In re Scheidler's Estate — 27 N.Y.S. 7

Majority

p. 7

(75 Hun, 185.)

In re SCHEIDLER’S ESTATE.

(Supreme Court, General Term, First Department.

January 12, 1894.)

Headnote

Executors and Administrators—Compelling Payment oe Legacy.

The surrogate may order an administrator to pay a legacy, though an action by the administrator is pending in the supreme court for a construction of the will, where it appears that the administrator had theretofore been compelled to account, as he could have obtained a construction of the will on the accounting.

Appeal from surrogate’s court, New York county.

Proceeding to compel the administrator of the estate of Theodore Scheidler, deceased, to pay a legacy. From an order directing payment of the legacy, the administrator appeals. Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

John Branden, for appellant.

Henry Schmitt, for respondent.

It appears that this will was admitted to probate on November 30, 1886, and that the administrator failed to account until compelled to do so by order of the surrogate, dated November 11, 1892. Upon such accounting, the administrator, if he had desired a construction of the will, could have had the proper parties brought in, and the will construed, and there was no necessity for the filing of a bill in the supreme court for that purpose, the evident object of which, in view of his delay and failure to serve the necessary parties, was to secure additional delay. Under these circumstances, we think the surrogate was entirely justified in directing payment of the legacy, notwithstanding the pendency of the action for the construction of the will; particularly as it appeared that the plaintiff had not taken any steps even to serve most of the defendants in.the action. The order appealed from should be affirmed, with costs and disbursements.