10 Barb. 308 | N.Y. Sup. Ct. | 1851
I shall examine the two principal questions discussed upon the argument of this, cause. 1st. Whether the bond claimed by the respondents, for the sum of $1000, and which the surrogate adjudged, by -his decree, should be paid out of the proceeds of the estate, is a valid, legal claim, against the appellants. And, 2d. Whether the surrogate, upon the proceedings for the final accounting, had jurisdiction and authority to make a decree for the payment of the money mentioned in the*bond, when the same was disputed, and the liability of the appellants to pay the amount claimed; and no judgment had been obtained for its recovery.
The case comes before this court, upon an appeal from a decree of the surrogate of the county of Dutchess. The appellants are the executors of the will of Rebecca Thompson, deceased; who, after the lapse of eighteen months from the time of granting letters testamentary, applied by petition to render a final account of their proceedings, according to the 70th section of the act, (2 R. S. 35, 2d ed.) concerning “ the duties of executors and administrators in rendering an account,” &c. The respondents were made parties to the proceedings, in respect to a legacy given them by the will; and they are also
The common law distinguishes contracts into agreements by specialty, and agreements by parol. If merely written, and not under seal, they are by parol; and before they can be enforced, a consideration must be proved. The solemnity, and deliberation, observed in the execution of a specialty, gave the transaction under that code, an importance, and a character which was withheld from a simple contract. For, between the two, there was this manifest difference; in a contract by parol, a consideration must appear, to give it vitality ; while, in a contract under seal, no consideration need appear, to make it obligatory. The geal affixed to the instrument, was it-gelf evidence of a sufficient consideration. It was a good defense to an action upon a specialty^ that the consideration was illegal, or that it was obtained by fraud ; but a mere failure, or a want of consideration, formed no defense. (2 Wilson, 347. 2 John. 177. Dorian v. Sammis, reported in a note to this case. 20 Id. 130.) The revised statutes have modified this rule of the old law. The dig
The rule in regard to the sufficiency of the consideration, is thus stated by Chitty, in his work on contracts, (5th Am. ed. p. 29.) “ It may arise either—1st. By reason of a benefit resulting to the party promising, or at his request to a third person, by the act of the promisee. 2d. On occasion of the latter sustaining any loss or inconvenience, or subjecting himself to any charge or obligation, at the instance of the person mating the promise, although such person obtain no advantage therefrom.” If the contract or promise in question is examined by the light of this rule, it will be difficult to find any consideration upon which it can stand. The instrument recites, that the respondent has assumed the charitable education of certain young men for the gospel ministry, and has incurred, and is liable to incur, much expense thereby. But it does not assert that it has taken upon itself this burden, at the request of the obligor, or upon the faith of the undertaking contained in the bond. It also recites a resolution of the respondent, to regard any person who should place $1000 at its disposal, as havings endowed a scholarship, to be perpetuated forever. But it "will hardly be claimed that an agreement to esteem a person for any particular quality of mind; to regard him as humane, generous or benevolent; or that the promise he makes, or the act which he proposes to perform, shall be deemed an illustration of those virtues, is a sufficient consideration for a bond, or note, or any other executory obligation. Following the recitals, is the promise to pay the sum of $1000 at the decease of the testatrix, to endow the scholarship, to be known by the name of the Rebecca Thompson Scholarship. There is no promise or covenant on the part of the respondent to accept the money, and apply it to the uses of the instrument; and there is also the entire absence of all proof, that any expense had been incurred, or less- or inconvenience suffered by it; or that any act had been done
Surrogate’s courts are courts of peculiar and special jurisdiction. Their powers are defined in title 1, chapter 2, part 3d of the revised statutes : (2 R. S. 220, 1st ed.) “ To direct and control the conduct, and settle the accounts of executors and administrators : To enforce the payment of debts and legacies, and the distribution of intestates estates,” are powers expressly given to the surrogate, and enumerated in the 3d and 4th subdivisions of the 1st section of the title referred to. Before the revision of the statutes, suits in the courts of common law, to recover and collect debts against the estates of deceased persons, were costly and cumbersome, and perplexed by a system of pleadings and entries, the names and forms of which are now almost forgotten.- Nor were there any means known to the law for a final settlement of the accounts' of executors and administrators, and a distribution of the assets, without resort to a bill in chancery. It was to provide a remedy for these defects that the revisers introduced, amongst others, the powers to which I have referred. The words “ to enforce the payment of debts,” would seem, at first sight, to imply authority to adjudicate upon the existence of a demand made against the estate by a person claiming to be a creditor, which was disputed and denied by the executor or administrator. It will be found, however, upon a careful examination, that no such power can be justly claimed for the surrogate. The courts of common law, before the revision, afforded every facility for the liquidation of disputed and doubtful claims against the estates of deceased persons. In respect to the mode of ascertaining who were and who wére not creditors, there was no cause of complaint. The old law, however, marshalled the debts into classes, each class, in the application of the assets, being entitled to a priority over others of an inferior degree, according to the order in which they stood. And debts which assumed the form of a judgment against the executor or administrator were thereby entitled to a priority of payment over all other debts of the same class. And where there were several judgments for debts
It is not asserted that judgment had been obtained upon the bond, which is the subject in controversy in this appeal. Nor is there any proof that the executors had assented to and recognized it as a debt due by the estate. The evidence is, that at the time of the final accounting, the respondent claimed to have it allowed as a debt due to them, and the executors thereupon disputed it, and denied that the estate was in any manner liable therefor. From that moment, I think, the surrogate’s power over it, in the proceeding then pending before him, ceased; and he had no authority to take cognizance of the claim, or to make any decree for its payment, until its validity should be established in another forum.
I am of opinion, that so much of the surrogate’s decree as directs the payment of the sum mentioned in the bond, with the interest, and adjudges it to be a debt due from the estate, should be reversed, with the costs of this appeal to the appellants.
Morse, J. concurred in the opinion as to the first point, and expressed no opinion as to the second.
McCoun, J. dissented.
Decree reversed, with costs.
Reported in 2 Barb. S. C. Rep. 94; and in 3 Comst. Rep. 93.
See also, on this point, the opinion of Justice Harris in Magee v. Vedder, (6 Barb. S. C. Rep. 352.)