HASBROUCK, adm'r &c., appellant, vs. HASBROUCK and others, respondents.

Although an inventory filed by an executor is, on an accounting, prima facie evidence against him of what the assets consist of and of their value, still it is not conclusive. The executor has a right to show that property not belonging to the estate was inventoried, and may also show that the property belonging to the estate was of less value than the amount at which it was inventoried.

The fact that an administrator, under the supposition that he could turn over securities taken by him on the sale of his intestate's interest in a copartnership, filed an inventory and an account fixing the value of the intestate's interest in the firm at a particular sum, should not preclude him, when he is sought to be personally charged with that amount, from showing the actual value of the interest if it had been sold for cash, or if the partnership had been wound up in the usual manner. INGRAHAM, P. J. dissented.

A

PPEAL from an order or decree of the surrogate of the

county of New York. Henry W. Hasbrouck died intestate October 9, 1859, leaving the respondents, Isabella Hasbrouck, his widow, Maria Hasbrouck, an infant daughter, and Henry M. Hasbrouck, an infant son, born after the intestate's decease, his only heirs. On November 10, 1859, the appellant was appointed administrator of the decedent's estate, and shortly afterwards he sold out the decedent's interest in the partnership of Kingon & Hasbrouck, composed of James Kingon and the deceased, to the surviving partner, Mr. Kingon, for $14,703.91; and took Mr. Kingon's notes and bills, indorsed by the appellant in person, and maturing at various times during the years 1860, 1861 and 1862, for the entire amount. No formal inventory or appraisement was made; but the administrator and Mr. Kingon, with an umpire mutually chosen, made an estimate of the partnership assets, and after deducting ten per cent from the notes and accounts, and fifteen per cent from the stock, they valued the decedent's net interest in the firm at the sum mentioned, ($14,703.91.) The administrator being cited to account in June, 1861, he filed an inventory (in October, 1861) in which the partnership interest was appraised as above. He subsequently filed an account, in which it appeared that he had in

Hasbrouck v. Hasbrouck.

his hands $6416.25, which, however, he claimed was subject to a personal claim against the estate for $3497.66, for money loaned by the appellant to the deceased. The last two notes of Mr. Kingon, one maturing July 5, 1861, for $3686.25, and one January 5, 1862, for $3803, not being paid, the administrator credited himself with their amount as debts not collected. To this the respondents objected. The appellant offered to show by proof, that by taking notes instead of cash he had nominally realized a much larger amount for the estate than if he had insisted on cash payment; that if he had permitted the firm to go into liquidation in the ordinary way, the estate would not have been realized in cash at the time the proceedings were commenced; and that at least, so far as the widow was concerned, she was estopped by acquiescence in the taking of said notes, and by her accepting a chattel mortgage as collateral for their payment; which offers were all either overruled by the surrogate, or the evidence in regard to them afterwards disregarded by the court below.

The surrogate ordered that the administrator be charged with the amount of the two notes, and interest thereon from maturity. And the administrator appealed.

D. C. Ringland, for the appellant.

Jackson & Middlebrook, for the respondents.

BARNARD, J. Although an inventory filed by an executor is, on an accounting, prima facie evidence against him of what the assets consist of, and of their value, still it is not conclusive. The executor has a right to show that property not belonging to the estate was inventoried, and may also show that the property belonging to the estate was of less value than the amount at which it was inventoried.

In this case the administrator has done nothing to deprive him of that right. If in his account rendered he had charged himself with the actual cash value of the interest of the deceased in the firm of Kingon & Hasbrouck, it cannot be

Hasbrouck v. Hasbrouck.

doubted that he would have been entitled to introduce proof showing such cash value, and that the interest had been put at too high a valuation in the inventory.

It does not necessarily follow from the fact of the administrator having sold the intestate's interest in the firm at a credit, that the ascertainment of either the then cash value of the interest, or of the sum which would have been produced to the estate on winding up the partnership matters in the usual manner, would be either impossible or attended with much difficulty.

The fact that the administrator, doubtless under the supposition that he could turn over the securities he took on the sale, filed an inventory and an account fixing the value of the interest of the deceased in the firm at $14,703.91, should not preclude him, when he is sought to be personally charged with that amount, from showing, if he can, the actual value of the interest if it had been sold for cash, or if the partnership had been wound up in the usual course. The administrator in this case does not seem to have acted fraudulently, or with any improper motives; but, on the contrary, appears to have had the good of the estate he represented in view in all he did, and to have been actuated with a desire to make the assets bring as much as possible.

