#### The Lawyers’ Surety Company of New York, Respondent, *v.*Max Reinach, Appellant.

(City Court of New York, General Term,

March, 1898.)

Conversion *—'*Overpayment by an administratrix upon shares of next of kin — Bight of action in her assignee—What are assets—'Estoppel — Nature of the action.

In an action for a conversion brought by the assignee of an administratrix, it appeared that the defendant was an assignee of the shares of two of the next of kin of the intestate, under assignments, one of which was prior and the other subsequent to a surrogate’s decree, made in the matters of the estate. The - defendant assignee was a party to this decree and it fixed the amounts! of the shares. Subse-1 quentiy to both assignments, a. second decree, to which the defendant assignee was also a party, was made, which, 'in legal effect, declared that the value of the shares had been overestimated and that the defendant assignee had been overpaid by the administratrix for the shares, to an amount stated. The defendant, among other things, alleged that he had purchased the shares, in.reliance.upon the state.ments of the administratrix and of the next of kin that the shares were of the value fixed by the original decree; and, further, that the admin*243istratrix had not as such, nor as an individual, brought any action at law to recover the overpayments of the next of kin.

Held, that the cause of action was assignable and that the plaintiff assignee had a right to enforce all the rights of the administratrix. That the recovery sought was assets of the estate, paid by a mistake, and that the administratrix might have sued for sucb U. claim, either in her representative capacity or as an individual.

That, to such an action, it was no defense that the representations of the administratrix as to the value of the shares were false, as she had no power to estop the estate of her intestate.

That the action was not upon contract, as the payment made by the administratrix to the defendant was not voluntary, but was compelled by, and might have been enforced under, the decree.

Appeal by the defendant from a judgment entered upon a verdict directed in favor of the plaintiff.

Edward W. S. Johnston, for appellant.

Marshall S. Marden, for respondent.

O’Dwyer, J.

The complaint alleges that on or about the 25th day .of Hovember, 1896, in a certain proceeding in the Surrogate’s Court of the county of Bangs, entitled “ In the matter of the judicial settlement of the account of Ann Murphy, as administratrix of the goods, chattels, and credits of Patrick Murphy, deceased,” a decree was duly made and entered, judicially settling the accounts of Ann Murphy as such administratrix, and ordering, adjudging and decreeing that she pay sums amounting-to seven hundred and fifty-three dollars and forty cents ($753.40) to Max Reinach, as assignee of the shares or interests 'of Edward Murphy and Elizabeth Aaron, son and daughter respectively of Patrick Murphy, the said deceased, as and for the shares to ‘which they were entitled as the only next of kin of said Patrick Murphy, deceased. That defendant was a party to said accounting, and had due notice of the steps taken therein, and the entering of the aforesaid decree.

That thereafter, and on or about Hovember 25, 1896, said Ann Murphy, pursuant to the aforesaid decree, paid the aforesaid sums amounting to seven hundred and fifty-three dollars and forty cents ($753.40) to the said Max Reinach, as assignee'of the "shares or interests of the said Edward Murphy and Elizabeth Aaron.

