159 N.Y.S. 140 | N.Y. App. Div. | 1916
Lead Opinion
Count Amedee De Gasquet James was bom at New Orleans. His mother was a French woman. They removed from New Orleans to France about 1863, where he lived with his mother until his marriage with the appellant in 1881. He inherited from his mother, or acquired through her, the title of count in France, and lived and died there as a French nobleman. His mother was buried in the family vault at Loudres, France, where at his request he was buried. In 1881 he came from France to this State for the purpose of marrying the appellant, and immediately after the marriage they returned to France and made it their home. At and before the time of the marriage it was the intention of both to go to France to live. From the time he left New Orleans until the date of his death he had no other domicile or residence than France, and from the time of her marriage the appellant has had no other domicile or residence. It seems clear that France was the matrimonial domicile, and that the marriage rights of the spouses depend upon the laws of France. His will, written by himself in French, was made and probated in France, and the law of France should determine its effect and control the settlement of his estate. The controversy here" arises between the mother, their two daughters, son, and two grandchildren
It is claimed, however, that by probating her husband’s will and taking the property given to her thereunder, she has renounced her marital rights and is limited strictly to the provisions of the will, or, as it is otherwise stated, “ By the judgment of the French court the question is res adjudicóla here.” The French judgment is what we would call the decree admitting the will to probate. The will had been filed before that time in the probate office, but the heirs and next of kin had not been cited, and this judgment upon the appellant’s petition was made to establish its validity. It recites that the action was brought by the widow to require the delivery to her of the legacies; that the will is regular in form, and it is proper to grant her prayer, and it directs that the will be carried out according to its form and tenor, and that “ the specific legacy ” given to her by the will be delivered. There is nothing before us to show what proof was submitted to the French court, or that any other questions were considered or determined. We must assume that the court made proper inquiry and had knowledge of the facts necessary to enable it to pass upon the validity of the will. We cannot assume that any material fact was suppressed. It appeared before the court that while the testator was an American subject, he was a resident and a property owner of France, with several residences and establishments there; that he was a French count, and that he left a wife and four children surviving him; that his property was situated in America, France and elsewhere, and that the will was written by him in French, indicating an intent that it should be probated in France, and that he and his family were
“ A judgment is not a bar or estoppel in a subsequent litiga
The appellant, by proving the will and taking possession of the European property, did not elect to forego her rights under the French law. The will is not in any manner inconsistent with those rights. The value of the estate in Europe and of the appellant’s property is not clearly shown. We infer from the record that the American property was of the value of about $600,000; the European property of about $300,000. The surrogate stated upon the trial that he would consider the American estate as two-thirds and the French estate as one-third of the whole property, and none of the parties objected. The property the appellant contributed was apparently about $200,000, making the community property about $1,100,000, of which the appellant’s interest would be about $550,000. But the testator was at liberty to will to her a part at least of his share of the community property. It is said that the French law prohibits a person who leaves him surviving three or more children from willing away more than one-quarter of his property. We do not, however, assume under that rule that three-quarters of the property must go to the children. If he gave to a friend or charity one-quarter of his property, it does not follow that the children would receive the remaining three-quarters and the widow nothing. The law probably means that as to three-fourths of his property in such a case, he shall die intestate. It does not appear how such three-fourths of his property would be divided between the widow and children. No rights of the children are invaded so long as the widow receives one-half only of the common property and one-quarter of the testator’s share in the remainder. Probably she could be given more, but' in the absence of proof of the French law upon that subject it cannot now be determined. If, however, the bequests to her, with her interests in the community property, exceed the proper limit, compensation may be made in the settlement of the
We may add a few words to the will without changing its effect. If testator had given to his wife his interest in the property in Europe and had given to his children his interest in the property in America, there could be no reasonable objection to the will. But he could give her no greater interest in the property in Europe than he had, and he could give to the children no greater interest in the property in America than he had; therefore, the will is not inconsistent with the community system. There was no defect in it calling for an election upon her part. When the testator gives his fortune in America to his children, a reasonable construction of the provision limits it to the fortune in America which he owned and was capable of giving to them. It does not mean the wife’s fortune, or the wife’s interest in the common property in America; it only means that the children are given all the property in America which he owns and is capable of disposing of by will. We, therefore, conclude that the findings that the appellant has waived her legal rights of community are against the evidence and the law of the case.
It is urged that under the law of France the acceptance of a residuary legacy waives the community rights and that the bequest to the appellant is a residuary legacy. The French court, in its decree, calls the provisions in behalf of the appellant “ the specific legacy.” The different residences in France, with the furniture, and the other items of property given to
After the death of her daughter it seemed that her minor children would be better cared for by appellant than by the father, a major in the German army, and it was arranged that the children were to be taken and cared for by her and she was to pay the father from their income 1,000 marks a month, and she continued such payments for five years. She swears “ the German law states that he is entitled to the use of that income.” It seemed to her, and I think wisely, in the interest of the grandchildren, that it was better to pay the father 1,000 marks a month and retain the balance of the income for the children, and that they should be brought up by her instead of being intrusted by the father, who was in the army, to strangers. Under the peculiar circumstances of this case I think it was error to surcharge her accounts with 60,000 marks on account of such payments. She should be allowed a reasonable compensation from the income of the infants for their maintenance when with her.
