181 A.D. 642 | N.Y. App. Div. | 1918
Lead Opinion
The testator, Edwin 0. Brinckerhoff, by bis will executed October 2, 1875, gave one-half of his estate to a friend, Edward B. Livermore, who predeceased the testator, and the remaining one-half to four charitable corporations. On February 23, 1877, the testator was judicially declared an incompetent person and a committee of his person and estate was duly appointed. Such committee, with a substitution duly made in 1891, continued to act as such until the death of the testator on December 7, 1915. The testator was unmarried and was survived by the following next of kin: The appellants Evelina D. Clark, a sister of the half blood; Frederick W. Cooper, a son of a deceased sister of the whole blood; Louise B. Armstrong, a daughter of a deceased sister
Objections to the probate of the will were filed by the next of kin of decedent. In order to avoid a contest, an agreement dated February 14, 1916, was entered into between the four charitable corporations, to whom was bequeathed one-half the estate, and all of the next of kin, whereby it was provided that the objections filed to the probate should be withdrawn; that all parties should unite in procuring the probate of the will; that the collective share of the charitable corporations in the estate should be one-fourth of the residuary estate and the remaining one-fourth bequeathed to the charitable corporations should be distributed to the heirs at law and next of kin of the testator in the same manner as if he had died intestate with reference to such one-fourth share. On the judicial settlement of the account of the temporary administrator of the estate, and administrator with the will annexed, the question was raised: What is the proper method of distribution, taking into consideration the sums paid from surplus income of the estate of the testator during his lifetime to the appellants pursuant to the orders of the Supreme Court? Certain next of kin, who had not received allowances during testator’s lifetime, claimed that the legal plan of distribution was by charging these allowances against appellants and deducting them from their respective shares, thereby increasing the shares of the next of kin not having received any allowances under the doctrine of hotchpot. The learned surrogate upheld this plan of distribution in part upon the theory that under the civil law attached to the Surrogate’s Court, the surrogate has equitable power to decree a collatio bonorum. (99 Misc. Rep. 420.) The appellants appealed from the portions of the decree which charge such allowances against them.
The learned surrogate has written an erudite and extremely interesting opinion, tracing the origin and development of the rules of hotchpot and collatio bonorum, and, reasoning therefrom, finds a basis for the decision appealed from. As. a matter of fact, however, the distribution of and the right to take the property of a decedent is in this State regulated by statute.
It will aid a correct understanding of the controversy to
That the legal status of these allowances was that of gifts made during the lifetime of the testator is equally clear. The Supreme Court, in authorizing such allowances, acts as a court of equity, having .custody and control of the estate of the incompetent. (Sporza v. German Savings Bank, 192 N. Y. 8.) In so doing the court acts for the incompetent in reference to his estate as it supposes the incompetent would have acted if he had been of sound mind.
That the allowances in the Heeney case were gifts and not payments on account of applicants’ interests in the incompetent’s estate is, of course, obvious, for the beneficiaries were not related to the incompetent and not entitled to any interest in his estate. The chancellor ordered the payments to be made to them as gifts, just as the incompetent had made gifts to them during the period of his competency. This answers the suggestion of the respondents that for the court to make gifts out of the iucompetetit’s estate to persons-not entitled to any interest in the estate is illegal.
There are numerous other precedents upholding the legality of payments out of a lunatic’s surplus income to persons not entitled to any interest in his estate.
In Matter of Strickland ([1871] L. B. 6 Ch. App. Cases, 226) committee of a lunatic was authorized to contribute £500 from the lunatic’s surplus income toward the building of a school and church.
In Matter of Earl of Carysfort ([1840] Craig. & P. 76) Lord Cottenham granted an allowance to an old personal servant, being satisfied that the allowance was one which the incompetent himself would have approved had he been capable of acting. The servant had no prospective interest
In Ex parte Whitbread ([1816] 2 Her. 99) Lord Eldon, in discussing the reasons for granting allowances out of the estates of lunatics, said (pp. 102, 103): “ But the Court does not do this because, if the Lunatic were to die tomorrow, they would be entitled. to the entire distribution of his estate * * * and if we get to the principle, we find that it is not because the parties are next of kin of the Lunatic, or, as such, have any right to an allowance, but because the Court will not refuse to do, for the benefit of the Lunatic, that which it is probable the Lunatic himself would have done.”
Further showing that the legal status of such allowances is that of a gift, Cotton, L. J., said, in Matter of Whitaker ([1889] 42 Ch. Div. 119, 126): “ Undoubtedly the court has jurisdiction to do that, because we often (although not to so large an amount as this) give, out of the personal estate of a lunatic that which is mere bounty on his part when we see that it is in accordance with his views and his declarations before he became lunatic. That generally occurs in the case of charities where the lunatic has himself, while he was of sound mind, supported institutions of a charitable nature, and we continue that support, and perform for him when he becomes a lunatic that which we can see was his own intention while of sound mind.”
