70 N.Y.S. 1020 | N.Y. Sup. Ct. | 1901
I cannot hold in favor of the contention of the executor. He took possession of the personal property and the real estate of the testatrix. He was empowered by the will to use the rents and income of the real estate for the support of the infant Martha Ann Johnson, who took as legatee the personal property and an undivided half of the realty in which this executor had the personal interest of t-he other undivided half. He had no power to eat up a large part of the share of the infant in the real estate for her alleged support and maintenance, nor does the decree of the surrogate on his final settlement of accounts, in which she was nominally represented by a guardian ad litem pro hac vice, establish the binding validity of a balance of payments by the executor over and above the receipts of income which
Even if the plaintiff had not been an infant the decree of the surrogate would not be a lien upon the real estate. Bennett v. Crain, 41 Hun, 183; Sharpe v. Freeman, 45 N. Y. 802; Platt v. Platt, 105 id. 488.
Nor can the surrogate make a decree in favor of the executor for overpayment to a legatee. Matter of Underhill, 117 N. Y. 471; Matter of Hodgman, 140 id. 421; Matter of Lang, 144 id. 275.
The plaintiff may have judgment for partition and sale, with costs payable out of the proceeds of sale, except that the costs for proceedings after notice of trial and the trial fee shall be charged upon the share of the defendant Alexander Weir.
Ordered accordingly.