Thompson v. Whitmarsh

• Decision Date: 06 October 1885
• Citation: 2 N.E. 273,100 N.Y. 35
• Parties: THOMPSON v. WHITMARSH.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 35

2 N.E. 273

THOMPSON

v.WHITMARSH.

Court of Appeals of New York.

Filed October 6, 1885.

A. P. Smith, for appellant, Hiram Whitmarsh.

Franklin Pierce, for respondent, Jane E. Thompson.

FINCH, J.

It is not denied in this case that, irrespective of sections 449 and 1814 of the Code, and before its enactment, an executor or administrator, seeking to enforce a contract made by himself and not by the decedent, could sue in his own name, and that in such action a demand against the decedent, belonging to the defendant, could not be used as a counter-claim to diminish or extinguish the recovery. It is insisted, however, that the effect of these sections is to change the law, and compel the executor or administrator to sue in his representative capacity, where his recovery will be assets, and is for the benefit of the estate. Under section 449 every action must be brought by the real party in interest; and, where the recovery is wholly for the benefit of the estate, it is said such real party in interest is the executor or administrator, and not the individual who happens to be charged with the trust duties. And this contention is claimed to be strengthened by the language of section 1814, that ‘an action or special proceeding hereafter commenced by an executor or administrator upon a cause of action belonging to him in his representative capacity * * * must be brought by * * * him in his representative capacity.’

Here the plaintiff is executrix, and sold, upon credit, property of the estate to the defendant, who holds an unpaid note of the decedent. The estate is insolvent, and if the defendant can use his demand as a counter-claim, he alone of all the creditors can secure a preference out of the assets, and be paid in full at the expense of others equally entitled to payment. The result would overturn the whole system of distribution to creditors, and compel executors and administrators never to sell on credit at public auction where creditors of the deceased could buy, or in some unexplained way exclude them from the list of purchasers. No such construction of the Code is permissible. Where an executor or administrator sells on credit the property of the estate, and sues to recover the debt, he as an individual is the real party in interest; for the contract is made with him, and the promise to pay runs to him, and he is personally accountable for the assets which he has sold. For the same reason the debt does not belong to him...