Stagg v. Jackson, 2 Barb. Ch. 86

Stagg v. Jackson

2 Barb. Ch. 86 | New York Court of Chancery | 1847

The Chancellor.

The only question which arises upon this appeal, is whether the surrogate’s court had jurisdiction and authority to call this executor to account for the proceeds of the real estate sold by the latter, under the power contained in the will, and for the rents and profits of such real estate received by him before such sale, under and by virtue of the power given to him, as such executor, by the will of the decedent. And upon this question I do not see that there are any reasonable grounds for doubt.

The will in this case directs the real estate to be sold, and makes but one fund of the real and personal property of the testator, for the purposes of the will; and the trust to receive the rents and profits of the real estate, by the executor, until sales of such real estate can be made, is a mere incident to the direction to convert the real estate into personalty for the purposes of the will. There is no reason, therefore, why the executor, or the estate, should be subjected to the expense of taking two accounts of the same fund, or of different parts thereof; one before the surrogate, and the other in the court of chancery. And the provisions of the revised statutes are sufficiently broad to authorize the surrogate to take jurisdiction of the whole matter, so far as the interests of these respondents are concerned, to take the account of the whole estate, both real and personal, which has come to the hands of the appellant as executor, and to decree payment to Mrs. Jackson of the *94ninth part of the proceeds' of the real and personal estate, to which she’ is entitled as- one of the residuary legatees,, and which, by the terms of the willy she is entitled to-immediately.The surrogate has power to compel the executor- to render an account of his proceeding’s, upon the application of a person having a demand against the personal estate of the- decedent-, as a- legatee. (2 R. S. 92, §§ 52, 55.) He has also jurisdiction, upon the application of a legatee, to: decree payment of a- legacy. (2 R. S. 116, §§ 18, 19, sub. 2. Idem, 90, §§ 45, 48.) And where, by will; the’sale of- real property is ordered to'be made, either for the payment of debts- or legacies,, the surrogate in whose office the will was proved, has power to cite the executor. to account for the proceeds of such sales, and to- compel* distribution thereof; and to make" all' necessary orders- and- decrees therein, with the like power of enforcing them, as if- such proceeds had originally been personal properly in the hands of an administrator. (2 R. S. 110, § 57, 61.)

In' the’present case, Mrs. Jackson is a legatee; within the true intent and- meaning of these several statutory provisions, not only of one-ninth- of the- residuary personal estate,, but- also of one-ninth of the proceeds of the sales of the real estate, and of the rents- and profits thereof, 'which the executor Was authorized to receive for the" immediate use of some" of* the’ residuary legatees, and in trust- for some others of- thqm, either generally or temporarily. The executor should* therefore have paid the debts, funeral charges, and- expenses of- administration,.out- of the estate", and: should have- set- apart a- sufficient fund,- out of the estate, to purchase the’ two. annuities, of $50’each;, for Helena and Junius Theodore, until they respectively arrived-at the" age of fifteen: He then* should- have added to the'" residue of the proceeds of-the real and personal estafeyirieluding the rents and profits and- interest' and income thereof,-the two advance» mentis'of $120, Which the testator had- made to his-daughters Mrs. Ear! and' Mrs.- Gautier, - and: which by the'Wülwas'directe’d to be added* to their shares in the distribution. And* if the distribution-was not made at the expiration of one year after the testator’s death; the executor.' should' have charged interest on *95such advances from the expiration of the year; so as to make the interest equal among, all the residuary legatees. One-ninth ' of the distributive fund, as thus ascertained, would belong to himself, another ninth- he should immediately have paid over to Mrs. Jackson,, and- another, less the advance of $120 and the interest after the expiration of the year, should have been immediately paid over, to Mrs. Earl, and another ninth, less the advancement and interest, he should have kept and invested, in trust-for Mrs. Gautier, as directed by the will. The remaining five-ninths of'the estate he should have divided into five equal parts, and invested one part for each of the minor children until they attained the age of twenty-one respectively; and he should have accumulated the income thereof for their benefit, if it was not wanted for their education and support.

The contingent limitations over of the capital of these five shares,, to the surviving children or. their issue, in case the minors presumptively entitled to the same should die under age, without leaving issue, formed no objection to the jurisdiction of the surrogate to decree an account and settlement of the estate, upon the application of the respondents; and to direct the immediate payment of- the one-ninth of the residuary estate to which Mrs. Jackson was entitled absolutely. And the fact that the shares of these minors were held by the executor in trust, until, they respectively should, become of age,, only suspended the pofver of the surrogate to decree a, distribution and payment of those portions of the estate, to the legatees, until such minors respectively arrived at the age of twenty-one, or died; when it would'be ascertained ; to whom that part of the capital of the estate belonged. The interest, or income of the shares of these minors; beyond what was-necessary for their support, belonged to them absolutely, -until, it could, be ascertained to whom the capital of those shares would ultimately belong. For as there can be no valid direction for the accumulation of rents; or. income, except for the benefit of a minor in being when- the accumulation commences; if either of the minors- should die under txventy-one,. the accumulation.of income which had been made for his use in the meantime; would belong, to-his next of. kin *96or legatees. For the minor himself, if he should die under age, would be absolutely entitled to such accumulated income at the time of his death, as the person presumptively' entitled to the next eventual estate, in the capital of the fund, at the tune the income thereof accrued. (1 R. S. 726, § 40. Idem, 773, § 2.)

The surrogate was clearly right in the sentence and decree which he made, directing the appellant to account for the rents and profits and proceeds of the real estate, as well as the personal effects of the testator. The decretal order must therefore be affirmed with costs. The statute also authorizes this court, upon the affirmance of the decree of a surrogate, to award damages to the respondent, for the delay and vexation caused by such appeal. (2 R. S. 618, §§ 35, 42.) And it is proper that such damages should be awarded to the respondent in all cases, where such respondent has been delayed by the appeal, and where it is evident that damages have been sustained in consequence thereof. Where the appeal is from a final decree awarding the payment of money, the interest on the amount decreed to be paid, during the time the collection of the money is suspended by the appeal, is the proper rule of damages. But as this appeal suspended the proceedings before the account was taken, the damages which the respondents have sustained, by the appeal, is the interest on the balance which was due to them from the executor at the time the appeal was entered; including in such balance such interest as the appellants were then entitled to, upon their share of the funds in the hands of the executor, from the time when he ought to have paid it over to them, or invested it for their use. The decree of affirmance must therefore direct, that the. respondents recover against the appellant the interest on the balance which was due to them, from the executor, for principal and interest, on the 23d of December, 1843, the time of entering the appeal, as their damages for the vexation and delay caused by this appeal. For the purpose of ascertaining, and giving to the respondent such dam ages, the decree must direct the surrogate to state the account, ■ with a rest on the day upon which such appeal was entered. *97And he must charge the executor with interest, from that time, upon the balance which was then due from him, to the respondents, for the principal and interest with which he was then chargeable, for their share of the proceeds of the real and personal estate of the decedent, and of the rents, interest, and income .thereof.