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TOWN OF ULYSSES et al. v. COLLINS et al.

(Supreme Court, Appellate Division, Third Department. March 11, 1903.) 1. COUNTIES-TREASURER-ACTION ON BOND.

Code Civ. Proc. § 1888, enacts that, where a public officer is required to give an official bond "to the people," and no provision is made for prosecution of the bond, any person injured by default of the officer may apply for leave to prosecute the bond. Section 1887 provides that, where a county treasurer fails to pay moneys as directed by an order or judgment of court, the person injured may apply for leave to prosecute his official bond. Held that, where a county treasurer failed to pay to a town money apportioned to it from the school funds, the town and the supervisor thereof could not maintain an action against him on his of ficial bond to the county; they not being parties to the bond, and the case not being within either of the statutes.

2. SAME-RIGHT TO SUE-DEMURRER.

Where a town and the supervisor thereof sue a county treasurer on his official bond to the county for failure to pay moneys to the town, and there is no authority whatever for an action on his bond by them, defendant's failure to demur to the complaint is not a waiver of objection to the maintenance of the action.

Appeal from Trial Term, Tompkins county.

Action by the town of Ulysses and another against John H. Collins and others. From a judgment in favor of defendants other than defendant Charles Ingersoll, plaintiffs appeal. Affirmed.

Charles Ingersoll was elected county treasurer of the county of Tompkins in the fall of 1896. Before entering upon the duties of his office as such county treasurer, he gave an undertaking, with sureties, to the county of Tompkins, in the form provided by statute, which undertaking was approved by a resolution of the board of supervisors of the county of Tompkins, and filed, as also provided by statute. By said undertaking it is provided that said county treasurer and his sureties "are held and firmly bound unto the county of Tompkins in the penal sum of two hundred thousand dollars ($200,000.00) to be paid to the county of Tompkins its successors and assigns." The condition of the undertaking is as follows: "Whereas the above bounden Charles Ingersoll has been duly elected treasurer of Tompkins county for the term of three years from the first day of January 1897 now therefore, if the said Charles Ingersoll shall faithfully execute the duties of his office and shall pay over according to law and account for all moneys, property and securi ties which shall come into his hands as Treasurer, and render a just and true account thereof to the Board of Supervisors, when thereunto required, and obey all orders and directions of a competent court relating thereto; then this obligation shall be void, otherwise to remain in full force and virtue." Ingersoll entered upon the duties of said office January 1, 1897, and continued the county treasurer of said county until January 1, 1900. On or about April 1, 1899, said Ingersoll as such county treasurer received from the state treasurer of the state of New York the sum of $27,715.66, the moneys apportioned by the superintendent of public instruction for the support of the common schools in the county of Tompkins for the year 1899. The school commissioners of said county of Tompkins apportioned the said $27,715.66 among the several school districts and parts of school districts in said county, stating the towns in which said school districts and parts of school districts were situated. The amount so apportioned to the school districts and parts of school districts in the town of Ulysses was $2,608.03. The supervisor of the town of Ulysses gave to said treasurer, in behalf of said town, his bond with sureties in the form provided by statute for the faithful disbursement, safekeeping, and accounting for such moneys and of all other school moneys

12. See Pleading, vol. 39, Cent. Dig. § 1366.

The

which should come into his hands from any other source, which bond was duly approved by said county treasurer. Thereafter said Ingersoll, as such county treasurer, paid to the supervisor of the town of Ulysses, from time to time, on account of said school moneys so apportioned to said town of Ulysses, the sum of $2,135.25, leaving unpaid a balance of $476.78. Said Ingersoll wrongfully and unlawfully converted the said $476.78 to his own use. said supervisor of the town of Ulysses duly demanded said balance of $476.78 from said county treasurer, but said county treasurer neglected and refused to pay the same, and said balance of $476.78 has never been paid to the supervisor of the town of Ulysses. This action is brought by the town of Ulysses and the supervisor of said town of Ulysses against said Charles Ingersoll and the sureties on his said undertaking to recover said balance of school moneys so remaining unpaid. Issue was joined between said plaintiffs and the defendants, who were sureties on said undertaking. The trial court held that the county of Tompkins was the only obligee named in said undertaking, and that the complaint did not state, and the plaintiffs had not shown, a cause of action on said undertaking in their favor, and dismissed the plaintiffs' complaint.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and LYON, JJ.

David M. Dean and Randolph Horton, for appellants.

Halliday & Denton (E. A. Denton, of counsel), for respondents.

