Opinion
11-27-1892
DE CONCILIO v. BROWNRIGG et al.
William B. Gillmore, for complainant. Gilbert Collins, for defendants.
Bill by Januarius de Concilio, executo, etc., of Houora Sanders, against Ellen Brownrigg and husband, Katie Sullivan, and others, beneficiaries under the will of Catharine Sullivan, deceased.
William B. Gillmore, for complainant.
Gilbert Collins, for defendants.
PITNEY, V. C. The object of this bill is to subrogate the complainant to the rights of certain creditors of the estate of Catharine Sullivan, deceased, and thereby establish a lien upon the lands of which Mrs. Sullivan died seised. The ground of the subrogation is that the complainant's, testatrix, Mrs. Sanders, in her lifetime, loaned and advanced to the executor of Mrs. Sullivan moneys wherewith to pay certain debts incurred by Mrs. Sullivan in her lifetime, and for the payment of which she did not leave sufficient personal property. The facts, as gathered from the pleadings and proofs, are as follows: "Mrs. Sullivan died in August, 1886, testate of a will by which she directed, in the first place, that all her debts should be paid, and, in the second place, she gave, devised, and bequeathed all her property to her six children, the defendants herein, share and share alike; and, in the third place, she appointed the complainant guardian of the property of her children until they should severally arrive at the ago of 21 years," and I also appoint him to be my trustee under this will, to hold and collect the income of said property until my youngest child shall attain the age of 21 years, when the property, real and personal, shall be divided equally among my children, the children of any deceased child to take the parent's share. It is my will that said guardian and trustee shall keep all taxes and water rents levied on my property paid, and that he keep the buildings insured against loss by fire, and that he keep my personal property well invested until the time for the division of the same to be made pursuant to the third paragraph of this will and thatthe net income of the property, real and personal, be in the mean time expended for the equal benefit of my children in their support and education;" and she appointed the complainant her executor. He duly proved the will, and acted as executor until some time in the year 1888, when he was discharged as executor and trustee under the will of Catharine Sullivan, subject to his duty to account, and the defendant Ellen Brownrigg was appointed administratrix with the will annexed. No inventory was produced, nor was any adjudication had in the orphans' court, that the personal property was Insufficient to pay the debts. The proof on that score is simply that the personal property was very small, and that the unsecured debts amounted to over $2,000. Mrs. Honora Sanders, the complainant's testatrix, was the sister of Mrs. Sullivan, and a woman of some means, and without children. The six children of Mrs. Sullivan were all infants at the time of their mother's death in 1886. The estate consisted mainly of real estate, all subject to mortgages, and an uncompleted contract for the purchase of other real estate, upon which an installment was still due. In this state of affairs, Dr. De Concilio applied to Mrs. Sanders for aid, and she loaned him $2,800 in cash, by virtue of a written agreement, as follows:
"Whereas, Mrs. Catharine Sullivan, late of Jersey City, in her lifetime was indebted to various persons in various sums, which are set forth in a schedule hereto annexed opposite the names of the persons to whom respectively the said sums are due; and whereas, Mrs. Honora Sanders, of city of Jersey City, New Jersey, at the request of Rt. Rev. Januarius de Concilio, executor of and trustee under the last will and testament of said Catharine Sullivan, deceased, has advanced or loaned to the Rt. Rev. Januarius de Concilio, as executor as aforesaid, (and not individually,) the sum of thirty-three hundred dollars, ($3,300.00,) being the aggregate of the hereinabove mentioned sums, for the purpose of paying or securing control of the said indebtedness in said schedule mentioned, relying expressly and solely on the credit of the estate of the said Catharine Sullivan, deceased, for the repayment of the said sum of $3,300 so advanced by her, and in no wise holding responsible the said executor and trustee individually for the same: Now, it is hereby witnessed that, in consideration of the premises, he, the said Right Rev. Januarius