Moran v. Morrill

Laughlin, J.: The action is brought against the executor and trustee of Edward Moran, deceased, in his representative capacity, to recover the possession of certain paintings alleged to be owned by the plaintiff. Two causes of action to recover different pictures are set forth. The plaintiff gave evidence tending to show that on the 30th day of August, 1899, the testator in his lifetime, by an instrument in writing under his hand and seal, assigned and transferred the paintings to which the first cause of action relates to her, and that the assignment was duly delivered. The assignment recited that the paintings were in testator’s possession, and also contained the following declaration; “ And I further declare that such possession of said paintings as I may hereafter have is to hold and manage the same as the property of said Annette Moran, I acting as agent for her in managing, holding and controlling the same.” The paintings remained in the possession of the testator pursuant to this agreement until his death. The will was executed on the 7th day of June, 1901, and the testator died two days thereafter. The testator thereby, in disregard of his assignment to the plaintiff, expressly gave, devised and bequeathed these paintings to his executor in trust for other purposes. The second cause of action related to other paintings alleged to have been given by the testator to the plaintiff, and she gave evidence tending to establish a gift thereof inter vivos. The paintings came into the hands of [442] the executor as part of the estate, and were inventoried by him as such. After demanding possession, which was refused, the plaintiff brought this action. The executor never asserted any individual right, title or claim to the property; but he contended and avers in his answer that the paintings were part of the estate, and that it was his duty as executor to hold them. At the close of all the evidence, motions were made by each party for direction of a verdict. The court reserved its decision thereon and submitted special questions to the jury. The questions submitted were whether the testator made a valid gift of the pictures to the plaintiff in his lifetime and their value. The plaintiff is the widow of the testator. There was a fair question of fact as to whether the assignment was delivered to her. The court, in submitting this question, instructed the jury in effect that, if they found that it was delivered, there was a valid gift. There was also a fair question of fact as to whether there was a gift inter vivos of the other paintings. The jury found that the value of the paintings was $65,000. The court thereupon nonsuited the plaintiff upon the ground that the action was in tort, and was improperly brought against the executor in his representative capacity, and the plaintiff duly excepted. This is the principal question arising on the appeal. The paintings were left in the possession of the testator. He held them as bailee. -His possession devolved upon his executor, who likewise held them lawfully in the same capacity. The general rule is that where a cause of action arises on contracts made with executors or administrators, or arises wholly out of some act done by them in their representative capacity, they are only liable individually. (Matter of Van Slooten v. Dodge, 145 N. Y. 327; O'Brien v. Jackson, 167 id. 31; Reimers v. Schmitt, 68 App. Div. 299.) In this case, while a demand for possession was doubtless necessary before bringing the action, the right to make the demand existed against the testator in his lifetime, and against his executor after his death. The testator as bailee owed a duty to the plaintiff to exercise reasonable diligence in the care and preservation of this property, and that duty devolved upon his executor. The defendant admitted in his answer that he took possession of the property as executor, and, as has been shown, his possession was lawfully [443] derived from the testator. It could become unlawful only upon a demand and refusal to deliver the property to the plaintiff. The right to possession was vested in the plaintiff, and if she had made a demand upon the testator her cause of action would have been complete against him, and would exist against his representatives as such. This, I think, brings the case within the rule that executors are liable in their representative capacity to the true owner for property received by them in such capacity. (De Valengin's Administrators v. Duffy, 14 Pet. 282; Wall v. Kellogg's Executors, 16 N. Y. 385; Dunham v. Fitch, 48 App. Div. 321.) The plaintiff merely seeks to recover her property or its value if possession cannot be delivered. It is true the complaint alleges that possession was wrongfully withheld; but the demand was confined to the possession of the property or its value, and that is the only claim made by her counsel upon the trial. Undoubtedly the refusal of the executor to deliver this property might have been treated by the plaintiff as a conversion, but she seeks merely to obtain the possession of the property or its value, and nothing in the nature of damages for a tort as such was claimed at the trial. No execution for the recovery of money can be issued against the executor without leave of the Surrogate’s Court, and it must be shown as a basis therefor that there are assets in his hands. It is manifest that no body execution could be issued against him in his representative capacity, so that whatever claim the plaintiff might have against him for any other cause of action is necessarily waived by bringing the action against him in this form. No error on the trial prejudicial to the respondent is assigned which requires special consideration. It follows, therefore, that the judgment and order should be reversed, with costs, and the plaintiff should be permitted to enter judgment in proper form against the defendant upon the special verdict. Van Brunt, P. J., Patterson and Hatch, JJ., concurred; Ingraham, J., dissented.