31 N.Y.S. 571 | N.Y. Sup. Ct. | 1894
On September 15, 1868, Azariah B. Shipman died-at Paris, France. He left a last will and testament, which bears-date March 12,1868. This was, on the 19th November, 1868, admitted to probate in Onondaga county, where the testator resided, and letters testamentary at that date were issued to Emily C. Shipman,, the widow of the deceased, and one of the executors named in the will. Afterwards, and on the 6 th February, 1869, an inventory of the personal estate was filed in the surrogate’s office. This purports to have been made by two appraisers on the 11th January, 1869, and was-verified by Sirs. Shipman before the surrogate of the county on the day it was filed. The amount of property, as there stated, was $13,669. By the will, after providing for “debts and funeral expenses,” the testator gave legacies to the amount of $300, payable as-soon as practicable after his decease; and by the fifth and sixth, clauses he gave legacies- to the amount of $1,500, payable at the death
“Eighth. I give, devise, and bequeath to my wife, Emily C. Shipman, the one undivided one-half part of all the rest and residue of my real and personal estate of which I may die seised or possessed, to have and to hold the same to her and her heirs forever.
“Ninth. I give, devise, and bequeath to my said wife the remaining undivided one-half part of all the rest and residue of my real and personal estate of which I may die seised or possessed, to have and to hold the same, and to receive the income therefrom, for and during the term of her natural life; and upon her death I give, devise, and bequeath said undivided one-half part as follows:”
—the manner of such disposition being stated, wMch is not important here, except it was to brothers and sisters or their descendants. Two executors were named, and they were directed and empowered to sell and convey any real estate that he owned at his decease, and "meanwhile to pay all taxes and charges thereon.” In the last clause there is this statement:
“It is my intention that my wife shall receive all the income from my estate during her life, arising as well from the rest and residue bequeathed as from any sums set apart to pay the legacies provided for in the fifth and sixth Items of my will.”
Mrs. Shipman died on July 26,1892, never having had a judicial settlement of her accounts. The other executor named in the will did not qualify. Mrs. Shipman had a separate estate, which at her death inventoried §100,000 and upwards. She left a will, which was afterwards duly proved, and letters testamentary issued to Jacob A. Nottingham on 24th September, 1892. At the same date, Madison D. Shipman was duly appointed administrator with the will annexed of the estate of Azariah B. Shipman. On 30th March, 1893, he presented a petition to the surrogate’s court of Onondaga county, praying that Nottingham, as executor, etc., be required to render an account of the proceedings of Emily C. Shipman as executrix, etc., of Azariah B. Shipman, deceased, and to deliver and pay over whatever was found to belong to said administrator. A citation was duly issued, and, upon its return, Nottingham, as executor, presented his petition for a final judicial settlement of the accounts of Emily C. Shipman as such executrix. Upon this a citation was issued to the proper parties, returnable on 20th June, 1893. On the 30th June, 1893, to which time both matters had been duly adjourned, an order was made that "said matters of accounting be, and the same are hereby, consolidated.” Afterwards Nottingham, as executor, filed an account of the proceedings of Mrs. Shipman as executrix. Objections were filed by the administrator with the will annexed, and after a trial the decree was made that is appealed from.
The appellant the administrator, etc., claims that the order of consolidation was improperly made. The administrator was proceeding under section 2606 of the Code of Civil Procedure. The same section, as amended in 1891, authorized the proceeding of the executor of Mrs. Shipman. There seems to be no special power given to consolidate the two, but they are 'both proceedings for the same purpose. It is
The main question in the case relates to the basis on which the accounting should be had. The decree is made on the basis of the inventory, adding thereto such items as upon the facts were considered proper. The claim of the administrator with the will annexed is that the inventory is not prima facie evidence of the amount of the estate, because: First, it is not shown that the proper notice was given of the time and place of the appraisal; and, second, items are shown to have been omitted,—intentionally, as the appellant claims,—to such an extent as to make the inventory unreliable, and in effect fraudulent, and that, as the executrix kept no accounts, and mingled the estate of her testator with her own, it should be assumed that all the property which she left belonged to the estate of her testator, except such as her representatives may be able to show belonged to her individually. In this way it is claimed that the doctrine of confusion of goods (1 Story, Eq. Jur. § 468; 1 Perry, Trusts, § 447) should be applied. The inventory was made January 11,1869, and verified before the surrogate and filed in the surrogate’s office February 6, 1869. No question is made about the proper appointment and qualification of the appraisers. No proof was given that notice of the appraisal was served and posted as required by the statute. The inventory was offered in evidence by the executor of Mrs. Shipman, and was received in evidence without objection. No question was raised as to its invalidity until requests were made upon the settlement of the case on the appeal. If it had been raised in time, and the defect not then supplied, it might with considerable reason be said