4 Redf. 1 | N.Y. Sur. Ct. | 1878
In Tifft v. Porter (8 N. Y., 516), it is held that a legacy is general, and not specific, unless by its terms it indicates a particular part of the testator’s estate as the subject of the bequest. In that case the testator owned 360 shares of bank stock. He bequeathed 240 to one
These authorities seem to justify the conclusion that the legacies mentioned in the fourth clause of the will, including those given of the Manhattan Gas Company’s stock, should abate proportionately to their amount, in consequence of the deficiency of the assets. But if this were not so, it is quite clear that it was the intention of the testator to provide for such abatement in the exigency indicated, by the following language: “After payment of the above legacies, which, in the event of my estate being diminished, should be proportionately reduced, &c.” All the legacies referred to are covered by the word which, and are directed to be proportionately reduced.
The practice has hitherto prevailed, to some extent, of making. allowances to the counsel for an executor, trustee or administrator on final accounting, to cover ¡professional services rendered during the progress of administration, and prior to the proceedings initiating the final accounting. This case seems an appropriate one to state the grounds of objection to such practice, and the reasons why it should not be continued. . In the first place, chapter 359 of the Laws of 1870, section 9, provides that the Surrogate of this county may grant allowance in lieu of costs to counsel in any proceedings before him, &c. It would be an unwarranted construction, in my opinion, to hold that in a particular proceeding
I am of the opinion that an allowance of $500 in lieu of costs would be reasonable in this case, to the counsel for the executor, and that the special guardian should be allowed the sum of $150, and that all other allowances should be made out of the respective distributive shares represented by said counsel, which I will fix, if desired, on signing the decree.
Ordered accordingly.