Crawford v. McCarthy

• Decision Date: 23 June 1899
• Citation: Crawford v. McCarthy, 159 N.Y. 514 (N.Y. 1899)
• Court: New York Court of Appeals Court of Appeals
• Parties: PRISCILLA CRAWFORD, as Executrix of WILLIAM J. CRAWFORD, Deceased, Respondent, v. ISABELLA MCCARTHY, Appellant.

159 N.Y. 514

54 N.E. 277

CRAWFORD

v.McCARTHY.

Court of Appeals of New York.

June 23, 1899.

Appeal from supreme court, appellate division, First department.

Action by Priscilla Crawford, executrix of the estate of William J. Crawford, deceased, against Isabella McCarthy, to establish a charge on property devised to defendant. From final judgment of the special term for plaintiff defendant appeals, after an affirmance by the appellate division (47 N. Y. Supp. 436) of an interlocutory judgment overruling a demurrer to the complaint. Reversed.

Alex. Thain, for appellant.

Levi S. Hulse, for respondent.

HAIGHT, J.

The original plaintiff, William J. Crawford, in this action alleges: That Agnes M. Crawford, late of the city and county of New York, died on the 8th day of February, 1895, leaving a last will and testament, of which the following is a copy:

‘I, Agnes M. Crawford, widow of William Crawford, late of the city of New York, deceased, do make my last will and testament as follows: First. I direct all my debts and funeral expenses to be paid. Second. I give and bequeath to my daughter Isabella the house and premises number 316 East 117th street, in the city of New York, together with my furniture and jewelry and other personal property; also money belonging to me on deposit to her credit; excepting from said personalty, however, the business now carried on by me, and license pertaining to the same, and excepting also the disposition of moneys belonging to me now on deposit in her name. Third. I give and bequeath to my son, William J., the business now carried on by me at the corner of 86th street and Madison avenue, together with the license under which I conduct the same; and I direct my daughter Isabella, out of the moneys belonging to me on deposit in her name, to pay my said son the sum of fifteen hundred dollars. Fourth. I bequeath to the children of my deceased daughter Mary J. Hunt the sum of fifty dollars each as and when they severally arrive at the age of twenty-one years, to be paid out of the moneys on deposit in the name of my daughter Isabella. In thus limiting the bequests to the children of my said daughter, I desire to say that I do so because I had advanced and expended on her behalf about the sum of one thousand dollars. Fifth. I hereby appoint my daughter Isabella sole executrix of this last will and testament, and authorize her to sell, convey, and dispose of any and all real estate or personal property of which I may die seised or possessed, and to mortgage such real estate. Sixth. Should any of my heirs at law and next of kin mentioned in this will contest the same, the making of such contest is to be taken and deemed a waiver of all interest of such contestant in the provisions hereof, and the interest which such contestant would have taken under this will shall be and become, immediately upon such contest being inaugurated, a part of my residuary estate. This instrument, consisting of two sheets of paper typewritten on one side only, each of which bears my signature, and is declared by me to be my last will and testament. In witness whereof I have hereunto set my hand at the city of New York this 17th day of April. 1894. Agnes M. her X mark. Crawford.’-That on the 10th day of April, 1895, the said last will and testament was duly proven and admitted to probate by the surrogate's court of the county of New York, and that the same was recorded in the office of said surrogate in Liber 504 of Wills, at page 469, as a will of both real and personal estate. That letters testamentary thereon were issued to the defendant as sole executrix. That she qualified and took upon herself the duties thereof under the will, and is still acting as such. That no inventory of the estate has been filed, but it is alleged that the personal estate does not exceed the sum of $1,500. That the deceased left, her surviving, the plaintiff, her only son, and the defendant, her only daughter, then living, and five grandchildrenby a deceased daughter, all of whom are minors, her only heirs of law and next of kin. That, as soon as said will was admitted to probate, the defendant took possession under the will of the real property therein described, and also the personal property except the business and license therein mentioned, and since that time had retained the absolute possession and control of the real estate, and has accepted the provisions of the will, both as executrix and individually, or as devisee. The plaintiff also alleges, upon information and belief, that the testatrix did not leave sufficient assets, exclusive of her real estate, to pay his legacy of $1,500, although at the time of making the will the testatrix had cash on deposit in the name of her daughter Isabella amounting to over $1,800; that he has been advised, and therefore alleges, that the defendant has accepted the terms and provisions of the will, and by reason thereof she has become and is personally liable to pay the plaintiff the sum of $1,500, directed in the will to be paid to him by the defendant, notwithstanding the fund referred to is insufficient to pay the same, and that the payment of that sum is a charge upon the real estate devised to the defendant. He concludes by demanding judgment accordingly. Pending the appeal to this court, William J. Crawford died, and Priscilla Crawford, his executrix, has been substituted in his place. The defendant, through her attorney,...