de Concilio, hereby promises and agrees, as executor as aforesaid, (and not individually or personally,) to repay to the said Honora Sanders, her executors, administrators, and assigns, out of the said estate as the same may come to his hands, if sufficient, the said sum of thirty-three hundred dollars ($3,300) in three years from date hereof, with interest at the rate of five per cent. per annum, payable semiannually; it being the intent hereof that the estate of the said Catharine Sullivan, deceased, and her said executor (as such executor only) shall be liable for the said sum of thirty-three hundred dollars ($3,300) as for so much money paid by the said Honora Sanders to the use of the said executor as such, and not individually. Witness the hand and seal of the above-named promisor, as executor, this sixteenth day of February, A. D. 1887. J. de Concilio, as Executor as Above. [Seal.] "
"Schedule of debts due by the estate of Mrs. Catharine Sullivan, (Rt. Rev. J. de Concilio, executor:)
| Mrs. Honora Sanders, loan to Mrs. Catharine Sullivan, in Feb. 1884, interest waived | $500 00 | |
| John Wagner, money due him from Mrs. Catharine Sullivan, on account of contract for house and lot, 543 Henderson St., J. C | 500 00 | |
| John S. Beams, formerly holder of mortgage on house N. W. corner of Henderson & 11th St., Jersey City, interest due Jan'y 26, 1887 | 137 33 | |
| Sundry claims presented, viz.: By Gas Co | $ 110 00 | |
| '* T. J. Colgan, marble | 25 00 | |
| "D. Lane, roofing | 11 50 | |
| "Mary Hogan, note | 500 00 | |
| "Eising & Co., liquors | 479 00 | |
| "J. Edelsteain, cigars. | 210 00 | |
| "Dr. Smith, services | 10 00 | |
| "John O'Reilly, cider, etc | 20 00 | |
| "W. L. Wolfe, liquors. | 90 25 | |
| "F. C. Meehan, mason | 11 35 | |
| "McDonald Bros., painters | 7 50 | |
| Amounting to | $1,374 82 | 1,374 82 |
| Sundry outstanding claims, which said executor desires to pay, or advantageously compromise, amounting in all to at least the balance of said $3,300, i.e | 787 85 | |
| $3,300 00" |
The sum of $3,300 was mentioned in the agreement, because Mrs. Sanders claimed that her sister, Mrs. Sullivan, owed her $500, which she should have included in it; but no proof was offered in support of that claim, and complainant's demand was voluntarily reduced at the hearing to $2,800. Of that sum about $2,500 (the exact sum is not important for present purposes) was used by Dr. de Concilio in paying sworn claims presented against the estate, the justness of which have been proven by evidence produced in this cause. The balance was accounted for by Dr. de Concilio in his evidence as follows: "All of the money which I received from Mrs. Sanders was used for the benefit of Mrs. Sullivan's estate, either in paying the debts to which I have testified, or in the payment of household expenses, rents, improvements, tuition for the children, or in other ways, or any other expenses relating to the trust of which I was trustee by her will." Mrs. Sanders died in January, 1888, and by her will appointed Dr. de Concilio her executor, and divided her estate, which is said to be worth about $10,000, equally among eleven persons, six of whom are the defendants herein, the children of Catharine Sullivan; the other five are the children of another sister.
The bill does not allege a discharge of the complainant as executor and trustee of Mrs. Sullivan, nor the appointment of Mrs. Brownrigg as administratrix c. t. a. and trustee, and she is not made aparty defendant in that capacity. It does not set out the provisions of Mrs. Sanders' will, nor show the interest of the defendants under it. These matters appear by the answer and proofs. The bill relies wholly on the equity of subrogation claimed to have arisen from the advancement of moneys as above stated, and prays a lien on the specific lands of which Mrs. Sullivan died seised, and which are described by metes and bounds. It makes no claim against the land for which Mrs. Sullivan held the contract for purchase, and which was subsequently conveyed to the defendants. The defendants Mrs. Brownrigg and her husband only have answered. Of the remaining five defendants, four are infants and one an adult. The clerk of the court was appointed guardian ad litem, and filed formal answers for the four infant defendants. No decree pro confesso has been made against Katie Sullivan, the adult defendant not answering. No point was made at the argument on these defects in the allegations in the bill or in the proceedings.
