Opinion
April Term, 1900.
Charles Oishei, for the appellant.
Charles M. Harrington, for the respondent executrix.
Edward T. Durand, special guardian.
By the will of John B. Roffo, Mary Roffo, his widow, upon his decease, became entitled to the use during her life of whatever property he left. The widow and an unmarried daughter were his executrices. He died in August, 1887, and his will was thereupon admitted to probate and letters testamentary issued. The property seems to have been managed by the widow although the securities and money were kept in the names of the executrices. No settlement was had during the lifetime of he widow. After her death, which occurred in January, 1899, a judicial settlement of the account of the surviving executrix was had in the Surrogate's Court of Erie county, and the decree adjusting the same entered and the appeal was taken from a portion thereof.
Upon the death of the widow an undivided one-half of his estate passed to Julia Oishei "for and during the term of her natural life" with "the use and enjoyment, rents, issues and profits" thereof, and upon the decease of the said daughter the corpus of the property is to pass to her children then living.
A like bequest and devise was made to Millie Roffo with a similar disposition of the body of the estate upon her death. In the event of no children or descendants in the lineal line of one of the daughters, the property going for life to the one so bereft was to become vested in the children, if any, of the surviving daughter.
Julia Oishei has seven minor children, and Millie Roffo at the time of the entry of the decree was unmarried. The personal estate remaining in the custody of the surviving executrix, after the payment of the expenses of administration and the commissions, amounts to $30,141.99. Julia Oishei demanded the transfer and payment to her of one-half of this amount and the decree directs this to be done upon the execution of a bond with two sureties in the penalty of $15,200, to be approved by the surrogate. This was a very proper requirement and the only criticism that can be given to the determination of the Surrogate's Court is its leniency in permitting the penalty of the bond to be only in the sum of the property transferred instead of double that sum as is usual. Inasmuch as the question of the inadequacy of the penalty prescribed has not been raised, we do not feel called upon to interfere with the disposition made by that court. In the decision of matters of this kind the interests of the ultimate beneficiaries are the controlling factors for the court to consider, and in this case if this property is to be turned over to Julia Oishei to manage and control, certainly her children should be assured of its passing to them undiminished upon the termination of her life tenancy.
It is not entirely clear that it was the intention of the testator to permit each of these daughters to have the possession of one-half of the personal estate upon the death of their mother. In any event, the transfer ought not to be made until adequate security has been given for the return of the principal. ( Matter of McDougall, 141 N.Y. 21; Livingston v. Murray, 68 id. 485; Matter of Grant, 86 Hun, 617.)
The decree directs that, in the event of the surviving executrix paying over to herself the one-half to which she is entitled during life, she also give a bond with a like penalty to that prescribed for her sister Julia. This permits the executrix to retain the custody of this fund, and without security, as well as that of the one-half going to the sister, unless the latter elects to give the bond required. Millie Roffo is the only remaining executrix, and the personal property committed to her is quite large, and it would seem very judicious for the Surrogate's Court, upon a proper application, to require the executrix to give security for the retention of this property, or, if she declines to do so, to exact its payment and transfer into court. It may be well said that her circumstances do not afford adequate security in view of the long time which may elapse before the property reaches the real beneficiaries. The requirement of the bond is especially important if the executrix has intermarried with an alien since the entry of the decree, as stated in the brief of the special guardian.
The decree of the Surrogate's Court should be affirmed, with costs of the respondent, including the special guardian on this appeal, to be paid out of the estate, but without prejudice to an application to the Surrogate's Court requiring the executrix to give security as above indicated.
All concurred.
Decree of the Surrogate's Court affirmed, with costs to the respondent and special guardian, payable out of the estate.