In re the Estate of Kavanagh — 29 N.Y. St. Rep. 215

Majority

p. 215

In the Matter of the Estate of Benjamin A. Kavanagh, Deceased.

(Surrogate's Court, New York County,

Filed February 9, 1890.)

Headnote

Surrogate’s court—Undertaking on appeal—Effect of.

Where a will has been declared invalid and only one of the residuary legatees has appealed therefrom and from a decree directing distribution to the next of kin, the undertaking on the latter appeal only prevents action under such decree so far as may be necessary to protect the appellant’s interests.

Motion by one of the next of kin to enforce payment under a decree of distribution.

George W. Carr, for petitioner; James P. Campbell, for executors.

By the will of decedent his estate was divided into three parts, one-third being given to one charitable institution and two-thirds to another.

Upon the proceeding for the probate, both of these bequests were held to be invalid. The residuary legatee, to which two-thirds was bequeathed, took no appeal from this decision, and its time to do so has expired. The other residuary legatee, however, appealed to the general term, where the decision of the surrogate was affirmed. Several months have elapsed since the determination of the general term, but no appeal has yet been taken, to the court of appeals, but its time to do so has not expired.

Meanwhile, a proceeding was commenced for the judicial settlement of the accounts of the executors, and a decree was filed directing distribution of the residuary estate amongst the next of kin. From this decree the appealing residuary legatee has appealed and given an undertaking in the sum of $250.

The present motion is brought by one of the next of kin to enforce payment by the executors of the share to which he is entitled under the last-mentioned decree. The application is resisted by the executors on the ground that they are stayed from executing the decree by the undertaking on appeal, which has been filed.

The undertaking filed was proper. I am of opinion, however, that the stay secured by the filing of this undertaking was intended ■only to prevent action by the executors so far as may be necessary for the protection of the interests of the appellant. The executors should set aside and retain a sum sufficient to provide •for a possible reversal on appeal, and then proceed to carry out the directions of the decree, so far as the same will not be affected by the success of the appellant.

p. 216

An order will be entered herein directing the executors to set aside an amount sufficient to pay the appellant one-third part of the residuary estate, interest on same, together with the expenses incidental to administration, or in the alternative, that the application be granted.