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In re Final Judicial Settlement of Account of Whalen

Supreme Court of New York, Appellate Division

March 8, 1911

In the Matter of the Final Judicial Settlement of the Account of RICHARD WHALEN, as Sole Surviving Executor of and Trustee under the Last Will of PATRICK QUINN, Deceased, Respondent. ST. JOSEPH'S CONVENT CORPORATION and Others, Appellants; BERNARD CLARK and Others, Respondents.

Page 744

APPEAL by St. Joseph's Convent Corporation and others from a decree of the Surrogate's Court of the county of Monroe, entered in said Surrogate's Court on the 12th day of July, 1910 upon the judicial settlement of the account of Richard Whalen, as sole surviving executor of and trustee under the will of Patrick Quinn, deceased.

COUNSEL

Frank J. Hone, for the appellants.

Hugh J. O'Brien, for the respondent Richard Whalen, as executor, etc.

James M. E. O'Grady, for the respondents Bernard Clark and others.

Everett K. Van Allen, for the special guardian of the respondents Donald F. McGarry and Kathleen McGarry.

ROBSON, J.:

The proceeding which resulted in the decree from which this appeal is taken was begun by filing in Surrogate's Court the petition of the executor and trustee stating that petitioner is desirous of accounting for the fund held by him as trustee under the provisions of the 3d paragraph of the will of Patrick Quinn, deceased, and distributing the said fund to those entitled thereto, and asking the direction of the court as to the proper distribution of the fund and a determination of the persons and corporations entitled thereto. Answers were interposed by certain of the interested parties questioning the validity, force and effect, not only of the 3d paragraph of the will, but also of the 4th and 5th paragraphs thereof, and asking

Page 745

that the said paragraphs be set aside as indefinite and contrary to law and that the funds held by said trustee under these clauses be distributed as if the testator had died intestate as to them. It appears that in prior proceedings in the Surrogate's Court the executors fully accounted for the funds of the estate, and distributed the same, except the three several funds established by these three items of the will, and received as trustees to fill the trusts established by said items the sum of $17,057.48. Thereafter one of the executors and trustees died and the surviving executor had an intermediate accounting in Surrogate's Court in which a decree of settlement was entered by which the surviving trustee was directed to keep invested the total amount of the trusts set forth in these three items of the will and distribute the same in accordance with the provisions of the will. Apparently the surviving trustee thereafter managed the several funds as directed by the will and paid the income as thereby directed to the several persons entitled thereto up to the time this proceeding was begun.

Patrick Quinn, the testator, died February 11, 1885, and his will, with one codicil thereto, both executed in 1884, was admitted to probate on the 26th of February, 1885. He left him surviving Ann Quinn, his widow, and Mary Clark, Ann Quinn and Elizabeth A. Quinn, his daughters, and Edward J. McGarry, Anna J. McGarry and Daniel P. McGarry, children of a deceased daughter, his only heirs at law and next of kin. Thereafter the widow, Ann Quinn, died intestate, leaving as her only next of kin her children and grandchildren, who are the children and grandchildren of the testator above named. After the death of the widow, Ann Quinn, her grandson Edward J. McGarry died, leaving two children, Donald F. and Kathleen McGarry. Thereafter and in December, 1907, Mary Clark died intestate, leaving her surviving her husband, Bernard Clark, and no descendant or ancestor in the direct line.

Testator's will first directs the sale of all real estate he might own at his death, the proceeds to be added to all his other property, 'thereby constituting one fund,' which after payment therefrom of debts and expenses the executors are directed to distribute in accordance with the provisions of the will following. The succeeding clauses of the will now in question are as follows:

' Third. I direct my executors to safely invest the ...


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