
    Mary H. de Crano, Appellant and Respondent, v. Marie Louise Moore, Individually and as Administratrix with the Will Annexed of Gideon E. Moore, Deceased, Respondent and. Appellant.
    
      Liability of a sole legatee and devisee and administratrix, sued as such, for money intrusted to her decedent to invest — evidence as to the amount thereof and the relation of the parties — what interest is recoverable.
    
    The terms “ simple contract ” and “ specialty,” used in section 1848 of the Code-of Civil Procedure, defining the liability of an heir or devisee for the debts of his decedent, comprise every kind of contractual obligation, and an action may be maintained thereunder based on a transaction in which there existed a fiduciary relation between the parties.
    A person who intrusts moneys to another to be invested by him, may, after the-latter’s death, maintain an action against his widow — who is the sole legatee- and devisee of his property and the administratrix of his will — individually and as administratrix, to recover such moneys, and in such action is not. required to prove that she has exhausted her remedy against the defendant as administratrix in order to charge her as devisee. (Code Civ. Proc. § 1860.)
    An account and letter, sent by the decedent to the plaintiff’s agent, are competent upon the question of the amount of the indebtedness and of the relation-existing between the parties, and are conclusive upon that point, in the absence-of any evidence to impeach or contradict them.
    Where the letter sent by the decedent states that the plaintiff’s money “is earning 5 per cent now,” the plaintiff, in the absence of proof that the investment was changed, will only be allowed interest at the rate of five per cent to the time of the commencement of the action, but after that date she may recover-interest at the legal rate.
    Appeal by the defendant, Marie Louise Moore, individually and as administratrix with the will annexed of Gideon E. Moore, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of- the clerk of the county of New York on the 9th day of February, 1900, upon the decision of the court rendered after a trial at the New York Special Term.
    Also an appeal by the plaintiff, Mary H. de Grano, from so much of said judgment as allows interest upon the amount claimed by the plaintiff at the rate of five per cent only.
    
