In re the Judicial Settlement of the Account of Robinson

2 Mills Surr. 516 | N.Y. Sur. Ct. | 1902

Thomas, S.

— Tbe legacy of tbe mortgage for $25,000, contained' in tbe will of Daniel W. Robinson, to Ida R. Adams, subject to the income thereof being paid to his wife during her life, was specific and not general. Walton v. Walton, 7 Johns. Ch. 258; Crawford v. McCarthy, 159 N. Y. 514. The legal title to tbe mortgage, subject to tbe life interest of tbe wife, passed directly from tbe testator to tbe legatee, it appearing that the estate of tbe testator was solvent and that tbe executrix did not have any title based upon her right and duty to provide for payment of debts. Blood v. Kane, 130 N. Y. 514. On tbe death of tbe widow, who was also tbe executrix and residuary legatee, and whose estate is now being administered, tbe mortgage could properly have been satisfied by payment to Ida R. Adams. Tbe fact that Ida It. Adams was then an infant, and that her general guardian was also tbe mortgagor, did not divest tbe title of the security out o£ her, or make it legally necessary to have an administrator with the will annexed of Daniel W. Robinson appointed. Such appointment was not necessary for tbe administration of tbe estate of Daniel W. Robinson, -and no compensation for procuring - it can be awarded so as to make it payable out of assets properly converted by the deceased executrix to her own use, in aeordanee with her rights as residuary legatee. Tbe legacy of tbe mortgage being specific, no commissions on it can be allowed. Hall v. Tryon, 1 Dem. 296. The claim submitted on tbe stipulated facte is, therefore, disallowed.

Decreed accordingly.