
    HENRY A. WEEKS, Individually, and as Administrator, &c. of Nathaniel T. Weeks, Deceased, and as Executor of Mary Weeks, Deceased, Respondent, v. CHARLES H. OSTRANDER, as Executor of Catharine Weeks, Deceased ; and JACOB WEEKS CORNWELL, as Executor of Jacob Weeks, Deceased, and as Executor of Catharine Weeks, Deceased, Appellants, Impleaded with GEORGE W. WEEKS, as Executor, &c.
    
      Bes adjudicata—rival claimants to legacy.— Will, construction of.— 'Bequest of bond and mortgage subject to consent of testator's wife—direction to executors to cancel.
    
    An adjudication in an action brought by one of two claimants of the same specific legacy to recover the same, is not binding upon the other claimant, he not being a party thereto; and it cannot be held that he is represented therein by the executor of the estate against whom the action is brought."
    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 o£ 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.
    Accordingly, where it appeared that the will contained a bequest to the testator’s wife of “ all my bonds and mortgages . . . subject to and charged as provided in the 26th section of my will,” which section authorized and directed the executors to cancel and satisfy, for the consideration of one dollar, a bond and mortgage given to testator by M. and N. Weeks, provided the testator’s wife should consent thereto; that an action was brought in the supreme court by the personal-representatives of testator’s wife against said executors, to recover the wife’s legacies, to which action N. and M. Weeks were not parties, and in which, among other things, it was adjudged that said executors pay and turn over to-the wife’s estate the bond and mortgage in question; and it further appearing in this action, subsequently brought in behalf of N. and M. Week’s estate against said executors to have said bond and mortgage-declared canceled, and to obtain a discharge of record-, etc., that testator’s wife had consented in writing, to the cancellation of the bond and mortgage, which consent was delivered to said executors and the one-dollar paid to them, and that they had refused to execute a satisfaction-piece.
    
      Held, that the judgment in the supreme court action was not binding on. N. and M. Weeks nor on plaintiff claiming under them.
    
      Further held, that the provisions of the will were, in effect, a bequest of" the bond and mortgage to N. and M. Weeks, subject to the consent of testator’s wife, and that no discretion was invested in the executors, the-direction as to them being absolute.
    
      Further held, that no instrument in writing was necessary to discharge the-mortgage, but by force andueffect of the will, in compliance with its conditions, the debt for which the mortgage was given as security became-satisfied and discharged, and with it the mortgage.
    
      Further held, that plaintiff was entitled to judgment declaring the bond and mortgage satisfied, and directing that the same bo canceled and discharged of record.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ..
    
