24 N.Y.S. 540 | N.Y. Sup. Ct. | 1893
This is an appeal by Elizabeth Miller, individually and as administratrix with the will annexed of Henry Schneider, and also by the executor of Frederick Miller, deceased, from a decree of the surrogate of the county of Kings, dated February 21,1893, by which the surrogate appointed the Nassau Trust Company, of the city of Brooklyn, a successor trustee under the last will and
“First. After all my lawful debts are paid and discharged, I give and bequeath and devise as follows: To my brother Daniel Schneider, residing at the time in Maxfield, Iowa, the interest of the sum of $10,000 at the rate of six per cent, per annum, and to be paid semiannully, by the below-named executor, during his natural life. Second. In case of the death, of my above-named brother Daniel Schneider, the said amount to be divided as follows, viz.: To my brother Jacob Schneider, $2,500, to my sister Ann Elizabeth, widow of Henry Hecht, $2,500, and also to my sister Elizabeth, wife of Frederick Miller, $5,000. Third. To my above-named brother Jacob Schneider, residing at the time in the city of New York, $5,000. Fourth. To my aforesaid sister Ann Elizabeth, residing at the time in the city of Brooklyn, widow of Henry Hecht, the interest from the sum of $10,000 at the rate of six per cent, per annum, to be paid semiannually by the below-named executor, during her natural life. Fifth. In case of the death of my said sister Ann Elizabeth, then the said amount of $10,000 to be divided among her children as follows, namely: To Frederick Tower, $8,000; to Anna Maria Hecht, $2,000. To my nephew John Henry Schneider, residing at the time in the city of New York, son of Conrad Schneider, $300.” “Seventh. All the remainder of my estate, real or personal property, of whatever name or nature, of which I might be possessed at the time of my death, and which might accrue to me after my death, to my sister Elizabeth, wife of Frederick Miller, residing at the time in the city of Brooklyn, to have and to hold the same unto herself, her heirs and assigns forever. Likewise I make, constitute, and appoint my brother-in-law, Frederick Miller, to be executor of this, my last will and testament, hereby revoking all former wills by me made.”
Frederick Miller, the executor named in the will, qualified as such, but did nothing thereafter in the way of administering upon the estate of Henry Schneider, and died in the year 1891, without having filed an inventory or having rendered any account. Whatever property of the estate of Henry Schneider came into his possession as executor he apparently mingled with his own funds. The application to the surrogate was by a petition for the appointment of a successor trustee, the claim being made that as to the two sums of $10,000 each mentioned in the will of Henry Schneider, the deceased executor was a trustee. Elizabeth Miller, the sole residuary legatee of Henry Schneider under the will above quoted, qualified as administratrix with the will annexed of Henry Schneider, and letters to her as such administratrix were granted by the surrogate of the county of Kings on the 12th day of January, 1893, and she is now such administratrix. The petition to the surrogate was made by Annie E. Hecht, and stated, among other things, that from the probate of the will Frederick Miller paid to her the interest on the sum of $10,000, according to the directions of the will, and his executor has paid the same to her since his death. It further states that Frederick Miller, the executor of Henry Schneider, made one payment of the income of $10,000, part of the trust fund, to Daniel Schneider, and thereafter received Daniel Schneider into his house, as a member of his family, and cared for and supported him in lieu of paying him the income. That Daniel Schneider is now liv