Osgood v. President & Directors of the Manhattan Co.

Sun am, Senator. One of the questions presented for the. consideration of the Court, is, whether the petition to the Surrogate by the executors of Mrs. Osgood, stating that the. personal estate of the deceased was insufficient to pay her debts, and requesting the aid of the Surrogate in the premises, pursuant to the statute, &c. to which was-annexed a [621] Statement of her personal effects, sworn to by the executors, was properly admitted by the Judge at the Circuit, as evidence of her insolvency at the time she executed to her daughters the deeds of the lots in Cherry Street. This testimony was admitted by the Judge who presided at the Circuit ; and his decision was confirmed by the Supreme Court. It now comes to this Court on a bill of exceptions to his opinion on this and other points. Having myself arrived at the conclusion that this evidence should not have been received, it will be unnecessary for me to .consider the other points in the cause. in order to make out their case, the plaintiffs below were bound to shew affirmatively, that the defendants were the heirs and devisees of Mrs. Osgood. To do this, they were compellable to make out, in proof, that the voluntary conveyances to her daughters were void under the statute to prevent fraudulent conveyances, as to creditors, by reason of her insolvency when she executed the deeds ; and the petition and schedule were offered as prima facie evidence of this. Plaintiffs below were bound to .shew affirmatively that defendn tsr were heirs, &e. It will be recollected that this petition was never acted on ; and that the executors declined proceeding upon it, on the ground that they had made it out under a misapprehension. The statement of the debts offered to the Surrogate, did not specify the time when they were contracted : so that we cannot, from this, decide whether they arose before or after the conveyances were executed ; and it was made by persons having only an interest in right of their wives, in the premises in question, except Walter F. Osgood, who was, in fact, interested to avoid his mother’s conveyance. Petition never acted on. Debts not da* tec{. Extent of executors’ interest. It is well settled that if improper evidence be given, although it may be cumulative only, the judgment must be reversed ; for we cannot say what effect such evidence may have had on the minds of a jury. (Marquand v. Webb, 16 John. 89.) This evidence should not, in my opinion, have been admitted, at all, against either the heirs or devisees, admitting that the. insolvency of Mrs. Osgood, at the time of executing the deeds, rendered them void as to creditors. Upon this point, I do not mean to give an opinion $ but the acts [622] of executors ought not to bind heirs or devisees, unless in the case of an actual decree of sale by the Surrogate. In the present case, too, the executors themselves, after presenting the petition, declined acting upon it. Under such circumstances, especially, the petition and schedule should not be received against the heirs and devisees ; and particularly in this case, where it goes to charge them personally with the debt of the ancestor. The form of entering judgment for the plaintiffs below, whether against the lands of the ancestor, or against his land and the person of the defendants, cannot alter our decision. [621] If improper evidence be given, though merely cumu-** lative, judgment will be reversed. [622] Judgment against executor, no e video heir. Even a judgment against an executor is no evidence against the heir. (Mason’s Devisee v. Peter’s Administrator, 1 Munf, 437, 455, 456.) If this is inadmissible against the heir, merely to fix the amount of the demand, upon what principle can it be said that an ex parte statement by executors (though under oath) shall be evidence for a much more important purpose ; to avoid a conveyance of real estate, and charge the persons and estates of heirs and devisees as upon a false plea. Grantor’s con, fession, after grant, not evidence against grantee. A fortiori, the confession of her tixecutors. It was the duty of' the plaintiffs below substantially to make out their case, before the defendants could be called upon for their defence ; and to effect this, it was necessary for them to prove that the conveyances by Mrs. Osg'ood to her daughters were void. Could this be done by admissions of executors, or any other persons, who were not grantees t I think not. Mrs. Osgood’s own confessions, after she had executed the deed to her daughters could not have been admitted. (Phœnix v. Dey, 5 John. Rep. 412.) And will it be contended that executors, named in her will, can make an admission of more effect than her own ? It appears to me this point is settled by the opinion of the late Chancellor in Mooers v. White, (6 John. Ch. Rep. 360,) and Arnold v. Bell, (1 Hayw. 397, note.) Confessions of' one in prejudice of another, not receivable, unless both have a joint interest ip possession. It will be recollected that the conveyances to the daughters were in severalty. There could, therefore, be no joint interest in them till they were avoided. To accomplish this, any acts done by the executors, without the concurrence of" the devisees, could not be used as evidence upon any princi-. [623] pie. To warrant receiving the admissions of one in prejudice of another, they must have a joint interest in possession, not a mere community of interest. (Gray et al. v. Palmers et al. 1 Esp. N. P. Cas. 135. Hackley v. Patrick, 3 John. Rep. 536. Smith v. Ludlow, 6 id. 267, 269. Whitney v. Ferriss, 10 id. 66.) The case cited at the bar, of the King v. Hardwick, (11 East, 578.) does not affect the question. There the admission of a parishioner, liable to be assessed for taxes, was received, on the ground that the parish was aggregate company of which he was a member. Beside, I think the ground upon which that case was put very questionable, at least; and 1 find, that in Connecticut, it has been directly overruled as to a corporation aggregate. (Hartford Bank v. Hart, 3 Day, 493.) On the whole, I am of opinion that the evidence was improperly admitted ; that the judgment must, therefore, be reversed ; that the record be remitted ; and a venire de novo issue from the Court below. Whether confession of a corporator is evidence against a corporation. The Court being unaninimously of this opinion, it Was thereupon ordered, adjudged and decreed, that the judgment of the Supreme Court be reversed, with costs in error, to be taxed, for the plaintiff in error ; and that the transcript be remitted to the said Supreme Court; and that the said Court award a venire facias de novo. Sanford, Chancellor, being a stockholder in the company, gave no opinion.