159 Misc. 190 | N.Y. Sur. Ct. | 1936
On this accounting proceeding a number of contested items require decision.
The election made by the surviving spouse of deceased was validly made. The provisions for her in the will left her free to take outright against the will. (Matter of Byrnes, 141 Misc. 346; affd., 235 App. Div. 782; affd., 260 N. Y. 465.) The court holds that the service upon the executors and their acknowledgment of service indorsed on the back of the original notice plus the tender of the so-indorsed original notice for filing before the expiration of six months after date of letters was adequate compliance with the statute (Dec. Est. Law, § 18). The delay in file-marking the papers does not bar the right of the surviving spouse. Accordingly distribution of the estate must be made on the basis that the intestate share of the surviving spouse is payable to her outright.
The court holds that the will appoints Murray April executor only and not trustee. The first sentence of paragraph fourth of the will which nominates two other persons both as executors and trustees is complete in itself. The final sentence of the paragraph is clear and unambiguous and no extrinsic testimony is receivable to determine the testator’s meaning. He differentiated between trustee and executor and limited his appointment of Mr. April to an executorial appointment.
The court has examined with care the affidavit of services submitted by the attorney-executor. Much of the service listed relates to purely executorial acts. For these the attorney must look to his commissions as compensation. The estate seems to have progressed without difficulty except in relation to the liquidation of the copartnership interest of deceased. As to that it is evident that substantial service was rendered but it is also apparent on the face of the affidavit of services that the actual settlement was first made by the widow "of deceased and was later adopted by the executors. The executors spent considerable time upon the matter but much of that was part of their executorial duties. The examination of the law, the consideration of alternative methods of procedure and the preparation of process and legal papers designed to enforce the rights of the estate furnish basis for additional compensation because these are outside the executorial function. Though
The question raised respecting the penalty for delay in payment of estate taxes having been eliminated no ruling is necessary thereon.
The executors were directed to file supplemental schedules showing principal and income separately as suggested by the special guardian; and such schedules have been received and are part of this account.
The executors having agreed to the computation of their commissions on a basis of value which excludes the claim against Samoph Holding Corporation as an asset, no ruling is required upon the special guardian’s objection which refers to this item.
The bequest to Florence Cohen is vested in her, with time of payment postponed. If she dies prior to her marriage it will be payable to her personal representative. (Matter of Moses, 86 Misc. 625; Matter of Purdy, 133 id. 217; Matter of Ettenheimer, Id. 717; Loder v. Hatfield, 71 N. Y. 92.) The decision in Matter of Balsamo (136 Misc. 113) holds nothing to the contrary. The tenor of the will in the last cited case is clearly distinguishable from the text of this will. The executors will hold the principal sum in special deposit until it is payable. The income on the legacy is payable to the legatee from a date seven months after issuance of letters.
The election by the surviving spouse necessitates determination of the source from which her intestate share is-to be paid. Since she is to have her share outright the will is to be examined for the purpose of seeing to what degree the plan of the testator can be salvaged while giving effect to the statutory right of election. As was said in Matter of Devine (147 Misc. 273) and in Matter of Byrnes (149 id. 449) each individual will must be searched for the purpose of determining how best its particular provisions can be effectuated. No general principle applicable to all wills can be stated. Always the effort is to leave undisturbed so far as possible the provisions for others than the electing spouse and to take, so far as is possible without disrupting the provisions of the will, all benefits intended under the will to be conferred upon the spouse and apply them first to satisfaction of the intestate share. If that is found to be possible only the balance need be charged to the interests of others.
Submit, on notice, decree construing the will and settling the account in conformity herewith.