88 N.Y.S. 52 | N.Y. App. Div. | 1904
This proceeding was instituted upon the petition of the executor of the deceased testatrix for a voluntary accounting, filed October 16, 1902. ,The testatrix died in March, 1901, and her will, relating both to real and personal property, was duly probated in the Surrogate’s Court of NNew York county, and letters testamentary thereupon issued to John B. Ryer, as executor named in the will. By the terms of her will the testatrix bequeathed substantially all of her personal estate to her testamentary trustees named in the will in trust to hold, invest and reinvest the principal and to receive, hold and disburse the income therefrom for the purposes mentioned in the will. The personal property not bequeathed to the trustees consisted of household goods, jewelry, silverware, horses, vehicles and property of a similar nature. Ho special. power or authority was given to the executor by any of the provisions of the will. At the time of the testatrix’s death she was the owner and holder of twenty-eight bonds and mortgages upon real estate, amounting in the aggregate to $39,350. These bonds and mortgages came to the hands of the executor, who within a year after his appointment had called in and collected the principal of twenty-three of the mortgages, receiving as the proceeds thereof $30,500. This left five of the original bonds and mortgages uncollected: It was not necessary in the díte course of administration of the estate to call in and collect these bonds and mortgages and the proceeds were not needed to pay debts or expenses. Of the funds thus received the executor invested $29,000 in new bonds and mortgages, which are now in his possession and under his control. Hone of the original twenty-eight bonds and mortgages were delivered to the testamentary ’ trustees and they never had possession or control of the same. In July, 1901, the trustees applied to the Surrogate’s Oourt for an order directing the executor to turn over all of the original mortgages to them. This applica
The executor should be vested by the trustees with title to these mortgages in order, if necessary, that he may make use of them to raise the cash, and thus comply with the decree. This court has recently held that under such circumstances the decree should contain such a provision. (Matter of Maitland, 81 App. Div. 633.) In all other respects we think the report of the referee and the decree rendered Upon its confirmation by the surrogate is correct, and should be affirmed.
It follows that the decree should be modified as indicated in this opinion, and as modified affirmed, with costs of this appeal to all parties payable out of the estate.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Decree modified as directed in opinion, and as modified affirmed, with costs of appeal to all parties payable out of the estate.