2 Mills Surr. 254 | N.Y. Sur. Ct. | 1901
This is a proceeding instituted by Emeline Fiddle, the executrix of the last will and testament of hlar-vin W. Fiddle, deceased, to sell the real estate of the testator to pay debts. On the return of the citation Frances J. Fiddle, the widow of the testator, and who is the sole beneficiary named in the will, filed) an answer to the petition, denying the validity of the claims, or some of them, and also alleging that the real estate of the decedent was purchased with pension money, and is, therefore, under section 1393 of the Code of Civil Procedure, exempt from sale for the payments of debts, and moves to have the proceeding dismissed.
It is conceded that the real estate (which it is alleged is worth about $600) was puchased entirely with pension moneys, and that there was no personal property in the estate except that set off to the widow by the appraisers, under the statute.
The petitioner replies to the answer by setting up the will (which is entirely in manuscript, although not written by the testator himself), in which the testator expressly directs the •payment of all his debts. It is claimed by this clause in the will that the testator waived and cancelled the exemption.
On the other hand the contestant contends that the clause in the will did not cancel the exemption, as it is not in compliance with section 1404 of the Code, which section provides the only way in which an exemption can be cancelled.
The question before us for decision then is, does the exemption from debts of property purchased with pension moneys extend beyond the decease of the pensioner? As is usual in cases of this character the sympathies are with the contestant, but in legal proceedings sympathy must yield to the superior claims of justice and equity.
At common law all property is liable for debts and for taxes, and no property is exempt as some statute specially so provides. It will be observed that there is no statute that exempts from debts real estate purchased with pension moneys.
The case of Buffum v. Foster, 77 Hun, 27, also cited by contestant, was an injunction to- restrain the sale of real estate purchased with pension money. The General Term- held that the injunction was properly granted.
Both of the proceedings in the two cases just cited were had during the lifetime of the pensioner, iand neither of the cases decides that the exemption extended beyond the lifetime of the pensioner. That question was not before the court in either case.
The industrious and able counsel for the contestant cites us no case that holds that real estate purchased with pension money is exempt from debts: after the decease of the pensioner.
The case most nearly approaching the doctrine contended for by the contestant’s counsel is Hodge v. Leaning, 2 Dem. 553, in which the surrogate of Otsego county held that pension money in the hands of an executor constituted no part of the assets' of the decedent’s estate, and hence was not liable for decedent’s debts; but that decision was: disapproved in the case of Beecher v. Barber, 6 Dem. 129, where the surrogate of Chenango county refused to follow1 it, and decided directly the opposite, and holding that on a final judicial settlement pension money in the hands of the executor was assets, and liable for decedent’s debts.
It is true that the mere formal direction in a will to pay debts does not per se give an executor power upon his own motion to sell the real estate of his testator, give an executor’s
The object of the executrix in this proceeding is to obtain a decision of the court as to the validity of these claims, and as to the liability of the estate to pay them if declared valid, and a decree granted directing their payment, to the end that upon the final judicial settlement of the estate her account may not be surcharged for the payment of debts that are invalid, nor involve the estate in litigation for refusing to pay claims that are valid.
Of the several 'claims filed with the executrix against the estate, four are objected to and contested, to wit: Warren Coomer, $15; Addie E. Mabee, $24; Elizabeth Carter, $56.58; Sarah J. Monroe, $259.
Two of these claimants are sisters; one a niece; the other a nephew of the decedent. The greater portion of these claims is for taking care of' decedent in his last sicikness, and for services rendered as housekeeper for decedent in former years. The rule in regard to such claims is too well settled to i’equii’e the citing of authorities, that claims against the estate of a deceased person made by near relatives for personal services rendered in the last sickness, and for domestic services in the deceased’s household, are to be regarded with suspicion,
A large ¡amount of testimony was taken in relation to the validity of these claims, and without discussing the testimony in detail as it relates to the several items, I think the proof is insufficient under the law to establish them all as legal claims .against the estate. The claim of Warren ‘Coomer is rejected; the affidavit attached to. that claim as filed is fatally defective in that it does not conform to the statutory requirements, and the proof in relation to his claim does not cure the defect in the affidavit, nor establish the claim.
The claim of Addie E. Mabee is allowed to the extent of $14; Sarah J. Monroe in the sum of $16, and Elizabeth Carter’s claim of $56.58 is allowed in full, with interest upon the several claims as allowed.
Contestant’® motion to dismiss, the proceeding is denied.
Counsel for the executrix may prepare and submit a proposed form of decree in accordance with this opinion.
Decreed accordingly.