Ametrano v. Downs

• Decision Date: 08 April 1902
• Citation: 170 N.Y. 388,63 N.E. 340
• Parties: AMETRANO v. DOWNS et al.
• Court: New York Court of Appeals Court of Appeals

170 N.Y. 388

63 N.E. 340

AMETRANO

v.DOWNS et al.

Court of Appeals of New York.

April 8, 1902.

Appeal from supreme court, appellate division, Second department.

Action by Elizabeth F. Ametrano, administratrix of Margaret Shelley, against Henry T. Downs and others. Judgment for defendants was affirmed by the appellate division (70 N. Y. Supp. 833), and plaintiff appeals. Affirmed.

WILLS-RIGHTS OF DEVISEE-LANDS AFTERWARDS CONDEMNED.

A devisee of real estate under a will made by the owner before it is sold under condemnation is not entitled to the proceeds thereof; it having become personal estate as much as if the sale had been voluntary.

John M. Rider, for appellant.

Alfred D. Lind and Joseph Kaufmann, for respondents.

CULLEN, J.

On August 7, 1884, Margaret Shelley, now deceased, received by conveyance from her husband, through an intermediary, an undivided one-half in the premises known as No. 22 Oliver street, in the city of New York. On March 12, 1891, she executed the following will: ‘I, Margaret Shelley, of the city, county, and state of New York, being of sound, disposing mind and memory, do hereby make, publish, and declare this to be my last will and testament: First. I order and direct my funeral expenses to be paid as soon as shall be convenient after my decease. Second. I give, devise, and bequeath my one-half interest in the building known as number twenty-two (22) Oliver street, in the Fourth ward of the city of New York, unto my daughter Lizzie, wife of Emanuel Ametrano, of the city of Brooklyn, county of Kings, state of New York, and to her heirs and assigns forever. I nominate, constitute, and appoint Patrick J. Murphy, of the city of New York, and Charles Henry Hawkins, of the same place, or either of them, as executors of this, my last will and testament. In witness whereof, I have hereunto set my hand and seal this 12th day of March, in the year of our Lord one thousand eight hundred and ninety-one.’ In 1896 condemnation proceedings were taken by the city of New York to acquire said No. 22 Oliver street as a site for the erection of a school house. To these proceedings Margaret Shelley was not made a party. The net amount of the award after the satisfaction of the incumbrances on the property, amounting to $9,800, was in February, 1897, paid to her husband, Michael Shelley, who thereupon deposited one-half of the award ($4,900) in the Washington Trust Company to the credit of his wife, as her share of the property. In 1898 Margaret Shelley drew the accrued interest on the deposit, and $400 on account of the principal. She died in February, 1899, leaving an estate consisting entirely of personalty. The plaintiff is the devisee named in the will, as well as the administrator of the estate of the deceased; and in this action, which is for a settlement of her accounts, claims that she is entitled, under the will, to the fund received by the testator in the condemnation. She has been defeated in this claim by both the courts below, and now appeals to this court.

The able opinion of the learned appellate division deals so fully with the question in dispute that there remains but little to be added by us. Had the deceased voluntarily alienated her property by deed, it is entirely clear. Under the authorities in this state, that the devisee would have no claim to the proceeds of the sale. Adams v. Winne, 7 Paige 97;Beck v. McGillis, 9 Barb. 35; Gilbert v. Gilbert, Id. 532; Vandemark v. Vandemark, 26 Barb. 416; Philson v. Moore, 23 Hun, 152; McNaughton v. McNaughton, 34 N. Y. 201. ‘If a testatrix devises real estate, and sells the same before the will takes effect, the proceeds of the sale will become personal estate, and no court can substitute the money received by the testatrix for the land devised.’ In Adams v. Winne, supra, and Beck v. McGillis, supra, the testator had taken back a mortgage on the devised land as security for the purchase money, yet it was held that the devisee was not entitled to the mortgage. The only point to be considered, therefore, is whether a different rule obtains in the case of involuntary alienation, by operation of law, from that which prevails on a voluntary sale. Mr. Jarman asserts that the rule is the same in both cases, and the English decisions cited by him sustain the doctrine of the text. Jarm. Wills, p. 163. We see no such difference between a voluntary and an involuntary sale of the devised land as justifies a distinction in principle in the application of the rule that, where the testator has parted with the subject of the devise, all claim of the devisee is lost. While there is no authority on the point in this state (there is said to be...