
    WEEKS v. WEEKS.
    
      N. Y. Superior Court ; Special Term,
    
      June, 1885.
    
      Action to cancel Bond and Mortgage.—Former adjudication ; JUDGMENT AGAINST EXECUTORS, WHO BOUND AS PRIVY; SPECIFIC LEGATEE.—WILLS ; CONSTRUCTION ; BEQUEST OF MORTGAGE TO MORTGAGOR UPON CONSENT OF TESTATOR’S wife. -—Mortgage ; satisfaction.
    One of two claimants to a specific legacy is not bound by a judgment in an action, to which lie is not a party, against the executors of the will to recover the same legacy for the estate of the other claimant. The executors do not, in such action, represent the absent claimant, as they are simply stakeholders as to the legacy, and the estate is not increased or diminished by the determination of the controversy between the parties.*
    
      So held, where one of the defendant executors in the former action was also a co-plaintiff, being an executor of the will of the deceased legatee, and was, furthermore, residuary legatee under the latter will, and therefore the person chiefly interested in sustaining the judgment in favor of the plaintiffs in that action.
    The rule that if, from an examination of the whole will, the intent of the testator is clear, and such intent is in danger by inapt or inaccurate modes of expression, it is the duty of the court to subordinate the language to the intention, and in such case the court may reject words and limitations, supply them, or transfer them to get at the correct meaning,—applied.
    One clause of a will gave to the testator’s wife all his bonds and mortgages, subject to and charged as provided in a subsequent clause, by which he authorized and directed his executors, within one year after his death, to cancel and satisfy, for the consideration of one dollar, a certain bond and mortgage, provided his wife should consent thereto. In an action by the mortgagors to compel the cancellation of the mortgage,—Held, that the testator intended a gift of the bond and mortgage to the mortgagors, and that the written consent of his wife having been delivered to the executors, and the one dollar paid to them, by the force and effect of the will, the bond and mortgage was satisfied and discharged; no instrument in writing was necessary for the purpose.
    A mortgage is simply a security for the payment of the bond or other evidence of indebtedness, and any act which is sufficient to release the bond, discharges the mortgage.
    * Compare the recent case of McArthur v. Scott, 113 U. S. 340, where the subject of virtual representation of the interests of parties not before the court, W'as elaborately discussed, and authorities fully cited in the briefs of counsel (pp. 357-364, 372-374), and the opinion of the court (pp. 384-404).
    In that case, a decree setting aside probate of a will was held not binding upon the grandchildren of testator not then in being, although all the grandchildren then in being, and who held equitable vested remainders in the land in question, subject only to open and let in after-born grandchildren, were parties to the suit. The living grandchildren did not represent the interests of the after-born grandchildren and the executors and trustees who under the will held the legal title to the land, were not made parties to the suit, the resignations of two of them having been accepted by the court, and the remaining executor, who was made a party in his own right merely, having resigned pending suit, and no successors having been appointed. Mr. Chief Justice Waite and Mr. Justice Hablas dissented. McArthur v. Scott, 113 U. S. 340.
    That one who is not a party to the action cannot, by accepting the result of the judgment therein, make the judgment res adjudicates, in his own favor, even as against a party to the action who accepted the fruits of the judgment, or a payment in accordance therewith,— see Shipman v. Fanshaw, 15 Abb. N. C. 288.
    Trial by bhe court.
    Henry A. Weeks, individually and as administrator, &c., of Nathaniel G. Weeks, and as executor, «fee., of Mary Weeks, sued George W. Weeks, as executor, &c., of Jacob Weeks, and Jacob W. Cornwell and. Charles H. Ostrander, as executors, &c., of Catharine Weeks, to recover a bond and mortgage for $15,000, executed by said Nathaniel T. and Mary Weeks in favor of said Jacob Weeks.
    Jacob Weeks died September 9,1881, leaving a will, which, so far as applicable to this mortgage, provided as follows:
    “II. I give, devise and bequeath to my wife, Catherine Weeks, and her heirs forever, in lieu of her dower in my estate, and of all other claims whatsoever, . . . all my bonds and mortgages . . . except as hereafter otherwise specifically bequeathed and stated, and subject to and charged as provided ,in the twenty-sixth and thirtieth sections of this, my will. ...”
    “XXVI. I authorize and direct my executors, within one year after my death, to cancel and satisfy, for the consideration of one dollar, the bond and mortgage of Mary and Nathaniel Weeks to Jacob Weeks, to secure the payment of fifteen thousand dollars, provided my wife, Catherine Weeks, shall consent thereto.”
    The thirtieth section did not refer to this mortgage in any way.
    
