138 Misc. 526 | N.Y. Sur. Ct. | 1930
The questions here raised come before the court on a motion to confirm the report of a referee appointed to hear and report upon objections to the account of an administrator.
The painstaking and careful consideration discernible in the report and findings of the referee are such that, under ordinary circumstances, the court would feel under no compulsion to give the matter more than cursory attention. The violent attacks made by disappointed parties on certain of the results reached and even upon the impartiality of the referee himself are such, however, as to require a personal consideration by the court of the subject-matter of the more violently contested issues. This has involved the study of an extremely voluminous record and of the ten briefs filed.
Eliminating minor considerations, the salient facts may be stated as follows:
Emilie H. McNamara died on March 30, 1924. She was survived by her husband, a physician by profession, who is the accountant herein, two sons, George, born February 22, 1903, and Alfred, born October 29, 1904, and a daughter, Madeleine, born October 7, 1908. Diligent search was made for a will, but none was found, and on July 8, 1924, the widower received administration upon
The estate consisted almost entirely of certain jewelry and personal property and of $50,000 of bonds of the Victor A. Harder Realty Construction Company. Disregarding for the moment the personal property and estimating the administration expenses at the ordinarily reasonable figure of four per cent, this would mean that each of the three children would be entitled to receive $16,000 from the estate.
In accordance with his apparent desire to make such equal and equitable division, Dr. McNamara caused the $50,000 of bonds to be redeemed, and received three checks, aggregating such sum, one payable to Madeleine McNamara, S. J. McNamara, administrator, in the sum of $17,000, one to George A. McNamara in the sum of $17,000, and one to Sylvester J. McNamara for $16,000. The check to the order of George A. McNamara was turned over to him by the administrator. He thereupon gave back his check for his pro rata share of the expenses of administration, executed a general release, and dropped out of the picture. He makes no objection or claim in this proceeding.
There remain for consideration, therefore, only the interests in the estate of the other son, Alfred James, and of the daughter, Madeleine, who at this time were respectively about twenty-two and eighteen years of age.
Alfred was at this time a novice in a religious order. He was permitted by the rules of the order to own property up to the time of assuming his final vows, which was to occur when he became twenty-five years of age, but was not permitted to use it. Under date of November 14, 1925, he assigned his interest in his mother’s
This brings us to the most unpleasant phase of the rather sordid features of this case, which concern the rights in the estate of the daughter, Madeleine M. Carey. Her chief claim is in connection with the income on her share of her mother’s estate, during her minority, amounting, it is alleged, to $4,852.53. In order fully to appreciate the situation here existing, it will be necessary, briefly, to glimpse the situation of the father and daughter up to the time the latter attained her majority.
As shown by the record, he was a physician, enjoying an average gross income of about $7,500 a year, and a net income after deducting the reasonable and necessary expenses of his business of less than $3,900. From this sum he was obliged to provide for all living and personal expenses of his family and himself, in so far as he did not encroach upon principal savings, which, in the usual case, he could not be held obliged to do. It was shown with reasonable clearness that during the four years’ period here in question, Dr. McNamara expended on behalf of this daughter over $4,200 for tuition, etc., at expensive private schools, well over $2,000 for clothing, $2,900 for vacation trips to Europe and expensive American resorts, and $488.70 for dentist bills, in addition to giving her cash allowances totalling $2,140 and making heavy additional payments for her advancement, comfort and welfare. It is objected on her behalf that not all of these payments, aggregatating $13,000, have
To this court, the language of the Court of Appeals in Matter of Davis (184 N. Y. 299) possesses considerable pertinency. The question there concerned the propriety of the expenditure by a grandfather, standing in loco parentis, of a minor’s income for the infant’s advancement. The court says (at p. 303): “ While it is true that, strictly speaking, as the father of the appellant, the testator would have been bound to support her [304] entirely at his own expense, it was natural that after the legacy had become payable to her the testator should think it wise to apply that income to give the appellant greater educational advantages than hitherto he had felt himself able to afford. A father might have done the same, even if we assume that without authority from some court it would have been unjustified.”
The assumption contained in the last sentence of the foregoing opinion, the court is not inclined to indulge under the facts shown in the case at bar. On the financial facts of Dr. McNamara’s situation, he would fully have complied with his paternal obligation had he sent his daughter to public schools, clothed her at moderate expense, cut down her personal allowance to a nominal sum, and permitted her to spend her vacations in the city. Unquestionably such a course would have been comparatively detrimental to her social standing and marital prospects. Under such circumstances the court would undoubtedly have authorized the employment of her income in this way, since it would have involved no encroachment upon the principal and would merely have applied its current use to her advancement at a time when such employment would
The opinion of the court, therefore,, coincides with that of the referee in overruling the objection of this daughter to the employment by her father of this income for her benefit.
The further facts respecting this daughter’s share of the principal are illiminating on the general subject of the father’s bona fides in the entire matter. In 1928 Dr. McNamara paid her $1,000 in cash on account of her distributive share and had a $15,000 guaranteed first mortgage registered in her name and tendered it to her. This would have completed the payment to her of her $16,000 interest in the estate, but she refused it unless she also received certain silverware which is the subject of another objection to the account.
