Davis v. Crandall

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: EARL
• Citation: Davis v. Crandall, 101 N.Y. 311, 4 N.E. 721 (N.Y. 1886)
• Decision Date: 19 January 1886
• Parties: JAMES VAN ALLEN DAVIS, Respondent, v. AROVESTUS P. CRANDALL, Appellant.

101 N.Y. 311

4 N.E. 721

DAVIS

v.CRANDALL.¹

Court of Appeals of New York.

Filed January 19, 1886.

James S. Morgan, for appellant.

S. K. Williams, for respondent.

EARL, J.

In October, 1861, Elbertia Van Allen made her will, in which she gave to Christina Amelia Davis a certain bond and mortgage made and executed by her husband, James Davis; to Helen Stephenson, a certain bond and mortgage executed by John Stephenson; to J. Elbert Davis, ‘the sum of $243.92, a portion of the debt due me from the said James Davis, secured by his notes;’ to James Van Allen Davis, ‘the sum of $243.92 another portion of the debt due me from the said James Davis, and secured by his notes.’ At the time of making the will, the testatrix held a single note against James Davis for the amount of the two sums thus bequeathed. Thereafter, in 1863, she died, leaving the note among her assets unpaid. The defendant was named executor in her will, and took upon himselfthe execution thereof. James Van Allen Davis, the plaintiff, and J. Elbert Davis were minor sons of the maker of the note, and, at the time of the death of the testatrix, the plaintiff was about five years old. About four years after her death the defendant surrendered to James Davis the note left by her, and took in lieu thereof from him a note for one-half the amount thereof, payable to the plaintiff or bearer, on demand, with interest; and for the other half thereof, a note payable to J. Elbert Davis on demand, with interest. A few days after taking the notes he applied to the surrogate of Wayne county for a settlement of his accounts, and in his petition, among other things, stated that the plaintiff, one of the legatees named in the will, was an infant, under the age of 21 years, having no guardian. No citation for the accounting was served upon the plaintiff, who was then about nine years old, but it was served upon his mother, who, as a legatee, was also interested in the accounting.

Upon the return-day of the citation an attorney was appointed his special guardian for the accounting, and the defendant presented his account to the surrogate, in which he charged himself with having received, May 5, 1865, upon the note of James Davis, two items of $203.87 each, and, under the same date, he credited himself with having paid to J. Elbert Davis and to the plaintiff, each the sum of $203.87. No mention was made in the account of the surrender of the note of James Davis left by the testatrix, or of the taking of the two notes in the place of it; nor was any mention made in the account, or in the decree of the surrogate thereon, of the two notes, and there was no adjudication in reference to such notes. Upon the accounting no action whatever was had in reference to the note which had been taken for the plaintiff. Thereafter the defendant tendered the note to the plaintiff's mother, but she refused to receive it, and requested him to keep it until the plaintiff should become of age, and the defendant thereafter retained the note in his possession until after the plaintiff became of age and commenced this action. During many years after the defendant took the note from Davis he was perfectly responsible, and the note could have been collected. But two or three years before the plaintiff arrived at his majority Davis became wholly irresponsible and insolvent, and unable to pay the note. The plaintiff, having become of age, brought this action against the defendant to recover of him the amount of the note, with interest thereon. At the special term it was held that the decree of the surrogate was final and conclusive against the plaintiff, and protected the defendant against any claim in this action. Upon appeal by the plaintiff to the general term the judgment of the special term was reversed, and then the defendant appealed to this court.

We are of opinion that the legacy of the plaintiff was a specific legacy of one-half of the note which the testatrix held against his father. Whether a legacy shall be considered specific depends upon the intention of the testator or testatrix, to be derived from the language used in the bequest, construed in the light thrown upon it by all the other provisions of the will. Here there were specific bequests of the two bonds and mortgages to Mrs. Davis and to Mrs. Stephenson, and it is entirely clear that the precise bonds and mortgages named were to go to the legatees. So, in the bequests, immediately following, to the plaintiff and to J. Elbert Davis, it was clearly the intention that the one-half of the note held by the testatrix should go to each of the legatees named. If that note had been paid during the life-time of the testatrix, or otherwise canceled or destroyed, so that no obligation at her death rested upon James Davis to pay it, the two legatees would have taken nothing.

As this was a specific legacy, and not needed for the payment of debts, or any other purpose of administration, it was the duty of the defendant,...