Watson v. King , 73 Hun 340 ( 1893 )

MERWIN, J.

1. It is evident that by the agreement of July 14, 1873, all the controversies between the parties up to that time were designed to be adjusted. Mutual releases were given as to prior transactions. The title to a quantity of real estate had been taken by A. P. Grant in his own name, in which Allen claimed an interest, and the agreement recognizes the fact that Allen had an interest. Divers items are declared to be the property of Allen, and, as to other items, Allen releases all his interest to the executors. Besides these, there remained the contracts and the Murray property, specified in the third clause of the agreement. All the contracts had been executed by Allen, together with Grant, in his lifetime, or with his executors thereafter. It was declared that in these. contracts Allen and the estate of Grant were equally interested. In the same connection it was stated that Allen and the estate of Grant were equally interested in the avails of any sales thereafter made of the lands then unsold of the Murray property. A division of the moneys is then provided for, “after deducting all taxes and assessments and all liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges on said property.” The manner of dividing the balance is not disputed. It is subsequently provided that Allen should make no charge for time or services in making sales of any part of the Murray property, or for looking after and taking care of the same. It was therefore contemplated, not only that Allen might make sales, but would be interested in the care and management of the property, which would not ordinarily be the case,- unless he was also interested in the rents or income, depending largely upon the care and management. It is also to be noticed that the deductions to be made from the gross amount of receipts were to a large extent such as would ordinarily be first payable from the rents or income. It is hardly to be presumed that the parties intended that the estate should have credit for all the current expenses without accounting for the current income. The fact that the executors opened a joint account, and entered therein, as part of the joint fund, the rents, is a significant circumstance on the question of the intention of the parties. If Allen was entitled to one-half of what the property sold for, no reason is apparent for excluding him from any interest in the income prior to the sale, or for giving him any different interest in the Murray property from that which he had in the land contracts. Taking all the provisions of the contract together, in the light of the surrounding circumstances, we are of the opinion that the expression, “avails of any sales,” was intended to include all the proceeds of the property. The finding of the referee that the rents were received on joint account under the agreement, as part of the common fund, and to be accounted for as such, should not be disturbed. It is not claimed that the judgment in the partition suit is a bar. It was between different parties.

2. The defendant claims that the administrator of Mary B. Grant is a necessary party defendant, because she, in her individual capacity, had a debt against J. W. P. Allen before the transfer under which plaintiff claims, and that such a debt, although having no connection with the property, is, or might be held to be, within the the clause of the agreement in question which provides for the deduction of “all taxes and assessments, and all liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges on said property.” It was held by the referee that the liabilities there referred to included only liabilities arising out of the management of the joint estate, and did not include an individual debt to one of the executors, arising out of an entirely distinct and independent transaction. This construction seems to be quite reasonable. It may well be said that the liabilities designed to be included were only those that were “charges on said property.” Besides, the deductions there specified were to be made from the gross receipts before division. So that, if the construction suggested by the defendant is correct, the individual debt of Allen would be paid from the gross fund, thus making the Grant estate pay one-half of Allen’s individual debt. This would seem fatal to the defendant’s theory of construction. It is not alleged or proved that the administrator of Mary B. Grant makes any claim on this fund, or under the agreement. There would therefore be no basis for an interpleader. Crane v. McDonald, 118 N. Y. 654, 23 N. E. 991. The parties to the first part in the agreement were the executors, as such. It is so alleged in the complaint, and admitted by the answer. If, by virtue of some provision of the agreement, some one of the executors was to be individually benefited, it would be the case of a contract made in the name of one for the benefit of another. By section 449 of the Code, an executor or administrator, or a trustee of an express trust, may sue without joining with him the person for whose benefit the action is prosecuted, In Mead v. Mitchell, 5 Abb. Pr. 106, it is said, of the case of a trustee of an express trust, that “if he can sue it follows that he may be sued, and that the cestuis que trustent are before the court by representation.” The subject-matter of the agreement was the estate of A. P. Grant, and the property it held for the benefit of Allen. The right of action of Allen, or of his successor in interest, for an accounting, was only against the executors, as such. There is no controversy with the administrator of Mary B. Grant, as he makes no claim. In the absence of any such claim by him, I fail to see how he can be said to be a necessary party. It follows that no error is apparent, and that the judgment should be affirmed. Judgment affirmed, with costs. All concur.