
    Betsey Dutcher, as Administratrix, etc., Resp’t, v. Horatio S. Dutcher, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    Executors — Agreement before, appointment.
    An agreement by a widow, without the assent of all the next of kin, that one of the next of kin, in consideration of providing for her for life and paying decedent’s debts, should have all the decedent’s personalty, does not preclude her, upon her subsequent appointment as administratrix, from suing, as such administratrix, to recover possession of the personalty delivered under such agreement.
    Appeal from a judgment enter on a verdict in favor of plaintiff,, and from an order denying a motion for a new trial.
    The plaintiff’s complaint alleges that William Butcher, at the time of his death, was the owner and in possession of the articles of personal property mentioned in the complaint; that they were of the value of $300; that he died in the town of Gonstantia, on the 6th day of March, 1893 ; that on the 8th of February, 1894,. Betsey Butcher was appointed administratrix, and qualified as such ; and that on the 3d of March, 1894, she, as such administratrix, demanded possession of all the property mentioned in the complaint, and the defendant refused to deliver the same, and therefore the plaintiff seeks to recover damages for the conversion of the same. The answer admits the death, and the appointment and qualification of the plaintiff as administratrix. The jury rendered, a verdict for the plaintiff of $240.
    
      O. M. Reilly, for app’lt; Piper & Rice, for resp’t.
   Hardin, P. J.

— In March, 1893, William Butcher died, leaving-him surviving his widow and five children ; and on the 8th day of February, 1894, Betsy Butcher, his widow, was appointed his administratrix, and took upon herself the duties of such. After having made a demand of the personal property in the possession of the defendant, at the time such demand and such refusal thereof were made, and which are particularly described in the complaint, she brought this action for conversion of the same. In the third answer of the defendant it is alleged that on the 6th of March, 1893, the plaintiff and defendant, “together with William H„ Butcher and Washington H. Butcher, who are brothers of this defendant, and sons of the said William Butcher, deceased, made and entered into an agreement by the terms of which the plaintiff herein was to come and live with this defendant, and to make her home with him, as long as she should live, and that defendant should support, maintain, and provide for said plaintiff at his said home, and should pay all expenses and debts of said deceased, including funeral expenses of his said father ; and in consideration of said agreement so made and entered into between the said plaintiff, William H. Butcher, Washington H. Butcher, and this defendant, all of the personal property and effects of the said William Butcher, deceased^, were to be delivered over to this defendant, and were to be his absolutely.” The answer also alleges that, pursuant to the agreement, the property described in the answer was delivered to the defendant. The answer further alleges that the plaintiff, William H. Butcher, and Washington H". Butcher were, at the time of the contract, “the only heirs at law and next of kin of the said William Butcher, deceased, and the only persons and creditors interested in said estate.” It is also alleged that the plaintiff, pursuant to the arrangement, on or about the 8th of March, 1893, went to live with the defendant at his home,, -and was supported and provided for by him from the 8th of March,.1898, up to thé 30 th qf December, Í893, when the plaintiff herein, of her own accord, and without any fault on the part of this defendant, left his said home, and has not since been there. During thé trial it appeared that the deceased left three ■•sons and two daughters, — in all, five children; that at the time of the alleged agreement the sisters were not present. There was no averment in the answer that the sisters took part in the agreement, ndr was it alleged that they ratified the agreement. However, upon the trial, it was claimed that, after the agreement was made, the twd sisters ratified the same. It is to be observed that ■the defendant in hiS offér stated that, at the ’ timé the agreement ■entered into' between the three persons and the widow, in effect, the sisters did not take part therein, as it is alleged that they subsequently ratified the agreement. In the offer the defendant •claimed to show that all the personal estate which was left by William Dutcher Should be taken by the defendant; and that, in consideration of that, he should maintain and support the plaintiff at ■his home during the term of her natural life ; and that he should •also pay the funeral expenses and whatever expenses there were, •or debts, against the estate; and that he was to have all of the property for supporting the plaintiff during her natural life, and’ paying the funeral expenses and debts; and that the agreement was by paml. The evidence was objected to on sundry grounds; among others, that it was inimaterial and incompetent and inadmissible under the pleadings. The offer was rejécted and the evidence mentioned therein excluded and the defendant took an exception. At the time of the alleged agreement, the plaintiff was not administratrix of the estate. It- is claimed, however, in behalf of the defendant, that, as she was subsequently appointed, the •agreement which she made before her appointment was binding upon her as administratrix. We think the offer was not in accord.ance with the allegations to the answer.