      Decided December 7, 1885.
    Appeal from judgment in favor of plaintiff, entered at" special term.
    The action was brought to obtain an adjudication that" a certain bond and mortgage had been canceled and satisfied, as provided for in the will of Jacob Weeks, deceased, and to obtain a discharge of record of the mortgage, &c.
    The facts are substantially as follows :
    Jacob Weeks died September 9, 1881, leaving a widow, Catharine Weeks. At the time of bis death he owned a. bond and mortgage for $15,000, made to him by his-brother, Nathaniel T. Weeks, and Mary'Weeks, his wife. Mary Weeks was then dead, having by her will devised the property affected by said mortgage to Nathaniel T. Weeks for life, with remainder to plaintiff (thereby appointed her executor), who was the only child and heir-at-law of said Nathaniel T. and Mary Weeks. Nathaniel T. Weeks died in the fall of 1883, intestate, and plaintiff was his administrator. The portions of Jacob Weeks’ will applicable to this $15,000 were as follows : “II. I give, devise and bequeath to my wife, .Catharine 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. .1 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 fifteen0 thousand dollars, provided my wife, Catharine Weeks, shall consent thereto.” The thirtieth section did not refer to the mortgage in question. “XXXII. I nominate and appoint my wife, Catharine Weeks, executrix; my adopted son, Jacob Weeks Cornwell, my nephew, Samuel Weeks, Jr., and George Washington Weeks, executors of this my last will and testament. ...” The will was admitted to probate on or about September 20, 1881, and letters testamentary thereon were then granted to Catharine Weeks, Jacob Weeks Cornwell and George W. Weeks only. On September 30, 1881, Catharine Weeks signed, executed, 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 written consent to the cancellation of said bond a,nd mortgage, reciting said 26th clause of the will. This paper was delivered to the remaining two executors, to whom it was addressed, and the one dollar paid to them by Henry -A. Weeks on October 1, 1881, George W. Weeks transacting that part of the business, and giving to Henry A. Weeks a receipt, signed by him as executor, &c., referring to said 26th section of the will, and reciting the consent of the widow, &c. Catharine Weeks died April 7, 1882, leaving a will, by which she made the said Jacob W. Cornwell one of her executors, and her residuary legatee, and also named the defendants Charles H. Ostrander and George W. Weeks executors.
    The remaining executors of the estate of Jacob Weeks refused to execute a satisfaction-piece of the bond and mortgage in question, whereupon this action was brought.
    It appeared that prior hereto, in an action in the supreme court between the executors of Catharine Weeks, deceased, and the executors of Jacob Weeks, deceased, this plaintiff not being a party, it was adjudged that the said bond and mortgage were the property of the estate of Catharine Weeks, deceased, and that Charles H. Ostrander, as executor of Catharine Weeks, deceased, or he and his co-executor, should recover the same, and that in case of the failure of the executors, &c., of Jacob Weeks, deceased, to deliver over the said bond and mortgage to the said executors, &c., of Catharine Weeks, deceased, the executors of Jacob Weeks, deceased, should pay over the sum of $15,000 as and for the value of the principal of that bond and mortgage.
    Plaintiff’s claim was resisted on the grounds that said adjudication was binding on plaintiff as being privy to the executors of Jacob Weeks, deceased ; that there was no valid consent by Catharine Weeks to satisfy the mortgage, because the consent was neither evidenced by Mrs. Weeks joining in the execution of a satisfaction-piece, nor certified in writing on the satisfaction-piece, as was claimed to be required by the provisions of the Revised Statutes as to powers (3 R. S. Banks’ 7th Ed. p. 2193, § 122); and that as the power was not exercised u within one year,” the time named in the will, it could not now be exercised.
    The following opinion was delivered at special term.
   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, &c., against Jacob Weeks Cornwell and George W. Weeks, as executors, &c., is a bar to this action, and a conclusive determination of the questions at issue here.

That action was commenced by one of the executors of the last will and testament of Catharine Weeks, deceased, to compel the executors of the last will and testament of Jacob Weeks, her husband, to account for and pass over to the plaintiff in that action all of the property and money due to the estate of the said Catharine 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 Catharine Weeks.

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

The authorities cited by the defendants holding that the executors of the estate represent the residuary estate, do not apply, because the executors in such a case represent the residuary estate for the purpose of protecting it against all prior claims upon it which might diminish its amount; and in an action either by a creditor or by a particular legatee, the executor is the representative of the estate, and as such represents the residuary legatees.

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 ; he 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 holding that under such circumstances one of the claimants to the legacy can be bound by the determination against the. stakeholder in a contest to which he is not a party.

In Cromer v. Pinkney (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 the 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 the 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 a 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 defendants’ position is sopnd, 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, § 1819). And it would hardly be claimed to 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 inter-pleaded, 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 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 transpose them to get at the correct meaning (Phillips v. Davies, 92 N. Y. 199).

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 section 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 bond and mortgage, provided the testator’s wife should consent thereto. No discretion was invested in the executors. The direction as to them wras absolute, and, on the consent of the wife, the provisions of the twenty-sixth section took effect, and on the payment by Mary Weeks and Nathaniel Weeks of one dollar, the bond and mortgage were 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 which is sufficient to release the bond, discharges the mortgage. The payment of the bond satisfies and discharges the mortgage (Remington Paper Co. v. O’Docharty, 81 N. Y. 474). And the cancellation of the contract, to secure which the mortgage was given, cancels the mortgage (Wanzer v. Carey, 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, it 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 dollar 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; hut, 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 the plaintiff recover costs of this action against the defendants, the executors of Jacob Weeks, deceased.

Van Winkle, Candler & Jay, and Flamen B. Candler, for appellants.

Anderson & Man, and Frederick JET. Man, for respondent.

Van Schaick, Qillender <& Stoiber, and A. H. Stoiber, for defendant, George W. Weeks.

Per Curiam

The judgment appealed from should be affirmed, upon the opinion of the learned judge who tried the case at special term.  