In Shelford on Lunatics (pp. 101, 159) the author says: “ There are instances in which the court has, in its allowances to the relations of the lunatic, gone to a further distance than grandchildren — to brothers and to other collateral kindred; but the principle is not because the parties are next of kin of the lunatic, or as such have any right to the allowance, but because the court will not refuse to do for the benefit of the lunatic that which it is probable the lunatic himself would have done.”
Now, then, if these allowances were gifts, as it must be apparent they were, they belonged to the donees when paid. It was, of course, entirely competent for the Supreme Court, in equity, to impose as terms for granting the petitions for equitable relief a stipulation that the petitioners would agree
With reference to the rules of hotchpot and collatio bonorum, it may be observed that, strictly speaking, there was at common
In equity hotchpot was the name given to the rule “ whereby a person, interested along with others in a common fund, and having already received something in the same interest, is required to surrender what has been so acquired into the common fund, on pain of being excluded from the distribution.” (Ency. Britanniea, vol. 13, p. 803.)
The term is also used in a more circumscribed sense in connection with the Statute of Distributions, as appears in a definition of the word by Bouvier: “ The bringing together all the personal estate of the deceased, with the advancements he has made to his children, in order that the same may be divided agreeably to the provisions of the statute for the distribution of intestates’ estates.” (Bouv. Law Dict. [Rawle’s Rev.] 963.)
“ The same principle is to be found in the collatio bonorwn of the Roman law; emancipated children, in order to share the inheritance of their father with the children unemancipated, were required to bring their property into the common fund.” (Ency. Britannica, vol. 13, p. 803.)
The surrogate in arguing that the doctrine of collatio bonorwn is part of the system of English equity jurisprudence which is to be applied in this State in the absence of statute, says: “ If the record of the judgments of the clerical chancellors were extant, I am persuaded that it would disclose that the civil law of collatio bonorwn was not only argumentatively authoritative in our equity, but absolutely binding and a source of law.” And again: “ That courts of equity would, in an administrative suit, quite independently of ‘ hotchpot ’ or the Statute of Distributions, compel the recipients of advances to bring back the sums advanced into the-account on a general-distribution there can'be no doubt.
It is apparent that the former quotation is merely an expression of opinion and the latter carries its own refutation, because the cases all use the term “ hotchpot ” and make no mention of collatio bonorum, and the editor above referred to undoubtedly meant what he said. Both the cases cited by the learned surrogate state the proposition that the theory of hotchpot will be applied in relation to the Statute of Distributions where advancement was by way of marriage settlement to a child. There is no distinct equity principle involved in these cases, but merely the doctrine of hotchpot as above defined in the interpretation of the Statute of Distributions.
But if it be assumed that the doctrine of collatio bonorum applies in this State, being inherited from the civil law through . English chancery, this would not support the surrogate’s conclusion, since the doctrine of collatio bonorum is applicable only to cases where advances were made to children (Domats Civil Law by Strahan. [Cushing’s ed.], vol. 2, p. 249) and probably only in cases of intestacy.
However, there is little doubt that the effect of hotchpot and collatio bonorum is the same, and at the present time the use of the terms seems to be interchangeable, the basic theory of each being equality among children of the intestate. The Legislature has provided cases where the principle of hotchpot is applicable in the distribution of decedents’ property in section 99 of the Decedent Estate Law, and if it had intended the principle to apply to other cases, there would be a statute expressing such intention.
•The learned surrogate, however, preferred not to rest his decision on the right of the Surrogate’s Court, in the absence of statute, to decree a collatio bonorum, but advanced another ingenious ground. Conceding that the Surrogate’s Court could not invalidate the orders of the Supreme Court awarding
It follows that the parts of the decree appealed from' should be reversed, with costs, and the decree modified by providing that the payments made to the appellants should not be treated as advancements or charged against appellants.
Clarke, P. J., and Page, J., concurred; Scott and Laughlin, JJ., dissented.
Dissenting Opinion
I am unable to concur in the opinion adopted by the majority of the court. So far as regards the history of the practice which has grown up of making payments out of the estate of incompetents to persons or objects to which it is assumed that he would himself have made payments, if competent, there is nothing to be added to the learned opinion of Mr. Surrogate Fowler (99 Misc. Rep. 420), and I should be content to rest my dissent upon that opinion but for the fact that it appears to be assumed by a majority of my associates that the surrogate, by the order appealed from, has in some way undertaken to review and modify the orders of the Supreme Court which permitted the payments to be made to the incompetent’s next of kin. I do not understand that the surrogate’s order is open to any such imputation. The orders of the Supreme Court did not undertake to pass in any way upon the question as to whether or not such payments should be taken
Laughlin, J., concurred.
Decree so far as appealed from reversed and decree modified as stated in opinion. Order to be settled on notice.