154 Misc. 233 | N.Y. Sur. Ct. | 1935
George W. Lockwood, a resident of the town of Walton, Delaware county, N. Y., died on the 17th day of August, 1931, leaving him surviving his widow, Cecelia Lockwood, who has since married and is now Cecelia L. Fairchild. For convenience she will hereinafter be referred to as Mrs. Lockwood. On the
Upon the petition of certain creditors the said administratrix was directed to file her account for judicial settlement in which she accounts only for one-half of the real and personal property occupied and in possession of her deceased husband, George W. Lockwood, at the time of his death. She claims a one-half interest in and to said real and personal property by virtue of an ante-nuptial agreement dated February 3, 1921, executed and delivered to her on that day by said George W. Lockwood; on the same day she and the deceased were married. Prior to the marriage and the execution and delivery of the said antenuptial agreement said George W. Lockwood had contracted to purchase a certain farm situate in the town of Walton, Delaware county, N. Y., from one Albert H. Sewell. On the 1st day of November, 1922, said Sewell made, executed and delivered to George W. Lockwood a deed of the premises so contracted to be sold by said Sewell to said Lockwood and, in violation of the antenuptial agreement, the title to the premises was taken in the name of George W. Lockwood. After the death of the deceased the barn on said premises and some personal property therein burned. The barn and personal property were insured in the Walton Co-operative Fire Insurance Company. Due proof of loss was filed and the insurance company paid to the administratrix $1,270.50, $1,000 for the loss of the barn and $270.50 for the personal property therein destroyed by fire. For a period of ten years prior to his death the deceased had conducted the farm and transacted all business matters in relation thereto in his own name. The debts, for which creditors have filed claims against the estate, were contracted by deceased in connection with said farming business. The milk produced by the dairy on said farm was marketed, and the milk checks therefor came in the name of the deceased.
The creditors of the deceased object to the claim of the widow ' that she is entitled to one-half of the real estate and personal property pursuant to the antenuptial agreement and contend that the creditors are entitled to a payment of their claims so far as the same may be had out of the insurance moneys paid by the insurance company to the administratrix on account of the destruction of the barn and personal property by fire.
The above facts were established partly by testimony and partly by agreed statement of facts submitted to the court by the attorneys for the respective parties.
As between the deceased, George W. Lockwood, and his widow, Cecelia Lockwood, she is entitled to one-half of the real and personal property by virtue of the antenuptial agreement entered into between the deceased and bis widow prior to their marriage and the same is impressed with a trust in favor of Mrs. Lockwood to the extent of the one-half interest agreed to be conveyed to her, even though the deceased took title to the real property in his own name. (Lamb v. Lamb, 18 App. Div. 250; Foreman v. Foreman, 251 N. Y. 237; Melonson v. Dolan, 214 App. Div. 821; affd., 241 N. Y. 613.)
If the rights of the creditors did not intervene, there would be no question as to the widow being entitled to one-half of the real and personal property by virtue of the antenuptial agreement to the exclusion of the heirs and next of kin of deceased. However, the rights of the creditors do intervene and they are entitled to the moneys realized from the real and personal property of the deceased and any insurance moneys paid on account of the destruction thereof. This is so because the antenuptial agreement was not recorded and Mrs. Lockwood permitted her husband to operate the farm, transact all business in connection therewith, market the milk and have the milk checks come in his name while she claimed to be the owner of one-half of the real and personal property by virtue of the antenuptial agreement. She permitted her husband to hold out to the whole world, and especially the creditors, that he was the sole owner of the real and personal property and in no way gave them notice that she owned or claimed to own a one-half interest therein.
The money received from the insurance company on account of the destruction of the barn is real property. (Wyman v. Wyman, 26 N. Y. 253; Matter of Mullin, 121 Misc. 867.) This being so, it would ordinarily pass to the heirs at law of the deceased. The only way that the real estate could have been reached by the creditors, had it not been for the fire, would have been through proceedings to sell the real estate for the payment of debts. However, it is not necessary to institute such a proceeding in order to make these moneys applicable to the payment of decedent's debts. That portion of the real estate represented by the barn which was burned has already been converted into personal property by the payment of the insurance money. That being so, the court has a right to treat it as personal property and direct that the administratrix apply it to the payment of the debts of decedent. Where a sale of the real estate of decedent has been legally had, the representatives have the right to use it for all purposes of administration and to pay the debts of decedent before distributing it to those entitled to take by inheritance. (Matter of Bolton, 146 N. Y. 257.)
The insurance moneys which were paid by the insurance company to Mrs. Lockwood on account of the loss by fire of the barn and personal property must be accounted for by her as administratrix as part of the assets of the estate of the decedent. Some of the personal property set forth in Schedule C of the inventory filed by the administratrix was undoubtedly destroyed by fire. The administratrix should, therefore, account for the personal property
A decree may be prepared and submitted upon five days’ notice.