130 N.Y.S. 191 | N.Y. Sur. Ct. | 1911
The referee to whom was referred the accounts of the executors and trustees under the last will and testament of James C. Brower, deceased, has filed his report, to which the contestants have filed certain objections. This motion is made by the executors and trustees to confirm the report.
The decedent, James C. Brewer, died in the county of
By the terms of the will, the decedent, after making certain specific bequests, devised the whole of his estate to his trustees named, to be held in trust for the benefit of his widow, one of the petitioners herein, setting apart a fund of $10,000 which was to be held by his trustees for the use and benefit of the testator’s adopted son during his life; and such will provided that, upon the death of his widow, his trustees were to set aside an additional sum of $100,000 during the life of the adopted son, and to pay the income therefrom during his life, if he survived the testator’s widow, to him. The remainder was to be distributed between the decedent’s niece and nephew in the proportion of one-third and two-thirds, respectively. The decedent’s adopted son is now dead. It appears that the decedent’s estate consisted largely of real estate. By the will, the executors and trustees are ordered, within three years after the death of the testator, if possible, to sell all the real estate, with certain small exceptions, “ at public or private sale, at such time or times and upon such terms as to them shall seem wise.” The contestants insist that the executors and trustees sacrificed certain of the real estate by selling the same at a grossly inadequate price and not at the fair market price, thus causing a serious loss to the estate. I have carefully examined the record made before the learned referee, and I conclude that his decision upon this matter was entirely justified by the evidence. Instead of selling within three years, the executors and trustees did not sell until some six years, seeking during that time to obtain purchasers ; and, far from causing any loss that could be criticised, the carrying charges for the real estate were borne by the widow out of her income. The experts produced by the rep
As regards the Knickerbocker bond. This, it seems to me, was clearly an asset difficult of disposition and of doubtful value, and the sum of money received, namely, $815.90, was a fortunate solution of a serious problem, being the proceeds of the insurance on the vessel owned by the Knickerbocker Steamboat Company. I hold, therefore, the executors are to be held for no loss arising from any act of theirs regarding this item.
As regards the taxes on the life estate of James C. Brower, Jr., the contestants claim that it was the duty of the trustees, before making a payment to the beneficiary, to deduct taxes
As to the other objections, I feel that no extended argument is necessary and that the learned referee did not'err in his conclusions.
An interesting point arises, and a novel one, too, in this State, upon the question of the costs. The executors claim that they are entitled, under sections 2561 and 2562 and the supplemental section, 2559, to costs, and that these costs are chargeable on the general fund. The contestants insist that the expenses of this accounting should be borne by the life tenant, basing their demand upon the decree entered May 6, 1905, in the Surrogate’s Court in the matter of the first accounting, where a certain stipulation was entered into between the parties by which it was agreed that all future administrative expenses should be borne by the life estate. It becomes necessary for me, therefore, to decide whether the costs and expenses of this accounting should be paid entirely from the income. The life tenant did not make any contest. The entire contest was made by the remainderman. In the construction of the stipulation above referred to, was it intended that these costs and expenses should be paid from the principal or from the income? In Matter of Seagrist, 1 App.
Finally, as to the fund of $100,000 set aside under the will (twelfth clause), in trust during the life of his adopted son, James C. Brower, Jr., there can be no question that the trustees should pay this money to those clearly entitled thereto (and they would clearly seem to be the two remaindermen mentioned in the will), with interest from the date of the death of the life tenant. The motion is granted, with costs from the general fund.
Motion granted.