
    Polly Lavinia Crawford, Appellant, v. Eugene Nassoy, Respondent.
    
      Conversion — action against an administrator for the articles specified by statute to ' ‘ remain in the possession of the widow ” — insufficiency of the complaint.
    
    A complaint in an action for conversion, which alleges that the plaintiff is the widow of a decedent who died intestate, leaving no minor child and no property, “ except the sum of about one hundred and.ten dollars cash in bank in the city of Buffalo and a watch or two, a little wearing apparel and household property, not exceeding in value forty dollars, and the entire estate left by him did not exceed in value the sum of one hundred and fifty dollars,” of which the plaintiff became the sole owner and entitled to possession upon his death; that letters of administration upon the estate of the decedent had been issued to the ■ defendant more than three months prior to the beginning of the action, and . that he had neglected and refused to make or file an inventory, and, upon. . demand duly made, had refused to deliver said money and property to the plaintiff, does not state a cause of action.
    It was held by Laughlin, J;, that such a complaint did not specify any item of the class of property, which, under, section 2713-of' the Code of Civil Procedure is to “ remain in the possession of the widow,” it not being alleged that the “wearing apparel." was “necessary” to the widow’s use, or that it was “the-clothing of the family” or that the “household property” was “household furniture.”
    It was further held by Laughlín and Spring, JJ.;' that the appraisers and the Surrogate’s Court are the authorities designated by law to determine the value of the property and not a jury in a court of law.
    
      Quare, whether, after an inventory is made, conversion will lie for a refusal on the part of the administrator to deliver to the widow the specific property specially set apart for her, notwithstanding the remedy prescribed'by section 2724 of the Code of Civil Procedure.
    Williams, J., dissented.
    Appeal by the plaintiff, Polly Lavinia' Crawford, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Allegany on the 26th day of June, 1900, upon the decision of the court, rendered after a trial at the Allegany Special Term, sustaining the defendant’s demurrer to the complaint and dismissing the complaint.
    The complaint alleges that plaintiff is the widow of Alfred Crawford, who died intestate on the 16th'day of February, 1898, leaving-no minor child him surviving and no property “ except the sum of about one hundred and ten dollars cash in bank in the city of Buffalo and a watch or two, a little wearing apparel and household property not exceeding in value forty dollars, and the entire estate left by him did not exceed in value the sum of one hundred and fifty dollars,” of which she became the sole owner and entitled to-possession upon his death; that defendant upon his own petition, which omitted plaintiff’s name, has procured from the Surrogate’s-Court of Erie county letters of administration to be issued to himself upon the estate of said decedent, without the issue of any citation or waiver thereof by plaintiff and without her knowledge or consent; that thereupon defendant drew said money from the bank,, took possession of all the personal property and wrongfully and unlawfully converted the same to his own use, and that more than - three months have elapsed since letters were issued, and he has failed, neglected and refused to make or file an inventory, although requested so to do, and has failed, neglected and refused, upon demand duly made, to deliver said money and property to plaintiff, and has expended and disposed thereof.
    The grounds of the demurrer are (1) that the court has not jurisdiction of the person, (2) or of the subject-matter; (3) that the complaint does not state facts sufficient to constitute a cause of action, and (4) that plaintiff has not legal capacity to sue.
    
      Ernest F. Kruse, for the appellant.
    
      George W. Wheeler, for the respondent.
   Laughlin, J.:

’ This is an action for conversion, and unlike a suit in equity it can be maintained if plaintiff is the owner and entitled to the immediate possession of the property, notwithstanding that there may be another adequate remedy. Under the complaint the only theory on which plaintiff can claim ownership of the property or the right to possession thereof is by virtue of the provisions of section 2713 of the Code of Civil Procedure. So far as material here that section provides as follows:

