110 N.Y.S. 694 | N.Y. App. Div. | 1908
Lead Opinion
By the will of the testatrix legacies aggregating $18,900 in' amount were given to various persons. On the accounting it was
All concurred, except Kellogg, J., dissenting in opinion.
Dissenting Opinion
In Scofield v. Adams (12 Hun, 366), after giving the husband certain furniture, the will provided for the payment to him “ for his comfort and benefit ” the income of $5,000 during life, with a right to use parts of the principal therefor, and this provision was held not to abate with the other legacies. In that record there was nothing to show whether the husband had other means of support or not. The decision rested solely upon the terms of the will. Here the trustee is to invest $5,000 and use the interest “ for the care, support and maintenance of my said beloved sister.” The testatrix recognized the necessity of a provision for the support of the sister and the propriety of having that support handed out to her from time to time by a trustee. The bare fact that the will contains a general legacy of $2,500 to this same beneficiary does not show that she is otherwise provided for in a manner which will affect her rights under this provision of the will. The deficiency in the estate, by the surrogate’s decree, has cut that provision down to $1,674.40, and if this $5,000 is held not to abate she will receive but about one-half of the legacy. It cannot, therefore, be said that her support and maintenance for life is otherwise provided for. If she had other means, or her age and condition were such that the $2,500, diminished as suggested, is a sufficient provision for her support and maintenance, that fact should have appeared from the evidence. The testatrix had the right to dispose of her property in her own way, and knew the circumstances and condition of her sister,
But it is manifest that the gift of that sum to the executor and his family after the death of the sister abates with the other legacies. It was unnecessary for the sister to appeal as the fund is in the hands of a trustee of an express trust for her, and he has appealed, and upon that appeal her rights and the rights of all concerned must be protected. It is not known how long she will live, and it is possible that she would receive more under the surrogate’s decree than she would under the construction here given to the will; but it is immaterial whether she or the estate will be benefited. The executor and trustee represents all the interests, and it is his duty to see that the estate is administered according to the intent of the testatrix as appears from her will. The executor and trustee, therefore, properly appeals, and the silence of the sister cannot affect his duties or the interests of the other parties in this estate.
The decree, therefore, should be modified by directing that during the lifetime of the sister the $5,000 legacy shall not abate, but that said $5,000 shall be invested for her benefit, and after the death of the sister the other legatees, or any of them, may make an application to the surrogate for such part of said $5,000 as they may be entitled to, the legacy being treated as a general legacy after her death, and as thus modified the decree should be affirmed, with costs to the appellant to be paid from the estate.
Decree affirmed, with costs to both parties payable out of the estate.