
    In the Matter of the Claim of Mary L. Van Slooten, Resp’t, v. Edward Dodge, as Administrator, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 12, 1895.)
    
    1. Executor—Disputed claim.
    A claim, can only be the subject of an agreement for a reference with an executor, if it existed as such against the deceased, and was one for which his estate had been answerable and which will devolve upon the executor or administrator by virtue of the representative nature of his office.
    2. Same.
    An executor cannot subject the estate in his hands for administration to some new liability, either by his contract or by his wrongful act.
    3. Same.
    The executor cannot, by offering to refer the claim, waive the essential prerequisites of the statute that it must be one against the deceased, which accrued in his life, or which would have accrued against him if he had lived.
    Appeal from judgment of the general term of the supreme court of the second judicial department, entered upon an order which affirmed a judgment in favor of claimant entered upon an order confirming the report of a referee.
    
      H. B. Hubbard, for app’lt; Merritt E. Haviland, for resp’t.
    
      
       Reversing 59 St. Rep. 147.
    
   Gray, J.

This respondent presented a claim against the executor of the estate of Harry E. Dodge, deceased, for a diamond ring of the value of not less than $500, which, she alleged, the testator had given to her and which, after his death, at the request of the executor, shy had handed to him for inspection. She alleged that he had refused to return it to her, upon the ground that it belonged to the estate of the deceased. The executor disputed the validity of the claim and, upon his offer to refer the same, a reference was consented to and ordered. The referee reported in favor of the claimant. His report was confirmed at the special term and a motion to set it aside and for a new trial was denied. Upon appeal, the general term affirmed the judgment and the order; but by a divided court, Mr. Justice Cullen dissenting from his associates upon the ground, substantially, that, as no claim against the deceased had been established, no recovery could be had in such a proceeding. I think his was quite the correct view of the case. I think that the findings of the referee, that the deceased in his lifetime had given the ring totheclaimant and had delivered it to her with the intention that she should possess it, were in accord with the evidence in the case. There is but litttle evidence from which a contrary inference could be made. That being the case and the claimant having shown that she had lost possession of the ring solely through the act of Mr. Wheeler, who was the executor, it is difficult to understand how such a proceeding as this could be maintained. The finding of the referee, with respect to the claimant’s loss of possession of the ring, was as follows : “That shortly after the death of said Harry E. Dodge, the claimant delivered said diamond ring to said Charles H. Wheeler as executor, at his request, but not intending to, nor did she thereby release or transfer her right and title thereto, as owner.” It seems that upon the occasion of a certain interview between the executor and the claimant, a short time after the testator’s death, he asked for and obtained the ring from her ; either, according to her account, upon the pretext that he wished to inspect it; or according to his account, upon his request that she should give it to him for the purpose of having it inventoried. The conflict of evidence upon the manner in which Mr. Wheeler, the executor, had acquired the ring, is not very material and the referee had settled it by the finding above mentioned. The difficulty with the recovery in this case is, as Mr. Justice Cullen has pointed out, that this is a special proceeding and is maintainable solely by virtue of the provisions of the statute; which, at the time of the agreement to refer, were contained in the Revised Statutes (2 R. S. 2561, 2562). Those provisions prescribe a publication by the executor or administrator of a notice, requiring all personshaving claims against the deceased to exhibit the same, at a place and time specified, and authorize him, if he doubt the justice of any such claim, to enter into an agreement in writing with the claimant to refer the matter in controversy. It is obvious that a claim could only be the subject of an agreement for a reference with an executor, if it existed as such against the deceased, and was one for which his estate had become answerable and which, therefore, would devolve upon his executor or administrator by virtue of the representative nature of his office. If this ring belonged to the claimant by gift from the testator in his lifetime, its subsequent taking by Wheeler, who was his executor, could not create a claim against the deceased. The claimant never had any claim against the deceased and when Wheeler took it, he did so as the individual and, as the individual, could be made responsible in a proper proceeding for the consequences of his act.

It was supposed at the general term, by the learned justices who concurred in affirming the recovery, that authority for the maintenance of such a claim, as against the executor, could be found in the following two cases: Wall v. Kellogg's Executors, 16 N. Y. 385, and De Valengin's Administrators v. Duffy, 14 Peters, U. S. 282. I cannot so read these cases. In Wall v. Kellogg's Executors, the testator, by his will, had given a power of sale to his executors and they, acting under the power of sale, sold certain lands; the title to which was, in fact, only held by the testator as a naked trustee for the plaintiff and another. The plaintiff was always equitably entitled to a conveyance of them, upon the payment of certain moneys. The executors by selling the lands to a third person, who bought in good faith and without notice, had deprived themselves of the power of performing specifically their testator’s agreement to convey the lands to the plaintiff. The action was, therefore, held to be maintainable against the executors, and the-estate having received the benefit of the purchase money paid for the lands, it was equitably chargeable with the sum which the plaintiff had been obliged to pay to protect his interest in them. In the case of De Valengin's Administrators v. Duffy, De Valengin was the bailee of certain goods shipped by Duffy, which were captured by the Brazilian government. De Yalengin prosecuted a claim against that government for remuneration, but died before receiving any thing upon it. After his death the Brazilian government made compensation to De Yalengin’s administrators. Duffy sued the administrators, as such, for the moneys they had so received. The action was held maintainable, because De Yalengin’s administrators had received the moneys as administrators; and the case was likened to that of a factor, who dies after the sale-of his principal’s property and before the receipt of the money. This principle was laid down in the opinion: “Whatever property or money is lawfully recovered or received by the executor or administrator, after the death of the testator or intestate, in virtue of his representative character, he holds as assets of the estate, and he is liable therefor, in such representative character, to the party who has a good title thereto.” In each of those cases the liability of the executors, or of the administrators, as such, existed because-of transactions to which the deceased had been a party and because his estate had become chargeable with a liability which he was under, or would have been under, if he had lived. An executor cannot subject the estate' in his hands for administration to-some new liability, either by his contract, or by his wrongful act. In the present case, whatever claim this claimant had, because of the taking of the ring from her possession by Mr. Wheeler, was against him individually and in no sense against him in his executorial capacity.

It was said, in the opinion of the majority at the general term,, that “no harm can be done by the executor delivering it back to the-plaintiff,” and the argument in support of the proceeding would seem to be that, as it is neither a claim on a contract, nor a claim for damages, but simply a claim for the restoration of the ring to the claimant, the case falls without the ordinary rule. I fail to see-any force in the suggestion. The result has been to impose costs upon this estate, amounting to upwards of $700; and to that extent to unlawfully diminish the assets of the estate. Upon what theory, or upon what authority, shall the estate be made to pay this large sum of costs, which has rolled up in defending the executor’s act? I know of none. The executor could not, by offering to refer the claim, waive the essential prerequisite of the statute that the claim must have been one against the deceased, which had accrued in his life, or which would have accrued against him, had he lived.

The judgment appealed from should be reversed and an order entered dismissing the proceeding, with costs in all the courts to the appellant against the respondent.

All concur.

Judgment accordingly.  