Howland v. Heckscher

3 Sand. Ch. 519, 1846 N.Y. LEXIS 386, 1846 N.Y. Misc. LEXIS 33

• Court: New York Court of Chancery
• Decided: May 20, 1846
• Status: Published

Opinion

The Assistant Vice-Chancellor.

The order enabling Mrs. Joanna Hone’s administrator to make the election granted to her in the decree of the vice-chancellor, avoiding the trusts of her husband’s will, was made in a suit to which the defendants were parties. If it were irregular or erroneous, they should have proceeded to correct it in that suit. It cannot be questioned collaterally. The election to take her dower, instead of the legacy and other provisions in lieu of it, must be deemed valid ; and it has relation to the date of the original decree, May 15th, 1837. The payments made to Mrs. Hone under the will prior to that date, are legalized by the decree, and are not to be disturbed.

For the same reason, the complainants are not to go back of the era of that decree, in correcting the credits which they have made to Isaac S. Hone, for his dividends payable from the estate. The decree expressly confirmed their distribution of the income, and the evidence shows that this direction was carried out in their accounting before the master.

That accounting is not however to prevent the proper adjustment of the credits made upon their books to Isaac S. Hone, since May 15th, 1837. The decree avoiding the trusts, has ever since been in force, and there is nothing m the case which warranted the trustees and executors in making payments in conformity to those trusts, after that day. All the payments made since, must be applied and settled in conformity to the rights of all the parties.consequent upon the intestacy then established.

Applying these principles, how much have the complainants received on account of Isaac S. Hone’s debt to John Hone, and how much have they in hand, or should they have retained, belonging to Isaac S. Hone, and which they had a right to apply towards that debt ?

The wide difference between the views of the complainants and those of the assignees, is owing to the death of Mrs. Joanna Hone, and the consequent succession of Isaac S. Hone to a part of her estate, together with the circumstance that at her death, a great part of her property was still in the hands of the complainants, as executors of John Hone.

I have been unable to perceive why these facts should affect the account between the executors and Isaac, or how they can diminish his debt to the estate. When the assignment was executed to Messrs. Heckscher and Aspinwall, Isaac S. Hone, (as was afterwards shown by the decree of May 15, 1837,) was entitled to one-ninth part of his father’s real estate, subject to his mother’s dower, and to one-ninth of two-third parts of his father’s personal estate, after the payment of his valid legacies. The other third of the personal property belonged to Mrs. Hone absolutely. The assignment transferred these interests of Isaac S. Hone, and nothing more, to his co-defendants.

Now the complainants have never had in their hands, belonging to Isaac S. Hone, any more than one-ninth of two-thirds of the personal property. While the widow lived, the other third belonged to her. On her death, it- passed to her executor or administrator. He had a perfect right to demand it from the (Complainants. They could not resist the administrator’s demand, by showing that Isaac was indebted to them in a large sum, and that he would be entitled to receive a like sum from the administrator, as legatee or next of kin of his mother.

In the strongest point of view in which the 'defendants can present it, the case is this. The complainants owe to Mrs. Hone’s administrator, one-third of their testator’s personal property, which third I will assume to be $80,000. "The administrator is bound to pay one-ninth of that sum to Isaac, and I will call that a debt from him to Isaac of $9000. Isaac owes to the complainants, as such executors, $18,000, for example. And upon this it is claimed, that the complainants may retain from the administrator, towards Isaac’s debt, the $9000 which the administrator is to pay the latter; or in other words, they may pay $9000 of their debt to the’ administrator, in Isaac’s debt to them. Thus making an offset of Isaac’s debt to their own creditor, because the latter is Isaac’s debtor.

It seems manifest to me that no such right of set-off exists, either at law or in equity. If, on his mother’s death, Isaac S. Hone had sold his interest in her estate; or, as was stated to be the fact in this case, had assigned it for the benefit of creditors ; such an offset as is attempted here, would not avail the administrator in a suit by his vendee or assignee.

It was urged that Isaac’s debt to his father’s estate, was a component part of his mother’s third of the personalty, and as such came to her administrator. But this is not true in point of law. Mrs. Hone was entitled to a third, not in this or that specific stock, security or debt, in which the personalty happened to be at the testator’s death; but to money. She might accept stock or-securities, but she could neither compel their delivery, or be compelled to take them. Isaac S. Hone was never a debtor to her, or to her administrator, in respect of this debt, either legally or equitably. So far as it was collected, she was entitled to her third of the proceeds; and so from time to time, as collections should be made. But such third, she would receive as and towards her distributive share of the estate of John Hone, and in no sense as a creditor of Isaac S. Hone.

The simple and direct mode of ascertaining how much the complainants ought to credit to Isaac S. Hone, in respect of his father’s personal estate, was this. From the gross amount of the personalty, including Isaac’s debt, deduct the legacies and other specific charges and expenses. The balance is the net distributable personal property, as to which there was an intestacy. One third of this sum belonged to the widow; and one-ninth of the remaining twd-thirds was Isaac’s share, as one of the next of kin. This share the executors were entitled to retain and pass to his credit. It will be perceived that this mode assumes the debt of Isaac to be good and collectible. If his share in the estate had constituted his only means of paying the debt, the gross valuation of the personal property in ascertaining such share, would be diminished accordingly.

I believe there is no question- but that by means of his distributive share, and his assignment to the defendants, the debt to his father’s estate is made good.

As the accounts have not been kept, or stated in the manner I have detailed, the most feasible plan for ascertaining how much is still due to the complainants on this debt, will be to adopt the principles now settled to the existing forms of those accounts.

Thus there must be credited to Isaac S. Hone’s account, his ninth part of two-thirds of the debt itself.

The items of credit to May 15th, 1837, are to stand untouched. The credits subsequent to that time, are.to be adjusted so as to give to him no more than his ninth part of two-thirds of the personal estate distributed, and the like proportion of the income of the real estate until his mother’s death. After her death, he should be credited with one-ninth of the income of the real .estate.

His interest in the personal property not yet distributed, must be ascertained by the, master, and credited towards the debt. In arriving at this interest, the complainants must bring into the account, all ■ payments made by them to the widow after May 15th, 1837, which became forfeited by the election made under ' the order of July 8th, 1839. And as to the doubtful assets, the master will ascertain their value from the best data which the parties .can furnish to him, The value of Isaac S. Hone’s in-

terest in the legacy fund, ought also to be computed by the master. This can be done on the principle of life annuities, with a reasonable allowance for the contingency of the female legatees marrying under the age of twenty-one years.

There is no justice or propriety in the executors requiring these assignees to pay the estate in full, when there is a fund in their own hands, in which the debtor has a vested interest; especially where the extent of that interest is not so contingent but that it may be computed with almost mathematical precision.

Credit will of course be given for the payments made by the assignees.

On the balance being reported by the master, the assignees must pay the same to the complainants. As to costs, each party may retain their own costs out of the respective estates which they represent.

Decree accordingly.