Rumset, J.:
The plaintiff is the widow of L;onis J. Heintz, who died in the month of March, 1893, leaving a last will and testament by which the appellant John C.-Heintz was made executor. By the will the plaintiff was made the residuary ijegatee.. Louis J. Heintz at the time of His death was the owner otf ten. shares of the capital stock 'of the John Eichler Brewing Courpany, of the par value of $10,000 and of' a much greater actual yalue. By. the 2d clause of. his will, Louis Heintz gave that stock ;to his brother, John 0. Heintz, the appellant,.“ upon the sole and! express condition, however, that my said brother, in consideration j of this bequest, assume and pay any and all .amounts of indebtedness which 1 may owe to any person at the time of my decease. If, hdwever, my said brother shall neglect or refuse to assume and pay stick indebtedness, then and in that event I do hereby give, and bequeath the property referred to in the. second subdivision of my will ” to ¡the residuary legatee..
The plaintiff claims that,, after ¡ the death of her husband, " John C. Heintz declined to accept this legacy and did not pay the debts of the testator, as required by the will, but transferred the stock to her as residuary legatee. S.he tendered the stock to the John Eichler Brewing Company, and demandedj that a new certificate be made in her name'and delivered to her. The. officials of the brewing company refused to comply with tliié demand, and she brought this action to compel such a, compliance. The' learned justice at the Special Term found that the defendant John C. Heintz did not assume to pay the indebtedness ojf Louis J. Heintz; that' he neglected and refused to do so; that thereby, under the provisions of the [97]*97will of Louis J. Heintz, the dtock became the property of the plaintiff, and that, as between the plaintiff and John C. Heintz, she is the owner of the shares in question, and is entitled to a new certificate of stock. Whether this- conclusion is correct is the single question presented in this case.
The bequest of this stock to John C. Heintz was not, of course, effectual, unless it was accepted by him. He could not be bound to perform the conditions annexed to this gift unless he Saw fit to do so ; and he was at liberty to decline the legacy — and thereby not become subject to the conditions — or to accept it, in which case he was bound to pay every debt that Louis J. Heintz owed at the time of his decease. If he accepted it, he became subject to a personal liability to pay these debts. If, however, he declined it, no such liability existed; he lost his right to the stock and it vested in the plaintiff, as any other property vested in her, under the residuary clause, subject to the rights of creditors. (Schouler’s Ex. & Adm. § 489.) The only question, therefore, is, was the evidence such that the learned justice at the Special Term was justified in finding, as á fact, that John 0. Heintz had declined -to accept this legacy.
The plaintiff testified that a few days after the funeral of her husband, while she was at her mother’s house, John C. Heintz came to her and said that he came to give her the shares of stock; that he did not want them; that he did not think he ought to have them, and that Mrs. Eichler would pay the debts. Shortly after-wards, she says, John C. Heintz came to the house of her late husband, where she then was, and took away the papers belonging to her husband, among which was the certificate of this stock, with other certificates of stock that were in the safe, but that a few days afterward this certificate and all the other certificates were returned to her by Heintz, and that she kept them without any question until after her marriage with Haebler, when she sent the certificate to the John Eichler Brewing Company, as above stated, with a request that a new certificate be made out in her name and delivered to her..
It appears that, although the John Eichler Brewing Company was a prosperous concern, and the profits of the business were large, no dividends were declared ; but it seems from the testimony that to each of the four shareholders was allotted a certain sum of money [98]*98in proportion to the amount of stock held by each, and that from the time of the death of her husband until shortly before her marriage to Haebler the plaintiff received for her own use from the company the amount allotted to the 10 shares held by her husband. The stock of this corporation was divided into 600 shares of $1,000 each, of which 560 were held by Mrs. Eichler. The plaintiff- testifies that after the death of her husband, Mrs. Eichler made inquiries of her as to how her husband’s property had been left, and upon being told that the 10 shares of stock had been- left to John C. Heintz upon condition that he pay the debts, declared that, that was not right; that she would'not have it so, but that she would pay the debts, and that John C. Heintz must deliver the stock to the plaintiff. It was after this declaration of Mrs. Eichler’s that John O. Heintz in fact did deliver the certificate of stock to the plaintiff, as she says, in pureuance of that arrangement.
