Majority
p. 596In the Matter of the Estate of Theodore Scheidler, Deceased. (Supreme Court, General Term, First Department, Filed January 12, 1894.)
Headnote
Executoes, etc.—Legacy.Though an action by the administrator is pending in the supreme court for a construction of the will, the surrogate may order him to pay a legacy.
Appeal from an order directing payment of a legacy.
John Branden, for app’lt; Henry Schmitt, for resp't.
It appears that this will was admitted to probate on November 30. 1886, and that the administrator failed to account until compelled to do so by order of the surrogate, dated November 11, 1892. Upon such accounting, the administrator, if he had desired a construction of the will, could have had the proper parties brought in, and the will construed, and there was no necessity for the filing of a bill in the supreme court for that purpose, the evident object of wdiich, in view of his delay and failure to serve the necessary parties, was to secure additional delay. Under these circumstances, we think the surrogate was entirely justified in directing payment of the legacy, notwithstand
p. 597
ing the pendency of the action for the construction of the will ; particularly as it appeared that the plaintiff had not taken any steps even to serve most of the defendants in the action. The order appealed from should be affirmed, with costs and disbursements.