35 A.D. 434 | N.Y. App. Div. | 1898
This is an appeal by the executors of Abraham Underhill from a decree of the surrogate of the county of New York, requiring them to pay to the petitioner, James Underhill, a legacy bequeathed to him by Abraham Underhill, his grandfather. The proceeding is taken under section 2722 of the Code of Civil Procedure, which provides that a person entitled to a legacy may present a petition to the Surrogate’s Court praying for a decree directing an executor to pay the petitioner’s claim, and that he be cited to show cause why such a decree should not be made. The petition was presented under this section, and upon the return of the citation the executors Sled an answer upon which they insisted that this proceeding could not be maintained under the section above cited.
There is no disputed question of fact in the case. It appears that Abraham Underhill died in the year 1886; that his will was admitted to probate on the fourteenth of May of that year, and that the appellants are the executors who qualified. " The will contains the following clause : “I give and bequeath to my grandson, James Underhill, son of my deceased son, James Underhill, fifteen thousand dollars ($15,000). The same to be held by my executors in trust, to keep the same invested and apply the income thereof to his use until he arrives at the age of twenty-five years, when they shall pay
Upon these facts the executors insisted that the court had no jurisdiction to make a decree in the proceeding under this section. Their claim was that they had ceased to hold this fund in their capacity as executors, but held it as trustees, and that the application could only be made under section 2804 of the Code of Civil Procedure, which authorizes an application to the surrogate to compel the payment by a testamentary trustee of money to which the applicant is entitled. It may be said that this petition does not upon its face purport to be based upon either section of the statute, and that as the proceedings under each section are practically the same, the decree might be sustained, even though it should be held that the surrogate’s jurisdiction was acquired from section 2804 instead of from section 2722. But it is not necessary, in our judgment, to decide the case upon that ground. It was assumed by each party that the proceeding ivas taken under section 2722, and we are of the opinion that upon that assumption the case shows that the surrogate had jurisdiction under that section, and that the decree was proper.
The appellants claim that the $15,000 was a trust fund, which the testator intended should be separated and kept apart from the bulk of the estate; that it was held and invested by the appellants as testamentary trustees; and that, as they were testamentary trustees, section 2722 did not apply. The claim that the appellants were solely testamentary trustees, and that, therefore, section 2722 did not apply, cannot be sustained. There has been no accounting by the executors aud no decree of the surrogate setting apart this fund as a trust fund to be held by the appellants as trustees and discharging them as executors from the further control over it.
We have examined the other cases cited to sustain the contention of the appellants, but none of them changes the rule as established by the cases cited above, and we think that, under this law, it is quite clear that the executors continued to hold the fund in their capacity as executors, and that for that reason the surrogate had jurisdiction under section 2722 of the statute, and his decree should be affirmed, with costs.
Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ.? concurred.
Decree affirmed, with costs.