      The plaintiff is the sister of Gideon E. Moore, deceased, to whom she claims to have intrusted certain moneys which were invested for her by him, and which she now seeks to recover by this suit in equity brought against the defendant, his widow, individually and as administratrix of his will.
    It is stated in the complaint that prior to his death, on the 13th day of April, 1895, the plaintiff had permitted her brother to have in his possession and control upwards of $8,000 of her money for the purpose of caring for and investing the same, which he held in a fiduciary capacity; that his will — which is annexed to the complaint, and which makes no mention of the plaintiff or the moneys owing to her — was duly admitted to probate on the 24th day of June, 1895, and letters of administration with the will annexed were issued on or about the 4th of September, 1895, to the defendant, who is the sole devisee and legatee; that the said Gideon E. Moore left no personal property of any amount and only the equity in two certain pieces of real property to which, at the time of his death, he held title, and the plaintiff is unable to collect her debt by proceedings in the Surrogate’s Court or by action against the heirs or next of kin, and there are no assets to satisfy her claim except the equity in the real property, the value of which is about $30,000; that two actions have been brought- against the defendant herein, individually and as administratrix, by the mother and brother of Gideon E. Moore for an accounting and determination of their interests in the real property mentioned, resulting, as alleged, from the use of money belonging to them controlled and invested by Gideon E. Moore during his lifetime, and the sum so claimed, together with the claim of the plaintiff herein, amounts to more than the value of the property of which the defendant is now possessed, individually, as devisee or as administratrix; that the defendant has not aliened the property devised to her, but is now enjoying the rents and profits therefrom, and that she has filed no inventory as administratrix, and published no notice for creditors. An accounting is, therefore, asked for between the plaintiff and the defendant in her dual capacity, the appointment of a receiver and an execution against the real property mentioned for the collection of the debt.
    Besides a general denial of the plaintiff’s claim, the answer sets up the Statute of Limitations as a bar to proceedings legal or equitable to enforce the claim and further alleges that the plaintiff has an adequate remedy at law.
    No testimony was offered by the defendant, and the decision .at Special Term, therefore, rests upon that introduced by the plaintiff.
    Upon the opening the defendant moved to dismiss the complaint “ on the ground that it appears that this is an action- brought to establish or to collect a debt out of property devised to the 'defendant,” and, as to the administratrix, the complaint states no cause of action; that under the Code of Civil Procedure the only sort of' debt on which an action could be thus maintained is a simple contract or specialty, whereas it here appears that what is claimed are trust funds, so that the provision of the Code as to actions against a devisee does not lie.
    In reply the plaintiff’s counsel stated: “We do not charge any breach of trust, and we do not attempt to follow trust fund into particular property.” The motion was denied and exception taken.
    Eliza L. Moore, the mother of Gideon E. Moore, who resides in Dresden, Germany, and whose testimony was taken on a commission, stated that she identified a letter dated April 25, 1890, admitted in evidence and marked Exhibit B, as received by her in the regular course of mail, and stated that the words “Mary” and “ Harry ” therein related to this plaintiff and her brother. She also identified another paper admitted in evidence and marked Exhibit A, dated April 21, 1890, as showing an account referred to in the letter dated April 25, 1890, and received by her at the same. time. Her further testimony was that the plaintiff had left to her the correspondence as to the property; and that to her knowledge her son made no remittances from time to time to the plaintiff of any sums representing the income from it, and he was not subject to supervision in his dealings.
    It was admitted on the record that this action was begun on the •24th day of April, 1899. Exhibit “ A ” is an itemized account of the debits and credits of moneys of the plaintiff handled by Gideon E. Moore, showing a balance of $8,640.45. The letter, Exhibit B-,” describes in detail the various monetary transactions, part of which belonged to plaintiff, and states: “It is earning 5 per cent now; ” “ this real estate is necessarily in my nanne,” and, “ in case of my death : My will provides that after payment of all just, debts the residue of my real and personal estate shall go to my wife as sole legatee. Her ‘ right of dower ’ is a life interest in one-third of the real estate that I hold over and above the amount of the mortgages. How I own more than one-third of all the real estate standing in my name, being my own money over and above ail that I owe you, Mary and Harry. In case of my death, therefore, there is enough to pay Louise’s right of dower, repay you all and still leave a surplus * * * as for evidences of my indebtedness to you all: My regular accounts current are as binding a claim against my estate as notes of hand or any other form, of security.”
    The defendant, called for plaintiff, testified that after the death of her husband, Dr. Moore, she received everything in his laboratory, which shd rents together with the room itself for $1,000 ; that her husband left other valuable securities including mining stocks and patents. H. C. Davis, a public accountant, testified that in April, 1898, he examined the accounts of Dr. Moore and found that he had not kept a separate account for the plaintiff; and that he prepared a statement from various sources. The plaintiff’s counsel then said: “We are willing to rest on the account furnished by Dr. Gideon Moore, marked as Exhibit A.”
    Motion ivas made to dismiss the complaint and was again denied. The Special Term decided that the plaintiff was entitled to recover $8,640.45 with interest at the rate of five per cent from March 31, 1890, together with costs and an additional allowance. Exceptions-were duly taken to the decision, and from the judgment thereon entered to be collected out of the assets in the hands of the defendant as administratrix and out of the real property devised to her, both parties appeal, the plaintiff asking for interest at the rate of six per cent instead of five per cent, and the defendant appealing from the entire judgment.
    
      Charles P. Howland, for the plaintiff.
    
      James A. Punn, for the defendant.
   O’Brien, J.:

We think that little need be added to the opinion of the learned judge at Special Term in which all the points again urged except the Statute of Limitations, were expressly considered and correctly determined. Upon the question of the amount of the indebtedness and the relation of the parties, the account and letter sent by defendant’s testator were competent and conclusive in the absence of any evidence to impeach or contradict them.

The fact that there was a fiduciary or confidential relation between the parties does not alter the nature of the obligation which was on contract; and whether we consider the right of plaintiff to be based on contract express or implied, its enforcement is regulated by section 1843 of the Code of Civil Procedure. As correctly urged by the plaintiff, the terms “ simple contract ” and “ specialty,” as used in the section, comprise every kind of contractual obligation. The-section provides: “ The heirs of an intestate and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract or by specialty, to the extent of the estate, interest and right in the real property which descended to them from or was effectually devised to them by the decedent.” By virtue of this section, the action against the defendant as sole devisee for an indebtedness of a fixed amount arising out of a contractual relation can be maintained. In Wilkes v. Harper (1 N. Y. 586) wherein a testator during his lifetime received moneys in trust and invested them in his own name, it was said that the devisees were liable in their respective proportions in an action brought to recover the same.

