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In re Kucielski's Estate

99 N.Y.S. 828 Court N.Y. Sur. Ct. English

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p. 828
(49 Misc. Rep. 404.)
In re KUCIELSKI’S ESTATE.
(Surrogate’s Court, New York County.
February, 1906.)

Headnote

1. Wills—Rights of Legatees—Interest on Legacies—Law- Applicable.
The question of the interest on legacies is governed by the law of the place of decedent’s last domicile.
. [Ed. Note.—For cases in point, see vol. 49, Cent. Dig. Wills, § 1848.]
2. Executors and Administrators—Law of Forum.
Matters of procedure in the settlement of estate of a nonresident are governed by the law of the state.
[Ed. Note.—For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 2.]
3. Same—Distribution of Estate—Reservation of Assets—Transfer Tax-Appeal.
Where an appeal is pending to determine the liability of an estate for a transfer tax, a fund will be reserved for the payment of the tax in case such liability is finally established.
[Ed. Note.—For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 1315-1318.]
_ In the matter of the estate of Felix■ Kucielski. Accounting of ancillary administrator. Decree entered.
Parsons, Closson & Mcllvaine, for Cooper Union.
Hughes, Rounds & Schurman, for ancillary administrator.

The question of interest on the legacies is governed by the law of Austria, the place of the decedent’s last domicile. Code Civ. Proc. § 2694; N. Y. Life Ins. & Trust Co. v. Viele, 161 N. Y. 11 , 55 N. E. 311 , 76 Am. St. Rep. 238 ; Whart. Confl. Laws (3d Ed.) § 599c. It was shown that, by the laws of Austria, interest is not allowed upon pecuniary legacies at the expense of residuary legatees, and that all legacies share pro rata in the entire income, and are' charged pro rata with the administration expenses. The income in this case will barely suffice to pay expenses of administration. No interest will therefore be allowed upon the legacy to Cooper Union.

This court having decided that the said legacy is not liable to transfer tax, the objection of the legatee to the payment of such tax is sustained. In view, however, of the fact that an appeal is pending from that decision, an amount equal to such payment will be reserved from distribution until the determination of the appeal, and the decree will so provide.

• Matters of procedure here being governed by the law of this state, thé ancillary administrator will be allowed his costs and commissions. Tax costs and settle findings and decree on notice. Decreed accordingly.

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