Denton v. Sanford

• Decision Date: 14 December 1886
• Citation: 9 N.E. 490,103 N.Y. 607
• Parties: DENTON and others v. SANFORD and others.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 607

9 N.E. 490

DENTON and others

v.SANFORD and others.

Court of Appeals of New York.

December 14, 1886.

Benjamin Low, for appellants, Denton and others.

F. V. Sanford, for respondents, Sanford and others.

EARL, J.

Samuel Denton died April 7, 1878, leaving a will in which these respondents were appointed executors, and leaving personal estate inventoried at about $48,000, but actually worth much less. He gave legacies to various persons, and created trusts, and made these respondents trustees of $3,000, and ordered the interest to be paid annually to Nathaniel R. Denton, and, at his death, the principal sum to be divided between his children; of $1,000, and ordered the interest to be paid annually to John Baird, and, at his death, the principal sum to be divided between his children; and he also made them trustees of $500, for the benefit of George W. Denton.

Previous to his death he held a mortgage upon premises situated in the state of New Jersey, and he there commenced a foreclosure of that mortgage in the court of chancery, and obtained a judgment for foreclosure, directing a sale of the mortgaged premises. In pursuance of that judgment, the premises were sold, and bid off for the testator by his attorney for the sum of about $11,000, which was the amount of the prior liens and incumbrances upon the premises, together with the costs of the foreclosure; but before the sale was consummated, and the deed given, he died. After his death the executors were called upon to complete the sale, and pay the purchase price, and on the eighth day of June, 1874, they took the deed in their individual names, but for the benefit of the estate. All this they did acting in good faith, under the advice of counsel, and in the exercise of reasonable prudence and care. They held this real estate until April 2, 1877, in the mean time renting it, and making diligent efforts to sell it; and, having failed in such efforts, on that day they conveyed it to John Burt for $6,000, and on the same day he conveyed it to Mary F. Maples, and she executed to Burt two mortgages,-a first mortgage to secure $4,500, and a second one to secure $1,500, of the purchase money. The mortgage for $4,500 was assigned to the executors as trustees for the security, and as an investment of the funds belonging to the three trusts above mentioned.

Subsequently to that date the executors rendered a final account of their proceedings, after citations personally served upon all these petitioners. Upon that accounting it appeared that they had paid all the legacies except those invested in and represented by the mortgage for $4,500, and another trust of $1,500, and the surrogate made a decree in which he adjudged that the account of the executors should be finally settled and allowed, as filed and adjusted; and the decree recited further as follows: ‘And, it further appearing that said executors have the sum of $6,000, invested on bond and mortgage for the following persons: The sum of $3,000 for said Nathaniel R. Denton, the sum of $1,000 for John Baird, the sum of $500 for George W. Denton, and the sum of $1,500 for the said Emily Conklin; and it further appearing that said legatees Nathaniel R. Denton, John Baird, and George W. Denton claim interest on their respective legacies from the date of the death of said Samuel Denton, which occurred on the seventh day of April, 1874; and after hearing the respective counsel in this matter, and due deliberation being had thereon,-it is ordered, adjudged, and decreed that said executors pay to Nathaniel R. Denton the interest on his said legacy of $3,000, from April 7, 1874, being the sum of $210; and that they pay to John Baird the interest on his said legacy of $1,000, for the same period of time, being the sum of $70; and that they pay to the general guardian of said George W. Denton the interest on his said legacy of $500, for the like period of time, being the sum of $35,-said interest amounting, in all, to the sum of $315, and for which amount said executors are credited in the foregoing statement;’ and it was further decreed that the executors, upon complying with the terms of the decree, should be discharged. Thereafter interest on the two mortgages was regularly paid, down to the first day of April, 1882, and paid over to the persons entitled thereto under the various trusts and the decree of the surrogate. Subsequently it turned out that, unknown to the executors, and probably also to the testator, there was a defect in the title to the real estate, and in consequence thereof the mortgagor ceased to pay the...