The plaintiff was not required to prove that there was no personal property of the decedent sufficient to satisfy her debt; and, aside from the question of the sufficiency of the answer as raising such an issue, proof or allegations as to the non-existence of the assets is unnecessary where the administratrix, as here, is also the sole devisee. Section 1860 of the Code of Civil Procedure provides: “ Where a person who takes real property of a decedent by devise and also by descent; or who takes personal property as next of kin, and also as legatee; or who takes both real and personal property in either ■capacity; or who is executor or administrator, and also takes in either ■of the before mentioned capacities; would he liable in one capacity for a demand against the decedent after the exhaustion of the remedy against him. in another capacity; the plaintiff in any action to ■charge him which can be maintained, without joining with him any ■other person, except a person whose liability is in all respects the same, may recover any sum for which he is liable, although the remedy against Mm in another capacity was not exhausted.”

With regard-to the Statute of Limitations, if the ten-year rule applies, it had not run, for plaintiff’s account was sent on April 25, 1890, and the action was begun April 24, 1899 — a period of less than ten years; and if the six-year Statute of Limitations applies, then by section 1844 of the Code, in an action of this character where the death of the testator occurs before the running of the ■statute, three years additional are allowed, making nine years in all, ,and as the action was commenced within nine years, that statute is not a bar. Indeed, it may be doubtful whether the Statute of Limitations had commenced to run at all. The transaction was either a deposit of money to be paid upon demand, or it was a deposit of money to be held and invested by the depositary as trustee. If the transaction was of the character first mentioned, the statute could only be set running by a demand; and if it was of the latter character the statute would only commence to run after it had been ascertained that the depositary had converted the money to his own use.

Upon the question of interest the plaintiff insists that from the death of Dr. Moore she should have interest at six per cent, on the ground that as an indebtedness existed which the administratrix should have paid, but did not even recognize as a debt of the estate, the law fixes the interest (Barker v. White, 58 N. Y. 204, 214); and that in any event, interest at six per cent should he allowed from April 24, 1899, the date on which the action was brought. On this subject the judge at Special Term said : “ In the letter of April 25, .1890, read in evidence by the plaintiff, it appears that the money was then earning interest at the rate of five per cent per annum. It does not appear whether or not the decedent or this defendant ever changed the investment, and in the absence of proof upon the subject, it may be presumed that the money has continued to earn that rate of interest. There may be circumstances which would justify charging the defendant with the full legal rate of interest from the date of the decedent’s death, but these circumstances do not now appear, and could only be ascertained upon an accounting. I understand that the parties do not desire to assume the expense that such an accounting would involve.” Although we approve of this reasoning, we do not think it applies to the period ■subsequent to the commencement of this action. That constituted a demand and an election by the plaintiff to receive back her money or the property, if any, in which it had been invested. The refusal to comply with the demand entitled plaintiff to sue for and recover the amount which her brother owed her, with legal interest.

The judgment should be modified by giving the plaintiff interest at six per cent from April 24, 1899, and as so modified affirmed, with costs to the plaintiff.

Van Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ., concurred.

Judgment modified by giving the plaintiff interest at six per cent from April 24, 1899, and as so modified affirmed, with costs to plaintiff. 
      
      The following is the opinion of the judge at Special Term:
      Scott, J.: This is an action to charge the real estate of which Gideon E. Moore died seized with an indebtedness due from him to the plaintiff, who is his sister. Gideon E. Moore died on or about the 13th day of April, 1895, leaving a last will and testament which was duly admitted to probate on or about the 34th day of June, 1895, and letters of administration with the will annexed were issued to the defendant on September 4, 1895. To the defendant, the testator’s wife, was bequeathed and devised all his estate, real and personal, and she entered into possession thereof. Included in the estate thus devised to her were the pieces of real estate described in the complaint. She has never filed an inventory as administratrix, nor advertised for creditors to present claims to her, nor filed any account. It appears from'a statement of account made out by Gideon E. Moore in his own handwriting, that on March 81,1890, he had in his possession the sum of $8,640.45 belonging to the plaintiff. Other statements of account and letters to the plaintiff and her mother indicate that plaintiff’s money had been invested by the decedent in his own name, in such manner that it was producing interest at the rate of five per cent per annum. These letters and accounts are competent evidence, and satisfactorily establish the fact of decedent’s indebtedness to plaintiff ■on May 1, 1890. (Hurlburt v. Hurlburt, 138 N. Y. 430; Terwilliger v. Industrial Benefit Assn., 83 Hun, 330.) The plaintiff testifies that no part of this indebtedness, or the income thereof has been paid to her. And the defendant does, not •offer any evidence, either from decedent’s books or otherwise, to disprove the fact of the indebtedness. Section 1843 of the Code of Civil Procedure authorizes an action of this kind, to enforce, as against the heirs and devisees of a testator, debts ■of the decedent arising by simple contract or by specialty. Such an action, although now regulated by the Code, is one of equitable cognizance. (Wood v. Wood, 26 Barb. 361; Mortimer v. Chambers, 63 Hun, 335.) The defendant’s contention, that relief has been sought in the wrong forum, cannot, therefore, prevail. It is objected, however, that tfie action cannot be maintained against the defendant both individually and in her representative capacity, and that an administrator or executor cannot be joined as defendant in an action to charge real estate in the hands of a devisee.
      