It appears that John C. Heintz paid certain debts of Louis J. Heintz to the amount of $1,320, and that this amount was repaid to him. by Mrs. Eichler. John C. Hitintz himself held a note made by Louis Heintz amounting to $2,5001 The plaintiff testifies that John Heintz told her that Mrs. Eichler had agreed to give him the $2,500 which was due upon this note. It appears that in the month of April, after, the death of Louis Heintz, Mrs. Eichler did in fact give to John C. Heintz a check for $2,500. The plaintiff says that after-wards John Heintz told her that Mrs. Eichler had paid him that money. Heintz says that while he did get from Mrs. Eichler a check for $2,500, yet it was not given to him in payment of his $2,500 note made by Louis Heintz, but was in fact a wedding present to him. In regard to that matter, .neither party was corroborated. But it appears that when it became known that the plaintiff was to marry Haebler, Mrs. Eichler and the plaintiff had words, and that Mrs. Eichler was no longer friendly -to her.- Mrs. Eichler was still living. She knew whether she had given that' money to John O. Heintz as a wedding present or in payment of the note of Louis Heintz, which he held. If his story, therefore, was correct, he had the means of corroborating it out of the mouth of a friendly witness whom he did not see fit to call. For that reason we have a right to assume that Mrs. Eichler would not have corroborated him had she been called, and the learned justice at Special Term, in view of that [99]*99fact, was justified in believing that his declarations to the plaintiff in regard to that matter expressed the truth, and in rejecting his testimony upon that point given at the trial.
It appears also that Louis J. Heintz had given to one Ott a note for $4,000. Ott was the stepfather of Louis and John C. Heintz. This note of $4,000 was not in fact paid by anybody. All that appears is that John C. Heintz told Ott that the shares of stock were to go to him upon the payment of the debts, and that he wanted to make Ott good for that note of $4,000, and that Ott delivered to him the note, but that he never paid anything upon it and no. demand was ever made for payment.
It appears further that John C. Heintz collected from the assets of Louis J. Heintz a little over $3,844. Out of this sum he paid for funeral expenses $2,200, and $30 for the services of a clergyman at the funeral, and he returned $1,133 to the plaintiff. The remainder, being something over $480, was used, as John C.
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Rumset, J.:
The plaintiff is the widow of L;onis J. Heintz, who died in the month of March, 1893, leaving a last will and testament by which the appellant John C.-Heintz was made executor. By the will the plaintiff was made the residuary ijegatee.. Louis J. Heintz at the time of His death was the owner otf ten. shares of the capital stock 'of the John Eichler Brewing Courpany, of the par value of $10,000 and of' a much greater actual yalue. By. the 2d clause of. his will, Louis Heintz gave that stock ;to his brother, John 0. Heintz, the appellant,.“ upon the sole and! express condition, however, that my said brother, in consideration j of this bequest, assume and pay any and all .amounts of indebtedness which 1 may owe to any person at the time of my decease. If, hdwever, my said brother shall neglect or refuse to assume and pay stick indebtedness, then and in that event I do hereby give, and bequeath the property referred to in the. second subdivision of my will ” to ¡the residuary legatee..
The plaintiff claims that,, after ¡ the death of her husband, " John C. Heintz declined to accept this legacy and did not pay the debts of the testator, as required by the will, but transferred the stock to her as residuary legatee. S.he tendered the stock to the John Eichler Brewing Company, and demandedj that a new certificate be made in her name'and delivered to her. The. officials of the brewing company refused to comply with tliié demand, and she brought this action to compel such a, compliance. The' learned justice at the Special Term found that the defendant John C. Heintz did not assume to pay the indebtedness ojf Louis J. Heintz; that' he neglected and refused to do so; that thereby, under the provisions of the [97]*97will of Louis J. Heintz, the dtock became the property of the plaintiff, and that, as between the plaintiff and John C. Heintz, she is the owner of the shares in question, and is entitled to a new certificate of stock. Whether this- conclusion is correct is the single question presented in this case.
