182 Misc. 1026 | N.Y. Sur. Ct. | 1944
This petition by the executor to compel a legatee to give a restitution bond before receiving a specified house with its furniture and equipment makes it necessary to construe the last will of this testator in order to ascertain what, if any, his intention was in this respect, before resorting to the general rules of the law, and particularly those relating to legal life estates, that may be applicable directly or by analogy to the peculiar state of facts presented herein, although the legacy appears to be one of a fee upon condition subsequent, with remainder over, rather than one of a legal life estate. Much of the discussion relates to the latter type and fewer cases in point on the former have been found.
By his will, dated May 9, 1943, about seven months before his death, testator put all his net estate in trust to pay the income to his wife and also provided in subdivision (b) of paragraph second thereof: “ In that connection she shall be entitled to the possession of my home at 71 Paxton Boad and the possession of and use of all furniture and equipment in connection therewith, without bond or security, during her natural lifetime.” She died before he did. He had also provided by subdivision (c) that “ Hpon the death of my said wife, or in the event that she shall predecease me, I hereby give, devise and bequeath the said house and lot at 71 Paxton Road, with the furniture and equipment, (except the Prayer Rug hereinafter mentioned), to Mrs. Gray (Julia M. S.) Remington, residing at No. 2300 St. Paul Boulevard in the City of Rochester, but on condition that she live in said premises for a period of five years from the time she becomes entitled to receive it, or sooner dies. In the event that she does not live therein for five years, or should sooner die during said five year period, I hereby give, devise and bequeath said house and lot and furnishings to my brother, Herbert Merritt, residing at No. 29 Jewel Street in the City of Rochester.” The other provisions in the will are not now pertinent.
It is clear that testator regarded the house and its furnishings, together with the land, as an undivided whole; that Mrs. Remington was to have the actual, physical possession of all that property as a unit; that the legacy was given directly to her, and not through the medium of a trust of any sort; and that testator made it obligatory on her to take and keep such possession for a time in order to carry out the condition on which the legacy was offered to her. She, apparently, has decided to accept the legacy, with the result that she has
Such combinations imply certain rights and duties as between the parties even though their respective rights are defeasible or contingent. As to the executor’s right, if any, to demand security from the legatee, testator expressly provided that if his wife should outlive him, her right to possession of this same property was comparatively less restricted in respect of time or security. The will planned.for her á life estate in the premises “ without bond or security.” In the alternate provision for the event of his wife dying before he did, testator restricted Mrs. Remington to occupancy fór a period, of five years, or less if she died meantime, as a condition of avoiding forfeiture of her title in fee to his brother. In a will so carefully and skillfully drawn, the executor has some ground to argue that the omission of the testator to speak of “ bond or security ’’ in this alternative case, as he had done just a few lines before in regard to the widow’s somewhat similar use of the premises, should be understood to show that “ testator entertained the diverse desire ” here (Matter of Leonard, 143 Misc. 172, 185). It has been held where a testator in one part of his will demonstrated the ability of making a certain variety of gift in apt terms, that his use of a different mode of expression in another part would support the inference that testator had a diverse disposition in view (Matter of Corlies, 150 Misc. 596, affd. 242 App. Div. 703). However, from his silence in regard to Mrs. Remington’s giving or not giving bond or security, the fairer inference seems to be that he left the legal relations of Mrs. Remington and his brother in the premises to "be governed by the general rules of the law applicable to such or similar combinations, because had he specifically meant she should give a bond, he then had a present opportunity to say so as he had just spoken on that very subject.
