10 N.Y.S. 785 | N.Y. Sup. Ct. | 1890
This action was commenced for the recovery of the distributive share of the plaintiff in the estate of William Foulks, deceased. William Foulks, who was the father of the plaintiff, John W. Foulks, died on the 26th day of August, 1886, leaving a last will and testament in which the defendants were appointed executors. The will was proved, and the defendants qualified as the executors thereof. The provision of the will involved in this action is this: “Second. As soon as possible after my decease, my executors shall sell and dispose of all of my real estate then remaining, and the proceeds thereof, and of such real estate as shall have been theretofore sold, together with all my personal property then remaining, my executors shall divide (and I do hereby give and bequeath the same) equally to and among my children, share and share alike, and if either of my children shall have died before my decease, leaving issue them surviving, such issue shall take the same share which its parent would have taken if living. I, however, expressly provide, as to the foregoing division of my estate, that whatever advances have been made by me, or shall hereafter be made by me, to either of my sons or daughters during my life-time, as the same shall appear on my book of account, showing such advances, shall be charged to such sons and daughters respectively, and deducted out of their respective shares of my property upon the final division by my executors as above directed. ”
In April, 1888, the executors petitioned the surrogate for a final settlement of their accounts, and, in the accounts which they filed, the plaintiff in this action was charged with the sum of $26,000 for advancements made to him by his father in his life-time. That charge was made by reason of the following entry upon the account-book of the deceased: “Account with John W. Foulks, September 10th, 1882. Money lent on different times to San Francisco and New York, as near as I can tell at present, is twenty-six thousand, ($26,000.)” Having been cited to appear on such accounting the plaintiff filed objections to the accounts, and the objections appertaining to the question now involved were as follows: “Seventh. In that by said account it appears John W. Foulks has been advanced $26,000 by said testator during his life-time. Eighth. In that said accounts charged said John W. Foulks with the sum of $26,000, claimed to have been advanced to him during the life-time of said deceased.” Thereupon an order of reference was made referring the
Such were the proceedings before the referee so far as they are disclosed by the record before us, and on the 13th day of June, 1888, the referee made his report, in which he passed upon the accounts, and which contained this statement: “That the issues raised under and by the seventh, and eighth objections filed by said John W. Foulks, contestant, have been, by consent of the attorneys for said John W. Foulks, and said executors and executrix, reserved for argument before the surrogate of Kings county, and for his adjudication' thereon. ” Upon the coming in of such report of the referee an order was made by the surrogate which contained the following statement: “And now having examined said report, and the proofs and allegations of the parties, and maturely considered the same, and the parties having agreed that, out of the assets in the hands of said executors, said executors shall reserve in kind a part or portion thereof not less in value than $15,000 to meet or cover the claim or interest (if any there be) of said John W. Foulks, the contestant herein, and a further summary statement being hereto annexed and forming part of this decree, and to be recorded herewith, the surrogate proceeded to settle the said account in accordance with such summary statement, and said report of said referee!” And then the surrogate, among other things, ordered “that of the remainder of the assets in their hands the said executors reserve so much, and such part in kind, as shall equal in value fifteen thousand dollars, to be held by them until the decision and final determination of the questions raised under objections seven and eight, filed as aforesaid on the contest of this account, and the motion made and argued herein on the fourteenth day of June, 1888, or of or upon any appeal that may be duly taken therein or therefrom, to any court or courts. ” Afterwards, and* on the 23d day of November, 1888, the surrogate made a decree in which he recited the objections numbers 7 and 8 of John W. Foulks, and the reservation of the sum of $15,-000 by his order of July 12, 1888, and then stated that after hearing counsel in support of, and in opposition to, such objections, and the testimony offered in that behalf under the same, it was ordered'that the motion be denied, and that the executors proceed with, and distribute the remainder of the property and assets of the estate in their hands according to the terms of the will, and on the 27th day of November, 1888, a supplemental decree was made and entered, of substantially the same purport. After the decrees of the surrogate were made, the plaintiff commenced this action for the recovery of the sum of $26,000 so charged against him as advances, and allowed as such by the surrogate, and the defendants have set up the proceedings and decrees of the surrogate as a bar to the action. The cause was tried at the circuit and the complaint was dismissed, and the plaintiff has appealed from the judgment entered against him.