In re the Judicial Settlement of the Account of Proceedings of Hewitt

Appellate Division of the Supreme Court of New York

In re the Judicial Settlement of the Account of Proceedings of Hewitt

259 A.D. 838, 1940 N.Y. App. Div. LEXIS 6925

Appellate Division of the Supreme Court of the State of New York·Decided April 15, 1940·Published·Cited by 1 cases

Opinion

Proceeding for the judicial settlement of the account of trustees. The court is of the opinion that the trusts set forth in paragraph “ Seventh ” of the will of Belle L. Shaw, widow of Harry B. Peace, deceased, for the benefit of the children of her son, H. Ward Peace, [839]*839are Void as to the estate over which she had the power of appointment because of the partial failure of such power of appointment (Matter of Horner, 237 N. Y. 489, 500), and the property involved therein is to be disposed of according to testator’s will as if it were real property as to which the said Harry B. Peace had died intestate. As a result the appointive estate of Belle L. Shaw will go to her son, H. Ward Peace, father of said children. Under such circumstances equitable considerations require that the appointive estate bear the burden of legacies amounting to $19,000; debts, $1,119.50; commissions, $1,500; attorneys’ fees, $3,000; miscellaneous, $50; estate taxes, $3,995.03; total, $28,664.53. (Fargo v. Squiers, 154 N. Y. 250.) There was a charge for legal services rendered from September 30, 1925, to September, 1935, amounting to $1,500. Of this, $500 were charged against appellant. It appears that he received one of the quarter interests in the estate when he reached thirty-five, which was five years before the accounting period. The amount of the charge for legal services as to him should be reduced by $250, and the balance charged equally against the two remaining interests, of which appellant holds one. The decree of the Surrogate’s Court of Queens County is modified in accordance with the foregoing views and, as so modified, unanimously affirmed, with costs to all parties filing briefs, payable out of the estate of Harry B. Peace, deceased, and the matter remitted to the Surrogate’s Court for the entry of a decree accordingly. The order denying appellant’s application for an allowance of counsel fee is unanimously affirmed, without Costs. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. Settle order on five days’ notice.

Free access — add to your briefcase to read the full text and ask questions with AI

Proceeding for the judicial settlement of the account of trustees. The court is of the opinion that the trusts set forth in paragraph “ Seventh ” of the will of Belle L. Shaw, widow of Harry B. Peace, deceased, for the benefit of the children of her son, H. Ward Peace, [839]*839are Void as to the estate over which she had the power of appointment because of the partial failure of such power of appointment (Matter of Horner, 237 N. Y. 489, 500), and the property involved therein is to be disposed of according to testator’s will as if it were real property as to which the said Harry B. Peace had died intestate. As a result the appointive estate of Belle L. Shaw will go to her son, H. Ward Peace, father of said children. Under such circumstances equitable considerations require that the appointive estate bear the burden of legacies amounting to $19,000; debts, $1,119.50; commissions, $1,500; attorneys’ fees, $3,000; miscellaneous, $50; estate taxes, $3,995.03; total, $28,664.53. (Fargo v. Squiers, 154 N. Y. 250.) There was a charge for legal services rendered from September 30, 1925, to September, 1935, amounting to $1,500. Of this, $500 were charged against appellant. It appears that he received one of the quarter interests in the estate when he reached thirty-five, which was five years before the accounting period. The amount of the charge for legal services as to him should be reduced by $250, and the balance charged equally against the two remaining interests, of which appellant holds one. The decree of the Surrogate’s Court of Queens County is modified in accordance with the foregoing views and, as so modified, unanimously affirmed, with costs to all parties filing briefs, payable out of the estate of Harry B. Peace, deceased, and the matter remitted to the Surrogate’s Court for the entry of a decree accordingly. The order denying appellant’s application for an allowance of counsel fee is unanimously affirmed, without Costs. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. Settle order on five days’ notice.

In re the Judicial Settlement of the Account of Proceedings of Hewitt, 259 A.D. 838, 1940 N.Y. App. Div. LEXIS 6925 (N.Y. Ct. App. 1940).

Pincite

259 A.D. 838 (In re the Judicial Settlement of the Account of Proceedings of Hewitt) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related