#### Harriet H. Phillips and George W. Murray, as Administrators with the Will Annexed of the Goods, Chattels and Credits Which Were of Anna E. Comer, Deceased, Plaintiffs, *v.*Henry G. Wisner, as Executor of the Last Will and Testament of John H. Comer, Deceased, and Harriet H. Phillips, Defendants.*

(Supreme Court, Orange Trial Term,

January, 1912.)

Executors and administrators —Accounting ■ and settlement — Mode of distribution and disposal of funds — Married woman and surviving husband — Persons entitled to receive payment.

Descent and distribution — Rights of surviving husband.

The legatees under the will of a testatrix need not be made parties to an action brought' by her administrator with the will annexed to compel the executor of the deceased husband and-executor of the testatrix to account for property of her estate which was unadministered.

If the complaint states a cause of action, the plaintiff represents said legatees-;' if not, the defendant as executor of the deceased husband is the custodian of the property out of which the legacies must he paid and is liable therefor to the legatees.

Where a husband as life tenant under his wife’s will, which contained no residuary clause, was given full power to sell and dispose of her residuary estate and from the part thereof undisposed of at his death the testatrix made certain bequests, the husband took a life estate -in testatrix’s entire estate with full power of disposal, and, upon her death, by virtue of his marital rights, became vested with the undisposed part thereof, subject to the payment of said bequests.

Demurrer to complaint.

Joseph Merritt, for plaintiff,

Murray, Ingersoll, Hodge & Humphrey, for defendants. ■

*

See 72 Misc. Rep. 321.— [Repr.

Tompkiks, J.

The defendant Wisner, as executor of the last will'and testament of John H. Qomer, demurs to the complaint, upon the grounds:

*279*First..*That the complaint fails to state facts sufficient to constitute a cause of action.

*Second.*That there is a defect of parties defendant.

The action is brought by the administrators with the will annexed of Anna E. Comer, deceased, against Henry G. Wisner, as executor of the last will and testament of John H. Comer, deceased, to compel the defendant to account for the property which came into his hands from the estate of Anna E. Comer, and was left unused and unadministered by John H. Comer, her deceased executor. The substance of the complaint is that Anna E." Comer died, in 1906, leaving a will which was admitted to probate in Hew York county, on September 15, 1906, and by which she appointed her husband, John H. Comer, sole executor. After providing for the payment of her debts and funeral expenses, and after devising to her sister, the defendant Harriet H. Phillips, her family homestead in Goshen, the will provides as follows:

*“ Third.*I give, devise and bequeath to my husband, John H. Comer, to have and to hold the same during the term of his natural life, all the rest, residue and remainder of my estate, both real and personal, of every kind and nature and wheresoever situated, arid further I hereby authorize and empower him, said John H. Comer, at any time during his lifetime, to sell and dispose' otherwise of any part of the same as he may deem expedient, with full power to make, execute, acknowledge and deliver any and all instruments which may be deemed necessary for that purpose.

*“ Fourth.*And of and from such of my estate as shall be left and undisposed of by my said husband at the time of his death I give, devise and bequeath as follows: ”

Then follow seventeen specific legacies, aggregating about $53,000, which are directed to be paid from “ such of my estate as shall be left undisposed of by my said husband at the time of his death.” The husband, John H. Comer, qualified as executor of the said last will and testament, and turned to himself, from the estate of the testatrix, personal property aggregating about the sum of $125,000, and thereafter, and in February, 1910, died, whereupon the plaintiffs were appointed administrators with the will annexed of said Anna *280E. Coiner, and the defendant Wisner qualified as executor of the last will and testament of the said John H. Comer.

The complaint alleges that the said John H. Comer did not, during 'his lifetime, use or dispose of said personal pro-perty which he received from his wife’s estate, and that at the time of his death he was in possession óf such personal property, and that the defendant Wisner, as the executor of his will, now has possession or control of such personal.property which, plaintiffs have demanded of the defendant. The complaint also alleges that about $28,000 of the specific legacies were not paid by said John H. Comer and still remain unpaid, and that there has never been a judicial settlement of the estate of the said Anna E. Comer, deceased. The said Anna E. Comer left no descendants, and was survived only by her said husband, and the defendant Harriet H. Phillips, her sister, who claims that she is entitled to the whole of the estate of the said Anna E. Comer now in the hands or under the control of the defendant Wisner, which may remain after the payment of the unpaid legacies under the will of Anna ■E. Comer; and this action is brought for an accounting and to recover from the defendant Wisner, as executor of the will of John H. Comer, all of the money and personal property received by said John H. Comer from the estate of his wife and remaining in his possession and undisposed of at the time of his death. The will of Anna E. Comer contains no residuary clause and makes no disposition of the remainder of her estate upon the termination of her husband’s life estate, after the payment of the specific legacies; and the main question upon this demurrer is whether she died intestate as to such remainder, and whether such undisposed of -personal' estate passed immediately upon her death to her husband by virtue .of his marital rights, or whether the husband’s representative is- accountable to the plaintiffs for the remainder over -after the husband’s death.

