33 Barb. 527 | N.Y. Sup. Ct. | 1860
By the Court,
Ho substantial error was, I think, committed by the referee on the trial and decision of this cause. The deposit of the $357.73 to the credit of the plaintiff as executor, in the defendants’ bank, was at least an equitable if not a legal appropriation of that sum to the credit of the trust estate. It belonged, after that time, to the estate of Watson, and if Scrantom had drawn it out and diverted it to his own use it would have been a misappropriation of the money, for which he would be bound to account upon the basis of a wrongful conversion of the property, and for which his bail would have been liable. The case shows that he was in debt to the estate of Watson,, and certainly he could lawfully set apart and apply any money belonging to himself to the payment of said debt. The deposit to his credit as executor was such a payment. It was a preference given to such creditor. The money was deposited in the defendants’ bank on account of the trust estate, and belonged as much to such estate, after the deposit, as though the plaintiff had not been one of the executors. It is true the plaintiff might draw it out upon his check, and so he might use and appropriate any other of the trust funds
The objection that Eobbins, the co-executor, should have been joined in the action cannot now be raised. It is true that co-executors must all join in suits instituted for the recovery of debts due to the estate. (Bodle v. Hulse, 5 Wend. 313.) The common law rule that all executors must join, as well those who prove the will as those who renounce, has been repudiated in this state by statute. The legislature has declared that in actions brought by executors, it shall not be necessary to join those as parties to whom letters testamentary shall not have been issued and who have not qualified. (Sess. Laws of 1838, ch. 149, p. 103.) Robbins, however, had proved the will, and the letters testamentary were issued to him and Scrantom jointly. He was therefore a necessary party to the suit; and if the objection had been taken in due form and at the proper time, it could not have been avoided. This objection, before the code, could only be made by plea in abatement after oyer of the letters of probate or letters of administration. (Cabell v. Ranyham, l Sand. 291, note h. Sand. Plead, and Ev. 14. 2 Bing. 177. 1 Chit. Plead. 20. Packer v. Willson, 15 Wend. 343.) Under the code such an objection, if it do not appear on the face of the complaint, so that the question can be raised by demurrer, can only be raised by answer, (Code, §§ 144, 147;) and if not so raised is to be deemed waived. (§ 148. Fosgate v. Herkimer Manufacturing Company, 2 Kernan, 580.)
The objection that this is not a suit by the plaintiff as executor, but the mere private suit of Scrantom, is not well taken. Such would have been the case, notwithstanding the plaintiff in the summons and complaint describes himself as executor, if the cause of action as set out was personal to him in his own right. (2 Selden, 168. 2 Barb. 368. 11 How. Pr. Rep. 12.) In those cases the cause of action was
Smith, Johnson and Knox, Justices.]
not set out as due or accruing to the plaintiff as executor, hut in this case the cause of action is stated as an indebtedness due to the plaintiff as executor,, and that the money was had and received by the defendant for the use of the plaintiff as such executor. Throughout the complaint the cause of action is stated as accruing to the plaintiff as executor, and this will do. (2 Barb. 372. 6 East, 405. 1 Chit. Pl. 23.) I see no ground in this case upon which we can reverse this judgment, and think it should be affirmed.
Judgment affirmed.
