38 N.Y.S. 299 | N.Y. App. Div. | 1896
The defendant is the executor of the will of Jacob Baldwin. By that will the testator bequeathed to his sister-in-law, Mary Baldwin, full and complete possession of all his personal property of every kind which he had on his farm, for her sole benefit as long as she should live, and he directed his executor to sell so much of the land which comprised his homestead as would be necessary for the support of the said Mary Baldwin. After her death the remainder was divided and bequeathed to various relatives, including Nicholas Baldwin, the brother of the testator, now deceased. The plaintiff
The executor, by his answer, sets up that, at the commencement of this action, a proceeding for the settlement of his accounts was pending in the Surrogate’s Court of Queens countythat the plaintiff was a party to that proceeding, having been duly cited therein;. that she appeared and filed objections to the executor’s account, and thereupon “ such proceedings were had that,, on or about the 28th day of February, 1895, a decree was entered in said Surrogate’s. Court finally judicially settling the account of this defendant: as such executor.”
The executor denied that he had failed to account for the personal property of his testator, or any part thereof. _ As to the land,, he. averred that the estate which- Jacob Baldwin had in the homestead already mentioned was only one undivided half part thereof; -that a mortgage iipon this half part had become past due,, so that foreclosure was threatened^ and that thereupon the executor joined with the owners of the other half in the conveyance to Alfred Loweth, from whom he received therefor $1,619.25-, which was a full and fair price and the best that could, be obtained. The answer
To that portion of the answer in which the decree of the Surrogate’s Court was pleaded as a bar to the further prosecution of this action, the plaintiff demurred. Her demurrer was overruled and she appealed to the General Term, which held that the plea in bar was good. (Baldwin v. Smith, 91 Hun, 230.) The issues of fact' have now been tried and all determined in favor of the defendant executor, and from the judgment entered upon the dismissal of the complaint at Special Term, the plaintiff has appealed to this court.
The learned judge at Special Term found that the sale of the homestead was honestly made, for the best price that could be obtained and without any fraud or evil purpose; and he furthermore found, as matter of law, that the decree of the surrogate upon which the defendant relied was conclusive until reversed. It is the latter conclusion which the plaintiff attacks on the present appeal. At the request of her counsel, the court below found that there were no personal assets in the hands of the executor at the time the surrogate’s decree was pronounced, and the contention in behalf of the appellant is that the surrogate was without jurisdiction in the proceeding, because the money in the possession of the executor was solely derived from the sale of his testator’s lands.
The Surrogate’s Court, however, is expressly vested with jurisdiction to compel an executor to account for the proceeds of real estate sold under a power in a will (Code Civ. Proc. § 2726, subd. 4), and an executor may render a voluntary account' of such proceeds and their disposition under section. 2728 of the Code. The sale in the present case was made pursuant to the power contained in the will of Jacob Baldwin. While that power authorized the sale of only so much of the land compromising the homestead of the testator as should be necessary for Mary Baldwin’s support, we cannot say that it may not have been necessary to sell the whole of the testator’s interest in order to raise a sufficient amount. The record is rather meagre and does not disclose what the fact was in this respect. But the surrogate’s jurisdiction may be maintained without determining the character of the power. (Matter of Bolton, 146 N. Y. 257.) It appears to be enough that the power has been executed by the accounting party. Nor is it an objection of any
The Special Term was right in holding that the decree of the Surrogate's Court was conchisive upon the plaintiff herein, and the judgment below-should be affirmed.
All concurred.
Judgment affirmed, with costs.