
    Lewis Sanders, Resp’t, v. Agnes Gordon Soutter, Individually and as Ex’rx, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1892.)
    
    .Executors and administrators—Assignment or interest in estate— Release by assignor.
    The administratrix of an heir to an estate assigned her interest therein, the assignee executing a paper hy which he agreed to take from the fund when realized the amount advanced as consideration hy him, and to return the balance to her, and plaintiff holds under an assignment of such assignee’s interest in such transfer. Held, that, the payment of the sum advanced with interest to the assignee discharged the assignment.
    
      Appeal from judgment of the supreme court, general term, first department, affirming a judgment entered upon a decision of the court at special term.
    
      Debs McCurdy, for app’lt; Lewis Sanders, for resp’t.
    
      
       Affirming 42 St. Rep., 437.
    
   Andrews, J.

Under the will of James T. Soutter, who died February 8, 1873, his son, Robert Soutter, took one-tenth part of the residue of his estate remaining after payment of debts. Under the will of Robert Soutter, the son, who died July 15, 1873, his wife, Charlotte Soutter, now the Duchesse D’Auxy, took his household furniture and one-half of his residuary estate, real and personal. The Duchesse D’Auxy thereafter became entitled on the death of her husband, under his will, to one-half of her husband’s interest, unadministered, in the estate of James T. Soutter, Sr. The interest of the Duchesse D’Auxy was assignable.

The instrument of August 17, 1887, executed by her to Cranston, purported to be an absolute assignment and transfer by her to Cranston of all her interest derived under the will of Robert Soutter, excepting her interest in the household furniture. But concurrently with its execution Cranston executed and delivered to the Duchesse D’Auxy a defeasance, reciting that she had sold and assigned at that date (August 17,1887) to him her interest in the estate of Robert Soutter, and containing an agreement on bis part that out of the moneys realized from the sale of such interest, or from the settlement of any suits or actions (referred to in the assignment to him), he would first reserve $2,250, with interest and any expenses, and give the balance to her, together with all interest remaining undisposed of after his reimbursement.

There can be no doubt that the assignment to Cranston embraced whatever interest the Duchesse d’Auxy had in the undistributed share of Robert Soutter in the estate of his father under his will. This share was property owned by Robert Soutter at his death, and passed under his will; and the Duchesse D’Auxy, as legatee thereunder, was entitled to one-half of his estate. Her assignment, therefore, to Cranston, of her interest under the, will of her husband Robert Soutter, passed whatever she would be entitled to receive out of any money due or payable to Robert Soutter’s estate from the estate of his father, under the father’s will.

The judgment in this action sets aside the release of March 26, 1889, executed by the Duchesse D'Auxy, individually, and as administratrix with the will annexed of Robert Soutter, to the executors of James T. Soutter’s estate, on the ground that it was made in fraud of the rights of the plaintiff as assignee of Cranston, of which the executors of James T. Soutter had notice at the time the release was executed, and it being a conceded fact that the interest of the Duchesse D’Auxy in that estate, under the will of Robert Soutter, exceeded the sum of $2,250, at the time the release was executed, and that there was money sufficient to pay the sum in the hands of the executor of James T. Soutter, applicable to such payment, .the judgment awarded the plaintiff this sum, with interest, against such executors.

The plaintiff has appealed from the judgment, claiming that his recovery was improperly limited to this amount, for the reason, as he asserts, that he stood as the purchaser from Cranston of the entire estate which the Duchesse D’Auxy had in the estate of her husband, and not as mere assignee of Cranston’s claim of $2,250.

There can be no doubt of the proposition that under an instrument which is in legal effect a mortgage, a power may be vested in the mortgagee to sell and convey an absolute title to the mortgaged property. But assuming that Cranston might, under the instrument of August 17, 1887, have made an absolute disposition of the Duchesse D’Auxy’s whole interest in the estate of her husband, lie did not attempt to make such a disposition. What he did do was to substitute Amend, his immediate assignee, in his place, and Amend in turn transferred his interest to the plaintiff. Cranston’s assignment to Amend was of all his “ right, title and interest in and to the bill of sale and defeasance annexed,” and Atnend’s assignment to the plaintiff was of the interest he had acquired from Cranston. Payment to Cranston before his assignment of $2,250, and interest, and any expenses, would have satisfied all claims he had, and would have-operated to revest in the Duchesse D’Auxy her original right, discharged of the assignment. Payment to Amend or to the plaintiff of the same sum would have fully satisfied any claim they had.

There is no doubt, we think, that the appeal of the plaintiff is not well taken. The question of attorney’s lien is not raised by any finding and exception.

The defendant’s appeal is answered by what has been said as to the sufficiency of the instrument of August 17, 1887, to pass any interest which might come to the Duchesse D’Auxy on the settlement of the claim of the estate of Robert Soutter against the estate of his father, and by the fact that it does appear, or may reasonably be inferred, that except as to this claim the estate of Robert Soutter has been distributed and that the plaintiff has no available remedy, except through an accounting of the estates.

The judgment should be affirmed, but without costs to either party.

All concur.  