In re Thompson — 5 Dem. Sur. 393

Majority

p. 393

New York County.

Hon. D. G. ROLLINS, Surrogate.

April, 1887.

Matter of Thompson. In the matter of the estate of George E. Thompson, deceased.

Headnote

It is not essential to the validity of a bequest, that a testator should use the word “give ” or “ bequeath,” or other expression of similar significance.

Testator, who, at the time of the execution of his will, in 1876, was indebted to A., in the sum of $1,650, by that instrument provided that, . out of the proceeds of his estate, A. was “ to receive ” such sum “ being the amount of borrowed money due her,” making reference to a note held by A. therefor. The executor having filed his account, in 1886, for judicial settlement, A. sought to procure payment of an unpaid balance of her claim.—

’Held, that the pro virion, in the will, in favor of A., was a legacy in satisfaction of a debt; and that, by virtue of Code Civ. Pro., § 1819, the statute of limitations had not yet commenced to run against her demand.

It seems, that, even if A. were properly to be regarded as a creditor, and not a legatee, a credit given to the executor, with his assent, before the claim was barred, as for a payment on account thereof, though no . money was actually paid, would, under the provisions of Code Civ. Pro., § 395, stop the running of the statute.

Hearing of exceptions to report of referee to whom

p. 394

were referred the account, and objections thereto, of the executor of decedent’s will, in proceedings for judicial settlement.

A. J. Provost, for executor.

C. H. Jackson, and W. T. B. Milliken, for objectors.

John McCrone, special guardian.

The will of this testator directed his executor to reduce his entire estate to money and to dispose of the proceeds as follows:

“ First. My wife to receive $100 in cash . . .

“ Third. My mother to receive the sum of $1,650, being the amount of borrowed money due her; also interest on the same as may appear by my note held by her for above amount.

“ Fourth. All the balance of my estate, after paying the items hereinbefore named, shall be paid to my wife and my child, the same to be divided equally between them.”

At the date of this will (March 7th, 1876), the testator was in fact indebted to his mother in the sum of $1,650 for borrowed money, and that indebtedness was evidenced by his two promissory notes, one for $1,150, dated September 1st, 1874, and the other for $500, dated January 1st, 1876. He died in August, 1876. His mother died in March of the year following ; the notes in question thereupon came to the hands of her executor, one Keese. At various times, prior to April, 1880, Keese received from this decedent’s executor (Armstrong) sums of money amounting in all to $200, in part satisfaction of the claims of

p. 395

the estate of the testator’s mother against the estate of the testator himself.

Subsequently Keese and Armstrong had with each other certain personal business transactions, upon the settlement of which, on May 31st, 1883, it was ascertained that the former was indebted to the latter in the sum of $13.44. Instead of discharging this indebtedness by the actual payment of money, Keese, with Armstrong’s approval, credited this estate with payment of a like sum in part satisfaction of the aforesaid claim of the testator’s mother. On October 14th, 1886, Armstrong filed in this court an account of -his administration. Certain objections were interposed, and the issues thus raised were submitted to a referee, whose report is before me for confirmation.

The referee finds that the provision in the third clause of the will (supra) is in the nature of a legacy, and that, even if this were not the case, the claim of Sarah Thompson’s estate, as" a creditor of this decedent, would not be barred by the Statute of Limitations. The latter finding involves the notion that the transaction between Armstrong and Keese above referred to must be treated as, in substance, a payment of $13.44 by the former as decedent’s executor to the latter as executor of the decedent’s mother. I think that the referee has reached a correct conclusion.

It is not essential to the validity of his bequests that a testator should use the word “ give ” or the word “ bequeath ” or any other word of similar significance. The very terms employed by this testator, in the article of his will now under consideration,

p. 396

were held in Miars v. Bedgood ( 9 Leigh, 361 ) to constitute a legacy. Parker, J., pronouncing the opinion of our Court of Appeals in Orton v. Orton (3 Keyes, 486), approves the definition of a legacy, which is to be found in Bacon’s Abridgement—.viz.: a “gift or bequest by testament”—and declares that “ the word gift is not limited in its meaning to a gratuity, but has the more extended signification of a thing given, either as a gratuity or as a recompense.”

I think that the provision here in dispute is a legacy in satisfaction of a debt and that, in view of § 1819 of the Code of Civil Procedure, the Statute of Limitations has not as yet begun to run against the representative of the deceased legatee.

Nor is the enforcement of the claim of Sarah Thompson’s estate barred by the Statute of Limitations, even though the claim be regarded not as a legacy but as a debt. In May, 1883, it would have been entirely proper for Armstrong to have satisfied it in whole or in part, whether he had or had not been at that time in possession of funds belonging to the estate; and if he had made payments out of his own pocket he would thereby have entitled himself to reimbursement out of the estate moneys thereafter coming to his hands.

If Keese had actually paid Armstrong the sum of $13.44 and Armstrong had handed back to Keese the identical money on account of the Sarah Thompson claim, it cannot be doubted that the transaction would have taken the claim out of the operation of the Statute of Limitations. And this was in effect what actually took place.

p. 397

Section 395 of the Code of Civil Procedure, which makes an acknowledgment or promise contained in a writing, signed by the party to be charged thereby, the only competent evidence of a new or continuing contract, whereby to defeat the Statute of Limitations, expressly declares that this section does not alter the effect of a payment of principal or interest.

“Payment of a debt,” says the Court of Appeals of Virginia, in Huffmans v. Walker ( 26 Gratt., 314 ), “ is not necessarily a payment of money, but that is payment which the parties contract shall be accepted as payment.”

It was held in Maber v. Maber (L. R., 2 Exch. Cas., 153), that in determining whether a transaction claimed to be a payment has had the effect of taking the case out of the Statute of Limitations, the true test is this: Would the transaction have supported a plea of payment if the creditor had brought an action ? Tried by this test, the present case seems to me a plain one. In its essential features it closely resembles the last one cited. See, also, Hooper v. Stephens (4 Ad. & El., 71); Bodger v. Arch ( 10 H. & G., 333 ); Amos v. Smith ( 1 H. & G., 238 ).

I do not think it necessary to discuss any of the other exceptions to the report of the referee. The report is in all things confirmed.