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the time by ex parte orilers which the defendant had obtained and pretended were valid.
EDWARDS, Justice.— I think that the affidavit of the sheriff shows that a valid levy was made upon the personal property of the defendant before his death, and before the return day of the execution. But I am not prepared to say that there was a sufficient levy upon the real estate. It does not appear that any act whatever was done, showing that the sheriff intended to make such levy. On the contrary, I think that his affidavit shows that he did not intend to levy upon any other than the personal property. If the plaintiff insists that a valid levy can be made under an execution after the return day, I will hear a further argument upon that point. In the meantime, the motion to stay proceedings, under the levy made upon the personal property of the defendant, is denied without costs.
David S. Mills agt. John B. THURSBY and others, execu
Where the plaintiff offered to give his bond, with sureties, to refund whatever
part of the judgment the court, on appeal, should adjudge him not entitled to; and the defendant accepted the offer; and an order was made denying defendant's motion to stay proceedings, and that he should pay the money in twenty days upon the delivery to him of the bond-which bond was immediately afterwards tendered to the defendant, but he died shortly after, without having paid the money; Held, that this consent, and the order made on it, must bind the executors of
the defendant, (the suit having been revived against the executors;) and no stay of proceedings on the judgment could be granted.
New-York Special Term, January 16, 1854.
This was a motion by defendants for a stay of proceedings upon the execution issued upon the judgment obtained in this action, in September, 1851, mentioned in the previous cases. The facts sufficiently appear in the opinion of the court.
N. DANE ELLINGWOOD, for defendant.
Mitchell, Justice. The defendants move to stay proceedings on the judgment obtained, and execution issued, against their testator; and show that they have recently executed a bond to the plaintiff, with sureties, conditioned to pay any amount that shall be finally adjudged by the court to be due, by the testator or his estate, to the plaintiff; and that, on appeal to the general term, from the judgment entered against the testator, the defendants were ready to argue the appeal, but the plaintiff was not ready.
The opposing papers show that the defendants' default was
entered at the general term, and opened at the last general term; but with a condition that the cause should not be argued at that term, unless the plaintiff should be ready. · The default being opened on this condition, the plaintiff had the right to avail himself of it, and was not in default for so doing.
The motion for a stay of proceedings has been frequently before the court. In April, 1853, on such a motion, the plaintiff offered to give his bond, with sureties, to refund whatever part of the judgment the court should adjudge him not to be entitled to ; and the defendant thereupon consented that his motion should be denied, and the plaintiff's consent accepted; and an order was made accordingly, that he should pay the money in 20 days, upon the delivery to him of an undertaking to that effect, to be approved by one of the justices of the court. The undertaking was immediately afterwards tendered to the defendant, the testator; but he died shortly after, without having paid the money.
This consent, and the order made on it, must bind these defendants; and no stay of proceedings on the judgment can now be granted. This, however, is on the supposition that the plaintiff comply, or has complied, with his part of that order. The undertaking must, therefore, be submitted to the court; and, if it were not accepted by the testator in his lifetime, should be now executed to the executors, and approved by one of the judges of this court; and it may be proper to execute it in the form of a bond, instead of an undertaking.
As the plaintiff also prefers to retain the execution, the bond given on this motion by the defendants, and which was intended only to procure a stay, will be returned to the defendants to be cancelled.
On the plaintiff complying with the above requirements on his part, the stay of proceedings temporarily granted is vacated, and any further stay denied.
In the matter of the claim of David S. Mills, a creditor, agt.
The estate of John THURSBY, deceased.
A surrogate, on an application under 18 of 2 R. S., 116, has a discretion to de.
cree payment of a judgment against a testator, or a proportional part thereof; but this discretion will not be exercised for the benefit of the applicant, where it appears that there is comparatively a small amount of cash and of assets in the inventory, that are immediately convertible into money; and the testator having provided in his will for the payment of the claim out of moneys to be raised on mortgage upon his real estate; and that the real estate and his business should be preserved for the benefit of his children-there being property of the testator amply sufficient to pay the judgment.
Special Term, February 17, 1854.
This was an application by Mills, to the surrogate of Kings County, to compel the executors of John Thursby, deceased, to pay a judgment recovered in the supreme court, September, 1851, for $19,455.78, and docketed in that county before the death of the judgment debtor. The facts sufficiently appear in the opinion of the court.
Albert Mathews, for petitioner Mills.
By the court-JESSE C. Smith, surrogate. This application is made under subdivision 1 of $ 18, (2 R. S., p. 116,) for the payment of a judgment in favor of said David S. Mills against the deceased, recovered in his lifetime. The answer and admissions showed that an appeal was taken from the judgment, which was entered upon the report of referees, before the death of said John Thursby, which is still pending; that no stay of proceedings was obtained upon the said judgment, in conse
Application to the Surrogate by David S. Mills.
quence of some informality ; that the sheriff made a levy during the lifetime of the said deceased, upon his personal property ; that the proceedings upon the levy has been stayed from time to time, by orders obtained by the deceased and his representatives; and that a motion is now pending in favor of the plaintiff, David S. Mills, against the sheriff of the County of Kings, for a fine or penalty against him for a neglect to return said execution.
The inventory of the executors, which has been filed since this proceeding was commenced, shows that the personal estate of the deceased consisted of claims against insurance companies for $7,000, which claims do not appear to be at once collectable ; $6,000 of bank and insurance stock ; $3,000 in cash; $6,734.50 in machinery in a ropewalk, formerly carried on by deceased, and now carried on by the executors; and that the whole inventory, including household furniture, claims, moneys, stocks, &c., amounts to $23,442.6&. It is admitted that the estate is amply sufficient to pay the claim.
It does not appear that any of the personal assets have been sold or reduced to cash. On the 16th day of June, 1853, letters testamentary were issued to the executors. The will of the deceased, after providing for the payment of his debts, and some legacies that are charged upon the estate, directs the body of the estate, both real and personal, to be appraised by certain persons named in the will, and to be taken by certain of the sons of the deceased, who are some of the executors, at the valuation made by these appraisers, subject to the charges thereon.
The will then provides for raising the money, by bond and mortgage on the estate, to pay this claim or judgment, if it shall become necessary so to do.
The will evidently contemplates the preservation of the real estate, and of the machinery necessary to carry on the ropewalk, for the benefit of the sons of the deceased, to whom the same is devised and bequeathed.
The general policy of the statute, as stated by Chief Justice Nelson in Fitzpatrick agt. Brady, (6 Hill, 581,) is to allow eighteen months to settle the estates of deceased persons, or, at