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and 118 New York State Reporter the assets at the values at which they were inventoried. The duty of an administrator is to convert the estate of the deceased into money as soon as it can be reasonably done, to pay the debts, and make distribution. In accomplishing this he is to exercise the diligence and prudence which in general a prudent man of discretion and intelligence in such matters employs in his own like affairs. He may find among the assets of the estate that have come to his hands stocks of a somewhat dangerous and speculative character, subject to great and sudden fluctuations of value, which it is his duty to care for and dispose of with all their inherent risks on the one hand and possibilities on the other. It is not the duty of an administrator at once to dispose of such assets without regard to the market, or the demand for them, or the ruling prices, or the possibility of an advance in their value. Assets of this character ought not to be hastily sacrificed, nor unwisely and improvidently held. When there is a direction to sell, reasonable time must be given, and what that is must be determined in each case by its own surroundings. There is and there can be no rigid and arbitrary standard by which to measure the reasonable time within which the discretion of an administrator must operate.' Where no modifying facts are shown to shorten or lengthen the reasonable time, the period of 18 months may serve as a just standard; yet it might be the duty of an administrator to sell earlier than that, or to wait longer, according to the circumstances and exigencies of the particular case. Hasbrouck v. Hasbrouck, 27 N. Y. 182; King v. Talbot, 40 N. Y. 76; Weston's Estate, 91 N. Y. 502. In the present case, letters of administration were issued on the 20th of August, 1902. It is said that, if the stocks had been sold by the 9th of October following, there would have been no loss upon them. If facts had been known to the administrators which would have formed a reasonable ground for the expectation of a depreciation in the market value of these securities, it might have been their duty to dispose of them within this period of 50 days; but no such facts appear. It is to be noted that the depreciation was not in a single stock, through some particular loss, or as the result of some mismanagement of the affairs or the unsuccessful operation of the business of a particular corporation. It was a depreciation of the stocks of several different corporations, and was due to influences that affected the market generally. To foresee such periods of general depression, or periods when high prices prevail, is the constant effort of the keenest intellects in the financial world, but, notwithstanding their tireless vigilance and efforts, stimulated by the hope of great gains, they frequently find such knowledge too high for them. The law does not require such prescience of administrators.

After the market prices of the stocks involved had taken a decline without any apparent reason that affected their intrinsic value or the capacity of the corporations to earn dividends, it would seem that the administrators cherished a reasonable hope of a restoration of prices that justifies their having refused to part with the stocks at the depressed prices within the period that has now elapsed since the granting of letters. They had the right, too, to contemplate the probability that the parties would agree to a distribution in kind, as some of the parties had expressed a desire to do, or that the court would


order it, as it has the power, upon the judicial settlement of the administrators' accounts, and that a sale of the stocks in question would thus be obviated. The fact that they applied for a settlement of their accounts within the period of a year indicates their expectation that such a distribution would be agreed to or ordered, and an intention otherwise to have the remainder of the period of 18 months within which to convert the estate into money for the purpose of distribution. A judicial settlement may be had before the estate is ready for distribution, unless distribution in kind is agreed to or ordered, as is indicated by the statute, which provides that, where an account is judicially settled, “and any part of the estate remains and is ready to be distributed,

the decree must direct the payment and distribution thereof." Code Civ. Proc. § 2743.

A question to be considered is whether the letter from Mrs. McLean imposed any different duty or responsibility upon the administrators. I think it did not. This letter called upon the administrators to convert into money forthwith all the securities which came into their hands, except the Rensselaer & Saratoga stocks and bonds, the Ballston Spa Bank stock and the Douglass county bonds, and it contained, in addition, the statement :

“There is no propriety in your holding these securities, and they should have been realized on at the time you took possession of them. We do not want to have any contention about holding you responsible for shrinkage, but we certainly do not desire to have these securities held any longer.”

