137 N.Y.S. 722 | N.Y. App. Div. | 1912
On the 25th of October, 1896, Jacob Schwarz died, leaving a will which was admitted to probate and letters testamentary issued to the executors therein named, of whom the plaintiff is the sole survivor. By the 2d clause of his will he gave, during the life of his widow, to his daughter Lizzie, the appellant, “all the rents and income of the houses owned by” him situate on the northwest corner of East One Hundred and Twelfth street and Third avenue, New York city; and upon the death of the widow he gave said houses to the daughter absolutely. By the 3d clause of his will he gave to his widow all the rents, income and interest of all the residue of his estate, both real and personal, during her life, and upon her death he gave one-half of ‘ ‘ said real and personal ” éstate to his daughter Lizzie, less one-half of the value of the premises given to her in the 2d clause of his will — it being his intention, as expressed in the 3d clause, that including the premises given to Lizzie by the 2d clause, she should receive “only an equal half part of my estate.”
The widow died February 21, 1907, leaving a will, of which the appellant was sole executrix. There came into her hands, as such executrix, personal property belonging to her father’s estate amounting to $31,356.78 —$20,000 of which she paid over to the plaintiff and the balance in' a proceeding in Surrogate’s Court she was directed to pay or account for, with interest at such rate as might be mutually agreed upon between her and the executors. Shortly after the death of the widow the plaintiff brought an action in the Supreme Court to construe the will
The property of the testator having been sold, the plaintiff brought this action to further construe the will, as well as the prior judgment, in so far as it was necessary, to determine whether the appellant was liable to pay interest from the date of her mother’s death on $60,000 — one-half the value of the place given to her; and for a settlement of his accounts. The court did not specifically pass upon the question whether said sum drew interest, but in effect charged her with the same by not permitting her to share — except to a small extent — in the. rents, issues and profits of the estate. By so doing it found she was not entitled to receive anything, but instead had been paid $14,581.60 more than she was entitled to receive.. Judgment was directed in favor of. the plaintiff against her personally for that amount, and she appeals.
I am of the opinion that this action ought never to have been brought. The facts are not complicated nor are there any intricate questions of law presented which justified the plaintiff in bringing an action in the Supreme Court, unless it be for the costs that might be awarded him. A settlement could have been had in the Surrogate’s Court with very little expense. As has been stated many times, an executor, in order to obtain an accounting in the Supreme Court, must set forth special facts and circumstances showing that complete justice cannot be had in the Surrogate’s Court. ' (.Matter of Smith, 120 App. Div. 199, and authorities there cited.) Not a single fact is stated showing, or tending to show, that the plaintiff’s accounts could not have been settled in the Surrogate’s Court, or that full and adequate relief of every description could not have there been
The judgment in the former action construed the will and told the plaintiff how to divide the estate. The language used is unambiguous. It cannot be misunderstood, and all that was left, after that judgment was entered, in order to carry it out — the estate having been reduced to cash—was a mere matter of computation. The executor was directed, after deducting costs, expenses, commissions, etc., of administering the estate, to divide the balance of the proceeds into two equal parts, and then to take from one of the parts $60,000, and after such deduction to pay over the residue to the appellant. This ought to have been done without difficulty, and had such course been followed the appellant would still have had several thousand dollars coming to her, instead of having a judgment rendered against her for upwards of $14,000.
The facts are undisputed. The real estate of the testator, other than that specifically given to the appellant, was sold by
the plaintiff for................................ $313,450 00
The personal estate of the testator was.......... 31,358 78
The rents collected were........................ 73,130 28
Interest on deposits of rent and on $20,000 paid
by the appellant............................. 3,563 06
Interest on $11,358.78, the amount of the personal estate held by the appellant at 3%%, as per agreement................................. 1,882 87
Total..................................... $423,384 99
From which is to be deducted expenses of administration, including costs, commissions, etc____ 46,602 29
Leaving for distribution.................... $376,782 70
From which is to be deducted:
One-half the value of the real estate specifically given to the appellant. $60,000 00-Price of real estate purchased by her. 104,050 00 Amount of testator’s personal estate in her hands, with interest thereon
at 3% % as per agreement________ 13,241 65
Advanced to her. by executors...... 5,000 00
Making in all.................•............ 182,291 65
Which leaves as the amount which .she is entitled to receive from the estate....... $6,099 70
The judgment appealed from, therefore, is reversed, and inasmuch as there is no dispute as to the facts, the accounts should he settled as stated in this opinion, and judgment entered directing the plaintiff to pay to the appellant, the sum of $6,099.70, together with the costs of this action, which are awarded against the plaintiff personally.
Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.
Judgment reversed and judgment ordered,as directed in opinion, with costs against the plaintiff personally.
