SAMUEL A. RICHARDSON and ADELAIDE WEEKS, as Executors of and Trustees under the Last Will and Testament of ASA BOND RICHARDSON, Deceased, Plaintiffs,
SAMUEL A. RICHARDSON and Others, Defendants.
SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
David D. Ackerman, for the plaintiffs.
Omri F. Hibbard, for the defendant Church Charity Foundation of Long Island.
Roger Hinds, for the defendant T. Alfred Hayden.
This controversy is submitted under the provisions of article 2 of title 2 of chapter 11 of the Code of Civil Procedure, sections 1279-1281 inclusive.
Asa Bond Richardson died testate in the borough of Brooklyn on May 7, 1908, leaving no widow or lineal descendants, and the legatees named in his will are relatives of himself and his deceased wife, with the exception of the First Baptist Church of Jefferson, Maine, and the Church Charity Foundation of Long Island. The plaintiffs, a nephew and niece of the decedent, were named in his will as executor and executrix; they qualified and entered upon the discharge of their duties, have reduced the estate to cash, paid the funeral and administration expenses and all debts of their testator, and are now ready to render their account. It is stipulated that 'They have performed properly and carefully all the duties required of them by the will,' which provided their compensation as follows: 'Eleventh. My library, I leave with S. A. Richardson and Adelaide Weeks to be held by them for a Free Library for the Town of Jefferson, Maine, or the North Village in said town. If neither the town nor village makes a home for the books within two years after my death, then let the books be sold and proceeds put in the residuary. My nephew and niece are to have One hundred and fifty dollars each for this work. Likewise, I make, constitute and appoint Samuel A. Richardson of Jefferson, Maine, and Adelaide Weeks, to serve without bonds and to receive Five hundred dollars each to be executor and trix of this my last will and testament hereby revoking all former wills by me made.'
The will did not expressly give a power of sale to the executors. An agreement was entered into, however, by all of the parties, under which they conveyed by deed to the plaintiff Richardson, as an individual, said real property, he to sell the same, pay the mortgage liens thereon and the expenses incurred, and hold the balance as real estate for the parties according to
their respective rights. This agreement has been performed and there is in Richardson's hands a net balance of $2,793, the avails of the sales of real estate. There is also in the hands of the executors a balance of $1,969.10 for distribution after the necessary expenses of administration, including the compensation to the executors, has been paid. The testator gave legacies totaling $10,700 to his nearest relatives and several religious charity organizations, and gave to his executors the sum of $1,300 for their services. The will was drawn by the testator, and shows him to have been an intelligent and well-educated man. His account book, kept in his own handwriting, shows that at the time the will was executed the total net value of his personal property was $905.08, while his cash bequests aggregated $12,000. His entire gross personal assets were of a value of only $4,905.08. Including his real property at the valuation he placed upon it ($15,000) his total estate, real and personal, at the time the will was executed was $15,905.08; his realty sold for $12,000, and the entire estate exceeded the cash bequests by $905.08.
At the time of his death the net value of his personal estate was $1,683.41, and his real estate $4,500, aggregating $6,183.41, as against cash bequests of $12,000 and the costs and expenses of administration. The funeral and administration expenses amounted to $841.05, which added to the testamentary compensation of the executors makes a total of $2,141.05, leaving a shortage in the personal estate as it existed when the will was executed of $1,235.97, and not a dollar to pay the $10,700 legacies unless recourse was had to the realty. The testator knew when he executed his will that his personal property was insufficient to pay even the amount he had determined his executors should receive for their services, and it is not to be presumed that he intended to prefer the corporations to the exclusion of his own kindred, and it is noticeable that he disposed of both his real and personal property as a whole and without making any distinction between real and personal property. I think that it was the intent of the testator that his real and personal estate together were to furnish the fund out of which the legacies were to be paid. The deficiency existed at the time the will was executed; it is so large and so
obvious as to preclude any possible inference that the testator did not know and realize it, and it must be held that the legacies are a charge upon the real property of the decedent. ( McCorn v. McCorn,100 N.Y. 511; Briggs v. Carroll, 117 id. 288; Hogan v. Kavanaugh, 138 id. ...