In re the Judicial Settlement of the Accounts of Roffo

Majority

p. 35

In the Matter of the Judicial Settlement of the Accounts of Millie Roffo, as Surviving Executrix, etc., of John B. Roffo, Deceased, and as Executrix, etc., of Mary Roffo, Late Executrix, etc., of John B. Roffo, Deceased. Julia Oishei, Appellant; Millie Roffo, as Surviving Executrix, etc., Respondent.

Headnote

Security required of one asking for the possession of personalty bequeathed to her for life — security required of an executrix continuing to hold property for another’s life

A testator gave to his widow the use of his entire estate for life, and upon her death bequeathed one-half thereof to each of his two daughters during their respective lives, with remainder’ to their children living at the time of their death, and in the event of*one of the daughters dying without leaving, any • lineal descendants surviving, he provided that the property given to such daughter for life should become vested in the children, if .any, of the surviving daughter.

Only one of the testator’s daughters was married, and the widow and the unmarried daughter were appointed executrices.

Upon the death of the widow and the judicial settlement of the accounts of the unmarried daughter, it was

Held, that the married daughter, who had several children, as a condition of obtaining possession of one-half of the estate, which amounted to $30,142 in personalty, was properly required tó executé a bond in the penalty of $15,200; That, in the event of the unmarried daughter paying to herself the other one-half, she should give a similar bond;

That, if neither daughter should elect to give the bond, the unmarried daughter shodld not be permitted to retain the custody of the fund, as executrix, without giving security.

Appeal by Julia Oishei, one of the legatees herein, from so much of a decree of the Surrogate’s Court of the county of Erie, entered

p. 36

in said Surrogate’s Court on the -29th day of July, 1899, settling the account of Millie Roffo, as surviving executrix, etc., of John Bl Roffo, deceased, as requires the said Julia Oishei to give a bond in the penalty of $15,200, with not less than two sufficient sureties, to' be approved by the surrogate of Erie county, conditioned according to law and running for the benefit of the person entitled thereto, after the determination of said life estate under and pursuant to the terms of the will .of said John B. Roffo, deceased ¡, and in case of the non-compliance of said Julia Oishei in the giving, of the said bond, that the corpus of said personal estate remaining in her possession shall be and remain in the hands of said suiwiving executrix, as such executrix, to be administered by her according to the terms of the will and subject to the further order and directions of this court.

Charles Oishei, for the appellant.

Charles M. Harrington, for the respondent executrix.

Edward T. Durand, special guardian.

By the will of John B. Roffo, Mary Roffo, his widow, upon his decease, became entitled to the use during her life of whatever property he left. The widow and 'an • unmarried daughter, were his executrices. He died in August, 1887,‘and his will was thereupon admitted to probate' and letters testamentary issued. The property seems to have been managed by the widow although the securities and money were kept in the names of the executrices. No settlement was had during the lifetime oi die widow. After her death, which occurred in January, 1899, a judicial settlement of the account of the surviving executrix was had in the Surrogate’s Court of Erie county, and the decree adjusting the same entered and the appeal was taken from a portion thereof. '

Upon the death of the widow an undivided one-half of ,liis estate-passed to Julia Oishei “ for and during the term of her natural life” with 6the use and enjoyment, rents, issues and profits” thereof, and upon the decease of the said daughter the corpus of the property is to pass to her children then living.

A like bequest and devise was made to Millie Roffo with a

p. 37

similar disposition of the body of the estate upon her death. In the event of no children or descendants in the lineal line of one of the daughters, the property going for life to the one so bereft was to become vested in the children, if any, of the surviving daughter.

Julia Oishei has seven minor children, and Millie Roffo at the time of the entry of the-decree .was unmarried.. The personal estate remaining in the custody of the surviving executrix, after the payment of the expenses of administration and the commissions, amounts-, to $30,141.99. Julia Oishei demanded the transfer and payment to her of one-lialf of this amount and the decree directs this to be done upon the execution of a bond with two sureties in the penalty of $15,200, to be approved by the surrogate. This was a very proper requirement and the only criticism that can be given to the determination of the Surrogate’s Court is its leniency in permitting the penalty of the bond to be only in the sum of the property transferred instead of double that sum as is- usual. Inasmuch as the question of the inadequacy of the penalty prescribed has not been raised, we do not feel called upon to interfere with the disposition made by that court. In the decision of matters of this kind the interests of the ultimate beneficiaries are the controlling-factors for the court to consider, and in this case if this property is. to be turned over to Julia Oishei to manage and' control, certainly her children should be assured of its passing to them undiminished upon the termination of her life tenancy.

It is not entirely clear that it was the intention of the testator to permit each of these daughters to have the possession of one-lialf of the personal estate upon the death of their mother. In any event, the transfer ought not to be made until adequate security has been given for the return of the principal. (Matter of McDougall, 141 N. Y. 21 ; Livingston v. Murray, 68 id. 485 ; Matter of Grant, 86 Hun, 617 .)

The decree directs that, in the event of the surviving executrix - paying over to herself the one-half to which she is entitled during life, she also give a bond with a like penalty to that prescribed for her sister Julia. This permits the executrix to retain the custody of this fund, and without security, as well as that of the one-half going to the sister, unless the latter elects to give the bond required. Millie Roffo is the only remaining executrix, and the personal prop

p. 38

erty committed to lier is quite large, and it would seem Vvery judicious for the Surrogate’s Court, upon a proper application, to require the executrix,to give security for the retention of this property, or, if she decline's: to do so, to exact its payment and transfer into court. It may be well said that her circumstances do not afford adequate security in view of the- long time which may ■ elajise before the property reaches the real beneficiaries.. The requirement of the bond is especially important if the executrix has intermarried with an alien since the entry of the decree, as stated in the brief of the special guardian.

The decree of the Surrogate’s Court should be affirmed, with costs of the respondent, including the special guardian on this appeal, to be paid out of the estate, but without prejudice to an application to the Surrogate’s Court requiring the executrix- to give security as above indicated.

All concurred.

Decree of the Surrogate’s Court affirmed, with costs, to the respondent and special guardian, payable out of the estate.

Cases cited

In re the Judicial Settlement of the Accounts of McDougall 141 N. Y. 21 N.Y. 1894-01-16 p. 37