In re Bolton's Estate — 24 N.Y.S. 799

Majority

p. 799

In re BOLTON’S ESTATE.

(Supreme Court, General Term, Second Department.

July 28, 1893.)

Headnote

1. Sale by Execotobs—Validity—Adequacy of Price.

Deceased had rented to her sons and another certain premises, on which was a bleaching establishment, which went with the land. A large part of the machinery having been destroyed by fire, the lessees replaced it themselves. Four years later, the sons, as executors, sold the part of. the machinery belonging to the estate at public sale for $600, though two years before, in condemnation proceedings by the city, it 'had been appraised at $50,000. It was mainly bought by the other member of the partnership, and it was afterwards used by him and the executors, as partners, on other premises. There were a number of people at the sale, and there was competition. Helé, that a finding that the sale was fair, and the price reasonable, would not be disturbed.

2. Executors—Settlement of Accounts—Debits.

On the settlement of accounts of a decedent, the executors should not be charged with the amount of a deficiency judgment recovered by decedent on foreclosure of a mortgage which was given by her husband merely for the purpose of protecting his property against creditors.

Appeal from surrogate’s court, Westchester county.

Petition for the judicial settlement of the account of Henry B. Bolton and Thomas Bolton, as executors of Ann Bolton, deceased. From a decree settling the account; Mary A. Littlewood and Sarah L. Myers, devisees and legatees under the will of said deceased, appeal.

Affirmed.

The sale of certain machinery by the executors was attacked as unfair, and as being made for an inadequate price, and it was shown that two years before, in a proceeding by the city to acquire title to the land on which the ma

p. 800

chinery was situated, the executors had shown that , all the machinery, including that belonging to the estate, and that erected by the lessees after the destruction o£ part of the machinery by fire, was worth $90,000, while that belonging to the estate alone was worth $50,000. At the time of the sale by the executors the land belonged to the city, and the purchaser of the machinery was required to move the same immediately.

Argued before BAENAED, P. J., and DYKMAN and PEATT, JJ.

James E. Marvin, for contestants and appellants, Sarah L. Myers and another.

A. Oldrin Salter, (Alexander Thain, of counsel,) for executors and respondents.

Ann Bolton died in 1882. She owned at her decease real estate in BronxvUle, Westchester county, N. Y. The two executors and William N. Birchel, an adopted son, held a lease from the deceased for these premises for 10 years from March 1, 1880, at a yearly rent of $4,500. On these premises the lessees had carried on a bleaching business. There was machinery on the premises which went with the land. The city of New York took the land for public uses in 1889. In 1887 a large part of the machinery was destroyed by fire, and the lessees replaced this machinery on their own account. The executors sold the machinery of the estate at public auction in August, 1891, for $592.82. It was a serious question on the trial whether this sale was fair. The property was mainly bought at this sale by the adopted son of deceased, William N. Birchel, and it was used afterwards with the firm machinery proper, in new premises at West Fordam, by the executors and Birchel, as partners. The executors, before the commissioner, had proven the value of the entire machinery proper at upwards of $90,000. At the value put on the machinery, and separating the new from the old, the estate machinery was worth upwards of $50,000. On the other hand, the old machinery had to be sold separate. It was sold at public auction, where there were many people, and there was competition shown on the sale. The value before the commissioner was of an entire equipment of a business. The detached machinery would of necessity be so much reduced in value as to call for a very large loss. The surrogate has found the sale to have been fair, and, under the proof, that there was no evidence that it was of greater value than was paid for it. There is nothing upon which an appellate court can say the finding is erroneous. Secondhand machinery, which has been through a fire, and is only made useful by additions which could not be sold with it, is of not much use, except in the same business, and to those who own the new part which gives any value to it. The money paid Mrs. Legett, J. L. Mills, and J. W. Colwell was properly allowed. They were paid in the lifetime of testatrix, at her request, by the firm. The rent of the machinery after the land was taken was properly disallowed. It was, probably, property of the city of New York. The heirs seem to have got an award for it, and then claimed the machinery. It was only by an

p. 801

agreement with the city that the estate got the machinery, and that was just before the sale of it by the executors. The rents of the coal yard were properly allowed. This yard was rented to the bleaching firm, and, at the request of deceased, the rents from it were not collected by the firm. She should pay the rents not collected at her request. The mortgage given by Thomas Bolton, the elder, to Birchel, and by him assigned to Ann Bolton, was given merely to protect the title to the land as against creditors of Thomas Bolton. The deficiency on the foreclosure by Ann Bolton against her husband’s executors is not a debt which the executors of Ann Bolton either could or were bound to attempt to collect. The executors of Ann Bolton cannot be made chargeable with the legacy of E. Brooks to Thomas Bolton, Sr. The Bolton estate had been settled, and the items had no proper place in this estate. The account between the firm, who acted as agents of Mrs. Bolton in her lifetime, was good evidence as against the deceased, when examined and settled by her, without other voucher. The decree of the surrogate should therefore be affirmed, with costs. All concur.