Saperstein v. Ullman , 63 N.Y.S. 626 ( 1900 )

ADAMS, P. J.

By the uncontroverted facts of this case, it appears that Amelia Ullman died at the city of Watertown in August, 1897, leaving a last will and testament, in and by which the defendant, her husband, was appointed sole executor. The will was thereafter duly probated, and the defendant thereupon qualified as executor, and has ever since continued to act as such. For a number of years prior to her death the testatrix had been the owner of a clothing store, which during her lifetime was conducted by her husband, as her manager and agent. The stock in trade consisted of clothing and gentlemen's furnishing goods; and this, together with a house and lot, some household furniture, a small amount of cash, and some notes and store accounts, constituted her entire estate. By the first clause of Mrs. Ullman’s will, she gave and bequeathed to her husband the use, income, and profits of her estate, both real and personal, for and during his natural life, for his support and maintenance, “subject to always providing for my daughter Florence a home, and to provide for all her wants in sickness and in health; and in case my said daughter shall, for cause, prefer to live elsewhere, rather than with my husband, then and in that case I give for her support out of the income that weekly sum of not less than eight dollars per week, or, if not sufficient for her support, such additional sum as may be necessary for her support, and I charge my estate with the payment of the same as long as she remains single. It is my wish that my husband continue the clothing business as now conducted, so long as he continues sober and of good habits to properly conduct the same; and my devise to him of the use during life of my real and personal property is upon condition that he does not again marry.” After the death of Mrs. Tillman the defendant continued to carry on the business, and in the course of about a year he purchased some goods of the plaintiff; and, to recover the purchase price thereof, this action is brought. The defendant suffered judgment by default. An execution was thereupon issued, and a levy thereunder was made upon the household furniture which formerly belonged to Mrs. Tillman. The default was subsequently opened, and the defendant answered, but the levy was allowed to stand as security.

Upon the state of facts above narrated, the single question to be determined is whether or not this action can be maintained against the defendant in his representative capacity. It is a well-settled rule that the death of a trader, generally speaking, puts an end to the business in which he was engaged at the time of his death, and ordinarily all that remains for his personal representatives to do is to convert the assets employed in the business into money as speedily as practicable. Williams, Ex’rs (7th Ed.) 791. There are instances, however, in which this rule has no application, — as, for example, where the testator directs the executor to continue in business, and to devote the assets of the estate to that purpose. Such testamentary directions are often made, and, when expressed in unequivocal language, they will be upheld and enforced by the courts. The rule of construction in such cases, however, is a most rigid one, and in Willis v. Sharp, 113 N. Y. 586-590, 21 N. E. 706, 4 L. R. A. 494, it is thus stated:

“In the first place, the intention of the testator to confer upon an executor power to continue a trade must he found in the direct, explicit, and unequivocal language of the will, or else it will not be deemed to have been conferred. Burwell v. Cawood, 2 How. 560, 11 L. Ed. 378; Kirkman v. Booth, 11 Beav. 273. And, in the next place, a power, simpliciter, to carry on the testator’s trade, or to continue his business in a firm of which he was a partner, without anything more, will be construed as an authority simply to carry on the trade or business as with the fund already invested in it at the time of the testator’s death, and to subject that fund only to the hazards of the trade, and not the general assets of the estate.”

In the case cited the testatrix directed that after her death some legitimate business should be carried on by her executor for the benefit of her son, of which business her husband should be retained as manager at a yearly salary, and then followed this provision:

“I do hereby authorize and empower my executors to sell or make such other disposal of my real and personal estate as the safe conduct of such business shall seem to them to require.”

Thus, it will be seen that in this instance there was not only an express direction to the executors to conduct a business in their representative capacity, but they were in like manner empowered to employ so much of the real and personal estate of the testatrix as might be necessary for that purpose. In these circumstances, it was properly held that the language of the will indicated an unmistakable intention upon the part of the testatrix to subject the general assets to the debts of the business, and to authorize the executors to contract debts therein binding her general estate. In the present case, however, there is an utter absence of any language which will bear such a construction. Not only is there no authority conferred upon the defendant to employ the assets of the estate in the business, or to contract debts therein binding upon the estate of his wife, but he is not even authorized, as executor, to carry on the business. There is a wish expressed by the testatrix that her “husband” continue the business “as now conducted, so long as he continues sober and of good habits,” and nothing more. Whether he was to continue the business as executor, agent, or individually, does not appear. The probability is that in providing that her husband might have the use of the property during his lifetime, upon condition that he kept sober and did not remarry, the testatrix simply intended to give expression to a wish that he should continue in the business which he had theretofore managed as her agent. She certainly did not, in “plain, unequivocal language,” indicate that the business was to be conducted by him as her executor; and much less did she express any intention to charge her estate with any debt which he might contract in the course of such business. Within the rule laid down in Willis v. Sharp, supra, we think it is quite clear that the plaintiff’s remedy was against the defendant individually, and not as executor. The judgment should consequently be reversed.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.'

WILLIAMS and LAUGHLEN, JJ., concur.