137 N.Y.S. 1010 | N.Y. App. Div. | 1912
This is an appeal from a decree of the Surrogate’s Court of Suffolk county, which settled the account of Laura E. Bow-land and Florence D. Bond, as executrices of the last will and testament of Adeline Garrison, deceased. There are two questions presented for decision on this appeal. The Brooklyn Trust Company., as trustee of . two-thirds of the residuary estate, objected to certain charges made by the executrices for
If the executrices have overpaid their respective counsel then they should not be allowed the moneys which they paid to expert witnesses on the accounting proceedings in an attempt to sustain their prior payments to counsel, and their account should be surcharged to that extent also. They have credited themselves with payment of additional counsel fees of $1,250 to each of two counsel who represented them on the contest in the accounting proceedings. The objections made by the' special guardian on the accounting as to the payment over to Mrs. Rowland of the corpús of the fund in which she had a life interest justified the services of counsel for executrices, but
This leaves for our consideration the question of the propriety of the decision of the Surrogate’s Court which overruled thé objection of the special guardian as to the custody of the fund set apart for the benefit of Mrs. Rowland during her lifetime.
While there are no express words in the will which direct the payment to Mrs. Rowland of the corpus of the fund in question, it is contended that the general scheme of the instrument shows plainly that such was the intention of the testatrix. The will of the testatrix appointed the respondents, Mrs. Rowland and Mrs. Bond, as executrices; it contained a number of specific devises and some general legacies. It provided for a distribution of the residue of the estate by two separate provisions. The first of these provisions (the 9th clause of the will) was in form as follows: “ I give, devise and bequeath unto said Laura E. Rowland, one-third of all the rest, residue and remainder of my estate less the sum of Ninety-two [thousand].... ($92,000) Dollars (she having already in her possession the sum of Forty-six thousand ($46,000) dollars, for and during the term of her natural life, and at her death to her descendants in equal shares per stirpes; and in the event of the death of said Laura E. Rowland, without leaving issue, I give, devise and bequeath the same to the heirs of said Sarah Garrison Sneden in equal shares per stirpes.” Then followed another clause in which the decedent gave to the Brooklyn Trust Company the residue of the estate under an express trust for the benefit of Leonard Bond and Florence Bond during their lives, with further remainders over to specified beneficiaries on the deaths of those having the life interest. It was the plain intent of the testatrix that her general residuary estate was to be distributed in shares which should be equal one-third shards, two of which were given under an express trust to the Brooklyn Trust Company for the benefit of the Bonds, and one of which was set apart for the benefit of Mrs. Rowland and her “descendants ” or “issue.” The interest of Mrs. Rowland as so created was a life interest in the income of the fund and did not carry with it any right to consume any portion of the principal. It is
We are of opinion, therefore, that the decree of the surrogate should be modified by disallowing the payments for counsel fees, etc., to the extent hereinbefore indicated, and that the account of the executrices should be surcharged accordingly, and that as thus modified the decree should be affirmed, with costs and disbursements to the appellant the Brooklyn Trust Company, and to the spécial guardian, payable out of the estate.
Jerks, P. J., Hirschberg, Burr and Thomas, JJ., concurred.