Fell v. McCready

• Decision Date: 15 December 1933
• Citation: 189 N.E. 718,263 N.Y. 602
• Parties: Joseph P. FELL, as Administrator with the Will Annexed of Lilla B. McCready, Deceased, Appellant and Respondent, v. Ira T. McCREADY et al., Respondents and Appellants. Lola L. BUTLER et al., Appellants and Respondents, v. Benjamin F. ADAMS et al., Respondents and Appellants.
• Court: New York Court of Appeals Court of Appeals

263 N.Y. 602

189 N.E. 718

Joseph P. FELL, as Administrator with the Will Annexed of Lilla B. McCready, Deceased, Appellant and Respondent,

v.Ira T. McCREADY et al., Respondents and Appellants.

Lola L. BUTLER et al., Appellants and Respondents,

v.Benjamin F. ADAMS et al., Respondents and Appellants.

Court of Appeals of New York.

Dec. 15, 1933.

Cross-appeals in the first above-entitled action from a judgment, entered April 12, 1933, upon an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (236 App. Div. 390, 259 N. Y. S. 512), reversing upon the law a judgment entered upon the report of a referee and directing a dismissal of the complaint, on the ground that a decree had been rendered in a prior action between the same parties involving the same subject-matter.

Cross-appeals in the second above-entitled action from a judgment of the Apellate Division of the Supreme Court in the Fourth Judicial Department, entered April 12, 1933, modifying and affirming as modified upon new findings, a judgment entered upon the report of a referee.

The first above-entitled action was brought by the administrator with the will annexed of Lilla B. McCready, deceased, for a voluntary accounting as to the corpus only of the estate of Riley W. McCready, deceased, claiming all accumulated income, including stock dividends and certain real estate of which Riley W. McCready died seized, as the individual property of Lilla B. McCready, and asking the direction of the court as to what disposition should be made of such corpus and to whom it should be distributed, and also asking for the discharge of the plaintiff from further liability for the estate of Riley W. McCready, deceased.

The second above-entitled action was for the construction of the will of Riley W. McCready, deceased, for a determination of the persons entitled to share in his residuary estate and in the accretions thereto and accumulated income thereof, and for an accounting by Joseph P. Fell (plaintiff in the first above-entitled action), individually and as administrator with the will annexed of Lilla B. McCready, of such residue, accretions, and accumulated income, and of the administration and use thereof by Lilla B. McCready, deceased, in her lifetime, and for the distribution thereof to the persons entitled thereto.

By his will, testator gave the residue of his estate to his wife with full power to invest and reinvest the same in such securities as to...