In the Matter of the Final Judicial Settlement of the Accounts of the UTICA TRUST AND DEPOSIT COMPANY, as Executor, etc., of ALICE BROOKS WARREN, Deceased, Respondent. GRACE H. BUNN and MARGARET BUNN, an Infant, by JOHN B. CONKLING, Her Special Guardian, Appellants, RUSSEL WARREN, Individually and as General Guardian of LESLIE BROOKS WARREN, Respondent.
APPEAL by Grace H. Bunn and another from that part of a decree of the Surrogate's Court of the county of Otsego, entered in said Surrogate's Court on the 15th day of May, 1911, which overrules certain objections to the accounts of the executor herein.
Lynn J. Arnold, for the appellants.
James W. Barnum, Charles T. Brewer and James W. Tucker, for the respondents.
The testatrix bequeathed to the appellant Margaret Bunn her piano and pianola and to Grace H. Bunn all her clothing, wearing apparel, other jewelry and personal ornaments. The testatrix gave various legacies with the remainder of her estate to her infant son. Letters testamentary were issued April 6, 1909, and the executor filed its petition for final settlement September 21, 1910. All the general legacies and the expenses of administration have been fully paid, and the only person now beneficially interested in the estate is the son of the testatrix.
At the time of her death the testatrix and her husband and son
were apparently residing with her father. The items of clothing which were conceded to belong to the testatrix were delivered by the executor to Grace H. Bunn. The piano and pianola were claimed to be the property of the father or of the son, and have ever since remained in the house which at the time of the death of the testatrix belonged to her father and since then to her son. The executor has never had possession of any of the property in question. The appellant Grace H. Bunn claims that there were other items of wearing apparel belonging to the testatrix, and the appellants seek in this accounting to surcharge the accounts of the executor with the value of the piano and pianola and of the items of clothing which they claimed belonged to the testatrix and which have not been delivered.
Evidently the title of the testatrix to the property is so much in doubt that neither the specific legatees nor the executor feel justified in incurring the costs and expenses of a lawsuit seeking its recovery. It is evident that in order to recover this property from the residuary legatee, an action must be brought against him or his guardian, and the sole question to be determined is whether the specific legatees claiming the property shall bear the expense of the litigation or whether such expense shall be charged upon the residuary legatee himself by compelling the estate to bring the action.
Clearly the executor has assented to the bequests, so that the legatees have an adequate remedy to recover the property if it belonged to the testatrix. ( Stall v. Wilbur, 77 N.Y. 158; Matter of Van Houten, 18 A.D. 301, 304.)
The property has not by any act or neglect of the executor been lost to the specific legatees, and no act of the executor has pre-judiced or lessened their title to it or its value. The specific legatees, having a perfect right to maintain an action for its recovery, they are not in a very good position to claim that their failure to recover it is due to the neglect of the executor. The surrogate was right, therefore, in holding that the executor's accounts cannot be surcharged with the value of this property.
A specific legacy vests in the legatee on the death of the testator. The executor, however, has the right to reduce it to possession, and may hold ...