CHASE, J. This action is wholly based upon the contract as stated in the undertaking given by the defendants to the county of Tompkins. The Court of Appeals, in speaking of an instrument under seal, and the right to maintain an action thereon, has said:

"But where an instrument is under seal no person can sue or be sued to enforce the covenants therein contained except those who are named as parties to the instrument, and who signed and sealed the same." Henricus et al. v. Englert, 137 N. Y. 488, 33 N. E. 550.

The undertaking now under consideration seems to be included among the instruments so mentioned by our court of last resort; and, the plaintiffs not having been named as parties thereto, cannot therefore maintain this action, unless their right so to maintain the same is given by some statutory authority controlling upon the parties signing the instrument.

Said

The provisions of section 1888 of the Code of Civil Procedure do not apply to the alleged claim of the plaintiffs in this action. section provides as follows:

"Where a public officer is required to give an official bond to the people, and special provision is not made by law, for the prosecution of the bond, by or for the benefit of a person who has sustained, by his default, delinquency, or misconduct, an injury, for which the sureties upon the bond are liable, such a person may apply for leave to prosecute the delinquent's official bond."

The undertaking signed by the defendants was not given to "the people," and is not included within the letter of said section. Section 1887 provides in what cases leave of the court may be obtained for persons other than the obligee in a county treasurer's bond to bring an action thereon. The plaintiffs are not included within the provisions of that section. The supervisors of the several towns are by statute made the temporary custodians for the school money and the intermediaries for its payment for the benefit of the several

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school districts. No statutory authority has been called to our attention for towns or the supervisors of towns to bring an action on the county treasurer's bond, where default has been made in the payment of school money. Ample remedy is afforded to such school districts, and the supervisors of towns in which they are situated, without such an action.

It is suggested by the appellants that the defendants should have demurred to the plaintiffs' complaint on the ground that the plaintiffs did not have legal capacity to sue, and that, having failed to so demur to the plaintiffs' complaint, they have waived any objection to the plaintiffs' maintaining this action. The defendants' objection to the plaintiffs' maintaining this action is one relating to the substance of the cause of action itself, and not simply to the legal capacity of the plaintiffs to sue. The complaint did not state, and the proof does not show, facts sufficient to constitute a cause of action in behalf of the plaintiffs against the defendants, and the complaint was therefore properly dismissed.

The judgment should be affirmed, with costs.

All concur.

(Supreme Court, Appellate Division, Third Department.

March 11, 1903.)

1. WILL-CONSTRUCTION-LEGACIES CHARGEABLE ON HOMESTEAD.

Testator gave his wife a life estate in the homestead farm and any land which he might buy adjoining, and $1,000 out of his personal estate with which to erect two houses on real estate which she herself owned for the use of two children who had been brought up by them. His executors were empowered to sell all other real estate, from the proceeds of which the wife was to receive $1,000, with which to erect a tombstone, and after her death to sell the rest and residue of his real estate for the purpose of carrying out the instrument. By a codicil the two children were bequeathed $1,000 each. Testator was a farmer, making between $400 and $500 a year, and there was nothing to indicate that he had any expectation of augmenting his property to any material extent. Held, that the legacies given to the two children by the codicil were a charge on the homestead after the wife's death, but that the legacy for the erection of the houses was not, it having been testator's intention that the latter should be paid from the personal property and the proceeds of the real estate, other than the homestead, alone.

Appeal from Surrogate's Court, Tompkins county.

Proceedings to settle the accounts of William S. Paddock, executor of Stephen M. Paddock, deceased. From a decree settling the accounts and holding certain legacies chargeable on the real estate, the executor appeals. Reversed.

Stephen M. Paddock, the testator whose will is here for construction, died upon the 18th day of October, 1895, leaving, him surviving, his widow, Mary A. Paddock, and no children, but two sisters, Sarah E. Warner and Elsey Ann Burnett and a nephew, William S. Paddock, a son of another sister. The respondents here are Eugene Terry and Frank Terry, who were brought up as the children of the testator, who never had children, and they sustained that relationship to the testator until they were 24 or 25 years of age. In 1887 the will in question was executed. By that will the testator gave to his wife a life estate in the homestead farm and any lands which he might buy

