Parker v. Lythgoe

New York Supreme Court

Parker v. Lythgoe

14 N.Y.S. 528, 38 N.Y. St. Rep. 887, 60 Hun 578, 1891 N.Y. Misc. LEXIS 2383

DecidedMay 15, 1891

StatusPublished

This text of 14 N.Y.S. 528 (Parker v. Lythgoe) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Parker v. Lythgoe, 14 N.Y.S. 528, 38 N.Y. St. Rep. 887, 60 Hun 578, 1891 N.Y. Misc. LEXIS 2383 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Per Curiam.

Both the judgment and the addition made to it after its recovery have been vacated, and the authority under which the writ of assist[529]*529anee was issued has thereby been .vacated. But the court is not on that account required to award restitution to the plaintiffs. Whether it shall be ordered or not has been made discretionary in the court. Code Civil Proc. §§ 1005, 1292,1323. And the object of rendering it dependent on discretion was to control its exercise by circumstances indicating the justice or propriety of it. The effect of executing the writ, in this instance, has been to permit the devisee of an undivided third of the real estate to collect the rents of the tenants in, possession of two parcels of not very productive or valuable real estate, for the benefit of himself and three other persons who have been found by the court, as the result of a trial, to be heirs of the testator. Another claimant may be proven to be a devisee of a third of the property, but that appears to be by no means certain. If she shall be, then a proportionate part of these rents will be payable to her. But from the. ineffectual efforts which were heretofore made to discover whether that person is in fact living, and from the statements made in the deposition of the individual claiming to be that person, there is great room for doubting whether she will establish her right to any part of'these rents. The plaintiffs, who are the executors, are aged men, of doubtful responsibility, and the objects for which they were empowered by the will to collect the rents have been satisfied. They were given no right of possession or control, for any other Or different end; and as their authority has been exhausted, and there will be danger that the rents hereafter accruing will be-lost, if they are permitted to be received by them, there is a striking impropriety in the way of restoring them to the position in which they could continue to collect these rents. Indeed, it may well be doubted whether the court could allow that to be done, since their power of collection under the will has ceased to exist. The devisee of one-third of the property is acting for himself and the heirs of the testator, and may consistently be intrusted with these rents on his own and their account. There will be much less danger of the rents being diverted from the persons ultimately entitled to their probable enjoyment by allowing their collection by this devisee; and, in this state of the facts, it would not be a discreet or just exercise of this discretionary power Of restitution to subject the property to the further control of these executors. The motion for restitution should, for these reasons, be denied, and an order should be made directing the devisee to deposit the rents over and above necessary expenditures for taxes, repairs, and insurance, and commissions for collection, with the chamberlain, subject to further order of this court.

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Per Curiam.

Both the judgment and the addition made to it after its recovery have been vacated, and the authority under which the writ of assist[529]*529anee was issued has thereby been .vacated. But the court is not on that account required to award restitution to the plaintiffs. Whether it shall be ordered or not has been made discretionary in the court. Code Civil Proc. §§ 1005, 1292,1323. And the object of rendering it dependent on discretion was to control its exercise by circumstances indicating the justice or propriety of it. The effect of executing the writ, in this instance, has been to permit the devisee of an undivided third of the real estate to collect the rents of the tenants in, possession of two parcels of not very productive or valuable real estate, for the benefit of himself and three other persons who have been found by the court, as the result of a trial, to be heirs of the testator. Another claimant may be proven to be a devisee of a third of the property, but that appears to be by no means certain. If she shall be, then a proportionate part of these rents will be payable to her. But from the. ineffectual efforts which were heretofore made to discover whether that person is in fact living, and from the statements made in the deposition of the individual claiming to be that person, there is great room for doubting whether she will establish her right to any part of'these rents. The plaintiffs, who are the executors, are aged men, of doubtful responsibility, and the objects for which they were empowered by the will to collect the rents have been satisfied. They were given no right of possession or control, for any other Or different end; and as their authority has been exhausted, and there will be danger that the rents hereafter accruing will be-lost, if they are permitted to be received by them, there is a striking impropriety in the way of restoring them to the position in which they could continue to collect these rents. Indeed, it may well be doubted whether the court could allow that to be done, since their power of collection under the will has ceased to exist. The devisee of one-third of the property is acting for himself and the heirs of the testator, and may consistently be intrusted with these rents on his own and their account. There will be much less danger of the rents being diverted from the persons ultimately entitled to their probable enjoyment by allowing their collection by this devisee; and, in this state of the facts, it would not be a discreet or just exercise of this discretionary power Of restitution to subject the property to the further control of these executors. The motion for restitution should, for these reasons, be denied, and an order should be made directing the devisee to deposit the rents over and above necessary expenditures for taxes, repairs, and insurance, and commissions for collection, with the chamberlain, subject to further order of this court.

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Bluebook (online)

14 N.Y.S. 528, 38 N.Y. St. Rep. 887, 60 Hun 578, 1891 N.Y. Misc. LEXIS 2383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-lythgoe-nysupct-1891.