In re Mullon's Estate.

• Decision Date: 26 February 1895
• Citation: 39 N.E. 821,145 N.Y. 98
• Parties: In re MULLON'S ESTATE.
• Court: New York Court of Appeals Court of Appeals

145 N.Y. 98

39 N.E. 821

In re MULLON'S ESTATE.

Court of Appeals of New York.

Feb. 26, 1895.

Appeal from supreme court, general term, Third department.

Judicial settlement of the accounts of Thomas J. Mullon and Jacob H. Mullon, as administrators with the will annexed of the estate of John Mullon, deceased. From a judgment of the general term (26 N. Y. Supp. 683) reversing a decree in favor of William B. Van Rensselaer, surcharging the accounts with a claim held by him, he appeals. Affirmed.

Marcus T. Hun, for appellant.

John A. Stephens, for respondents.

ANDREWS, C. J.

The fundamental error in the decree of the surrogate, rendered on the accounting, is the assumption that the ice business carried on by Thomas J. Mullon and Jacob H. Mullon, from the death of their father, John Mullon, was carried on by them as administrators of his estate. Upon this assumption the surrogate reached the conclusion that the sale made by them to Sherman of the ice business and the property connected therewith was a sale of the business and property of the estate of John Mullon, and that the administrators are accountable, as such, for $20,250,-the consideration of the sale. The result reached subjects the administrators to a liability must beyond the value of the assets, as inventoried, which came to their hands on the death of their father, and involves the implication that for nearly five years subsequent to his death the sons devoted their time and labor in carrying on the business for the benefit of the estate. The assumption made by the surrogate in unfounded in fact and in law. There can be no doubt, upon the evidence, that in form the sons carried on the business for themselves, as copartners, from the death of the father. They took possession of, and used in the business, the horses, wagons, and equipments which had been used by the testator. But they carried on the business in their own names, and in the bill of sale to Sherman they described themselves as ‘trading and doing business as copartners, under the firm name and style of John Mullon's Sons.’ Moreover, they had no reason to suppose that in so doing they were in any way defeating or prejudicing the rights of the creditors of the testator. They were the residuary legatees under his will. The executors having renounced, they were appointed administrators with the will annexed. They procured an inventory of the estate to the made and filed October 20, 1886, in which the whole personal estate was appraised at $9,426.20; including therein the property and stock used by the testator in his ice business, of the appraised value of $6,582. On the 30th March, 1887, pursuant to the order of the surrogate, they caused notice for the presentation of claims to be duly published, and they paid in full all the claims presented. They paid the legacies and funeral expenses, and the payments on account of the estate exceeded the whole appraised value by more than $2,000. No claim was presented by the petitioner until about the commencement of the present proceedings for an accounting, in October, 1892. The claim then made was on account of a deficiency judgment obtained against the administrators of John Mullon for $3,811.70, October 5, 1892, in an action for the foreclosure of a mortgage for $6,000 given by John Mullon in 1881, payable five years from date, to the estate which the contestant represents. Although the mortgage became due soon after the death of the mortgagor, no proceedings appear to have been taken to collect it until several years after his death; and, so far as appears, no claim was made or notice given to the administrators that such a debt was outstanding, or that a deficiency would be likely to arise, prior to the sale to Sherman, February 28, 1891. But if, in judgment of law, the business conducted by the sons of John Mullon, after his death, was the business of the estate, and all the property used therein and sold to Sherman was the property of the estate, the understanding and intention of the persons in whose name it was carried on would be ...