
    William R. Weatherwax, Appellant, v. William H. Shields and George E. Button, as Administrators with the Will Annexed of Hester Way, Deceased, Respondents.
    Pleading— complaint under which a remainderman may give proof of a settlement of the estate by the executrix and legatee and that the fund given him was held by her as legatee and not as executrix. ■
    The complaint in an action alleged that one Ira. A. Way died January 2, 1879, leaving personal property in excess of §16,500 and a will which was admitted tp probate May 3, 1879, by which the testator bequeathed to Hester Way, whom he appointed his executrix, residuary legatee and devisee, the use of the income of a fund of $4,000 during her natural life, with 'remainder at her •death to the plaintiff; that. Hester Way died May 12, 1891, leaving a will, the ■executor of which died January 22, 1896; that the defendants were appointed •administrators with the will annexed of the estate of Hester Way in February, 1897, and that the personal representative of the executor of Hester Way was ■directed to pay to them §10,311.28 of' the estate of Hester Way, which property included the legacy of $4,000 bequeathed by Ira A. Way to the plaintiff; that there were no outstanding debts against the estate of Ira A. Way, and that the plaintiff had never been paid the said legacy.
    
      Held, that under the complaint the plaintiff would have been entitled to adduce evidence tending to show that Hester Way had completed the administration of the estate of Ira A. Way, although she had never had any judicial settlement of her account; and that, if this were the case, she held the §4,000 fund as legatee and not as executrix, and the defendants received it charged with the trust which she assumed in accepting the legacy;
    That it ivas error to dismiss the complaint upon .the ground that it did not state a cause of action against the defendants as administrators with the will annexed of Hester Way, deceased.
    Appéal by the plaintiff, William R. Weatherwax, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 16th day ■of May, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Rensselaer Trial Term, upon the ground that the complaint does not state facts sufficient to constitute a cause of action against the defendants.
    The complaint, alleges that on the 2d day of January, 1879, Ira A. Way, then a resident of the county of Rensselaer, died leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of Rensselaer on the 3d day of’ May, 1879, in which the testator bequeathed to this plaintiff the sum of $4,000,. to be paid to him after the decease of Hester Way, the wife of said Ira A. Way, she to have'-the use and ihcónie of said $4,000 during her natural life ; she was"also residuary legatee and devisee of 'the estate of said Ira A! Way, which consisted.of real property' of the value of about $1,500 and personal property to', the amount of $16,500. . •'
    May 12, 1891, Hester .Way. died. She left a will of wnieh' one-John H. See was executor. He died January 22,1896, leaving a will of which his wife was executrix. The defendants were appointed administrators with the will annexed of Hester Way’s estate, February, 18971 The complaint alleges that the executrix of- John H: See, the executor of Hester Way, was required by the surrogate of Rensselaer county -to account to the defendants and to pay to them •$10,311/28 of the estate "of Hester Way, and that the property of which Hester Way died seized and possessed included the legacy .of $4,000' bequeathed by Ira A. Way to the plaintiff; that there :are,no outstanding debts.-against the estate of Ira A. Way; that the plaintiff has never beén paid his said legacy. ■ Judgment is demanded against the defendants for the amount thereof.
    
      Mark Cohn, for the appellant.
    
      G. B. Wellington, for the respondents.
   Landon, J.

If Hester Way, at the time of her death, held the $4,000 in question as -executrix of the unadministered estáte of Ira A. Way, and .not.as legatee thereof under his will, then the complaint was prop■erly dismissed, since, in such case, the $4,000 belonged to Irá A. ■Way’s estate, .and not to .the plaintiff, whose right to the possession of the money would have to abide the event of such administration. (Matter of Moehring, 154 N. Y. 423.)

. But if the administration of Ira A. Way’s estate had been perfected by his executrix, Hester Way, who was legatee for her life of the income of the* $4,000 in question, and also residuary legatee .and devisee under the will of Ira A. Way, then as between herself and the plaintiff she held the legacy in trust for thé plaintiff, to be paid to him upon her death; this trust attended the fund, and the fund upon her death passed to her executor, John H. See, charged therewith, and after his death passed to these defendants, his successors in the administration of Hester Way’s estate, upon their receipt from See’s executrix' of the moneys in the latter’s hands belonging to Hester Way’s estate, of which, this legacy was a part. The defendants are her privies in estate, and they received the trust fund, charged with the trust which she assumed in accepting the legacy. (Rundle v. Allison, 34 N. Y. 180.)

Under the complaint the plaintiff could have adduced evidence tending to. establish the latter case. The complaint alleges that Hester Way acted as sole executrix of Ira A. Way’s estate for twelve years, and does not specifically allege that she completed the administration, but it alleges that there, remained in the hands of the executrix of her executor, six years after her death, the sum of $10,31.1.28 of the same property bequeathed to her by Ira A".Way, including the legacy of $4,000 here in question, which amount the surrogate decreed that the executrix of her executor should pay to these defendants. The complaint also alleges that there are no claims existing or outstanding against the estate of Ira A. Way.

Hester Way, probably, never had any judicial settlement of her accounts as executrix of the will of her husband, Ira A. Way. Such settlement would be for her protection, but if she did in fact fully and properly administer Ira A. Way’s estate, then the business of administration is at an end ; a judicial settlement would be the formal and more complete «evidence of it, but the fact.may exist without such evidence. By her failure to procure a judicial settlement she may have left the administration open to question by parties claiming to be prejudiced, but in the absence of mistake she was concluded by her own .acts executed in favor of the legatee holding under her. (Ledyard v. Bull, 119 N. Y. 62; Herrington v. Lowman, 22 App. Div. 266.)

Under the complaint and evidence proper to be adduced in its. support, the trial court might have found that the administration of the estate of Ira A. Way was completed by Hester Way, and that she received and held the $4,000 as legatee and not as executrix. The complaint does not specifically assert the completeness of the administration of the estate of Ira A. Way by Hester Way, or of the receipt by her of the assets .of his estate, or the payment of the $10,311.28 by the executrix of the executor of the estate of Hester Way to these defendants, the present administrators of Hester’s estate, yet enough is stated in the complaint to suggest these facts. The counsel for tlie defendants makes no captious objection upon this ground. Upon the trial, in the absence of a demurrer, it would be proper to supply by distinct statement what seems to rest only in suggestion.

A defense is stated in thé answer which we do not mean to prejudice, but as the case stands, the judgment should be reversed and a trial granted, costs to abide the event.

All concurred..

Judgment reversed and a new trial granted, costs to. abide the event.  