
    Gilbert v. Morrison.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Wills—Legacy to Creditor—Debt Barred by Statute.
    Testatrix, by her will, directed, her executor to convert the estate into money, and, after payment of funeral expenses, to pay “the sum of two thousand pounds which I owe to [plaintiff] for moneys he has advanced to me, with such interest after the rate of five pounds per cent, per annum as shall be then due thereon, and all other my just debts. ” Held, that it was no defense to an action to enforce the payment of the legacy that plaintiff’s debt was barred by the statute of limitations, as the direction to pay it recognized the debt, and ordered it paid regardless of the statute.
    2. Same—Interest.
    It was proper, it not appearing when the debt was created, to allow interest at 5 per cent, on the £2,000 from the date of the will until one year after testatrix’s death, the time when by law the legacy should have been paid, as testatrix, by her direction to pay such interest “as shall then be due, ” clearly referred to the interest due on the debt at the time the legacy was payable.
    8. Same—Right to Jury Trial.
    In an action by the legatee for the amount due, and for an order directing the conversion of the estate into money by sale under direction of court, and payment of the legacy out of the proceeds, the defendant is not entitled to a jury trial, though he denies that testatrix owed the legatee the £2,000.
    Appeal from special term, Hew York county.
    Action by William W. Gilbert against Richard J. Morrison, public administrator, as administrator c. t. a. of Elizabeth Gilbert, deceased. Both parties appeal.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Brownell c6 Lathrop, (S. B. Brownell, of counsel,) for plaintiff. Frank W. Arnold and Chas. Stewart Baoison, for defendant.
   Van Brunt, P. J.

Elizabeth Gilbert, (otherwise Elizabeth Buck,) the testatrix, died in Hew York city, July 6, 1883. She left a will executed in London, England, February 20, 1868. The will was admitted to probate by the surrogate of Hew York, October 22, 1885, and letters of administration with the will annexed were issued to defendant as public administrator on December 11, 1885. By her will the testatrix gave, devised, and bequeathed all her real and personal estate to George Henry Lewis “upon trust to get in, collect, and take possession of the same, real and personal estate, and to sell and convert into money all such portions thereof as may be salable or convertible, and receive and take the moneys thereby produced, and thereby or thereout pay my funeral and testamentary expenses, and the suin of two thousand pounds which I owe to William Walker Gilbert, of Avenue Hotel, Hew York, for moneys he has advanced to me, with such interest after the rate ot' five pounds per cent, per annum as shall be then due thereon, and all other my just debts,” and thereafter upon trust. The complaint alleges that the decedent, at the making of the will, owed to the plaintiff the sum of £2,000 for moneys and property which he had advanced to her, and that the decedent provided for the payment of the same, with interest thereon, by the direction in said will contained to pay the same to the plaintiff out of the proceeds of the sale of her real and personal estate, and that under and by virtue of the said direction the defendant was bound to pay the plaintiff £2,000, or its equivalent in United States currency, to-wit, $9,710, and interest at the rate of 7 per cent, from the date of the will to January 1, 1880, and thereafter at 6 per cent, until one year after the death of the decedent, and thereafter at the rate of 6 per cent, upon the total sum; that the plaintiff had demanded the payment of the same; that the defendant’s accounts had been judicially settled by decree of the surrogate’s court before the commencement of the action; that the testatrix left personal property insufficient to pay the legacies given by the will, and the debts, funeral and testamentary charges and expenses of the decedent; that at the time of her death she was possessed of about 21 acres of land in the city of Hew York, (describing it,) and that the will was executed without the state of Hew York, and the surrogate had no power or right to determine the validity, construction, or effect of any disposition of personal property contained in the will, and that the directions for sale of the real estate contained in the will operated a conversion of her real estate into personal estate for the purposes of said will. Plaintiff prayed judgment that, under the terms of the will, the. real estate be sold under the direction of the court and converted into money by the defendant, or by a referee, and that out of the proceeds of said sale and the personal property of the decedent, after paying the costs, the sum of $9,710, with interest thereon as directed in said will, be paid to the plaintiff. The answer admits the death, the probate of the will, the issuing of letters to the defendant, and the copy of the will. The answer denied that the decedent owed the plaintiff £2,000, or that the defendant was bound to pay, or the plaintiff entitled to recover, the sum of £2,000; admitted the demand of payment, the judicial settlement of his accounts by the surrogate, that the personal property amounted to $11,000 or $12,000, but denied that the same was insufficient to pay the legacies given by tlie will, and the debts, funeral and testamentary charges of the decedent; admitted the decedent's ownership of the real estate, and admitted the will was executed out of the state of Hew York and in the city of London; admitted that the directions for the sale of the real estate operated a conversion of her said real estate into personal estate for the purposes of the will. The defendant also pleaded separately the statute of limitations of 6,10, and 20 years. Upon the issues thus made coming on for trial at the special term, before the production of any evidence the defendant moved to dismiss the complaint upon the following grounds, viz.: That the complaint did not state facts sufficient to constitute a cause of action; that no facts were alleged showing the necessity for the intervention of a court of equity; and that the complaint showed that the plaintiff had a complete remedy at law, if any. This motion was denied. and thereupon the defendant moved that the court compel the plaintiff to elect which remedy he desired to enforce,—the legal or the equitable one,— upon the denial of which the defendant demanded a jury trial. This motion was also denied, and the trial proceeded before tile court without a jury.