that after this lapse of time it would be presumed that the proper notice was given. See Lawson, Pres. Ev. 60. The circumstance that for 20 years and upwards, and until after the death of Mrs. Shipman, no question was raised about the inventory, deserves some consideration. Thomson v. Thomson, 1 Bradf. (Sur.) 24. The surrogate, by his decree, charges the estate of the executrix with several additional items of assets, but finds that she committed no willful breach of trust, and did no fraudulent or dishonest act, and refuses to find that she intentionally withheld and omitted from the inventory any of the additional items. There are in the case circumstances which tend to support this conclusion of the surrogate, and we are not prepared to say that his conclusion is wrong. Besides, there is evidence in the case that is quite persuasive to the conclusion that the inventory is substantially correct. I refer to the statement or inventory made by the testator in his diary on December 9, 1867. This was evidently a statement of his securities and real estate, and included an item for notes and bank accounts. The testator and his
The administrator claims that there are other items that the surrogate should have charged to the executrix. It appears that on February 1,1869, Mrs. Shipman deposited in the Syracuse Savings Bank, in an account kept by her husband in his lifetime, and continued by her after his death, the sum of $2,000, which on the 3d March following she drew out, signing the receipt as executrix. Presumptively this was property of the estate. There was no item of this particular amount and character in the inventory, and therefore it is claimed it should be added to it. The argument seems to be that the verification of the inventory by Mrs. Shipman on February 6, 1869, was a statement by her that the estate was then situated as stated in the inventory, and that, as it did not include the item of $2,000, it should be added to it. The surrogate disallowed the item on the ground that, the inventory being prima facie proof of the assets, it could not be found from the evidence that this item was not some portion of the property mentioned in the inventory, or the proceeds thereof. It is to be observed that the inventory was made January 11, 1869, and must speak of the character of the property as it was then. So we think the surrogate did not err in disallowing the item. The same may be said as to divers items deposited by Mrs. Shipman to her credit as executrix in the Onondaga County Savings Bank from October 1, 1869, to June 30, 1874.
It was found by the surrogate that Mrs. Shipman, on or about September 15, 1868, received from her husband, at Paris, France, £360 sterling, of the value of $1,746, which belonged to her husband, and was received by her either as his agent, before his death, or as part of his estate after his death, and should be charged to her; and he did so charge it in Ms decree. The administrator claims that the charge was too small, in that it did not, as he claims, include the premium then on gold. The appellants’ legatees under the will of Mrs. Shipman claim that the evidence does not warrant the finding that the money was the testator’s, or that it was received by Mrs. Shipman as agent for her husband, or as part of his estate. The testator, on going to Europe, in March, 1868, took with him a letter of credit from a banking house in New York having as correspondents John Munroe & Co. in Paris, France, and J. S. Morgan & Co. in London, England. He died at Paris, France, about twilight on September 15, 1868. On the 15th September, 1868, Mrs. SMpman received by credit with John Munroe & Co. at Paris £360. This
The surrogate allowed, as part of the funeral expenses, the sum of $2,000 for the construction of “vault and tomb,” and the sum of .$580 for a cemetery lot. A reasonable charge for a suitable headstone is proper to be allowed as part of the .funeral expenses. Code Civ. Proc. § 2749; Owens v. Bloomer, 14 Hun, 296. The monument, if it be called that, which is allowed for here, was not of the ordinary character. The amount of the real and personal estate altogether was about $17,000. We find no sufficient reason in the facts or in law for the allowance of so large a sum for the purposes stated without express authority in the will. The item of $2,000 should be reduced to the sum of $1,000.
The testator, at the time of his death, was the owner of a house and lot in Syracuse. This was sold in 1881 by the executrix, under the power given her by the will. In the meantime she paid for taxes on the premises the sum of $821.44. This the surrogate refused to allow to the estate of the executrix, on the ground “that the ordinary rule should apply that taxes assessed during the existence of a life tenancy must be paid by the life tenant; and, although the will directs the executors to pay the taxes, the fair construction of the will in that regard is that they should pay them out of the income.” The appellants the legatees, etc., claim that this ruling was erroneous. The general rule is admitted to be as stated by the surrogate, but it is argued that this case is an exception, by rea
There are no other questions that need be here discussed. It follows that the inventory account should be increased in the sum of $385 and interest from July 26, 1892, the date of Mrs. Shipman’s death, and the amount allowed for funeral expenses should be decreased in the sum of $1,000, and the decree should be modified accordingly. In other respects the decree should be affirmed.
MARTEN, J:, concurs.
Upon the force of Owens v. Bloomer, 14 Hun, 296, I assent to the modification as to the “vault and tomb.” As to the other portion of the opinion I give my assent.
Decree modified as stated in the opinion, and, as modified, affirmed, without costs of the appeals to either party.