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

257 A.D. 985, 12 N.Y.S.2d 824, 1939 N.Y. App. Div. LEXIS 8817

Opinion

The motion is referred to the court that rendered the decision on appeal. Present — Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ. On motion of the appellant, the decision of this court, handed down May 29, 1939 [ante, p. 862], is amended to read as follows: Appeal from so much of a decree of the Surrogate’s Court, Queens county, judicially settling the account of an executor, as overrules and dismisses objections to said account. At the time of the death of testator an installment of interest and a balance of an installment of taxes had fallen due and become payable. The property had also been assessed for the purpose of ascertaining the amount of taxes for the year subsequent to the testator’s death. Decree, in so far as appealed from, affirmed, with costs to respondent, payable out of the estate. Even prior to the amendment of section 250 of the Real Property Law, in effect September 1, 1937 (Laws of 1937, chap. 75), accrued interest was a burden to be assumed by a devisee. (Carpenter v. Carpenter, 131 N. Y. 101, 108; Matter of Rosenstein, 152 Misc. 777, 782; Taylor v. Wendel, 4 Bradf. Surr. 324, 330.) In our opinion, the amendment requires a devisee to take real property subject to all its burdens of whatever nature. To that extent, section 212 of the Surrogate’s Court Act must be deemed to be modified. Hagarty, Carswell, Adel and Close, JJ., concur; Lazansky, P. J., dissents as to balance of last installment of 1937 taxes, amounting to $256.33, which fell due and were payable November 1, 1937, being of opinion that the amendment of section 250 of the Real Property Law does not impliedly repeal subdivision 2 of section 212 of the Surrogate’s Court Act; otherwise concurs. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.