In re the Final Judicial Settlement of the Account of Proceedings of Wenner

Appellate Division of the Supreme Court of New York

In re the Final Judicial Settlement of the Account of Proceedings of Wenner

125 A.D. 358, 110 N.Y.S. 694, 1908 N.Y. App. Div. LEXIS 2783

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 23, 1908

StatusPublished

Cited by12 cases

This text of 125 A.D. 358 (In re the Final Judicial Settlement of the Account of Proceedings of Wenner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Final Judicial Settlement of the Account of Proceedings of Wenner, 125 A.D. 358, 110 N.Y.S. 694, 1908 N.Y. App. Div. LEXIS 2783 (N.Y. Ct. App. 1908).

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Opinions

Chester, J.:

By the will of the testatrix legacies aggregating $18,900 in' amount were given to various persons. On the accounting it was [359]*359found that the balance remaining in the hands of the executor for distribution among the persons entitled thereto as legatees under the will was the sum of $12,195.73. Among such legacies was one of $2,500 to Mary Disenroth, a sister of the testatrix. By another of such legacies the testatrix gave to Jacob Wenner the sum of $5,000 in trust, to be invested by him, and to pay the interest and income arising therefrom “ for the care, support and maintenance of my said' beloved sister, Mary Disenroth, for and during her natural life,” with the remainder to said Jacob Wenner. Other bequests were made to various persons. There not being sufficient assets to pay the legacies in full the surrogate, by the decree appealed from, has held that all the legacies, including that to Jacob Wenner for the care, support and maintenance of the sister of the testatrix, abate pro rata. The correctness of this determination is the only question presented for our consideration.. Under section 2721 of the Code of Civil Procedure it is provided that “if there are not sufficient assets then an abatement of the general legacies must be made in equal proportions.” This is a general legacy within the definition of such a legacy given in the opinion of Haight, J., in Crawford v. McCarthy (159 N. Y. 518), where he says: “ A general legacy is a gift of personal property by a last will and testament, not amounting to a bequest of a particular thing or money, or of a particular fund designated from all others of the same bind.” The appellant insists that the legacy of $5,000 is saved from the operation of the provision of the Code referred to because it is a legacy given for the support and maintenance of a near relative. It is true that the legacy was given for the support and maintenance of a sister of the deceased, but under the authorities it is not sufficient in order to prevent abatement because of insufficiency of assets that the legacy is for the support and maintenance of a near relative, for it must also appear that such relative is “ otherwise unprovided for.” (JBMven v. Seymour, 88 N. Y. 469; Scofield v. Adams, 12 Hun, 370; Stewart v. Chambers, 2 Sandf. Ch. 382, 393.) There is nothing in this record showing that the sister was unprovided for; on the other hand, there is given by this will another legacy of $2,500 absolutely to this sister, so to that extent here is evidence that she was otherwise provided for. The sister was a party to this accounting. [360]*360¡No evidence was given outside of'the will itself upon the subject. She has not appealed from the decree of the surrogate holding that all the legacies abate, including the ones for her benefit. The appeal is by the person entitled to the residue after the trust has ceased, and appears to be prosecuted for his benefit rather than for the benefit of the sister. There is nothing appearing in the record showing that the sister was dependent upon the testatrix for support, nor that the moneys left in trust for her support and maintenance were necessary for that purpose. Under the circumstances presented here there appears no reason for disturbing the decree of the surrogate. The decree should be affirmed, with costs.

All concurred, except Kellogg, J., dissenting in opinion.

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Chester, J.:

By the will of the testatrix legacies aggregating $18,900 in' amount were given to various persons. On the accounting it was [359]*359found that the balance remaining in the hands of the executor for distribution among the persons entitled thereto as legatees under the will was the sum of $12,195.73. Among such legacies was one of $2,500 to Mary Disenroth, a sister of the testatrix. By another of such legacies the testatrix gave to Jacob Wenner the sum of $5,000 in trust, to be invested by him, and to pay the interest and income arising therefrom “ for the care, support and maintenance of my said' beloved sister, Mary Disenroth, for and during her natural life,” with the remainder to said Jacob Wenner. Other bequests were made to various persons. There not being sufficient assets to pay the legacies in full the surrogate, by the decree appealed from, has held that all the legacies, including that to Jacob Wenner for the care, support and maintenance of the sister of the testatrix, abate pro rata. The correctness of this determination is the only question presented for our consideration.. Under section 2721 of the Code of Civil Procedure it is provided that “if there are not sufficient assets then an abatement of the general legacies must be made in equal proportions.” This is a general legacy within the definition of such a legacy given in the opinion of Haight, J., in Crawford v. McCarthy (159 N. Y. 518), where he says: “ A general legacy is a gift of personal property by a last will and testament, not amounting to a bequest of a particular thing or money, or of a particular fund designated from all others of the same bind.” The appellant insists that the legacy of $5,000 is saved from the operation of the provision of the Code referred to because it is a legacy given for the support and maintenance of a near relative. It is true that the legacy was given for the support and maintenance of a sister of the deceased, but under the authorities it is not sufficient in order to prevent abatement because of insufficiency of assets that the legacy is for the support and maintenance of a near relative, for it must also appear that such relative is “ otherwise unprovided for.” (JBMven v. Seymour, 88 N. Y. 469; Scofield v. Adams, 12 Hun, 370; Stewart v. Chambers, 2 Sandf. Ch. 382, 393.) There is nothing in this record showing that the sister was unprovided for; on the other hand, there is given by this will another legacy of $2,500 absolutely to this sister, so to that extent here is evidence that she was otherwise provided for. The sister was a party to this accounting. [360]*360¡No evidence was given outside of'the will itself upon the subject. She has not appealed from the decree of the surrogate holding that all the legacies abate, including the ones for her benefit. The appeal is by the person entitled to the residue after the trust has ceased, and appears to be prosecuted for his benefit rather than for the benefit of the sister. There is nothing appearing in the record showing that the sister was dependent upon the testatrix for support, nor that the moneys left in trust for her support and maintenance were necessary for that purpose. Under the circumstances presented here there appears no reason for disturbing the decree of the surrogate. The decree should be affirmed, with costs.

All concurred, except Kellogg, J., dissenting in opinion.

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125 A.D. 358, 110 N.Y.S. 694, 1908 N.Y. App. Div. LEXIS 2783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-final-judicial-settlement-of-the-account-of-proceedings-of-wenner-nyappdiv-1908.

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