Opinion
Argued September 27, 1875
Decided October 5, 1875
E.C. Benedict for the appellant. Charles H. Glover and Charles E. Whitehead for the respondents.
The printed case furnished on this appeal is voluminous, and contains a great deal of matter irrelevant to the questions involved. These questions will be briefly considered.
It is in the power of a surrogate to direct a payment to a legatee of a portion of his legacy, in anticipation of the final accounting and distribution of the estate, where this can be done without prejudice to the rights of creditors or other legatees, or persons interested.
The statute authorizes the surrogate, on the application of a legatee, to decree payment of his legacy or its just proportional part, at any time after one year from the granting of the letters (2 R.S., p. 116, § 18), although the executors cannot be cited to render their final account until eighteen months after their letters are issued. (2 R.S., p. 92, § 52.) The respondent had received nothing on his share as one of the residuary legatees, when the order appealed from was made, although nearly all the other legatees, including the appellant, had been paid out of the estate, upon their legacies, a sum as great or greater in proportion to their respective interests than was directed to be paid to the respondent. The application by the respondent was made more than twelve years after the probate of the will. The order is not objected to by any of the legatees except the appellant, and as she has received on her share more than $25,000, there seems to be no ground upon which her opposition to the payment to the respondent can be justified, unless it is by reason of the direction in the will that he is to have no portion of the estate "until he has accounted for and settled the account charged against him on the testator's books for money advanced, etc." Prior to the making of the order the executors, other than the appellant, had agreed with the respondent upon a settlement and adjustment of the account of the testator against him, and of the account claimed by the respondent against the testator, whereby the respondent was to be allowed the sum of $6,000, as the balance found to be due to him on the settlement. The bona fides of this settlement is not impeached.
The right of the respondent to his legacy was not, as is well stated in the opinion of the General Term, made by the testator to depend on the payment of the amount appearing to be charged against him on the books, but on his fairly accounting and settling the account, and this could be done as well by offsetting counter demands and charges as by actual payment in money. This settlement was approved by the surrogate in the order appealed from, and while it may be impeached on the final accounting, for fraud or other reason, it removed the objection to an advancement to the respondent, founded on the clause of the will referred to.
The direction in the order to pay this debt as adjusted, and also the sum of $4,000 for counsel fees, was within the authority of the surrogate, and is approved for the reason stated in the opinion of the General Term. It is scarcely necessary to add that the appellant not being a party to, is not bound by the agreement of November 1, 1872.
The order of the General Term should be affirmed, with costs to be paid out of the estate
All concur.
Order affirmed.