In re the Accounting of Wilson

The facts presented for our consideration are not in dispute. They are established by court documents, exhibits and a stipulation of the parties to a statement of facts proven pursuant to rule 230 of the Buies of Civil Practice. In 1929, one Maria Eckerlein recovered judgment against Leslie B. Wilson, (hereinafter referred to as debtor) the now deceased respondent. Thereafter, in March of 1945, his mother, Kate B. Wilson, died leaving a will and codicil, which were probated in April, 1945, by which he received as a legacy one third of her residuary estate. The remaining two thirds were divided between his brother and sister. Only personalty is here involved.

Some ten months after the death of the debtor’s mother and on January 10, 1946, a third party order in supplementary proceedings, in connection with the judgment mentioned, was served upon his brother as an executor. It was returnable on January 29th, and contained an injunction forbidding transfer or disposition of ahy property or debts due the debtor. On his examination the executor testified that the value of the debtor’s legacy was approximately $12,000.

Pursuant to an order in supplementary proceedings issued on January 12th, returnable on January 29th, and served personally, the debtor was examined. That order restrained him from making or suffering any transfer or other disposition of, or interference with any of his property. Two questions and

“ 111 Q. By the terms of the Last Will and Testament and Codicil of your deceased mother, Kate B. Wilson, what interest have you in her Estate? A. One third of the residuary estate.”

‘ ‘ 123 Q. What do you figure and compute at this time, approximately, that there is still due to be paid to you by the executors of the estate, in settlement and payment of your interest in the estate? A. I have no idea what it will amount to.”

He further testified that neither his brother nor his sister (the two executors) had made any payments to him on account of his interest in the estate and that he had made no assignment of such interest. At the conclusion of the examination on January 29th, a receiver was appointed whose title to the debtor’s personal property was fixed in the order of his appointment as January 17th.

In this proceeding by the executors of the will of Kate B. Wilson, deceased, for an accounting and other relief, the courts below have upheld the validity of the judgment debtor’s purported renunciation of his legacy while the supplementary proceedings were pending.

We all agree that the debtor had a reasonable time, after his mother’s death and the probate of her will, within which to renounce his legacy. During such period the presumption was that he would accept it when'he had the opportunity since it was beneficial to him, at least where there were “ no rights or new considerations intervening the probate of the will and the refusal or acceptance by- the devisee ” or legatee. (Albany Hosp. v. Albany Guardian Soc., 214 N. Y. 435 , 443.) However, if á reasonable time elapses during which a legatee

It is not enough, therefore, to have only in if the debtor Wilson renounced his legacy within a reasonable time, such renunciation would relate back to the date of the death of his testatrix. Under the circumstances here presented, the equally, if not more important question is, did the debtor have any property right in the legacy during the passage of the reasonable time allowed him for renunciation. As we have seen if nothing was done, the legacy was his. If he died it would pass to his distributees or creditors — even in a case where he did not know of its existence. He could allow a reasonable time to elapse or, during its passage, could evidence, by word or deed, acceptance or renunciation. Eenunciation is a word of art at common law and was quite important when realty and title thereto was involved as is made clear in Albany Hosp. v. Albany Guardian Soc. (supra). As to personalty, however, it is no longer a matter of common law solely but, in this State at least, a matter of statute. We speak of a vested legacy as distinguished from a contingent one and as vesting immediately upon the death of a testatrix. (2 Jessup-Bedfield’s Law and Practice in the Surrogates’ Courts [3d ed.], § 929.) It is assignable. By statute ('Civ. Prac. Act, § 916) it may be reached by levy of attachment. Section 916 makes no qualification in its language as to whether a legacy has been accepted or renounced. It treats the legacy as belonging to the legatee. The presumption that one will accept is assumed in that statute as one of existing fact. If the legacy is renounced within a reasonable time after decedent’s death, it is true that the renunciation relates back to the date of death and that it may then be said that there never was a legacy but the question remains as to what a legatee has during the passage of such reasonable time. It may be considered as a gift which may be rejected within a reasonable time or even the offer of a gift which may be rejected within a reasonable