The facts respecting this silverware will be briefly examined. It consisted of usual flat tableware which had constituted the subject-matter of wedding gifts at the time of the marriage of decedent and the doctor some twenty-five years before, and had been in constant, daily use in the household during the .entire continuance of their married fife. It was marked, with the. maiden initials of the bride, was claimed by the doctor as his personal property, and was not included by him in the assets of his wife’s estate. .. It does not appear from the record as to whether this gift was from friends of the bride or of the groom.
Counsel for the objectors contend that this property. belonged' to the estate of the wife, although they state themselves unable to cite any authority on the subject. A cursory examination by the court of the pertinent authorities has disclosed three decisions possessing more or less weight in the determination of the respective rights of the spouses in wedding gifts. The first is Carroll v. Lee (3 Gill & Johns. [Md.] 504), decided in 1832, which determines that they belong to the husband in the absence of a clear showing of intent by the donors to the contrary. While the court (at p. 508) notes that under the existing law of that State a wife may own separate property, the general reasoning of the opinion seems so permeated with the older conception of the wife’s disability in this direction as to deprive the decision of any particular present-day authority. An exactly contrary result was reached by the Kansas City Court of Appeals in Ilgenfritz v. Ilgenfritz (49 Mo. App. 127), but the authority of this decision is impaired by reason of its apparent reliance upon the particular terms of the Missouri statute, therein applied, respecting the property of married women. The third determination of some interest in this connection is Wainess v. Jenkins (110 Misc. 21), which is a decision of the Third District
While the general subject is undoubtedly a most interesting one on which opinions may well differ, its determination is not required in the case at bar, in view of the provisions of section 200 of the Surrogate’s Court Act, which, at the time of the death of this decedent, provided in subdivision 1 that “ all housekeeping utensils * * * and household furniture,” not exceeding $500 in value, should not be deemed assets of the estate of a person “ leaving a widow or husband or minor child,” and should be “ set off to such widow, husband or minor child or children,” it being further enacted that “ such property so set apart shall be the property of the surviving husband or wife, or of the minor child or children if there be no surviving husband or wife.”
This section is a re-enactment, without change, of section. 2670 of the Code of Civil Procedure and has been the subject of repeated judicial construction. As a result of these determinations, it is clear that the property enumerated is the absolute property of the survivor, passing by operation of law (Matter of Leonard, 113 Misc. 205, 208; Matter of Shulenburg, 114 id. 155; Crawford v. Nassoy, 173 N. Y. 163, 166; Matter of Barthel, 111 Misc, 727; affd., 192 App. Div. 926; Matter of Hulse, 41 Misc. 307; Foryciarz v. Prudential Insurance Co., 95 id. 306, 309; Matter of Shonts, 191 App. Div. 427, 432; reversed on other grounds, 229 N. Y. 374; Matter of Hallenbeck, 195 id. 143; Matter of Osborn, 220 id. 595); that it forms no part of the assets of the estate (Matter of Mack, 164 N. Y. Supp. 590, 591; Sheldon v. Bliss, 8 N. Y. 31, 34; Matter of Baldwin, 67 Misc. 353), and may properly be awarded to the surviving spouse on the final judicial settlement of the accounts of the personal representative of the deceased spouse. (Matter of Warner, 53 App. Div. 565; Matter of Draper, 109 Misc. 404, 405; Matter of Shanley, 95 id. 427, 431; Matter of Belcher, 129 id. 218, 221.)
For this reason, the court is of the opinion that the determination of the referee that the objection to the account on the ground that this tableware was not included therein, was not well founded on the facts appearing in this case. It is, of course, true that if the property claimed by the husband to be exempt exceeded $500 in value, he would be hable for any excess value over that sum, but there is no allegation or presumption on that score in this case. Since this property was not set forth in his account, a settlement
The opinion of the referee holds in effect that various items of jewelry and a diamond were a part of the decedent’s estate and should be turned over by the administrator to the executor. While the court is not entirely clear that this is a correct determination respecting the pin received from Mrs. Moran, the administrator expressly acquiesces in the result and it will be affirmed. The question of the diamond, however, deserves passing notice. This was one of three stones in a ring given by Dr. McNamara to the decedent and was unquestionably a part of her estate. Wherefore the gift of one of these stones by the doctor to his second wife was an improper dealing on his part with the assets of the estate and must be rectified. It may be noted, however, that the doctor gave the other two stones from this same ring to his daughter, and it should be noted by the executor in connection with the future administration of the estate that such gift was equally unauthorized and that all three diamonds should properly be administered by it as assets of the estate.
In conclusion, the court can, in justice, not fail to note and express disapproval of the entirely unjustifiable personal attacks upon the administrator and referee made in the briefs of certain parties. The personal characteristics of the former are not in issue in this case. His actions in certain respects were injudicious and to that extent he is properly accountable. So far as concerns the balance of the record, his chief fault appears to have lain in the fact of his having been an over-indulgent father.
The attack on the referee is not to be lightly ignored. As is the case with all similar appointments by this court, his selection was the result of his integrity, learning and high standing in his profession. That he or any other man of his type would be influenced in the slightest by the fact that he was acquainted with one of the litigants, is absurd and unthinkable to a degree, and the record in this case is the best possible refutation of the improper insinuations here made.
It results from the foregoing that the report of the referee is in all respects confirmed.
’ Settle order, on notice, accordingly.