Opinion
July Term, 1896.
Henry M. Field, for the appellant.
D.W. Forsyth, for the respondent.
Plaintiff brings this action on the equity side of the court and seeks to set aside an arrangement made on the 6th day of July, 1894, by her with the defendant. Plaintiff's letters of administration were not issued until the 25th day of July, 1894. The evidence given at the hearing indicates that a settlement and adjustment were made, without any fraud or deceit, as found by the referee; and the evidence satisfactorily supports the findings of fact made by the referee in respect to the adjustment made. ( Carey v. Smith, 5 App. Div. 505.)
In Vroom v. Van Horne (10 Paige, 557) it appeared that a bill was filed by the same person, who afterwards obtained administration to avoid her own deliberate act, and the chancellor observed in respect thereto: "This I think a court of equity ought not to permit her to do, even if that act was unauthorized. * * * The grant of administration has relation to the death of the intestate, and it legalizes all intermediate acts of the administrator. * * * Thus, where the administrator, before he had taken out letters of administration upon the estate of the intestate, delivered a horse to another for his expenses in burying the decedent, and afterwards brought trover for the horse, it was decided, by a majority of the judges of the Court of King's Bench, that the action could not be maintained. For, say they, it is directly against his own agreement and contract, and the plaintiff himself is a particeps criminis if anything is done amiss, and it is not reasonable that he should be allowed to bring his action against the defendant for doing a thing to which he not only consented but jointly acted therein with the defendant." In Priest v. Watkins (2 Hill, 225) a note belonging to the estate of the intestate was paid to his widow. She subsequently united with another in taking out letters of administration, and they then brought an action upon the note in their representative capacity, and it was held "that, notwithstanding the provisions of the Revised Statutes as to executors de son tort, the letters related back to the time of the intestate's death, and, therefore, the payment to the widow was a bar to the action."
Upon the facts and circumstances disclosed in this case, we think a court of equity ought not to allow the plaintiff to overhaul the settlement which she deliberately made, without any fraud, with the defendant. Besides, it appeared upon the trial that there was an equitable adjustment made between the parties, and that the defendant has, by means of the settlement, obtained no more than was equitably her due from the intestate and by reason of the terms of the lease; and that the defendant surrendered such lien or rights as she had, to enforce the collection and payment of the rent reserved in the lease. The findings of fact made by the referee, as already intimated, are warranted by the evidence delivered before him. We have looked at the rulings criticised by the appellant and do not find that any error was committed by the referee which requires us to interfere with the conclusion which he reached upon the hearing. We think the referee's report should be sustained.
All concurred.
Judgment affirmed, with costs.