Wood v. Byington

2 Barb. Ch. 387 | New York Court of Chancery | 1847

The Chancellor.

The first question for consideration, on this appeal, is as to the effect of the decree in chancery, of May, 1843, as evidence of the indebtedness of the intestate, as against the heirs and other persons interested in his real estate. The counsel for the respondent is wrong in supposing that the 13th section of the title of the revised statutes, relative to the sale of real estate of a testator or intestate, (2 R. >S. 102,) is applicable to this case; so as to make the decree of the vice chancellor conclusive evidence of the indebtedness of the decedent, as against the persons interested in his real estate, upon a proceeding before the surrogate for the sale of such real estate to pay his debts. That section is in terms limited to judgments recovered against executors or administrators in courts of law. The decree, however, was conclusive evidence of the indebtedness, as against the administrators, on the hearing upon the preliminary order, requiring them to show cause why they should not be ordered to mortgage, lease, or sell the real estate for the payment of the debts. None of the objections made by them, therefore, upon the hearing on that preliminary order for the administrators to show cause, were well taken. For, ny the decree in the chancery suit, they were estopped from alleging that the debt" was not due at the time of the decree: against them, or that the respondent’s claim was- barred by the statute Of limitations Before the chancery suit was commenced.

And, against the heirs and' other persons interested in the; real estate of the intestate, the enrolled’ decree, even-if it. was notp'rima facie evidence of the indebtedness, was properly received in evidence By the surrogate. For the decretal" order of October,' 1833) made in the lifetime of the- intestate, was conclusive-evidence' against his heirs, as well as against his personal representatives, not only of the existence of the partnership but also of the right of the complainant to call him to account; and that such right was not barred By lapse of time, or otherwise, at the time that decretal order was made. It likewise settled the principles uponwhich the account was-to be. taken between the parties. So that if the present proceedings had been instituted previous to the revival of that suit against the administrators, the surrogate, in ascertaining the indebtedness Of the intestate; would have been bound to take the- áccount between the parties upon the basis of the decretal order of Oc,tober, 1833! For,, although the suit abated by the death of the defendant, the- rights established by that decretal order were not lost or impaired by such abatement.

The proviso fo the act of the 18th- of April, 1843; to amend the act concerning the proof of wills, &c. (Laws of 1843, p. 229)) and which became a law On the eighth of May, in the same year; declares that a judgment or decree, against an executor Or administrator, obtained upon a trial or hearing upon the merits, shall be prima facie evidence of the' debt before the surrogate. It- will be seen that this act went into operation six days subsequent" to the final decree of the vice chancellor; against the administrators, and some months after' the decree Upon the exceptions, which finally determined the balance due horn the intestate; to the complainant in the chancery suit, including the interest to the first of May, 1839. And the question is, whether this act of April, 1843, is retroactive in its operation; so as to make a decree which had previously been obtained against , the administrators, prima facie evidence of the existence of the debt as against the; heirs and- others interested in the lands, who have had no opportunity to contest the suit.: and-who; during, the pendency thereof,, had no interest in the. result. A statute so materially affecting the rights of third persons, who were, mere strangers to the suit,, ought to be construed strictly.. Indeed, it is a- matter- of doubt whether, the. legislature- can rightfully declare that the result of a. litigated suit against one- person, shall be evidence against another, to. affect rights of the latter- which, had accrued, previous to the; passage of the- statute establishing such a rule, of evidence. I therefore conclude, in this case,, that the decree against the. administrators, before the act of April, 1843 took effect as a law., was not even, prima; facie, evidence of the. amount of the debt,, as against those.who were-interested in the-real estate, of the decedent.

Rejecting the- decree,, however, even as prima facie evidence of the state of accounts between the complainant in that suit, and T. M. Wood, and having reference to- the decretal order of October, 1833, merely as establishing the right to an- account, and the principles upon which that account was to be- taken between the parties, I think there was sufficient evidence ber fore the surrogate, to show that.the.balance.due to the respon-r dent, was as much as was finally allowed in the chancery suit; including the interest as it was directed to be computed by the decretal order of 1833.

The surrogate erred, however, in including the costs of the chancery suit, and the interest upon, those costs, as a part of the debt due to Byington; for the-payment of. which the administrator was to be directed to- sell real estate. At the time of the death of T. M. Wood no decree- had been made establishing the right of the complainant Byington to costs.. The act of April, 1843, does not charge the real estate with- the. costs, of the suit in which the judgment or decree against the. personal representatives is obtained; but merely makes, the judgment or decree presumptive evidence of the existence and the amount of the debt due from the testator;. for the purposes of the application to the surrogate for an order of sale. It may be perfectly equitable and just that the costs of the litigation with the executor or administrator, and also those incurred in the lifetime of the decedent, should be charged on the real estate; where they have been awarded against his personal representatives ; to be paid out of the estate in their hands, But the statute has not authorized the surrogate to direct the sale of real estate to pay costs, which had not been awarded to the creditor, against the decedent, at the time of his death. For these reasons, the sum of $926,60, being the amount of the costs and the interest thereon from the time of taxation, which the surrogate erroneously included as a part of the debt due from the estate on the 24th of September, 1845, must be deducted ; and the order appealed from must be so modified as to declare that a balance of $7,047,04, only was due, at the last mentioned date.

The surrogate was right in refusing to permit parol testimony to be given as to the particular evidence upon which the master based his decision as to certain items of the account. If these appellants wished to show what testimony was given before the master, they should have called for all the evidencebefore him; as the same was taken down and certified to the court, upon the hearing of the exceptions. And thé testimony of the administrator was properly rejected; because it appeared that he was interested in resisting the application—he having guarantied the payment of the bond and mortgage upon the premises which he had assigned.

The neglect to report the debt to the administrator, is not a bar to the proceedings against the lands of the decedent, and the subsequent decree in the chancery suit was conclusive evidence that the complainant’s demand was not barred as against the administrators. Neither does there appear to have been any irregularity in the taking of the testimony.

The order appealed from must, therefore, be modified as to the amount, in the manner before suggested; and in all other respects it is to be affirmed. Neither party is to have costs as against the other, upon this appeal. The decree is to be enter-* ed nunc pro tunc, as of the time when the answer to the petition of appeal was filed, and the proceedings are to be remitted to the surrogate of the county of Onondaga.