176 Misc. 362 | N.Y. Sur. Ct. | 1941
In this proceeding to settle the accounts of the sole surviving trustee of deceased two objections were filed by the executors of the deceased trustee who died May 10, 1940. Objection 1 has been marked withdrawn on the basis of a writing filed November 25, 1940. The second objection relates to the manner of disposition of a fund owned by the deceased trustee which came to him by reason of his exercise of his right under section 17 of the Decedent Estate Law to limit the amount of property which the deceased could bequeath to charity. The value .of the deceased trustee’s interest in the fund was fixed by decision of this court. (Matter of Voelker, 158 Misc. 97.) It was there stated and later embodied in a decree that the intestate property should be earmarked and at the end of the trust period should be distributed to the estate of the deceased trustee unless by assignment or by will he should make other disposition thereof. Subsequent to this determination the deceased trustee executed a codicil to his will whichj
The trustee proposes directly to distribute the particular fund owned by the deceased trustee in correct proportions to the legatees named in paragraph tenth of the deceased trustee’s will. The deceased trustee’s executors, on the other hand, ask the court to direct the accounting trustee to pay the money to them so that they in turn may apply it pursuant to the terms of the will. No claim is made that the deceased trustee has creditors or claimants for funeral expenses who cannot be satisfied from his assets apart from this particular fund over which he had the power which he exercised to make a disposition. Moreover, there is no claim made by objectants that the estate of the deceased trustee lacks the two dollars necessary to pay the legacies provided by paragraph ninth of his will.
Whether direct distribution can be made to the legatees of the deceased trustee by the accounting trustee depends in the first place on whether the deceased trustee made a specific bequest by the quoted text of his codicil.- The deceased trustee there gave earmarked property, or so much of it as might remain after its application to paymeht of his debts, funeral expenses and two small legacies, to several legatees entitled to participate in the fund according to certain percentages. The circumstance that this fund might be diminished by the requirement that it should satisfy certain charges does not prevent a finding that a specific gift was made by the deceased trustee. All specific bequests are available if need be to satisfy creditors, for example, but such application of specific subject-matter to payment of debts which must otherwise remain unpaid would not destroy the specific character of a bequest which was otherwise unquestionably specific. For a specific legacy, furthermore, it is not requisite that its recipient shall be a single legatee. “A specific legacy is'a.bequest of a specified
Here, too, there is no bequest made in the nature of a general legacy. The deceased trustee merely directs payment to certain legatees of shares in a particular fund. Consequently the gift is specific.
Submit, on notice, decree settling the account accordingly.