CoNway, J.
The facts presented for our consideration are not in dispute. They are established by court documents, exhibits and a stipulation of the parties to a statement of facts proven pursuant to rule 230 of the Buies of Civil Practice. In 1929, one Maria Eckerlein recovered judgment against Leslie B. Wilson, (hereinafter referred to as debtor) the now deceased respondent. Thereafter, in March of 1945, his mother, Kate B. Wilson, died leaving a will and codicil, which were probated in April, 1945, by which he received as a legacy one third of her residuary estate. The remaining two thirds were divided between his brother and sister. Only personalty is here involved.
Some ten months after the death of the debtor’s mother and on January 10, 1946, a third party order in supplementary proceedings, in connection with the judgment mentioned, was served upon his brother as an executor. It was returnable on January 29th, and contained an injunction forbidding transfer or disposition of ahy property or debts due the debtor. On his examination the executor testified that the value of the debtor’s legacy was approximately $12,000.
Pursuant to an order in supplementary proceedings issued on January 12th, returnable on January 29th, and served personally, the debtor was examined. That order restrained him from making or suffering any transfer or other disposition of, or interference with any of his property. Two questions and
answers may be quoted as indicating quite clearly that at that time, ten months after the decease of his mother, he had accepted the legacy in his own mind and- had no thought or intention of rejecting or renouncing it:
“ 111 Q. By the terms of the Last Will and Testament and Codicil of your deceased mother, Kate B. Wilson, what interest have you in her Estate? A. One third of the residuary estate.”
‘ ‘ 123 Q. What do you figure and compute at this time, approximately, that there is still due to be paid to you by the executors of the estate, in settlement and payment of your interest in the estate? A. I have no idea what it will amount to.”
He further testified that neither his brother nor his sister (the two executors) had made any payments to him on account of his interest in the estate and that he had made no assignment of such interest. At the conclusion of the examination on January 29th, a receiver was appointed whose title to the debtor’s personal property was fixed in the order of his appointment as January 17th.
In this proceeding by the executors of the will of Kate B. Wilson, deceased, for an accounting and other relief, the courts below have upheld the validity of the judgment debtor’s purported renunciation of his legacy while the supplementary proceedings were pending.
We all agree that the debtor had a reasonable time, after his mother’s death and the probate of her will, within which to renounce his legacy. During such period the presumption was that he would accept it when'he had the opportunity since it was beneficial to him, at least where there were “ no rights or new considerations intervening the probate of the will and the refusal or acceptance by- the devisee ” or legatee.
(Albany Hosp.
v.
Albany Guardian Soc.,
214 N. Y. 435, 443.) However, if á reasonable time elapses during which a legatee
does nothing one way or the other, the legacy is his absolutely. A legatee of an unconditional legacy need never formally accept the legacy. If he does not wish it, he must affirmatively renounce it. So long as it is not needed for creditors of the deceased or for administration expenses, no one has the power to deprive him of it. He may not rid himself of his legacy except by his own
affirmative act.
It is not enough, therefore, to have only in if the debtor Wilson renounced his legacy within a reasonable time, such renunciation would relate back to the date of the death of his testatrix. Under the circumstances here presented, the equally, if not more important question is, did the debtor have any property right in the legacy during the passage of the reasonable time allowed him for renunciation. As we have seen if nothing was done, the legacy was his. If he died it would pass to his distributees or creditors — even in a case where he did not know of its existence. He could allow a reasonable time to elapse or, during its passage, could evidence, by word or deed, acceptance or renunciation. Eenunciation is a word of art at common law and was quite important when realty and title thereto was involved as is made clear in
Albany Hosp.
v.
Albany Guardian Soc. (supra).
As to personalty, however, it is no longer a matter of common law solely but, in this State at least, a matter of statute. We speak of a vested legacy as distinguished from a contingent one and as vesting immediately upon the death of a testatrix. (2 Jessup-Bedfield’s Law and Practice in the Surrogates’ Courts [3d ed.], § 929.) It is assignable. By statute ('Civ. Prac. Act, § 916) it may be reached by levy of attachment. Section 916 makes no qualification in its language as to whether a legacy has been accepted or renounced. It treats the legacy as belonging to the legatee. The presumption that one will accept is assumed in that statute as one of existing fact. If the legacy is renounced within a reasonable time after decedent’s death, it is true that the renunciation relates back to the date of death and that it may then be said that there never was a legacy but the question remains as to what a legatee has during the passage of such reasonable time. It may be considered as a gift which may be rejected within a reasonable time or even the offer of a gift which may be rejected within a reasonable
time. In either event, during that reasonable time, he has a chose in action and that is personal property. (General Construction Law, § 39.) In section 39 of the G-eneral Construction Law, personal property is broadly defined and includes “ everything, except real property, which may be the subject of ownership ” and specifically “ things in action ”. It is that which is vested, assignable and attachable. (See Decedent Estate Law, § 146.) Thus, the word ‘ ‘ renunciation ’ ’ is defined in Bouvier’s Law Dictionary as “ The act of giving up a right.” It is important at the outset to determine that the debtor here had such a property right because, having it, he could be forbidden by restraining order to rid himself of it as was done here. There was then property to which the provisions of article 45 of the Civil Practice Act could apply.'
