
    Susan F. Platt, Resp’t, v. Annie R. Platt, App’lt, and Nathan C. Platt et al., Resp’ts, Three Actions.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1888.)
    
    Partition—Distribution of proceeds—Adjustment of claims between parties TO.
    After a sale in a partition suit a referee was appointed to take proof of the interest and rights of the several parties and claimants in the fund. In a previous action on an accounting, it was determined that as his share William H. Platt had received $60,839, and was indebted to his father’s estate in that amount with interest from April 3, 1883. It was shown that this indebtedness was for rents collected from the real estate partioned in these actions and proceeds of the sale of other real estate. Annie R. Platt, the wife of the said William, and his sole devisee, appeals from a decision of the referee in this action charging her with the amount aforesaid. It was proved that there was no personal property which could be applied to the payment of the claim for $60,839 and that all the land in which William H. Platt had an interest at the time of his death had already been sold in this very litigation. It appearing that said Annie R. Platt must eventually be held liable for said $60,839 under- Code Civil Procedure, chapter 15, title 3, article 2, Held, that the claim should be enforced in this proceeding by reducing the sharé of the proceeds of the sale to which Annie R. Platt would otherwise be entitled.
    Appeal from an order directing the distribution of proceeds of sale in partition.
    
      William B. Hartin, for app’lt; William G Wilson, for resp’t, Platt; Pay son Merrill, for resp’t, Cooke.
   Bartlett, J.

Under the decision upon a former appeal in this case, the order under review cannot be sustained, unless the objections then pointed out by the court of -appals have been obviated. Platt v. Platt, 105 N. Y., 488; 8 N. Y. State Rep., 77. Further proofs have been taken in conformity with the suggestions contained in the opinion of Judge Earl, and it is believed that they warrant the directions which have now been given for the distribution of the fund in controversy.

The land sold herein was formerly the property of Nathan C. Platt, deceased, and the parties to this action are his children, Nathan C. Platt and Catherine W. Cooke, and his daughters-in-law, Annie R. Platt, the widow of William H. Platt, and Susan F. Platt, the wife of Spencer C. Platt. A referee was appointed to take proof of the interests and rights of the several claimants to the fund; and it was proven before him that in a prior action in the superior court of the city of New York, between Catherine W. Cooke, as plaintiff, and her brothers William H. Platt, Spencer C. Platt and Nathan C. Platt, as defendants, an accounting had been taken of the moneys which each child had received from the father’s estate, the result in the judgment being that Catherine W. Cooke was held to be indebted to the estate in the amount of $17,801.60; William H. Platt, $60,839.90; Spencer C. Platt, $20,000.84, and Nathan 0. Platt, $18,660.39.

The referee in the present suits took these sums into account in directing the distribution of the fund herein, treating them as payments to the respective parties and charging them respectively with the accounts together with interest thereon. No one appears to have objected to this course, but the appellant, Annie R. Platt, who was the devisee of her deceased husband, William H. Platt. She appealed to the general term from the special term order affirming the referee’s report. The general term- reversed the order below, so far as the charge of interest was concerned, but affirmed it in other respects. A further appeal was taken to. the court of appeals, which held that the record in the case as it then came up did not disclose facts enough to authorize the court to take into consideration, in making distribution herein, the four sums already stated to have been received by the four children as fixed and determined in the superior court suit.

The court of appeals, however, distinctly declined to decide that these sums could not be brought in and adjusted in these proceedings. “All we determined,” says Earl, J., “ Is that in this very imperfect record there are not sufficient facts to authorize that to be done. It may be that facts exist which would justify the court in the exercise of its equitable jurisdiction to charge each of these four parties with the sums so received thereon in the distribution of this fund. All the facts pertaining to these sums should be proved so that the court may be able to say precisely what equity and justice require in reference to them. It would seem to be extremely just that they, with the interest thereon, should be taken into consideration in the distribution of this fund, and the fund should be retained by the court below until in this action or some other action to which all the persons interested are made parties, a final determination can be made in reference to the rights and interests of the parties therein.”

Pursuant to the direction of the court of appeals that the case should be remitted to the special term for a further hearing in regard to the distribution of the fund, it was referred back to the same referee to take additional proofs as to the moneys received by any of the parties or their predecessors in interest from the estate of the late Nathan 0. Platt, and the sources from which the same were derived, and the nature of the succession of Annie R. Platt, to the interest of her deceased husband William H. Platt, and of the succession of Susan. F. Platt to the interest of her husband Spencer 0. Platt. Upon the evidence thus taken the referee has reached substantially the same conclusions as those contained in his first report, so far as this branch of the case is concerned, and the court at special term has confirmed his report and directed distribution accordingly.

