1 Misc. 269 | N.Y. Sur. Ct. | 1892
The testator, John T. Smith, died, leaving a last will and testament, which was admitted to probate December
It is well settled that no person acting in a -fiduciary capacity can deal with the trust estate, to his personal gain or benefit. But, as contestants’ counsel does not take the unqualified position of repudiation of the sale, I shall not consider the matter in that vieAv. Even though such right of repudiation exists, I am not convinced that the Surrogate’s Court, under the circumstances, can afford practical relief. Holding the executor to the sale, the question is then presented by the objection of the contestant as to the allowance of the credit of the $1,133.20 for the doAver. This presents the inquiry as to whether or not the widow had a dower estate in the lots conveyed to her, and involves a construction of the testator’s will. The counsel for the contestants claims that the proAÚsion made hy the will for the widow was such that she was put to her election whether she would take the same or claim her dower. This question has received my careful consideration, and I have arrived at the conclusion that such is -not the case. • If lands be devised to a woman, or pecuniary or other provision be made for her by will, in lieu of dower, she shall make her election whether she will take the lands so devised, or the provisions so made, or whether she will be endowed of the lands of her husband. 1 Rev. Stat. p. 741, section 13. When entitled to an election she shall be deemed to have elected to take the devise or pecuniary provision unless, within one year after the death of the husband, she shall enter upon the. lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. Id. section 14. Many years have passed since the death of the testator, and the widow has made no entry upon the lands to be assigned to her for her dower, or commenced proceedings for the recovery of the same. If, then, such provisions of the will
“We repeat, the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear incompatibility, arising on the face of the will, between a claim of dower, and a claim to the benefit given by the will”—citing many authorities.
It is claimed that under this will there is a trust created in the executors, to hold the estate, and apply the income, and with a power of sale, under such circumstances that the claim of dower is inconsistent with the provisions of the testator’s will, and thus she was put to her election; and the contestant’s counsel cites Savage v. Burnham, 17 N. Y. 561, and Tobias v. Ketchum, 32 N. Y. 319, to sustain this proposition. But Judge Andrews, in Konvalinka v. Schlegel, page 130, 104 N. Y., and page 869, 9 N. E. Rep., thus speaks of such a contention:
“It seems to be supposed that there is a necesary repugnancy between the existence of a trust in real property, created by a will, and an outstanding dower interest of a widow in the trust property. We perceive no foundation for this contention. The
The learned judge also shows that the cases of Savage v. Burnham and Tobias v. Ketchum, supra, have been misapprehended. So that, if there be a trust in the executors under this will to receive the rents and profits of the realty, and pay them over to the widow, and to receive and invest the proceeds of the sale, or any part of the estate, it is not necessarily inconsistent with the widow’s dower in such property. The testator, hv his will, in the absence of provisions to the contrary, must be presumed to be making disposition only of his own estate and interests, and subject to the interests of all others therein, including the widow’s right of dower. Judge Andrews so holds in Konvalinka v. Schlegel, supra, and reviews the authorities establishing that principle; and, in speaking of the case of Tobias v. Ketchum, he' says the widow was there “put to her election, not because the vesting of the title in the trustees was per se inconsistent with a claim of dower, but for the reason that the will made a disposition of the income, and contained other provisions which would, in part, be defeated if dower would be, or was, insisted upon.” In the case of Akin v. Kellogg, 119 N. Y. 441, 23 N. E. Rep. 1046, the will contained an express provision that the bequests and devises to the widow Avere in lieu of dower. In Re Zahrt, 94 N. Y. 605, it was held that the provision was inconsistent with the assertion of a dower right, and so must be construed as in lieu of dower. The will in that case, after directing the. payment of debts, funeral and testamentary expenses, read as follows: “I give,
