In re Accounting of Jennings — 15 N.Y. St. Rep. 807

Majority

p. 807

Matter of Accounting of Joseph G. Jennings, as Administrator with the Will Annexed.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

1. Wills—Construction of—Legacies—When vesting.

A testator by his will made certain legacies, one to be paid upon his decease to his grandson, and directed the residue of his estate to be invested by his executors for the benefit of his widow, to whom the interest was to be paid during her natural life for her use and support. After the decease of the widow the whole estate was to be equally divided into five parts, one of which was to be paid to the grandson, and in case of his death, to his children. The grandson died before the’widow, leaving children entitled to his portion, but he owed a debt to the testator in his life-time, upon which the executors obtained judgment, which was unpaid at the death of the widow. The amount of this judgment was, upon the accounting of the administrators with the will annexed, deducted from the share of the estate belonging to the children of the judgment debtor, Held, that a bequest of property to one for life and after that to another, created a vested and not a contingent interest in the second legatee.

'2. Same—Judgment in favor of testator against legatee properly deducted FROM LEGACY.

Held, that both the legacies to the grandson vested in him at the death of the testator, and that the deduction of the amount of the judgment was properly made upon the accounting.

Appeal from a portion of a decree rendered by the surrogate’s court of Westchester county, on proceedings for the judicial settlement of the account of an administrator with the will annexed.

W. P. Platt, sp’l guardian in person, and for Wm. A. Par shall, gen’l guardian; S. H. Thayer, Jr., for adm’r resp’t: Gabriel Beers, for ex’r of Antoinette Barry, deceased, resp’t.

—This proceeding was instituted before the surrogate for the settlement of the accounts of Joseph Gr. Jennings, the administrator, with the will annexed of Samuel S. Barry, deceased, both of the executors named in the will being dead.

By the last will and testament of Samuel S. Barry, deceased, he gave legacies to various persons, and among others to his grandson, William Robert Hall, who was to be paid $1,000 upon the decease of the testator. Then the residue of the estate was to be invested by the executors for the benefit of the widow of the testator, to whom the interest was to be paid during her natural life for her use and support.

After the demise of the widow, the whole estate was to be equally divided into five parts, and one of such parts or portions was to be paid to William Robert Hall, and in case of his death to his children.

He died before the widow, leaving children who are en

p. 808

titled to his portion, but he was indebted to the testator in his lifetime, and the executors obtained a judgment upon the claim, which was unpaid when the widow died, and upon this accounting the judgment was deducted from the share of the estate belonging to the children of the judgment debtor, and they have appealed from the decree assigning such deduction for error.

The appeal is from so much of the decree as charges the share of the appellants with the judgment against their father, and the only question involved in the appeal has. reference to the legality of such charge.

If the legacy to William E. Hull, which was to be paid from the residue of the estate after the death of the testator’s widow vested at the death of the testator, then the judgment against him was a proper charge against it, and was properly deducted upon the accounting.

It was the evident intention of the testator to give all the legacies bequeathed by the will free from contingencies, and make them payable absolutely and unconditionally. The first class of legacies were payable immediately, and the second class, which were to be paid from the residue of the estate was to be paid upon the division, the time of payment being thus postponed for the convenience of the estate to let in and subserve the interests of the widow. It is a plain case of a bequest of property to one for life, and after that to another, and the interest of the second legatee is vested and not contingent.

Our conclusion is that both the legacies to William R. Hull vested in him at the death of the testator, and that the deduction of the judgment was properly made upon the accounting.

The "portion of the decree of the surrogate appealed from should be affirmed, with costs

Barnard, P. J., and Pratt, J., concur.