
    James W. Camp, as Ex’r of Mary E. Camp, Dec’d, App’lt, v. James W. Smith, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1889.)
    
    ".Executors and administrators—Legacy.
    Defendant, a co-executor with Mary E. Camp, a legatee under the will of his testator, gave her several firm notes made hy his brother and himself, amounting in the aggregate to the precise amount of the legacies due her by said will, she giving him receipts as for cash on account of the legacy. On their accounting as executors the surrogate decreed that the specific legacy had been fully paid and settled the amount due her under a residuary clause, and she held the notes until she died. Held, that as plaintiff founds this action upon the fact that defendant retained from the assets of the estate the amount of the legacy, and does not sue upon the notes, he cannot recover.
    Appeal from judgment of supreme court, general term, first department, reversing judgment entered on report of referee.
    
      William Mitchell, for app’lt; Eugene EC. Pomeroy, for resp’t
    
      
       Affirming 16 N. Y. State Rep., 932.
    
   Ruger, Ch. J.

This action was brought and tried upon the theory that the defendant, while being an executor, became personally liable to the plaintiff’s testatrix, his co-executrix, for the payment of certain legacies made to such testatrix by William Smith in his last will.

William Smith died in the fall of 1875, leaving a last will and testament wherein he appointed the defendant executor and the plaintiff’s testatrix executrix of such will, and they each accepted their appointments and qualified therefor.

By the will the testator directed his executor to dispose of certain real estate in the city of New York and pay from the proceeds thereof certain legacies, among which was one of $10,000 to the plaintiff’s testatrix, and in case said proceeds were insufficient to pay such legacies in full, he directed the deficiency to be made up from his general estate. He also gave to said testatrix an interest in his residuary assets, which it was conceded on the settlement of the estate amounted to $4,230.18. The defendant became the acting executor of the estate and received all of its assets and paid its expenses and liabilities. The real estate, charged with the payment of the legacies referred to, was not sold until the year 1881, when it was found insufficient to pay in full the sums charged upon it.

On December 9, 1875, the defendant delivered to the plaintiff’s testatrix notes made by himself, his brother, and a firm composed of his brother and himself, to the amount of $4,645.18. On June 5, 1877, he delivered similar notes to such testatrix of the sum of $4,585. On July 28, 1877, he also delivered a firm note to her for $4,000, and on March 18, 1878, another note of the firm for $1,000. Such notes were all payable to the plaintiff’s testatrix, or order, and amounted in the aggregate to the sum of $14,230.18, the precise amount of the legacies given to said testatrix by the will. Upon the delivery of each series of notes the testatrix gave to the defendant receipts purporting to have received cash to the amount of the several obligations stated on account of the legacies to her directed to be paid by the will of said William Smith, deceased. At the time of these transactions such legacies had not become payable and in fact no part thereof became payable until the year 1881, when the real estate was sold. These notes were all shown to have been in the possession of the payee at the time of her death in November, 1884, without having any payments endorsed on them. These circumstances embraced the only account of any transaction between .the defendant and plaintiff’s testatrix relating to any disposition by her to him of the legacies in question. It is conceded that the defendant received or retained from the assets of such estate the amount of the legacies referred to.

In January, 1879, the plaintiff’s testatrix and the defendant united in rendering an account of their proceedings as executors of said estate to the surrogate of New York, in which all parties interested were duly cited to appear, and by which account the defendant claimed he had paid to the plaintiff’s testatrix the amount of her legacies in full. This fact was not controverted by plaintiff’s testatrix. Evidence was taken in the surrogate’s court, and such proceedings were had that the surrogate made a decree therein on the 5th day of October, 1883, whereby it was adjudged and decreed that the legacy of $10,000 had been fully paid to the legatee, and that there remained unpaid of the legacy in the residuary estate the sum of l $496.35, which the said James W. Smith was thereby adjudged and decreed to pay to said Mary Ella Camp, as such legatee, and which it was decreed will be in full of her share of the residuary estate of said testator, distributable upon this accounting. The decree then further recites that such balance had been paid by the executor to said Mary E. Camp during the pendency of such accounting. The plaintiff’s testatrix was a party to these proceedings in the commencement and so continued to their termination and was represented by her own counsel on the final hearing thereof.

Much evidence was given on the trial of this case, and large sums of money were proved to have been paid by the defendant to Mary Ella Camp from time to time between the years 1872 and 1884, the time of her death, and to her executor after that time, amounting in the aggregate to a sum largely exceeding the amount of said legacies It was also proved that Mary Ella Camp held other obligations against the defendant, aside from the notes described.

It was a question much contested upon the trial as to what wag the proper application to be made of these payments in view of the various characters of the obligations held by the plaintiff’s testatrix against the defendant In the view taken by us of the case those questions do not arise. If this action had been founded upon the notes and securities turned out by the defendant to the plaintiff’s testatrix upon the transfer of her legacies to him, the question as to the application of the payments would have been both proper and material; but instead of bringing the action upon those notes, it has been brought upon a cause of action unsupported by any evidence, and which upon the evidence could never have had any existence.

The evidence affirmatively shows that the consideration given for the legacies was the note of the defendant and others payable by the makers thereof at the times and m the manner specified in such notes, and in the presence of these express contracts of payment no promise to pay otherwise on the part of either of the makers thereof could be implied from the circumstances of the transaction.

It is said by the referee that, there is no evidence that, these notes were received by the testatrix in payment of the legacies, and, therefore, that his liability for the debt incurred in appropriating the legacies had never been discharged, and many authorities are cited to show that the delivery of the debtor’s own obligations to a creditor is not considered a payment of the debt previously existing.

Such authorities are not applicable to this case. The view taken not only left out of consideration the fact that the defendant never became the debtor of the legatee in respect to these legacies, except upon the notes delivered; but also ignored the effect of the express adjudication of the surrogate between the same parties upon the precise question discussed. That adjudication was to the effect that the legatee had received through such notes the full amount of such legacies from the defendant, and that he was wholly discharged from liability therefor.

•This adjudication established conclusively the fact that such legacies had been actually paid by the executor to the legatee. How they had been paid was entirely immaterial on this controversy.

Giving effect to this adjudication the legatee, after acceptance of such notes, had no such interest remaining in the legacies as would afford a consideration for an implied promise to pay her therefor. The fund, to the extent of the legacies from which they were payable, had by force of the executor’s contract with the legatee passed to him and he could lawfully appropriate it to his own use without liability, therefor, except such as he had incurred by reason of the obligations delivered by him to the plaintiff’s testatrix upon receiving the acknowledgment of payment of the legacies from her.

The theory that the defendant, by the transaction in question, incurred a debt to the plaintiff’s testatrix, outside of the obligations given, is directly in conflict with the adjudication of the surrogate and practically nullifies its force and effect

From the facts in the case the law will imply a transfer of the testatrix’ interest in the legacies, as otherwise there would be no support for the consideration stated in the notes given; but it could not imply a promise to pay the amount of the legacies, because the parties had provided for that by express provisos in writing and in such case no promise to pay can be implied. 3 Amer. & English Encyclopaedia of Law, 860, § 35.

The appellant suggests that inasmuch as the notes were put in evidence on the trial the judgment may be reversed upon the theory that the action may now be considered as one upon the notes. This would be contrary to all precedent, as the complaint did not count upon the notes and the action was not tried upon that theory.

These views lead to the conclusion that no cause of action was made out against the defendant, and the order of the general term should be affirmed, and judgment absolute ordered for the defendant.

All concur.  