Leggett v. Stevens

• Decision Date: 24 April 1906
• Citation: 77 N.E. 874,185 N.Y. 70
• Parties: LEGGETT v. STEVENS et al.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 70

77 N.E. 874

LEGGETT

v.STEVENS et al.

Court of Appeals of New York.

April 24, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by John C. Leggett, as executor of the will of Minerva P. Stevens, deceased, against Addison S. Stevens, individually and as administrator with the will annexed of William P. Stevens, deceased, and others. From a judgment of the Appellate Division (91 N. Y. Supp. 1101), affirming a judgment entered on the report of a referee, William P. Stevens appeals, which appeal also brings up for review an interlocutory judgment appointing the referee. Modified and affirmed.

William P. Stevens died at Cuba, Allegany county, N. Y., in April, 1896, leaving him surviving his widow, Minerva P. Stevens, and a son, the appellant Addison S. Stevens, his only heir at law and next of kin. The respondent Helen S. Eldridge had lived with him from early childhood in the mutually acknowledged relation of parent and child, al though as far as appears she does not seem to have been legally adopted. The testator left a holographic will, which was duly probated, and the widow and son were appointed administrators of his estate with the will annexed. By this will the testator gave the house and lot occupied by him as a residence, the household furniture, and certain other articles to his widow. The third clause thereof, so far as material to this appeal, provided as follows: ‘I give my wife, Minerva P. Stevens, the use of ten thousand ($10,000) dollars, and for her own comfort and support she may use the whole principal sum of ten thousand dollars, and what is left at her death after all her debts and funeral expenses are paid shall be equally divided between my adopted daughter, Helen S. Eldridge, wife of Rufus C. Eldridge, if she is living, if she has children to go to them, if not to go to my nearest a kin on my side. * * *’ In the next clause the testator gave to his adopted daughter, Helen S. Eldridge, ‘in addition to what I have already given her, * * * $4,000 to be paid to her as soon as practical.’ The fifth and last clause provided: ‘I give and bequeath unto my son, Addison S. Stevens, after all my above bequests are paid, all of the balance of my real and personal property. I also cancel all Judgments I have against him provided he brings no charges against my estate. * * * I also give my daughter, Helen S. Eldridge, two $2000 thousand dollars in addition to the above mentioned. I also give my wife, Minerva P. Stevens, two $2000 thousand dollars in addition to the above mentioned and on the same conditions above mentioned that is the use. * * *’ Pursuant to the provisions of the will, the adminstrators turned over to the widow certain securities, choses in action and a small amount of cash aggregating $11,880, which was the amount the testator had provided for her use by the third and fifth clauses of the will, less the inheritance tax. The securities and choses in action, consisting of mortgages and notes, were formally assigned to the widow and accepted by her in full satisfaction of the legacies given her. The widow died June 27, 1901, leaving a will wherein she named the plaintiff as her sole executor. After making several minor bequests she left the residue of her estate to her brothers. During her life she had used some of the principal of the moneys given her for her use by her husband, so that at her death there remained between $8,000 and $9,000. The main questions in this case relate to the proper custody and disposition of this sum, which at the time of the commencement of this action amounted to $9,846.68.

In April, 1902, the plaintiff as executor of the widow, having these moneys in his hands, commenced this action for a judicial settlement of his accounts and for a construction of the will of William P. Stevens, deceased. In his complaint he set forth the foregoing facts, and asked for the direction of the court as to the disposition of these moneys. Testator's son, Addison S. Stevens, both individually and as administrator of his father's estate, was made a party defendant, as were also the adopted daughter, Helen S. Eldridge, and the next of kin and legatees of the widow. The son, both individually and as such administrator, demurred to the complaint upon the grounds (1) that the plaintiff had no legal capacity to sue, in that as executor of the widow he had no interest in the estate of the testator or its distribution; (2) that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was finally overruled. Leggett v. Stevens, 77 App. Div. 612,79 N. Y. Supp. 289. He then interposed an answer, as did the other defendants. A referee was appointed to hear and determine the issues. His report settled the accounts of the plaintiff as executor of the widow, Minerva P. Stevens, and, among other conclusions of law, he found (1) that the widow became a trustee for the benefit of the persons entitled to the remainder of the cash and securities turned over to her for her use under the will of the testator, and that the plaintiff as her executor was charged with her duties in respect thereto; (2) that under the will of the testator the widow had the use and income of the two legacies of $10,000 and $2,000, respectively, with the right to use all or any part thereof for her comfort and support; (3) that the adopted daughter, Helen S. Eldridge, was entitled to the amount remaining of the legacy of $10,000 given for the use of the widow by the fifth clause of the will. Upon these findings the referee concluded that Helen S. Eldridge was entitled to five-sixths and Addison S. Stevens to one-sixth of the whole amount remaining in plaintiff's hands, representing the remainder of the cash and securities turned over to the widow for her use during life. Judgment was entered in accordance with this report, and all parties, except the plaintiff and Helen S. Eldridge, appealed to the Appellate Division, where the judgment was affirmed. Addison S. Stevens, both individually and as adminisrator as aforesaid, has alone appealed to this court.W. J. Wetherbee and A. J. Hastings, for appellant.

Harry E. Keller, for respondent Leggett.

Frank B. Church, for respondent Eldridge.

WERNER, J. (after stating the facts).

The first question urged upon our attention by the learned counsel for the appellant is that the referee erred in denying his motion to dismiss the complaint at the opening of the trial, and also his request for a nonsuit. The motion to dismiss was made upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and the request for a nonsuit involved practically the same question. We think the action was properly brought by the plaintiff as executor of the widow, and that the complaint states a...