      Catherine Weeks, Jacob W. Cornwell and George W. Weeks were appointed executors of this will.
    On September 30, 1881, Catherine Weeks signed and acknowledged ; and delivered to Henry A. Weeks, who was then the owner in remainder of the property. affected by said mortgage, and who was acting on his own behalf individually, and on behalf of Nathaniel T. Weeks, a writing, which, after reciting the twenty-sixth section of the will above quoted, proceeded :
    “Now, therefore, I, Catherine Weeks, of the city of New York, widow of the late Jacob Weeks, deceased, do hereby consent, authorize and direct George W. Weeks and Jacob Weeks Cornwell, two of the executors of the last will and testament of Jacob Weeks, deceased, to execute and deliver to Mary Weeks and Nathaniel Weeks a satisfaction-piece of the mortgage above mentioned, and to cancel and satisfy of record, for the consideration of the sum of one dollar, said bond and mortgage.”
    This paper was delivered to the remaining executors and the one dollar paid to them by Henry A. Weeks on October 1, 1881. The executor, George W. Weeks, gave a receipt to the effect that the money was received to cancel and satisfy the bond and mortgage, under the twenty-sixth section of the will, the consent of the testator’s wife having been given in accordance with that provision. But the two executors declined, however, to then execute a satisfaction-piece on the ground that it was in the shape of a legacy, and they could not pay a legacy under a year, as it might turn out that the personal property would not pay the debts.
    Catherine Weeks died April 7, 1883, leaving a will by which she made Jacob W. Cornwell a co-executor with Charles H. Ostrander, and her residuary legatee. Prior to this action, Ostrander, as executor, brought an action against the surviving executors of the will of Jacob Weeks, to compel them to account for and pay over to the plaintiff all of the property and money due to the. estate of Catherine Weeks, from the estate of her deceased husband, Jacob Weeks. The plaintiff recovered judgment in that action decreeing that he was entitled to the bond and mortgage.
    The claim of the plaintiff in this action was resisted upon the ground that the judgment in the former action was binding upon the plaintiff, as privy to the executors of Jacob Weeks, and that there was no valid consent by Catherine Weeks to the satisfaction of the mortgage, because her consent was not evidenced by her joining in the execution of any satisfaction-piece, nor certified in writing on the satisfaction-piece, as, it was claimed, was required by the provisions of 3 R. S. (7 ed.) 2193, § 122, as to powers ; and upon the ground that as the power was not exercised “within one year,” the time named in the will, it could not now be exercised.
    
      Frederick H. Man (Anderson & Man, attorneys), for the plaintiff.
    
      Flamen B. Candler (Van Winkle, Candler & Jay, attorneys), for the defendants, Ostrander and Cornwell, executors.
    
      A. H. Stoiber (Van Schaick, Gillender & Stoiber, attorneys), for the defendant, George A. Weeks, executor.
   Ingraham, J.

The first question to be determined in this action is whether or not the judgment of the supreme court in the action of Charles H. Ostrander, as executor, against Jacob Weeks Cornwell and another, as executors, &c., is a bar to this action,.and a conclusive determination of the question here.

That action was commenced by one of the executors of the last will and testament of Catherine Weeks, deceased, to compel the executors of the last will and testament of Jacob Weeks, her husband, to account for and pay over to the plaintiff in that action all of the property and money due to the estate of the said Catherine Weeks, deceased, from the estate of her husband, Jacob Weeks, deceased, and was, in effect, an action to recover the legacies left by the said Jacob Weeks to his wife, the said Catherine Weeks.

The plaintiff in this action was not a party to that action, and can only be bound by the judgment, on the theory that he was represented by the executors of the estate of Jacob Weeks.

The authorities cited by the defendants that hold that the executors of the estate represent the residuary estate, do not apply, because the executors there represent the residuary estate for the purpose of protecting it against all prior claims upon it which might diminish its amount, and as far as the residuary legatees are concerned, in an action either by a creditor or by a particular legatee, he is the representative of the estate.

The case is, however, very different where two parties claim the same specific legacy, for in that case the estate itself is not increased or diminished by the determination of the controversy between the parties. The executor is simply, as to the subject of such specific legacy, a stakeholder, has no interest in the determination of the controversy as to whom the specific legacy is payable ; and no case has been cited to me that holds that under such circumstances one of the claimants to the legacy can be bound by the determination against the stakeholder in which he is not a party.

In Cromer v. Pinckney (3 Barb. Ch. 474), cited by defendants, the chancellor said : “ The case is otherwise where one of the residuary legatees sues for his share of the estate, for, as an accounting of the estate must be taken, in that case the executor may insist that the other residuary legatees shall be brought before the court to save him the trouble of an accounting the second time at their suit,” showing that one of two residuary legatees would not be bound by an accounting of the executor in an action to which he was not a party. There is no distinction between the case of two residuary legatees and the case of two claimants to a specific legacy.