The bequest of this stock to John C. Heintz was not, of course, effectual, unless it was accepted by him. He could not be bound to perform the conditions annexed to this gift unless he Saw fit to do so ; and he was at liberty to decline the legacy — and thereby not become subject to the conditions — or to accept it, in which case he was bound to pay every debt that Louis J. Heintz owed at the time of his decease. If he accepted it, he became subject to a personal liability to pay these debts. If, however, he declined it, no such liability existed; he lost his right to the stock and it vested in the plaintiff, as any other property vested in her, under the residuary clause, subject to the rights of creditors. (Schouler’s Ex. & Adm. § 489.) The only question, therefore, is, was the evidence such that the learned justice at the Special Term was justified in finding, as á fact, that John 0. Heintz had declined -to accept this legacy.
The plaintiff testified that a few days after the funeral of her husband, while she was at her mother’s house, John C. Heintz came to her and said that he came to give her the shares of stock; that he did not want them; that he did not think he ought to have them, and that Mrs. Eichler would pay the debts. Shortly after-wards, she says, John C. Heintz came to the house of her late husband, where she then was, and took away the papers belonging to her husband, among which was the certificate of this stock, with other certificates of stock that were in the safe, but that a few days afterward this certificate and all the other certificates were returned to her by Heintz, and that she kept them without any question until after her marriage with Haebler, when she sent the certificate to the John Eichler Brewing Company, as above stated, with a request that a new certificate be made out in her name and delivered to her..
It appears that, although the John Eichler Brewing Company was a prosperous concern, and the profits of the business were large, no dividends were declared ; but it seems from the testimony that to each of the four shareholders was allotted a certain sum of money [98]*98in proportion to the amount of stock held by each, and that from the time of the death of her husband until shortly before her marriage to Haebler the plaintiff received for her own use from the company the amount allotted to the 10 shares held by her husband. The stock of this corporation was divided into 600 shares of $1,000 each, of which 560 were held by Mrs. Eichler. The plaintiff- testifies that after the death of her husband, Mrs. Eichler made inquiries of her as to how her husband’s property had been left, and upon being told that the 10 shares of stock had been- left to John C. Heintz upon condition that he pay the debts, declared that, that was not right; that she would'not have it so, but that she would pay the debts, and that John C. Heintz must deliver the stock to the plaintiff. It was after this declaration of Mrs. Eichler’s that John O. Heintz in fact did deliver the certificate of stock to the plaintiff, as she says, in pureuance of that arrangement.
It appears that John C. Heintz paid certain debts of Louis J. Heintz to the amount of $1,320, and that this amount was repaid to him. by Mrs. Eichler. John C. Hitintz himself held a note made by Louis Heintz amounting to $2,5001 The plaintiff testifies that John Heintz told her that Mrs. Eichler had agreed to give him the $2,500 which was due upon this note. It appears that in the month of April, after, the death of Louis Heintz, Mrs. Eichler did in fact give to John C. Heintz a check for $2,500. The plaintiff says that after-wards John Heintz told her that Mrs. Eichler had paid him that money. Heintz says that while he did get from Mrs. Eichler a check for $2,500, yet it was not given to him in payment of his $2,500 note made by Louis Heintz, but was in fact a wedding present to him. In regard to that matter, .neither party was corroborated. But it appears that when it became known that the plaintiff was to marry Haebler, Mrs. Eichler and the plaintiff had words, and that Mrs. Eichler was no longer friendly -to her.- Mrs. Eichler was still living. She knew whether she had given that' money to John O. Heintz as a wedding present or in payment of the note of Louis Heintz, which he held. If his story, therefore, was correct, he had the means of corroborating it out of the mouth of a friendly witness whom he did not see fit to call. For that reason we have a right to assume that Mrs. Eichler would not have corroborated him had she been called, and the learned justice at Special Term, in view of that [99]*99fact, was justified in believing that his declarations to the plaintiff in regard to that matter expressed the truth, and in rejecting his testimony upon that point given at the trial.
