Argued November 29, 1893
Decided December 12, 1893
Frank S. Coburn for appellant. Frederick E. Storke for respondent.
We think the surrogate erred in charging the executrix with the sum of $173.29, the amount received by her for hay grown upon the farm in 1889. The testator died in June of that year, and the tenant of the farm, who worked it upon shares, cut the grass thereafter and paid over to the executrix that sum as her share of the proceeds of the hay, under the agreement with the testator. The executrix was devisee for life of the farm. Growing grass partakes of the nature of realty. Neither at common law nor under our statute does it go as assets to the executor or administrator, but follows the land and belongs to the heir or devisee. ( Evans v. Roberts, 5 B. C. 820; Kain v. Fisher, 6 N.Y. 597; 2 Rev. St. 82, § 6, sub. 6.) On the other hand, corn and other annual crops produced by care and cultivation, and not growing spontaneously, are at common law, as between heir and executor or administrator, treated as chattels, and under our statute are assets for the payment of debts even as against the devisee. (Williams on Exrs. vol. 1, p. 70; 2 Rev. St. 82, § 6, sub. 5; State v. Wilbur, 77 N.Y. 158.)
It must be assumed, in the absence of evidence, that the executrix took the proceeds of the hay in the character of life tenant and not as executrix. There was no change in the legal character of the grass by any act or contract of the testator in his lifetime. His share in the proceeds of the grass was in the nature of rent reserved, which accrued after the testator's death. The decree should, therefore, be modified by deducting from the amount charged against the executrix the sum of $173.29, and any interest which may have been allowed thereon.
The other point urged, that the surrogate erred in not permitting the executrix to read in evidence on the accounting the whole of her preliminary examination, is not well taken. That examination was taken under section 2735 of the Code (since repealed) in a proceeding distinct from the accounting and not a part thereof. Her testimony in that proceeding was admissible against her on the accounting as to any material fact, as her admission, but not otherwise. The surrogate properly ruled that only such parts of the testimony as tended to explain such portions as were offered in evidence by the contestant, were admissible in her behalf, and that the fact that a part was offered by the contestant, did not open the door for the admission of the whole testimony.
The judgment below should be modified in conformity with this opinion and as modified affirmed, without costs to either party.