136 Misc. 118 | N.Y. Sur. Ct. | 1930
The application to amend the previous decrees of this court and for the distribution of the funds to the devisees or other persons legally entitled thereto is granted. It appears that
The jurisdiction of the Surrogate’s Court to make a valid decree affecting the disposition of the funds deposited with the city chamberlain or into the State treasury has been supported by unquestioned authority. (Matter of City of New York, 200 N. Y. 138,
Section 110 of the Real Property Law provides that where an estate or interest in real property has vested in the assignee or other trustee for the benefit of creditors, “ it shall cease at the expiration of twenty-five years. * * *. The estate or interest remaining in the trustee or trustees shall thereupon revert to the assignor, his heirs, devisee or assignee, as if the trust had not been created.” This section has been, in numerous cases, applied to an assignment for the benefit of creditors afid the running of the statutory period has been held to divest the creditors of their rights in the fund, and to authorize its payment to the grantor or to his representatives mentioned in the section. (Street v. Post, 232 N. Y. 563, affg. 197 App. Div., 304; Kip v. Hirsh, 103 N. Y. 565; Matter of Gallaudet, 129 Misc. 751.) The section has also been held to apply to personal property as well as to real property. (Mills v. Husson, 140 N. Y. 99.) The reference in the section not only to an assignee for the benefit of creditors, but also to any “ other trustee for the benefit of creditors,” extends its application to a statutory trust administered by the representative of an estate under the control of the Surrogate’s Court. The statutory provisions for presumption of payment after a long period of time and the rule of relinquishment and abandonment should, with similar reason, apply to estates of decedents as well as to inter vivas assignments.- Ample legal notice had been given by publication in the several proceedings prior to 1898 to the creditors and citation by publication has issued to them in the present proceeding. A period of at least thirty-one years has, therefore, elapsed since the final deposit — far longer than the statutory period fixed in section 110 of the Real Property Law. The Attorney-General in his answer contends that the fund remaining undistributed and unclaimed by certain of the creditors should now be distributed to the remaining creditors who were concededly paid only in part. This contention must be overruled. Under section 110 of the Real Property Law the entire trust for -the benefit of all the creditors has ceased. None of them, therefore, has any right of participation by reason of the lapse of the statutory period and the fund has vested in the légatees and devisees pursuant to the expressed terms of section 110. I hold that the trust for the
These proceeds passed as real estate and in the absence of heirs of the widow, since the inheritance came from the husband, his heirs became the substituted heirs of the wife. (Dec. Est. Law, § 91.)
Distribution of the proceeds of the real estate, therefore, will be directed as follows: One-eighth each to the daughters, Rachael Bergamini and Mary A. Frame; an additional one-eighth to Rachael, as the sole devisee of Theresa (or Teresa) E. Bergamini, a deceased daughter; one twenty-fourth each to the three sons of the deceased son William. The remainder of the proceeds of the real estate passed under the will of the testator and is directed to be paid as follows: One-sixth to the petitioner, Rachael Bergamini, as devisee; one-sixth to Mary A. Frame as devisee; the remaining one-sixth share originally bequeathed under the will of the testator Theresa (or Teresa) E. Bergamini shall be paid to her sole legatee and sole devisee, Rachael Bergamini. As to the proceeds of the personalty, now amounting, with interest, to $5,991.75, distribution shall be made in accordance with the terms of the will, as follows: One-half to the estate of the widow, Christina J. Bergamini, as legatee, which the decree shall direct to be paid to her present administratrix, Rachael Bergamini; one-sixth to Rachael Bergamini as legatee; one-sixth to Mary A. Frame as legatee, and the remaining one-sixth to Rachael Bergamini, as executrix of the deceased legatee, Theresa (or Teresa) E. Bergamini. Submit decree on notice providing for such distribution and amending the decree of this court of November 24, 1894, the amended decree of March 31, 1898, and the decree of June 30, 1893, in accordance with the foregoing decision.
Amd. by Laws of 1929, chap. 518.— [Rep.