24 N.Y. 130, Gridley v. Gridley

Citation:24 N.Y. 130
Party Name:GRIDLEY, Committee, & c., v. GRIDLEY.
Case Date:December 01, 1861
Court:New York Court of Appeals

Page 130

24 N.Y. 130

GRIDLEY, Committee, & c.,

v.

GRIDLEY.

New York Court of Appeal

December 1, 1861

Page 131

COUNSEL

Theron R. Strong, for the appellant.

J. D. Husband, for the respondent.

DAVIES, J.

By section 167 of the Code, the plaintiff may unite in the same complaint several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, when they all arise out of:

1. The same transaction or transactions connected with the same subject of action.

2. Upon contract, express or implied.

No objection is made to the joinder in the same complaint of the second, third and fourth causes of action, and the propriety of uniting with them the first cause of action depends upon the question whether the defendant was personally liable to pay

Page 132

the testator's debt to Maria, and the annuity to her, or whether he could only be charged by a suit in equity therefor. If in the former case, then the law raises an implied promise to pay, and such a cause of action may be united with one founded on an express promise. The only question, therefore, is, whether the defendant, by the mere act of accepting the devise and receiving the personal estate as the devisee and legatee, was charged personally with the debts, so that the remedy against him is on his contract, express or implied. Less emphatic language was held in Spraker v. Van Alstyne (18 Wend., 200), to charge the devisee personally with the payment of the testator's debts. By his will in that case, the testator devised a certain lot to his son Martin, and a certain other lot to his son Cornelius, and directed that all his just debts should be paid by his two sons, Martin and Cornelius. In this case the Chancellor, in discussing the question, whether they took a fee in the lands devised, says the rule is that where there is a mere charge upon the estate devised, but not upon the devisee personally, he takes a life estate only, by a general devise of the land without words of limitation to his heirs (as is the devise in the present case), but where the charge is upon the person of the devisee, in respect to the lands devised, he takes a fee by implication. In this case the charge is upon the person in respect to the lands devised, and the meaning of that is the devisee is directed to pay the debts or legacies personally; so that if the devisee accept the devise, he impliedly assumes to pay the charge. DICKINSON, Senator, says: The testator charged Martin and Cornelius with the payment of all his just debts. The testator gave them the land and charged them with the payment of his debts. This, in the absence of explanation, must be held to be a personal charge. Having accepted the devise, they were charged with the payment of the debts, and had they not paid them voluntarily, they might have been coerced by prosecution. " This case was decided upon the theory that the debts were a personal charge upon the devisees, and could have been collected from them, upon their acceptance of the devise, and I am unable to see why it is

Page 133

not an authority for holding that, in the present case, a like liability was assumed by the defendant. It is to be observed that the Chancellor says, at page 209, "if they [the devisees] had refused to pay such debts, a Court of Chancery would have compelled them to do so after they had accepted of the devises to them respectively, and if necessary would have ordered the estate in their hands to be sold for that purpose. Whether they could have been sued for those debts in a court of law without an express promise to pay, it is not...

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44 practice notes
  • 103 N.Y. 47, Vanderzee v. Haswell
    • United States
    • New York New York Court of Appeals
    • October 5, 1886
    ...testator, without reference to the fact whether the property devised and accepted was sufficient for that purpose. ( Gridley v. Gridley, 24 N.Y. 130; reversing, 33 Barb. 250; Harris v. Am. Bib Soc., 4 Trans. App. 488-492; Heard v. Horton, 1 Denio, 165; Cipperly v. Cipperly, 40 How. Pr. 271-......
  • 246 N.Y. 369, Allegheny College v. National Chautauqua County Bank of Jamestown
    • United States
    • New York New York Court of Appeals
    • November 22, 1927
    ...responsibility to give effect to the condition (Dinan v. Coneys, 143 N.Y. 544, 547; Brown v. Knapp, 79 N.Y. 136; Gridley v. Gridley, 24 N.Y. 130; Grossman v. Schenker, 206 N.Y. 466, 469; 1 Williston, Contracts, § § 90, 370). More is involved in the receipt of such a fund than a mere accepta......
  • 107 N.W. 659 (Wis. 1906), In re Korn's Will
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • May 8, 1906
    ...Bickford, 65 Me. 118; Harris v. Fly, 7 Paige, 421; Larkin v. Mann, 53 Barb. 267, 270; Kelsey v. Western, 2 N.Y. 500; Gridley v. Gridley, 24 N.Y. 130; Glen v. Fisher, 6 Johns. Ch. 34. OPINION Page 660 [128 Wis. 433] DODGE, J. The appellant does not contend against the proposition that the gi......
  • 126 N.Y. 215, Booth v. Baptist Church of Christ
    • United States
    • New York New York Court of Appeals
    • April 14, 1891
    ...$500 to John Guy Vassar, 2d, is a valid bequest which Vassar Brothers Institute has power to take and hold as given. (Gridley v. Gridley, 24 N.Y. 130; Livingston v. Gordon, 84 id. 136; Perry on Trusts, § 44; 1 Lewin on Trusts, 31; Angell & Ames on Corp. § 168; Morawetz on Corp. [ 2d ed.......
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44 cases
  • 103 N.Y. 47, Vanderzee v. Haswell
    • United States
    • New York New York Court of Appeals
    • October 5, 1886
    ...testator, without reference to the fact whether the property devised and accepted was sufficient for that purpose. ( Gridley v. Gridley, 24 N.Y. 130; reversing, 33 Barb. 250; Harris v. Am. Bib Soc., 4 Trans. App. 488-492; Heard v. Horton, 1 Denio, 165; Cipperly v. Cipperly, 40 How. Pr. 271-......
  • 246 N.Y. 369, Allegheny College v. National Chautauqua County Bank of Jamestown
    • United States
    • New York New York Court of Appeals
    • November 22, 1927
    ...responsibility to give effect to the condition (Dinan v. Coneys, 143 N.Y. 544, 547; Brown v. Knapp, 79 N.Y. 136; Gridley v. Gridley, 24 N.Y. 130; Grossman v. Schenker, 206 N.Y. 466, 469; 1 Williston, Contracts, § § 90, 370). More is involved in the receipt of such a fund than a mere accepta......
  • 107 N.W. 659 (Wis. 1906), In re Korn's Will
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • May 8, 1906
    ...Bickford, 65 Me. 118; Harris v. Fly, 7 Paige, 421; Larkin v. Mann, 53 Barb. 267, 270; Kelsey v. Western, 2 N.Y. 500; Gridley v. Gridley, 24 N.Y. 130; Glen v. Fisher, 6 Johns. Ch. 34. OPINION Page 660 [128 Wis. 433] DODGE, J. The appellant does not contend against the proposition that the gi......
  • 126 N.Y. 215, Booth v. Baptist Church of Christ
    • United States
    • New York New York Court of Appeals
    • April 14, 1891
    ...$500 to John Guy Vassar, 2d, is a valid bequest which Vassar Brothers Institute has power to take and hold as given. (Gridley v. Gridley, 24 N.Y. 130; Livingston v. Gordon, 84 id. 136; Perry on Trusts, § 44; 1 Lewin on Trusts, 31; Angell & Ames on Corp. § 168; Morawetz on Corp. [ 2d ed.......
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