Opinion
February, 1893.
E.F. Bullard, for plaintiff (appellant).
Robert E. Deyo, for defendant (respondent).
John Young died in New York city July 22, 1867, leaving a will, by which he gave to the respondent Sophia Young, his wife, all his real and personal estate to use and enjoy during her life, and after her death he gave the same to the plaintiff and the defendant, Maria Louise Guth, his children, share and share alike. The plaintiff brought this action for an accounting, the demands for relief being, first, that there should be an accounting, and, second, that a receiver of the fund be appointed. After the court heard the evidence the plaintiff presented requests for findings, many of which were refused, but no exception was taken to any such refusal; consequently, this appeal is limited to a consideration of the exception to the findings of fact and conclusions of law made by the court and exceptions to the admission of evidence.
The first question raised by the appeal is whether or not the court erred in allowing to the defendant the funeral expenses and the cost of a burial plot and of a monument erected thereon. The appellant contends that none of these are charges against the real estate and could not be made a lien thereon, and, therefore, were improperly allowed. The first answer to this contention is that the court has found, and we think upon sufficient evidence, that all of these expenses were expressly assented to by the plaintiff at the time they were made, and he cannot now come in and repudiate that consent. But even if he could, we think the court properly allowed these expenses, for the whole estate, personal and real, is subject to the debts of the decedent, and such expenses as those under consideration, if reasonable, stand on even better footing than the debts contracted by the decedent, and in some instances have been allowed even where the estate is insolvent. Cornwall v. Deck, 2 Redf. 87; Owens v. Bloomer, 14 Hun, 296; Tickel v. Quin, 1 Dem. 425. Much more will they be a charge where the estate is not only solvent but of considerable amount. Patterson v. Patterson, 59 N.Y. 574; Ex parte Frazer, 92 id. 239; Redf. Surrogate's Prac. 441.
The only question to be raised in regard to either the funeral expenses or the monument, therefore, is whether or not they were reasonable under the circumstances, and considering the decedent's station in life and the estate left by him. Inasmuch as the learned trial judge has, by allowing these items, found that they were not excessive, we see no reason for questioning that conclusion, especially in view of the fact that these expenses were assented to by the plaintiff at the time they were made. But it is claimed by the appellant that they ought not to have been allowed because the Statute of Limitations ran against them. This leaves out of sight the fact that this was a general accounting of both real and personal estate from the time the trust was created down to the time of trial, and as far as we are aware, there is no Statute of Limitations on such an accounting, and if there were, it would work more strongly against the appellant in this case than against the respondent.
It is also contended that these charges should not have been allowed as against the real estate because there was no order made by the proper court directing such sale. But it is clear from the case that the personal property was not sufficient for these purposes, and inasmuch as all the parties to this action had consented to the sale of the real estate without any order of the court, we think that the proceeds of such sale could be so far regarded as personalty as to authorize a court of equity to direct the allowance of these expenses out of such proceeds.
The exceptions to the admission of evidence were not argued before us at any length, nor has the appellant made any point upon those exceptions, except the general one that the court erred in overruling the objections and admitting evidence. Under such a general point we would not ordinarily feel that we were required to examine them, but in this case we have done so with some care and we find that the exceptions were not well taken. The husband of one of the heirs was asked, "Was there any personal property left by John Young?" This was objected to, excluded and exception taken by appellant. The question was, in our judgment, proper; the action was for a general accounting; such an accounting covers not only all the receipts from the real estate but also all the personal property, for the income of both was left to the widow; hence it was proper to show and settle in this suit just what was the personal property of the deceased which came into the hands of the executor.
The question as to the amount of the funeral expenses was also objected to, but it was clearly permissible for the reasons above stated. The objection that the funeral expenses were no lien upon the real estate was, as before shown, not well taken. And the same applies to evidence in regard to the monument and burial plot.
We cannot perceive the force of the objection in regard to the testimony to all the real estate, or why appellant should have desired to limit it to three of the five parcels only, and he has not deigned to enlighten us by anything said in his points or during the course of his argument.
The judgment should, therefore, be affirmed, with costs.
DALY, Ch. J., and PRYOR, J., concur.
Judgment affirmed.