In re Proving the Last Will & Testament of Carstens

251 A.D. 737, 296 N.Y.S. 86, 1937 N.Y. App. Div. LEXIS 7317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1937
• Status: Published

Opinion

Order of the Surrogate’s Court of Queens county, adjudging the executrix of Christian Carstens, deceased, in contempt for failure to comply with order of January 22, 1937, directing payment of $500 to William E. Kennedy, affirmed, with ten dollars costs and disbursements to respondent, payable out of the estate. The order of January 22, 1937, must be complied with by the executrix. The direction of the payment of the money is unconditional and is sufficiently unequivocal and clear to enable the executrix to understand to whom, and out of what funds, she is to make the payment within the standards ereeted in decrees in comparable situations. (Matter of Waring, 1 App. Div. 29; Matter of Holmes, No. 2, 79 id. 267.) Lazansky, P. J., Carswell, Adel and Close, JJ., concur; Taylor, J., dissents and votes for reversal, with the following memorandum: A contempt proceeding is siriclissimi juris. The order did not direct the executrix to pay, but merely “ that there be paid;” the order is insufficient as a basis for the proceeding to punish for contempt. It is undoubted that the money was to be paid from a fund in the hands of the executrix, but there was no direction that she pay it. The precise thing to be done by her should have been stated but was not. (Coffin v. Coffin, 161 App. Div. 215.)