Johnson v. Weir

Headnote

1. Administration of Estates—Claims of Creditors—Lien on Realty or: Proceeds Thereof.

Testatrix devised an undivided half Interest in her real estate to an. infant, and the other half to her brother, whom she made executor of her will. Held, that in an action for partition of the real estate, brought by the infant against the brother after her majority, the latter could-not object that a claim of a third party against testatrix’s estate was. not made a lien on the proceeds of the sale, though it had been allowed, by the surrogate.

3. Same—Claims of Executor— Overpayment to Legatee.

The will empowered the executor to use the rents and profits of the-whole real estate for the Infant’s support until she reached the age of 21, and he made certain alleged expenditures In her behalf for board' and other necessities, when he did not at the time have any money in-his hands to which she was entitled. His claim therefor was allowed-by the surrogate’s court. It did not appear that he was related to the infant, or owed any duty to provide her with the alleged necessaries. Held, that the executor was not entitled to have his claim for money-

paid out for the infant’s support adjudged a lien on the proceeds of the sale.

Appeal from special term, Clinton county.

Action for partition by Martha Ann Johnson against Alexander Weir, impleaded with others. From a judgment directing the sale of premises described in the complaint ( 70 N. Y. Supp. 1020 ), and from a judgment confirming the referee’s report after the sale, and directing •the distribution of the proceeds of sale ( 74 N. Y. Supp. 358 ), Weir appeals.

Affirmed.

In 1891 Mary Jane Walsh died, the owner of certain real estate and personal property in Olinton county. She left a will by which she devised one-half of all her real estate to Martha Ann Johnson, the plaintiff in this action, and further provided: “But if the said Martha Ann Johnson <= * * should die before becoming of the age of twenty-one years, then I give and -devise such undivided one-half of said real estate to my brother Thomas Weir.” She devised the other one-half of her real estate to her brother Alexander Weir, the appellant herein, and then further provided: “Except -that I hereby direct that all the rents and income from the whole of such real estate be collected and received by my executor in trust, and paid over by him to and for the support, education, and maintenance of the said .Martha Ann Johnson * * * until she arrives at the age of twenty-one years, and that the possession be given of the undivided one-half to said Martha Ann Johnson, * * * and of the other undivided one-half part to said Alexander Weir. If, however, the said Martha Ann Johnson * * * should die before becoming of the age of twenty-one years, the possession of said one-half thereof shall then be given to said Alexander Weir, and the possession of the other one-half thereof shall then be given to said Thomas.” She gave all her personal property, after the payment of her just debts and funeral expenses, to said Martha Ann Johnson. She named Alexander Weir sole executor of the will, and provided: “I give him power to sell any of said real estate, and safely invest proceeds, and use interest of same for said Martha * * * in same manner as rents are directed to be used.” This will was admitted to probate and letters testamentary issued to the said Alexander Weir on the "25th day of May, 1891. On the 9th day of October, 1899, Alexander Weir rendered to the surrogate’s court an account as such executor. A citation was issued to said Martha Ann Johnson. She was then under 21 years of age, and a special guardian was appointed, and appeared for her in the proceeding. By the decree then entered the said executor was charged with the inventory, and increase thereon, and other property not inventoried, amounting to $1,595; and he was credited with decrease on inventory, costs .and expenses of administration, funeral expenses, commissions, debts, and other credits allowed, but not specified in the decree, amounting to $1,471; and the decree finds that there is a balance in the hands of the executor of $124, consisting of uninventoried specific •articles of household property. The decree then provides: “And the said accounts having been settled and adjusted as above stated, and the summary statement recorded, it is further ordered that said accounts be, and the same are hereby, settled, allowed, and adjusted by said surrogate as above stated. And the said executor having presented, as trustee under the will of said Mary Jane Walsh, deceased, an account for the board, lodging, and other services and disbursements rendered and made by said Alexander Weir for said Martha Ann Johnson, commonly called Martha Walsh, the legatee of the personalty of said testatrix, and the devisee of one-half of the real estate of said testatrix, and of the income of said real estate, until the said Martha shall become of the age of twenty-one years, at which time the real estate, or its proceeds of sale thereof, are to be equally divided between said Martha •and said Alexander Weir, one-half to each, which said account or claim of said Alexander Weir amounts to the sum of $1,408.02, it is hereby ordered, adjudged, and decreed that said last-named account, amounting to the sum •of $1,408.02, is a valid claim against the estate of Mary Jane Walsh afore

said, and that the same be, and hereby is, allowed and decreed to be paid! to said Weir in the amount hereinbefore stated. And whereas Lucy Weir, of Plattsburg, New York, has presented, as assignee thereof, an account or claim of one Betty Reed, now deceased, against the estate of said Mary Jane Walsh, for three hundred dollars, which claim was duly allowed by said executor during the six years immediately succeeding the death of said Mary Jane Walsh, ordered, adjudged, and decreed that the said claim of said creditor, Betty Reed, so assigned to said Lucy Weir, is a valid claim against said estate of said Mary Jane Walsh, to be paid in due course of administration of said estate; and said Weir is also to be repaid one-half principal paid in on Burdo contract, which is charged by him to himself above.”

The real estate of testatrix -was not sold by the executor under the power of sale contained in the will. After plaintiff became 21 years of age, she brought this action for the partition of the real estate. The defendant Alexander Weir answered the complaint, and alleged the making and entry of the decree of October 9, 1899, and asked that the claims mentioned in said decree be decreed and declared a lien upon the proceeds arising from the sale of said real estate, and that the same be adjudged and decreed to be paid from the proceeds arising from such sale, and that such proceeds of sale be paid into the surrogate’s court for distribution according to law. On the trial of the action, besides the formal proof, the defendant offered in evidence the said surrogate’s decree; and the court found that there were no liens upon the real estate sought to be partitioned, or upon the undivided share of the plaintiff and the defendant Alexander Weir, and a judgment was entered directing a sale of the real estate by a referee. The real estate has been sold under such interlocutory decree for $2,085. The report of the referee has been confirmed, and judgment has been entered directing the distribution of the net proceeds of sale between the plaintiff and the defendant Alexander Weir.