15 Abb. Pr. 230 | N.Y. Sur. Ct. | 1872
The question presented for consideration is, what, if any, interest have these widows in the proceeds of the sale.
Section 72 (3 Rev. Stat. [5 ed.], 198), provides that “the proceeds of a sale of real estate made in pursuance of an authority given by any last will may be brought into the office of the surrogate before whom such will was proved, for distribution ; and the surrogate shall proceed to distribute the same in like manner and upon like notice as if such proceeds had been paid into his office in pursuance of an order of sale of real estate for the payment of debts.”-
Where land is sold by order of the surrogate to pay debts, the statute directs that after paying the expenses of sale, &c., he shall next satisfy any claim of do.wer which the widow of the testator or intestate may have upon the land so sold, &o. (3 Rev. Stat. [5 ed.], 104, § 45).
Section 52 provides that “if after the payment of debts and expenses there be any overplus of the proceeds of the sale, the same shall be distributed among the heirs and devisees of the testator or intestate, or the persons claiming uhder them, in proportion to their respective rights in the premises sold.”
The devisees had an estate of inheritance in the lands—a base fee—not a fee simple (2 Bl. Com., 109). A base, or qualified fee is such an one as hath a qualification subjoined thereto, and which must be determined whenever the qualification to it is at an end. It is a limited fee—and the estate is a fee, because by possibility it may endure forever in a man and his heirs (1 Shars. Bl. Com., 109). And the widow is entitled to be endowed of all lands and tenements of which her husband was seized in fee simple or fee tail, at any time during the coverture, and of which any issue, which she might have had, might by possibility have been heir (Id., 131; Litt., § 53 ; Washburne on Real Prop., 154).
It is plain in this case that there was a possibility of the surviving executor dying without having exercised the power of sale, and then there would have been an estate in fee simple absolute, in the devisees, their heirs and assigns forever.
Thus it is abundantly established that the widows in question were endowed of these lands to the extent of the seizin of their respective husbands.
The title thus vesting in the devisees, when one of these devisees died leaving .a widow and children, and the land having been sold under "the authority contained in the will, it seems to me the proceeds of the sale are to
The statute of our own State, as has been shown, does divest the title of the heir or devisee, as well as that of the widow, in the land sold under an opder of sale to pay debts, but at the same time, secures the interest of the widow and the heir or devisee, in the proceeds of the sale, and vests a good title in the purchaser. The widow is to receive a sum in gross, if she so elect, in lieu of her dower interest in the land sold, or will have one-third part of the purchase money put at interest for her benefit as dower. A widow is in the care of the law and a favorite of the law. It may be laid down as an almost universal proposition, that where estates, out of which widows were entitled to dower, have been sold by order of court, or have been so sold as to give courts of equity jurisdiction over the money, these courts will allow the widows dower out of the money (1 Washburne on Real Prop., 243). And this court has equity powers within the scope of its statutory jurisdiction. Appeals from its decisions were formerly made directly to the court of chancery, and since the peculiar powers of that court have been transferred to the supreme court, such appeals are taken to' the equity side of the latter court. As has been shown, ' these widows were entitled to dower in the lands sold, and this court has jurisdiction over the proceeds of the sale.
I reach the conclusion, therefore, that the widows of devisees who have died seized of an estate of inheritance in the lands in question should be allowed their dower out of the moneys to be distributed.
On May 3, 1872, a decree was made in the above matter directing the sole surviving executor among other things to pay to John C. Timpson a devisee of deceased some four thousand and forty dollars and ninety-eight cents, the executor then having the money on hand. About July 12, 1873, an application was made on behalf of the devisee, alleging a demand of and refusal to pay his distributive share of the proceeds of sale of real estate, for a citation directing the executor to appear and show cause why he did not pay it, or show cause wl^ an attachment should not be issued against him. The citation was issued returnable August 18, 1873. He ultimately appeared and alleged as cause that he had no funds wherewith to pay. That when he had the money he sought to find the devisee but could not do so, and subsequently was so unfortunate as to mingle the funds with his own or convert them to his own use, and lost the whole.
The court afterwards issued an attachment against the executor directing that he should be brought before the court to answer as for a contempt in not having complied with the direction contained in the decree. The attachment was served and the parties appeared in, court, interrogatories' and answers thereto were duly filed, from which it appeared that the executor had converted the fund and it was lost, and counsel discussed and submitted the question as to whether.the facts and law gave the surrogate jurisdiction to issue a precept for the imprisonment of the executor.
