232 A.D. 7 | N.Y. App. Div. | 1931
The decree appealed from is erroneous in requiring the appellant to deliver over the total amount of property of the Davis estate, which the surrogate found to have been once in
Fannie Kelly was not only the executrix of the Davis will but was the sole legatee and devisee of all of the testator’s estate thereunder. The estate of Andrew Davis was partly administered by her during her lifetime. Of course the estate of Fannie Kelly is responsible as a debtor for all the assets of the estate of Andrew Davis which remained in her hands at her death unadministered, and a judgment might be granted against her executrix as such for the amount of such assets. (Matter of Hicks, 170 N. Y. 195; Matter of Walton, 112 App. Div. 176.) As a practical matter, however, in. the final adjustment of the various rights and obligations, Doty, as administrator with the will annexed, should not receive from the Kelly estate more than is necessary to satisfy unpaid claims against the estate of Davis and the expenses of administration. What the sum is does not appear in this record. The balance of the Davis estate belongs to Fannie Kelly’s estate by virtue of the legacy to Fannie Kelly under the Davis will. (Matter of Mullon, 145 N. Y. 98, 104; Blood v. Kane, 130 id. 514.) A petition by Nora Carroll for an accounting by Doty and for the bringing in of claimants under section 257 of the Surrogate’s Court Act (as amd. by Laws of 1926, chap. 669), would probably make it practicable to settle the Davis estate at once and permit the payment of the creditors of that estate by the administrator with the will annexed, and the appellant without any payments by the appellant to the administrator Doty, except possibly for administration expense. (Matter of Menahan, 224 App. Div. 139.)
The decree should be reversed on the law, with costs to the appellant payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings as the parties may be advised.
All concur. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.
Decree reversed on the law and matter remitted to the Surro- . gate’s Court for further proceedings as the parties may be advised, with costs to appellant payable out of the estate.