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Lambert D. Tyler v. Celestia A. Ballard.

Section 1380

time afterwards and within the ten years. continues a lien created as prescribed in section 1251, existing at the decedent's death, for three years and six months after letters of administration have been duly granted upon the estate of the decedent. Hence, in case the judgment ever became a lien upon these two pieces of real estate, such lien existed at the time these proceedings were instituted, as to the one acre parcel owned by the defendant at the time of her death.

Section 1393 provides that a pension hereafter granted by the United States for military services, is exempt from levy and sale by virtue of an execution, except that real property purchased with the proceeds of a pension so granted but owned by the pensioner or by his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon. I think the exemption provided by section 1393 is one of the exceptions referred to in section 1251. It seems to have been the intention of the legislature not only to exempt the pension certificate itself from the claims of creditors, but also the property purchased wholly with pension moneys. In Burgett v. Fancher, 35 Hun, 647, and Stockwell v. Bank of Malone, 36 Hun, 583, it was held that moneys received from a pension and deposited in the bank in the name of the pensioner were exempt, although the relations between the bank and the pensioner were those of debtor and creditor. In Yates Co. National Bank v. Carpenter, 119 N. Y., 550, the Court holds that where the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance. of the pensioner and his family, such property is exempt. But the applicant contends that the exemption is simply "from levy and sale by virtue of an execution," and that the statute is satisfied by holding that the lien of the judgment attached to the real property of the pensioner, Celestia A. Ballard, and that the right to enforce such judgment by levy and sale was suspended during her lifetime only,

Lambert D. Tyler v. Celestia A. Ballard.

and that upon her death the real property having passed into the ownership of persons not entitled to protection as pensioners, the judgment might be enforced by a sale under an execution. If such be the proper construction of this statute, the law makers signally failed in effectuating the purpose plainly intended. The effect of such construction would be practically to deprive the pensioner purchasing a home for himself and family of the benefit of his pension to the extent of the claims of creditors seeing fit to put their demands into judgment. While the judgment creditor might not be able to enforce the colloction of his judgment for a period, the pensioner would not be able to transfer his real property except subject to the lien of the judgments, and the judgment creditors, rather than the pensioner, would obtain the benefit of the pension moneys. This result it was the plain design of the statute to avoid. The exemption from levy and sale was an absolute exemption of the pension moneys from any lien or claims of creditors, and it was the plain intention of the statute that property necessary for the support and maintenance of the pensioner, purchased with pension money, should be as exempt from the claims and liens of creditors as the money itself. (Yates Co. N. Bank r. Carpenter, supra.)

The decision in re Winans, 5 Demarest, 138, cited by the applicant, simply holds that pension moneys of a deceased pensioner are liable for the debts of her estate, to be paid in due course of administration, and indicates that the applicant's remedy, if any, is by means of proceedings in Surrogate's Court.

It may be added that as to the twenty-two acre parcel, the judgment having been obtained more than ten years before the making of this application, could in no event be a lien upon the twenty-two acre parcel conveyed by Celestia Ballard to Antoinette Dimmick in 1891.

The application must be denied, with costs.

Dunn v. Arkenburgh.





§ § 655, 677, 1835, 1836, 3246.

Attachment-Action by sheriff to recover attached property.

Inability or inadvertance to mention the debt in the inventory filed by the sheriff ought not to be permitted to defeat the lien of the attachment, and the court possesses ample power to authorize an amendment of the inventory embracing such sums.

Sections 1835 and 1836 of the Code of Civil Procedure refer solely to claims presented by creditors of the deceased and matters which constituted a charge against the estate at the time of the death of the deceased. They have no reference to and do not embrace a claim brought into being by the personal acts of the representation or a claim or demand arising solely out of matters independent of the estate of the deceased.

(Decided March, 1900.)

Appeal from a judgment upon a decision by Mr. Justice McAdam, at a Special Term held in and for the County of New York.

Charles Edward Souther for appellant.
Robert F. Little for respondents.

