1 Pow. Surr. 371 | N.Y. Sur. Ct. | 1893
The testator, Harmon Goetschius, died on or about August 19, 1859, leaving a last will and testament, which was admitted to probate by the Surrogate’s Court of this county on or about Uovember 28, 1859, and letters testamentary thereof were thereupon issued to the executors therein appointed, the accounting party hereto, John H. Goetschius, and one George Goetschius, two sons of the- testator. The executors caused an inventory of the personal estate of the deceased to be made and filed in said surrogate’s office on the 19th day of December, 1859, showing assets amounting to $2,282.10. The two executors entered upon the administration of the estate, and continued therein together until the death of George, in the year 1870, since which time the accounting executor has solely acted in such administration. The widow of the testator, Fanny Goetschius died on or about April 19, 1891, leaving a last will and testament, which was thereafter, on May 25, 1891, proved, and letters testamentary granted to Stephen Van Orden and John R. Wanamaker, as executors thereof. The testator by his will,
“I give, bequeath and devise to my beloved wife, Fanny, the use and occupation, income and profit of all my real and personal estate, to have and to hold the same for and during her natural life; and I do further order and direct that my sons, John Henry and George, shall cut, haul, and prepare for burning, firewood sufficient for her use; and, further, it is my wish and desire that she remain in the house we now occupy, but if she prefers to take up her residence with any other person or place, she is at liberty to do so; and she is at liberty to surrender her claim, or any part thereof, to my estate to my children, if she thinks proper; and after her death I give, devise, and ben queath my real and personal estate to my children and grandchildren in manner and form follovfing, to wit.”
Here follows a devise of a parcel of land to his daughter Catherine; a devise to his sons, John Henry and George, of the remainder of his real estate in the town of Ramapo; a bequest of the sum of $800 to Catherine Louisa, the daughter of the testator’s deceased son, Stephen, to become due and payable when she shall arrive at the age of 21 years, but if the testator’s wife, Fanny, is living at, that time, then to become due and payable to her one year after the death of his said wife; a bequest of $100 to a grandson, Harmon Goetschius Bogart,, together with certain specific articles of personalty; a bequest to Elizabeth Bogart and Harmon Goetschius, children of the testator’s deceased daughter, Maria, each of $500, to become due as they respectively arrive at the age of 21 years, or, if the testator’s said wife is then living, then to become due one year after her death, and in certain contingencies to the survivor; a legacy of $100 to Henrietta, the widow of testator’s son, Stephen; a devise and bequest of the portion of the estate of George M. Goetschius, deceased, which the testator expected to receive on the distribution of that estate, to his daughter, Catherine, and his two sons, John and George; and a devise and bequest of all the rest, residue and remainder of his estate to his three children, Catherine,
The executors here having retained the custody and management of the personal estate,' the executors of the will of the ■widow claim that they are accountable for the same, as executors, for both principal and income. I am not fully convinced that such contention is well founded. If the income was collected by them without power under the will, then they become liable individually, and this court would have no jurisdiction to entertain an accounting therefor. In re Cooley, 6 Dem. Bur. 77, and cases there cited; In re Blow (Surr.) 11 N. Y.
As to the principal personal estate, the surviving executor is accountable for the same. In his inventory he charges himself with $2,280.10 of assets. As against this, he is entitled to credit for the $8.75 of accrued interest paid the widow; also,, the value of the articles of personal property which he placed in the charge of the widow for her use, to which she was entitled under the will, as the same appears to have been lost by ordinary use and wear by her, except the horse, bought by the executor George Goetschius for $45, and for which he never paid. As that executor had an equal right to the custody of the funds and properties of the estate, I do not think, under the authorities, that the accounting executor is liable for that item.. In re Demarest (Surr.), 9 N. Y. Supp. 292. As to the credit in Schedule O, for the payment of $150 for interest upon the $100 note of the testator, held by George J. Snider, I do not consider that the same is allowable The executors had moneys-in their hands out of which the note should have been paid and discharged within a reasonable time after they entered upon their administration of the estate, and they could not legally fail so to do, and charge the estate with the ac
The inventory is not before me, and it may be that the amounts and values herein stated are incorrect, and therefore, upon the settlement of the decree, the same may be therein corrected. I have simply indicated the rules in conformity to which the accounts must- be adjusted and settled by the decree. "The amount for which the accounting executor thus appears to "be liable must be decreed to be applied by him, first, in payment ■of the costs and expenses of this accounting; then the burial -expenses, if any, unpaid; next, in discharge of the debts of the testator; and the remainder to the legatees, agreeably to the provisions of the testator’s will.