(78 Hun, 606.)

#### KANE v. ALDRIDGE.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Assumpsit—Monet Had and Received.

In an action for money had and received, it appeared that plaintiff was-a joint devisee with defendant and others, and that the executor of the will was authorized to sell and convey the land, and divide the proceeds-among the devisees. Plaintiff claimed that the executor induced her to convey her share of the land to defendant, in order to facilitate a sale,, and that the conveyance to defendant was without consideration; that the land was sold, and the proceeds paid over to defendant. There was-no evidence that defendant received the proceeds of plaintiff’s interest under an agreement with any one that she would hold them for or pay them to plaintiff. *Held,*that plaintiff did not establish a cause of action.

Action by Sarah E. Kane against Lura E. Aldridge for money had' and received. A nonsuit was granted at the Monroe circuit, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance.

Denied.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and. BRADLEY, JJ.

Eugene Van Voorhis, for plaintiff.

P. Chamberlain, Jr., for defendant.

LEWIS, J.

This action was brought to recover $1,380 which the-plaintiff alleged was had and received by the defendant to the use-*445of the plaintiff. It appeared from the pleadings and proof: That the plaintiff was one of the heirs at law, and a legatee named in the will, of Sarah A. Aldridge, deceased, which will had been duly admitted to probate. That Walter T. Aldridge was the executor named in the will, and that letters testamentary were duly issued to him. By the terms of said will, the testator gave and bequeathed to each of her heirs (five in number, the plaintiff being one of the five) the proceeds arising from a sale of the land and . premises known as her “homestead,” in the city of Bochester; the proceeds to be divided equally, share and share alike, after the sale. The executor was, by the will, authorized to sell and convey the real estate for the best price he could obtain therefor. That the plaintiff thereafter conveyed her interest in the property to the defendant, in order to facilitate' the sale thereof. The conveyance was without consideration. The property was thereafter conveyed by the defendant and the other heirs to one Ashton. Aldridge, as executor, executed and delivered to the purchaser, Ashton, a deed of said premises. The proceeds of the sale were paid to the defendant. The plaintiff duly demanded of the defendant her portion of the proceeds before the commencement of the action. After proving the foregoing facts, the plaintiff rested her case. Upon a suggestion from the court that he was about to nonsuit the plaintiff, her counsel offered to show “that, prior to the executor’s deed of the property in question, Walter T. Aldridge, the executor, op-' plied to the plaintiff to give a quitclaim deed of the premises to the defendant, Lura, and told her it was to enable him to facilitate the sale of the property, and when the property was sold she should be paid her share of the money, and that in pursuance of that arrangement she did execute such a deed to Lura, receiving nothing therefor. That Aldridge conveyed the property, as executor, and permitted Lura to take the money, and she has never turned over any share to the plaintiff. The business was done by Pliiletus Chamberlain, who was the attorney for Walter T. Aldridge, the executor, and also for Lura. He sent the deed to Walter Aldridge, —to California,—to be executed, delivered the deed on its receipt by him, received the money, and paid it over to Lura.” The court excluded the offer, and the plaintiff excepted. There was no proof that the defendant received the proceeds of the sale of the plaintiff’s interest with any understanding or agreement with any one that she would hold them for, or would pay them or any part of them to, the plaintiff.

The case is barren of any evidence showing what amount was received from the sale of the property, or what sum, if any, was paid to the defendant by the executor. The executor was called as a witness, and denied that he had paid anything to the defendant. The plaintiff produced upon the trial, and had marked for identification, an account of the executor, filed in the surrogate’s office, which contained a statement of the amount received for the sale of the property, but the account was' not offered or received in evidence. The plaintiff having failed to prove what amount of money had been received by the defendant, or, if she received any money from the *446sale of plaintiff’s share, that it was received with an express or implied agreement to pay the amount to the plaintiff, she failed to establish a cause of action, and was therefore properly nonsuited. It is consequently not necessary to examine the question whether, if the amount paid to the defendant had been shown, the facts would have justified a verdict for the plaintiff. The motion for a new trial should be denied, and judgment directed for the defend- . ant on the nonsuit.

All concur.