
    John J. P. Read, App’lt, v. Louis Knell, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Executors and administrators—Purchase of assets by, voidable only
    AT INSTANCE OF PERSONS INTERESTED IN ESTATE.
    An assignment of assets of an estate to the executor is not void, but voidable only at the instance of a person interested in the estate, and hence it is not competent for the owner of the equity of redemption in an action to foreclose a mortgage so assigned to object to the validity of the assignment.
    Appeal by the plaintiff from a judgment, entered in Erie county, on the findings and decision of the court at special term. 0. 0. Cottle, for app’lt; A. Moot, for resp’t.
   Dwight, P. J.

The action was to foreclose a mortgage of real estate, made by one Joseph Armbruster to Elizabeth Bead, the mother of the plaintiff, since deceased. The answer of the defendant, Louis'Knell, the owner of the property, pleaded payment of the mortgage in full; denied, on information and belief, that the plaintiff was the owner of the mortgage, and alleged facts tending to show a defect of parties.

The proof was that the plaintiff was duly appointed and acted as administrator of his mother’s estate; that, as such, he assigned the mortgage for a nominal consideration to a friend, who, in turn, for a similar consideration, assigned it to him in his individual name. His mother left surviving her one daughter and himself, as her sole next of kin, and no husband ; the daughter died, before the assignment of the mortgage to the plaintiff, without issue. She was reputed to have been married, and a person claiming to be her husband presented a paper purporting to be her will to the surrogate of Erie county, by whom it was admitted to probate, but the decree was reversed by this court and issues were awarded to be tried by a jury. Such issues were twice tried, but no verdict was reached on either trial.

The learned court at special term made no finding whatever bearing upon the question of defect of parties, but found only, in substance, that the plaintiff held the mortgage in his representative capacity as administrator of his mother’s estate, and that the assignment to him was absolutely void and vested in him in his individual capacity no title whatever to the security. It was on 'this ground solely that the judgment was based dismissing the complaint

The judgment was clearly erroneous. The assignment was not void, but voidable only; and that at the instance of some person interested in the estate, Perry on Trusts, 205; Hawley v. Cramer, 4 Cow., 719 ; Forbes v. Halsey, 26 N. Y., 53, 65 ; Harrington v. Brown, 5 Pick., 519, 521, and all the authorities are to the same effect. It was not, therefore, competent for the defendant, Knell, to object to the validity of the assignment to the plaintiff. Harrington v. Brown, supra. He might, perhaps, have established his defense of the defect of parties, but that question, as we have seen, was not considered nor passed upon by the court at special term.

The judgment must be reversed for error in the conclusion of law upon which it was based, and which was duly excepted to. A new trial will be granted, upon which the other defense mentioned may receive consideration.

Judgment appealed from reversed and a new trial granted, with costs to abide the final award of costs.

Lewis, Macomber and Haight, JJ., concur.  