Willis v. Sharp

• Decision Date: 04 June 1889
• Citation: 113 N.Y. 586,21 N.E. 705
• Parties: WILLIS et al. v. SHARP.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 586

21 N.E. 705

WILLIS et al.

v.SHARP.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme court, general term, Second department.

Action by William P. Willis and William H. Townsend against Aurelius S. Sharp, as executor of the will of Fida C. Sharp, deceased. The complaint alleged plaintiffs' copartnership; the death of Fida C. Sharp, on some date between February 5 and April 28, 1885; her residence in New York city at the time of her death; that defendant was her husband, and the sole qualifying executor named in her will; the due probate of her will, and issuance of letters testamentary to the defendant; that the decedent had carried on a tailoring business, which was continued after her death, under management of defendant, and under authority in her will; the sale and delivery by plaintiffs to defendant, as executor, between July and October, 1885, of merchandise used in the business and necessary to it, and of the value of $1,380.71; part payment by returned merchandise; that the estate had had full benefit thereof; that demand had been duly made for payment, but no part had been paid; defendant's irresponsibility, but sufficient funds of the estate to pay plaintiffs' claim; it set out the will in full; demanded judgment for $1,315.71, with interest and costs; and that defendant be required to pay it out of the funds of the estate, and such relief as seemed just. The will provides: ‘(1) I direct that all my funeral and testamentary expenses, and all my just debts, be paid and discharged as soon after my decease as conveniently may be. (2) After the payments made as above directed, I give, devise, and bequeath all * * * my property, both real and personal, * * * to my executors, * * * to be held in trust, and the income accruing thereon * * * applied to the * * * support and education of my son * * * until he shall arrive at the age of 25 years, when the said property * * * shall be divided between my said son and husband, share and share alike.’ The third provision is that, upon the death of either before the son reaches his 25th birthday, the survivor shall take the whole estate. Then comes paragraph 4, on which the plaintiffs rely to maintain their action: ‘It is my wish, and I hereby direct, that after my death some legitimate business shall be carried on by my executors for the benefit of my said son, Harry, and that my said husband shall be retained as the manager thereof at a salary of $1,500 per annum.’ To the allegations of the complaint the defendant, as executor, demurred, upon the ground of their insufficiency to constitute a cause of action against the estate. The special term overruled the demurrer, and its ruling was affirmed by the general term. Defendant appeals.

Alex. V. Campbell, for appellant.

Walter S. Logan, for respondents.

ANDREWS, J.

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This presents solely the question whether, upon the facts stated, a case was made for legal or equitable relief against the estate which he represents. The question whether other parties interested in the estate, either as creditors or as legatees or devisees, should have been joined as defendants, does not arise. They will not be concluded except so far as the executor may be deemed to represent their interests; and the defendant, not having taken any objection on the ground of defect of parties, is deemed to have waived it. Code, § 499. It appears from the complaint that on or prior to April 28, 1885, Fida C. Sharp died, leaving a will of real and personal estate, whereby she devised and bequeathed all her property to Aurelius S. Sharp, her husband, and Elsie Sharp, as executors in trust to apply the income therefrom, or such portion thereof as they should deem just, to the education, support, and maintenance of her son, Harry, until he should arrive at the age of 25 years, and then to divide the property and accumulations between her son and her husband, share and share alike, with cross-remainders in case of the death of either prior to the time of division. She directed that after her death some legitimate business should be carried on by her executors for the benefit of her son, Harry, and that her husband, the defendant, should be retained as manager thereof at a salary of $1,500 a year, and this was followed by a provision empowering her executors ‘to sell or make such other disposition of my real and personal estate as the safe conduct of such business shall seem to require.’ Her husband and her son, Harry, were the sole beneficiaries under the will, there being no legacies or provisions in favor of the other persons, except that the testatrix directed that her debts and funeral and testamentary expenses should be paid as soon as practicable after her decease. The testatrix, at and for a long time prior to her death, was engaged in the merchant tailoring business in the city of New York, and after her death the same business was carried on by her husband, as executor, under the power contained in the will, he alone having qualified as executor. Between the 15th of July, 1885, and the 15th of October, 1885, the plaintiffs sold and delivered to the defendant, as executor, for the purposes of said business, goods for the price and of the value of $1,380.73, which goods, the complaint alleges, were necessary for the conduct and carrying on of the business, and were purchased and used by the defendant for that purpose, and that ‘the estate of said Fida C. Sharp has had the full benefit thereof.’ It alleges that no part of the purchase price of the goods, except the sum of $65, has been paid; that the defendant individually is irresponsible; and that the plaintiffs have no recourse for the payment of their debt, except the same can be paid out of the funds of the estate in the hands of the executor, which, it is alleged, are sufficient for that purpose, and that the defendant has neglected and refused on demand to pay for said goods. The relief demanded is a judgment against the executor requiring him to pay the debt out of funds and property of the estate in his hands, and for general relief. By the general...