| NY | Jun 12, 1883
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *50 The appeals taken by Mrs. Ingersoll must be dismissed. The order of the surrogate, denying her application to intervene in the proceeding before him, and that of the Special Term, refusing to stay such proceeding, were each in the discretion of the court, and involved no substantial right.
The surrogate's order of April 5, 1882, denying the executor's motion for a resettlement of the order of March 2, is also not appealable. The surrogate had a right to determine the form of his own order. What he intended to decide was for him to say, and not for an appellate court to dictate.
As it respects the order of March 2, we can only review the direction which requires the executor to pay over to Mrs. Halsey $70,000 upon her legacy. The provisions, commanding the executor to account, and ordering a reference to ascertain his place of residence and whether he had an office in this State, were preliminary, and not final; but the order to pay was necessarily final as it respected the sum involved, and affected a substantial right. That order, however, should be affirmed. The legacy was due, and payable, and it sufficiently appeared that the executor had on hand the means of payment. The sole ground of resistance was the pendency of proceedings in lunacy against the legatee. These had reached the point of a trial before the jury summoned for the purpose, and a verdict in favor of sanity, but the inquisition had not been confirmed. *54
These proceedings were no defense to the executor unless they affected the validity of his payment. It is claimed that they did; that they raised a presumption of insanity; that the verdict was of no consequence until confirmed; that the court might refuse to confirm, and on another hearing the verdict be changed. It is further said that the Supreme Court has the care of Mrs. Halsey's property, not merely from the appointment of a committee, but from the filing of a petition and the order for a commission granted thereon. If all this be admitted, the answer is that such court, with all the facts before it, and the power to lay its hand on this fund, has declined to do so. It does not deem it a duty to prevent the legatee from receiving her own money. The tribunal having jurisdiction over the fund permits her to receive it, and should do so with the verdict of the jury before it, unless it sees some reason for setting that aside. It is enough that it declines to interfere, and having so refused, it has practically adjudged that there is nothing in Mrs. Halsey's mental condition which makes her receipt of her own money unsafe and imprudent. After such a decision by the court in which the proceedings are pending, and a peremptory order by the surrogate to pay to her, there cannot be a doubt of the validity of the payment. Whatever else may happen, the executor will be in no danger of a second demand for the same money. The order of March 2 should, therefore, be affirmed, with costs.
All concur.
Ordered accordingly.