HATCH, J.-This action is brought pursuant to the provisions of Section 677 of the Code of Civil Procedure, leave therefore having been duly obtained. The averments of the complaint showing that leave was so obtained are sufficient, and while it does not appear in the order granting the leave that notice of the application was given to the sheriff, yet the defendant cannot take advantage of

Dunn v. Arkenburgh.

that fact. The Code provision in this respect was clearly for the benefit of the sheriff and to protect his rights. The defendants are in nowise prejudiced thereby, and cannot now be heard to complain, even though as to the sheriff a defect existed in this regard. It is undisputed that a certain copy of the warrant of attachment and notice was served upon the defendants as required by law. The statement contained in the notice of the levy of the attachment was sufficiently broad to cover the indebtedness which was thereafter established to have been due from the testator to Robert II. Arkenburgh (O'Brien v. Mechanics' & Traders' Fire Ins. Co., 56 N. Y., 52, Greenleaf v. Mumford, 19 Abb. Pr. Rep., 464). When the certificate of the interest held by Robert in the estate of the testator was given by Eliza J. Arkenburgh, she made it in the most general terms, limiting it to his interest as residuary legatee. There was, therefore, nothing at that time from which the sheriff could be accurately informed as to the existence of the debt in favor of Robert, which was afterwards established. But the attachment itself and the notice which was served upon the defendants were broad enough in their terms to cover such indebtedness and constituted the attachment a lien thereon. Inability or inadvertence to mention such debt in the inventory filed by the sheriff ought not to be permitted to defeat the lien of the attachment, and the court possessed ample power to authorize an amendment of the inventory embracing such sums (Vanderheyden v. Cary, 38 How. Pr. Rep., 367). Such power has been exercised from an early day (Smith v. Hudson, 1 Cow., 430), the practice in this regard being sufficiently liberal to secure rights fairly obtained (Courtney v. Eighth Ward Bank, 14 Misc., 386). Upon the final decree made by the surrogate determining the amount which Robert H. Arkenburgh was entitled to receive from the estate, it appeared that the defendant Eliza J. Arkenburgh claimed the amount thereof by assignment. Both parties thus claiming this fund the surrogate was without jurisdic

Dunn v. Arkenburgh.

tion to determine the respective rights therein. Such was the express adjudication upon appeal in this case (Matter of Arkenburgh, 38 App. Div., 473). While an appeal was taken from the decree of the surrogate, no appeal was taken from that part of the decree which found that the estate was indebted to Robert H. Arkenburgh. As the levy was properly made, and as the surrogate was without jurisdiction to determine the rights of the respective claimants, this action was properly brought (Davidson v. Chatham Nat. Bank, 32 Hun, 138; Kelly v. Breusing, 32 Barb. 601, affirmed on appeal, 33id., 123). Nothing which appears in C. C. Bank v. Parent (134 N. Y., 527) is in conflict with this view. In that case there was no levy of the attachment upon the sum of money which was sought to be recovered in the action, and, therefore, it was held that a creditor's action could not be maintained. The case recognizes, however, that had there been a levy upon the property, an action at the instance of the sheriff, under Section 655 of the Code, in aid of the attachment, would lie; as does also the case of Backus v. Kimball (62 Hun, 122).

The complaint in this action averred all of the facts, and was clearly sufficient, if the plaintiff was entitled to recover. It appeared by the evidence that the defendants had the sums of money in their hands or under their control prior to the commencement of the action. It became their duty, therefore, to pay the same in discharge of the lien prior to the time when the action was commenced. While the action is against the defendants in their representative capacity, yet the right to maintain the same and the obligation of the defendants with respect thereto, are entirely independent of any matters which concern the administration of the estate or the property of the deceased. Under such circumstances the provisions of Section 324C of the Code of Civil Procedure are applicable and authorize the award of costs which has been made. Sections 1835 and 1836 refer solely to claims presented by creditors of the deceased, and matters which constituted a charge

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