136 Misc. 430 | N.Y. Sur. Ct. | 1930
This is an application to vacate and set aside two decrees in accounting proceedings, one dated October 27, 1924, which judicially settled the accounts of the executors, and the other dated April 20, 1927, which settled the accounts of the trustees, and to allow the petitioner to file objections to the accounts. The petitioner was testator’s wife and by his will he gave her 300,000 German marks as well as the income from the residuary estate during her fife or until her remarriage. The executors’ account showed that she had been paid the 300,000 marks, and in the proceeding to have that account judicially settled the widow was served with citation by- publication and mailing. It is conceded that she had given her formal receipt in writing for the legacy, and had signed a consent and waiver of citation that were not filed in the accounting proceeding. She
A preliminary question was raised as to whether the widow claimed as a legatee or as a creditor by reason of an alleged dowry. It has been definitely settled, however, by the concession of her counsel that she makes no claim as a creditor, but solely as a legatee.
I hold that the facts set forth in this proceeding do not justify the setting aside of the decrees. (Surr. Ct. Act, § 20, subd. 6.) No fraud or error or other sufficient legal cause for reopening the decrees has been shown. (Matter of Brennan, 251 N. Y. 39; Matter of Starbuck, 221 App. Div. 702; affd., 248 N. Y. 555; Matter of Tilden, 98 id. 434; Matter of Griffin, 210 App. Div. 564; Matter of De Lamar, 209 id. 240; Matter of Hermann, 178 id. 182; Matter of Peck, 131 id. 81.) The executors paid the widow’s legacy in paper marks on February 27, 1924, when paper marks were the only legal tender recognized either in Germany or in this country for payments in German marks. The executors did not then have, nor have they now, any monetary interest in the value of the legacy. The real dispute is between the widow and her two infant children by the testator, whose remainder interests under the will would be depleted to the extent of approximately $71,000 if she were successful in her present contention.
The material provision of the will, which was executed on March 18, 1920, reads as follows: “ I give and bequeath unto my wife, Felicie A. Illfelder, 300,000 marks; * * The testator died on July 15,1923. At the time the will was executed the paper mark was the only mark in existence, the gold mark having been withdrawn from circulation during the war. At that time the mark had already depreciated between ninety and ninety-five per cent, so that the testator must have had knowledge that he was dealing with a greatly depreciated currency.. From evidence adduced by both sides, it appears that from August, 1914, to October, 1924,
The rule stated in Matter of Lendle (250 N. Y. 502) is not authority for relief to the widow here, because the facts in this case are different. In the Lendle case the testator died on March 29, 1927, two and one-half years after the change in the legal currency of Germany. In the present case the testator died on July 15, 1923, more than a year before the change, and his widow was paid her legacy in February, 1924, approximately eight months before the change in currency. The Court of Appeals in the Lendle case held that the bequest of German marks in the will was one wherein the marks were to be regarded, not as a measure of value, but as a commodity. The legacy was held to be similar to a general bequest of stocks and bonds, to be satisfied in kind. It was pointed out that the testator did not intend to give a legacy payable in dollars at the prevailing rate of exchange. In its conclusion, the court held that the legacy was payable in marks, not in dollars, and in marks which passed as such in the market at the time the legacy was paid. Applying that rule to the present case, the widow was fully paid when she received and receipted for the 300,000' marks in the paper currency which at the time of payment was the only legal tender in Germany and the only kind of mark which passed in the market on that date. Furthermore, the widow is not entitled to the relief she seeks because of her loches for over four years, her formal written receipt of the legacy, her acquiescence in the various accountings, her signed waivers in those proceedings, her conduct in receiving benefits under the
For' all of the foregoing reasons, the application is denied.