Wright's Estate, In re

• Decision Date: 27 June 1958
• Citation: 15 Misc.2d 225,177 N.Y.S.2d 410
• Parties: In re ESTATE of Claire R. WRIGHT. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 410

177 N.Y.S.2d 410

15 Misc.2d 225

In re ESTATE of Claire R. WRIGHT.

Surrogate's Court, New York County.

June 27, 1958.

Corbin, Bennett & Delehanty, New York City, for Harold H. Corbin, executor.

Wallstein, Menschel & Wallstein, New York City (Leonard M. Wallstein, Jr., and David E. Pitcher, Jr., New York City, of counsel), for petitioner Y. B. Garden, executrix.

Schlesinger & Berliner, New York City, Selma M. L. Berliner, Ephraim Berliner and Jay H. Rick, New York City, for respondent Mary Robinson. Paul A. Burt, New York City, for respondent Lena Davis.

Ernst, Cane & Berner, New York City, for respondent Helen W. Erskine.

JOSEPH A. COX, Surrogate.

Objections to the account of the executors have been filed by several beneficiaries. Some of the objections require a construction of the will. In addition, the accounting executors ask a construction of the second and third paragraphs of the will and a determination of the persons entitled to certain personal property.

(1) In the third paragraph of the will the testatrix bequeathed to a friend 'all [her] furs and jewelry, both costume and precious'. The executors state in their account that the testatrix owned a diamond ring and a gold fountain pen which were listed among numerous articles insured against loss or theft. The executors were not able to find either article after diligent search, and they filed a claim and proof of loss with the insurer. The articles were valued in the sum of $4,995, and that sum was paid to the executors by the insurer. The money is claimed by the specific legatee of the jewelry. It is also demanded by two of the residuary legatees as property not otherwise disposed of by the will. The executors ask instructions in respect of the distribution of the sum of $4,995.

The parties were afforded full opportunity to produce proof relating to the loss of the diamond ring and the fountain pen. No evidence has been placed in the record which would tend to indicate whether the jewelry was lost or stolen during the lifetime of the testatrix or after her death. The will was executed on July 8, 1955. The testatrix died on May 21, 1956. It is stated by the executors, although not established in the record, that the testatrix was in a hospital for some time prior to her death. There is not the slightest evidence that the testatrix knew of the disappearance of either article. In marshalling the assets of the estate, the executors discovered the insurance policy which listed each item of jewelry. A search was made for all articles listed, but no trace of the ring or the pen could be discovered. The executors thereupon filed proof of loss with the insurer. The proof states that the items 'were discovered missing' on June 21, 1956. This date was subsequent to the death of the testatrix, but the executors do not pretend that the articles were mislaid or mysteriously disappeared on that date. Insofar as this record shows, the stated date merely represents the day when the search of the executors for the articles was concluded.

In the proof of loss the executors 'agree that in the event any of the property for which claim is made hereunder is at any time recovered that it will be immediately delivered to said Company or the value thereof refunded to the Company'. In the proof of loss the executors also agreed 'that upon payment hereunder and in consideration thereof I/WE hereby assign to the insurance company herein named, all my/our right, title and interest in the articles claimed for, and subrogate to said company any claim I/WE may have against any third party, arising out of the loss of said articles, with power to enter suit in my name, and I/WE pledge assistance in the prosecution of said subrogation proceedings.'

Before adverting to the argument of the contending legatees, it is necessary to call to mind certain fundamental principles relating to the transactions reported in the account.

