In re the Estate of Colwell

New York Surrogate's Court

In re the Estate of Colwell

15 N.Y. St. Rep. 742

DecidedMarch 5, 1888

StatusPublished

This text of 15 N.Y. St. Rep. 742 (In re the Estate of Colwell) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Colwell, 15 N.Y. St. Rep. 742 (N.Y. Super. Ct. 1888).

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Opinion

Ransom, S.

—The provision for the reservation of part of the funds distributable to the assignee of the legatee, who, it is claimed, was. indebted to the testator, which the executors ask to have inserted in the decree to be entered herein, may be incorporated therein. Neither the report of the referee nor the decision of my predecessor, by whom the report was confirmed, makes any reference to this particular question. They recognize the propriety of the inclusion in the account of the claim, but not the insertion in the decree of a provision for its payment. This treatment of the claim resulted obviously from the inability of the court to pass upon its validity. Of such inability there can be no doubt. Tucker v. Tucker, 4 Keyes, 136; Greene v. Day, 1 Dem., 45.

The disposition which might otherwise properly be made of it was doubtless intended to be left to be provided for by the decree. That disposition, I am satisfied, should be such as I have above indicated. The law regards a debt due the testator from one to whom he has given a legacy, as an asset of the estate in the hands of the legatee, and as a satisfaction, to the extent of such asset of the legacy. Clarke v. Bogardus, 12 Wend., 69; Matter of Bogart, 28 Hun, 468; Rogers v Murdock, 45 id., 32; Smith v. Murray, 1 Dem., 35; Rudd v. Rudd, 4 id., 335.

The executors insist that the claim in question is a valid and existing indebtedness, and that they have a right to satisfy it out of the legacy given to the alleged debtor. This is disputed by the assignee of the legatee. The court is powerless to decide this controversy or to gainsay the correctness of the position taken by the executors. Under the circumstances, and considering that the legacy exceeds [743]*743in amount the alleged indebtedness, it is hardly to be expected that the executors would be required to appeal to another tribunal to settle the dispute, even if they had the right to do so, which is not entirely clear. Of the right of the objectant to make such appeal there can be no doubt. She would, therefore, seem to be the proper person to make it.

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Ransom, S.

—The provision for the reservation of part of the funds distributable to the assignee of the legatee, who, it is claimed, was. indebted to the testator, which the executors ask to have inserted in the decree to be entered herein, may be incorporated therein. Neither the report of the referee nor the decision of my predecessor, by whom the report was confirmed, makes any reference to this particular question. They recognize the propriety of the inclusion in the account of the claim, but not the insertion in the decree of a provision for its payment. This treatment of the claim resulted obviously from the inability of the court to pass upon its validity. Of such inability there can be no doubt. Tucker v. Tucker, 4 Keyes, 136; Greene v. Day, 1 Dem., 45.

The disposition which might otherwise properly be made of it was doubtless intended to be left to be provided for by the decree. That disposition, I am satisfied, should be such as I have above indicated. The law regards a debt due the testator from one to whom he has given a legacy, as an asset of the estate in the hands of the legatee, and as a satisfaction, to the extent of such asset of the legacy. Clarke v. Bogardus, 12 Wend., 69; Matter of Bogart, 28 Hun, 468; Rogers v Murdock, 45 id., 32; Smith v. Murray, 1 Dem., 35; Rudd v. Rudd, 4 id., 335.

The executors insist that the claim in question is a valid and existing indebtedness, and that they have a right to satisfy it out of the legacy given to the alleged debtor. This is disputed by the assignee of the legatee. The court is powerless to decide this controversy or to gainsay the correctness of the position taken by the executors. Under the circumstances, and considering that the legacy exceeds [743]*743in amount the alleged indebtedness, it is hardly to be expected that the executors would be required to appeal to another tribunal to settle the dispute, even if they had the right to do so, which is not entirely clear. Of the right of the objectant to make such appeal there can be no doubt. She would, therefore, seem to be the proper person to make it.

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15 N.Y. St. Rep. 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-colwell-nysurct-1888.

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