The defendant Annie R. Platt, is the only appellant. She objects now, as she did on the former appeal, to being charged in this action with any sum whatsoever on account of the amount found to be due from her husband, William H. Platt, to his father’s estate, in the supreme court judgment.

The difficulties which the court of appeals found in .allowing this charge were, first, that it did not appear in the record, then before the judges, from what source or in what manner or under what circumstances the sum of $60,839.90 was received by William H. Platt; second, that it did not appear that Susan F. Platt, the plaintiff, by virtue of the conveyance to her by her husband, Spencer G. Platt, acquired any interest in the moneys received by William H. Platt, or any right to demand an account of the same; and, third, that it did not appear that the appellant, Annie R. Platt, as the devisee of her husband, William H. Platt, took the real estate, which is the subject of the present partition suits, charged with the payment of any such moneys.

As to the first objection, it is now made manifest that the moneys to which the superior court suit related were rents collected from the real estate partitioned in these-actions, and proceeds of the sale of other real estate, formerly the property of Nathan 0. Platt, deceased. Assuming that such was the fact, the court of appeals held that the other tenants in common would have an equitable hen against William H. Platt’s share of the land partioned herein, for the rents which he had received, but that this lien “did not absolutely attach to the real estate nor follow it into the hands of any heir, devisee or grantee holding under him.”

As to the moneys received by William. H. Platt out of other real estate, Judge Earl was unable to find that his co-tenants ever acquired any lien therefor upon the lands in suit here. He intimated, however, that if William H. Platt and his brother, Spencer 0. Platt, had themselves been parties to this action, the sums previously received “might, upon equitable principles, have been brought into consideration in the adjustment and division of this fund.”

The additional proof now adduced, however, renders it proper, we think, to treat the fund precisely as though Spencer 0. Platt were actually in court in this proceeding; for, so far as relates to an equitable adjustment of his rights in the proceeds of this partition sale, Spencer 0. Platt is fully represented by his wife, Susan F. Platt. Her status in this case does not depend alone upon the conveyance to her by her husband. Prior to this deed he assigned to her all his claims arising out of his father’s estate. It would seem, therefore, that she is entitled to insist upon any rights which he himself would be capable of maintaining in these actions.

This fact removes the second objection suggested in the-opinion of the court of appeals. A more difficult question is presented by the third objection, as to the liability of Annie R. Platt, as the devisee of her husband, to have the-real estate, which is the subject of these suits, charged with the sums received by her husband out of his father’s-estate. But it now clearly appears that she must eventually be held liable for those amounts, under the statute which authorizes proceedings against devisees for the collection of debts due from a decedent. Code Civil Procedure, chap. 15, title 3, art. 2. It is proven that there was no personal property which could be applied to the payment of the claim in question, and all the land in which William H. Platt had an interest at the time of his death has already been sold in this very litigation. It would, therefore, be a useless formality to apply to the surrogate for a sale of this real estate as a means of procuring satisfaction for the debt.

We can see no good reason why the claim should not be enforced in this proceeding, by reducing the share of the proceeds of the sale to which his devisee would otherwise be entitled.

Concurring, as we do, with the opinion expressed by Judge Earl, as to the extreme desirability of adjusting this and the other like claims in the distribution of the fund here iii suit, we think that the additional evidence suffices to sustain the order before us. As to the allowance of interest, we construe the language of the court of appeals on that subject as a distinct intimation that it ought to be alkiwed.

Order affirmed, with costs.

Macomrer, J., concurs.

Van Brunt, P. J. (dissenting.)

—I cannot in view of the conclusion arrived at by the court of appeals in this case, when it was previously before that court, concur in the result reached by Mr. Justice Bartlett.

Great confusion has resulted from the many litigations which have arisen in connection with the estate under consideration and from the extraordinary procedures in some of them and it has become extremely difficult to apply principles ordinarily of easy application, because of these seemingly interminable complications, but it seems to me that it would be but adding to them to assume that by the additional evidence offered, any change has been made in the situation from that which it was assumed to be at the time the court of appeals ma.de the decision referred to.

The court say that in the then record it did not appear from what source, or in what manner, or under what circumstances the sum sought to be charged had been received by William.

The court then say that it is stated in one of the briefs submitted to them that the sum was received for rents of real estate sold in this action, and from the proceeds of other real estate which came to William, his two brothers and sisters, as tenants in common under his father’s will.

