146 N.Y.S. 750 | N.Y. App. Div. | 1914
The defendant is the residuary legatee under the. last will of Mary Farnham, deceased. The plaintiff is the sole surviving executor of said will. At the request of the defendant, in September, 1909, the executors made her a payment of $5,000 in cash on account of her residuary legacy. This action was brought to recover the amount of said payment, with interest from the date thereof, because the assets of the estate proved subsequently to be insufficient to pay the general legacies, unless there was a recovery back of the amount prepaid on account of the residuary legacy. The defense was that the deficiency in the assets of the estate arose after the prepayment in question, and was due to negligence of the executors which resulted in a waste of said assets, and that, therefore, the defendant was not obliged to make any payment back. The facts involved in the action are undisputed. The case was tried without a jury, and the court found that the executors
I am unable to find in this record proofs which would justify a reversal of the determination of the trial judge on the question of negligence, The defendant, by requesting and
There is another point made by the appellant, namely, that she should not have been charged with interest on the moneys paid to her from the time of payment. There is an allegation in the complaint that demand was made upon her for repayment before this action was brought, but there is no daté of demand set forth. Eeither in the findings of the trial court is there any specific finding as to the date of the demand, nor is this date of demand to be found in the evidence. Under these circumstances, the appellant contends that it was improper to allow any interest, as she was not in default in failing to make repayment until a demand was made upon her. This point is not free from doubt, but I think the circumstances, which I will state below, justified the allowance of interest.
The defendant introduced in evidence on her own account a letter from Mr. William E. Dykjman, dated September 9, 1909, to his clients, the two executors of the Farnham estate,-in which he recommended a compliance with the request of Mrs. Truslow for a prepayment on account of her residuary legacy, on condition that she give a refunding bond, and likewise a letter from Mr. Dykman to Mr. Jessup, the attorney for Mrs. Truslow, stating that the executors were willing to pay the $5,000 in question providing that Mrs. Truslow and her husband gave a refunding bond. It appears that Mrs, Truslow and
This is a hard case, however it be decided. But the burden of its hardness cannot be placed upon the Farnham executor unless he be in fault. The trial court has found against the defendant on this point on ample evidence.
The judgment should be affirmed, with costs.
Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.
Judgment affirmed, with costs.