182 Misc. 866 | N.Y. Sur. Ct. | 1943
For a period of several years prior to the death of the testator on September 16, 1942, one of his adult children had received from the Department of Welfare of the City of New York public financial assistance for himself and his minor children. By the terms of decedent’s will, admitted to probate on October 16, 1942, this child became entitled to a one-seventh part of his residuary estate amounting to approxi mately $1,950. Between October 27, 1942, and November 20, 1942, the legatee executed two assignments to secure loans of $1,200 and $725, respectively. On or about May 6, 1943, the Commissioner of Welfare filed a claim with the executor for the moneys advanced which was allowed upon the hearing by consent in the reduced sum of $2,800. The only question requiring determination upon the accounting of the representative is whether the right of subrogation asserted by the executor is prior or subordinate to the rights claimed by the assignees.
At common law a parent was not liable, save in exceptional circumstances, for the support and maintenance of an adult child. (Matter of St. Lawrence State Hospital, 13 App. Div. 436; Betz v. Horr, 250 App. Div. 457, revd. on other grounds 276 N. Y. 83; Matter of May, 255 App. Div. 31; Matter of Fox, 250 App. Div. 31, affd. 275 N. Y. 604; 46 C. J., Parent and Child, § 47; Matter of Wright, 172 Misc. 215, 216.) By statute a grandparent of sufficient means may be held liable for the support of a grandchild where the parents of the child are unable to adequately provide for it. (Matter of Calhoun v. Calhoun, 256 App. Div. 672; Hodson v. Stapleton, 248 App. Div. 524; Klebes v. Condon, 260 App. Div. 238; Public Welfare Law, §§ 125,128, now Social Welfare Law, §§ 101, 104.) The parties here, recognizing that the decedent was possessed of sufficient means, have acknowledged the validity of the claim asserted by the Commissioner of Welfare and the liability of the estate for its payment. The imposition of this statutory obligation, followed by payment thereof by the executor under the compulsion of a judicial decree, instigates an inquiry as to the rights and remedies of the executor against the legatee as the actual recipient of the financial assistance extended. Upon and prior to the decedent’s death the legatee was liable for the moneys received by virtue of an implied contract. (Public Welfare Law, §§ 125, 128, now Social Welfare Law, §§ 101, 104.) He was primarily liable and the testator secondarily for the relief extended to himself and his children. (Matter of Sagendorf, 257 App. Div. 1042; Matter of Larkin, 262 App. Div. 868.) In equity and good conscience the legatee
In the light of the foregoing principles, the debt of the legatee will be regarded as equitably transferred by the creditor to the testator as of the time when the relation of principal and surety was created, which was in the lifetime of the testator even though payment be made thereafter by his executor. In the transmission of property of any kind from one person to another, the former owner can, in reason, only transfer what he himself has to part with, and the other can only take what is transferred to him. The rule, as generally stated, is, that the purchaser
The interest of the legatee being subject to the testator’s equitable right of reimbursement which arose prior to the making" of the assignments, the rights of his assignees are likewise subordinate thereto. A contrary determination would result in the legatee having his debt satisfied and receiving advance payment of his legacy. The decree settling the account may authorize the executor to retain the entire share of the legatee in view of the fact that it appears to be less than the amount of the claim of the Department of Welfare. Account settled. Proceed accordingly.