“ If a man having a family die, leaving a widow or minor child or children, the following articles shall not be deemed assets, but must be included and stated in the inventory of the estate without being appraised: * * *
4. All necessary wearing apparel, beds, bedsteads and bedding, necessary cooking utensils, the clothing of the family, the clothes of the widow and her ornaments proper for her station; one table, six chairs, twelve knives and forks, twelve plates, twelve tea cups and saucers, one sugar dish, one milk pot, one tea pot and twelve spoons, and other household furniture not exceeding one hundred and fifty dollars in value.
“ 5. Other necessary household furniture, provisions or other personal property, in the discretion of the appraisers, to the value of not exceeding one hundred and fifty dollars.
Such articles and property shall remain in the possession of the widow, if there be one, during the time she lives with and provides for such minor child or. children. If she ceases so to do,.she shall he allowed to retain as her own her wearing apparel, her ornaments and one bed, bedstead and the bedding for the same, and the property specified in subdivision five; and the other articles so exempted shall then belong to such minor child or children. If she lives with and provides for such minor child or children until it or they become of full age, all the articles and property in this section mentioned shall belong to the widow. If there be a widow and no minor child, all the articles and property in fifis section mentioned shall belong to the widow.” ' ■ .

Where, as here, there is no minor child, it will be observed that if certain articles and property are left by a decedent, the widow takes title absolutely by the express terms of the statute, and no discretion remains to-be exercised by the appraisers. As to.such property the administrator and appraisers are only entitled to reasonable, temporary possession or opportunity for inspection to enable them to enumerate the same in the inventory.- An action for conversion of property of this class will doubtless lie. against -the administrator individually or in his official capacity if he converts such property to his own use, sells the same or declines to deliver the property to the Widow, after demand and a reasonable opportunity to inventory the same. (Fox v. Burns, 12 Barb. 677; Kapp v. Public Admr., 2 Bradf. 258; Vedder v. Saxton, 46 Barb. 188; Morris v. Morris, 9 Heisk. [Tenn.] 814; Grafton v. Smith, 66 Miss. 408 ; Kellogg v. Holly, 29 Ill. 437; York v. York, 38 id.. 522; Matter of Scoville, 20 Ill. App. 426 ; Kellogg v. Graves, 5 Ind. 509 ; Carter v. Hinkle, 13 Ala. 529; Weir’s Estate, 28 Wkly. N. Cas. 268 ; Curd’s Admr. v. Curd, 9 Humph. [Tenn.] 171; De Valengin’s Admr. v. Duffy, 14 Pet. 282; Conger v. Atwood, 28 Ohio St. 134.)

Strictly speaking, there is no item of this class of property specified in the complaint, It is not alleged that the wearing apparel ” was “necessary.” to the widow’s use or that it was “the clothing of the family.” Hor is it alleged that the “ household property ” was “ household furniture.”' This, it may be conceded, is a somewhat technical construction of the complaint and might not be indulged in were the complaint otherwise meritorious. Where there is more ■personal property than the widow’s exemptions, the appraisers are vested with discretion as to what property shall be set apart for her, and the limitation on the value of the property to be set apart to the widow necessarily incidentally requires the appraisers to estimate its value. Their determination iir this regard may be reviewed by the surrogate, but it would be contrary to the scheme of the statute, prejudicial to the rights of creditors and those interested in the ejt-ate and against public policy to have such determination reviewed collaterally or the question tried in an action for conversion. (Code Civ. Proc. § 2724; Matter of Harris, 2 Connoly, 4; Matter of Shedd, 33 N. Y. St. Repr. 10 ; Lyendecker v. Eisemann, 3 Dem. 72; Applogate v. Cameron, 2 Bradf. 119, 121; Kain v. Fisher, 6 N. Y. 597; Matter of Durscheidt, 47 N. Y. St. Repr. 419 ; S. C., 65 Hun, 136; Matter of Frazer, 92 N. Y. 239 ; Wally v. Wally, 41 Miss. 657; Sawyer v. Sawyer, 28 Vt. 245.)

The same considerations lead to the conclusion that an action for conversion will not lie in such case on an allegation that the value of the personal property was less than $150. If the property is not such that it goes to the widow regardless of its value, the appraisers and Surrogate’s Court are the authorities designated by law to determine and decide upon its value and not a jury in a court of law. It may well be that, after the inventory is made, conversion would lie for a refusal on the part of the administrator to deliver the specific property specially set apart to the widow, notwithstanding the remedy prescribed by section 2724 of the Code of Civil Procedure, but it is not necessary to decide that question now. (Kapp v. Public Admr., 2 Bradr. 258 ; Drew v. Gordon, 13 Allen, 120.)

