In re the Construction of the Last Will & Testament of Schuster

212 A.D. 885

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1925
• Status: Published

Opinion

While we are of opinion that it was the intention of the testator that the taxes on the unproductive real property should be chargeable to incomo payable to the life tenant, and that the finding of an imperative power of sale and consequent equitable conversion was unnecessary to the decision on this point, we disagree with the conclusion of the learned surrogate [See 123 Mise. 314] that the legacy to the widow operated to extinguish her claim under the promissory note, in that the intention of the testator that the debt should be satisfied by the legacy is not made to appear, for the reason that the debt was not in existence at the time of the making of the will, and was recognized by him as such shortly prior to Ms death. (Adams v. Olin, 61 Hun, 318, 323; Heisler v. Sharp, 44 N. J. Eq. 167, 170.) The order of the Surrogate’s Court of Westchester county is, therefore, modified by strildng therefrom the provisions that the 5th paragraph of the testator’s will created an imperative power of sale and operated as an equitable conversion, and that, the acceptance by the life tenant of the legacy under the 3d paragraph of the will operates as an extinguishment of her claim on testator’s promissory note, and as so modified affirmed, without costs. Kelly, P. J., Rich, Jayeox, Kelby and Young, JJ., concur. Settle order on notice.