Luers v. Brunges

Van Vorst, J. If the fact "was that the mortgage in question was among the assets of the testator, in specie, there can he no question but that by operation of law the plaintiffs, who have been appointed administrators, de bonis non, with the will annexed, have a legal title thereto. By their appointment, in the room of the executors named in the will who have been removed, the' plaintiffs became the sole representatives of the estate and are charged with the administration of the assets not already administered. Their title dates from the death of the testator, and they may recover not only upon causes of action in favor of the deceased in his lifetime, but equally for any cause of action after his death in regard to the assets (Redfield on Wills, vol. 3, 103). An administrator, cum testamento atnnexo, has the same rights and powers, and is subject to the same duties, as if he had been named executor in the will. He takes all the powers, as well as the rights and duties, which belong to the executor as such, whether these powers are conferred by statute or exist at common law (Conklin agt. Egerton’s Administrator, 21 Wend., 430; 2 Rev. Stat, 16, sec. 22 [2d ed.]). In Walton agt. Walton (4 Abb. Court of Appeals Decisions, pp. 512, 516) it is said: “ For all legal purposes the plaintiff ” (who was administrator, de bonis, with the will annexed) c< is the sole legal representative and possessed of the unadministered assets of the deceased and is entitled by law to.the custody of the property and the possession of the assets for the purpose of administration. He may bring suits to recover [286] the property against any person in possession of it” (See, also, Redfield on Wills, vol. 3, 101; Williams on Executors, vol. 1, 823). Although it does not appear that the mortgage sought to be foreclosed did, in specie, belong to the decedent, yet, for the purposes of this demurrer, sufficient is alleged to show that it was taken and held by the executors as an asset and as the property of the estate of the decedent .That it is such asset and is the property of the estate, the obligors and mortgagors, upon the undisputed facts, are precluded from now denying, in so far as the issue of law raised by the demurrer is "concerned. The complaint alleges that the bond and mortgage were executed and delivered to secure the payment to Fuller and Brunges, as executors of the last will and testament of Henry Luers, deceased, the sum secured thereby, and that the same was to be paid to them and their successors. Persons are presumed to mean what they say, and we are not warranted in giving an import to words opposed to the sense in which they were manifesly used. This is emphatically so when they speak through an instrument under seal. The language of the mortgage, impresses it with a special and .limited character as to the fund it represents and the direction in which it is to go. Although, in fact, given to secure a debt due to the estate, had the mortgage been executed to Fuller and Brunges, individually, and not in their representative character, other questions would have arisen. But Brunges, one. of the obligors and mortgagors, was himself an executor. As far as he is concerned, the bond and mortgage was executed by him, individually, to himself, as executor; and such act amounts to a distinct assertion, on his part, that the security so taken was the property of the estate he represented. But both are equally bound by the facts stated in the bond and mortgage, and appearing in the complaint. [287] Fair construction would be against any claim bn the part of the mortgagees, should any such be interposed, that the bond and mortgage were their individual property. There is no room, therefore, at this time, for the conclusion that the mortgage is not the property of the estate; and if such be its character, the plaintiffs are legally and equitably entitled to its possession in right of their office as. administrators, with the will annexed. In Walton agt. Walton (supra), it is decided “that the administrator, de bornis non, may recover the property of any person in possession of it, if it exists in specie, in the condition in which it was at the testator’s death, or if it has been converted into money.” The opinion in that case adds: “ Wherever they are found, in whose hands soever they may be, such person is bound to deliver them over into the possession of the plaintiffs.”, In the case of Walton agt. Walton, among other things, real estate, bid in by the former executor on a mortgage executed to the testator, was held to be a purchase for the estate, and that the representatives had the right to elect to take the purchase. And, in general, I should say, that not only the unadministered property of the testator in specie would, by operation of law, pass to the administrator, de bonis non, with the will annexed, but also the moneys and securities realized on a sale thereof for the purpose of further administration, and yet not fully administered, and which have not lost their indentity, and can be distinguished from the individual property of the executor, will also so pass. We are not shut up to any presumption, in the entire absence of facts, that in taking the bond and mortgage, the executors were doing an unauthorized act, or that they have intentionally converted to their own individual use, the property of the estate, but, on the other hand, the presumption is, that they were legally and honestly taken in a transaction affect [288] ipg the estate, and that they were properly made and executed to the executors as such. And this action is an election on the part of the plaintiffs to take the bond and mortgage, although executed after the testator’s death, as assets to be fully administered under the will. And they are justified in so taking them, as representing a debt due to the estate, or as property of the estate, invested and legally converted into that form, and which in their converted form, are readily distinguishable. It is quite true that there are difficulties which seem to lie in the way of regarding the plaintiffs as succeeding to the bond and mortgage, made after the death of the testator, growing out of the rule advanced in several reported cases, that the administrator, with the will annexed, derives' his title from the decedent and not from the executors who have been removed (Carrick agt. Carrick, 23 N. J. Eq., 364; Com. For. Missions, 27 Conn. R., 344). But this difficulty, under the. facts before us, is unsubstantial. There exists in this case, a privity between the plaintiffs and the executors, .whom they succeed, as to all rights and duties, growing out of the character impressed upon the bond and mortgage by their language, and the. purpose for which they were evidently taken. This is an action in equity. An equitable title is sufficient to uphold it. The demurrer admits, in substance, that the bond and mortgage are the property of the estate, and that the amount thereof is properly payable to the mortgagees, as executors, and to their successors. In this connection the word “ successors ” is quite important, and, in itself, repels the idea suggested by the defendant’s counsel that an assignment from the executors was necessary to vest the property in the plaintiffs. ‘ The obligations, by their terms, determine the rights of the plaintiffs to hold and enforce their payment. Where the cause of action is such that the first administrator may sue in his representative character, the right of [289] action devolves on the administrator, de bonis non (Catherwood agt. Chaubaud, 1 B. & C., 150); wherever the money recovered will be assets, the executor may sue for it and declare in his representative character ( Webster agt. Spencer, 3 B. & Ald., 362-364; Smith agt. Pearce, 2 Swan [Tenn.], 127; Burrus agt. Roulhae, 2 Bush [Ky.], 39). What is said in the complaint about the plaintiff having been also appointed trustee under the will of the testator in the place of the trustees removed, is immaterial. The nature of the trusts is not disclosed. It does not appear that the bond and mortgage in question form a part of any trust estate. They were not executed to the trustees but to • the executors as such. It must be decided, therefore, that the first ground of demurrer is not well taken, and that if there be any fact which disentitles the plaintiffs to recover they must be interposed by answer. In support of the second ground of demurrer it is urged that it does not appeal’ that the principal sum secured by the mortgage is due. Whether or not the whole amount is due will depend upon the condition written in the bond. The condition is not in terms given in the complaint, but a conclusion is drawn by the pleader therefrom as though it was fully stated. But the complaint alleges the interest to be in arrears and unpaid from the 1st day of ¡November, 1877.. That is sufficient to uphold this action for a foreclosure of the mortgage. On the trial, when the bond is offered in evidence, the extent of the relief to which the plaintiffs are entitled will be determined. There must be judgment for the plaintiffs on the demurrer, with liberty to the defendants to answer on payment of costs.