As we have said, the debtor allowed ten months to pass after the death of his mother without taking any action. "What is a reasonable time to be allowed for renunciation must always depend upon the facts of the particular case. We deal with this record and our interpretation of it. The acceptance of a devise or bequest being a question of fact
(Oliver
v.
Wells,
254 N. Y. 451, 460-461) the time within which a devisee or legatee may be required to act to rebut or overcome the presumption of acceptance is a reasonable time which will vary with the circumstances of each case. Since the Surrogate’s Court historically and by statute (Surrogate’s Ct.
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CoNway, J.
The facts presented for our consideration are not in dispute. They are established by court documents, exhibits and a stipulation of the parties to a statement of facts proven pursuant to rule 230 of the Buies of Civil Practice. In 1929, one Maria Eckerlein recovered judgment against Leslie B. Wilson, (hereinafter referred to as debtor) the now deceased respondent. Thereafter, in March of 1945, his mother, Kate B. Wilson, died leaving a will and codicil, which were probated in April, 1945, by which he received as a legacy one third of her residuary estate. The remaining two thirds were divided between his brother and sister. Only personalty is here involved.
Some ten months after the death of the debtor’s mother and on January 10, 1946, a third party order in supplementary proceedings, in connection with the judgment mentioned, was served upon his brother as an executor. It was returnable on January 29th, and contained an injunction forbidding transfer or disposition of ahy property or debts due the debtor. On his examination the executor testified that the value of the debtor’s legacy was approximately $12,000.
Pursuant to an order in supplementary proceedings issued on January 12th, returnable on January 29th, and served personally, the debtor was examined. That order restrained him from making or suffering any transfer or other disposition of, or interference with any of his property. Two questions and
answers may be quoted as indicating quite clearly that at that time, ten months after the decease of his mother, he had accepted the legacy in his own mind and- had no thought or intention of rejecting or renouncing it:
“ 111 Q. By the terms of the Last Will and Testament and Codicil of your deceased mother, Kate B. Wilson, what interest have you in her Estate? A. One third of the residuary estate.”
‘ ‘ 123 Q. What do you figure and compute at this time, approximately, that there is still due to be paid to you by the executors of the estate, in settlement and payment of your interest in the estate? A. I have no idea what it will amount to.”
He further testified that neither his brother nor his sister (the two executors) had made any payments to him on account of his interest in the estate and that he had made no assignment of such interest. At the conclusion of the examination on January 29th, a receiver was appointed whose title to the debtor’s personal property was fixed in the order of his appointment as January 17th.
In this proceeding by the executors of the will of Kate B. Wilson, deceased, for an accounting and other relief, the courts below have upheld the validity of the judgment debtor’s purported renunciation of his legacy while the supplementary proceedings were pending.
We all agree that the debtor had a reasonable time, after his mother’s death and the probate of her will, within which to renounce his legacy. During such period the presumption was that he would accept it when'he had the opportunity since it was beneficial to him, at least where there were “ no rights or new considerations intervening the probate of the will and the refusal or acceptance by- the devisee ” or legatee.
(Albany Hosp.
v.
Albany Guardian Soc.,
214 N. Y. 435, 443.) However, if á reasonable time elapses during which a legatee
does nothing one way or the other, the legacy is his absolutely. A legatee of an unconditional legacy need never formally accept the legacy. If he does not wish it, he must affirmatively renounce it. So long as it is not needed for creditors of the deceased or for administration expenses, no one has the power to deprive him of it. He may not rid himself of his legacy except by his own
affirmative act.
It is not enough, therefore, to have only in if the debtor Wilson renounced his legacy within a reasonable time, such renunciation would relate back to the date of the death of his testatrix. Under the circumstances here presented, the equally, if not more important question is, did the debtor have any property right in the legacy during the passage of the reasonable time allowed him for renunciation. As we have seen if nothing was done, the legacy was his. If he died it would pass to his distributees or creditors — even in a case where he did not know of its existence. He could allow a reasonable time to elapse or, during its passage, could evidence, by word or deed, acceptance or renunciation. Eenunciation is a word of art at common law and was quite important when realty and title thereto was involved as is made clear in
Albany Hosp.
v.
