In re the Estate of Plehn

New York Surrogate's Court

In re the Estate of Plehn

51 Misc. 2d 230, 272 N.Y.S.2d 877, 1966 N.Y. Misc. LEXIS 1637

CourtNew York Surrogate's Court

DecidedJuly 29, 1966

StatusPublished

Cited by1 cases

This text of 51 Misc. 2d 230 (In re the Estate of Plehn) 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 Plehn, 51 Misc. 2d 230, 272 N.Y.S.2d 877, 1966 N.Y. Misc. LEXIS 1637 (N.Y. Super. Ct. 1966).

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Opinion

Joseph A. Cox, S.

The testator executed his will on October 27, 1959 and died on October 13, 1963. This instrument bequeathed $5,000 to the petitioner, the testator’s sister, who seeks payment of the legacy in this proceeding. The will bequeaths like legacies to two brothers. It appears that on or about March 3, 1955 the petitioner borrowed $10,000 from the testator which has not been paid and, by the lapse of time, collection of the debt was barred by the Statute of Limitations at the time of the testator’s death. The issue presented is whether the executors may assert the right of equitable retainer and lien against the debtor-legatee in this circumstance.

[231]*231While the decisions of the lower courts are not in accord and our highest court has not ruled upon the question, there are appellate decisions of fairly recent vintage. In Matter of Riley (281 App. Div. 612) it was held in the Fourth Department that, in the absence of some expression of purpose in the will, an executor does not have the right of setoff and may not diminish a legacy by the amount of a debt which was outlawed by the Statute of Limitations at the time of the testator’s death. This conclusion was reached upon the language of Kimball v. Scribner, (174 App. Div. 845), a decision in the Second Department in an action at law to recover a legacy. In Matter of Eaton (282 App. Div. 32), a case in the Third Department decided a week after the Riley case, the court recognized the ruling of Kimball v. Scribner, as the prevailing rule in this State although the decision did not rest upon that ground since the debt there considered was enforcible at the testator’s death. This court accepts these precedents and, accordingly, the application to compel payment of the legacy is granted. Submit order on notice.

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Joseph A. Cox, S.

The testator executed his will on October 27, 1959 and died on October 13, 1963. This instrument bequeathed $5,000 to the petitioner, the testator’s sister, who seeks payment of the legacy in this proceeding. The will bequeaths like legacies to two brothers. It appears that on or about March 3, 1955 the petitioner borrowed $10,000 from the testator which has not been paid and, by the lapse of time, collection of the debt was barred by the Statute of Limitations at the time of the testator’s death. The issue presented is whether the executors may assert the right of equitable retainer and lien against the debtor-legatee in this circumstance.

[231]*231While the decisions of the lower courts are not in accord and our highest court has not ruled upon the question, there are appellate decisions of fairly recent vintage. In Matter of Riley (281 App. Div. 612) it was held in the Fourth Department that, in the absence of some expression of purpose in the will, an executor does not have the right of setoff and may not diminish a legacy by the amount of a debt which was outlawed by the Statute of Limitations at the time of the testator’s death. This conclusion was reached upon the language of Kimball v. Scribner, (174 App. Div. 845), a decision in the Second Department in an action at law to recover a legacy. In Matter of Eaton (282 App. Div. 32), a case in the Third Department decided a week after the Riley case, the court recognized the ruling of Kimball v. Scribner, as the prevailing rule in this State although the decision did not rest upon that ground since the debt there considered was enforcible at the testator’s death. This court accepts these precedents and, accordingly, the application to compel payment of the legacy is granted. Submit order on notice.

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Bluebook (online)

51 Misc. 2d 230, 272 N.Y.S.2d 877, 1966 N.Y. Misc. LEXIS 1637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-plehn-nysurct-1966.

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