201 A.D. 860 | N.Y. App. Div. | 1922
Order of the Surrogate’s Court of Kings county denying application for an order vacating consent to withdrawal of objections to account, affirmed, with ten dollars costs and disbursements. We think the learned surrogate was right in his decision, first, because the appellants were guilty of inexcusable laches in making the application; second, because their action in withdrawing the objections to the account was deliberate, under advice of counsel, and there is no charge of fraud or overreaching as against their interests; and, third, on the faith of their'withdrawal of their objections the executor has distributed the estate under the will and each of the appellants has accepted the legacy bequeathed under the will, and has since sold and transferred the stock bequeathed. The distribution of the' estate was made as directed in the will, and the claim advanced by the appellants is inconsistent with such distribution accepted by them; and fourth, the facts disclosed by the papers show that there was no valid gift inter vivos of the stock in question. The certificates were never delivered to the appellants. The testator handed them to his son to be placed in the safe, and testator stated that he would later tell him what to do with them. The testator did later tell him what to do with them by the directions in his will thereafter executed. The fact that his son, who was the custodian of the certificates, without authority from the testator, noted an alleged transfer of the certificates to the appellants, in no way validated the gift. Blackmar, P. J., Kelly, Jaycox, Manning and Young, JJ., concur.
