
    Emma Fifield, as Administratrix, etc., of Roswell C. Muzzy, Deceased, Appellant, v. Hollis P. White, Respondent.
    Third Department,
    June 29, 1910.
    Contract — conveyance of land "by life tenant and executrix in consideration of promise of support — breach. — estate has no cause of action for money spent in supporting life tenant.
    Where a testator devised bis real estate to his wife for life and she as executrix with full power of sale conveyed to a third person in consideration of his prom? ise to support her and pay her funeral expenses, an administrator with the will annexed appointed after the widow’s'death cannot recover of her grantee . on a breach of the contract to support the widow for money spent by ■ him as administrator" for her board, care and funeral expenses.
    The administrator could not have been compelled to reimburse those who had furnished the widow support and maintenance and any action for breach of the contract passed to her executor or administrator.
    Kellogg and Sewell, JJ., dissented, with memorandum.
    Appeal by the plaintiff, Emma Fifield, as administratrix, etc., from" a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the courity of Clinton on the 13th day of March, 1909, upon the decision of the .court on a trial at the Clinton" Special Term. •
    
      Patrick J. Tierney, for the appellant.
    
      Robert E. Healey, for the respondent.
   Smith, P. J.:

The complaint alleges the death of Boswell G. Muzzy on August 21, 1889, possessed of certain real estate therein described; that by the will of said Mtizzy the real estate was given to his wife, Hannah B. Muzzy, for life, with power to sell and convey the'same for the purposes of said will, and the appointment of said Hannah B. Muzzy as executrix thereof; that upon February 11,1898, the said.real estate was conveyed by the said Hannah B. Muzzy, as executrix, to the defendant in consideration of $1,000 and an agreement between said, Hannah B. Muzzy personally and defendant that' defendant should furnish her board and support and medical aid during her life and a suitable funeral at her death; that the defendant failed to perform his agreement, and that the said Hannah B. Muzzy was compelled to procure support and care from other sources; that said Hannah B. Muzzy died on July 26, 1906, and the appointment thereafter of this plaintiff as administrator with the will annexed of the estate of the said Boswell C. Muzzy, and that as such administrator he was compelled to pay the sum of $1,265 for board, lodging and care of said Hannah B. Muzzy, and the sum of $200 for medical attendance and $85 for funeral expenses. The relief demanded is for the sum of $1,550, and in default of such payment that the land be sold for the payment thereof. At the opening of the trial it was stipulated that the will of Boswell G. Muzzy, the deed from Hannah B. Muzzy to defendant, and the agreement between the said Hannah B. Muzzy and the defendant might be deemed part of said complaint. Thereupon, upon defendant’s motion, the court dismissed the complaint, with costs.

The will of Boswell C.. Muzzy, which was thus stipulated in the complaint, provides for the payment of debts, the giving of certain legacies, and in the 5th paragraph the residue and remainder of the estate, both real and personal, was bequeathed to his wife, Hannah B. Muzzy, during her life, and after her death to certain brothers and sisters. The 6th paragraph of said will reads as follows :

“ Sixth. I will and ordain that the executrix of this my last will and testament for and towards the performance of said testament shall with all convenient speed after my decease, bargain, sell and alien in fee simple all my lands for the doing, executing and perfect finishing whereof. I do by these presents give to my executrix full power and authority to grant, alien, bargain, sell, convey and assure' all the same lands to any person or persons and their heirs forever in fee simple by all and every such lawful ways and means in the premises as to my said executrix or to her counsel in the law shall seem fit and necessary.”

The legal "position of the parties would perhaps be made more clear if some other party had been appointed executor in this will. The duties of such an executor are clearly defined to sell the real estate and hold the" proceeds in trust; first, to invest the same and devote the income therefrom to the support of the widow, and after her death to deliver the estate to the residuary legatees.' It is not wholly clear that he. would be authorized to convey this land in consideration of such an agreement as was made, as the widow was only entitled to the life use or.the proceeds of the fund invested. 'She could, however,"sell her interest in the land. As that question is 'not raised here, however, we will assume that the contract was a valid one. Upon this assumption the widow has apparently released the executor from any obligation under such a trust, and by the contract made individually between her and the defendant has taken the obligation of the defendant in full satisfaction thereof. For the breach of that agreement she would have the right of action which would survive to her .executors after her death. Such executor having been released from his" obligation by the voluntary act of the.widow, would have no legal interest in the execution of the contract, and, therefore, could not have been compelled to reimburse those who had furnished her support and maintenance, and would have no right of action for the moneys expended therefor. The administrator with the will annexed can have only such rights as such executor would have if living.

It would seem to follow that any right of action for the breach of ■this agreement rested with the executors of Hannah B.,Huzzy. The judgment should, therefore, be affirmed, with costs.

All concurred, except Kellogg, J., dissenting' in memorandum, in which Sewell, J., concurred. '

Kellogg, J. (dissenting):

The defendant purchased the land under the power of sale mentioned in the will, and has refused and neglected to pay the purchase price. It is true a part of the purchase price was to be paid by supporting the widow, who was the executrix. By his refusal to make such payment, the estate has paid $1,550 for her maintenance, which is the balance unpaid on the purchase price of the land which the estate sold the defendant. The defendant having agreed to, support her in payment of land he received from the estate, is not in position to deny that the estate is properly chargeable with her support. The action was properly brought.

Sewell, J., concurred.

Judgment affirmed, with costs.  