Drake v. Paige

• Decision Date: 06 October 1891
• Citation: 28 N.E. 407,127 N.Y. 562
• Parties: DRAKE v. PAIGE.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 562

28 N.E. 407

DRAKE

v.PAIGE.

Court of Appeals of New York, Second Division.

Oct. 6, 1891.

Appeal by defendant from judgment of the general term of the supreme court, fourth department, entered on an order affirming a judgment entered on the report of a referee. Affirmed.

This action was brought to partition certain lands devised by the eighth clause of the last will and testament of Hazard Lewis, which reads as follows: ‘All the rest and residue of my estate, whether real or personal, of every name, kind, and description, and wheresoever situate, after the payment of my just debts and funeral and testamentary expenses, I give, devise, and bequeath to my said wife, Maria, to my said daughters, Jane E. Drake and Caroline L, Paige, and to my said son, Frederick, to be divided equally between them, share and share alike. Each of the four said persons to have one-fourth part thereof.’ It is not sought in this action to partition all of the lands included in the above devise, but only such portion thereof as the executors did not sell pursuant to the power conferred on them by the ninth clause of the will, which is so importantly related to this controversy as to require that it be quoted here: ‘I hereby authorize and empower my executors hereinafter named to sell, deed, grant, and convey by deed, under seal, with common covenants of warranty, any or all my real estate not in this will particularly described and devised, and the avails apply to the payment of my debts and funeral and testamentary expenses, or, at their discretion, to lease any portion of such real estate for the purpose of paying such debts and expenses. And I authorize them to partition the same, after the payment of debts and expenses, amongst those in the eighth devise herein named; or to sell and deed the same, and the avails divide among those named in said devise and bequest eight. My intent is that all devises of every name and kind in this will contained shall pass the real estate to the respective beneficiaries, free from incumbrance, and that any and all mortgages and judgments on either of them that shall cover or be a lien upon any of the lands, or any portion of the lands, in this will devised and described, shall be paid by my executors from the avails of my personal estate not herein bequeathed, and the avails of lands not specifically devised; and I hereby direct and empower my said executors to appropriate the avails of my personal estate not herein bequeathed, and the avails of my real estate not in this will devised by specific description, to the payment of all mortgages and all judgments incumbering any and all real estate in this will devised.’ The plaintiff asserts title to three of the four undivided shares in the real estate attempted to be partitioned. That she is the owner of two of the shares is not disputed. But the defendant Paige challenges her right, as against him, to the share of Frederick Lewis. Lewis mortgaged his interest to the father of the plaintiff. It was subsequently foreclosed, and the title obtained on that foreclosure is now in the plaintiff. The defendant, Paige, claims that he has an equity superior to the rights thus acquired by the plaintiff, because, as co-executor with Lewis under the will before us, he has been obliged to pay $7,189.97, moneys misappropriated by Lewis and applied to his own use. The appropriation of such moneys to Lewis' individual use took place prior to the execution and delivery of the bond and mortgage to Drake, and the circumstances attending it were as follows: In April, 1871, the executors sold a piece of land devised by the eighth clause of the will, and in part payment thereof received a bond and mortgage for $7,000. Subsequently, and in October, 1872, the executor Lewis, being in embarrassed circumstances, desired to dispose of the bond and mortgage, and apply the proceeds to his individual use. And Paige, with knowledge of such desire and purpose on the part of Lewis, and with intent to give it effect, united in the execution of an assignment thereof. March 26, 1872, the executors sold another piece of land, and received in payment a bond and mortgage for $4,500, which, after the principal had been reduced to $3,600, was on the 4th day of March, 1873, assigned, and the proceeds applied to the individual use of Lewis. And it was the purpose of both executors in selling the bond and mortgage to procure the moneys for the individual use of Lewis. Because of Paige's participation in the unauthorized disposition of the proceeds of such bond and mortgages he, as well as Lewis, was, in an accounting before the surrogate, charged individually with the payment of the moneys thus misappropriated; and, Frederick Lewis being unable to comply with the decree of the surrogate in such respect, Paige was compelled to make good the devastavit. For the moneys thus paid he seeks reimbursement out of the share devised to Frederick Lewis in the lands remaining unsold. To that share plaintiff asserts title obtained under the following circumstances: June 3, 1873, Frederick Lewis and wife executed and delivered to Patrick H. Drake a bond and mortgage for the sum of $60,000 upon Lewis' undivided one-fourth interest in the residuary estate, and also upon certain other lands. The consideration for the mortgage was stated in an agreement executed at the same time, which provided, among other things, that it was given to secure Drake for advances to be made in liquidating certain judgments, and in the payment of certain promissory notes of Lewis upon which Drake was an indorser. And it appears that at the time Drake was liable as an indorser upon the paper of Lewis in an amount exceeding $30,000, and that the judgments then a lien on Lewis' property exceeded in amount $31,000, not including interest thereon from the date of their entry. Drake subsequently paid the notes and advanced upwards of $31,000 to pay the judgments, but, instead of taking satisfaction pieces from the judgment creditors, he took assignments to his wife or to himself. Default being made, the mortgage was subsequently foreclosed, and on or about the 11th of February the mortgagee, Drake, became the purchaser at the foreclosure sale. The regularity of the foreclosure proceedings is not questioned. Thereafter the rights thus acquired by Drake passed to his daughter, this plaintiff. The various steps leading to that result are not of importance here. Other facts appear in the opinion.

Alexander Cummings, for appellant.

Stephen C. Millard, for respondent.

PARKER, J., ( after stating the facts.)

If the title to the share devised to Frederick Lewis was still in him and unincumbered, equity might in this suit protect Paige, by charging such share with the amount of Lewis' misappropriation. But Lewis, for the purpose of securing certain obligations, and causing the payment of others, undertook to mortgage the share of the estate devised to him; and, default being made, foreclosure and a deed to the plaintiff's predecessor in title resulted. Our first inquiry, therefore, is whether the title was in Lewis so that he could mortgage or convey an undivided one-fourth of the real estate devised by the eighth clause of the will, and we are thus brought to an examination of its provisions. The eighth clause devised to Frederick Lewis and three others each an undivided onefourth share in and to all of the real estate of the deceased not thereinbefore disposed of, and embracing the premises in controversy. Considered by itself, the language of the eighth clause was operative to vest title in the devisees therein named. The ninth clause conferred upon the executors- First, power to sell a portion or all of the real estate devised by the eighth clause for the payment of debts, funeral and testamentary expenses; and, second, authority to partition that which remained among the devisees. But the power to partition or sell for the purpose of dividing the proceeds could not...