130 Misc. 285 | N.Y. Sur. Ct. | 1927
Louise A. Burrill (called Richardson in a Supreme Court action to which reference is hereinafter made) was a housekeeper in decedent’s home in Harlem. On the wall inside the front door of the home hung a wooden sign which read as follows:
Now, three days after the probate of the will the executors paid and Mrs. Burrill accepted fifty dollars on account of the legacy. Six months later, on September 24, 1889, she commenced an action in the Supreme Court under the name of “ Louisa Ann Richardson ” for admeasurement of dower in forty parcels of real estate, many of which had been conveyed by testator in his fife-time to purchasers under warranty deeds which contained recitals that he was a widower. In her complaint she alleged that she had been for upwards of twenty years the wife of Richardson and had lived and cohabited with him as such. In connection with this action a lis pendens was filed against all of said real estate. At the time of Richardson’s death the real estate was mortgaged up to $900,000 and there were judgments against him for $124,000 for which a blanket mortgage had been given. The lis pendens having been filed, it was impossible to sell any of the realty. Mortgagees were threatening foreclosure and one, Connecticut^ Mutual Life Insurance Company, began a foreclosure action. In the face of the conditions surrounding the estate it is plain that the action for dower was calculated to endanger the whole estate and almost precipitate insolvency. Numerous motions in this action followed and finally all the heirs at law and next of kin requested the executors to settle the claim for dower and all joined in the execution of a bond and three mortgages upon the real property of the estate to secure the payment of the amount named in the settlement, viz., $50,000. The executors paid $5,000 on account of the principal of the mortgage and later paid the balance of $45,000. This latter amount was, in fact, borrowed money, the estate lacking funds at the time with which to make the payment.
By an order entered on March 21, 1891, the action was by consent of all the parties discontinued and in the agreement to discontinue the claimant released the estate forever from “ all her
The statute by its terms started to run against the collection of this legacy by suit at the time of the first accounting which was in 1893. In this accounting Louise Burrill was cited as a necessary party. No objection was interposed by her at that time that there was no provision made for the payment of this legacy to her and the Statute of Limitations started to run against the collection of this legacy at that time. The contention of the objectant that the first accounting was not a final accounting is untenable for the reason that section 146 of the Decedent Estate Law does not limit the application of the statute to a final accounting. (3) The objectant Mary Frances Campbell, her testator and his assignor have been guilty of inexcusable laches in pressing the claim to the legacy. In this connection it should be borne in mind that the will was admitted to probate March 19, 1889. Moreover the first accounting was had in 1893. The action for dower was begun in 1889 and discontinued March 2, 1891. There is nothing in the record to show any attempt on the part of Mrs. Burrill to claim, demand payment of or collect the legacy at any time. Four years afterward, viz., in 1895, she assigned the legacy to Campbell. He made an oral demand for the payment of the legacy in that year and payment was refused. Thirty years and more elapsed since that refusal and not a move was made to press the payment of the legacy or the determining of the question. In this interim of thirty years eight different accountings were filed and so far as it appears in this record, Mrs. Burrill or her assignee, Campbell, was cited in each; yet not a voice was raised demanding payment of the legacy. It is unnecessary to discuss here in detail the method they could have adopted to compel payment or to force decision upon the question whether the legacy was in full force and effect. During these years and years of delay, the legatee, Mrs. Burrill, died, the executors died, Campbell died, other attorneys and other probable witnesses to the negotiation of the settlement of the dower action died. Surely equity should deny relief to parties