Howard v. Heinerschit , 23 N.Y. Sup. Ct. 177 ( 1878 )

Gilbeet, J.:

The rule at common law was that for rent, which was in arrear in the testator’s life-time ; the executor was liable merely in that character. As the testator’s debt he could be sued for it in the detinet only, and to such action he might plead that he had fully administered ; whereas for the subsequent rent the executor was in general personally responsible. If he entered on the demised premises, as by his office he was bound to do, the lessor might charge him in the debet and detinet for the rent incurred subsequently to his entry. (Toll. Ex’rs, b’k 3, ch. 2, § 3 ; W’ms Ex’rs, part 4, b’k 2, ch. 1, § 2 ; Tay. L. & T., § 332; Platt on Leases, 381.) The principal was that the executor was liable, as such, upon the covenants contained in the lease, whether he entered or not; but if he entered upon the demised premises he became liable as assignee; in other words, that for the debts of the testator, the executor was liable in his representative capacity only, but for debts incurred by him after the death of the testator, he was liable personally, although such debts were incurred for the benefit of the estate. I cannot find that this rule of the common law has been changed by statute, and it could be changed in no other way. (See W’ms Ex’rs, supra, and cases in notes to sixth Am. ed.) Such a rule works no hardship on the executors. The term is assets in his hands. The presumption is that it. is of some value beyond the rent. In that case the executor can convert it into money. If it has no value, the executor can avoid personal liability by refusing to enter, and in the latter event he will be liable only in his representative capacity upon the covenants contained in the loase. The case of Pugsley v. Aiken (11 N. Y., 494), is not in conflict with that rule, for the question in that case was whether the executors were liable in their representative capacity. They were sued upon the covenants of the testator, contained in a lease whereby a tenancy from year to year was created, and which had not been terminated by them by a legal notice. The question whether the entry of the executors made them personally liable was not involved in the case. The remark of Judge AlleN, that the rent reserved was not chai’geable upon the executors in their own right, was proper, for the reason stated by him, namely, that “ they could not retain the possession for their own benefit,” and it meant nothing more than that if the executors paid the rent voluntarily or compulsorily they would be entitled to be reimbursed out of the assets in their hands.

I am of opinion that the defendant is liable upon another ground. The facts found by the court below show that she entered not as executrix, but as legatee. The term was given to her, and she occupied a portion of the demised premises as a place of business until the tenancy ceased, and during that time also she sub-let the residue thereof for her own profit. These acts were unequivocal manifestations of her election to hold the demised premises as legatee and not as executrix. (W’ms. Exrs., part 3, bk. 3, ch. 4, § 3.) The term in this lease was personal estate, and vested in the executrix, but her interest as executrix was not an absolute one. It was temporary and qualified. She was not entitled in her own right, but in auter droit, in right of the deceased. When she elected to take the term as legatee the title vested in her, and her liability for the rent which thereafter accrued followed. (Toll. Exrs., bk. 2, ch. 1; Hudson v. Reeve, 1 Barb., 89.)

The judgment must be affirmed, with costs.

BarNAed, P. J., and Dtkmast, J., concurred.

Judgment affirmed, with costs.