Robinson and others vs. McGregor and others, 16 Barb. 531

By the Court, Roosevelt, J. Thomas Rohinson, deceased, it appears, left a widow and six children surviving him. After his death his real estate was sold under a decree in partition; and the sum of $1020,04, was invested for the widow; the interest to be paid, during her lifetime to her, and after her death the principal was to be paid to the heirs. The commissioners in partition loaned the money to James Oakley, one of their number. He paid the interest from time to time, for several years, to the widow; and his executors, after his death, continued to do the same for several years longer, till the widow’s death.

Both parties, it will thus be seen, the testator Oakley and his representatives, viewed the transaction as a loan to him, and as standing on the same footing as if it had been a loan to, and a bond from, any other person. Can they now pretend that as soon as the principal became payable the interest stopped? Was such ever contended to be the effect of the nonpayment of a bond at maturity ? Had the executors of Oakley really wished to pay off the principal, and really found difficulty in determining who were the rightful claimants, they would have brought the money into court.

Hot having done so, we may fairly infer they found the use a full equivalent for the interest. They found it so, by their own admission, for six or seven years before the widow’s death; and nothing is shown to warrant the idea of any change after that event. Besides, it was the duty of Oakley to invest this money, according to the statute, “ in permanent securities at interest.” (2 R. S. 327.) And his executors cannot be heard to interpose a nonperformance of duty as a defense. He might have purchased public stocks.

Hot having done so, the only other alternative allowed by the statute, (§ 70,) was a “ bond and mortgage.” We have a right to presume, therefore— and his representatives are estopped from denying the presumption—that he gave and took a bond; or, at least, that he intended to be held to the same liabilities as if he had done so. Another question has been raised as to the persons entitled to receive the money. Some of the original six heirs, the tenants in common, died in the lifetime of the widow. To whom, on their deaths, did' their shares pass ?

It seems to have been assumed that the proceeds of the partition sale, although, personal in fact, were in law to be deemed real estate. In Snowhill v. Snowhill, (2 Green’s Ch. R. 20,) it was held that where property, even of an infant, was changed by authority of a competent tribunal, from real to personal, it went, upon the death of the infant, to his personal representatives. I find no warrant for the contrary idea. None, certainly, is to be found in the statute.

And the decree not only contains none, but expressly directs that, on the death of the widow, the third, invested for her benefit, be divided into six equal parts, “ and paid” to the complainant, Ralph D. Robinson, and the other five parties, by name. If any of these parties therefore have died, their personal representatives, that "is, their executors or administrators, and not their heirs, as such, are entitled to receive the payment of their respective shares, with one qualification however. The decree had directed the share of Mrs.

Sprong to be paid to John Sprong, “in right of his said wife.” He having died before actual payment, leaving her surviving, she becomes reinstated in her original rights, and is entitled to receive her share, not as his widow or representative, but as the heir of her father. As to Mrs. McGregor, formerly Ann C. Robinson, another of the six heirs, who since the decree in partition, has married Malcom McGregor, her rights it seems to me, will be best consulted, as the law now stands in reference to married women, by directing that sixth to be paid to her, instead of her husband.

Such a course, if not positively prescribed by the late act of the legislature, is at least within the discretion of the court sitting in equity, and will best harmonize with the present policy of the state, as evidenced in the recent legislative enactments. An order should therefore be entered, declaring the rights of the parties, and directing the payment by the executors of Oakley, of one-sixth of $1373,33, with interest from 29th April, 1853, (the date of the referee’s report,) to Christopher Robinson, one-sixth to Mrs. McGregor, and one-sixth to Mrs.

Sprong; and also to the attorney of those three petitioners his costs, to be taxed; with liberty to the personal representatives of the other three heirs of Thomas Robinson, the elder, should their shares be withheld, to apply to this court at special term for such further direction, on the footing of this order, as they may be advised and as may be necessary and proper. [New-York General Term, December 5, 1853. Edmonds, Mitchell, Edwards and Roosevelt, Justices.]