Dolbeer v. Casey

By the Court,

T. R. Strong, J.

The omission and refusal of the deceased to provide for his wife was fully proved; and the motion for a nonsuit was properly denied. He declared he would not provide for his family, and abandoned them. The wife was in actual want, when she was received and taken care of by the assignor of the plaintiff.

The question presented upon the refusal of the justice to charge as first requested is, whether an executor or administrator is entitled to the benefit of' the six month’s, limitation prescribed by § 38 of 2 R.S. p. 89, for the commencement of an action upon a claim presented to and disputed or rejected by him, and which has not been referred, when a notice to creditors under § 34, (Id. p. 88,) to present their claims, has not been published in more than one newspaper. It was proved that letters testamentary were issued to the defendant, as executor, by the county judge of Livingston county, acting as surrogate, on the 8th of October, 1849that on the 9th of April, 1850, an order was duly made by the same officer, that the defendant insert a notice, once in each week for six months, in the Livingston Republican, requiring all persons having claims against the deceased, to present the same, &c., on or before the first day of November then next; and that a notice was published in said paper as required by the order, once in each week for six months, commencing the 11th day of April, 1850. And evidence was given, tending to prove that about the first of May, 1850, the demand, which is the subject of the action, was presented to the defendant and rejected by him. By § 34, referred to, “ any executor or administrator, at any time, at least six months after the granting of the letters testamentary or of administration, may insert a notice, once in each week for six months, in a newspaper printed in the county, and in so many other newspapers as the surrogate may deem most likely to give notice to the creditors of the deceased, requiring all persons having claims against the deceased, to exhibit the same, with the vouchers thereof, to such executor or administrator, at the place of his residence or transaction of business, to be specified in such notice, at or before the day therein named, which shall be at least six months from the day of the first publication of such notice.” Upon the construction given to this section at the trial, a publication of the notice in at least two newspapers is requisite, in order to comply with it—one published in the county, or if there is none therein, in an adjoining county, by § 10, (2 R. S. 552,) and one or more other newspapers—so many more “as the surrogate may deem most likely to give notice,” &c.—but he must. designate one other, either in the same county or elsewhere. This, in my opinion, is not the spirit of the provision. As I understand it, a publication in a newspaper in the county is sufficient, unless the surrogate directs a publication also in some other paper or papers. Application must be made to the surrogate on the subject; but if he does not deem that a publication in more than a single paper, being one in the county, would aid the object of securing notice to the creditors, it need not be published in any other. His order, that notice be published in a .specified paper in the count}7, without referring to a publication in any other, is evidence that he did not deem- that publication in other newspapers would be of service. The legislature designed to leave it to the surrogate to determine, in view of the object to be accomplished, of notice to creditors, whether a publication in any paper beyond a single one in the county, should be made. And this, so far as I know, is the practical construction which has been given to this section by surrogates generally.

The refusal to charge as secondly requested, was correct. Although, for a portion of the period covered by the plaintiff’s demand, the wife was supported from the joint funds of the assignor of the plaintiff and his copartner, and it was under an agreement that their respective families should be provided for from that source, the assignor must be deemed to have supported her. Each partner was authorized to take of the partnership property and funds to support his family, but each supported his own family as much as if he had used his own private funds for the purpose. An individual right to take from company funds and effects for family purposes, was, by agreement, possessed by each partner. The right of each was allowed, in consideration of his conceding a like right to the other.

[Monroe General Term, December 4, 1854.

Johnson, Welles and T. R. Strong, Justices.]

My conclusion is, that a new trial should be granted, with costs to abide the event.