In re Neil's Estate

• Decision Date: 13 May 1924
• Citation: 238 N.Y. 138,144 N.E. 481
• Parties: In re NEIL'S ESTATE. In re NELSON.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 138

144 N.E. 481

In re NEIL'S ESTATE. In re NELSON.

Court of Appeals of New York.

May 13, 1924.

In the matter of the judicial settlement of the account of Gustave A. Nelson, as executor, etc., of George E. Neil, deceased. From an order of the Appellate Division (205 App. Div. 605,200 N. Y. Supp. 160) reversing as a matter of law a decree of the Surrogate (117 Misc. Rep. 498,191 N. Y. Supp. 362) settling the accounts of an executor and remitting the matter to the Surrogate's Court to abate certain legacies, a special guardian appeals.

Order of Appellate Division and last decree of Surrogate's Court reversed, and original decree of Surrogate's Court affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Harrison T. Slosson, of White Plains, and Joseph E. Merriam, of Mt. Kisco, for appellant.

Daniel S. Remsen, of New York City, for respondent.

ANDREWS, J.

[1][2][3] Where an estate is not sufficient to pay in full all the general legacies bequeathed by will, in the absence of an expressed indication that the testator intended otherwise legacies abate pro rata. One of the few exceptions to this general rule, however, is that where the legacy is given for the support, maintenance or education of a near relative otherwise unprovided for it will be preferred. Stewart v. Chambers, 2 Sandf. Ch. 382; Petrie v. Petrie, 7 Lans. 90; Bliven v. Seymour, 88 N. Y. 469;Matter of Wenner, 125 App. Div. 358,110 N. Y. Supp. 694, affirmed 193 N. Y. 672, 87 N. E. 1129. Such we say must have been the intention of the testator. He naturally expects that all legacies will be paid in full. If this becomes impossible he would desire that wife, children, or other near dependents should obtain the support and means of education necessary for their future, and which he supposed he had secured to them, before mere gifts to others are paid. ‘Otherwise provided for,’ therefore, must mean more than a nominal provision or one the testator would regard as plainly insufficient.

[4] It is the testator's mind we seek to read. Rightly or wrongly, did he think their necessities were already adequately supplied? Or did he believe their income must be supplemented by his legacy to accomplish the purpose he had in mind? To interpret this intent we may consider the circumstances known to him when the will was made, and we may search the will itself for any language that may give us light.

Mr. Neil and his wife had separated. The couple had three young children, who lived with the wife. In June, 1916, Mr. and Mrs. Neil executed a separation agreement. By it he agreed to pay her $2,500 annually for her support and maintenance and for that of the children, and he also gave her the life use of a furnished dwelling which would revert to him on her death. To secure the payment of the $2,500 he set up a trust fund of $25,000. If Mrs. Neil died, or as soon thereafter as they became twenty-one, the principal of this fund was to be paid to the children. If, however, they were not twenty-one when such death occurred the income on the share that would ultimately go to such minor, was, during his or her minority, to be paid to Mr. Neil. In return for this agreement, Mrs. Neil promised to support and educate the children. Neither she nor they, however, had any income except what was received from Mr. Neil.

Remaining on good terms as he did with his family after the separation; visiting them two or three times a week; writing his wife frequently; apparently repenting of the causes that led to the break between them; knowing that he had accustomed them to live in a liberal fashion; earning himself some $193,000 in three years-Mr. Neil seems to have realized that more than $2,500 a year was needed for their proper support. He, therefore, contributed largely to this end in addition to the amount which he had contracted to pay.

A...