In re the Estate of McCarroll

New York Surrogate's Court

In re the Estate of McCarroll

31 Misc. 2d 694, 220 N.Y.S.2d 974, 1961 N.Y. Misc. LEXIS 2081

DecidedNovember 14, 1961

StatusPublished

This text of 31 Misc. 2d 694 (In re the Estate of McCarroll) 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 McCarroll, 31 Misc. 2d 694, 220 N.Y.S.2d 974, 1961 N.Y. Misc. LEXIS 2081 (N.Y. Super. Ct. 1961).

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Opinion

John D. Bennett, S.

This is an accounting proceeding in which the petitioner requests a construction of the will and a determination of his fee for legal services rendered as attorney for the estate.

In her will the decedent bequeathed “ a one thousand dollar United States bond ’ ’, to each of her four sons and one to her granddaughter, Marilyn McCarroll. Using the same terminology, decedent left two similar bonds in separate testamentary trusts for the benefit of certain of her grandchildren. Upon decedent’s death she was in possession of three of the bonds. The proceeds of a fourth bond which had been cashed by one of the grandchildren were recovered by the executor. Ño other bonds of the decedent have been located. All of decedent’s sons have died, each leaving children.

The petition requests that the will be construed to allow the executor to sell the bonds on hand, and to prorate the proceeds among the interested parties in proportion to their respective interests.

The bequests of the bonds are general legacies, since no specific words were used to distinguish the bonds one from the other. The assets being insufficient to pay all these legacies leads to an abatement. The abatement is pro rata. Distribution will be made by representation pursuant to section 29 of the Decedent Estate Law.

The fee of the attorney for the estate is fixed in the sum of $300 for all services rendered, including the settlement of the decree hereon and the implementation thereof.

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John D. Bennett, S.

This is an accounting proceeding in which the petitioner requests a construction of the will and a determination of his fee for legal services rendered as attorney for the estate.

In her will the decedent bequeathed “ a one thousand dollar United States bond ’ ’, to each of her four sons and one to her granddaughter, Marilyn McCarroll. Using the same terminology, decedent left two similar bonds in separate testamentary trusts for the benefit of certain of her grandchildren. Upon decedent’s death she was in possession of three of the bonds. The proceeds of a fourth bond which had been cashed by one of the grandchildren were recovered by the executor. Ño other bonds of the decedent have been located. All of decedent’s sons have died, each leaving children.

The petition requests that the will be construed to allow the executor to sell the bonds on hand, and to prorate the proceeds among the interested parties in proportion to their respective interests.

The bequests of the bonds are general legacies, since no specific words were used to distinguish the bonds one from the other. The assets being insufficient to pay all these legacies leads to an abatement. The abatement is pro rata. Distribution will be made by representation pursuant to section 29 of the Decedent Estate Law.

The fee of the attorney for the estate is fixed in the sum of $300 for all services rendered, including the settlement of the decree hereon and the implementation thereof.

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Bluebook (online)

31 Misc. 2d 694, 220 N.Y.S.2d 974, 1961 N.Y. Misc. LEXIS 2081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-mccarroll-nysurct-1961.