With regard to the rights of direct subrogation claimed by the complainant as executor of Mrs. Sanders, I am not clear in my mind that the case warrants it. Mrs. Sanders was an entire stranger, and had no interest in the lands subject to the statutory lien of the debts in question, and therefore it would seem that the subrogation, if it exists, must arise out of contract, the general rule being that a mere stranger can only be subrogated by virtue of some contract for that purpose, made either with the creditor or the debtor. The written contract upon which the money was advanced does not mention or provide for any lien or subrogation, and amounts simply to an acknowledgment of so much money being advanced on the credit of the estate for the purpose of paying debts, and pledging the estate for that purpose. The main object of the paper seems to have been, and was proven to have been, that Dr. de Concilio should not be personally liable, and contains no provision for any mortgage or specific lien on any property to secure its repayment. The authorities relied upon by the complainant are nearly all cases of defective mortgages or conveyances, where the intention of the parties to give specificliens was clear. See, on this point. Receivers, etc., v. Wortendyke, 27 N. J. Eq. 660; Coe v. Railroad Co., 31 N. J. Eq. 105, at page 136; North River Construction Company's Case, 38 N. J. Eq. 433, on appeal Upper v. Green 40 N. J. Eq. 340; Hampton v. Nicholson,23 N. J. Eq. 423; Merselis v. Vreeland, 8 N. J. Eq. 575. I do not, however, deem it necessary to determine this point, since 1 think that the complainant is en titled to relief on another ground. The complainant, in his capacity of executor of the will of Mrs. Sullivan, applied, according to the proofs, the greater portion of these moneys advanced by Mrs. Sanders to the payment of his testatrix's debts, and out of that fact arises an equity to him individually to be subrogated to the rights of such creditors. Livingston v. Newkirk, 3 Johns. Ch. 312, at page 318; Woolley v. Pemberton, 41 N. J. Eq. 394, at page 397,5 Atl. Rep. 139; Dix. Subr. pp. 146, 147; Sheld. Subr. § 202. Such right on the part of the complainant person any he, by his bill, in substance, declares to have been, and still to be, held in trust for Mrs. Sanders, and by proper amendment may been forced in this cause. It was not, in fact, disputed by counsel for the defendant that the complainant was entitled to relief to some extent; but he contended, and I think rightly, that such relief was conditioned upon his first accounting as executor of Mrs. Sullivan; that is to say, that the extent of his relief depends, not alone upon the amount of indebtedness which he has discharged, but upon the amount which shall be found due him on that score after he has accounted for all moneys coming to his hands as such executor. And so are the authorities last above cited, and so it must be on principle. The language of the supreme court of Mississippi in Woods v. Ridley, 27 Miss. 120, at page 151, seems to me to state the true rule: "Persons dealing with the representatives of a deceased person are presumed in law to be fully apprised of the extent of their authority to act in behalf of the estate which they represent. Hence, in the case of an ordinary administrator, they are presumed to know that he has no authority, as such, to make new contracts which will bind the estate in his charge; such, for example, a3 contracts for the loan of money, even upon the pretense that it is needed to pay the debts. A person, therefore, who, under such circumstances, advances money to an administrator, acquires no right, either at law or in equity, as against the estate. His equity only arises incase the money advanced has in fact been applied to the payment of debts for which the estate was justly and legally bound. In such cases the creditor of the administrator will be permitted to take his place, and will be subrogated to his rights. But recent, as well as sound, policy requires that it should be shown by the clearest evidence that the estate has been benefited, or, in other words, that the money has been applied beneficially, and in the payment of the debts." That case was somewhat like this in respect to the fact that there had been a succession of administrators, and the suit was by a party who had advanced money to the first administrator for the purpose of paying the debts, and brought suit against the second administrator, and was defeated, because the first administrator had not settled his accounts, and shown that there was any balance due him from the estate.
Dr. de Concilio had no right to sell lands to pay debts beyond what was necessary for that purpose. And so with regard to interest accruing on the mortgages covering the premises, and of taxes accruing thereon after the death of Mrs. Sullivan, he could not be allowed a lien for those unless there was a deficiency of the rents to pay them. In strictness, the remedy of the complainant as to this net sum. when ascertained, is confined to a lien on the land of Mrs. Sullivan. The counsel of the defendants stated that they preferred that it should be taken out of the shares of the defendants in the residue of Mrs.Sanders' estate. As four of the defendants are infants, this can only be done upon proof that the lands are worth as much or more than the charge for debts paid, and that it will be for their benefit to adopt the course proposed. As to the amount, if any shall appear upon a settlement of his account, advanced by complainant for household expenses, rents, improvements, tuition for the children, taxes, and other such expenses, so far as they are authorized by the will, or necessary for the support and education of the infants, the complainant will have a right, as it now seems to me, to retain such amount out of the same fund. The complainant may amend his bill by adding the necessary allegations, and making Mrs. Brownrigg a party, as administrator with the will annexed, with an offer to come to an account of his dealings with Mrs. Sullivan's estate, and it may then be referred to a master to inquire as to the value of the lands of which Mrs. Sullivan died seised, including the parcel which she held on a contract of purchase, and the amount of the incumbrance thereon; to take and state an account of the dealings of the complainant with the estate of Mrs. Sullivan in his capacity of executor of her will and guardian of the estate of her children, with the provision that complainant shall submit to such accounting; such account to show how much was expended by complainant to pay debts of the decedent, and how much for the other purposes above mentioned, with leave to apply for directions, and reserving further equities.