Quackenbush v. Quackenbush

49 N.Y. Sup. Ct. 329, 3 N.Y. St. Rep. 755

• Court: New York Supreme Court
• Decided: November 15, 1886
• Status: Published

Opinions

Landon, J.:

The referee held that the statute of limitations barred the plaintiff’s action. This conclusion seems to rest upon the proposition that the defendants, Henry and Sandford Quackenbush, who, with the plaintiff, are the residuary legatees and devisees under the will of Adam Quackenbush, by accepting the devise and bequest to them became personally liable for the payment of the legacy of $200, to their sister Betsey. The legacy was, by the terms of the will, payable one year after the testator’s death, which occurred June, 1866, and therefore the right of action accrued to her against them upon their personal liability in June, 1867, and hence was barred either by the six or ten years’ limitation ; that the lien upon the land devised was controlled by the same limitation. (Loder v. Hatfield, 71 N. Y., 92.)

If, however, it is not true that the residuary devisees became personally liable to pay Betsey her legacy, then the above conclusion does not follow, and the only remedy available to Betsey to recover her legacy was by the due course of administration to enforce its payment out of the personal property of the testator, and that failing or being shown to be unavailing, then to foreclose her lien upon the land. In the latter case, her remedy would not be barred until at least six years after the judicial settlement of the 'administrator’s or executor’s account. (Code Civil Pro., § 1819.)

The legacy to Betsey is not, by the terms of the will, made payable by the residuary legatees or devisees out of the residuary estate; nor is it made payable by them as the condition of the gift to them of such estate; nor is it in any way to proceed from the residuary estate. The residuary estate is carved out of what shall be left “ after payment of my debts and legacies aforesaid.” By accepting the residuary estate the defendants were not confronted with any payment to Betsey charged upon that estate or upon themselves; and therefore could not, by accepting it, be held to have promised payment. But the testator made that legacy a “ lien on all my real and personal estate until paid and satisfied.” The estate that came to the defendants’ hands came with the lien upon it. That lien confers the right upon Betsey to have the aid of a court of equity to enable her to sell the estate if necessary for her payment. This action is to foreclose that lien. The lien is not the security for any personal obligation of the defendants, but for the gift of the testator, and is enforceable because no other remedy remains to the legatee to enforce payment of the legacy.

The testator left ample personal property to pay debts and legacies. This personal property was the primary fund for the payment of this legacy. The portion of it necessary to pay this legacy was not bequeathed to the residuary legatees. If they could take it at all they could only rightfully take it as executors in the first instance, and for the purposes of administration.. They declined, although named as executors, to take out letters testamentary, and no administration has ever been had upon the estate. They nevertheless took the persona] property and converted it to their own use. They took it as wrong-doers, not as legatees or executors. As wrong-doers the will did not make them personally liable to Betsey. This did not give Betsey the right to sue them to recover her legacy. It gave her the right to have an administrator appointed, and such administrator would have had the right to recover from them this personal property or its full value. (2 R. S., 81, § 60; Id., 449, § 17; Muir v. Trustees, eta., 3 Barb. Ch., 477; Brown v. Brown, 1 id., 195; Wever v. Marvin, 14 Barb., 376.)

Such proceeding has not been resorted to. We know of no statutory prohibition to a resort to it now. But the statute of limitations (Code Civil Pro., § 392), if such an administrator should now be appointed, would date his appointment within six years from the death of the testator, and his action, if now brought against the residuary legatees to recover the personal property or its value which was of the estate, would be barred by the second six years. (Code Civil Pro., §§ 382, 3343, sub. 10.)

Betsey, therefore, is in this position: Since there has been no judicial settlement, her right of action against .the administrator for her legacy is not barred. The lien of the legacy upon the real estate exists, by the express terms of the will, so long as her light to enforce the payment of the legacy exists. She can enforce that lien against the real estate when her remedy against the personal becomes unavailing. It has become unavailing because the statute of limitations would bar any action to be brought by an administrator, if he should be appointed. She, therefore, has no other remedy to collect her legacy than by foreclosing her lien.

This is an equitable remedy, and if, as we doubt, the statute has begun to run against it, it did not begin to run until the legal remedy, through administration, became unavailing; it did not so become until twelve years after the death of the testator. Her equitable remedy subsists at least for ten years more (Code Civ-il Pro., § 3S8), or, in this case, twenty-two years from the testator’s death.

We think the action is not barred. T>he plaintiff is the assignee of Betsey; he was one of the residuary devisees and legatees; he mortgaged his undivided one-third of the real estate to his brother, the defendant Henry, who subsequently purchased it upon a sale under this mortgage. Henry thus became the owner, subject to the lien in favor of Betsey. We see no reason why she could not subsequently sell this lien to the plaintiff. The defendant W alrath purchased the land after the commencement of the action, and upon indemnity against the lien. He is in no better position than his grantors.

Judgment reversed, reference discharged, new trial granted, costs to abide event.

Bookes, J., concurs for reversal.