Summary
In Matter of Lowery (19 Misc. 83) the legal life tenant was required to give bond, notwithstanding she was one of three executors, and the will gave her, as legatee, "the possession, management and the control, and the rents, profits, use and income" for her life with remainder over to others.
Summary of this case from Matter of MerrittOpinion
December, 1896.
C. Lansing Jones, for executors.
R.S. Johnson, special guardian.
The testator, James L. Lowery, in and by his will appointed his wife, Emily Gale Lowery, Clifford F. Marklove and William L. Downing, executors. At the death of his wife said Marklove and Downing receive the corpus of the estate, as trustees, to dispose of the same as directed in said will.
The question here to be determined is in reference to the disposition of the corpus of the estate during the life of Mrs. Lowery.
The portion of the third clause of said will which is to be construed is as follows: "I do hereby give, bequeath and devise unto my wife, Mrs. Emily Gale Lowery, for and during her natural life, the possession, management and the control, and the rents, profits, use and income of all the rest, residue and remainder of all my personal and real property and proceeds of real property, if sold, of every name and nature and wheresoever situated which I may own at the date of my death."
The primary object to be arrived at in the construction of all wills is the intent of the testator. There can be no doubt but that he intended to vest the possession, management and control of the principal unreservedly in his wife. She is a life legatee. The right of remaindermen, however, should always be considered when a fund is to be transferred to such legatee. Such a disposition cannot be demanded as a matter of right, but should be asked as a favor which a court of equity may grant, by the imposing of such terms as may be just and equitable. Matter of Shipman, 53 Hun, 511; Matter of Gillespie, 18 Abb. N.C. 41; Tyson v. Blake, 22 N.Y. 558; Livingston v. Murray, 68 id. 485.
In the present case there are seven children who will be entitled to the fund at a future time, and I believe it my duty for their protection and in accordance with our adjudicated cases to exact a bond before the principal is delivered to the life legatee.
In case the life legatee does not furnish the requisite bond, it is the duty of the executors to retain the corpus of the estate and pay the income to the proper person as provided in said will. Matter of Gillespie, supra; Clark v. Clark, 8 Paige, 152.
The fact that the life legatee in the present case is one of the executors does not require from said executor any security or bond. In one case as life legatee she would take the fund by favor. As executor she asks no right of the court, the confidence being placed in her by the testator. As executors they are to administer the estate in such a manner as the law directs. They cannot be called upon to furnish bonds except for reasons specified in section 2638 of the Code of Civil Procedure.
A decree may, therefore, be entered directing the delivery of the corpus of said estate to Emily Gale Lowery, to be administered by her as provided in said will, upon her giving a bond in an amount to be approved by the court within fifteen days from the date of the entry of the decree, or in case of her noncompliance as to said bond, said corpus is to remain in the hands of the executors of the estate, and they are to administer the same according to the terms of said will.
Decreed accordingly.