In re the Judicial Settlement of the Estate of Fleming

51 Misc. 662, 102 N.Y.S. 204

• Court: New York Surrogate's Court
• Decided: July 1, 1906
• Status: Published

Opinion

Church, S.

By the second codicil of the will in question a life interest in the property mentioned was given directly to the husband, subject to the payment of an annuity to the sister of the deceased. The trust scheme of the will was, therefore, set aside; and, consequently, the life tenant is entitled to the immediate possession of such property. This should not be done, however, until a bond satisfactory to the remainderman is given for the proper conduct of the life tenant.

Under these circumstances, it also follows that the executors are also entitled to their commissions, irrespective of whether the property is reduced to cash or not. These commissions should be divided equally between them, and there is no reason shown why the costs of the proceeding should be charged against Fleming personally. An allowance will be made to the accounting executor only; twenty-five dollars costs and fifty dollars for the per diem compensation provided for by the Code.

As neither decree corresponds with my decision, parties must submit an amended decree in conformity with same.