64 N.Y.S. 455 | N.Y. App. Div. | 1900
By the will of John B. Roffo, Mary Roffo, his widow, upon his decease, became entitled to the use during her life of whatever property he left. The widow and 'an • unmarried daughter, were his executrices. He died in August, 1887,‘and his will was thereupon admitted to probate' and letters testamentary issued. The property seems to have been managed by the widow although the securities and money were kept in the names of the executrices. No settlement was had during the lifetime oi die widow. After her death, which occurred in January, 1899, a judicial settlement of the account of the surviving executrix was had in the Surrogate’s Court of Erie county, and the decree adjusting the same entered and the appeal was taken from a portion thereof. '
Upon the death of the widow an undivided one-half of ,liis estate-passed to Julia Oishei “ for and during the term of her natural life” with 6the use and enjoyment, rents, issues and profits” thereof, and upon the decease of the said daughter the corpus of the property is to pass to her children then living.
A like bequest and devise was made to Millie Roffo with a
Julia Oishei has seven minor children, and Millie Roffo at the time of the entry of the-decree .was unmarried.. The personal estate remaining in the custody of the surviving executrix, after the payment of the expenses of administration and the commissions, amounts-, to $30,141.99. Julia Oishei demanded the transfer and payment to her of one-lialf of this amount and the decree directs this to be done upon the execution of a bond with two sureties in the penalty of $15,200, to be approved by the surrogate. This was a very proper requirement and the only criticism that can be given to the determination of the Surrogate’s Court is its leniency in permitting the penalty of the bond to be only in the sum of the property transferred instead of double that sum as is- usual. Inasmuch as the question of the inadequacy of the penalty prescribed has not been raised, we do not feel called upon to interfere with the disposition made by that court. In the decision of matters of this kind the interests of the ultimate beneficiaries are the controlling-factors for the court to consider, and in this case if this property is. to be turned over to Julia Oishei to manage and' control, certainly her children should be assured of its passing to them undiminished upon the termination of her life tenancy.
It is not entirely clear that it was the intention of the testator to permit each of these daughters to have the possession of one-lialf of the personal estate upon the death of their mother. In any event, the transfer ought not to be made until adequate security has been given for the return of the principal. (Matter of McDougall, 141 N. Y. 21; Livingston v. Murray, 68 id. 485 ; Matter of Grant, 86 Hun, 617.)
The decree directs that, in the event of the surviving executrix - paying over to herself the one-half to which she is entitled during life, she also give a bond with a like penalty to that prescribed for her sister Julia. This permits the executrix to retain the custody of this fund, and without security, as well as that of the one-half going to the sister, unless the latter elects to give the bond required. Millie Roffo is the only remaining executrix, and the personal prop
The decree of the Surrogate’s Court should be affirmed, with costs of the respondent, including the special guardian on this appeal, to be paid out of the estate, but without prejudice to an application to the Surrogate’s Court requiring the executrix- to give security as above indicated.
All concurred.
Decree of the Surrogate’s Court affirmed, with costs, to the respondent and special guardian, payable out of the estate.
