55 N.Y. 624 | NY | 1874
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *626 Whether a new trial of the issues determined by the Special Term should have been granted, upon the ground that the appellant or her counsel was misled by an intimation of the judge as to the state of the question presented or the disposition proper to be made of it, or whether in consequence of this any hearing upon such issue or any part of it should be had before the referee, were questions addressed to the discretion of the court, and the determination thereof by the General Term cannot be reviewed by this *629 court. The appeal from the order of the General Term, affirming the order of the Special Term denying the motion of the appellant for such new trial or hearing, must be dismissed.
The questions arising upon the appeal from the order denying a new trial upon the exceptions taken by the appellant, and upon the appeal of the same party from the judgment, are so nearly identical that a separate consideration is unnecessary. The appellant excepted to the finding of the Special Term that there was no gift of the government bonds amounting to $42,750 by the intestate to the appellant. This exception raises the question in this court whether the evidence conclusively proved that such gift was made by him to her. The relation of husband and wife, existing between the donor and donee at the time of the alleged gift, would not render it invalid; if in fact made, equity will sustain and enforce it. (2 Kent's Com. [10th ed.], 589, 590;Kingdon v. Bridges, 2 Vern., 67; Draper v. Jackson,
The General Term, upon appeal, modified the judgment of the Special Term by providing that the judgment should not be conclusive as to the amount of the bonds which were the property of the intestate at the time of his death, and for which the appellant was accountable as administratrix. This was a question to be determined by the referee. Upon the hearing before him, it was conclusively proved that $4,000 of the bonds were sold by the appellant some ten months before the death of he intestate, and the proceeds paid by her upon the purchase *631 of a house, the title to which she took in her own name, and evidence was given strongly tending to show that this was done with the approbation of the testator. The referee, nevertheless, charged the appellant with these bonds, together with the interest that would have accrued thereon, the same as if they had not been sold. This was error. The intestate had no such personal property at the time of his death. This had been converted into real estate, and the appellant was not accountable therefor as personal property. It is insisted by the counsel for the respondent that, conceding this to be so, she became the debtor of her husband for the bonds so used, and, as the action was brought against her in her individual as well as representative capacity, this debt may be recovered in the action. In this I cannot concur. A wife does not become the debtor of her husband by making an extravagant or unauthorized use of property which he intrusts to her management and control. If she therewith purchases property, real or personal, without authority, his remedy is to rescind the contract and recover from the vendors what they have received, if he can, and if he cannot, he must take the property purchased. He cannot treat this as her separate estate and charge her with the money she paid therefor. The law creates no such liability of the wife to the husband as a consequence of her dealing with his property. But it is hardly necessary in this case to pass upon this question, for the reason that, as I think, the referee should have found that this entire transaction was approved of at the time by the intestate.
The referee also erred in charging the appellant with interest upon the money she placed in the hands of Deforest Co. at seven per cent, while she received only four and five per cent therefor. It appears that they acted as her bankers. An executor or administrator is not chargeable with interest not received by him, unless it appears that he has used the money himself, or that by reasonable diligence interest might have been received. There is nothing whatever in this case showing that the appellant could have *632 obtained any more interest upon this money, or that she was guilty of any fault in this respect.
The order denying a new trial must be affirmed, and the judgment modified by deducting from the amount of the personal estate of the deceased, with which the appellant is charged, the $4,000 of bonds sold in the lifetime of the testator, with the interest computed thereon; and a further deduction therefrom must be made of the amount of interest upon money in the hands of Deforest Co., charged to her in excess of the sum received by her therefor, and that the amounts to be paid to each of the parties entitled to distributive shares be reduced so as to correspond therewith, and that, as so modified, the judgment be affirmed, without costs in this court to any of the parties.
All concur, except ALLEN, J., not sitting.
Judgment accordingly. *633