Slooten v. Dodge
| Decision Date | 12 March 1895 |
| Citation | 145 N.Y. 327,39 N.E. 950 |
| Parties | VAN SLOOTEN v. DODGE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Second department.
Claim by Mary L. Van Slooten against Edward Dodge, as administrator with the will annexed of Harry E. Dodge. From a judgment of the general term (27 N. Y. Supp. 666) affirming a judgment of the general term of the Second department, the executor appeals. Reversed.
H. B. Hubbard, for appellant.
Merritt E. Haviland, for respondent.
This respondent presented a claim against the executor of the estate of Harry E. Dodge, deceased, for a diamond ring, of the value of not less than $500, which she alleged the testator had given to her, and which, after his death, at the request of the executor, she had handed to him for inspection. She alleged that he had refused to return it to her, upon the ground that it belonged to the estate of the deceased. The executor disputed the validity of the claim, and, upon his offer to refer the same, a reference was consented to and ordered. The referee reported in favor of the claimant. His report was confirmed at the special term, and a motion to set it aside and for a new trial was denied. Upon appeal the general term affirmed the judgment and the order, but by a divided court, Mr. Justice Cullen dissenting from his associates, upon the ground substantially that, as no claim against the deceased had been established, no recovery could be had in such a proceeding. I think his was quite the correct view of the case. I think that the findings of the referee that the deceased, in his lifetime, had given the ring to the claimant, and had delivered it to her with the intention that she should possess it, were in accord with the evidence in the case. There is but little evidence from which a contrary inference could be made. That being the case, and the claimant having shown that she had lost possession of the ring solely through the act of Mr. Wheeler, who was the executor, it is difficult to understand how such a proceeding as this could be maintained. The finding of the referee with respect to the claimant's loss of possession of the ring was as follows: ‘That shortly after the death of said Harry E. Dodge the claimant delivered said diamond ring to said Charles H. Wheeler, as executor, at his request, but not intending to, nor did she thereby, release or transfer her right and title thereto as owner.’ It seems that upon the occasion of a certain interview between the executor and the claimant, a short time after the testator's death, he asked her for and obtained the ring from her, either (according to her account) upon the pretext that he wished to inspect it, or (according to his account) upon his request that she should give it to him for the purpose of having it inventoried. The conflict of evidence upon the manner in which Mr. Wheeler, the executor, had acquired the ring, is not very material, and the referee has settled it by the finding above mentioned. The difficulty with the recovery in this case is, as Mr. Justice Cullen has pointed out, that this is a special proceeding, and is maintainable solely by virtue of the provisions of the statute, which, at the time of the agreement to refer, were contained in 4 Rev. St. (8th Ed.) pp. 2561, 2562. Those provisions prescribe a publication by the executor or administrator of a notice, requiring all persons having claims against the deceased to exhibit the same at a place and time specified, and authorize him, if he doubt the justice of any such claim, to enter into an agreement in writing with the claimant to refer the matter in controversy. It is obvious that a claim could only be the subject of an agreement for a reference with an executor if it existed as such against the deceased, and was one for which his estate had become answerable, and which, therefore, would devolve upon his executor or administrator by virtue of the representative nature of his office. If this ring belonged to the claimant by gift from the testator in his lifetime, its subsequent taking...
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In re Salem, Bankruptcy No. 00-30037 (CGM).
...be prosecuted in his or her individual capacity because the individual has clearly failed in the role of executor. Van Slooten v. Dodge, 145 N.Y. 327, 331, 39 N.E. 950 (1895). ...
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Watkins v. Madison County Trust & Deposit Co.
...also lies against him in his representative capacity. De Valengin v. Duffy, 14 Pet. 282, 290, 291, 10 L. Ed. 457; Van Slooten v. Dodge, 145 N. Y. 327, 39 N. E. 950. Watkins v. Eaton (C. C. A.) 183 F. 384, is therefore not controlling here. Indeed, it does not appear that, had we thought in ......
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Kirchner v. Muller
...is that for their torts trustees or executors are liable in their individual, and not in their representative, capacity. Van Slooten v. Dodge, 145 N.Y. 327, 39 N.E. 950;Norling v. Allee, City Ct. Brook., 10 N.Y.S. 97; later appeal to same effect, City Ct.Brook., 13 N.Y.S. 791; affirmed 131 ......
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Dodd v. Anderson
...to him upon the judicial settlement of his accounts. Austin v. Munroe, 47 N. Y. 360;Ferrin v. Myrick, 41 N. Y. 315;Matter of Van Slooten v. Dodge, 145 N. Y. 327, 39 N. E. 950;Parker v. Day, 155 N. Y. 383, 49 N. E. 1046;O'Brien v. Jackson, 167 N. Y. 31, 60 N. E. 238. If one who is actually a......