It may be said that the provision of the will directing that the homestead farm remain in charge of the executors, to be controlled, worked and conducted by them, is repugnant to the estate of dower therein, for the same could not be carried out if the widow be entitled to have a third thereof assigned to her as her dower. But as stated by Judge Akdbews in Konvalinka v. Schlegel, supra,, the testator must be presumed to be making disposition of his property only and subject to the dower. As we have seen from the authorities, the fact alone that a power of •sale is given, and with a trust, is not sufficient to put the widow to her election; and I do not understand that the fact alone, in addition that she is given, either directly or through trustees, the income of the estate, will necessarily put her to an election. But when a trust is created to receive the rents, profits and income, and apply the same according to the provisions of the will, in such manner and for such purposes as are inconsistent with the widow having her dower, then she must elect. This I "understand to be the rule as deduced from the cases as reviewed and criticised in Konvalinka v. Schlegel, supra. It appears from the authorities that, where provision is made for a widow, it is deemed to be in addition to 'her dower. In Church v. Bull, 2 Denio, 430, the widow was given the whole of the testator’s estate, real and personal, for life, or until she should remarry, and in Lewis v. Smith, 9 N. Y. 502, there was a devise to the widow of the "whole estate for life, and yet in each case the
Objection is made by the contestant to various items of credit in the accounts of the executor. The one of $161.38, for repairs on the Third avenue property, I think, should stand. The
The items for taxes, it seems to me, are not chargeable to the principal estate. The will expressly provides that the widow shall pay the same out of the income. They were not payable out of the principal estate, and, in any event, not until it appeared there was insufficient income for that purpose, and that such payment became necessary for the preservation of the-estate. Of course the taxes paid by the executor are proper-credits against the income fund.
The items for insurance, I think, are proper credits. Such payments are not expressly authorized by the will, but I think they are impliedly authorized. The executors appear to have-been clothed with a trust authority over the estate, and it seems-to me that they should be credited with the payments which are-proper in the management and preservation of the properties under their charge.
The item of $40.09 for repairs on the Mt. Moor Hotel appears to have been paid in the year 1887. The testimony of the executor shows that this property was sold in the fall of - 1885. I am therefore unable to understand how these repairs-are chargeable to the estate, and the same must be disallowed.
The item of $63.63, being the amount of a judgment against his brother David, it does not appear has any connection with the administration of the estate. So far as the proof shows, it is a personal matter between the executor and his brother.
The credits $9.50, $25 and $25, for expenses incurred in making the resale of the Third avenue property, I think, should stand. This resale was directed by the court, and the same seems to have been necessarily incurred to carry out such direction.
The item of $76.25, being the hill of Mr. Stafford for legal services, is not chargeable, except in part, to the estate. For
The credit of $1,218.01, for goods claimed to have been furnished to the widow, cannot stand against the principal estate. If the same is chargeable, it is only against the widow, to whom he claims to have furnished the goods. But I do not consider the proof sufficient to establish the same against her, as a payment on account of the income. If the executor has a claim for this merchandise against the widow and minor children, it appears to be an individual one, for which he must se.ek redress in some other court. The same may be said of the item of ■$280.97, for goods furnished to the legatee and devisee Loretta Storms. I find no sufficient proof to establish this as a payment, and it is only upon such a basis that the same may stand as a credit. Eo vouchers appear for the payments to this legatee.
As to the $162, paid Polly Demarest, for interest that had accrued between the first and second sales of the Third avenue parsonage lot, I am unable to see from the evidence that the same should stand as a credit. This mortgage was an individual obligation of the executor, given by him upon this lot after he became the purchaser thereof from his brother David. The payment of the interest was the discharge of his personal obligation, and I fail to see, from the evidence, how it became one that should be charged against this estate.
The credits for the costs paid in the two suits brought against the executor by his brothers Benjamin and Charles, for the respective sums of $251.98 and $221.55, should be allowed, as the judgment rolls show a recovery thereof against the executor, as such. It seems to me that, under the proofs, I am bound to regard the same as sums for which the estate is chargeable. If the executor had been deemed-chargeable personally, it would seem that the Supreme Court would have so decreed. Although