65 N.Y.S. 907 | N.Y. App. Div. | 1900
The executor to whom letters testamentary of the estate of Margaret Lavery had been issued presented his accounts to the sur-, rogate for settlement, and creditors of the estate filed objections to the accounts, based upon the failure of the executor to charge himself with various sums of money received from benevolent associations which became payable to the testatrix as widow of John Lavery, deceased. The questions presented on the accounting were referred to a referee. It appeared from the testimony before the referee that the executor received from two benevolent associations the sum of about $5,998 ;. that John Lavery died on the 10th of December, 1897, and Margaret Lavery, his wife, the testatrix, on the 22d of December, 1897 ; that they left four infant children, who are the appellants in this proceeding and who were parties to the accounting. The executor qualified on the 29th day of January, 1898, and he also qualified as testamentary guardian of these four infant appellants on the same day, and subsequently received the amounts payable by the benevolent associations which he held as guardian for the infant appellants. There were two benevolent associations; one, known as the Catholic Benevolent Legion and the other the Royal Arcanum, of both of which John Lavery was a member. After the death of John Lavery proof of loss was furnished to these associations. It further appeared that a certificate of membership of the Catholic Benevolent Legion had been issued to John Lavery, and that Margaret Lavery, his wife, was named as beneficiary in said certificate. The benefit payable on the death of
There were introduced in evidence two instruments executed on December 17, 1897, by Margaret Lavery, and duly acknowledged, by one of which she sold, assigned and transferred unto Henry McAleenan, as “ trustee for my children, Mary, Catharine, Daniel and Margaret Lavery, all my right, title and interest to the benefit certificate Number 18,753 of the Catholic Benevolent Legion, and hereby authorize him to collect the insurance money due me thereunder from the Supreme Council of the Catholic Benevolent Legion, or from whatever source the same is payable to me.” The other instrument was in substantially the same form, and sold, assigned and transferred her right, title and interest in and to the benefit certificate issued by the society known as the Royal Arcanum of the city, of New York. It appeared that when these instruments were executed by the testatrix she stated to her attorney who drew them that she wanted this money to go to her children ; that after she executed them she- handed them back to her attorney, who said, “ Mrs. Lavery, I will hand these to Mr. McAleenan ? ” and she said “ Yes.” The constitution of the Royal Arcanum provides that “in case of the death of the person or persons named in the order before delivery is made, the order shall be returned to the Supreme Secretary with a statement of the facts signed by the Regent, Treasurer and Secretary, under seal, and a new order shall be drawn, payable to the person or persons entitled to the benefit.”
Upon this evidence the referee found that prior to the decease of Margaret Lavery, subsequent to the death of John Lavery, and before the collection by Margaret of the benefits which she was then entitled to receive from the Catholic Benevolent Legion and the Royal Arcanum respectively, she made and executed two instru
To this report the creditors filed exceptions which, coming on before the surrogate, were sustained, the surrogate holding that the moneys paid by these associations were exempt from the claims of the creditors of John Lavery, and were also exempt from the claims of the creditors of Margaret Lavery until they were actually paid,
There were no findings by the surrogate, and it is claimed by the respondent that in the absence of exceptions filed by the appellants, no question is presented to the appellate court for review. We think, however, that this claim cannot be sustained. The facts were found by the referee and they stand in place of a finding of fact by the surrogate. The surrogate did not disturb these findings of fact, but upon the facts found by the referee sustained the exceptions to his conclusion of law that the executor was not chargeable with these sums received from these benevolent associations. Flo exception to that conclusion of law was possible, as no separate findings were made by the surrogate. Upon the appeal from the decree the question is presented as to whether the surrogate correctly determined the question of law.
The cases relied on by the respondents do not apply. In Matter of Bradway (74 Hun, 630) the appeal was from the decree which sustained an exception to a finding of fact by the referee, and it was held that under those circumstances a mere appeal from a decree brings up no question for review. That decision was based upon Matter of Sprague (125 N. Y. 732) where the court said that the record did not contain any exceptions to the findings or to the decision of the surrogate. But that case was tried by the surrogate, who made no findings, and, consequently, neither the General Term nor the Court of Appeals could review the decision of the surrogate upon the facts. In Matter of Yetter (44 App. Div. 408) we held that when a referee is ordered to hear and determine there is no trial before the surrogate within section 2545 of the Code. Here the facts were found by the referee and adopted by the surrogate •as the basis of his decree, the question being one of law, as upon the facts found by the referee the surrogate by his decree charged the executor with the amount of these benefits paid by the benevolent associations.
It follows that the decree of the surrogate surcharging the executor with moneys which formed no part of the estate of the testatrix at the time of her death, and sustaining the exceptions to the referee’s report must be reversed, with costs to the executor and the guardian ad litem to be paid out of the estate, and the case remitted to the surrogate to settle the accounts of the executor in conformity with the views before expressed.'
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Decree reversed, with costs to the executor and guardian ad litem, and to be paid out of the estate and case remitted to the surrogate as directed in opinion.