206 A.D. 134 | N.Y. App. Div. | 1923
The defendant was the executor of one Emilie Mendel. By her will she bequeathed unto her executor the sum of $5,000 to hold the same in trust, to invest and keep the same invested, and to apply the income derived therefrom towards the support and maintenance of this plaintiff. The plaintiff is described as one who had lived with the testatrix during his childhood. The moneys were to be so held until such time as the plaintiff should arrive at the age of twenty-five years, when the executor was to pay the principal of said trust fund to the plaintiff. By subdivision XIX of the will it is provided: “I hereby nominate, constitute and appoint Henry M. Flateau, executor of this my last will and testament and hereby revoke any and all other wills made by me; and I authorize my executor to continue the investment now held by me, so far as the trust fund created by paragraph ' II ’ hereof is concerned, and give him power to reinvest the said moneys, shall he deem it advisable, in any similar investment or upon bond and mortgage, covering real property situated in the City of New York or in United States, State or Municipal bonds.” The trust created by “paragraph II” is the trust in behalf of the plaintiff hereinbefore recited.
At the time of her death the testatrix had loaned to one William Simpson the sum of $6,000, for which she held his note. The testatrix died in August, 1911, and the plaintiff became twenty-five years of age in December, 1917, at which time he was entitled to the moneys thus held in trust for him. Upon January 8, 1918, the defendant delivered to plaintiff two promissory notes of $2,000 and $1,100, made by the estate of William Simpson. These notes were renewals of prior notes maturing upon March 10, 1917, and March 16, 1917. William Simpson, during the lifetime of the testatrix and at the time of her death, was engaged in the pawnbroking business and was extensively engaged therein, having succeeded his father, who was also engaged in the same business. The defendant, as executor, collectéd payments upon those notes, until in January, 1918, when the plaintiff became of age, there was
It is the contention of the plaintiff that the word “ executor,” attached to the indorsement, was simply descriptio persones, and that the indorsement was the individual indorsement of the defendant. The notes transferred were not due at the time of the transfer. When they became due, not having been paid, the defendant was given notice of non-payment. The notice of non-payment does not appear in the record, so that it does not appear whether he was notified of its non-payment, as executor, or whether he was notified individually.
The rule of law determining the rights of the parties finds a clear .statement in the case of Bush v. Gilmore (45 App. Div. 89) and is as follows: “A note, commencing 1 For value received we promise to pay/ signed ‘ W. Gilmore, President; D. C. Sharpe, Secretary of the Hobart Agricultural Horse and Cattle Show Association/ and containing no reference in the body thereof to the corporation, is, upon its face, the individual note of the two makers; and they, in an action to enforce their individual liability thereon, are entitled to adduce extrinsic evidence tending to establish that the addition to their signatures was intended as an act of the corporation, and that the note was given and received as such. The plaintiff is entitled to controvert such evidence by affirmative proof of the individual character of the note.” The authorities in support of this proposition are found in the opinion of Mr. Justice Landon, who wrote in the Appellate Division.
While the negligence of the defendant is alleged, there was no proof whatever made upon the trial that the defendant was guilty of negligence in renewing the notes from time to time, as he did, after having reduced the obligation from $6,000 to $3,000 during the existence of the trust. The plaintiff has offered no proof as to the amount of the estate or the nature of the investments, except as far as is indicated by these notes and one other note of a brother of William Simpson which the defendant had cashed. There is no proof whether or not there were other trusts created by the will. There was no fraud or misrepresentation on behalf of the defendant by which the plaintiff was misled. He has accepted these notes in full payment of his legacy upon his own showing, with the collateral promise that the defendant would pay the notes, if the makers did not honor them when due. This collateral promise would
For failure to make proof, therefore, of the cause of action alleged in the complaint, the Trial Term was justified in dismissing the complaint, and the judgment should be affirmed, with costs.
Clarke, P. J., Dowling, Merrell and McAvoy, JJ., concur.
Judgment affirmed, with costs.