In Smith v. Robinson, 30 Hun, 273, after discussing the rule which is to the effect that letters of administration, when granted, have relation to the time of the death of the intestate, and legalized all the intermediate acts of the administrator^, it wad said by Barker, J., at page 273, that the administrator “ is not permitted to question the validity of his own agreements and contracts, which he may have entered into in good faith prior to his appointment, Concerning the property and debts of the intestate.” And he adds: “Without the protection of this rule of law, great wrong and injustice would at times be done to innocent persons, trading and dealing with an individual in the actual possession of the assets of the deceased person.” In thé case in the hand the defendant was aware of the facts and circumstances relating to his father’s estate, and must be presumed to have known that the widow had no legal right to bind the heirs at law who were not ■present at the time of the alleged agreement; and presumptively ■he knew that the widow, before having been appointed administratrix, had no legal title tb the property. It is difficult, therefore do say, upon the evidence disclosed at the trial or upon the circumstances in addition thereto embraced in the offer, that the defendant was acting in faith that the widow had the full right to sell or transfer the property left by his deceased father. The legal title to the property came into the possession of the plaintiff, and she received letters of administration; and when she made a demand for the possession of the property, she was acting in behalf -of all the heirs at law, as well as herself. Inasmuch as the defendant had not acquired, in good faith, the legal title to the prop> erty, he wrongfully refused to deliver possession of the same when i\ demand was properly made by the representative of his father’s estate, to whom the legal title passed upon the appointment of the widow as administratrix.

The case in hand differs from Allen v. Eighmie, 9 Hun, 201, as in that case the defendant was the only next of kin, and plaintiff was his widow, and the agreement entered into between them was such a one as comternplated a payment by the defendant of all the debts and demands against the estate, and it was therefore held that the agreement made before the plaintiff’s appointment was binding, and was properly pleaded in the answer to the complaint, seeking to recover moneys that had come to the hands of the defendant. In the case in hand the sale of the property does not seem to have been made in terms, but it -was rather a personal agreement, attempted to be entered into by the widow witli one of tlie sons of the deceased, looking at her own personal advantage, rather than to the adjustment of the estate in the usual formal mode.

In Bellinger v. Ford, 21 Barb. 314, after stating that the general rule that letters testamentary, when issued, related back to the death of the testator, and legalize all intermediate acts, Bockes, J., said:

“But this must be understood to cover those acts only which might have been done had he been executor at the time; and since the Revised Statutes, the law of relation is limited still more in its applications."

In Deobold v. Opperman, 111 N. Y. 539 ; 20 St. Rep. 81, Ruger, C. J., said:

“We conceive it to beyond the power of an executor or administrator to bind the estate they represent, to any use of its funds, by contract with third persons having knowledge of the character of the property transferred, except in the ordinary and usual course of administration of the trust, and in furtherance of its objects. * * * It would be contrary to the policy of the law to allow an administrator, at the outset of his administration, by contract, to place the funds of the estate beyond the reach of the court, and irreclaimable until after the duties of administration have been performed by the administrator.”

It is apparent, from the proofs given and from the proposed offer, that the plaintiff administratrix was not “the only person entitled to the beneficial ownership of the intestate’s property,” and she did not hold the estate exclusively in her own right. The case, therefore does fall within the rule mentioned in Blood v. Kane, 130 N. Y. 514; 42 St. Rep. 549. See, also, In re Mullon, 145 N. Y. 104; 64 St. Rep. 551.

We think the exceptions taken at the trial to the rulings of the court in respect to the offer do not present an error requiring us to disturb the verdict. It is suggested in behalf of the appellant, that the property in question belonged to the widow, under the statute of 1842, and that she had a petfect right to do with it as she saw ñt, and that the same was exempt from the creditors of her husband. We do not find that question was raised at the trial. We, therefore, find no occasion to express an opinion upon that view of the case.

The foregoing views lead to the conclusion that the order denyying the motion for a new trial and the judgment should be sustained.

Judgment and order affirmed, with costs.

All concur.  