Buckland v. Gallup

• Decision Date: 26 April 1887
• Citation: 105 N.Y. 453,11 N.E. 843
• Parties: BUCKLAND, Adm'r, etc., v. GALLUP.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 453

11 N.E. 843

BUCKLAND, Adm'r, etc.,

v.GALLUP.¹

Court of Appeals of New York.

April 26, 1887.

Appeal from general term supreme court, Fifth department.

RAPALLO and EARL, JJ., dissenting.

Geo. H. Humphrey, for appellant.

J. & Q. Van Voorhis, for respondent.

DANFORTH, J.

The plaintiff, describing himself both in the title and body of the complaint as ‘administrator,’ etc., ‘of Warren Buckland, deceased,’ demanded judgment against the defendant for the sum of $2,000, and costs of the action. The defendant answered, denying the material allegations of the complaint, and, upon trial before a referee, had judgment dismissing the complaint, with costs against the plaintiff in his individual capacity. Upon the plaintiff's application, the special term ordered an amendment, so that the judgment should direct the costs of the action ‘to be paid out of any assets in his hands as administrator.’ Upon appeal to the general term, this order was reversed, and from the order of reversal the plaintiff appeals to this court. The special term regarded the question as controlled by section 1814 of the Code of Civil Procedure, which declares that an action 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;’ while the general term, looking at the cause of action as one arising out of a transaction which occurred after the testator's death, held that it did not belong to the plaintiff in his representative capacity within the meaning of that section. This difference of opinion necessarily leads to an inquiry whether the cause of action upon which the plaintiff sues is, within the meaning of the Code, one ‘belonging to him in his representative capacity.’ That capacity was created by statute to carry into effect the wishes of the decedent, and, by virtue of it, an executor takes as of the time of the death of the testator, and, as it were, from his hand, his personal property, so that there is no interval of time when it is not the subject of ownership by the testator up to the time of his death, and from that moment by the person named, not as an individual, but as a representative. The statute characterizes the property received as assets, requires it to be inventoried, and for those assets so inventoried, and for any increase, the executor is to account. It includes, among other things, debts secured by mortgage, bonds, notes, and things in action. He and his sureties are liable for the full value of all such property of the deceased received by the executor, and not duly administered, and, if the cause of action accrued in the life-time of the testator, any suit respecting it must be in the name of the executor as such. He then sues in the right of the testator, and can bring such actions only as the testator himself might have maintained.

On the other hand, if an injury to the property, or its conversion, happens after the death of the decedent, although before letters are actually issued, or if a contract is made with an executor or an administrator personally, in regard to the effects or money belonging to the decedent, received by a third person after the death, the administrator might sue in his own name, and if in any of these cases he may also sue in his representative character he is not required to do so. Valentine v. Jackson, 9 Wend. 302;Merritt v. Seaman, 6 N. Y. 168;Patterson v. Patterson, 59 N. Y. 574;Lyon v. Marshall, 11 Barb. 242. When he sues in the right of the testator, he pays no costs, because the law does not presume him to be sufficiently cognizant of the nature and foundation of the claims he has to assert, and in all these cases it is necessary for him to sue in his representative character, and expressly to name himself executor. Toll. Ex'rs, 438. But, if he may bring the action in his private capacity, then, if he fails, he is liable for costs.

As the statute stood (2 Rev. St. 615, § 17) before the Code, costs were not, as of course, given in favor of a successful defendant against ‘executors or administrators necessarily prosecuting in the right of their testator or intestate,’ but it was held that an executor suing upon a cause of action which accrued after the death of his testator, and failing, was personally liable for costs. Burhans v. Blanchard, 1 Denio, 626. In that case the distinction is said to be well settled between cases in which an executor must sue in that character and those in which he may prosecute in his own right, whether the action be in tort or in contract. The final test is whether it accrued before or after the death of the testator. In that case, and in cases there cited, and in many later ones, it is shown, as well upon principle as authority, that only such causes of action as accrued during the life-time of the decedent, or upon contract made by him, were of necessity to be prosecuted by his executors or administrators in their representative capacity.

In Patchen v. Wilson, 4 Hill, 57, the contract sued on was by the intestate in his life-time, and the action was necessarily brought in a representative capacity, and, although it failed, the plaintiff was not charged with costs. The same case shows that an action for the conversion of property after the testator's death may be brought in the executor's own name, and that the letters testamentary may be used as a part of his chain of title. The same rule applies here. The distinction is between a cause of action accruing on a contract made with the representative, as distinguished from one devolving on him in that capacity by the creation of the trust or representative relation. The Code works no change in these respects. On the contrary, the provisions of section 1814 imply that a person while executor may have causes of action of more than one kind; for it declares that those which belong to him in ‘a representative capacity’ shall be prosecuted in that capacity. They are thus contrasted with all others, and as clearly distinguished as if one class devolved on A. and the other on B. So, in construing the section, it has been held that the phrase ‘representative capacity’ includes only those causes of action which accrued during the life-time of the decedent. Bingham v. MarineNat. Bank, 41 Hun, 377. The demand there in suit arose upon a certificate for moneys belonging to the estate, and deposited with the defendant by administrators. The...