1 Misc. 27 | N.Y. Sur. Ct. | 1892
This is a proceeding for the judicial settlement of the accounts of the executor of the will of Isaac H. Beach, who died April 23, 1891, leaving him surviving his widow and six children, and real estate of the value of $6,000, and personal property to the amount of about $2,000. Such settlement necessitates a construction of certain portions of the will, and the widow files objections to various items of the account. ■ The will is very in artistically drawn, and it is no easy task to determine the actual intent of the testator therefrom. The disposing portion of said will is in the following form:
“First, after all my lawful debts are paid and discharged, I give and bequeath to my wife, Hannah M. Beach, all of my personal property that I shall he possessed of at the time of my death, and all of my household goods, and the use of my real estate during her natural life. But I will that she shall keep the buildings on said real estate in good repair, and pay all taxes on the same. (2) To my daughter Mabel L. Beach, the organ that is now at my house, after the death of my wife, I give. (3) To my son Benjamin 0. Beach, the sum of $500.
The questions raised are: First, does the widow take the personal estate absolutely, or simply a life estate therein? and, second, when are the two $500 legacies payable ? ■
Various rules of construction have been formulated, but the chief solicitude of courts, in construing wills, is to ascertain the actual intent of the testator, and carry the same into effect as far as possible. The testator in this case was worth about $1,000 at the time of his marriage with the contestant. They lived together as husband and wife for many years, and the balance of his estate was accumulated by their joint industry and frugality. Contestant is .now 57 years of age. Hence it would seem that the testator would very naturally desire, in the first place, to make some certain and ample provision for the maintenance of his wife during the time she might survive him, hut to do so in such a manner as not to jeopardize the rights of his children. How could such a result be better accomplished than by giving the wife the use of the entire estate during her life, with provisions for its equitable distribution among his children after her death ? The evidence shows that the annual rental value of the real estate is $350. The income from the personal estate would increase this amount somewhat-. This would seem to he a very moderate provision for the maintenance of the widow. Such a disposition of the personal ’estate, however, would seem to meet the approval of a careful, prudent man, like testator, rather than an absolute gift of the same to her, thereby endangering the rights of the children through the possible improvidence or lack of prudence incident to the advanced age of the widow. Whether the provisions of this will are susceptible of the construction suggested depends entirely upon the use made of the term “during her natural
The next question relates to the bequest of the organ to the daughter Mabel. The preceding portions of the will dispose, in terms, “of all the personal property and household furniture.” This would, of course, cany the organ, were it not for the subsequent specific bequest thereof to the daughter. The two provisions of the will are absolutely irreconcilable, so far as the disposition of the organ is concerned. This being the case, the latter provision must prevail. Van Nostrand v. Moore, 52 N. Y. 12; Chrystie v. Phyfe, 19 N. Y. 345. Consequently the daughter takes the organ absolutely, and is entitled to the immediate possession thereof.
The conclusion already an’ived at necessarily determines the remaining question, as to the time of payment of the two $500'
The account filed shows that the executor has entered into an agreement, in writing, for the expenditure of $400 for a monument to be placed at the grave of the testator. The widow objects to this expenditure as unreasonable and excessive. Of course, no arbitrary rule has been or can be laid down, establishing the question of reasonableness of funeral expenses. Each case must be determined from its own particular circumstances. A reasonable expenditure for a tombstone is regarded as a legitimate item of funeral expenses to be allowed to the executor upon his accounting. Ferrin v. Myrick, 41 N. Y. 315; Tickel v. Quinn, 1 Dem. Sur. 425. So the only question in this case is whether the sum named was reasonable or not. In one case it was held that an expenditure of $500 for such purpose, where the estate did not exceed $8,000, was unreasonable; and was not allowed against the heirs. Owens v. Bloomer, 14 Hun, 296. In case of an estate of $3,600, it was held that an expenditure of $250 was not unreasonable. In re Erlacher, 3 Redf. Sur. 8. In case of an estate of $1,200, that $150 was a
Contestant also objects to the payment of a certain note by the executor to one D. P. Howes, to the amount of $152.65, upon the grounds: First, that the right of action thereon against the testator was barred by the statute' of limitations bofore his death; and, second, that the debt for which said note was originally given was that of the executor himself. The contestant called and examined the executor as a witness, and ■ established the fact by him that such note was originally given for his individual benefit, and that the indorsements thereon were for moneys which he had himself paid. The note itself bears date August 8, 1881, and the last indorsement thereon is of the date of March 28, 1890 ; so that, if said note was not outlawed, it is in consequence of the partial payments made thereon. This state of facts, unexplained, would show sucli payment by the executor to' have been unauthorized. A partial payment by one of the makers of this note, without the consent or authority of tire other, would not prevent the statute running against the one not- paying. How, the executor would not have been a competent witness, in the first instance, to testify to the transaction which took place between himself and deceased regarding such payment, or the original inception of the note (section 829, Code Civil Pro.) ; hut the contestant, having examined the executor as a witness, and proved by him a sufficient portion of said transactions to establish his individual liability,
Contestant also- objects to the payment of the item of $24 to Mr. Whiting. A portion of this sum is a proper charge against the estate-. The appraiser’s fees for two- days at $3 per day is a proper and reasonable charge. The witness fees of Mr. Whiting and wife, from their residence to Franklinville, to attend the probate of the will of deceased, amount to $3.76, which is also a proper charge. The balance of said item appears to be for services purely clerical in their character, and such as the executor could and should have performed himself. If the executor saw fit to employ another to transact for him the usual and ordinary duties of his trust, and for which the commissions were designed as full compensation, the expense of procuring such services becomes his own debt, and cannot be charged to the estate. Hall v. Campbell, 1 Dem. Sur. 415; In re Carman, 3 Redf. Sur. 46; Ward v. Ford, 4 Redf. Sur. 34.
The remaining question arises out of the following facts: On the 10th day of December, 1891, the executor sold certain personal property belonging to the estate at public auction. The terms of the sale were cash, or good, indorsed paper running 10 months. At the sale certain property was sold to one Robinson; among other tilings, one horse, for $41, and one mowing machine, for $28. The executor himself hid off one spring wagon for $38, and on the same day sold it to Robinson. On the day after the sale, the executor prepared a note for the