Albany Guardian Soc. (supra).
As to personalty, however, it is no longer a matter of common law solely but, in this State at least, a matter of statute. We speak of a vested legacy as distinguished from a contingent one and as vesting immediately upon the death of a testatrix. (2 Jessup-Bedfield’s Law and Practice in the Surrogates’ Courts [3d ed.], § 929.) It is assignable. By statute ('Civ. Prac. Act, § 916) it may be reached by levy of attachment. Section 916 makes no qualification in its language as to whether a legacy has been accepted or renounced. It treats the legacy as belonging to the legatee. The presumption that one will accept is assumed in that statute as one of existing fact. If the legacy is renounced within a reasonable time after decedent’s death, it is true that the renunciation relates back to the date of death and that it may then be said that there never was a legacy but the question remains as to what a legatee has during the passage of such reasonable time. It may be considered as a gift which may be rejected within a reasonable time or even the offer of a gift which may be rejected within a reasonable
time. In either event, during that reasonable time, he has a chose in action and that is personal property. (General Construction Law, § 39.) In section 39 of the G-eneral Construction Law, personal property is broadly defined and includes “ everything, except real property, which may be the subject of ownership ” and specifically “ things in action ”. It is that which is vested, assignable and attachable. (See Decedent Estate Law, § 146.) Thus, the word ‘ ‘ renunciation ’ ’ is defined in Bouvier’s Law Dictionary as “ The act of giving up a right.” It is important at the outset to determine that the debtor here had such a property right because, having it, he could be forbidden by restraining order to rid himself of it as was done here. There was then property to which the provisions of article 45 of the Civil Practice Act could apply.'
As we have said, the debtor allowed ten months to pass after the death of his mother without taking any action. "What is a reasonable time to be allowed for renunciation must always depend upon the facts of the particular case. We deal with this record and our interpretation of it. The acceptance of a devise or bequest being a question of fact
(Oliver
v.
Wells,
254 N. Y. 451, 460-461) the time within which a devisee or legatee may be required to act to rebut or overcome the presumption of acceptance is a reasonable time which will vary with the circumstances of each case. Since the Surrogate’s Court historically and by statute (Surrogate’s Ct. Act, § 40) is an equity court and equity and good conscience require that a man pay his contract obligations, the time allowed for action should be shorter when the effect of renunciation will be to prevent satisfaction of a judgment in whole or in part. We had this in mind in
Oliver
v.
Wells (supra,
pp. 459-460), when, in discussing the question of an election to take a conditional bequest, we said (Cardozo, Ch. J.):
“
The general principle is that election must be made within a time that is
equitable
in the light of all the circumstances. This time may be very long, if injury to others will not result from the delay, and by the same token very short if the failure to act promptly may work injury or hardship (1 Pomeroy Equity Juris. [4th ed.] § 513; Halsbury Laws of England, title Equity, §§ 141, 144, and cases there collated).” (Emphasis supplied.)
If the debtor here had assigned his legacy, that would have disclosed his acceptance by act. He could also evidence by
words that he had accepted it by disclosing his state of mind and prior mental acceptance of it. That he did in his answers when examined. We need not here determine whether a surrogate, presiding as he does in a court of equity, has the competence and duty to direct a judgment debtor to accept a legacy in order that his creditor may be paid. Thus in
Hallett
v.
Thompson
(5 Paige Ch. 583), a legacy was bequeathed hut the executor was directed to retain it and put it at interest for the benefit of the legatee for life unless the legatee should by a sealed instrument require the payment of the legacy to him. The testator had expressly declared that neither the legacy nor the income should be liable to the legatee’s creditors. The Chancellor said (p. 586): “ Independent of any statutory provisions, therefore, I have no doubt that it would he competent for this court, and would also be the imperative duty of the court, to compel the defendant Thompson to execute this beneficial trust power, so as to enable the complainant to obtain payment of the legacy; to be applied in satisfaction of his judgment, as far as it would go. ’ ’ (See, also, 43 Yale L. J. 1030.)
It is sufficient in this case to say that the debtor had a property right in the legacy, that he was enjoined from disposing of it and that the uncontradicted and stipulated proof established as matter of law both acceptance of it by passage of time and by word and conduct so that his power of renunciation had been lost to him prior to his attempt to exercise, it.
The order of the Appellate Division should be reversed, with costs and the decree of the Surrogate’s Court modified by directing that the residuary share payable to Leslie B. Wilson, the distributee, be paid to the receiver to be applied toward satisfaction of the judgment and interest.