adjoining said farm. He next gave to his wife $1,000 out of his personal estate, with which she was to erect two dwelling houses, of equal cost, as near as may be, on certain real estate which she owned, and which she had theretofore willed to Frank Terry and Eugene Terry, for the benefit of said legatees. His executors were thereafter directed to pay to each of two parties $25 a year during the lifetime of his wife, and after her decease $100. The fourth provision of the will follows, wherein his executors were authorized and empowered to sell all other real estate of which he might die seised, from the proceeds of which his wife should receive $1,000, with which she was to erect a monument for their mutual benefit. The use and income of the remainder of the testator's personal property was then given to the wife for life, and it was provided that the above provisions for her were in place of dower and distributive share in his estate. By the seventh clause of the will it was then provided that, after the death of his wife, his estate should be divided-to his sister Sarah E. Warner, one-half; to his sister Elsey Ann Burnett, one-fourth; and to his nephew William S. Paddock, one-fourth. By the eighth clause it was provided that his wife should give no security, but that his nephew, whom he joined with her as executor, should give security in a bond in a penalty of at least $15,000. The ninth clause of the will then provides: "After the decease of my said wife, my surviving executor is hereby authorized and empowered to sell the rest and residue of my real estate and convey the same for the purpose of carrying out this instrument." In October, 1894, the testator executed a codicil in these words: "I give, devise and bequeath to Eugene Terry and Frank Terry the sum of $1,000 each." On the 26th day of June, 1901, his widow, Mary A. Paddock, died, and letters testamentary were duly issued to William S. Paddock, the nephew, as the surviving executor of the will of Stephen M. Paddock. Upon the accounting, it appeared that at the time of the death of Stephen M. Paddock his personal estate was just about sufficient to pay his debts. The evidence is not clear as to just what real estate he had in addition to the homestead farm. After the making of his will, however, he seems to have purchased some real estate adjoining the homestead farm, as was apparently contemplated in the will; and he seems also to have had a small parcel of real estate aside from that, which the executors sold under the fourth clause of the will. The evidence does not disclose what was received from the sale of this real estate, but it appears to have been a small amount. The testator was a farmer, making between $400 and $500 a year, and there was nothing to indicate that he had any expectation of augmenting his property to any material extent. After the death of Mary A. Paddock, the surviving executor sold the homestead farm, and received therefrom a little upwards of $6,000, and at the time of the accounting he had in his hands for distribution the sum of $6.620.66.

Upon his accounting, as surviving executor, Frank Terry and Eugene Terry made claim for payment in full of the $1,000 given to Mary A. Paddock for their benefit, and also of the $2,000 given to them by the codicil of the will, as charged by the will upon the real estate. The special surrogate of Tompkins county has affirmed their contention, and directed payment to them of these legacies in full.

Argued before PARKER, P. J., and SMITH, LYON, CHASE, and CHESTER, JJ.

David M. Dean, for appellant.

Randolph Horton, for respondents.

SMITH, J. The construction of the will in question presents some problems not easy of solution. I am convinced that it was intended that the testator's widow should have the use of the homestead farm for life, and that she should in no way be deprived of that use by a sale of the property for the payment of any legacies. The legacy of $1,000 given to her for the erection of the two houses for the benefit of the respondents here was to be paid from the personal

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property. In this should be included the proceeds of real estate other than the homestead farm, which the executors were authorized and empowered to sell under the fourth clause of the will. That real estate was charged with the payment of this legacy. The legacy was not, in my judgment, charged upon the homestead farm, or the land adjoining it, which was given to the widow for use during her life. The very use to be made of the legacy negatives an intention to charge it upon the homestead farm. It was to be used during the life of the widow for the purpose of erecting two houses upon the property owned by the widow, which she was, in her will, to give to these beneficiaries.

Whether the legacies given to the respondents by the codicil to the will were a charge upon the homestead farm presents a more difficult question. If those legacies must be held to be payable upon the death of the testator, I should strongly incline to think that they were not charged upon the homestead farm. As I have before indicated, I cannot believe that the testator intended that in any event the use of the homestead farm should be taken from his widow. While these legacies are absolute in terms, I think it was not intended that they should be enjoyed until after the death of the widow. The testator is presumed to have known that he had no property with which to pay them until after the death of the widow. The legacy of $1,000 given to his widow for their benefit by the second clause of the will was to be enjoyed by them only after the death of the widow, when they should receive, under the widow's will, the land upon which the houses were to be built. After the death of the widow, the surviving executor was directed to sell the homestead farm "for the purpose of carrying out this instrument." In view of all these circumstances, the probable intention of the testator was to give to these respondents these legacies of $1,000, making them payable at the death of the widow, and from the proceeds of the homestead farm. With this construction, the will seems to be consistent, and one possible of execution.

The decree should therefore be reversed on law and fact, and the matter remitted to the surrogate, with directions to proceed in accordance with the views here expressed. All concur; PARKER, P. J., in result.