Ogsbury v. Ogsbury

• Decision Date: 08 October 1889
• Citation: 115 N.Y. 290,22 N.E. 219
• Parties: OGSBURY v. OGSBURY.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 290

22 N.E. 219

OGSBURY

v.OGSBURY.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, fourth department.

Action by Susan Ogsbury, as executrix of Daniel Ogsbury, against John D. L. Ogsbury, for trespass in cutting trees on testator's land. A nonsuit granted on the first trial was, on appeal, set aside, (45 Hun. 388,) and on the new trial there was a judgment for plaintiff, which was affirmed at general term, from which defendant appeals.

Elon R. Brown, for appellant.

W. M. Rogers, for respondent.

FINCH, J.

It is claimed that the plaintiff, who sues in her representative capacity as the executrix of the will of Daniel Ogsbury, cannot maintain this action at all, because no trust was created by force of which the title to the real estate vested in her, and the action was to recover damages for a trespass upon lands which, as executrix, she neither owned nor possessed. The plaintiff claimed that there was an equitable conversion of the land into money by force of which she was entitled to recover the damages as belonging to her, and constituting a part of the fund which she was directed to receive and disburse; and Clift v. Moses, 44 Hun, 312, was cited as authority. Two clauses of the will relate to the power of sale. One is an imperative command to sell within five years, for the purpose of paying debts and legacies. I do not think its force is destroyed, or its operation modified, by the seventh and later clause, which purports to give an authority to sell. It is not inconsistent with the prior command, and was intended to authorize the sale already directed in lots or parcels, or all together, in the discretion of the executrix. But one difficulty with the theory of an equitable conversion at the death of the testator is that he gave the rents and profits of the land to the plaintiff in her individual right, so long as it remained unsold, and she, in her own right, was entitled to the possession of the land and the rents and profits until an actual sale, and so no earlier conversion was intended. It seems, also, to be the doctrine of Lent v. Howard, 89 N. Y. 169, that, even where there is an imperative power of sale, the possession is in the heir, and the remedy of the executor to prevent spoliation in the nature of waste is in equity. But I think this action may be regarded as one in equity, and not at law. The complaint sets out the will, and the power of sale therein contained, It describes the land in dispute, and avers that the executrix had commenced negotiations to sell it to one Stevens, who was an adjoining owner; that the defendant was despoiling the land of its timber, and, in spite of notice to discontinue his trespasses, was persisting in the same, claiming that his father had agreed to give him the lot; that he was dissatisfied with the will, and was acting as he did to intimidate said Stevens, and prevent a sale, and embarrass the plaintiff in the performance of her duty as executrix; that the defendant is nervous and excitable, and indiscreet and stubborn, and threatens to continue his cutting and removal of timber. An injunction is asked to restrain his interference with the land by acts of waste, and treble damages for the injury done, and such further relief as may be needed. While the complaint is somewhat inartificial, and not very definite in its aim, I think we ought not to narrow its obvious scope into the allegation of a mere cause of action for trespass. It may justly be treated as an effort to quiet the title and settle the right of the executrix to sell the land as part of the testator's estate, and to remove a very serious obstruction to the performance of the plaintiff's duty. The action came on for trial at a circuit and special term, and before a jury. It was, however, disposed of by the court. Treble damages were waived, and the jury were directed to find for the plaintiff a specific amount.

No question appears to have...