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In re the Judicial Settlement of the Account of Robinson

37 Misc. 336 Court N.Y. Sur. Ct. English

Contents

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p. 336
Matter of the Judicial Settlement of the Account of Lewis G. Robinson, and Albert J. Adams, Jr., as Executors of Ida Robinson, Deceased.
(Surrogate’s Court, New York County,
February, 1902.)

Headnote

Legacy — When specific — Payment to infant <— Commissions thereon.
A legacy of a $25,000 mortgage to an infant, subject to a life estate in its income to the testator’s widow, is specific, the legal title, subject to the life estate, passes at once to the infant and on the death of the life tenant the principal may properly be paid the infant, without appointing an administrator with the will annexed of the testator.
Therefore as against the estate of the life tenant, since deceased, of the income of the mortgage and who was also the testator’s residuary legatee, no compensation can be allowed for procuring such an appointment.
Commissions are not allowed on a specific legacy.
Proceedings upon the judicial settlement of the accounts of executors.
William H. Human, for executors.
Blumenthal, Hoss & Feiner, for Simon Gallagher, residuary legatee.

The legacy of the mortgage for $25,000, con-

tained in the will of Daniel W. Robinson, to Ida R. Adams, subject to the income thereof being paid to his wife during her life, was specific, and not general. Walton v. Walton, 7 Johns. Ch. 258 ; Crawford v. McCarthy, 159 N. Y. 514 . The legal title to the mortgage, subject to the life interest of the wife, passed directly from the testator to the legatee, it appearing that the estate of the testator was solvent and that the executrix did not have any title based upon her right and duty to provide for payment of debts. Blood v. Kane, 130 N. Y. 514 . On the death of the widow, who was also the executrix and residuary legatee, and whose estate is now being administered, the mortgage could properly have been satisfied by payment to Ida R. Adams. The fact that Ida R. Adams was then an infant, and that her general guardian was also the mortgagor, did not divest the title of the security out of her, or make it legally necessary to have an administrator with the will annexed of Daniel W. Robinson appointed. Such appointment was not necessary for the administration of the estate of Daniel W. Robinson, and no compensation for procuring it can be awarded so as to make it payable out of assets properly converted by the deceased executrix to her own use, in accordance with her rights as residuary legatee. The legacy of the mortgage being specific, no commissions on 'it can be allowed. Hall v. Tryon, 1 Dem. 296 . The claim submitted on the stipulated facts is, therefore, disallowed.

Decreed accordingly.

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