The plaintiff, having proved various computations of interest, rested, and the defendant offering no evidence the cause was submitted to the court for its decision. The court subsequently, upon the admissions contained in the pleadings, gave judgment for the plaintiff that he was entitled to be paid by tile defendant the sum of $21,857.06, being the sum of ¡62,000, with interest at 5 per cent, from the date of the will, February 20, 1868, to July 6, 1884, one year after death of testator, and with interest on this amount from July 6, 1884, to June 21, 1888, the date of the decision, at 6 per cent.; that the devise contained in the will operated as an equitable conversion of the real property into personalty immediately upon the death of the testatrix; that the power to take possession of tile decedent’s estate and convert the same into money became vested in and should be exercised by the defendant. From this judgment both parties have appealed.

That tile defendant was not entitled, as a matter of right, to a jury trial seems to be clear. The plaintiff demanded other relief than a judgment for a sum of money. He had filed his bill to compel the defendant to exercise powers which had been conferred by the will in question, the exercise of which were necessary to the realization of the legacy which had been bequeathed to him by the testatrix. Letters of administration with the will annexed had been issued to tile defendant on December 11,1885; and up to the time of tile commencement of this action no steps, as far as this case shows, had been taken by the defendant to carry out the trusts contained in the will. Tiie plaintiff was entitled to be paid his legacy. Such payment could not be obtained except upon a sale of this real estate, and he had a right to come into court to compel the defendant to perform his duties. Besides, this question as to a jury trial seems to be utterly trivial, as there is not the slightest pretense that there could be produced in this case any conflicting evidence upon which a jury could be called upon to pass, and why the court should have been troubled with this question passes comprehension.

The plaintiff in this case is a specific legatee under the will. It may be that the fact that the testatrix owed the plaintiff this money was the inducing cause to the insertion of this legacy in the will; but the fact remains that the testatrix has directed the payment of this sum. The fact is also apparent that it was the testatrix’s intention that at her death, out of the estate she might leave, it was her clearly defined and expressed will and intention that this sum, with interest, should be paid to the plaintiff.

It is claimed by the defendant that the will, which is the only evidence of indebtedness, shows that such indebtedness existed as early as February 20,1868, and that it therefore had become subject to the statute of limitations, which was a bar to its recovery. In support of this proposition we are cited to numerous authorities showing that a direction in a will to pay all just debts does not revive a debt to which the statute has attached, or prevent thq statute from running after the death of the testator. These cases proceed upon the theory that it is plain that the testator in such case only intended to provide for such debts as, according to law and equity, were just debts, and should be paid. Another reason might be added, and that is that such a direction contained in a will is nothing more tlian a recognition of what the law requires, and should be treated as such; but, in a case in which the testator directs the payment of a specific debt, it is clearly the recognition of tile debt, and the expression of a will that it shall be paid, statute or no statute. As well might a trustee or agent of a living principal refuse to obey the directions of such principal to pay a debt, named out of moneys of the principal which the agent or trustee had in his hands because the indebtedness was barred by the statute of limitations.

It is also urged that the court erred in allowing interest upon the claim to run from any time prior to the death of the testatrix. This objection is clearly untenable. It is the clearly-expressed intention of the testatrix that interest upon the debt should be paid. „ She says that the sum shall be paid, with such interest as shall be then due thereon. To what time does she then refer? Clearly to the time when by law the legacy should be paid, viz., one year after death of testatrix. Upon the legacy no interest could begin to run until then, consequently such interest could not have been referred to by the testatrix. The only interest which could have then become due would necessarily be that accruing upon the debt, and such interest did not begin to run at the death of the testatrix, but from the creation of the debt, unless such creation was accompanied by some stipulation as to time of payment. Any other construction would make this clause wholly meaningless. It could refer to nothing whatever but interest accruing upon the debt, and not upon the legacy. We find from the acknowledgment of the testatrix that the debt was in existence February 20, 1868, the date of the will; how much before we do not know, and therefore when the court allowed interest from the date of the will until the time when the legacy became payable it was only carrying out the .expressed will and wishes of the testatrix, neither could the court have allowed a greater sum by way of interest. The plaintiff claims under the will, and, claiming under the will, he must take what the will gives him, and he can get nothing more. We think that the judgment appealed from should be affirmed, with costs. All concur.  