
    Second Department,
    October Term, 1899.
    In the Matter of the Application of Henry L. Hotchkiss, Surviving Administrator, etc., of John O. Bronson, Deceased, for the Sale of the Real Estate of Said Deceased for the Payment of his Debts. Henry L. Hotchkiss, Surviving Administrator, etc., Appellant; Harriet B. Williams, and Others, Respondents.
    Decree of the Surrogate’s Court of Dutchess county affirmed, with costs.— Appeal from a decree of the surrogate of the •county of Dutchess, denying an application to sell real estate for the payment of debts.—
   Goodrich, P. J.:

This appeal is from a decree of the surrogate of Dutchess county, -denying a petition of Hotchkiss, as adminis- • t-rator, etc., of John 0. Bronson, deceased, for an order to sell the real estate of the de-ceased for the payment of his debts. Dr. - John O. Bronson died in March, 1897, leaving him surviving his widow, Martha P. Bron-son, and three sisters, Mrs. Williams, Mrs. Hinton and Mrs. Clark. Hotchkiss and the ' widow were appointed administrators. The widow died in February, 1898,. and Hotchkiss was appointed administrator. Her heirs at Jaw were Hotchkiss and two sisters, Susan L. Hotchkiss and Mrs. Tourneau. This controversy is really a contest between the next .-of kin of the two decedents for the-estate of • Dr. Bronson. The only personal estate of Dr. Bronson was about $550 in cash, and all his debts have been paid except the claim which is the subject ox this controversy and which arises out of the following facts: The -doctor was married in 1881, and shortly .afterward purchased the shares of his sisters in the Bronson homestead, added an adjoining lot and made improvements thereon and with his wife occupied the homestead as a :summer residence, having a piece of prop•erty in Florida, where they spent the winters. The petitioner applies for an order directing the sale of this property. Mrs. Bronson inherited from her father a large '.amount of securities which were in the hands of her brother, Mr. Hotchkiss. In June, 1894, -she gave her husband a power of attorney to receive from Hotchkiss these securities, .among which were one hundred shares of the •Shore Line Railroad Company. Dr. Bronson .gave a receipt therefor, signed, “Jno. O. , Bronson, attorney for Martha P. Bronson, nee Hotchkiss.” This stock was-afterward converted into seventy-five shares of the stock of the New York, New Haven and Hartford Railroad Company, a certificate for which was issued in the name of Dr. Bronson. In May, 1895, he pledged this stock to the United •States Trust Company for a loan of $10,000 payable in six months. In October, 1895* Dr. Bronson, a stockholder, became entitled to ; subscribe for eighteen shares of the increased capital stock of the railroad, and these shares were paid for by the check of Mrs. Bronson. .In January, 1896, Dr. Bronson assigned the ninety-three shares to Mrs. Bronson, and a new certificate was issued to her for the •shares. Meanwhile, and on January 16, 1896, Mrs. Bronson had paid the loan of the United States Trust Company, received the seventy-five shares of stock and presents hef claim against the estate of Dr. Bronson tot the amount thus paid by her, with interest. She also filed a separate claim for $90,000, the value of other securities which had been received by Dr. Bronson from Mr. Hotchkiss* but this claim was .practically abandoned at the hearing .and on the appeal, so that the controversy relates solely to the rights of the parties in the seventy-five shares of the stock of the New York, New Haven and Hartford Railroad Company and the rights of Mrs. Bronson resulting from her paying the loan to the United States Trust Company and taking up the stock in question. On the part of the petitioner it is contended that the stock in question was always the property of Mrs. Bronson and never the property of the doctor ; that the latter had no right to pledge it to the trust company for his own private loan, and that Mrs. Bronson had the right to - redeem the stock and hold the doc-* tor’s estate for the amount paid therefor. On the other hand, it is contended that the stock belonged to the doctor. We cannot ascertain from the record whether it was given or sold to him by his wife, or whether she authorized it or its proceeds to be Used in the family expenses, or whether the lodri was made to obtain money for such family expenses. There is no sufficient evidence in the record on this subject and we afe left to conjecture. The evidence disclosed nothing but the most harmonious relations between Dr. Bronson and his wife, and her complete confidence in him. She authorized him to receive from Mr. Hotchkiss the sectifh ties from her father’s estate and she apparently permitted him to use and manage the same without accounting for the proceeds. It may be that this was the extent of hid interest in the shares of stock of the Ne\V York, New Haven and Hartford Railroad Company, but of this there is no evidence. We have the positive fact that Mrs. Bronsoh* in August, 1898, assigned to her husband the original one hundred shares of the Shore Line railroad and that the certificate therefor wad surrendered and stock in the New Yol‘U, New Haven and Hartford Railroad Company issued to him therefor, and that when he became entitled to subscribe to the increased capital of that company he did subscribe aüd receive a certificate for eighteen additional shares. This gave him the legal title to the stock, and we must regard him as being its owner at that time, in the absence of any evidence to impeach his title. There would be no difficulty in our decision if matters had remained in this condition, except for the fact, that in January, 1896, Dr. Bronson as,1 signed the stock to his wife. It is contended that at this time he was mentally unsound and incapable of executing any contracts* having paresis, from which he subsequently died. There is evidence that in the fall of 1895, he became enfeebled in mind to such an extent as to require constant care and supervision.* From that timé until his death, his brother-in-law, Mr. Clark, took charge of him. It is not necessary to analyze the evidence upon this subject further than to say that it is sufficient to support the finding of the learned surrogate, that before the note became due, that is, in November, 1895, the doctor “hadbecome mentally incompetent to transact business at all times.” This fact being assumed, the assignment of the stock by him, in January, Í896, affords no light as to the question of the actual ownership of the stock. We see no escape from the conclusion that tlie- legal title to the stock and the actual ownership coincided in the doctor. This being true, Mrs. Bronson, not being the owner of the stock, had no authority to pay the loan to the trust company, and she did •not thereby obtain any right of action against the estate. The note was what is commonly known as a collateral stock note, not negotiable, and its delivery to Mrs. Bronson carried no title. “ No person can make.himgelf a creditor of another by voluntarily discharging a duty which belongs to that other to perform, and that no debt can be implied in law from a voluntary payment of the debt of another.” (Danforth, J., in Nat. Bank of Ballston Spa v. Bd. of Suprs., 106 N. Y. 488, 494.) In City of Albany v. McNamara (117 N. Y. 168, 172) the court said: “It is an elementary principle in such actions that money voluntarily paid out by one for another cannot be recovered back. (1 Parsons on Contracts, 471, et seq.) In- order to support such an action it is essential that a request on the part of tike person benefited,"to make such payment,, either expressly or fairly to be implied from the circumstances of the case, must be proved. (Addison on Contracts, 1055, Wright v. Garlinghouse, 26 N. Y. 539; Wellington v. Kelly, 84 id. 546.)” It is unnecessary to discuss any other questions raised on the appeal, and the judgment should be affirmed. All concurred; Cullen and Hatch, JJ., in result.  