As we have said, the debtor allowed ten months to pass after the death of his mother without taking any action. "What is a reasonable time to be allowed for renunciation must always depend upon the facts of the particular case. We deal with this record and our interpretation of it. The acceptance of a devise or bequest being a question of fact (Oliver v. Wells, 254 N. Y. 451 , 460-461) the time within which a devisee or legatee may be required to act to rebut or overcome the presumption of acceptance is a reasonable time which will vary with the circumstances of each case. Since the Surrogate’s Court historically and by statute (Surrogate’s Ct. Act, § 40) is an equity court and equity and good conscience require that a man pay his contract obligations, the time allowed for action should be shorter when the effect of renunciation will be to prevent satisfaction of a judgment in whole or in part. We had this in mind in Oliver v. Wells (supra, pp. 459-460 ), when, in discussing the question of an election to take a conditional bequest, we said (Cardozo, Ch. J.): “ The general principle is that election must be made within a time that is equitable in the light of all the circumstances. This time may be very long, if injury to others will not result from the delay, and by the same token very short if the failure to act promptly may work injury or hardship (1 Pomeroy Equity Juris. [4th ed.] § 513; Halsbury Laws of England, title Equity, §§ 141, 144, and cases there collated).” (Emphasis supplied.)

If the debtor here had assigned his legacy, that would have disclosed his acceptance by act. He could also evidence by

It is sufficient in this case to say that the debtor had a property right in the legacy, that he was enjoined from disposing of it and that the uncontradicted and stipulated proof established as matter of law both acceptance of it by passage of time and by word and conduct so that his power of renunciation had been lost to him prior to his attempt to exercise, it.

The order of the Appellate Division should be reversed, with costs and the decree of the Surrogate’s Court modified by directing that the residuary share payable to Leslie B. Wilson, the distributee, be paid to the receiver to be applied toward satisfaction of the judgment and interest.

(dissenting). By its decision, the court is holding that no conclusion is possible on this record other than that the debtor accepted the legacy. I cannot agree; in my view, there was sufficient evidentiary basis for the determination made by the Surrogate’s Court and unanimously affirmed by the Appellate Division.

As presented in the court’s opinion, the case poses one simple question: did the legacy vest in the debtor on or by February 4. 1946, the date on which he filed a renunciation of the bequest to him?

Under this settled rule, it is the beneficiary and he alone who determines whether he will own the property, for, as this court remarked nearly a century ago, “ the law does not compel a man to accept an estate, either beneficial or in trust, against his will ”. (Burritt v. Silliman, supra, 13 N. Y., at p. 96; see, also, Schoonover v. Osborne, supra, 193 Iowa 474 , 479.). And, since an acceptance is prerequisite to the vesting of the gift, it follows that a prior renunciation will be effective to prevent the passage of any interest to the beneficiary, even though that renunciation was manifestly designed to avoid some burdensome condition attached to the gift by the testator (see Winguist v. Doering, 135 Kan. 92 ), to escape the incidence of inheritance tax (see Matter of Wolfe, supra, 179 N. Y. 599 , affg. 89 App. Div. 349 ; Brown v. Routzahn, supra, 63 F. 2d 914 , certiorari denied 290 U. S. 641 ; People v. Flanagin, 331 Ill. 203 , supra; Matter of Stone, 132 Iowa 136 ; Tax Comm. of Ohio v. Glass, 119 Ohio St. 389 ), or to deprive creditors, including judgment creditors, of a means of satisfying their claims. (See Matter of Meiburg, supra, 1 F. Supp. 892 , 895; Schoonover v. Osborne, supra, 193 Iowa, at p. 477; Lehr v. Switzer, 213 Iowa 658 .) In short, the law does not delve into the motives which dictate the legatee’s acceptance or refusal, nor does it, in the absence of fraud or collusion, forbid a choice prompted by selfish reasons.

