41 N.Y.S. 1054 | N.Y. App. Div. | 1896
This action was brought by the plaintiff, as the executor of the' last will and testament of Mary A. Smith, deceased, to recover the sum of $1,150.27, alleged to have been loaned by the testatrix in her lifetime to the defendant. By the answer the making of the loan was denied, and for a separate defense it was alleged that by the last will and testament of the said testatrix it was provided as follows: “ And whereas, I now hold obligations against certain of my friends, I direct my executor not to urge the payment of any such obligations before the space of two full years from the date of my decease.” That during the lifetime of said testatrix the defendant was her friend, and that two years had not elapsed since her decease, and that consequently the plaintiff was without power or authority to maintain this action.
The said Mary A. Smith died in the month of November, 1894, and this action was commenced in the month of May following. It appears from the testimony that the defendant was a manufacturer at Highland Mills, in Orange county, and also kept there a general country store ; that the said testatrix was in his employ for several years, and the defendant testified that their relations were friendly up to the time of her death. .
The provision quoted from the will was in the nature of a legacy to such persons as should come within its terms and were within the contemplation and intent of the testatrix. She could, of course, have surrendered to any of her creditors the whole or any part of a debt due to her, and she could likewise fix the terms upon which alone her executor would be permitted to enforce payment of any debt due to her estate. Such a provision is entirely legal and is not unusual, and might, under certain circumstances, be of great value to the debtors of a deceased testator.
The burden of proving that he was included within the provision of the will quoted rested upon the defendant. It was not sufficient for him to show that he was- upon friendly terms with the testatrix •during her lifetime, but it was necessary for him to prove that she included him among “ her friends ” and intended him as a beneficiary under her will. She did not intend to extend the time of payment of all debts due to her estate, but only of those due to her from “ friends ” for which she held “ obligations.” The use of
Again, a testamentary provision of the character of that under consideration must be interpreted and enforced with reference to the condition of the estate of the testator. The executor is a trustee for the creditors as well as for the legatees. While the latter are entitled to have such provision strictly enforced for their benefit, their rights are subject to the rights of creditors, and the latter are entitled to have their debts paid in due course of administration. Hence, we think, that it was not only necessary for the defendant to prove that he was one of the beneficiaries intended by the testatrix, hut that it was also incumbent upon him to give some testimony as to the debts and assets of the estate, from which it could be determined that the condition of the estate was such as to permit the executor to extend the payment of the debt for two years, without prejudice to the rights of creditors. No testimony of this character was offered.
We have examined the exceptions in the case, but none of them are well taken.
The judgment must be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.