The additional proofs offered establish, as I understand them, the verity of this assumption contained in the brief of counsel referred to in the opinion of the learned judge of the court of appeals, who wrote the opinion upon the previous appeal, and the said court having discussed the questions which arose upon the said assumptions undoubtedly for the purpose of preventing, if possible, further misconception of the rules of law applicable to the case, their conclusions should be binding upon us in considering the questions now presented.

The court has said that as to the rents of the real estate sold in this action, the other tenants in common had an equitable lien for the amount received by William on his share of the real estate which could be adjusted in a partition action to which he and they were parties. But it was an equitable hen which, upon the facts as they then appeared (and no change in this respect has been wrought by the new evidence adduced), could be enforced against him only, and it did not absolutely attach to the real estate nor follow it into the hands of any heir, devisee or grantee holding under him. That as to the proceeds of other real estate sold, the others tenants in common, so far as the record disclosed (and no additional proof of showing the existence of the missing link has been offered), never acquired any lien for the amount thereof received by William upon his share in this real estate and the sum received by William, as determined by the judgment in the action of Mrs. Cooke, against him and his brothers, was not, by that judgment, made a hen upon this real estate.

, That if William had lived he could have been compelled, in a general settlement of his father’s estate, to account for the money so received, and so, too, if he and his brother Spencer had been parties to this action, and there had been no change of interest and no devolution of title and no other complications, they were included to the opinion that the sums previously received by the parties might, upon equitable principles, have been brought into consideration in the adjustment and division of the fund. But the same parties were not there. It did not appear that Susan F. Platt, by virtue of the conveyance to her by her husband, acquired any interest in the sums so received by William or any right to ask any account thereof. And it did not appear that Annie R. Platt, as devisee of her husband, took the real estate in this action charged with that sum or any part thereof, or that she became liable or bound in any way to pay the same.

That if William’s brothers and sisters had any claim against him on account of that sum, it was a claim so far as then appeared (and the proof has not changed the aspect) to be paid out of and enforced against his estate as a debt owing by him at the time of his decease. For its payment, resort must first have to be made to the personal estate left by him, and then within three years after, letters testamentary by a sale of the real estate, and if satisfaction could not be obtained in either of those ways, then the debt, after three years from letters testamentary upon his estate could be enforced by action against his legatees and devisees in the mode and to the extent provided in the statute. There is nothing in the proofs offered which has in any way overthrown any of the assumptions upon which the foregoing conclusions were founded.

The claim against William was a debt due from him to his brothers and sister for the payment of which his devisee was in no way liable or bound, nor does the evidence now show any more than it did when the case was before the court of appeals upon the previous appeal that Annie R. Platt took the real estate in this action charged with that sum or any part of it.

The debts of William H. Platt must be collected by his creditors in the manner pointed out by the statute, and such payment can be enforced in no other way, as is plainly suggested in the opinion quoted.

It is true that the court said that they did not determine then that the sums referred to could not under any circumstances be brought in and adjusted in this action. This was upon the supposition that there might be evidence which would take the question out of the rules laid down in the opinion, that the assumptions upon which that opinion were based were not well founded, and that a different state of facts might be shown.

The additional proofs establish that these assumptions were well founded in every particular, and they have been in no wise impaired.

It is claimed by the respondents that it does now appear,_ which it did not before, that Susan R. Platt, by virtue of the conveyance to her by her husband, acquired his interest in the sums so received by William, and therefore had a right to ask for an account thereof.

Be this as it may, it in no way removes the objection stated by the court of appeals, that the debt is one of William H. Platt, and that it is not a debt of his devisee, Annie R.Platt, and that such debt must be collected, if collected at all, in the manner provided by statute and that money cannot be taken out of the hands of his devisee to pay the same except as provided by statute. There is no general power in the .court to impound assets of a deceased for the purpose of the payment of the debts of such deceased. The whole system is regulated by statute, and such regulations must be complied with. However desirable it may appear to the respondents to collect in this action, their claims due from the estate of William H. Platt, according to the foregoing decision of the court of appeals and to the provisions of the statute regulating such matters, it cannot be done, as this action is not the method provided by law.

The statute regulates the liabilities of heirs and devisees; provides how much liability shall be enforced, and prescribes the conditions precedent, which must exist to entitle a creditor to avail himselE of the provisions of the statute, but such a procedure as has been attempted in this action, does not seem to be any where sanctioned, and it seems to have been clearly more than intimated by the court of last resort in the opinion referred to, that such rights could not be enforced in this action unless some proof was offered showing clearly that the facts assumed by counsel and commented upon by them, did not exist.

This the proof does not do, but leaves the obstacles which the court had pointed out still as potent as ever.

The order appealed from should be reversed, with ten dollars costs and disbursements, and an order, entered in conformity with this opinion.  