188 N.Y. 115 | NY | 1907
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *117 This appeal brings up for our consideration the rulings of the surrogate of Onondaga county in respect to three matters in controversy between the widow and executrix of Charles W. Garlock, deceased, on the one hand, and her co-executor and the other parties interested in the estate on the other.
The will of Charles W. Garlock was executed on March 13, 1903. In the first paragraph the testator directed that all his just debts and funeral expenses be paid. In the second paragraph he bequeathed to his wife, Addie Garlock, all his household goods and furniture and jewelry and diamonds, except his diamond stud. In the third paragraph he devised to his said wife the use, rents, income and profits of his house No. 820 East Fayette street, in Syracuse, for and during the term of her natural life if she should remain unmarried, and, upon her death or remarriage, to his son, Frank Garlock, in fee. Then follow various specific legacies until we come to the seventh paragraph, which reads as follows: "I give and bequeath to my said wife, Addie Garlock, one-third of all the rest, residue and remainder of my personal estate of every name and nature whatsoever." By the eighth paragraph the testator bequeathes to his son Frank Garlock his diamond stud. *119 The ninth paragraph is in the following words: "I give, devise and bequeath to my son Frank Garlock all the rest, residue and remainder of my estate, both real and personal, of every name and nature whatsoever, to have and to hold unto his sole use, benefit and behoof forever." By the tenth paragraph the devises and bequests made to the testator's wife, Addie Garlock, are declared to be in lieu of dower. The eleventh paragraph confers upon the executors power to lease, mortgage, sell and convey any and all real estate of which the testator may die seized, but contains no absolute direction to sell. By the twelfth paragraph the testator assumes to "appoint Wilson Wortman, attorneys at law, of Syracuse, N.Y., attorneys for my estate, upon the probate of this my last will and testament, and upon all other matters wherein my executors shall require legal services or advice in the settlement of my estate." The testator's cousin, Frank Caldwell, was appointed executor, and his wife, Addie Garlock, executrix of the will.
On May 23, 1903, the testator executed a codicil, the first paragraph of which reads as follows: "I direct my executors to sell all my real estate not specially bequeathed by my said last will and testament of which I may die seized and to turn the same into money, as soon as it may be done for the best interests of my estate." The codicil contains some specific bequests not involved in this litigation. The only other provision material to be considered is the third numbered paragraph which is in these words: "I give and bequeath to Oakwood, a Cemetery Association of the City of Syracuse, N.Y., one hundred dollars, the annual income thereof to be used for the care of my burial lot in said cemetery."
The burial lot referred to in the codicil had belonged to the testator for many years prior to his death and there were buried therein the body of his first wife, the body of a daughter and the body of a sister-in-law. Sufficient space still remained in this lot for the burial of three more bodies. Instead of burying the body of the testator there his executrix caused his remains to be interred in another lot in the *120
same cemetery which she purchased for the purpose at an expenditure of $191.90; and this amount the surrogate refused to allow her upon the accounting under review. She offered evidence tending to show that her stepson had practically refused to permit the burial of the testator's body in the lot which he owned during his lifetime and also refused to recognize her own right to burial therein. If the findings sustained her position in this respect there can be no doubt that the amount which she expended for the new lot would be a proper charge against the estate. (Patterson v. Patterson,
The second item in controversy is the claim of the executrix to be allowed $400 paid to Mr. William Rubin for professional services as an attorney at law. As to this matter also we are precluded by the finding of the surrogate to the effect *121 that Messrs. Wilson Wortman have at all times performed all services necessary for the administration of the estate and his further finding to the effect that the services performed by Mr. Rubin for the appellant, and for which he charged her the sum of $400, were rendered to her personally rather than as executrix. Such is our construction of his finding upon this subject, from which the words "as executrix" are omitted. While the unanimous affirmance forbids any review of these findings here, it must not be understood that in sustaining this part of the decree we concede the correctness of the proposition argued in the brief for the respondent that the appointment of Messrs. Wilson Wortman as attorneys of the estate by the twelfth clause of the will was binding upon the executors. The law of this state does not recognize any testamentary power to control executors in the choice of the attorneys or counsel who shall act for them in their representative capacity. They may incur a personal liability for the conduct of their lawyers, and hence they are beyond the control of their testator in making the selection. Such a provision, therefore, as this will contains in reference to the attorneys to be employed is to be regarded merely as expressive of a wish on the part of the testator which it is most proper for the executors to observe if it accords with their own judgment, but which otherwise they are not bound to regard.
Proceeding finally to a consideration of the third question presented by this appeal, it seems to us very clear that the appellant is right in respect to the meaning and effect of the first numbered paragraph in the codicil. By that paragraph the testator substituted for the discretionary power to sell conferred upon his executor and executrix by the eleventh paragraph of the will a positive and absolute direction for the sale of all his real estate not specifically devised by the will itself. The direction to his executors to sell which is contained in this paragraph of the codicil is so clear and emphatic as unquestionably to work an equitable conversion of the real estate to which it refers. At the time of his decease the testator *122 owned two pieces of land, to wit, No. 820 East Fayette street in the city of Syracuse, and No. 818 in the same street. No. 820 was specifically devised to the appellant for life with a remainder in fee to the testator's son, Frank Garlock, upon the decease of the widow or her remarriage. No. 818 is not expressly mentioned in the will, and if there had been no codicil the effect of the ninth paragraph of the will would have been to devise that house to the testator's son, Frank Garlock. On the other hand, if by reason of the provisions of the first paragraph in the codicil all the testator's real estate except the house devised to his widow for life, is to be deemed converted into personal property then the widow under the provisions of the seventh paragraph of the will which gives her one-third of all the rest, residue and remainder of the testator's personal estate would take one-third of the sum which the executors have derived from the sale of No. 818 East Fayette street. In other words, if an equitable conversion is effected by the first paragraph of the codicil then the proceeds of the sale of No. 818 are divisible under the will as personal property and the bequest to the widow is increased to the extent of one-third of such proceeds.
It would be difficult to find in the reported cases dealing with the subject of equitable conversion a more emphatic direction to sell than that contained in the first paragraph of the codicil here. It is not at all like the case of Parker v.Linden (
The judgment and order of the Appellate Division and the decree of the Surrogate's Court of Onondaga county should be reversed to the extent indicated in this opinion and the proceeding remitted to the Surrogate's Court with directions to modify the decree so as to award to the appellant *124 one-third of the proceeds of the sale of the testator's real estate, with costs to the appellant in all the courts payable out of the estate.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WERNER and HISCOCK, JJ., concur.
Judgment accordingly.