This communication conveyed no facts upon which the administrators could base intelligent action. It was, so far as appears, but the guess of one of the beneficiaries as to the course of the stock market. It proved to be correct. As a guess whose correctness was proved by the event, it is interesting; but it was not entitled to control the action of the adininistrators. They were at all times bound to act upon their own judgment, based upon the facts within their knowledge. The next of kin cannot impose upon administrators the burden of following their own desires and wishes as to the management of the fraction of an estate that is supposed to represent the distributive share of each. It is not certain who stand in the position of next of kin and who are entitled to a share of the estate until the surrogate adjudicates upon that question in the decree. If, on the request of one who claims a distributive share, a portion of the securities representing his supposed interest should be sold, and the remainder should subsequently decline, it is doubtful if such claimant could establish the right to receive the price of the part so sold, and leave the loss on the remainder of the assets to be borne by the remaining next of kin; and if, on the other hand, the value of the remainder of the securities should largely appreciate, it does not seem certain that he could not lawfully claim his portion of the resulting increase. The estate as a whole is in the custody and authority of the representatives who must act on their own judgment for the good of all. They cannot evade their responsibility, nor should they abdicate their authority; and when they exercise the best judgment they possess they have performed their duty and should be protected.

I am satisfied that a sale of the securities at the present time, for the purpose

of payment or distribution, would cause a loss to the par

and 118 New York State Reporter ties entitled thereto. Most of the distributees desire to accept a distribution in kind. If such a distribution should be made to all, Mrs. McLean could doubtless convert her share into 'cash to as good advantage as the administrators could convert it for her; and such distribution would obviate some practical difficulties that might arise should the others take their shares in securities and Mrs. McLean take her share in money. It seems to me for the interest of all parties that distribution in kind should be directed. A decree should therefore be made providing for a distribution in kind to all the next of kin, and allowing the administrators for the depreciation in the value of the securities which has occurred since the inventory was made. If the parties do not agree upon the value of the securities and execute a consent fixing it, an order may be submitted for an appraisement under oath, as provided by the statute, in order that the terms of the decree may be settled.

Decreed accordingly.

PEOPLE v. LOVELESS. (Court of Special Sessions of First Division of City of New York. April, 1903.) 1. THREATENING LETTER-CAUSING ANNOYANCE-MISDEMEANOR-STATUTE-IN


The intent of defendant, prosecuted under Pen. Code, 8 559, as amended by Laws 1891, p. 288, c. 120, making it an offense to send a letter with "intent thereby to cause annoyance," is to be gathered from the effect

and purpose of the letter, not from his mental operations. % SAME.

Defendant, as secretary of the Stationers' Board of Trade, wrote a letter to a publishing company, demanding payment of an account held for collection; stating that, if it was not paid without its being placed in the hands of an attorney, "it will become our duty, under the by-laws of the board, to notify members (per accompanying list)" thereof. The list named a large number of persons doing business in the city where the publishing company was located and elsewhere. Held, that the purpose and effect of the letter were to annoy, inbibited by Pen. Code, $ 559, as amended by Laws 1891, p. 288, c. 120, declaring such act an offense.

Wyatt, J., dissenting. Edwin H. Loveless was prosecuted for a misdemeanor. Guilty.

Argued before HOLBROOK, P. J., and MAYER and WYATT, JJ.

Edward Sandford, Asst. Dist. Atty., for the People.
Rounds & Dillingham (Ralph S. Rounds, of counsel), for defendant.

MAYER, J. On January 28, 1903, the defendant, as secretary of the Stationers' Board of Trade, sent to the Woodward Publishing Company a letter, of which the following is a copy: “The Stationers' Board of Trade, 97 & 99 Nassau Street. P. O. Box 615.

Rooms 209, 210 & 211.
“Bureau of Collections.

"New York, January 28, 1903. "The Woodward Publishing Co., New York City-Gentlemen: A claim of Wm. Knoepky P. B. Co. against you for $15 has been sent to this office for collection.

"It is desirable that a settlement of this claim should be made without its being placed in the hands of an attorney, as in that event it will become our

duty, under the by-laws of the board, to notify members (per accompanying Ust) that such action has been taken.

“The claim will be held here until January 29, 1 p. m., when, if not settled, it will be sent to an attorney, with directions to commence proceedings for collection. Please give the matter your immediate attention, and communicate direct with this office. "Yours respectfully,

The Stationers' Board of Trade.

"E. H. Loveless, Secretary." "In answering, please use our docket No. E700-80.”

The "accompanying list” referred to contained the names and addresses of a large number of persons doing business in the city of New York and elsewhere.

