New York Trust Co. v. Brewster

• Citation: 134 N.E. 616,241 Mass. 155
• Parties: NEW YORK TRUST CO. et al. v. BREWSTER et al.
• Decision Date: 14 March 1922
• Court: United States State Supreme Judicial Court of Massachusetts

241 Mass. 155

134 N.E. 616

NEW YORK TRUST CO. et al.

v.BREWSTER et al.

Supreme Judicial Court of Massachusetts, Bristol.

March 14, 1922.

Exceptions from Superior Court, Bristol County; John D. McLaughlin, Judge.

Action on a note by the New York Trust Company and others against Horatio A. Brewster and others, as distributees of the estate of Charles O. Brewster. The court found for plaintiffs, and defendants bring exceptions. Exceptions overruled, and permission granted to amend.

The action was based on section 1837 of the New York Code of Civil Procedure, and was heard by a single justice of the superior court, without a jury, on the amended pleadings, agreed facts, and certain provisions of the New York Code, and certain decisions of the New York courts.John M. Maloney, of Boston, for plaintiffs.

Warner, Stackpole & Bradlee, of Boston (Henry E. Warner and John G. Palfrey, both of Boston, of counsel), for defendants.

JENNEY, J.

The defendants' exceptions were taken in an action to enforce liability, created by the Code of New York. The plaintiffs,as executors of the will of J. Harsen Purdy, late of the city of New York, allege that they are entitled to have a judgment against the defendants based upon an unpaid claim which Purdy had against Charles O. Brewster, who died intestate and domiciled in that city on June 26, 1912, to the extent that the assets of said Brewster were paid or distributed to the defendants.

The defendants are minors, and were residents in New York when said Brewster died, but removed to this commonwealth prior to July 5, 1913, when guardians were appointed over their estate by the probate court for Bristol county. The persons so appointed were authorized to act as ancillary guardians in New York, on August 18, 1913. Afterward by authority of an order of a surrogate's court of New York, a distribution was made of the personal estate which had belonged to Charles O. Brewster in his lifetime, as follows: To the executor's widow, Elizabeth H. Brewster, in cash $3,284.10, and chattels of the value of $375; to the ancillary guardians of the defendant Horatio H. Brewster, $3,388.62 in cash, and chattels of the value of $250.50; to the ancillary guardians of Elizabeth Brewster, $3,139.12, and chattels of the value of $500. These amounts so paid in cash with slight addition were transferred in January 1914, to the guardians appointed in Massachusetts, and the chattels were duly transmitted to and received by said guardians. In September, 1917, a further distribution of $57.19 was made to each minor.

The claim sought to be enforced in this action was upon an instrument dated July 8, 1910, given by the said Charles O. Brewster to the said Purdy, reciting the receipt of $5,000 and promising to repay that amount on August 1, 1910, with interest. It was not presented to the administrators of the estate of Charles O. Brewster. There was no controversy as to the execution and as to the original binding force of the obligation so created, and it was not contended that it had been paid in whole or in part.

The judge who heard the case found for the plaintiffs. No question of pleading is involved. The plaintiffs base their contention of liability solely upon sections 1837, 1838, 1839, 1850, 1855, 1856, 1857, 1858, and 1860 of the New York Code of Civil Procedure, which were in evidence.

The first of these sections provides that--

An action ‘may be maintained * * * against the surviving husband or wife of a decedent,and the next of kin of an intestate, or the next of kin or legatees of a testator to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which the action might have been maintained, against the executor or administrator. The neglect of the creditor to present his claim to the executor or administrator, within the time prescribed by law for that purpose, does not impair his right to maintain such an action.’

[1] The defendants urge that a cause of action created by this provision cannot be enforced in our courts. A liability existing under the statutes of another state is recognized and enforced in this commonwealth, providing there is jurisdiction over the parties, when said liability is not obnoxious to public policy, using this term broadly, if the relief is in its nature transitory, and if the remedy given can be afforded with substantial justice under the procedure here existent. This general principle has been carefully considered in previous decisions and is not now fully restated. Higgins v. Central New England & Western Railroad, 155 Mass. 176, 29 N. E. 534,31 Am. St. Rep. 544;Hancock National Bank v. Ellis, 172 Mass. 39, 51 N. E. 207,42 L. R. A. 396, 70 Am. St. Rep. 232;Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888,49 L. R. A. 301;Mulhall v. Fallon, 176 Mass. 266, 269, 57 N. E. 386,54 L. R. A. 934, 79 Am. St. Rep. 309;Walsh v. Boston & Maine Railroad, 201 Mass. 527, 88 N. E. 12;Hanlon v. Leyland & Co., Ltd., 223 Mass. 438, 111 N. E. 907, L. R. A. 1917A, 34.

