McKay v. McAdam — 30 N.Y.S. 288

Majority

p. 288

(80 Hun, 260.)

McKAY v. McADAM.

(Supreme Court, General Term, Second Department

July 27, 1894.)

Headnote

1. Executors—Powers—Postponing Payment op Legacy.

Testator gave all lier property to her executor, in trust to pay her debts, and out of the rents of her realty to pay a mortgage and specific legacies, and declared that the executor should be sole and arbitrary judge when it should be convenient for him to pay the legacies. Edd not to empower the executor to postpone payment arbitrarily for an indefinite period, but that the postponement of payment was merely for the benefit of the estate.

"2. Wills—Validity—Unlawful Restraint of Alienation.

Though the will made the executor sole judge of when it would be convenient for him to pay the legacies, it did not thereby suspend the power of alienation, as the fee of the land rested in him, subject to the payment of the legacies, and as he could always sell the land subject to such charge.

Appeal from special term, Kangs county.

Action by James H. McKay against George H. McAdam, gs administrator. From an interlocutory judgment, overruling a demurrer to the complaint, defendant appeals. Affirmed.

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

George A. Stearns, for appellant.

Thos. Fenton Taylor, for respondent.

The demurrer was properly overruled. The complaint alleged the bequest of a legacy to the plaintiff’s assignor by the defendant’s testatrix, and its nonpayment after demand, and sets out in full the will containing the bequest. By it, it appears •that the testatrix gave all her property to Terrence Kenney, who was

p. 289

appointed executor in trust to pay her debts, and out of the rents of her real estate to pay (1) a mortgage on the property, of $500; (2) $50 a year to her husband, during his life; (3) to her grandniece, the legacy in question; (4) $600 to her brother Hugh. The will then provides as follows:

“Finally, my will is that the fee of my house, and the rest and residue of my property, shall vest in my executor, Terrence ICenney,—the net income from the same to be applied to the education and maintenance of his daughter, Mary Ann, as long as she shall live, and, in case of her death, then to vest absolutely in the said Terrence; my intention being that said Terrence shall be the sole and arbitrary judge of when it may be convenient for him to pay the said sum to my husband, my grandniece, and to my brother.’’

The complaint further alleges the death of Terrence Kenney on March 24, 1892, and the appointment of defendant as administrator with the will annexed, and “that said Kenney, as executor, and said McAdam, as his successor, * * * have ample funds, and that said trust is chargeable with funds more than sufficient to pay the legacies and the debts, as provided in said will to be paid.”

The gift to the plaintiff’s assignor is immediate, and the source of payment designated. It is therefore vested. Loder v. Hatfield, 71 N. Y. 100 . The postponement of the time of payment is for the convenience of the estate, and the provision making the executor the sole judge of when it would be convenient for him to pay the legacies did not empower Mm to postpone payment arbitrarily for an indefinite period. 2 Perry, Trusts, § 771. The allegation that defendant has ample funds to pay all the legacies and debts must be assumed to be true, for the purpose of this appeal; and, being true, it requires from defendant an answer wrhy he does not pay.

There is no ground for the claim that the will unlawfully suspends the power of alienation, or that there is direction for an illegal accumulation of rents. The fee of the real estate vested in Kenney, subject to the payment of the legacies; and he could always sell the land, subject to that charge, and convey a good title. The power of alienation is not, therefore, suspended at all. There is no direction to accumulate rents. The legacies are payable from the income as received, and there is nothing to prevent their payment in installments, if the parties choose to deal in that way.

It may be, that, upon the trial of this action, obstacles will exist, to a recovery by the plaintiff, that do not now arise, but in view of the allegation that Kenney, before his death, had, and defendant now has, ample funds to pay the debts and legacies, the demurrer was properly overruled. If it should appear that the defendant had received funds from Kenney’s estate belonging to the trust, and properly applicable to pay the legacy in suit, some of the objections which he now urges would be overcome. The judgment must be affirmed, with costs, with leave to defendant to answer in 20 days, on payment of costs. All concur.