The question is whether the words, "in that event it will become our duty, under the by-laws of the board, to notify members (per accompanying list) that such action has been taken,” when considered with the context, come within the prohibitions of section 559 of the Penal Code. This section, prior to 1891, provided that a person "who, knowing the contents thereof, sends * * * any letter * * * threatening to do any unlawful injury to the person or property of another," is guilty of a misdemeanor. By chapter 120, P. 288, of the Laws of 1891, the section was amended by adding "or any person who shall knowingly send * * * any letter * * * with intent thereby to cause annoyance to any person" is guilty of a misdemeanor. Section 559 of the Penal Code, as it existed prior to the above referred to amendment of 1891, was intended to cover a state of facts which did not come within the provisions of sections 254 and 558 of the Penal Code, relating to “Threatening to Publish a Libel" and "Blackmail." But even then the section was not sufficiently comprehensive; and to meet this inadequacy the Legislature enacted chapter 120, p. 288, of the Laws of 1891, and thereby defined as a misdemeanor cases not covered by section 558 or section 559 of the Penal Code as originally enacted. Section 559, as originally enacted, related to a writing threatening to do an unlawful injury to the person or property of another. By "unlawful injury". is meant an injury resulting from an act prohibited by the law of the state, whether common or statutory; and an "unlawful injury” may be redressed by civil remedy or criminal prosecution, as the case may be.

The defendant contends that a notice, if sent by him to the members of the Stationers' Board of Trade, as threatened in the above referred to letter, would not be libelous, because such communication would be privileged (Reynolds v. Plumbers' Protective Ass'n, 30 Misc. Rep. 709, 63 N. Y. Supp. 303, affirmed 169 N. Y. 614, 62 N. E. 1100), and therefore, as such act would not constitute an "unlawful injury," the threat contained in defendant's letter was not a threat to do an "unlawful injury.” It is not necessary to determine whether the phraseology found in the letter in question constitutes a threat to do an "unlawful injury,” for the clear purpose of the amendment of 1891 was to extend the statute so as to include those cases where the act threatened would not constitute an "unlawful injury," but would cause annoyance, difficulty, and embarrassment, for which no legal redress was provided. In the Reynolds Case, supra, the action was for libel, and the question was whether the communication sent

and 118 New York State Reporter by the Plumbers' Protective Association was privileged. But the case at bar is not analogous with the Reynolds Case. The purpose here was.not to give a notice to the members of the Stationers' Board of Trade for their benefit, but was solely to force the complainant, who was not a member of the Stationers' Board of Trade, into a position where he would be compelled to pay. Such a result was to be obtained by threatening the complainant to notify a large number of persons that the claim had been placed in the hands of an attorney. In other words, there was an attempt to usurp the function of the courts, and to compel the complainant to satisfy a claim in controversy, not upon the merits of the claim, nor because the complainant desired to avoid litigation, but because the threat would induce, or have the tendency to induce, the complainant to pay through fear of impairment of his credit. To that end, the letter was of a character calculated to cause annoyance to the complainant. The threat was to send to a large number of persons a notice which might or would be subject to misconstruction, and which would not fairly state what controversy, if any, existed, what the financial condition of the complainant was, and what reasons, if any, he gave for refusing or neglecting to pay the claim, but which would contain merely the naked statement that the claim had been placed in the hands of an attorney for collection. Such a letter surely would have the effect of causing not a merely capricious disturbance in the mind of the person receiving it, but a substantial fear that he might or would be placed in an unjust and unfair position before a large number of merchants. The intent of the defendant is to be gathered, not from his mental operations, but from the purpose and effect of the letter, and that intent was to harass and annoy the complainant to an extent which would result in the payment of the claim. The defendant may have had the right to inform the members of his association, by a fair notice, of the facts relating to the claim in question; but his threat to the complainant to send to the members of his association a notice that the claim had been placed in the hands of an attorney for collection could have had no purpose or effect other than to annoy the complainant, and thereby seek to compel the payment of this claim. No other conclusion can be drawn from the undisputed facts as disclosed in this case. Alınost any merchant would prefer to pay a claim of $15, however unjust, rather than be compelled to explain and counteract a statement sent to a large number of persons that it was necessary to begin suit against him for so small a sum of money. And, as was found by Mr. Magistrate Breen, if the effect of such a letter is not to cause annoyance, we fail to understand what kind of a letter would do so.

The letter clearly comes within the prohibition of the statute, and the defendant is guilty of the misdemeanor charged.

HOLBROOK, P. J., concurs. WYATT, J., dissents.

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