It appears also that Louis J. Heintz had given to one Ott a note for $4,000. Ott was the stepfather of Louis and John C. Heintz. This note of $4,000 was not in fact paid by anybody. All that appears is that John C. Heintz told Ott that the shares of stock were to go to him upon the payment of the debts, and that he wanted to make Ott good for that note of $4,000, and that Ott delivered to him the note, but that he never paid anything upon it and no. demand was ever made for payment.
It appears further that John C. Heintz collected from the assets of Louis J. Heintz a little over $3,844. Out of this sum he paid for funeral expenses $2,200, and $30 for the services of a clergyman at the funeral, and he returned $1,133 to the plaintiff. The remainder, being something over $480, was used, as John C. Heintz says, to pay certain debts. He claims that these were debts of the plaintiff. She says, however, that they were not hers, but that they were the debts of her ' husband; and an examination of the case leads us to believe that in this statement she was correct, and that John C. Heintz actually used $480 of the .assets of the estate to pay the debts of Louis Heintz, whjch, if he had accepted this legacy, should have been paid out of his own pocket.
The plaintiff also testifies that after it became known that she was to marry Haebler, John C. Heintz came to her and proposed that he would give her $10,000 for the certificate of stock, but that she declined the proposition. In that evidence she is corroborated by other witnesses. She says she had the same conversation subsequently, at a timé when Mrs. Eichler was present. John C. Heintz admits that he offered to give the plaintiff $10,000, but that it was not for the stock; that he proposed making her a present of $10,000, and that such proposition had no reference to the ownership of the stock-at all. In regard to this matter also, John C. is not corroborated by anybody, although he might have been corroborated to some extent by Mrs. Eichler if his version is correct. We are inclined to think that the testimony of the plaintiff is the correct version of what was said at that time; and, if that be so, it was sufficient to warrant the learned justice, below in concluding [100]*100that when it became known that the plaintiff was to marry Haebler — who was a rival brewer — Heintz was desirous, of becoming the owner of the ten shares of stock and promised to pay her $10,000 for them. Such a proposition, if made, could only have been upon the theory that the plaintiff was the owner of the stock, and it necessarily establishes the fact that the plaintiff’s contention in that regard was true. .
The learned trial justice, therefore, might have found that after the death of Louis J. Heintz, John C. Heintz advised > the plaintiff that he did not propose to accept this stock and that she should have it; that this was done at the request of Mrs. Eichler, who paid all the debts of Louis Heintz that were paid, except the sum of $480 which John C. Heintz paid out of the assets of the estate ; that as a matter of fact John C. Heintz: personally never paid one dollar of the indebtedness of Louis Heintz, hut that he declined to accept the conditions upon which alone the stock was given to him; and that in the performance of his duty as executor he transferred to the plaintiff that stock, the title of which had vested in her because he had declined to accept it. These being the facts in the case, the decision of the .learned justice was correct. Ho rights of creditors can interfere. It appears that, substantially, all the debts have been disposed of except a claim of $15,000, which was rejected. If that claim shall be established, whether the executor is liable for it, or whether the plaintiff, as residuary legatee, should be compelled to pay it out of the assets which she has received, would be a matter to be determined hereafter. In any event, it is- sufficient to say that the requirements of the judgment that this plaintiff, as a condition of receiving her certificate of stock, should give a bond to-save the executor harmless from the amount of this debt, if it shall be established, is all that he could ask, and, indeed, more than he was entitled to. We have examined the exceptions to the rulings upon evidence, and find nothing in them to warrant a reversal..
The judgment, therefore, is correct and should be affirmed, witli costs. "
Van Brunt, P. J., Barrett,¡ O’Brien and McLaughlin, JJ.„ concurred.
Judgment-affirmed, with costs.