Kings County NyArchives Court.....Clark, Andrew Vs. Henry Coe 1889
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Source: Reports Of Cases - New York
Written: 1889

Second Department, May Term, 1889.

ANDREW J. CLARK, Administrator, with the Will Annexed of SUSAN J. CLARK, 
Deceased, Respondent, v. HENRY L. COE, Appellant.

Executor — securing payment of his individual debt by a mortgage upon chattels 
held by him as executor.

In an action, brought by the administrator under the will of Susan J. Clark, to 
recover the possession of certain household furniture, it appeared that the 
articles in question belonged to Susan J. Clark at the time of her death, and 
that her son, Charles Z. Pond, who was her executor, took possession of her 
household furniture and used it in his private residence, which he leased from 
the defendant Coe. The rent being in arrears, Pond, as an individual, executed a 
chattel mortgage on the furniture to the defendant Coe to secure the payment of 
such rent.

Held, that the landlord could not hold the furniture as against the plaintiff.

Leitch v. Wells (48 N. Y., 585); McNeil v. Tenth National Bank (46 id., 325) 
distinguished.

That the very fact that the purchaser secured payment of the individual debt of 
the executor by a mortgage upon the goods of the latter's testator carried upon 
the face of the transaction its own condemnation.
Field v. Schieffelin (7 Johns. Ch., 150) followed.

Appeal from a judgment recovered upon a trial at the Kings County Special Term, 
which was entered in the office of the clerk of Kings county on the 24th of 
September, 1888.

Frank Rudd, for the appellant.

Joseph H. Atkinson, for the respondent.

Barnard, P. J.:

The goods in question belonged to Susan J. Clark at the time of her death. 
Charles Z. Pond was her executor. After her death Pond took possession of the 
property, which consisted of household furniture, and it was in use by the 
executor in his private residence. The defendant was the lessor of Pond, and the 
rent was in arrears. Pond, as an individual, executed a personal mortgage on the 
property to defendant to secure the payment of the executor's own debt for rent. 
The question is whether the landlord could hold the title against the plaintiff, 
who has been appointed administrator under the will annexed, in the place of the 
executor Pond, who was removed from his trust.

The cases are uniform that a purchaser for value, and in good faith, from an 
executor will acquire a good title, even if the executor misapplies the 
proceeds. (Leitch v. Wells, 48 N. Y., 585.) So, also, one who loans money on the 
securities of the estate is protected. {McNeil v. Tenth Nat. Bank, 46 N. Y., 
325.) This case does not fall within these cases. The executor only conveyed his 
own individual title. He had none. If the evidence is to be judged as if he 
conveyed as executor, the conveyance was in payment of his private debt, and is, 
on this account, an exception to the rule that purchasers for value are 
protected. In Field v. Schieffelin (7 Johns. Ch., 150), the chancellor states 
the rule in such cases as follows, in reference to purchasers from an executor, 
in payment of the present debt of the executor, "the better doctrine is that in 
such a case he does buy at his peril." The very fact that a purchaser 
extinguished this debt of the executor to him with the goods of the testator 
carries its own condemnation on the face of the transaction. 

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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