The power of a legatee to refuse is, then, precisely the same as that of a donee of a gift inter vivos, and, of course, it is perfectly evident that, if such a donee refuses to accept the gift, his creditors are completely powerless to compel his acceptance. The mere fact that the gift is provided for by will and that

Although it is true that a presumption operates in favor of acceptance, that presumption is not conclusive. (See Matter of Waring, supra, p. 189 ; Albany Hosp. v. Albany Guardian Soc., supra, pp. 440, 443 .) As a matter of evidence, it is completely rebutted by an effective renunciation. (See Albany Hosp. v. Albany Guardian Soc., supra, pp. 441-442 ; Defreese v. Lake, 109 Mich. 415 , 431; Gottstein v. Hedges, 210 Iowa 272 , 275.) Thus, the presumption fails -- and the court agrees to this — whenever there has been a timely and outright disclaimer of the gift, whether formally or informally, in writing or by parol, as long as the disclaimer was not preceded by an acceptance. Since there was in this case an explicit written renunciation, we need hut consider whether it was antecedent to acceptance; if it was, all will concede that the renunciation was effective, “ that there never was a' legacy ” (p. 403), and that the debtor took no property under the will.

The courts below have found as fact that there was no acceptance. The majority of this court, however, have decided that the record establishes an acceptance as matter of law, and it is from that conclusion that I am impelled to dissent.

As to what constitutes an acceptance, the law is plain. It may be either express, by proof of actual and outright acquiescence, or implied, by inference from the words and conduct of the legatee. There is no claim here that an acceptance was accomplished by explicit acts or words; rather, it is said to be established by “ passage of time and by word and conduct ” of the ‘ so that his power of renunciation had been lost to him prior to his attempt to exercise it ” (p. 405).

In reaching this conclusion, the court states that ‘ ‘ the debtor had a reasonable time, after his mother’s death and the probate of her will, within which to renounce his legacy ” (p. 402). Loss of his power to refuse a legacy is then predicated upon the passage of some ten months between the probate of the will and the date of the asserted renunciation. While I concede that under

And, certainly, such an acceptance is not to be found in the questions and answers from the debtor’s examination in supplementary proceedings. All that the legatee there declared was' that the will provided a gift in his favor and that he had not received any part of it. In the testimony quoted by Judge Cox-way (p. 402), I cannot see any more than a simple statement by the debtor that he was named as a legatee in his mother’s will, that his share amounted to one third of the residuary estate, and that he was unaware of its exact value. No duty existing to volunteer that he had renounced or planned to renounce his share, the debtor’s answers cannot be stretched or strained to spell out an acceptance as matter of law.

Nor may an acceptance be founded upon any theory of “ intervening rights and new considerations ”. This is not a case where the creditor, in extending credit to the debtor, relied either upon the legacy or upon his debtor’s supposed acceptance of it. (Cf. Daniel v. Frost, supra, 62 Ga., at p. 707.) There was here no change of position by the creditor, no action to his prejudice in reliance upon any act or conduct of the debtor vis-a-vis the legacy or the debtor’s asserted'acceptance of it. If the debtor had renounced the gift a day or two after the will was probated, the creditor would have received nothing and could have claimed nothing — and, as I read the opinion, the court makes no contrary suggestion. While the debtor’s delay in renouncing and his acknowledgment on the examination that the will named him a legatee may conceivably constitute some

The case would, of course, he different if the debtor had entered into a collusive agreement with those who would benefit by his renunciation. (See Schoonover v. Osborne, supra, 193 Iowa 474 ; Bradford v. Calhoun, supra, 120 Tenn. 53 , 60.) Suspicion of collusion cannot, however, take the place of evidence; and here there is not the slightest suggestion, much less proof, of collusion or fraudulent agreement among the several beneficiaries.

The order of the Appellate Division should be affirmed.

Lewis, DesmoNd and Dye, JJ., concur with Couway, J.; Fuld, J., dissents in opinion in which LoughraN, Ch. J., concurs.

Order reversed, etc.