*244That thereafter, and on or about the 5th day of January, 1897, the decree so entered on the 25th day of Rovember, 1896, was duly reopened by the said surrogate of Kings county. That the defendant was a. party to the application to open said decree, and 'had due notice thereof, and was represented by counsel on all proceedings thereon and the entry of said order. That thereafter, and on or about the 15th day of April, 1897, in the Surrogate’s Court of the county of Kings in the said proceedings entitled “ In the matter of the judicial settlement of the account of Ann Murphy, as administratrix of the goods, chattels aud credits of Patrick" Murphy, deceased,” a new decree was duly made and entered, modifying and amending the said decree of Rovember 25, 1896, by striking therefrom" and vacating -the order, judgment and decree therein contained that Ann Murphy pay to Max Reinach, as assignee of Edward Murphy and Elizabeth Aaron, sums amounting to seven hundred and fifty-three dollars and forty cents ($753.40), and substituting in place thereof, that the said administratrix, Ann Murphy, pay to said Max Reinach, as such assignee of Edward Murphy and Elizabeth Aaron, the shares to which they Would be entitled, amounting only to the suin of three hundred and fifty dollars and fourteen cents ($350.14). That said defendant. was a party to the application for said new decree of April 15, 1897, and had due notice thereof, and was duly "represented by counsel thereon, and on the making and entry of the decree. That the amount of seven hundred and fifty-three dollars and forty cents ($753.40) paid by said Ann Murphy to Max Reinach, as alleged in paragraph IV, was form hundred and thirteen dollars and twenty-five cents ($413.25) in excess of the amount, to which he was entitled, as determined by said-'decree of April 15, 1897, land that said defendant was overpaid the said sum of four hundred and thirteen dollars and twenty-five cents ($413.25), which he held to the use of the said Ann Murphy, as administratrix, as aforesaid.. That thereafter, and on or about the 24th day of April, - 1897, the said Arm Murphy, as administratrix as aforesaid, by an assignment in Writing, duly executed -under seal, duly assigned, transferred and set over unto this plaintiff all her .right, ¡title and interest in and to all rights which she had or possessed under said decrees and each of them against ¡this defendant for the recovery of the money so overpaid -to him and all claim and all demand of every nature which she had against the said defendant by reason of such overpayment. That payment of the said sum of $413.25 *245was duly demanded of the defendant by the. plaintiff" on )the 8th day of May, 1897. That said defendant has failed, neglected and refused to pay the said sum, and that the whole amount, is still due and owing to this plaintiff.

Rone of these allegations ,aie denied, except that appellant denies he was overpaid and that he holds the money so overpaid to the use of said administratrix or otherwise, and that there is anything owing.

The answer then sets up for a further, separate and distinct defense to the complaint “that prior to the 25th day of November, 1896,, Edward Murphy and Elizabeth Aaron requested this defendant to purchase from them their interest in the estate of Patrick Murphy, deceased, and stated and represented to this defendant as an inducement to purchase the same, that- they, the said Edward Murphy and Elizabeth Aaron, were the only heirs-at-law and next of kin of the said decedent, Patrick Murphy. That thereupon and before this defendant purchased such shares or interests, he, this defendant, inquired of Ann Murphy, whether the -aforesaid statements and representations were true and Correct, and that the said Ann Murphy then and there stated and represented to this defendant, in order to induce this defendant to purchase such shares, that the said Edward Murphy and Elizabeth Aaron were the only heirs-at-law and next of kin of the said decedent, Patrick Murphy. That this defendant, believing such representations and statements so made to be true, and being induced thereby and relying thereupon, did, in good faith and without any knowledge of the falsity of such alleged statements and representations, purchase from the said Edward Murphy and Elizabeth Aaron their interest in such estate, believing at the time that Edward Murphy and Elizabeth Aaron were the only heirs-at-law and next of kin of the said Patrick Murphy,' deceased. Upon information and belief, that such statements were false and untrue, and that the said Edward Murphy, Elizabeth Aaron and Ann Murphy knew or should have known, and each of them knew or should have known, that such statements and representations were false and Untrue when made as aforesaid. That this defendant received all moneys named in the complaint as assignee of' the said Edward Murphy and Elizabeth Aaron and not otherwise, and, upon information and belief, that no action at law or otherwise has been brought by the said Ann Murphy, individually, " or as administratrix, or by the plaintiff against the said Edward Murphy and Elizabeth Aaron, or either of them.”

*246The defendant claims that this' cause of action is the personal Claim of the administratrix and that this' action is the personal action; of Ann Murphy, that,although she. paid the money, out as administratrix, ¡which is admitted, yet ,fehe must sue in her own right to recover it. There is no proof whatever that Arm Murphy knew, at the time it is. alleged, she made the representations; that they were, false. The assignment 'of Edward Murphy to> the.der fendant is dated April 20, 1896. The assignment of Elizabeth Aaron to the defendant is dated ¡November 20, 1895. The first decree was entered ¡November 25, 1896. The second decree was entered April 15, 1897.

It is no defense to an action brought by an executor or administratrix, as such, to recover assets of the estate in, the hands of defendant, or for the conversion thereof, that plaintiff has in his individual capacity been guilty of wrongdoing. The .maxim *'eos turpi causa non oritur actio*does not apply. Wetmore v. Porter, 92 N. Y. 76-82; Fellows v. Longyor, 9 id. 324-331; Deobold v. Oppermann, 111 id. 531-539; Hood v. Hayward, 124 id. 1-24; Boyle v. St. John, 28 Hun, 454-455; Place v. Hayward, 117 N. Y. 487-492; Colt v. Lasnier, 9 Cow. 320-321.