The diamond ring unquestionably passes under the bequest of 'all * * * jewelry, both costume and precious', and falls within the classification of a specific legacy. The executors under the will of the testatrix take 'the unqualified legal title of all personalty not specifically bequeathed, and a qualified legal title to that which is so bequeathed. * * * As to the chattels and choses in action specifically bequeathed, an executor has but a qualified title,--the right to apply them in discharge of debts after first exhausting all other property applicable to that purpose. If he assents to their delivery to the legatees they acquire a perfect legal title to the article or demand; and in case the remaining property of the testator is insufficient to pay his debts the recipients of the specific legacies are liable, under the statute, to pay the amount or value of the legacies received by them.' Blood v. Kane, 130 N.Y. 514, 517, 29 N.E. 994, 15 L.R.A. 490. It has been said that the title of the specific legatee 'is inchoate until assent to the legacy is given by the executor, and when such assent is given it is separated from the assets of the estate, and ceases to be part of them, and the inchoate title of the legatee is perfected.' Matter of Van Houten, 18 App.Div. 301, 304, 46 N.Y.S. 190, 192. If the assets of the estate are more than sufficient to satisfy all claims and expenses, the executor is under no obligation to reduce the subject matter of the specific legacy to possession or to deliver it to the legatees. Matter of Utica Trust & Deposit Co., 148 App.Div. 525, 133 N.Y.S. 145; Matter of Columbia Trust Co., 186 App.Div. 377, 380, 174 N.Y.S. 576, 577. His mere assent to title is sufficient to perfect the legatee's rights. Matter of Strasenburgh's Will, 136 Misc. 91, 93, 242 N.Y.S. 453, 456. The legatee must take the property 'as and where it is' (Matter of Columbia Trust Co., supra, 186 App.Div. at page 381, 174 N.Y.S. at page 578) and the legatee may in his own name maintain an action to recover possession of it (Matter of Utica Trust & Deposit Co., supra). Once the executor has given his assent to the specific legacy, it vests the interest at law irrevocably in the specific legatee, and thereafter the specific legatee is a necessary party to any action which affects his right to or interest in the property. Onondaga Trust & Deposit Co. v. Price, 87 N.Y. 542, 548. The executor does not thereafter act for or on behalf of the specific legatee with respect to the property. He would have 'no power to represent her in disposing of [the property] by transfer, of by recovering the value thereof in trover.' (Id., at page 549). He would have no right to institute any action to recover the property (Onondage Trust & Deposit Co. v. Price, supra), and he could not, therefore, authorize anyone else to 'enter suit in [his] name' to recover the property or its value.

The assent of the executor or executors cannot be unreasonably withheld. 'Where an estate is clearly solvent and property specifically bequeathed is thus free from any claim for funeral and administration expenses and the debts of the decedent, there is no justification for a retention of such property. Title to the specific legacy vests in the legatee on the death of the testatrix. * * * An instrument of conveyance or assignment from the executors to the specific legatees may be convenient to evidence the title of the transferees. It is not absolutely necessary since the will itself is the source of their title.' Foley, S., Matter of Rosenfeld's Estate, 180 Misc. 452, 453, 40 N.Y.S.2d 114, 115. The executor does not have any discretion to deliver the specific item or its proceeds or something comparable. The legatee is entitled to 'the property specifically bequeathed in kind.' London v. Goodman, 6 Misc.2d 277, 282, 162 N.Y.S.2d 972, 979.

In the case now before the court, the will bequeaths the diamond ring to the named friend of the testatrix. The executors made diligent search for the article, but they were unable to find it or to ascertain when and under what circumstances it disappeared. The executors were not under any obligation to take affirmative steps to recover possession of the property or to make physical delivery of it to the specific legatee. There can be no doubt, on the basis of the accounting of the executors, that the solvency of this estate was never in doubt. Moreover, the will states that the bequests in paragraph third are to be satisfied without deduction for any Federal or State inheritance taxes, and hence there was no need to reserve any property to meet tax obligations. The executors, therefore, could have assented to the right of the legatee to the ring 'at any time in [their] discretion * * *.' Sec. 218, Surrogate's Court Act.

However, the executors proceeded to recover from the insurer the stated value of the items. No one has criticized them for so doing. The insurance policy is not in evidence, and we do not, therefore, know whether the policy protected the successor in interest of the named insured or whether it was only for the benefit of the decedent. That question is, however, of no immediate concern because the fact is that the insurance company has paid the money to the executors and the executors received it for the benefit of the persons entitled thereto. The executors could in such case be regarded as making the claim as trustees for the benefit of the person to whom the property belongs. Wyman v. Wyman, 26 N.Y. 253, 258. As the Court of Appeals said in the case last cited: 'This, however, is not an action to recover on a policy for a loss; nor is the question between the insurance companies and these parties, or either of them. The companies have indeed, as far as it lay with them, waived any condition in the policies, or any objection to the payment of the loss. * * * The present is an equitable action to ascertain and determine [the rights of the parties].' At page 255.

It is conceded that if the diamond ring had been in the...