In this case, the defendant, Jacob Weeks Cornwell, is one of the executors of Jacob Weeks, is also one of the executors of Catharine Weeks, and is the residuary legatee of Catharine Weeks, and appears therefore to be the one who would be mainly benefited by the determination of this action in favor of the estate of Catharine Weeks, and it would be repugnant to every principle of justice to hold that a judgment, obtained in an action brought by him as executor of Catharine Weeks against himself as executor of Jacob Weeks, that a legacy given to another person not a party to such action was his, would bar the legatee from maintaining an action to recover such legacy; yet if the defendant’s position is sound, that would be the result.

On the refusal of the executor of an estate to pay to the legatee a specific legacy, the legatee has an action in his favor against the executor (Code Civ. Pro. § 1819), and it would hardly be claimed that it would be a defense to such action, that the executor had paid the legacy to another person.

The executors of the estate of Jacob Weeks cannot complain if they have to pay this mortgage under the judgment of the supreme court. They could have interpleaded, as to the bond and mortgage in controversy, the plaintiff in this action, and brought him before the court, where he could have protected his interests.

It becomes necessary, therefore, to construe the second and twenty-sixth, clauses of the will of Jacob Weeks, deceased, and it is the duty of the court in construing the will to carry out, if possible, the intention of the testator. If, from an examination of the whole will, the intent of the testator is clear, and such intent is in danger by unapt or inaccurate modes of expression, it is the duty of the court to subordinate the language to the intention, and in such case the court may reject words and limitations, supply them or transpose them, to get at the correct meaning (Phillips v. Davies, 92 N. Y. 204).

Now, taking the second and twenty-sixth clauses of this will together, it is clear that the intent of the testator was to give this bond and mortgage to Mary H. Weeks and Nathaniel Weeks, subject, however, to the consent of the wife being first obtained. The bequest to the wife by the second clause of the will, “ of all my bonds and mortgages, &c.,” is made subject to and charged as provided in the twenty-sixth clause of the will, and by the twenty-sixth section of the will the executors are authorized and directed to cancel and satisfy, for the consideration of one dollar, the said bonds and mortgages, provided the testator’s wife should consent thereto.

No discretion was invested in the executors. The direction as to them was absolute, and on the consent of the wife, the provisions of the twenty-sixth section took effect and, and on the payment by Mary Weeks and Nathaniel Weeks of one dollar, the bond and mortgage was satisfied and discharged. Catharine Weeks consented. That consent in writing was delivered to the executors, and the one dollar paid to them.

No instrument in writing was necessary to discharge the mortgage, but by the force and effect of the will, the debt for which the mortgage was given as security became satisfied.

A mortgage is simply a security for the payment of the bond or other evidence of indebtedness, and any act wliich is sufficient to release the bond discharges the mortgage. The payment of the bond satisfies and discharges the mortgage (Remington Paper Co. v. O’Dougherty, 81 N. Y. 492).

And the cancellation of the contract to secure which the mortgage was given cancels the mortgage (Wanzer v. Cary, 76 N. Y. 526).

In Carpenter v. Soule (88 N. Y. 251) the court of appeals held that, the mortgagee having delivered to the mortgagor without consideration a receipt for two thousand dollars to apply on the bond and mortgage, this was a gift of a part of the debt, and operated at once to extinguish it pro tanto, and canceled and discharged so much of the debt.

I have come, therefore, to the conclusion that the plain intent of the testator was that on the consent of the wife this bond and mortgage should be satisfied and discharged. That it was, in effect, a bequest of the bond and mortgage to the plaintiff’s testator subject to the consent of Catharine Weeks, and that, on the consent of the wife and the payment of the one dolías* named, the twenty-sixth clause of the will took effect, and the bond and mortgage became satisfied and discharged.

An examination of the judgment of the supreme court shows that in that action several other questions were presented to the learned judge before whom the case was tried. Plaintiff was not before the court; but as between the parties before the court, it might be that the plaintiffs in that action were entitled to the bond and mortgage so far as it was valid, and that the fifth conclusion of law in that action was that the defendant George W. Weeks, as executor of the last will and testament of Jacob Weeks, had failed to prove that Catharine Weeks in her lifetime executed any satisfaction-piece of the bond and mortgage for fifteen thousand dollars mentioned in the complaint or any consent sufficient in law to authorize the executors of the will of the said Jacob Weeks, deceased, to cancel and satisfy the said bond and mortgage for the consideration of one dollar; but in this action such proof has been supplied.

I am, therefore, of the opinion that the plaintiff is entitled to judgment declaring the bond and mortgage described in the complaint satisfied, and directing that the same be canceled and discharged of record, and that plaintiff shall recover costs of this action against the defendants, the executors of Jacob Weeks, der ceased.

Findings can be settled on two days’ notice.  