Cobb v. McCormick

3 Dem. Sur. 606

• Court: New York Surrogate's Court
• Decided: April 15, 1885
• Status: Published

Opinion

The Surrogate.

No testimony has been taken in this matter, but it is conceded that the widow and all of the children, except Martin, continued to reside on the real estate devised after the death of the testator, until the death of the widow, which occurred in April, 1884, the others still remaining there. The property was sold by the surviving executor in February last. Martin McCormick, who had resided since his father’s death in the city of New York, purchased the property for $2,250, from which were deducted taxes and assessments, which reduced the amount to $2,126.46. The account filed shows the whole sum on hand for distribution, without the deduction of commissions and expenses of accounting, etc., to be $2,178.01, and after such deduction, $1,995.30. Of this sum, Martin claims there should be paid to him $1,915, being the amount of his legacy of $1,000-and interest thereon, leaving a balance of $80.30, to be divided equally among all the children. The contestants contend that he should not be allowed interest. This is the only question presented for consideration.

It would seem that the will operates an equitable conversion of the land into money, especially when viewed in the light of the fact that the testator left no personal estate. The language used may be interpreted by the aid of surrounding circumstances. That is a fact, taken in connection with the bequest of a legacy of $1,000 to Martin, which goes to show that a conversion was contemplated by the' testator. ’How else was that legacy to be paid? If this view be correct, then during all these years he, by acquiescing in the occupation of the premises by his mother, permitted her to enjoy what was equivalent to the interest of his legacy. If, on the other hand, the will operated no equitable conversion, then his legacy was charged upon the real estate. It became due and payable one year from the date of the letters, and he could. then have taken measures to enforce its payment. It must be assumed that he was cognizant of the situation of the estate, and that his father left no assets. He, therefore, knew that the real estate was the only source from which his legacy could be realized, and yet he permitted his mother, during her life, to enjoy the whole without question. This was tantamount to an agreement on his part to waive his use of the legacy in favor of his mother. And she had it. If she so had it with his consent, how can he now be entitled to it again, as against his brother and sisters? He cannot be permitted to recover from them what he had thus given away. The will would have been properly executed if the trustees had sold the real estate within the year, paid the debts and Martin’s legacy out of the proceeds, and invested the residue for the benefit of the widow; and then, at her death, to have distributed what remained among all the children. But Martin took no steps, during all this time, to compel such execution. Probably it ivas by general consent of all, and if so, to their credit, that the mother was permitted to enjoy the whole of the little property. If he were now to bring an action against the executor to recover his legacy, under the circumstances, I think he would not be allowed the interest claimed, because he would be estopped by his acquiescence in the enjoyment of the whole estate, in which his legacy was embraced, by others.

For these reasons, I think the decree should direct the payment of the principal of the legacy only.