Kernochan v. Murray — 24 N.Y. St. Rep. 684

Majority

p. 684

Louise M. Kernochan, as Administratrix, v. Angelins A. Murray, as Executrix, etc., et al.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

Guaranty—Duration.

A guaranty, by la vendor of stock, that the vendee shall receive certain dividends thereon |so long as he holds the stock, which does not terminate on the death of the guarantor, may be enforced by the personal representatives of the vendee after the latter’s death.

Case agreed upon in a controversy without action.

J. Frederick Kernochan, for pl’ff; Sidney V. Lovell, for def’t.

In view of the decision of the court of appeals in Kernochan v. Murray ( 111 N. Y., 306 ; 19 N. Y. State Rep., 491), construing the instrument upon which this actión was brought, there remains but one question to be determined upon the trial of this case, and that is, did the personal representatives of John A, Kernochan,! upon his death, acquire any rights by virtue of this agreement, he not having ever parted with the stock jin question ? The court of appeals have already held than this guaranty had no personal quality; that it was an ¡original and not a collateral undertaking, and that although it read “ I do hereby guaranty,” etc., the personal representatives of the guarantor were bound.

Applying the same principle of construction, if the guarantee was npt terminated by the death of the guarantor, neither would it terminate upon the death of the person to whom the guarahtee ran.

It is true tho| it guaranteed him as long as he held the stock, but this clearly meant as long as the stock was not parted with, and the devolution of the stock by operation of law was in njo sense a parting with the stock, such as was contemplated by the agreement. .As the court of appeals say in the case cited, the guaranty protected the purchaser while his interest should continue; in other words, until he Voluntarily parted with his interest. Upon his death, it is true, he parted with the stock, but it cannot be assumed that1 he voluntarily did so, and his interest devolved, by law, upon his personal representative, and she stood in precisely the same relation to the contract as the deceased. |

p. 685

The claims made by the defendant that the guaranty was merely personal, and that the guarantor was a surety, seem to have been determined adversely to him in the case cited. The plaintiff is entitled to judgment, with costs.

Daniels and Brady, JJ., concur.