FIRST DEPARTMENT, JANUARY TERM, 1903.

[Vol. 78.

ANNETTE MORAN, Appellant, v. J. LEE MORRILL, as Executor of and Trustee under the Last Will and Testament of EDWARD MORAN, Deceased, Respondent.

Executor-when liable to be sued as such and when liable only as an individual his liability for personal property held by his testator as bailee thereof effect of a demand made on the testator- necessity thereof, on the executor.

Where a cause of action arises on a contract made with executors or administrators or arises wholly out of some act done by them in their representative capacity, they are only liable individually.

The complaint in an action brought against the executor and trustee of a decedent in his representative capacity stated two causes of action to recover the possession of certain paintings. The evidence tended to show that the decedent had, during his lifetime, transferred the paintings mentioned in the first cause of action to the plaintiff by a written assignment, duly delivered, which recited: And I further declare that such possession of said paintings as I may hereafter have is to hold and manage the same as the property of said Annette Moran, I acting as agent for her in managing, holding and controlling the same," and that the decedent had made a valid gift inter vivos to the plaintiff of the paintings mentioned in the second cause of action. All of the paintings were bequeathed in trust for certain purposes and came into the hands of the executor as part of the estate. The latter did not assert any individual right to the paintings, but contended that they were a part of the decedent's estate and that it was his duty as executor to hold them. Prior to commencing the action, the plaintiff had made a demand for the possession of the paintings which was refused by the executor. The complaint alleged that possession of the property was wrongfully withheld, but the demand for relief was limited to the recovery of possession of the property or the value thereof and included nothing in the nature of damages for a tort, as such.

The court nonsuited the plaintiff upon the ground that the action was in tort and was improperly brought against the executor in his representative capacity. Held, that the testator held the paintings as bailee and that his possession, as such, devolved upon his executor;

That the right to demand possession of the paintings existed against the testator in his lifetime, and that if it had been made upon him a cause of action would have arisen against him and after his death against his executor as such; That under the circumstances of this case the executor's possession of the property

did not become unlawful until he refused to deliver the property to the plaintiff; That, as the plaintiff merely sought to recover the possession of the paintings or their value, and sought nothing in the nature of damages for a tort, the action being in replevin and not for conversion, there was a waiver of any such claim against the executor individually and he was, under the circumstances, properly sued in his representative capacity.

INGRAHAM, J., dissented.

App. Div.]

FIRST DEPARTMENT, JANUARY TERM, 1903.

APPEAL by the plaintiff, Annette Moran, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of April, 1902, as amended by an order entered in said clerk's office on the 7th day of May, 1902, upon a nonsuit granted by the court after a trial at the New York Trial Term, and also from an order entered in said clerk's office on the 7th day of May, 1902, denying the plaintiff's motion to direct the entry of a general verdict in her favor upon the special verdict rendered by the jury, and granting the defendant's motion to nonsuit the plaintiff.

Theodore Sutro, for the appellant.

Burton Thompson Beach, for the respondent. LAUGHLIN, J.:

The action is brought against the executor and trustee of Edward Moran, deceased, in his representative capacity, to recover the possession of certain paintings alleged to be owned by the plaintiff. Two causes of action to recover different pictures are set forth. The plaintiff gave evidence tending to show that on the 30th day of August, 1899, the testator in his lifetime, by an instrument in writing under his hand and seal, assigned and transferred the paintings to which the first cause of action relates to her, and that the assignment was duly delivered. The assignment recited that the paintings were in testator's possession, and also contained the following declaration: "And I further declare that such possession of said paintings as I may hereafter have is to hold and manage the same as the property of said Annette Moran, I acting as agent for her in managing, holding and controlling the same." The paintings remained in the possession of the testator pursuant to this agreement until his death. The will was executed on the 7th day of June, 1901, and the testator died two days thereafter. The testator thereby, in disregard of his assignment to the plaintiff, expressly gave, devised and bequeathed these paintings to his executor in trust for other purposes. The second cause of action related to other paintings alleged to have been given by the testator to the plaintiff, and she gave evidence tending to establish a gift thereof inter vivos. The paintings came into the hands of

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the executor as part of the estate, and were inventoried by him. as such. After demanding possession, which was refused, the plaintiff brought this action. The executor never asserted any individual right, title or claim to the property; but he contended and avers in his answer that the paintings were part of the estate, and that it was his duty as executor to hold them. At the close of all the evidence, motions were made by each party for direction of a verdict. The court reserved its decision thereon and submitted special questions to the jury. The questions submitted were whether the testator made a valid gift of the pictures to the plaintiff in his lifetime and their value. The plaintiff is the widow of the testator. There was a fair question of fact as to whether the assignment was delivered to her. The court, in submitting this question, instructed the jury in effect that, if they found that it was delivered, there was a valid gift. There was also a fair question of fact as to whether there was a gift inter vivos of the other paintings. The jury found that the value of the paintings was $65,000. The court thereupon nonsuited the plaintiff upon the ground that the action was in tort, and was improperly brought against the executor in his representative capacity, and the plaintiff duly excepted. This is the principal question arising on the appeal.

