Woerman v. Baas — 35 N.Y. St. Rep. 276

Majority

p. 276

Joseph Woerman, Resp’t, v. Berend Baas, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Attorneys—Authority to sub—Power to receive interest in estate INCLUDES POWER TO BRING PARTITION.

An incorporated society authorized to collect legacies, etc., for foreign heirs, received a power of attorney from heirs of an estate authorizing it to “ask, demand and receive for them all the estate, legacy, claim or

p. 277

interest to which we are entitled as heirs at law,” with full power of substitution. Held, that while such power was special and confined to this estate, it was general and full in respect to it and authorized the employment of an attorney to bring action for partition.

Appeal from order denying motion that plaintiff’s attorney show his authority for bringing the action and that the attorney for the other defendants show his authority for appearing for them.

Benjamin G. Hitchings, for app’lt; Frederick W. Holls, for pl’fif, resp’t; Richard M. Bruno, for def’ts, resp’ts.

This is an action for the partition of lands. The defendant, Baas, is the executor of the will of William Bonthrop, and the plaintiff and other defendants are devisees of the lands in question under his will. The defendant, Baas, makes this motion to set aside the proceedings for want of power of the plaintiff to institute the action. The papers show that the devisees by a written power of attorney authorized the German Society of the city of New York “ our true and lawful attorney, in our place and stead to ask, demand and receive all the estate, legacy, interest or claim to which we are entitled as heirs at law, "giving and granting unto our said attorney full power and authority to do and perform all and every act and thing whatsoever requisite to be done in and about the premises as fully to all intent and purposes as we severally might or could do if personally present, with full power of substitution.” The German Society is a benevolent society recognized by Germany and incorporated in New York by an act of the legislature. . This company in addition to other duties as to emigrants, undertakes to collect legacies, estates and debts for residents of the German empire. The plaintiff’s attorney was employed by this German Society. The provision is sufficient. The society can demand and receive the estate as fully as the heirs could if present, and an attorney may be substituted for the purpose by the express words of the power. While general words do not enlarge the special grant of power, the whole instrument must be read together if thereby the words of the grant of power are made clear. The entire instrument read together gives a general power to settle up the estate of William Bonthrop and to demand and receive the shares of the principals in the power. While the power is special and confined to this estate, it is general and full in respect to it. Such a power is to be liberally construed and to include the subject of the agency. Craighead v. Peterson, 72 N. Y., 279 .

The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.