- It is difficult to understand how an executor or administrator could bind, the assets of his testator or intestate by an estoppel, when he could not by the most solemn contract known to the law. Austin v. Munro, 47 N. Y. 360; Rathbone v. Hooney, 58 id. 463-467.

Bigelow on Estoppel (5th ed.), at page 598, says: “ The misrepresentation of a trustee in respect of the trust estate, tó one having notice that it is such, will not work an estoppel upon an innocent *cestui que*trust. There is no case, it has- recently' been declared from the bench, in which a trustee, having made a fraudulent representation by which he was bound, or even .a fraudulent conveyance .after his legal title was confirmed, he still being' a trustee only,"has thereby deprived of their property the persons beneficially entitled to the estate.” See also Sotters v. Cheeney, 74 Ga. 790-793.

And when a causé of action accrues to one who is an executor or administrator in a- matter affecting the estate,' after the death of "his testator or intestate, the executor or administrator may, whéh the: recovery will be- assets,'sue in his representative character oh in" Ms "own name, at ¡his option. 7 Am. *&*Eng. Ency. L. 362; 2 Wm. on Ex. (7 Am. ed.) 77-81; Bingham v. Marine Nat. Bank; 41 *247Hun, 377-378; approved, Buckland v. Gallup, 105 N. Y. 453-457; Sperb v. McCoun, 110 id. 605-610; Schouler’s Ex. and Admr. 292; Zimmerman v. Kinkle, 108 N. Y. 282, 287; Kane v. Paul, 14 Peters, 33; Hood v. Hayward, 124 N. Y. 1-24; Colt v. Lasnier, 9 Cowen, 320; Wetmore v. Porter, 92 N. Y. 76-82.

In the case at bar the question is presented whether the recovery sought here is assets of the ¡estate, and that question must be determined. It appears that' a decree was 'entered adjudging that Ann Murphy, as administratrix, had in her hands $753.40 to which the next of kin, as it was then supposed, of Patrick Murphy, to-wit: Elizabeth Aaron and Edward Murphy, were- entitled; hs Max Reinach, the defendant, had purchased these shares, the decree directed Ann Murphy, as administratrix, to pay the defendant out of the estate of Patrick Murphy in her hands $753.40, which she did. In a subsequent proceeding .that decree was modified and the decree to pay Max Reinach $753.40' was vacated, and she, as administratrix, was directed to pay to Max Reinach only $350.14. Max Reinach was a party to those proceedings; here was an adjudication that the defendant held $413.25 of the assets of the estate of Patrick Murphy, to which he was not entitled.

This is not an action based upon a contract of the administratrix; the payment made under the decree of Hovember 25, 1896, was not a voluntary payment; it might have been enforced by contempt proceedings; the element of assent, which is necessary to every valid contract, is wanting.

It has been held that an administrator, making'a payment under a. mistake of fact, may recover it back in that capacity. Clark v. Hougham, 2 Barn. *&*Cress. 149-153; approved, Bogert v. Hertell, 4 Hill, 508.

The plaintiff occupies the same position that Ann Murphy, as administratrix, occupied, and the objection that it was outside the lawful powers - of the administratrix to- assign a claim due the estate was not well taken. Rogers v. Squires, 98 N. Y. 53-56; Code Civ. Pro., § 502, sub. 3; People ex rel. Lawyers’ Surety Co. v. Anthony, 7 App. Div. 132-135, 136.

By the assignment, Ann Murphy transferred to the plaintiff *“*all claims or causes of action which she has against said Max Reinach by reason of his having received any part of the estate of Patrick Murphy, it being the intention 'of tins instrument to subrogate to the Lawyers’ Surety Company of Hew York all the *248right, title and interest of Ann Murphy, as administratrix of Patrick Murphy, deceased.”

The judgment should he affirmed, with costs.

Fitzsimons, Ch. J., and Olcott, J., concur.

Judgment affirmed, with costs.