In re Kellogg

• Decision Date: 18 January 1887
• Citation: 10 N.E. 152,104 N.Y. 648
• Parties: In re KELLOGG, Ex'r, etc.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 648

10 N.E. 152

In re KELLOGG, Ex'r, etc.¹

Court of Appeals of New York.

January 18, 1887.

In the matter of the judicial settlement of the accounts of Asa B. Kellogg, as executor, etc., under the will of Benjamin Akin, deceased.

L. Laflin Kellogg, for Executor.

Arthur H. Smith, for Mrs. Kellogg. Matthew Hall, for Mrs. Aletta A. Akin.

EARL, J.

These appeals bring to our attention several matters, which will be separately considered.

1. Prior to 1876 the testator held a note for upwards of $11,000 against the executor, and early in that year he gave it to the executor, who destroyed it. The testator lived until October 10, 1881, when he died insolvent. It was claimed by the testator's widow, who at the accounting was the sole creditor, that, at the time he made the gift of the note, the testator was insolvent, and hence that the gift was fraudulent and void as to her, and that, therefore, the executor, as to her, should be charged with the amount of the note. In the surrogate's court he was so charged; but the general term reversed the decision of the surrogate as to that item, and relieved the executor from the charge, and, we thinkk, correctly. We do not determine that the surrogate had jurisdiction to enter upon the inquiry whether the gift was fraudulent and void as to creditors, and that, finding it fraudulent and void, he could, on that ground, charge the executor with it, although it was good and valid as against the testator. But passing the question of jurisdiction, we fail to find any evidence in the record that, at the time of the gift, more than five years before his death, the testator was insolvent. After that time, he had left a valuable farm and other assets, in all far exceeding in amount the value of his debts, and hence the gift, in the absence of an actual intent to defraud, (of which there is no proof or finding,) was not a fraud upon the creditors, and must stand.

[104 N.Y. 649]2. During the life-time of the testator, for some years prior to his death, the executor was the general agent of the testator, having the general management of his business, and as such he placed in the hands of an attorney a claim against one Schuyler for collection. Suit was brought upon it, and the attorney, some time before the death of the testator, collected $6,500. From that sum he deducted $500, for his services, and afterwards, on the tenth day of October, while the testator was still alive, he drew his own check upon a New York bank for the sum of $6,000, payable to the order of Asa B. Kellogg, the executor, and sent it to his office in the city of New York, and it was there delivered to some person who was in charge of the office, before the testator's death, with directions to telegraph its delivery to the executor, who was then with the testator at Greenbush. The testator died the same day, and, on the twelfth day of October, the executor drew the money on the check, and credited it in his account with the testator. After such credit, there was still a balance due from him to the testator, with which he charged himself on the accounting. The surrogate allowed the $6,000, as a credit in the account of the executor, as claimed by him. But some of the appellants claimed that that sum should have been charged to the executor as if he had actually received the check after the testator's death, and that the courts below erred in not so charging it. We are of opinion that none of the appellants are in a position to claim any error here as to this item. Mrs. Akin, the widow, neither excepted to the finding of the referee, nor appealed to the general term. The general guardian of the infant appellants appealed, but did not except to any of the findings or decisions of the surrogate, and the special guardian of the infants filed exceptions, but did not appeal to the general term. An appeal to this court from an affirmance by the general term of a surrogate's decree brings nothing here for review, where there was no appeal to the general term, and, upon an appeal from a surrogate's decree, no complaint can be made of any finding or decision which has not been excepted to. Code, § 2545. But for a further reason we think there was no error in reference to this item. The money, when collected, was deposited by the attorney in his bank account, and hence he became a debtor to the testator for that sum. He had been directed by the testator to pay it, when collected, to the executor, as his agent. He made such payment by his check, and when the check was delivered at the office of the executor for him to...