Washington County NyArchives Court.....Bump, Alfred V. William Gilchrist 1889
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Source: Reports Of Cases - Ny
Written: 1889

ALFRED D. BUMP, Appellant, v. WILLIAM GILCHRIST and Others, Respondents.

General legatees — not properly made parties to an action where an executrix has 
improperly transferred a note, upon which the action is brought — Code of Civil 
Procedure, sec. 452.

In an action commenced against William Gilchrist and others, the makers, and a 
guarantor of a promissory note of $1,000, made payable to Margaret M. Bump, 
executrix of Warren S. Bump, or bearer, which was alleged to have been 
transferred by her to the plaintiff, two general legatees under the will of 
Warren S. Bump, deceased, were, on their own application, made parties defendant 
upon the ground that they, together with Margaret M. Bump, were the persons 
interested in the estate of Warren S. Bump, and that Margaret, as executrix, was 
mismanaging the estate and had assigned the note in suit, being part of the 
assets of the estate, to the plaintiff without consideration.

Held, that while a general legatee is entitled, at the proper time, to his share 
in the estate, and to proceed against the executrix in the proper court for 
mismanagement, he is not the owner of any specific part of the estate.

That as these legatees had no interest in this specific note they should not 
have been made parties to this action.

Appeal from a judgment entered, at the Washington County Circuit, upon an order 
dismissing the complaint, in the office of the clerk of the county of Washington 
on December 24, 1887; and, also, from an order made at a Special Term and 
Circuit Court, permitting Horace Gilchrist, as guardian of William J. Bump, an 
infant, and Charles W. Taylor, as guardian of Alfred W. Bump, an infant, to be 
brought in as defendants, and permitting them to interpose a defense to the 
above entitled action, which order was entered in the office of the said clerk 
on October 26, 1886.

This action was commenced against William Gilchrist and others, makers and a 
guarantor of a promissory note of $1,000 and interest, payable to Margaret M. 
Bump, executrix of Warren S. Bump, or bearer, alleged to have been transferred 
to plaintiff. Two general legatees under the will of Warren S. Bump, viz., 
William J. Bump and Alfred W. Bump, applied to be made defendants and plaintiff 
against her will was ordered to bring them in. The ground was, in brief, that 
they, together with Margaret M. Bump, were the persons interested in the estate 
of Warren S. Bump; that Margaret, as executrix, was mismanaging the estate, and 
had assigned the note in suit (being part of the assets) to plaintiff without 
consideration, etc.

On the trial of the case the plaintiff produced the note, and testified to his 
ownership of it. On cross-examination he testified that he knew it belonged to 
the assets of the estate of Warren S. Bump; that he received the note in payment 
for work done on the farm for several years, and that he also gave to Margaret a 
note of his own of $326, when he received this note. The will of Warren S. Bump 
was given in evidence by plaintiff. It gives his wife the use of all the 
property as long as she remains the widow of testator, with power to use the 
principal of the personal, if she needs more, to support the children. At her 
death all was to go to the children William J. Bump and Alfred W. Bump. If the 
widow married, all was to be divided between the widow and the children when the 
youngest became twenty-one. If the sons died before the widow and before 
receiving their share, she was to have the whole. The court nonsuited the 
plaintiff on the ground that the case could not be determined until the rights 
of the widow were determined on an accounting in the Surrogate's Court, and that 
she could not convey any right to the property until she knew what she was 
entitled to. The plaintiff appealed from the judgment and the order.

S. W. Russell, for the appellant.

L. Fraser, for the respondent.

Learned, P. J.:

The result of this case illustrates the incorrectness of the order bringing in 
the two legatees. Section 452 of the Code authorizes the bringing in a party who 
has an interest in the subject, "the title to which may in any manner be 
affected by the judgment." Cases like Turner v. Conant (18 Abb. N. C., 160) and 
Derham v. Lee (87 N. Y., 599) show that the object is to bring in all parties 
having an interest, so that a final decision may be made. Now, in any view, 
there are plainly no other parties having an interest, except those who are now 
parties. Margaret has transferred her rights to the plaintiff; and William J. 
and Alfred W. are the only legatees. If then, they were properly brought in, no 
reason is shown why a verdict against the signers of the note should not have 
been directed in favor of some one. The object of section 452 is not to enable 
debtors to escape paying debts; but, in a proper case, to aid in deciding to 
whom they shall pay. And when every person who could claim the debt is a party, 
the debtor should not go free.

Undoubtedly, if this note was, in fact, wholly assets of the estate the 
executrix could reclaim it if she had parted with it improperly. But until she, 
or some one authorized so to do, should reclaim it, it would seem that the legal 
title was in the party to whom it had been transferred. Of course the plaintiff 
must be the real party in interest. That means the party holding the legal 
title. For instance, an assignment may be fraudulent as to creditors, yet the 
fraudulent assignee would be competent to maintain an action on a note thus 
fraudulently assigned. According to the practice pursued in this case, when an 
assignee, under an assignment, fraudulent as to creditors, had sued on a note 
thus assigned, a creditor of the assignor might cause himself to be made a party 
defendant to that action, and the court would thereupon nonsuit the plaintiff 
and thus relieve the debtor from paying any one. The mistake has been in 
bringing in the legatees. A general legatee is entitled, at the proper time, to 
his share in the estate, and he is entitled to proceed against the executrix in 
the proper court for mismanagement, but he is not the owner of any specific part 
of the estate. The estate belongs to the executrix. These legatees, therefore, 
were not properly brought in as parties, because they had no interest in this 
specific note. This is easily illustrated. This executrix is personally 
entitled, in any event, to one-third. Now, if this note were much less than one-
third of the estate, she might take it as her share or as part thereof, and the 
legatees could claim no specific interest therein.

It may be true, as the respondents urge, that the plaintiff and the executrix 
are mismanaging the estate, but this action is not the place where that question 
is to be tried. As the signers of the note do not deny their signature, the only 
question here to be tried is whether the plaintiff is the legal owner and 
holder. Of that his possession is prima facie, but not conclusive, evidence. 
These legatees are in no sense owners of the note, and show no title or claim of 
title thereto. They should not be parties. 

Order making legatees parties reversed, with ten dollars costs and printing 
disbursements against the guardians, and motion to make them parties denied, 
with ten dollars costs against guardian.

Judgment reversed, new trial granted, costs to abide event.

Landon and Ingalls, JJ., concurred.

Judgment reversed, new trial granted, costs to abide event.

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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