In re the Estate of Jones — 17 N.Y. St. Rep. 724

Majority

p. 724

In the Matter of the Estate of Thomas Jones, deceased.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Executor—Order directing payment of money under Code Civ. Pro § 2719—When proper.

The petitioner was by the testator’s will entitled to all the residue and remainder of testator’s personal estate except certain shares of stock and a church pew. By the decree of the surrogate appealed from it was recited that the money and other property in the hands of the executors applicable to the payment of debts, etc., exceeded by at least one-third the amount of the debts, etc., which were entitled to priority over the petitioner’s claim, etc., and that the said pecuniary provision was necessary for the support of the petitioner and that she was entitled to the same, and that the bond having been executed as required by Code Civil Procedure, section 2719, and filed and duly approved, it was ordered that the co-executor pay over, etc., the money in question. Held, that the decree was just and proper and should he affirmed.

Appeal from a decree of the surrogate of Kings county directing the payment of certain moneys to a legatee under the provisions or Code Civil Procedure, section 2719.

Potter & Potter, for app’lt; P. V. R. Stanton, for resp’t.

This is an appeal from the decree of the surrogate of Kings county directing the payment of certain moneys under the provisions of section 2719 of the Code of Civil Procedure.

The respondent was the wife of Thomas B. Jones, who died in September, 1887, leaving a last will and testament in which he appointed her and his son Frank executors. By the will, after bequeathing a pew in the church of the Holy Trinity and forty shares of the capital stock of the Nassau Fire Insurance Company of Brooklyn to his two sons, the testator said, in view of the fact that they, meaning the two sons,will receive a considerable amount insured on my life in their mother’s name from several life insur

p. 725

anee companies, I give and devise to my dear wife, Eveline Stanton Jones, the rest, residue and remainder of my personal estate, goods, chattels of whatsoever kind, to be held by her for the support of herself and child, and at her death or marriage it shall be given in trust to my executors for the education and support of our said child, until she arrives at her majority when it shall be given to her.

By the decree appealed from it was recited that the money and other property in the hands of the executors applicable to the payment of debts, legacies and expenses exceeded by at least one-third the amount of debts and claims against the estate and of all legacies which were entitled to priority over the petitioner’s claim, and all legacies or distributive shares of the same class, and that the said pecuniary provision was necessary for the support of the petitioner and that she was entitled to have the same, and a bond having been executed as required by section 2719 of the Code and filed, duly approved as required by said section, it was ordered that the co-executor, Frank V. Jones, as such executor, pay, assign, transfer and deliver to said Eveline S. Jones, within five days after service of a copy of this decree, all dividends of stock received by him from the Hamilton Fire Insurance Company, Fireman’s Insurance Company, United States Insurance Company, City Insurance Company and the Merchants’ Insurance Company, belonging to the estate of Thomas B. Jones, deceased.

He was also directed to pay, in the same time, any dividends or any of the stock mentioned in the petition which he had received._ All the property so directed to be passed over to the petitioner belonged to her under the last will and testament of her husband, and there was no reason why her co-executor should retain possession of the same, and our conclusion is, that the decree of the surrogate was just and proper, and should be affirmed, with costs.

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