179 A.D. 431 | N.Y. App. Div. | 1917
Jessé Owen died in the year 1900, leaving a will containing the following provision: “After all my lawful debts are paid and discharged, I .give, bequeath, and devise to my wife, Emily B. Owen, all of my real and personal estate, that I may die possessed of, during her lifetime, with the power of disposing of the personalty with a view to her personal use and maintenance; with remainder over in fee to my daughter, Minnie W. Frost, to her and her heirs forever.” The daughter of the testator, Mrs. Frost, the wife of the appellant, was named as sole executrix of the will. She qualified and continued in the performance of her duties as such executrix until her death in the year 1903. She never had any accounting. After her death, and in the year 1903, the appellant, Mr. Frost, and Samuel Thorp were appointed administrators with the will annexed. Mr. Thorp appears not to have taken any active part in the administration of the estate and died in the year 1910. Neither administrator with the will annexed ever had any accounting until the present proceeding was' instituted in the year 1916 on the petition of Emily B. Owen, the widow of the testator. After the death of Mr. Owen his widow took up her residence in the home of Mr. Frost, consisting of himself, his wife, and son and daughter. Within a few months after the death of Mr. Owen they moved into a residence owned by Mrs. Owen,
In his account the appellant charges himself with $13,438.87 as the principal of the estate, and $9,516.65 as interest thereon and credits himself with payments of $16,730.43. These payments were mainly for household and living expenses of the family of Mr. Frost including Mrs. Owen during all the years when he was administering the estate and are sought to be justified on the theory that Mrs. Owen expressly authorized him to pay the household and family expenses out of her income. It also appears that she during the same period received as her share of the income of the said farm $4,930.01 which was turned over to Mr. Frost and mingled with the income of the estate and was all used for the common purpose of supporting the family and paying their living expenses. Produce in kind was likewise supplied from the farm from time to time for the use of the family
The surrogate sustained the objections to the family living expenses and after taking into consideration what had been received by Mr. Frost both from the income of the estate and from the income of the farm charged him with a balance of income on hand of $6,261.66. This balance of income the decree directs the appellant to pay over to Mrs. Owen. It also directs him to turn over to her the principal of the estate consisting of cash, securities, furniture, and other property, and to deliver to her a deed of a fife estate in certain real property to which he as administrator had taken title under mortgages held by the estate.
There is no serious contention that all of the income belonging to Mrs. Owen which came into the hands of Mr. Frost has been used by him in the manner claimed for the expenses of the family and for their support and maintenance. The question before the surrogate was whether such expendi
The decree is also criticised because it directs that the corpus of the estate be turned over to Mrs. Owen unconditionally. 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 ás a general rule entitled to the custody of the fund without security. (Matter of McDougall, 141 N. Y. 21, 26; Matter of Grant, 40 N. Y. St. Repr. 944; Matter of Ungrich, 48 App. Div. 594.) But the authorities likewise recognize the principle that provision may be made for the adequate protection of the corpus of the estate in any case when the circumstances disclose a menace to the rights of the remainderman. {Matter of Ungrich, 48 App. Div. 594, 597; Getman v. McMahon, 30 Hun, 531; Smith v. Van Ostrand, 64 N. Y. 278, 286.) In this case a proper safeguarding of the fund requires in "the discretion of the court that it should not be delivered to respondent. No injustice will result to any one, but an injustice may be obviated by such precaution. The decree should, therefore, be further modified so as to direct that the money
The decree should be modified in accordance with this opinion and as so modified affirmed, with costs to both parties payable out of the estate. The court disapproves the ninth, tenth, fourteenth and fifteenth findings of fact as made by the surrogate and finds that all of the income of the estate received by the appellant has been disbursed by him with the authority and consent of the respondent.
All concurred.
Decree modified in accordance with opinion, and as so modified unanimously affirmed, with costs to both parties payable out of the estate. The court disapproves the ninth, tenth, fourteenth and fifteenth findings of fact as made by the surrogate, and finds that all of the income of the estate received by the appellant has been disbursed by him with the authority and consent of the respondent.