However, as to an obligation on the part of a legal life tenant to give a restitution bond, there has been some divergence in the rulings, although the cases fall into well defined groups. Where specific chattels other than animate things, or goods necessarily consumed in any use of them are bequeathed for use for a time, with a limitation over, they must be surrendered in kind at the end of the period, or their used value paid to the remainderman to whom in some decisions the tenant is regarded as standing in a somewhat fiduciary relation. This seems to have been the reason underlying a numerous group of cases holding the tenant could not obtain possession of the bequeathed property, where possession was not necessary to the enjoyment of the use, without first giving security for the safekeeping of the property and for final delivery of it by him or by the executor to the remainderman (De Rivas v. De Hergues, 12 N. Y. Week. Dig. 87; Matter of Roffo, 51 App. Div. 35; Hodgman v. Cobb, 202 App. Div. 259; Scott v. Scott, 6 Misc. 174; Matter of Recks, 112 Misc. 673; Smith et al v. Van Ostrand, 64 N. Y. 278, 281; Covenhoven v. Shuler, 2 Paige 122; Matter of Gillespie, 18 Abb. New Cas. 41; Matter of Lowery, 19 Misc. 83; Matter of Fleming, 51 Misc. 662; Matter of Bacharach, 138 Misc. 367; Matter of Taylor, 149 Misc. 705, affd. 242 App. Div. 608; Matter
In a few similar cases nonresidence may have been a decisive factor (Matter of McDougall et al., 141 N. Y. 21). In the Taylor case (supra) the court held the fact that the will exempted the widow as sole executrix from giving bond did not free her from the duty of giving bond in her capacity as life tenant; hut the contrary was held in Matter of Beard (169 Misc. 474), where the will exempted the life tenant executrix from giving “ bond or undertaking as such executrix or trustee ”.
In the cases of In Re Morton’s Estate (32 N. Y. S. 2d 17) and In Re Marshall’s Will (36 N. Y. S. 2d 571), the rulings requiring a bond seem to have gone against the weight of authority in that in each of these cases a bond was required, notwithstanding the legal life tenant had some rights in or over the principal of the legacy. Generally, a bond is not required where the tenant has some dispositive power or proprietary rights in or over the principal; as in a case where a power of disposition approximates a fee (Matter of Haskell, 19 Misc. 206), or more often where a right exists to consume some of the principal, as where income is insufficient for support (Matter of Martha Niles, 122 Misc. 17, affd. 211 App. Div. 826; Matter of Limburger, 128 Misc. 577; Matter of Frost, 179 App. Div. 431; Matter of Woods, 33 Misc. 12, affd. 61 App. Div. 587, affd. 168 N. Y. 640; Getman v. McMahon, 30 Hun 531; and see, also, Leggett v. Stevens, 185 N. Y. 70; Smith et al. v. Van Ostrand, 64 N. Y. 278, supra; Bliven v. Seymour, 88 N. Y. 469, 478; Matter of Smith, 170 Misc. 556, supra; Matter of Potter, 133 Misc. 17; Matter of Grant, 86 Hun 617).
“ In a case like this where the beneficiary is something more than a life tenant and has power to use in his discretion some portion of the principal for his support he is as a general rule entitled to the custody of the fund without security ” (Matter of Frost, 179 App. Div. 431, 435, supra). In Livingston v. Murray (68 N. Y. 485, modfg. 4 Hun 619) and in Matter of Moran (136 Misc. 615, 626), a tenant’s power to appoint by his will was held not to be" such ail interest in the principal as to exempt from giving bond.
There is a divergent line in the .mere “ possession ” group of cases wherein the tenant had no proprietary rights in or over the principal, and yet the courts emphasized the fact that the will, either expressly or by clear implication, showed
Those two important factors, to wit, one, the right to mere possession when necessary for use, and the other, some rights of ownership in the property itself or some dispositive power over it approximating ownership, even though those rights be defeasible or contingent, are found combined in a case somewhat more like the factual setup in this case in hand, in Matter of Woods (33 Misc. 12, affd. 61 App. Div. 587, affd. 168 N. Y. 640, supra), wherein testatrix devised her residence and its contents to certain legatees for life, provided they made it their residence; adding that if the devisees accepted the devise, they might appoint the remainder to their children; and that the devisees should have the residuary estate consisting of personalty; otherwise, the property should go over to others named in the will. The devisees having accepted the legacy, the court held they were not required to give bond to surrender even the contents of the house at the expiration of their life estates, since these legatees were entitled to the remainder of such personalty under the residuary provisions in the will. The court also held that the fact that their title might ultimately be defeated by breach of the condition subsequent was immaterial on the question of bond.
