Hudson v. Reeve

Strong, J. It is settled that an assignee of a specialty cannot maintain an action upon it at law in his own name, without an express promise of payment to him by the original debtor. (Dubois v. Doubleday, 9 Wend. 217.) In this case, no such express promise was proved, or alleged. On the contrary, the defendant avers in his answer, that the payments made by him to Nancy Reeve were made to her in her character as executrix of the obligee; and he denies that the bond was her individual property. That the bond had become the individual property of Nancy Reeve, there can be no doubt. (Kirby v. Potter, 4 Ves. 748.) If she had not been the executrix of the obligee, the delivery of the bond to her, by an executor, in pursuance of the specific bequest contained in the will, would have vested the property in her, subject only to contribution in case there should be a deficiency in the assets for the payment of the debts of the deceased. As executrix she could undoubtedly assent to the legacy ; and that would equally vest the title to the bond in her. The endorsements upon the bond given in evidence would seem to indicate that she was aware of the distinction between holding the bond in her own right and as executrix. She subscribes" the first receipt for interest, after the death of Joanna S. Reeve, as executrix: the subsequent receipts are subscribed by writing her name, without any addition. At the time prescribed by the statutes for the payment of legacies, in cases where no specific directions are given in the will, if not before, the legatee had a right to the possession and enjoyment of the property given her ; and there is nothing to show that she did not intend to [92] exercise the right. The death of Nancy Reeve happened after the revised statutes took effect, and therefore her executor could not interfere in the administration of the estate of Joanna S. Reeve; nor could he conduct a suit at law as her representative. If it became necessary for him to institute such a suit for the recovery of money to which, as executor of Nancy Reeve, he was equitably entitled, on a specialty given to her, he could do so only by taking out letters of administration with the will annexed. He attempted to do so, and evidently with the sole view to enable him to recover the money due on the bond. The defendant interposed, and took out such letters himself. He avers in his answer, (which, however, is not verified by his oath,) that he did not intend to obstruct the plaintiff in the recovery of the amount due on the bond at law. That was not his object, But he does not state what other object he had in view ; and it is difficult to conceive of any other. Joanna S. Reeve had been dead seventeen years. The plaintiff avers that the debts had all been paid, and the defendant admits that he does not know of any debt existing at the time of putting in his answer. The defendant, it is true, avers that her estate had not been fully administered : but he does not state in what particular ; and it is evident that in this, he refers to the bond in question, alone. Had he in fact supposed that the estate of Joanna S. Reeve had not been substantially settled, and had he been anxious that it should be, he would not have deferred taking out letters of administration from the- time of the death of her executrix, in November, 1844, until January, 1847. It was not denied, on the argument, but that if the real creditor is unable to recover a debt at law, in consequence of some technical rule, a resort may be had to a court of equity. That principle is too well settled to be disputed. (Story's Eq. Pl. 374, § 473.) In this case the plaintiff cannot maintain a suit at law in his own name, as has already been shown. Nor can he use the name of the present legal representative of the obligee; as such representative is himself the debtor. He cannot therefore maintain a suit at law. ■ It was suggested on the argument that the plaintiff might ■ [93] have an effectual remedy in the surrogate’s court. That the defendant might be summoned before that tribunal to account and pay over what might be found to be due. But to account for what? For the assets of the testatrix left unadministered at the time of his appointment. Now such assets, so far as they related to the bond in question, had been administered long before. The executrix of the obligee was not, ex officio, bound to collect the amount of a bond specifically bequeathed. The duty to do so, if it had ever existed, ceased the moment that the bond was delivered to, and accepted by, her as legatee. All that could be required of the legal representative appointed after that, would have been a permission from him to use his name as plaintiff in a suit at law. But he would have no more to do with the suit, nor with the money when recovered, than the ordinary assignor of any specialty. The surrogate could not, therefore, have called the defendant to an account for the bond in question; nor would his sureties have been responsible for the payment of the amount due on it. But if it had been otherwise, if the defendant could be called upon by the surrogate to account for the moneys due on the bond, would that afford to the plaintiff a direct, certain, and adequate remedy, such as is requisite to oust this court of jurisdiction ? The defendant is the debtor from whom all the funds would have to be collected before the debt could be paid. Before paying the debt, he would deduct all the expenses' of administration, including his own per centage, and he would also be entitled to a delay of eighteen months before he could be called upon to account at all. Some of these difficulties, it is true, might exist in the settlement of any estate, and would not ordinarily justify a resort to a court of equity. It is necessary that the estates of deceased persons should be settled by executors or administrators, and the law justifies a delay which it compels. But so far as it relates to the action of the defendant in this case, there was no necessity for the interposition. The estate of Joanna S. Reeve had been fully settled. The difficulties have been thrown in the way of the plaintiff’s recovery at law, without the slightest exigency. To allow the de [94] fendant thus to postpone the payment of his own debt, to embarrass the plaintiff in its recovery, and to retain for his own use a part of it which properly belongs to others, in the shape of commissions to himself, would be inequitable; and I am satisfied that this court can, and ought- to, afford the requisite remedy.(a) The defendant must pay the amount due with costs ; and a decree must be entered accordingly. Footnotes [(a)] It is provided by statute, (Laws of 1835, ch. 197, 2 R. S. 3d ed. 445, § 5,) that the assignee for a valuable consideration of any bond, note, or other chose in action, may sue thereon, and recover in his own name, in case the assignor is dead, and no executor or administrator has been appointed upon his estate, or if such executor or,administrator has no interest in the thing assigned, or refuses to prosecute for the same. The above case does not come within this section; for an administrator had been appointed upon the estate of the assignee, and such administrator had an interest in the thing assigned; and he did not refuse to prosecute for the same, but he could not prosecute; for he could not sue himself. Had there been no administrator appointed upon the estate of the obligee in the bond, the plaintiff could have sued upon the bond at law, under this section of the statute, in his own name, as assignee by operation of law.