48 A.D. 594 | N.Y. App. Div. | 1900
The decree was made and entered upon the judicial accounting by the executors. The testator, by his will, gave to his daughter Lizzie L. Ungricli all the rents and income of certain houses on the northwest corner of East One Hundred and Twelfth street and Third avenue, in the borough of Manhattan, Hew York city, during the life of his wife Eliza Schwarz, and on her death the premises and buildings thereon to said daughter absolutely. He then made provision for his wife in these words: “ I give to my wife Eliza Schwarz all the rents, income and interest of all the remainder of my real and personal estate during her life, with the custody and possession of all personal property of which 1 may die 'possessed.” Upon the death of the wife he gave one-half of his real and personal estate to his daughter Lizzie L. Ungricli, less one-lialf the value of the real estate already given to her, in order to secure equality in the division, and the other half to his executors and trustees in trust for his daughter-in-law Julia Schwarz during her husband’s life, and at his death to be divided equally among their children. The appellants Louis Ungricli and Kossuth Ungricli are named as executors and trustees, with power of sale of the real estate not specifically devised, after the death of the wdfe.
On the accounting the widow claimed the right to the possession of the personal estate by virtue of the terms of the will. This claim was resisted by the executors on the ground, among others, that she had declared her intention to give away a portion of the estate. This she denied under oath, and after personally examining one of the executors upon the subject, the learned surrogate decided that “ the decree may provide for the turning over to the life tenant of the property bequeathed to her without requiring her to give any bond.” The appeal is taken from that portion of the decree made upon the accounting, which requires the executors to deliver to the widow the possession of the personal securities of the estate in accordance with such decision.
To the like effect is the opinion in Matter of McDougall (141 N. Y. 21, 26), where Judge Peokham said: “In other cases where it has been held that the legatee was entitled unconditionally to the possession of the legacy without security, other facts existed, such as where the language of the will made it manifest that the testator intended t'o give to the legatee power to use in his discretion some portion of the corpus of his estate for his support, or a right to dispose of it during his life by gift or otherwise, or else it appeared that it was personal property of the nature of chattels which would require possession in order to enjoy the gift, and such possession was clearly contemplated by the testator, or the whole
By the clear and unambiguous terms of the will the testator has made his wife the testamentary trustee of the principal of his personal estate for life. In addition to the income and interest he has given her also the “ custody and possession ” of the personal property. She is, therefore, entitled to such custody and' possession as such trustee, and can no more be required to give security as a matter of course than the appellant executors could be required to give security as a condition precedent to the execution of the trust reposed in them. “ Before making an order for such security,” said the court in Matter of Petition of Camp (126 N. Y. 377, 385), “ there must be some fact alleged and proved tending to show the property would be unsafe and insecure in the hands of the tenant for life. (1 Sto. Eq. Jur. § 604 and note ; Hudson v. Wadsworth, 8 Conn. 348; Langworthy v. Chadwick, 13 id. 42; Clarke v. Terry, 34 id. 176.) ” Undoubtedly this security may be required at any time when facts of improvidence, incompetency, insolvency or other condition may disclose a menace to the rights of the remaindermen ; but no such condition was disclosed in the court below. The testator’s estate amounts to between §300,000 and §400,000, and the widow receives all the income excepting what is devised to the daughter, and as there is no claim that she is indebted in any way, there can be no pretense of insolvency. On the question of her intention to dispose of the principal of the personal estate there was no proof against her on the oral examination of the executor. Hé testified that she had asked for certain money then on deposit, and stated that “ she wanted to make some presents to some people, mentioning the names.” This does not necessarily conflict with her sworn statement that she “ may have stated that she intended to
The decree should be affirmed, with costs to all parties out of the estate.
All concurred.
Decree of the Surrogate’s Court of New York county affirmed, with costs to all parties payable out of the fund.