1 Bradf. 293 | N.Y. Sur. Ct. | 1850
This case lately came before me upon the question, whether the death of Jeremiah H. Wheeler before the expiration of the two years limited for the payment of $1500 to him, caused a lapse of his interest in that bequest.
The executor has now put in a further answer, rejecting the legacy burthened with this condition, insisting that he has never accepted it, and that the fund bequeathed is insufficient to meet all the charges upon it. In passing upon the nice and delicate questions thus presented, it is indispensable to remember that Mr. Lester, in regard to the bequest of this partnership interest, sustains a threefold character ; that of surviving partner of his testator in the firm whose property is given to him; that of executor; and that of legatee upon condition. To move intelligently through this maze, it is necessary to keep before the mind the rights, duties, and relations springing from this triplex position. Lor example, as surviving partner he had the control of the property of the firm, his possession and disposition of which are ¡prima facie to be referred to his title and capacity as surviving partner, and not as an executor. Again, as executor, he had the management of the interest of the deceased in the surplus of the partnership estate, after having, as surviving partner, wound up the business of the firm, and ascertained the extent of the interest of each member; and his dealings with such interest are primarily to be referred to his office as executor. And lastly, as legatee, he had a right to accept or refuse the legacy, and his acts in this particular are to be viewed in relation to his character as legatee. It may be difficult,
It often happens in another well known class of cases, that a recusant devisee by electing not to take under a will, disappoints other devisees, and in such instances Courts of Equity have long been in the habit of treating the refused devise not as extinguished, but as in trust in the devisee for the benefit of the disappointed claimants, “ or as it has been well expressed, they will assume jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those whom his election disappoints.” {Story’s JEg., § 1083; Soper on Leg., 1666.)
Upon the whole, then, I am inclined to sustain the directions of the testator in relation to the payments ordered to be made by Mr. Lester, to the extent of the fund in question, notwithstanding his refusal to accept the legacy; regarding these “ regulations” as in effect creating legatory charges upon the property, which the primary legatee cannot defeat by refusing to perform the conditions, and which the executor as trustee is bound to see satisfied, so far as the particular estate upon which they are charged will enable him to do. He will therefore have to account in full