56 N.Y.S. 409 | N.Y. App. Div. | 1899
Mary A. Edson died May 29, 1890, leaving a last will and three codicils in which Messrs. John E. Parsons, John A. Bartow and Charles S. Fairchild were named as executors. By the 8th clause of the will and the oth clause of the second codicil she gave her ulti
Whether this view was. right is necessarily to be determined by the judgment of the Court of Appeals in Edson v. Bartow (154
The right of the State to collect the tax not being concluded by the form of the Supreme Court judgment in Edson v. Bartow, we are to look at the. judgment of the Court of Appeals, as exqiressed in its opinion (such opinion being made' by its remittitur a part of its judgment), to reach a determination as to what was therein decided. As therein said (154 N. Y. 222): “ We have already pointed out that under the judgment in the first action (Fairchild v. Edson) the legacy to Mr. Parsons did pass under the will and second codicil, and that the court, in the exercise of its equitable ■ jurisdiction, lays hold of this one-third of the estate in the hands of Mr. Parsons, individually, as residuary legatee, and impresses thereon a trust in favor of the next of kin. There was no intestacy as- to this portion of the estate.”
Neither by the express terms of the will nor of the codieil'was it. held that Mr. Parsons became a trustee for the brother. On the contrary, it was held that lie took an absolute legacy; that he obtained under the will the legal title and was the beneficiary in one-third of the residuary estate, "and that the equitable rights of the brother arose, not under the will, but from facts appearing extrinsic thereto.
Our conclusion, therefore, is, that the order appealed from was wrong, and should be reversed, and the original order made.by the surrogate assessing the tax should be affirmed, with costs.
Van Brunt, P. J,, Barrett, Rumset and Patterson, JL, concurred.
Order appealed from reversed, and original order made by surrogate affirmed, with costs.