Some of the securities left by the testator depreciated in value and some became worthless. Some of them paid a substantial income for a long time and then became valueless. The executrix’s account has been surcharged with about $40,000 on account of this depreciation in value. I think this was error. She was not required to sell and convert the securities into money. The will contemplates that she, as the head .of the family, was to administer the property and take care of the children, and she would have violated her duty if she had converted the great mass of securities into money, thus making them of but little productive value. If she had sold the securities and bought others, there was the same liability of loss or depreciation. The will did not contemplate an immediate division of the estate, and it was not in the interest of the children that such division should be made. The mother properly left the securities undivided while her children were growing up and obtaining settlements in life. The provision of the
The decree holds her liable for the performance of every duty as an executrix, and has surcharged her account in a very large sum because of certain mistakes which she has apparently made in administering the trust. Evidently she is perfectly able to make good any loss which has come to the estate from her fault. Her good faith is unquestioned; she kept no books of account. The income was remitted to her from the agents in America, deposited in a bank and paid out by checks or by the bank to the children calling for money. Naturally mistakes would occur when an attorney, without any substantial assistance from her, prepares her account for settlement. But there is nothing to indicate any bad faith or wrongful act upon her part, and if she is required to make good the losses which the estate has suffered through her, if any, there is no good reason why, under the circumstances of this case, she should be denied commissions. She is charged with every responsibility of an executrix and should have the benefit coming to the office. She is entitled to full commissions and her expenses and disbursements in the settlement and the administration of the estate.
I agree that in the discretion of the court this accounting might proceed to the end in the Surrogate’s Court of Ulster county or be remitted to the French courts. The estate is a large one; the husband selected his wife as his executrix when he must have known that she had no business capacity qualifying her for that position. His securities in America were placed with brokers or banks who had authority to buy
The fact that the appellant is now a German subject; that
All concurred, Lyon, J., in result, except Cochrane, J., who dissented in opinion in which Howard, J., concurred.
Dissenting Opinion
Amedee De G-asquet James, an American citizen born in New Orleans, but a resident of France, married in New York April 21,1881, the appellant herein, who was also an American citizen. Immediately after their marriage they went to France where they resided until the death of the former which occurred July 28, 1903. They had four children. Three of the children ' were infants at the time of the death of their father. One has since died, leaving two children who are still infants. The deceased left real and personal property in Europe and also personal property in this country.
The deceased left a last will and testament dated June 10, 1902, and a codicil thereto dated February 14, 1903, whereby he gave to his wife, the appellant herein, all his property real and personal in Europe, including, as stated in the will, “ the full ownership of all securities without exception by me deposited either in Paris or in London with bankers,” except that she was to have the enjoyment during her life of his jewels and diamonds and those of his mother. The will made this additional provision for his children, viz.: “My fortune which is in America shall be divided between my children. I
On the 19th day of March, 1904, in the Civil Tribunal of First Instance of Dinan, being a court in France having jurisdiction in the premises in an action or proceeding instituted in such court by the appellant and to which all of the legatees under the will of the deceased were parties, a judgment or decree was duly rendered by said Civil Tribunal of First Instance wherein it was recited that “the various defendants have submitted their rights to the court,” and said judgment or decree then declared and adjudged that said will and codicil should “be carried out according to their form and tenor,” and that delivery should be made to the appellant of the property given to her in and by said will and codicil.
Such proceedings were also had in the Surrogate’s Court of Ulster county, N. Y., in which county certain property of the deceased was located, that on the 22d day of March, 1904, the said will and codicil were duly established by said Surrogate’s Court and ancillary letters testamentary were duly issued to the appellant.
The appellant never rendered any account of her proceedings either in this country or in France until the year 1912, when, proceedings having been instituted in the Surrogate’s Court of Ulster county by the legatees under the will to compel an accounting by her as ancillary executrix, she instituted this proceeding for a voluntary judicial settlement of her account as such executrix.
The other parties to the proceeding are the three surviving children, legatees under the will of her husband, all of whom appeared in person and by attorney, and the two infant children of the deceased daughter who appeared by special guardian.
Objections to the account of the appellant were filed by the other parties to the proceeding and after a hearing before the
The main contention of the appellant is that she and her husband not only resided but were domiciled in France; that her property rights pertaining to the estate of her deceased husband are to be determined according to the law of France; that according to such law “legal community,” so called, existed between her husband and herself and consisted of all the property which she and her husband owned at the time of their marriage or which they acquired thereafter; and that one-half of the community property belonged to the appellant and that her husband had no power to dispose of the same. For the purposes of this appeal none of the foregoing propositions have the effect of impairing the validity of the decree made by the surrogate for the reasons hereafter stated.
