In re Hodgman's Estate

• Decision Date: 19 December 1893
• Parties: In re HODGMAN'S ESTATE.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 421

35 N.E. 660

In re HODGMAN'S ESTATE.

Court of Appeals of New York.

Dec. 19, 1893.

Appeal from supreme court, general term, third department.

Proceedings for the settlement of the accounts of the executors and executrix of Frederick D. Hodgman, deceased. From an order of the general term (23 N. Y. Supp. 725) modifying and affirming, as modified, a decree of the surrogate judicially settling such accounts, Mary E. Hodgman, (now Mary E. Yates,) widow and executrix of said Hodgman, deceased, appeals. Affirmed.

Charles S. Foote, for appellant.

Edgar Hull,(C. H. Sturges, of counsel,) for respondent.

FINCH, J.

There are some questions in this case which touch the personal interest of the appellant, and upon which she has a right to our judgment. The facts upon which they arise cover but a small part of the general controversy, and are as follows: The testator, Frederick D. Hodgman, died in 1873, and after having made and executed his last will and testament, by the terms of which his widow, now Mrs. Yates, and who is the present appellant, was made executrix, and Alfred C. Hodgman, Philander C. Hitchcock, and James Cheeseman executors. Letters testamentary were issued to them on February 13, 1874, and all four qualified and entered upon the performance of their duties. Cheeseman died in 1882, and is represented in these proceedings by James H. and Olive Cheeseman, his executor and executrix. Hitchcock died in 1888, and letters testamentary under his will were issued to Asahel R. Wing. The present proceedings were commenced in 1889, and took the form of a final accounting before the surrogate of the representatives of the deceased executors, and of the surviving executrix and executor, and it is from the decree rendered on that accounting that Mrs. Yates now appeals, claiming the right to do so as executrix, as widow, and as legatee. The testator, by his will, devised to his wife the property, real and personal, which constituted their home, the value of which was nearly $11,000, and which she retained and kept as her own, without any dispute or contention, and which formed no part either of the inventory or accounts. He then gave her a further legacy, phrased thus: ‘I also give to my said wife the sum of $50,000, which may be invested in bank stock, Fort Edwards and Wyoming, Iowa, and in bonds.’ He then declared that the devise and the legacy were to be accepted by the widow ‘in full satisfaction and recompense of and for her dower or thirds which she may or can in any wise claim or demand’ out of his estate. Some other legacies were given, one of which was the sum of $500 to the executors, which they were directed to invest and keep invested, and expend the interest in the care of testator's cemetery lot. A residuary clause covering all the rest of his property, carried everything remaining to his nephews and nieces, in equal shares. Outside of the home, specifically devised with its belongings, there was inventoried personal property to the amount of a little over $96,000, and there were, in addition, several pieces of real estate. The widow received the full sum of $50,000 on the 22d day of June, 1875, which was about one year and four months after the issue of letters testamentary, and gave a receipt for it, which reads thus: ‘Received from the executors of F. D. Hodgman, deceased, fifty thousand dollars, the amount of the legacy left me by the will of said Hodgman.’ She accepted payment in the Fort Edward bank stock at an agreed premium, in the Wyoming bank stock at par, and in cash to the amount of $7,854.50, which made up the balance. The will specifically directed the payment to the wife thus: ‘I desire the legacies to my wife paid as soon after my death as convenient to my executors.’

The widow now claims that certain dividends upon the bank stock collected and received by the executors belonged to her, and should be accounted for to her. That would be true if the bank stock had been specifically given to her, but not otherwise. The legacy is of the sum of $50,000, and is merely demonstrative, and not specific. It points out the source from which payment was expected to be made, but is to be regarded as a general, and not a specific, legacy, and so the dividends accruing before payment did not belong to the legatee. Giddings v. Seward, 16 N. Y. 365;Newton v. Stanley, 28 N. Y. 61.

But it is further claimed that, if regarded as a general legacy, it drew interest from the date of testator's death, and such interest should have been allowed. There are exceptional cases of that character, but they are those in which the testator has not prescribed the time of payment, and we are permitted to infer an intent that it should be made earlier than the year fixed by statute. In this case the testator himself directed that it should be made as soon after his death as should be convenient to his executors, and he made his wife executrix, so that she could pay herself, or at least know when the time of payment should arrive. Nothing in the case shows that payment was unduly postponed. The widow's conduct indicates that it was not. She accepted the principal in full of the legacy, without claim of interest, and as that was not given by the will, and was chargeable, if at all, only as damages for delay, her acceptance of the principal excludes the right, more than 10 years later, to demand the interest. Cutler v. Mayor, 92 N. Y. 166.

She further makes a claim for...