The paintings were left in the possession of the testator. He held them as bailee. His possession devolved upon his executor, who likewise held them lawfully in the same capacity. The general rule is that where a cause of action arises on contracts made with executors or administrators, or arises wholly out of some act done by them in their representative capacity, they are only liable individually. (Matter of Van Slooten v. Dodge, 145 N. Y. 327; O'Brien v. Jackson, 167 id. 31; Reimers v. Schmitt, 68 App. Div. 299.) In this case, while a demand for possession was doubtless necessary before bringing the action, the right to make the demand existed against the testator in his lifetime, and against his executor after his death. The testator as bailee owed a duty to the plaintiff to exercise reasonable diligence in the care and preservation of this property, and that duty devolved upon his executor. The defendant admitted in his answer that he took possession of the property as executor, and, as has been shown, his possession was lawfully

App. Div.]

FIRST DEPARTMENT, JANUARY TERM, 1903.

derived from the testator. It could become unlawful only upon a demand and refusal to deliver the property to the plaintiff. The right to possession was vested in the plaintiff, and if she had made a demand upon the testator her cause of action would have been complete against him, and would exist against his representatives as such. This, I think, brings the case within the rule that executors are liable in their representative capacity to the true owner for property received by them in such capacity. (De Valengin's Administrators v. Duffy, 14 Pet. 282; Wall v. Kellogg's Executors, 16 N. Y. 385; Dunham v. Fitch, 48 App. Div. 321.) The plaintiff merely seeks to recover her property or its value if possession cannot be delivered. It is true the complaint alleges that possession was wrongfully withheld; but the demand was confined to the possession of the property or its value, and that is the only claim made by her counsel upon the trial. Undoubtedly the refusal of the executor to deliver this property might have been treated by the plaintiff as a conversion, but she seeks merely to obtain the possession of the property or its value, and nothing in the nature of damages for a tort as such was claimed at the trial. No execution for the recovery of money can be issued against the executor without leave of the Surrogate's Court, and it must be shown as a basis therefor that there are assets in his hands. It is manifest that no body execution could be issued against him in his representative capacity, so that whatever claim the plaintiff might have against him for any other cause of action is necessarily waived by bringing the action against him in this form. No error on the trial prejudicial to the respondent is assigned which requires special consideration.

It follows, therefore, that the judgment and order should be reversed, with costs, and the plaintiff should be permitted to enter judgment in proper form against the defendant upon the special verdict.

VAN BRUNT, P. J., PATTERSON and HATCH, JJ., concurred; INGRAHAM, J., dissented.

INGRAHAM, J. (dissenting).

The complaint alleges that at the time of the commencement of the action, and at all times thereafter mentioned, the plaintiff was

FIRST DEPARTMENT, JANUARY TERM, 1903.

[Vol. 78. and still is the owner of, and entitled to, the possession of certain goods and chattels particularly described; that one Edward Moran died in the county of New York on the 6th day of June, 1901, and that the defendant was named as executor and trustee in his will, which was admitted to probate, and letters testamentary thereunder were issued by the surrogate to the defendant on the 25th day of June, 1901; that on or about the 1st day of February, 1901, the defendant, claiming to act as executor and trustee as aforesaid, took possession of the goods and chattels belonging to the plaintiff before specified and caused them to be stored with and put into the warehouse of a safe deposit company, and caused receipts for said goods and chattels to be issued in his name as said executor; that the plaintiff duly demanded of the defendant that he return the said goods and chattels, and that the defendant has neglected and refused so to do, and wrongfully retains the same from the plaintiff to the plaintiff's damage in the sum of $75,000.

There is a second cause of action alleged, which contains the same allegations relating to other specified goods and chattels, and the complaint demands judgment against the defendant for the possession of the goods and chattels enumerated, or, in case possession cannot be given to the plaintiff, for the value of the goods and chattels and for damages for the retention thereof. The answer denies the ownership by the plaintiff of the property or the right to the possession thereof, and the value of the property; admits the issuance of letters testamentary, and that as executor under the will of the late Edward Moran, and claiming to act as such executor, he took possession of the said goods and chattels mentioned in the complaint, and denies each and every other allegation of the complaint.

Upon the trial the plaintiff introduced evidence which she claimed tended to show that she was the owner of the property described, whereupon the court submitted a special question as to whether the defendant's testator in his lifetime made a valid gift of the property described in the complaint to the plaintiff, to which the jury answered that he did, and the jury were then directed to fix the value of the property, which they fixed at $65,000. After the verdict upon those special questions the plaintiff requested the court to direct a general verdict for the plaintiff upon the special verdict, which the