First. The appellant testified that she took and acceptéd possession of the property of her husband given her by his will including the real estate which he owned. In re Bayerque v. Ste. Saint Jean Baptiste d' Oleron (Court of Appeals of Pau, Clunet’s Journal of International Law, 1887, p. 479) the French court decided as follows: ‘ ‘Parties who have voluntarily carried a will into execution of the alleged defects of which they were aware, are presumed to have ratified the provisions therein contained. Whereas, the claim of the spouses Bayerque ought to be further rejected because of the voluntary carrying out the provisions of Romain Bayerque’s will, while they were aware of defects which would affect it under the French law, if submitted to said law; Whereas it is impossible not to see in such acts, the most absolute approval of the carrying out of the will of Romain Bayerque, the remittance of said sum having only been made to him, in conformity with the will, provided the distribution should be made in compliance with the wishes of the testator; that it is thereby shown that he accepted the mission intrusted to him in regard thereto by the will, and consequently, ratified thereby its provisions. ” The learned counsel for the appellant in answer to the above quotes other French law to the effect that if the legacy made
Second. If there be any doubt as to the law of France applicable to this question it has been set at rest by the French court in reference to this particular case. At the instance of the appellant that court declared by its judgment or decree in an action or proceeding to which all the legatees under the will of the deceased were parties that the various defendants had “ submitted their rights to the court,” and that the will and codicil should “be carried out according to their form and tenor.” It is, therefore, no longer a question of what the French law is, but the question is what the French courts have declared that law to be in reference to the will of the deceased, and it has been determined by the French court that the will shall be given effect according to its tenor. The appellant suggests that resort was had by her to the French court as a matter of necessity, and that this judgment or decree was merely a formality. If that be so it does not alter the effect of such judgment or decree, and if the question is material, as the appellant insists it is, such judgment or decree should be considered by us as a definite and specific declaration by the courts of France as to the meaning and effect of the testamentary
Third. The appellant has offered no evidence of the amount or value of the European property left by her husband or of her own property which she now claims went into the “ legal community.” The entire theory of her proceeding has been that there was no such “'legal community.” Her account filed herein was limited only to the American estate of her husband and contained this statement: “This account covers and includes only the American estate of the decedent which has come into my hands under said ancillary letters testamentary.’ She stated in her answer to the petition of certain of the respondents to compel an accounting that she had in her own right “ at least one-half million dollars unpledged and unincumbered,” but there is no more definite statement than that as to the value of her individual estate. Through her counsel and herself she resisted all efforts made by the respondents to ascertain the value of her husband’s European property and insisted on limiting the accounting to the American portion of his estate. For these reasons, therefore, it seems clear that the contention of the appellant that the distribution of her husband’s estate has not been decreed by the surrogate in accordance with the law of France is untenable.
It is further contended that the accounting was extended beyond its proper limits because the appellant was merely an ancillary executrix in this State and should not have been subjected here to a general accounting. It is well settled that ancillary executors have the same general power in this State as domestic executors so far as personal property is concerned. (Lockwood v. United States Steel Corporation, 209 N. Y. 375; Smith v. Second National Bank, 169 id. 467; Hopper v. Hopper, 125 id. 400, 404.) That would seem to be more particularly true where as in this case the ancillary executor and the principal executor are one and the same person. In Lockwood v. United States Steel Corporation (supra) it was held: “Ancillary administration in this State is regulated by statute and an ancillary executor or administrator has the same general powers as a domestic executor or administrator except in
The surrogate refused to allow the appellant commissions. The estate was practically unadministered for a period of more than eight years. The preponderance of evidence shows and the surrogate has so found that the respondents were repeatedly demanding an accounting. During a portion of the time some of them were infants and some of them are infants even now. The estate having been left to take care of itself, and losses having occurred as the result of such want of administration, . it is difficult to see how commissions have been earned.
The findings of the surrogate and his directions seem to rest on sufficient evidence except in one particular. The appellant has credited herself and charged her son with 20,000 francs for an automobile purchased by her for him after he was twenty-one years old. After her son had used the automobile for some time he sold it to the appellant for 10,000 francs, which she
The decree should be modified in respect to the item for automobile, as indicated in the opinion, and as so modified affirmed.
Howard, J., concurred.
Motions to dismiss appeal denied. Decree reversed on law and facts and order directed as per opinion of Kellogg, P. J. Order to be settled by Kellogg, P. J. The court disapproves of the findings of fact numbered 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, 24, 38, 39, 40, 41.
]STow Code Civ. Proc. § 2636, as amd. and renum. by Laws of 1914, chap. 443.— [Rep.