Toch v. Toch, 30 N.Y.S. 1003

Toch v. Toch

30 N.Y.S. 1003 | N.Y. Sup. Ct. | 1894

FOLLETT, J.

This action is in equity to recover the assets of the estate of Moses Toch in the hands of the executors of Bernard Toch, who was the sole executor and residuary legatee and devisee of Moses Toch, and to charge the payment of certain legacies given by the will of Bernard Toch on his real estate. To establish the plaintiff’s right to recover assets in his representative capacity, he was bound to show that their recovery was necessary for the due administration of the estate of which he was administrator. The payment of all the legacies given by the will of Moses Toch is-*1005secured by the provision of the judgment charging their equivalents on Bernard Toch’s realty, pursuant to the provisions of his will; and no attempt was made to show that there were unpaid creditors of Bernard Toch, or that there were unpaid expenses of administration. It seems to us that the plaintiff failed to establish any right of recovery in his representative capacity. Walton v. Walton, *40 N. Y. 15, 4 Abb. Dec. 512, more fully reported in 2 Abb. Pr. (N. S.) 428, is not an authority for the plaintiff’s contention on this appeal that he has the absolute right to recover the assets which passed from Moses Toch to Bernard Toch. By the opinion delivered in the supreme court in that case it appears that there were unadministrated assets in the hands of the defendants, and that there were unpaid legacies. These two facts established thé plaintiff’s right to recover in that action. In the case at bar there were no unpaid legacies, and, so far as it appears, no debts. No equitable result would be reached by permitting the plaintiff to recover the $14,000 for the sole purpose of paying that sum back, on final settlement of the estate of Moses Toch, to the executors of Bernard Toch. Undoubtedly, if the plaintiff and his brothers and sisters had elected not to accept of the legacies in the will of Bernard Toch in satisfaction of those in the will of Moses Toch, he would have been entitled, in his representative capacity, to have recovered sufficient assets from the executors of Bernard Toch to pay those legacies; but these legatees had the right to elect, and they have elected, to accept of the provisions in the will of Bernard Toch in satisfaction of the legacies bequeathed to them in the will of their father. By asking in this action to have the legacies bequeathed to them in the will of Bernard Toch charged upon his real estate, they have elected not to regard the $8,000 as a debt due from the estate of Bernard to the estate of their father, and by the judgment they have secured the payment of those legacies. The plaintiff recovered in this action all that he was entitled to, and his appeal cannot prevail.

One of the excutors of Bernard Toch and one of the beneficiaries under his will appeal from the judgment on the ground that the court erred in charging the eight legacies given by the will of Bernard Toch upon his realty. It is urged that the evidence of an intention to charge them upon the realty was insufficient to justify the conclusion drawn by the court. This contention cannot prevail. It is found as a fact—and the finding is not challenged—. that Bernard Toch left personalty of the value of $15,750, the items of which are found. All of these items, except a cash item of $375, were specifically bequeathed to certain legatees, and those items have been distributed to the legatees. This left but $375 to pay the debts of Bernard Toch, if he left any, and the expenses of administering his estate. It is clear that the legacies bequeathed by the will of Bernard Toch must necessarily be paid out of the realty. When articles of personal property are specifically bequeathed, they are not to be resorted to for the payment of debts, unless the property not specifically devised or bequeathed is insufficient for that purpose. If a testator bequeaths a picture, a *1006particular bond, and a sum of money deposited in a bank to three legatees, these items are not to be taken for the payment of debts, unless the remainder of the estate is found insufficient. The will of Bernard Toch gives to his executors power to sell or mortgage all of his realty, except Hos. 293 and 295 East Tenth street, for the purpose of administering his estate. Moses Toch died April 27, 1884, and October 24, 1884, Bernard Toch executed his will, by which he provided for the payment out of his own estate of the legacies bequeathed by Moses to his children, and by his will he specifically bequeathed all of his personalty except $375. Bernard died April 14, 1886, and no change appears to have occurred, between the date of his will and the date of his death, in the quantity "or character of his personalty. The condition of Bernard’s estate- and the provisions of his will indicate an intention on his part to charge his realty with the payment of the legacies to Moses’ children. He had just acquired one-half of his realty through the will of Moses, and justice and good faith required that the payment of those legacies should be secured; and every act of Bernard’s shows that he intended to deal justly by his nephews and nieces, and in strict accordance with the trust reposed in Mm by his brother. On the question as to whether Bernard intended to charge his realty with the payment of those legacies, the opinion of the learned judge at special term is satisfactory, and further discussion is unnecessary. The judgment should be affirmed, without costs to any party. All concur.