McKay v. McAdam — 62 N.Y. St. Rep. 63

Majority

p. 63

James H. McKay, Resp’t, v. George H. McAdam, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 27, 1894.)

Headnote

1. Executors—Legacy—Postponing payment.

A provision in a will tliat tlie executor should be the sole judge as to when it would be convenient for him. to pay the legacies, does not empower him to postpone payment arbitrarily.

3. Will—Validity—Suspension

A devise to the executor in trust, with power to sell to pay legacies, and provision that he shall be the sole judge as to when it is convenient to pay the legacies, does not unlawfully suspend the power of alienation.

Appeal from an interlocutory judgment overruling a demurrer to the complaint.

George A. Stearns, for app’lt; Thos. Fenton Taylor, for resp’t.

The demurrer was properly overruled. The complaint alleged the bequest of a legacy to the plaintiff’s assignor by the defendant’s testatrix, and its nonpayment after demand, and sets out in full the will containing the bequest. By it, it appears that the testatrix gave all her property to Terrence Kenney, who was appointed executor in trust to pay her debts, and out of the rents of . her real estate to pay (1) a mort

p. 64

gage on the property, of $500; (2) $50 a year to her husband, during his life; (3) to her grandniece, the legacy in question ; (4) $600 to her brother, Hugh. The will then provides as follows: “ Finally, my will is that the fee of my house, and the rest and residue of my property, shall vest in my executor, Terrence Kenney, the net income from the same to bo applied to the education and maintenance of his daughter, Mary Ann, as long as she shall live, and, in case of her death, then to vest absolutely in the said Terrence; my intention being that said Terrence shall be the sole and arbitrary judge of when it may be convenient for him to pay the said sum to my husband, my grandniece, and to my brother.”

The complaint further alleges the death of Terrence Kenney on March 24, 1892, and the appointment of defendant as administrator with the will annexed, and “ that said Kenney, as executor, and said McAdam, as his successor, * * * have ample funds, and that said trust is chargeable with funds more than sufficient to pay the legacies and the debts, as provided in said will to be paid.”

The gift to the plaintiff’s assignor isqmmediate, and the source of payment designated. It is, therefore, vested. Loder v. Hatfield, 71 N. Y. 100 . The postponement of the time of payment is for the convenience of the estate, and the provision making the executor the sole judge of when it would be convenient for him to pay the legacies did not empower him to postpone payment arbitrarily for an indefinite period. 2 Perry, Trusts, § 771. The allegation that defendant has ample funds to pay all the legacies and debts must be assumed to be true, for the purpose of this appeal; and, being true, it requires from defendant an answer why he does not pay.

There is no ground for the claim that the will unlawfully suspends the power of alienation, or that there is direction for an illegal accumulation of rents. The fee of the real estate vested in Kenney, subject to the payment of the legacies; and he could always sell the land, subject to that charge, and convey a good title. The power of alienation is not, therefore, suspended at all. There is no direction to accumulate rents. The legacies are payable from the income as received, and there is nothing to prevent their payment in installments, if the parties choose to deal in that way.

It may be, that, upon the trial of this action, obstacles will exist, to a recovery by the plaintiff, that do not now arise, but in yiew of the allegation that Kenney', before his death, had, and defendant now has, ample funds to pay the debts and legacies, the demurrer was properly overruled. If it should appear that the defendant had received funds from Kenney’s estate belonging to the trust, and properly applicable to pay the legacy in suit, some of the objections which he now urges would be overcome. The judgment must be affirmed, with costs, with leave to defendant to answer in twenty days, on payment of costs.

All concur.