In re the Estate of Plummer

New York Surrogate's Court

In re the Estate of Plummer

3 Mills Surr. 244, 38 Misc. 536, 77 N.Y.S. 1115

DecidedJuly 15, 1902

StatusPublished

This text of 3 Mills Surr. 244 (In re the Estate of Plummer) 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 Plummer, 3 Mills Surr. 244, 38 Misc. 536, 77 N.Y.S. 1115 (N.Y. Super. Ct. 1902).

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Opinion

Thomas, S.

While this court may not in all cases adjudge that the real property of a testator remaining unsold is chargeable with a lien for legacies, a jurisdiction exists in a surrogate on the accounting of an executor to determine the ownership of the cash proceeds of land sold by such executor under a power. Such proceeds constitute assets for the payment of debts (Erwin v. Loper, 43 N. Y. 521; Glacius v. Fogel, 88 id. 434; Matter of Powers, 124 id. 361), and where legacies are, by the will, charged upon land sold, a surrogate may direct payment of such legacies out of the proceeds of sale of such land. Matter of Vandevort, 8. App. Div. 341. It follows of necessity that he may determine*, whether the legacies are so charged as an incident to the exercise; of this jurisdiction. Matter of Grotrian, 30 Misc. Rep. 23. TEe money legacies directed by the testator to be paid largely exceeded the entire amount of his personal estate at the time of the execution of the will and at all times thereafter. The testator gave to his executors unlimited power to sell his real property and convert it into money. Ho division of his real property was directed that would require this power of sale, and from the whole tenor of the will I am satisfied that its primary purpose was to enable the executors to pay the legacies. I will therefore determine that the legacies are charged upon the real estate. The Hew York Medical College and Hospital for Women was not created under the Membership Corporations Act, and the words in the charter granted to it by the board of regents in 1895 did not suffice to impose upon it any disability to accept a legacy-The legacy to it is valid to its full amount, notwithstanding the fact that the testator died within less than two months after the-execution by him of the codicil containing such legacy. Pritchard v. Kirsch, 58 App. Div. 332, affd., 171 N. Y. 637. Tax costs and settle decree on notice.

Decreed accordingly.

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Thomas, S.

While this court may not in all cases adjudge that the real property of a testator remaining unsold is chargeable with a lien for legacies, a jurisdiction exists in a surrogate on the accounting of an executor to determine the ownership of the cash proceeds of land sold by such executor under a power. Such proceeds constitute assets for the payment of debts (Erwin v. Loper, 43 N. Y. 521; Glacius v. Fogel, 88 id. 434; Matter of Powers, 124 id. 361), and where legacies are, by the will, charged upon land sold, a surrogate may direct payment of such legacies out of the proceeds of sale of such land. Matter of Vandevort, 8. App. Div. 341. It follows of necessity that he may determine*, whether the legacies are so charged as an incident to the exercise; of this jurisdiction. Matter of Grotrian, 30 Misc. Rep. 23. TEe money legacies directed by the testator to be paid largely exceeded the entire amount of his personal estate at the time of the execution of the will and at all times thereafter. The testator gave to his executors unlimited power to sell his real property and convert it into money. Ho division of his real property was directed that would require this power of sale, and from the whole tenor of the will I am satisfied that its primary purpose was to enable the executors to pay the legacies. I will therefore determine that the legacies are charged upon the real estate. The Hew York Medical College and Hospital for Women was not created under the Membership Corporations Act, and the words in the charter granted to it by the board of regents in 1895 did not suffice to impose upon it any disability to accept a legacy-The legacy to it is valid to its full amount, notwithstanding the fact that the testator died within less than two months after the-execution by him of the codicil containing such legacy. Pritchard v. Kirsch, 58 App. Div. 332, affd., 171 N. Y. 637. Tax costs and settle decree on notice.

Decreed accordingly.

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3 Mills Surr. 244, 38 Misc. 536, 77 N.Y.S. 1115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-plummer-nysurct-1902.

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