In re the Judicial Settlement of Williams — 39 N.Y. St. Rep. 815

Majority

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In the Matter of the Judicial Settlement of Irvin A. Williams et al., Ex’rs of Abijah J. Williams, Deceased, Resp’ts. Jane M. B. Heath, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July 7, 1891.)

Headnote

Legacy—Advancements.

Testator, by Ms will, gave to appellant $25,000 absolutely, and subsequently, in Ms lifetime, gave her $10,000 in bonds. Held, that a finding by the surrogate on conflicting evidence that such bonds were given to her as an advance upon and in part satisfaction of such legacy would not be disturbed.

Appeal from an order or decree settling the accounts of the executors of the last will and testament of Abijah J. Williams, deceased, made by the surrogate’s court of Oneida county, and entered on the 28th day of July, 1890. The appellant appealed only from so much of such decree as adjudged that five Utica & Black River Railroad bonds for $1,000 each and five railroad equipment bonds for $1,000 each should be charged to the appellant in the executors’ account as a part of a legacy of $25,000 given to her absolutely by the last will and testament of the testator, and that such bonds were delivered to the appellant by the testator in his lifetime as and for an advancement to her upon and as a part of and satisfaction to the extent of $10,000 of such legacy, and were properly charged to her in the executors’ account as a part of such legacy, and from so much of said decree as settles the executors’ accounts by charging her with said $10,000.

W. W. Goodrich and W. A. Matteson, for app’lt; William Kernan, for resp’ts.

—The testator, by his will, bequeathed to the appellant absolutely the sum of $25,000; of this sum $10,000 was invested in a house in Brooklyn, H. Y, purchased for her by the testator, thus leaving the sum of $15,000 of such legacy to be paid otherwise. Afterwards, and during the lifetime of the testator, he delivered to the appellant ten bonds of the value of $10,000.

The only question litigated in the court below, or presented upon this appeal, was whether the delivery to the appellant of the $10,000 in bonds was in satisfaction of the legacy to the appellant pro tanto, or whether the bonds were an absolute gift, so that, notwithstanding their delivery, the appellant was still entitled to $15,000 of such legacy.

The learned surrogate found: “ That the said bonds were delivered to the said Jane M. B. Heath by the testator in his lifetime, on or about the 28th day of October, 1885, as and for an advance to her upon and as a part of and satisfaction to the extent of $10,000 of the legacy of $25,000, given to her absolutely in and by the fifth clause of the said last will and testament of the said testator.” We have carefully examined the evidence contained in the appeal book, and while there was some conflict therein, still we think it was sufficient to fairly justify this finding of the surrogate, and that it should be upheld.

As conclusions of law, the surrogate held : 1. “ That the said executors are entitled to charge and have properly charged in said

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executors’ account to the said Jane M. B. "Heath, the said ten bonds for $1,000 each, as a part- of the legacy of $25;000, to the amount of $10,000, given to her absolutely in the fifth clause of the said last will and testament of the said deceased. 2. That the said executors’ account as filed and herein modified be, and the same hereby is, in all things, confirmed and allowed.” To these conclusions of law, the appellant excepted. We do not think the exception well taken. The bonds in question having been delivered to the appellant by the testator in his lifetime in satisfaction of her legacy pro tanto, it follows that the court properly held that she should be charged with the amount thereof as a part payment of suóh legacy.

As no other questions were raised by the appellant, it follows that the portion of the decree of the surrogate appealed from should be affirmed.

Decree affirmed, with costs.

Merwin, J., concurs; Hardin, P. J., not voting.