It follows that the judgment appealed from should be affirmed, with costs.

Adams, P. J., and McLennan, J., concurred in result; Spring, J., concurred in memorandum; Williams, J., dissented.

Spring, J.:

The allegations contained in the complaint must be taken as true as they arise on a demurrer. The complaint alleges the appointment of the defendant- as administrator and his taking of the property. It is a fair deduction from the pleading that he acquired possession by virtue of the letters of administration issued to him. The complaint charged that he came into possession of the' property' “ wrongfully and unlawfully,” but that means that he was appointed administrator improperly and illegally, and, consequently, his title to the property was unlawfully acquired. The manner in which he became administrator cannot be assailed in this action. The Surrogate’s Court which granted the letters can revoke them for cause. The ¡lower rests with that court.

The complaint also avers that the entire property left by the decedent does not exceed $150. It enumerates in a general way of what this property consisted, the greater part of it being, money. While the complaint alleges that the entire property does not exceed $150 in value, that allegation is the statement of the plaintiff and not of the appraisers.

It is the duty of the. administrator to take; possession of the decedent’s personal property. That which by the Statute of Exemptions belongs to the widow must also come within his custody temporarily, in order that the appraisers may.include it in the inventory. The widow may live apart from her husband, and the preservation of the property requires that some one assume control over it. If there are cows, a selection must be made from among the number, and this necessary separation of the. property is made by the appraisers. If there is money, he must. become possessed of that. If it is deposited with .a bank, the depositary would not be warranted in handing it over to the widow, at. least until her title to the specific money has become fixed by the appraisal. If the amount deposited were $125 she could not, without an inventory setting it apart to her, demand the money although it was all the property left by her deceased husband. The bank, relying solély upon her statement that there was no other property, would not be justified in delivering it to her. The bank could require the evidence of her right to the money, and the only provision for that ascertainment is by an inventory, pursuant to an order of the Surrogate’s Court., On the other hand, if the administrator presented his letters to the bank, he could compel it to deliver the money to him, as his letters are his warrant for acquiring possession of the property of the decedent.

The scheme by which the widow’s title is secured to her is provided by the Code (§ 2713) 'and nowhere else. When the appraisers have once set apart the property it. belongs to the widow. The separation provided for has been made and her ownership becomes definite. If no inventory has been taken, one can be compelled. It is alleged m the complaint in this case that the property “has been disposed of and expended by defendant,” and hence an inventory would be fruitless. If so, the plaintiff is not remediless. Section 2721 of the Code of Civil Procedure affords ample remedy for that precise case.

The complaint avers that the property consisted of $110 cash, “ a watch or two,” in addition to household property, and that the entire value does not exceed $150. This method of ascertaining the value substitutes the plaintiff for the appraisers. They might have estimated the value of “the watch or two ” in excess of the $150 limit. It rests with them to determine the worth of the property to make up the $150 which is to pass to the widow under this subdivision.

Again, it is essential that an administrator be appointed and ■ chosen in order that an inventory may be taken. Suppose it ■develops that the entire property of the decedent, aside from the enumez’ated articles and household furniture, is $151, and that the expense of the appointment of the administrator and the taking of the appraisal amounted to $10. Who is to pay this necessary expense ? While this property is not treated as among the assets ef the decedent, the appointment of the administrator and of the appraisers is the only means by which her title can be legally established. Can her exempt property be made chargeable with the payment of an expense which is incurred perhaps solely for her benefit? If so, conversion will not lie in this case, for defendant is lawfully in custody of the property and cannot be compelled to give it up until these expenses are paid. Irrespectivé of this sug- ' gestión, however, the SuiTOgate’s Court has entertained jurisdiction and it should retain it rather than that the estate of the decedent should be subjected to the expense of an action which is unnecessary.

Judgment affirmed, with costs.  