S. M. Ostrander, for legatee.
D. R. Jacques, for executor.
Subdivision 4, section 1, 3 Rev. Stat. [5 ed.] 362, provides that every surrogate shall
Section 10, p. 364, gives the surrogate power “ To enforce all lawful orders, process and decrees of his court by attachment against those who shall neglect or refuse to comply with such orders and decrees, or to execute such process, which attaqhment shall be in form similar to that used by the court of .chancery in analogous cases.”
Section 21, p. 366 (Laws of 1837), makes attachments, &c., returnable to the county where they are issued, and also makes applicable to attachments issued by surrogates, 3 Rev. Stat., 5 ed., §§ 10, 11, 12, 13 and 16-32, inclusive, pp. 851-853.
It seems to be pretty well established by authority, that surrogates' courts are not courts of record, notwithstanding the case In the Matter of Latson, 1 Duer, 696.The authorities holding a'contrary doctrine are Seaman v. Duryea (10 Barb., 523 ; Dayton on Sur., p. 6); Doran v. Dempsey (1 Bradf., 490); In the Matter of Watson (3 Lans., 408). Concurring fully with these authorities upon this point, it is very plain that none of the provisions on pages 840-855, inclusive (3 Rev. Stat.), are at all applicable to surrogates’ courts, except the sections above quoted. Were it otherwise, where was the necessity of the act of 1837, making those sections applicable to these courts. Subdivision 3 of section 1, p. 849, providing that attachments may issue against persons for the non-payment of any sum of money ordered by “ such court” in cases where, by law, execution cannot be awarded for the collection of such sum, refers to and affects courts of record only, and has no application here.
Although, by the act of 1837, provision is made for the docketing of surrogate’s decrees with the clerks of the supreme court, and for the issuing of execution
The case of Hosack v. Rogers (11 Paige, 603), is relied upon by the executor’s' counsel, to show that an attachment cannot be issued, and the same case is referréd to in the Matter of Watson as sustaining the doctrine of that case, but I apprehend it is not in point. The suit was to recover a debt on contract, and a decree fixing the amount of such indebtedness was made, and the chancellor very properly decided that he could riot enforce it by attachment.
In the case of Doran v. Dempsey (1 Bradf., 490), also relied upon in the Matter of Watson, the learned surrogate does not attempt to decide that in such a case surrogates have no power to issue attachments ; but simply determines that he will not do it in that case. In Saltus v. Saltus (2 Lans., 9), the case of Doran v. Dempsey is merely referred to, but neither approved nor disapproved, but the power of the surrogate to issue an attachment is distinctly recognized.
It is true the process of attachment to be issued must be “ in form similar to that used by the court of chancery in analogous cases” (Rev. Stat., § 10, subd. 4, 364), but the “ analogous cases ” are those existing at the time of the adoption of the Revised Statutes in
The remaining point to be considered is, what is the effect of 3 Rev. Stat., § 23, 853, which declares “that when the misconduct complained of consists in the omission to perform some act or duty, which it is yet
Before the adoption of this amendment, it seems to have been held that the only mode by which a party could be relieved from imprisonment for contempt in not paying a sum of money ordered by the court to be paid, was by an appeal to the pardoning power (People v. Bennett, 4 Paige, 282, or by application to the legislature ; Van Wezel v. Van Wezel, 3 Paige, 38 ; 2 Barb. Ch., 281).
The executor had ail the money, amounting to thirty-five thousand eight hundred and forty-four dollars and seventy-nine cents, in his hands at the time the decree in this matter was entered. He retained as belonging to him, and paid out thirty-one thousand eight hundred and three dollars and eighty-one cents to various devisees, leaving in his hands four thousand and forty dollars and ninety-eight cents, as the share of John C. Timpson, the petitioner, whom he represents that he could not find. This fund he converted to his own use, and the whole is lost. In this he was clearly guilty of misconduct which £ 6 was calculated to, or actually did defeat, impair, impede or prejudice the rights or remedies” of said John 0. Timpson, in a matter depending, in this court, and is thus clearly brought within the provisions of section 20, which authorizes the court to impose a fine or to imprison him, or both, and after-wards the court may relieve him from imprisonment on becoming satisfied of his inability to pay. The statute as thus amended furnishes a perfect scheme for- the-adequate punishment of such delinquents, and for their relief and ultimate discharge in proper cases. It would be strange, indeed, if legislative wisdom had failed to furnish appropriate methods to punish those guilty of breaches of trust—an offense in these days of so frequent occurrence and so alarming in amounts involved. -
A precept must, therefore, be issued, directing the sheriff of Westchester county to take into his custody the person of the executor, and so keep him until the further order of the court.