
    Herman C. Baskin and Estella A. Baskin, Ex’rs, App’lts, v. Washington D. Hays, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    1. Will—Legatees—Division among.
    Where personal property is willed to several legatees to be.equally" divided among them, there is no need of a partition or judicial distribution thereof in order that the title of the legatees shall vest.
    2. Execution—Leviable interests.
    Plaintiffs’ testatrix, by her will, gave her farm and personal property to, her four children to be equally divided among them. Four years thereafter a horse was foaled, his dam being a mare belonging to the estate, ‘and the same was kept as a stallion and his earnings received and used by said legatees in common, the same as the other proceeds of the farm. This horse was taken by defendant under an execution issued upon a. judgment recovered against the four children in an action brought by them. In an action to replevin said horse, Held, that the execution debtors were the owners of the horse and that it was properly taken by defendant on the execution.
    
      Appeal from a judgment entered on the report of a referpe.
    
      Jno. Gillette, for app’lts; M. A. Leary, for resp’t.
   Dwight, P. J.

The findings of fact of the referee are well supported by the evidence and they in turn support the conclusions of law and the judgment from which this appeal is taken.

The action was replevin for a horse taken by the defendant on execution against Herman, Estella, Winifred and Mabel Baskin. These four were children of Eliza Baskin, who died - in 1879, leaving a will by which, after providing for the payment of debts and an expenditure of $700 for monuments and improvements in the family burial grounds she gave to them her farm to be divided equally between them, acre for acre, and all her personal property, consisting mainly of farm stock and implements, to be divided equally between them share and share alike.

No steps were taken towards administration of the estate until nearly four years after the death of the testatrix, when letters testamentary were issued to the plaintiffs, who were two of the devisees and legatees; but, immediately upon the death of their mother, the four devisees and legatees entered into possession of the farm and personal property and held, used and controlled the same as their joint property and for their joint use and benefit. They have paid off all the debts of the estate amounting to $1,800 or $2,000, except about $300 partly from the sale of personal property of the estate, partly from proceeds of the farm and partly from the earnings of two of their number. A mortgage on the farm has been paid in part by the sale of a portion of the land and the interest on the amount unpaid has been met from the proceeds of the farm.

The horse in question was foaled nearly four years after the death of the testatrix, his dam being a mare which belonged to the estate and which was held and used by the legatees in common as above stated; he was kept as a stallion and his earnings were received and employed as other proceeds of the farm in the payment of debts.

What suggestion of necessity or convenience led to the taking •out of letters testamentary in 1883 does not appear, but the next step towards administration of the estate seems to have been taken in 1886, when an inventory was filed of certain personal property then in possession of the legatees and in which the horse in question was included; and, so far as appears, the next official act of the executors was the bringing of this action. There is ho evidence that, at any time after the issuance of letters testamentary, there was any change in the custody, control or use of the personal property.

The execution under which the defendant levied on the horse was issued on a judgment recovered by one Campbell as defendant in an action brought by the four devisees and legatees against him in a justice’s court. Neither their alleged cause of action nor the counterclaim upon which the defendant Campbell obtained bis judgment, is disclosed by this record; but the judgment was docketed in the office of the county clerk, and the execution was-issued thereon under which the horse was taken by the defendant, in this action, acting as a deputy sheriff. Thereupon the plaintiffs, two of the execution debtors, brought this action, as executors of their mother’s estate, claiming that the horse belonged to-them as such.

Upon findings of fact, substantially summarized above, and which are fully supported by the evidence, the referee held that, "the execution debtors were the owners of the horse, and that it was properly taken by the defendant on execution against them; and in this conclusion we think the referee was clearly right

There was no need of a partition or judicial distribution of the personal property any more than of the real estate in order that the title of the legatees should vest therein. It was competent for them to hold the property in common so long as they agreed to-do so, subject only to the payment of debts of the estate and the satisfaction of the provision of the will relating to monuments and the fencing of the burial grounds. No creditor or other person interested has been heard to object that these provisions of the-will are not satisfied; and the evidence tends to show that there is-ample property for the purpose without resorting to the particular horse upon which the defendant levied the execution in his-, hands.

The finding of the referee that by virtue of such execution and levy the defendant acquired a right to the possession of the horse in question and a special property therein to the amount of the judgment, with interest and sheriff’s fees, seems to be well justified and to afford ground for the judgment appealed from.

That judgment should be affirmed.

Macomber and Corlett, JJ., concur.  