        it is further objected to the maintenance of the action against the defendant individually that it is not shown that the plaintiff has exhausted her remedy against the testator’s personal estate, hut, on the contrary, it affirmatively appears that there are personal assets in the hands of the defendant as administratrix applicable to the payment in whole or in part of the plaintiff’s claim. If the defendant was not at once the sole administratrix of the estate, and the sole devisee of the real estate, these objections would be fatal to the plaintiff’s recovery. As it is, however, the action can, I think, be maintained in its present form. The complaint sets up a single cause of action for the recovery of the debt due from the testator to the plaintiff. It is sought to recover this amount from the defendant in her representative capacity to the extent that the personal property in her hands may suffice to pay the claim, and, as to any remainder, to recover it out of the real estate which passed to her individually as sole devisee. Under such circumstances, section 1815 of the Code of Civil Procedure expressly authorizes an action against an executor or administrator personally and also in his or her representative capacity.
      The other objections are answered by section 1860. Sections 1848 and 1849 provide that, to maintain an action of this character against devisees, the plaintiff must show that the decedent’s assets, if any, within this State were not sufficient to pay the plaintiff’s debt, in addition to the expenses of administration and debts of a prior class, or that the plaintiff has been unable or will be unable with due diligence to collect his debt, by proceedings in the proper Surrogate’s Court, and by action against the éxecutor or administrator and against the surviving husband or wife, legatees and next of kin, and that the plaintiff has been unable or will he unable to collect his debt by an action against the heirs. In short, the plaintiff must, show that he has exhausted his remedy against the personal property, or that to pursue such remedy would he futile. In the present case there appears to be personal property, of somewhat uncertain value, in the hands of the defendant as administratrix, against which the plaintiff has not exhausted her remedy. Of course it would be useless to pursue decedent’s »lieirs at law or next of kin, because by his will his entire estate is given away from them to his wife. Section 1860 provides as follows: “Where a person who takes real property of a decedent by devise and also by descent; * * * or who is executor
      
        or administrator, and also lakes in either of the before mentioned capacities; would be liable, in one capacity, for a demand against the decedent, after the exhaustion-of the remedy against him in another capacity; the plaintiff in any action to charge him which .can be maintained, without joining with him any other person, except a person whose liability is, in all respects, the same, may recover any sum for which he is liable, although the remedy against him in another capacity was not exhausted.” This section precisely fits the case presented here. The defendant has taken the real property of the decedent by devise, and is also administratrix with the will annexed of his estate. As sole devisee she is liable for the plaintiff’s demand, being for an indebtedness which accrued before his death. After the exhaustion of the remedy against her as administratrix, this action to charge her as devisee can be maintained without joining any other person because she is sole administratrix and sole devisee. Hence, the plea that the remedy against her as administratrix has not been exhausted, is not available as an answer to the present action.
      I think that plaintiff is entitled to judgment for the sum of §8,640.45, with interest from March 31,1890. It is fairly inferable from the evidence that it was with the plaintiff’s consent that the decedent invested her money for her. In the letter of April 35, 1890, read in evidence by the plaintiff, it appears that the money was then earning interest at the rate of five per cent per annum. It does not appear whether or not the decedent, or this defendant, ever changed the investment, and in the absence of proof upon the subject, it may be presumed that the money has continued to earn that rate of interest. There may be circumstances which would justify charging the defendant with the full legal rate of interest from the date of the decedent’s death, but these circumstances do not now appear, and could only be ascertained upon an accounting. I understand that the parties do not desire to assume the expense that such an accounting would involve. The plaintiff may, therefore, take a judgment against the defendant individually and as administratrix, etc., for §8,640.45, with interest thereon at the rate of five per cent per annum from March 31, 1890, to be collected out of the assets in the hands of the defendant as administratrix with the will annexed, and out of the real property devised to her by the decedent, with costs and an extra allowance of §375.
      Decision and decree to be settled on notice.
     