Drake v. . Price
New York Court of Appeals
Appeal from the general term of the Supreme Court, in the second district, where a judgment in favor of the plaintiffs, upon demurrer to the complaint, had been affirmed. (Reported below, 7 Barb. 388.) This was an action against the executors of Gilbert Hunter, deceased, to recover a sum of money, which they had withheld from Mrs. Drake, a legatee under the will of their testator, by way of commissions. Robinson, one of the defendants, died, after the judgment below.
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Appeal from the general term of the Supreme Court, in the second district, where a judgment in favor of the plaintiffs, upon demurrer to the complaint, had been affirmed. (Reported below, 7 Barb. 388.) This was an action against the executors of Gilbert Hunter, deceased, to recover a sum of money, which they had withheld from Mrs. Drake, a legatee under the will of their testator, by way of commissions. Robinson, one of the defendants, died, after the judgment below. The complaint alleged that the defendants were the sole acting executors of the last will and testament of Gilbert Hunter,…
1Opinion of the CourtFoot, J.
The material question in this cause is, whether the appellant and his deceased co-executor held the funds as executors, or as trustees, or, in other words, whether, as executors, they had paid it over to themselves, as trustees, and held it in the latter character. The same question arose on a similar clause in a will, in the case of Valentine v. Valentine (2 Barb. Ch. 430), and Chancellor Walworth decided, that the executors held the funds in their character of executors, and not as trustees. His decision appears to me to be sound, and in accordance with, the provisions of the will. Holding…
2Cases cited1 opinion
- Valentine v. ValentineNew York Court of Chancery · 1847
3Cited by22 opinions
- Johnson v. . LawrenceNew York Court of Appeals · 1884
- Beard v. . BeardNew York Court of Appeals · 1893
- Betts v. BettsNew York Supreme Court · 1878
- Hurlburt v. . DurantNew York Court of Appeals · 1882
- In Re the Accounting of Chemical Bank & Trust Co.New York Court of Appeals · 1938
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