115 Misc. 476 | N.Y. Sur. Ct. | 1921
This is an application by petitioner, claiming to be a legatee, to set aside and vacate three decrees filed in this court March 5, 1915, March 21, 1916, and October 4,1917, settling the accounts of the
“ * * * I further give and bequeath to each of the persons who shall be in the employ of said corporation B. Altman & Co. at the time of my death, * * * and to each of such persons who have been in such employ for fifteen years or more, and less than eighteen years, other than the persons herein-before in this clause mentioned, and other than those who shall otherwise be legatees in some other clause of my will, the sum of one thousand dollars ($1,000) provided, however, that piece-workers shall not be included in these several classes.
“ All the money bequests hereinbefore contained in this clause of my will are made, however, in like manner, upon the condition that the legatees, and each of them, shall be at the time of my death in my employ, or in the employ of said corporation B. Altman & Co.”
I hold that the petitioner is a legatee under the will. He ivas employed by B. Altman & Co. from November 6, 1893, to October 7, 1897, and from November 13, 1899, to July 2, 1920, so that on October 7, 1913, when the testator died, he had thus been employed for two periods, four years and fourteen years, or a total service of slightly less than eighteen years.
The executors claim that there is a latent ambiguity arising dehors the will and that parol evidence is admissible to establish that the intention of the testator was to confine his bounty to continuously
A previous construction by Mr. Surrogate Fowler held that piece-workers were not entitled to share, where part of their term of service was rendered in that capacity and part as salaried employees. Matter of Altman, 89 Misc. Rep. 697; affd., 171 App. Div. 903; affd., 217 N. Y. 680. This decision is not, however, applicable here for the testator expressly provided “ that piece-workers shall not be included in these several classes.” This exception shows the care taken by testator in defining the objects of his bounty, and makes significant the failure to use the word “ continuous.” We are not dealing here with a requisite period of service of but a few years. The testator fixed a comparatively long period of time with a minimum of fifteen years. Satisfactory service is not turned into an “ in and out ” employment by but one interruption. The re-employment of a person usually implies satisfaction with his services, and in this case was justified by White’s subsequent loyalty. Circumstances in other cases, where the requisite period of service was short, for example, one or two years, might require that a delinquent employee or malingerer should be denied the bounty of an employer.
Every decree of a Surrogate’s Court is conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained. Code Civ. Pro. § 2550. A similar provision (Code Civ. Pro. § 2742) applies particularly to decrees on accounting. The petitioner being a party in interest, and not having been cited, the decrees as to him are
The executors claim further that the petitioner is guilty of laches in making this application. Even if the principle of laches applied, I would, upon the facts, in my discretion, overrule this contention.
Motion to open and vacate decrees on accounting (as to petitioner only) is granted.
Decreed accordingly.