Hosack v. Rogers

Citations

• 6 Paige Ch. 415

Syllabus

<p>Where a firm consisting of three persons became insolvent and made an assignment of the copartnership property for the payment of its creditors ; and the senior partner covenanted that he would pay to such of the creditors as should release the two junior partners the full amount of their debts, if the assigned property was not sufficient, out of the proceeds of his claims upon the French government, when the same should be received; and the senior partner afterwards died, having made R., one of the creditors, executor, who afterwards recovered a part of the claims upon the French government ; Held, that the covenant was in equity a specific appropriation of the fund for the payment of the balance due to the creditors who executed the release to the two junior partners, which entitled them to a preference in payment out of that fund as against the general creditors of the decedent; and that the executor could, therefore, only have his rateable proportion of the fund with others who executed the release, but could not retain for his whole debt.</p> <p>The revised statutes do not take away the right of an executor to retain for his own debt out of the estate of a testator who died previous to 1830, although the assets out of which he seeks to retain came to the hands of the executor subsequent to that time.</p> <p>The distribution of the estates of persons who died previous to the adoption of the revised statutes, must be made according to the law as it then existed, and not according to the rules of the revised statutes.</p> <p>An executor’s right to retain, extends to debts due to him jointly with others, or in the character of trustee, as well as to those which are due to him solely and in his own right.</p> <p>The mere fact that an executor is an octogenarian, if in possession of his faculties in other respects, is not a sufficient reason for removing him from his trust, or for taking the property out of his hands.</p> <p>As a general rule, upon a bill filed ag