if one concerts with the executor by obtaining the testator’s effects at a nominal price, or at a frauduj lent under value, or in any other manner contrary to the duty of the'office of executor, such concert will involve the purchaser,- and make him liable for the full value; that if he knows that the assets are to he appropriated to purposes inconsistent with the duty of the executor, he is responsible to the persons in interest;
What are the facts in reference to this bond and mortgage ? It is not disputed that the mortgagor was entirely solvent and able to pay the amount of the mortgage. It is true, payment of a part of it had not been pressed; and it is said this is evidence that it was a slow security. It was the very investment intended by the testator for the benefit of his infant children. It was not necessary to distribute it for their support or education; The defendant, after he was applied to for the money, postponed Ms answer and took time to make all proper inquiries; he no doubt informed himself as he was bound to do,- of every fact which a man who exercises ordinary care and prudence in the management of his affairs would deem important. He knew this was the property of the estate. He finally answers that he will advance the money if the executor will make it a sufficient object,that is, will submit to such a deduction from the" amount due on the mortgage, as his conscience will permit him to demand. He is informed that the executor is anxious to build, and wishes the fund for that purpose. He finds his necessities for the money
C. L. Allen, Justice.]
There must be judgment for the plaintiff for the amount of the balance due on the bond and mortgage at the time of the transfer, $1957,17 and interest from 1st April, 1845.
Judgment accordingly.