106 N.Y.S. 851 | N.Y. Sur. Ct. | 1907
This controversy arises as to- the proper method to be pursued by the executor upon the final accounting herein, especially in computing the value of the life estate and with particular reference to the law of 1860 relating to charitable bequests.
William G. Taiman died in the county of Kings on November 9, 1900, leaving a last will and testament, which was duly admitted to probate; and letters testamentary thereunder were duly issued to Charles A. Runk who duly qualified. The testator left him surviving his wife, Frederika Talman, to whom he devised and bequeathed, after some few legacies, all his estate during her natural life; and at her death provided for a conversion of his entire estate into cash, making a large number of bequests to individual legatees and charitable institutions and corporations.
The widow died in March, 1906. In accordance with the direction contained in the will, the executor sold the real estate, thus reducing all the estate to cash and now seeks to make-his final accounting.
There are two questions presented to this court. Was the act of I860' violated ? and, what was the value of the life estate at the death of the testator ?
In making the computations, the result of which is set forth in his account, the executor has followed the law as laid down in the case of Matter of Teed, 59 Hun, 63, and also 76 id. 567, which case was followed in Rich v. Tiffany, 2 App. Div. 25.
The contestants insist that the executor erred in so preparing his account and in fixing the value of the life estate, and hold that the case of Hollis v. Drew Theological Seminary, 95 N. Y. 166, should have been his guide. In my opinion the executor was correct. The Teed case and the Tiffany case were both decided after and with knowledge of the decision of the Court of Appeals in, the Hollis case, supra, and they clearly set forth the method to be pursued in determining the question of the value of the life estate such as the one now under consideration. The
In the case at bar, all the events and facts that occurred during the existence of the life estate, actually necessary to the proper making up of a correct and detailed account, are known. It is not necessary to speculate, in the slightest degree; contingencies are eliminated and exactitude is secured. There is no intestacy as to this balance of $1,126.58 in the hands of the executor, after making his division, whereby the executor found the charitable legacies exceeded to that extent the one-half allowed by law. Code Civ. Pro., § 2721. Hntil all the valid legacies are paid, there are no assets as to which the testator could be deemed to have died intestate. The rule is well settled that general legacies must be paid in full before residuary legatees are entitled to anything and the general legacy should prevail over an intestacy. Wetmore v. St. Luke’s Hospital, 56 Hun, 313; Gilbert v. Taylor, 76 id. 92.
Interest should be allowed on all legacies from the date of the death of testator’s widow to the date of payment.
Decreed accordingly.