Woodruff v. Young

New York Supreme Court

Woodruff v. Young

38 N.Y. Sup. Ct. 420

DecidedJanuary 15, 1884

StatusPublished

This text of 38 N.Y. Sup. Ct. 420 (Woodruff v. Young) 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

Woodruff v. Young, 38 N.Y. Sup. Ct. 420 (N.Y. Super. Ct. 1884).

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Opinion

Smith, P. J.:

The order of the surrogate evidently assumes the validity and binding force of the alleged settlement made between the parties to this appeal in 1868, wherein the Gibbs and Lake mortgages were transferred by the executrix to Mrs. Woodruff towards her share of the estate, as then ascertained and settled, and the remainder was paid to her in money. Upon no other assumption has Mrs. Wood-ruff any interest in those specific securities, her right, independently [421]*421of that settlement, being simply to share with the other legatees in the entire estate, of which those securities were a part. But in respect to the mortgages named, the defendant, if liable at all, is liable not as executrix, but as the agent and trustee of the plaintiff. The surrogate has not jurisdiction to call the defendant to account as such agent and trustee. The remark made in the case of Bonfanti v. Deguerre (3 Bradf., 131), cited by the respondent’s counsel, that the court will not regard the discharge of an executor out of court, is inapplicable to the present case, inasmuch as the settlement between the executor and the legatee is here assumed to be valid, and upon that ground alone is the defendant held liable to account for the particular securities referred to. The liability, if any exists in respect to those securities or their proceeds, can only be enforced in a court of general jurisdiction.

The order appealed from should be reversed, with ten dollars ■costs and disbursements.

Hardin and Barrer, JJ., concurred

So ordered.

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Smith, P. J.:

The order of the surrogate evidently assumes the validity and binding force of the alleged settlement made between the parties to this appeal in 1868, wherein the Gibbs and Lake mortgages were transferred by the executrix to Mrs. Woodruff towards her share of the estate, as then ascertained and settled, and the remainder was paid to her in money. Upon no other assumption has Mrs. Wood-ruff any interest in those specific securities, her right, independently [421]*421of that settlement, being simply to share with the other legatees in the entire estate, of which those securities were a part. But in respect to the mortgages named, the defendant, if liable at all, is liable not as executrix, but as the agent and trustee of the plaintiff. The surrogate has not jurisdiction to call the defendant to account as such agent and trustee. The remark made in the case of Bonfanti v. Deguerre (3 Bradf., 131), cited by the respondent’s counsel, that the court will not regard the discharge of an executor out of court, is inapplicable to the present case, inasmuch as the settlement between the executor and the legatee is here assumed to be valid, and upon that ground alone is the defendant held liable to account for the particular securities referred to. The liability, if any exists in respect to those securities or their proceeds, can only be enforced in a court of general jurisdiction.

The order appealed from should be reversed, with ten dollars ■costs and disbursements.

Hardin and Barrer, JJ., concurred

So ordered.

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Bluebook (online)

38 N.Y. Sup. Ct. 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woodruff-v-young-nysupct-1884.