Counsel herein cited Tyson v. Blake (22 N. Y. 558). There, a bequest was made to a named legatee, but in case of her death without lawful issue her share was to be given to others. She “ took under this will more than a life estate ” (p. 562). There was nothing to show she might consume or spend the whole of the fund bequeathed to her. Had she left children they would have taken as her heirs. The court held her title was good, such as it was. Judge Comstock (p. 563) points out that “ security was voluntarily given ” by the legatee’s general guardians to the executors. The latter, apparently, had advanced some of the principal. Hence, Welles, J., said (p. 561) that the bond was ‘ ‘ such a one as the executors were entitled to require upon advancing ” any of the principal to the legatee. '
In the preceding case law there had been some difference of opinion, both as to whether or not the Surrogate had any authority or discretionary power to dispose of such matters and also as to just what such a legacy of possession implied as stated above. Aside from clarifying the Surrogate’s discretionary power, the new section seems to have settled the conflict -in the pre-existing case law as to whether or not mere possession could be so broadly interpreted as to exempt from bond in every case. Such latitude appears to have been the unclarified “ effect of the decision in Matter of von Kleist”,
The word “ control ” relates to authority “ over what is not in one’s physical possession ” (People v. Britton, 134 App. Div. 275, 279). The original and main meaning of “ control ” is “ contra-roll ”, meaning the act of an overseer checking an account by a duplicate register, verifying by parallel evidence or experiment; and thus, derivatively, exercising a restraining or directive influence over a matter not in his hands. The word “ control ” does not imply any dispositive or proprietary power over or in the property under such superintendence. Hence, this phrase, “ possession or control ”, as used in section 169-a of the Surrogate’s Court Act, appears to refer only to cases where the legal life tenant as legatee has either the right to handle or merely to oversee the handling of the subject matter of the legacy, but nothing more.
In thus clarifying the rule as to such merely “ possession ” legacies, the Legislature did not go so far as to impose the obligation of giving bond on the legal life tenant who had also some rights of ownership, even though contingent, in the property or some like dispositive power over it.
In the present case the legacy consists of a house and lot and the furnishings in the house, including some oriental rugs. The contents have been appraised at less than $2,000. The gross estate is abundantly solvent. We are not dealing here with
On behalf of the first legatee, Mrs. Remington, it has been well claimed that the executor’s duty is fulfilled upon delivery of the property to her. Thereupon, under the cases cited above, she becomes “ a trustee ” for the remainderman. The executor has no fiduciary duty in the premises after she takes possession; nor can the executor of a solvent estate, any more than the remainderman, ordinarily require of her a restitution bond before she is allowed to take possession of property specifically bequeathed in the absence of a special showing of impending danger or loss. No such showing has been made herein.
As between her and testator’s brother, who is the remainder-man, both can be regarded for present purposes as contingent owners and as tenants in common, excepting that one has some preferential right of actual possession. Both have the right to become owner absolute as the event may prove to be. There is a definite overweight of authority for inferring from a legacy of possessive use, with such proprietary rights or powers attached, that testator did not intend that, ordinarily, one of such co-owners should be obliged to give a restitution bond to his co-owner. The only obligation the law ordinarily imposes on a co-owner in actual, exclusive possession, is the payment of ordinary, current charges as aforesaid. The one so in possession is bound to handle the property with ordinary care, and not subject it to unreasonable use or to waste.
For the reasons aforesaid I conclude that the petitioner is not entitled to the relief sought, and that the devisee, Mrs. Remington, should be allowed to take possession of the house, lot and house furnishings without giving a restitution or other bond until the further order of the court in the premises.
On notice to counsel appearing, submit for signature and entry a decree in accord with this decision.
