Sherman v. Page

Hardin, J.: I think it must be held that the executor, Page, derives title to . the property of the deceased, so far as he had any, in virtue of the will of the testatrix,- and that he took just such title and no more than the terms of the will carry to him. (Hartnett v. Wandell, 60 N. Y., 346, and cases there cited in opinion of Allen, J.) The testatrix appoints him executor for carrying out the provisions “ of her will, so far as they relate to parties and property in this State.” Here we have the exact words, which are the sole foundation of his title to the property of the deceased. They contain the. limit of his powers in respect to her property and the disposition of it. Undoubtedly all personal property possessed by the testatrix in this State at the time of her. death passed directly upon the happening of her death to the executor Page. The circumstances surrounding the testatrix at the time of her execution of the will may be reverted to, to aid in the construction of any ambiguous or uncertain provisions. It appears that she was residing in Perry, Wyoming county, when she made her will; that she continued to reside there; that she had property in this State; that she had relatives and friends who were to receive from her bounty in this State. She likewise had a large property in Michigan, and friends and relatives there and elsewhere. And it must be presumed that she understood the well settled rule of law, that her property would pass by her will to the person or persons she named as her executors. With such knowledge, it is very easy to understand how she might deem .it advisable to commit to the care of Page, a resident of this State, the personal property owned by her being in this State, and direct that “ so far as the provisions of this my last will ” relate to parties and property in this State he should be her executor. We turn to the further language used by her in regard to the persons named as executors in the State of Michigan. [64] She says: “ I appoint Charles N. Grant, of East Saginaw, and I). H. Jerome, of Saginaw City, Michigan, nvy executors for everything,, so far as they relate to parties and property in the State of Michigan and elsewhere.” Thus the title to the uproperty in the State of Michigan” seems to be conferred upon these two executors. The words “ executors for everything, so far as they relate to parties and property,” seem ample to vest title to the property belonging to the deceased in those executors thus named for the purposes of the trust. These words, coupled with the words in respect to the executoi, Page, exclude all idea that she intended to appoint Page as executor to receive “ title to the property in the State of Michigan belonging to her then, situated therein.” It certainly was competent for her to name executors for different States and to define their powers and duties. (Despard v. Churchill, 53 N. Y., 192; Hartnett v. Wandell, 60 N. Y., 350.) The limited power or title to property conferred upon Page is made to appear more clearly by the very peculiar words of the appointment of the Michigan executors. She did not stop with giving them power or an appointment co-extensive with the State of Michigan as to parties and property therein, but she adds the words “ and elsewhere.” Following as they do in the same clause with the two provisions adverted to, it must be considered that they relate to parties and property elsewhere than in the States of Michigan a/nd New York. The conclusion seems to follow, from what has already been said, that the executor, Page, performed the full duty cast upon him in respect to “ the property,” as such, of the deceased, when he converted into cash whatever was “in the State of New York” at the time of the death of the testatrix, and disbursed it according to the terms of the will. Nor do I think he was, under the peculiar language of the will, called upon to file an inventory of the property of the deceased not within the State at the time of her death. Manifestly, a general executor of the whole estate, who is appointed in the State of the domicil of the deceased, must put upon the inventory all the property which comes to his knowledge, wherever situated. Such is the rule as laid down in Matter of Butler (38 N. Y., 397). In [65] that case the executor had duties to perform as to property situated iu other States, and in the absence of any conflicting administration, it was held he would take the title to property situated beyond the State where he was appointed, and he would be authorized to receive pay upon notes and other choses in action, and give acquittances therefor. (Parsons v. Lyman, 20 N. Y., 103; Petersen v. Chemical Bank, 32 N. Y., 21.) Nor has Page, the executor, been given any interest in or title to the assets in Michigan, which would entitle him to letters of administration with the will annexed in that State. So long as the executors Grant and Jerome chose to prove the will there, and take upon themselves its execution, they were presumptively exclusively entitled to administer there. (1 Williams on Executors, 351; 3 Swabey & Tristram, 423, 456.) Nor do the facts presented here warrant the conclusion that it was a neglect of duty on the part of Page to omit to go into the State of Michigan, and take legal proceedings to obtain possession of the proceeds of the property in that State. I have attempted to show that he had no right to the property specifically, because it passed from the -testatrix to Grant and Jerome as executors, and they were entitled to use it: first, to pay any debts of the testatrix; and secondly, it was their duty to apply it to the discharge and settlement of the legacies given in the will If they fail to perform such duty, the courts of that State, it must be assumed, upon a proper application by the creditors, if any, or by the legatees or distributees, would give the proper directions, in compliance with the rules of law, equity and comity. Doubtless the rule prevails in that State, which has been recognized over and- over again in this State, to wit, a distribution according to the law of the place of the domicil, if distribution or payment be ordered. (Parsons v. Lyman, 20 N. Y., 103 Harvey v. Richards, 1 Mason, 381.) Or else cause the proceeds to be remitted to the executor of the domicil, according to a rule laid down in this State. It was said in Despard v. Churchill (53 N. Y., 192), that it is not a question of jurisdiction as to the proceeds, but of judicial discretion under the circumstances of the particular case. [66] It is insisted in behalf of the appellants that the case of Schultz v. Pulver (11 Wend., 361) is an authority favorable to them. In that case a majority of the court agreed to a judgment declaring the administrator liable for negligence in omitting to collect some $650 on a note against a party in Pennsylvania, as the debtor was entirely responsible, and the administrator in this State might, by obtaining letters of administration in that State, collect the note. That case is wholly unlike the one before us, and cannot aid the appellants, if the views I have already expressed are correct! If the funds not needed in Michigan, to pay debts or legacies there, had been remitted to Page, the executor, it would doubtless have been his duty to pay them over to the parties entitled thereto, and we find nothing in the terms of the decree entered, absolving him from that duty. But the learned counsel for the appellants seems to think that the statement of the accounts already had might change the course of the funds, or interfere with a proper disposition thereof. The will, as we have seen, is an unusual one in the respects we have considered it, and for greater caution it may be proper to insert in the decree a provision declaring “ that m case fwrther assets or proceeds of assets shall come to the hands of Page as executor, from the hands of Grant and Jerome, or from any other source, then the same be accounted for to the surrogate, and paid over according to the terms of the will.” The surrogate’s decree will be so modified, and as so modified affirmed, with costs payable out of the estate. Takcott, P. J., and Smith, J., concurred. Ordered accordingly.