In re the Compulsory Accounting of Kaye

272 A.D.2d 1064

Opinion

Decree modified on the law by striking out the first decretal paragraph, and remanding the issue of ownership of the two articles of jewelry by the testator’s wife at the time of her death, to the Surrogate for further proof. As so modified, the decree is unanimously affirmed, without costs. The provisions of the will under review, bequeathing all of testator’s deceased wife’s jewelry, imposed upon the executor the duty of carrying out that provision. (Matter of Kohler, 231 N. Y. 353, 365). The executor will not be permitted, by mere denial of personal knowledge of ownership by the deceased wife, to shift the burden o£ proof of ownership to the legatee. Where, as here, the articles of jewelry are bequeathed to the executor personally, if they were not the property of the deceased wife, it is the obligation of the executor conscientiously to seek information of ownership from witnesses acquainted therewith, if any such can with due diligence be found, and to adduce proof thereof upon the hearing. (Matter of Taylor, 251 N. Y. 257.) Present — Hagarty, Acting P. J., Johnston, Adel and Sneed, JJ.; Nolan, J., not voting.