27 N.Y.S. 828 | N.Y. Sup. Ct. | 1894
The last will and testament of William H. Taylor, father of this appellant, William H. Taylor, was duly proved and admitted to probate as a will of real and personal property on the 6th of March, 1873. In and by his will the testator nominated and appointed Walter Dickson, Benjamin V. Z. Wemple, Charles P.
“Eighth. I will, devise, and bequeath to Mrs. James Dickson, my much respected mother-in-law, the income, interest, and profit of the sum of ten thousand dollars, for and during her natural life, payable as my executors may see fit, from and after my decease, and, at her death, said sum of ten thousand dollars I will, devise, and bequeath to my sister Anna G. Taylor.
“Ninth. All the rest, residue, and remainder of my estate I will, devise, and bequeath to my son William H. Taylor, Jr., but, in case he dies before he arrives at the age of twenty-one years, I then, and in that case, will and devise the same as follows, namely, one-half thereof to my sisters, Anna G. Taylor and E. E. Taylor, and the other half thereof to my nephews and nieces.”
Anna Gr. Taylor, the legatee named in the eighth clause of this will, is now Anna Gr. Gilbert, the plaintiff and respondent in this action and appeal. The testator, in and by his will, committed the guardianship of the defendant to Mrs. James Dickson during her life, and after her death to this plaintiff. On the 15th day of April, 1876, on the petition of Mrs. James Dickson, with the consent of this plaintiff, Edwy H. Taylor was, by an order of the supreme court, appointed as general guardian of the defendant William H. Taylor, to act in conjunction with Mrs. James Dickson, the testamentary guardian, upon his executing to said William H. Taylor a bond, with sufficient sureties, in the sum of $50,000, conditioned for the faithful performance of his trust; who qualified as such guardian. The referee finds that under and in pursuance to a decree of this court made on the 25th of November, 1876, the executors named in the will of William H. Taylor, deceased, paid over to Edwy L. Taylor and Margaret Dickson, as guardians of the defendant, a large amount of personal property, and the avails of personal property, amounting to more than $200,000, and that, after the defendant William H. Taylor arrived at the age of 21 years, he received more than $100,000 belonging to the estate of William H. Taylor, his deceased father. The referee also finds, as we think upon sufficient evidence, that under and by virtue of the proceedings instituted by the guardians against the executors of the will of William H. Taylor, deceased, a final accounting was had by the executors, under and by virtue of which all the rights vested in the executors by said will were transferred to, and vested in, the guardians; and that, under and by virtue of the judgment and decree in the action by the defendant William H. Taylor against the surviving guardian, Edwy Taylor, it was adjudged that all the personal estate of the testator remaining in the hands of the guardian had been previously transferred to the defendant William H. Taylor, except that as to which judgment had been rendered in favor of the defendant against such guardian. The case also shows that the guardians had, under the decree of the court, conveyed to the defendant William H. Taylor all the real estate of the testator held- by them in trust under the will.
It is quite apparent from this entire case that a large amount of
It is insisted by the appellant that, as there was no deficiency of assets which came to the hands of the executors to pay all the legacies at the time they took possession of the estate, the payment of all of the remainder of the estate to the defendant William H. Taylor, after a large portion had been lost by the executors, gave no right to the plaintiff to receive the legacy bequeathed to her of William H. Taylor, on the ground that when a part of the estate has been received by a legatee under a will, and the remainder thereof has been squandered by the executors, so that they are
“In order that there should he a residuary estate, the provisions of the will must be fulfilled, and something must be left over. Debts and legacies must be paid, and then the residuum goes to the residuary legatee; but until debts and legacies are paid it is difficult to see how, under the residuary clause, residuaiy legatees are entitled to receive anything.”
This defendant, therefore, having received and retained $10,000 of the testator’s estate which belonged to the plaintiff under the will, must satisfy this legacy before he can hold the estate as residuary legatee, and no good reason is perceived why a proper action, if prosecuted by the plaintiff against him within the proper time, cannot be maintained.
But the defendant insists that this claim is barred by the statute of limitations. If we are right in holding that the plaintiff’s title to this bequest did not attach until the expiration of this life interest of Mrs. Dickson, then no right of action existed in her to compel the executors to pay this legacy before the decree of the court transferred the property from them to the guardians. ¡Nor did any right of action accrue to her until the time of the death of Mrs. Dickson, and the consequent termination of her life estate, which was in ¡November, 1889. As this action appears to have been commenced by the service of a summons on the 10th day of February, 1892, it is not, therefore, barred by the statute of limitations.
It is also insisted by the appellant that the complaint does not state such a cause of action as will sustain the recovery in this