Under such circumstances the law does not require that the administrator should pay individually to the estate more than the assets, if prudently administered, would have produced.

For these reasons, the proof offered by the administrator, as to the value of the interest of the deceased in the partnership, was admissible, and the rejection of it improper. Order reversed, and a new accounting directed before the surrogate, with costs of the appeal.

LEONARD, J. concurred.

INGRAHAM, P. J. dissented.

Order appealed from reversed.

[NEW YORK GENERAL TERM, May 5, 1862. Ingraham, Leonard and Barnard, Justices.]

NATHAN P. HOWELL and GILBERT HOWELL, executors, &c., vs. WILLIAM H. COOPER and another, executors, &c., and THE RECTOR &c. OF CHRIST CHURCH in the village of Sag Harbor.

Judgment creditors must exhaust their remedy at law, by the issuing of an execution, and the return thereof unsatisfied, in whole or in part, before they will be in a condition to demand the judgment of a court of equity as to the validity of a mortgage executed by their debtor. Accordingly held, that judgment creditors of a religious society could not file a complaint in the nature of a creditor's bill, to have a mortgage, given by the society, prior to the date of the plaintiffs' judgment, declared to be invalid, and the foreclosure thereof perpetually enjoined, on the ground that it was executed without any authority or permission being previously obtained from the court of chancery, or supreme court, to execute a mortgage upon the property of the church; it appearing that the plaintiffs had not attempted to sell the mortgaged property, or any other property of the church, on execution.

A

PPEAL from an order made at a special term, overruling

the demurrer of the plaintiffs to the answer of the defendants Wm. H. and G. H. Cooper. The action was brought by the plaintiffs as executors of the will of Lewis Howell, deceased. The complaint alleged that on the 15th day of November, 1845, pursuant to the act of the legislature passed April 5, 1813, entitled "An act to provide for the incorporation of religious societies," the defendants the rector, churchwardens and vestrymen of Christ Church in the village of Sag Harbor, became a religious incorporation by that name. And that such corporation has ever since been, and still is, acting as such, at Sag Harbor aforesaid.

That on the 15th day of March, 1860, the plaintiffs, in another action in which they were plaintiffs, and the said rector, churchwardens and vestrymen were defendants, by the consideration and judgment of this court, recovered against the said rector, churchwardens and vestrymen the sum of $1148.53, damages and costs; and such judgment was duly docketed in the office of the clerk of the county of Suffolk on the 16th day of the same month; that the same remains

Howell . Cooper.

wholly unpaid and unsatisfied, and in full force. That on the said 15th of March, 1860, the defendants Wm. H. and Gibert H. Cooper filed in the same clerk's office a notice of the pendency of an action in this court, brought by them as executors of the will of William Cooper, deceased, against the said rector, churchwardens and vestrymen, for the foreclosure of a mortgage, and the sale of the lands and premises covered by a mortgage alleged to have been given by the said rector, churchwardens and vestrymen to the said William Cooper, deceased, in his lifetime, to secure the payment of $1200 and interest, bearing date on the 23d of November, 1847, and recorded in the said clerk's office on the 14th of Deceinber in the same year. That such foreclosure action was then pending, and is still pending; and that the complaint therein was filed in the said clerk's office on the same 15th of March; and that there is in said clerk's office a record of such a mortgage. That the said alleged mortgage was, on or about the day of its date, executed by the said rector, churchwardens and vestrymen, so far as they had power, to the said William Cooper, in his lifetime; and that the same contains the usual power of sale. That the said rector, churchwardens and vestrymen were never authorized or permitted by any chancellor, vice chancellor, court or magistrate, of or acting under the authority of this state, to execute or give the said alleged mortgage, or otherwise mortgage or convey the lands and premises, or any part of the lands and premises, describer in or purporting to be mortgaged thereby; nor was the said alleged mortgage executed by or with the authority, permission or consent of any such chancellor, vice chancellor, court, or magistrate. The description of the premises embraced in the mortgage was set forth in the complaint. The plaintiffs alleged that the land was, with a church building thereon, granted and conveyed to the said rector, churchwardens and vestrymen, in fee, by the trustees of the First Church and congregation in Sag Harbor, another religious incorporation, long before November, 1847, and on or about the month of