[2] The provisions of the Civil Code of New York in substance create a cause of action which can be enforced only as far as property of the deceased has come into possession of the defendant. A much narrower liability somewhat of the same nature existed at common law. This need not be defined, but it has been recognized repeatedly throughout the United States. See Norcross v. James, 140 Mass. 188, 2 N. E. 946;Clark v. Holbrook, 146 Mass. 366, 16 N. E. 410, and cases cited; Bullard v. Moor, 158 Mass. 418, 425, 33 N. E. 928;McCarthy v. Mullen, 82 N. J. Law, 379, 385, 82 Atl. 51,39 L. R. A. (N. S.) 688;Hall v. Martin, 46 N. H. 337. Liability at common law and under the statutes depends upon the contract of the ancestor, and is not based upon the assent or agreement of the defendant. Valentine v. Farnsworth, 21 Pick. 176;Russ v. Alpaugh, 118 Mass. 369, 378,19 Am. Rep. 464; Clark v. Holbrook, supra. It is based upon the possession by him of property liable to the payment of the debt. It is in accord with the general principle, founded on broad considerations of justice, that the estate of an individual, real and personal, shall be applied to the payment of his debts; the same rule is applicable where the debtor has deceased. A statute like that under consideration creates a right to enforce liability existing at death and the distributee or legatee is entitled only to that which remains after such claims have been discharged. The liability cast is not by way of punishment. The nature and incidents of the right created are such as are found in ordinary transitory civil actions.

[3] A statutory right of action, in some respects in extension of common-law liability and founded upon the same reason, but much more restricted in its character, has long existed in this commonwealth. G. L. c. 197, §§ 28-34; Hall v. Bumstead, 20 Pick. 2; Valentine v. Farnsworth, supra; Julian v. Boston, Clinton, Fitchburg & New Bedford Railroad, 128 Mass. 555;Bassett v. Drew, 176 Mass. 141, 57 N. E. 384;Converse v. Nichols, 202 Mass. 270, 89 N. E. 135. The existence of a statute of the forum of the same character as that claimed to be enforceable is a potent if not conclusive indication that the foreign statute is not contrary to the public policy of the jurisdiction where the case is tried. The statute of Massachusetts relating to the liability of heirs, next of kin, devisees and legatees has been held to be enforceable extraterritorily. Bullard v. Perry, 66 Vt. 479, 29 Atl. 787.

We are of opinion that the provisions of the New York Code may be enforced in this commonwealth. Bullard v. Perry, supra. See, also, De Ende v. Wilkinson's Adm'r, 2 Pat. & H. Va. 663; Hairston v. Medley, 1 Grat. (Va.) 96;Wilkinson v. Leland, 2 Pet. 627, 658, 660, 7 L. Ed. 542. The case is not governed by Julian v. Boston, Clinton, Fitchburg & New Bedford Railroad, supra, where the remedy sought under a statute of this commonwealth was for transactions arising under the laws of another state. The question is not free from difficulty, but a careful examination of the provisions of the Code which were in evidence leads us to the conclusion that the liability created thereby can be enforced in this commonwealth consistent with our procedure and with substantial justice.

[5] The fact that the payments were to guardians in Massachusetts does not alter the essential character of the transactions. The assets were received as a part of the property to which the defendants became entitled under the laws of New York. The liability was not by way of contractual agreement; hence the lack of knowledge of its existence did not affect it.

The evidence as to the law of New York raised a question of fact, and the findings of the judge relating thereto are conceded to be substantially correct. Such findings are final if based on evidence, and those here considered are supported by decisions of the courts of that state and the Code in force therein which were admitted in evidence. Adams v. Dick, 226 Mass. 46, 56, 115 N. E. 227.

The defendants' contention that no liability attached because of their minority is unsound. The obligation was created by law, and for that reason did not require assent or contractual capacity. Butler v. Breck & Leavitt, 7 Metc. 164,39 Am. Dec. 768. See 1 Williston on Contracts, 446; 14 R. C. L. 254. The provision of the Code (section 1858) which provides that an execution ‘shall not be issued against an infant heir or devisee, until the expiration of one year after final judgment is rendered, and the judgment roll filed,’ does not render it unjust or impracticable to enforce liability in our courts, because the existence and adjudication of the liability is not affected. The section expressly provides that--

The action ‘is not delayed, nor is the remedy of the plaintiff suspended, by reason of the infancy of any of the parties.’

The defendants urge that the action is barred by St. 1911, c. 147, of this...