Trustees of Methodist Episcopal Church & Society in Cutchogue v. Reeve

GOODRICH, P. J.

The decision upon which was entered the ■ judgment appealed from directed Charlotte M. Reeve, one of the defendants, to pay a proportionate share of a legacy under the will of David R. Terry. There is no1 certificate that the record contains all the evidence, and consequently we must assume that there was sufficient evidence to justify the findings of fact, which, briefly stated, are as follows: David R. Terry died in January, i860, leaving a will which w’as duly admitted to probate. In February, i860, letters testamentary were issued to his widow, Mary A. Terry, as sole- executrix. The testator, by his will, gave a legacy of $100 to the plaintiffs, payable at the death of the widow, or within one year thereafter. He left property that came into the hands of the widow, sufficient to pay the legacy. She died intestate in April, 1899, and letters of administration were issued on her estate. The accounts of the administrator were settled by a decree of the surrogate in December, 1900, by which it appears that the administrator paid to Charlotte M. Reeve, as credit- or, the sum of $1,246, and to' her as heir at law the further sum of $221.83, and certain sums to the other defendants, as heirs at law or next of kin. These amounts are not essential, as the parties have not appealed.

This appeal raises the question whether ‘the plaintiffs, as, legatees under the will of David, can follow the assets of his estate into the hands of persons who have received it in the distribution of the estate of Mary, his widow and executrix. The appellant, Mrs. Reeve, contends that the action was improperly brought under section 1837 of the Code of Civil Procedure, as that section relates only to an action by a creditor against the next of kin, and not to an action by a legatee. It is to be observed, however, that the plaintiffs have not brought the action against the next of kin of David, but against the next of kin of Mary. She came into possession of assets of David as his executrix, and, if she had not properly administered the estate, she would have been indebted to the estate, and liable to an action by a creditor. This being true, the liability was her debt; and the section distinctly authorizes an action against “the next of kin of an intestate * * * to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which an action might have been maintained against the executor or administrator.” But even if this action was not within the precise wording of the section, it was maintainable irrespective of statute. In 2 Rop. Leg. 439, it is said, “That a legatee, whether general, specific or residuary, is entitled to follow the assets, appears to be now settled.” The author cites in his note, as authority, Hill v. Simpson, 7 Ves. 152, and McLeod v. Drummond, 17 Ves. 169, where the principle is announced. The judgment should be affirmed.

Judgment affirmed, with costs. All concur; BARTLETT, J., in result.