- One ground of demurrer is that .all of the legatees named in the will of Anna E. Comer aré necessary parties to this action. I think not. If the plaintiffs are right, and the complaint states a cause of action, then the administrators with the will annexed represent- the legatees; and, if the plaintiffs cannot *281maintain this action, then the defendant Wisner, as executor of the husband’s will and as the present custodian of the property out of which these legacies must be paid, represents the legatees, at least is liable to them for their unpaid legacies.

.Upon the other and main question in the case, which is, whether the remainder unused by the husband during his lifetime belongs to the plaintiffs as administrators with the will annexed of Anna E. Comer, or whether it passed to her husband immediately upon her death, I have reached the conclusion that the defendants’ contention is correct, and that the estate of John H. Comer is only liable for the unpaid legacies under the will of Anna E. Comer. It seems to me that the husband, John H. Comer, became possessed under his wife’s will of all of the estate that he might use during his lifetime and, by virtue of his marital rights, became immediately vested with the remainder, inasmuch as there was no residuary clause in the will; and that the executor of his will can only be made to account for so much of the estate as is necessary to liquidate the unpaid legacies — in other words, that all of the Anna E. Comer personal estate not used by her husband during his lifetime must be regarded as a reversionary estate, which vested absolutely in the husband upon the testatrix’s death; that as to that undisposed of personal estate she died intestate, and that the husband took it under the statute. The plaintiffs’ contention is that the will gave the husband only a life estate with power to dispose of the property for any purpose which he might deem expedient for his personal wants and usee, and that he did not have any right or power to dispose of the property by will, and did not become vested at any time with the remainder by virtue of his marital rights; but the trouble with that contention, it seems to me, is that it leaves the remainder, after the death of the husband and the payment of the specific legacies, entirely undisposed of until the death of the husband — in other words, there would be a suspension of the vesting of the personal property, not used by the husband and not. necessary for the payment of the legacies, from the death of the testatrix te the death of the husband. I think that such undisposed of per*282sosal property vested instantly in some one upon Mrs. Comer’s death, and that, under the statute, it passed to the husband; and that, as to such property, the husband was not obliged to render an account to any one, unless there were unsecured debts of the testatrix. But there is no allegation in the complaint-that there were or are any unpaid debts .of Anna E. Comer; and it follows, if the husband was not liable to account for such undisposed of personal property, that his executor cannot be made to account for it.

Plaintiffs also claim that, because the husband was given the life estate by. his wife’s will, he was thereby precluded from all other interest in her estate and was barred from asserting his marital rights in the property undisposed of by said will, and cite in support of that claim the decision of Judge Van Vorst in the case of Kearney v. Missionary Society, 10 Abb. N. C. 274. But the decision of Judge Van Vorst in that ease seems to have been overruled by himself in the case of Fry v. Smith, 10 Abb. N. C. 224.

In the last named case, the testatrix, after certain specific legacies, gave the residue'of her estate *“*to my husband, Sylvanus W. Godon, and at his death, to go to my son, Frederick W. Godon, and to his natural heirs.” The son died without issue during- the' lifetime of the testatrix, and it was held that, under this provision of the will, the husband took only a life estate, and that the words, *“*to his natural heirs,” in the provision for the son, being wor'ds of limitation only, such bequest lapsed upon his death and, as to that interest, the tes: tatrix died intestate; and Judge Van Vorst, in his opinion, says:

*“*I am referred by the learned counsel for the plaintiff, to the case óf Kearney v. Missionary Society, decided by me at special term, April 9th, 1879, as holding views in support of the argument he has so earnestly presented here. In that case the husband died without having administered, and the property in dispute was never in his possession or under his personal control; but so long' as he lived, the .legal title-and possession were in others for the purposes of the will of the testatrix. That' case differs essentially from the present one on its facts. • I do not think that it upholds the plaintiff’s *283propositions; -bnt if it announces doctrines in opposition to the conclusions reached in this case, to that extent it cannot be followed.”

And later, the General Term of this court, in the case of Robins v. McClure, 33 Hun. 368, citing and commenting upon the case of Fry v. Smith, supra, said:

*“*On the argument the learned counsel for the plaintiff referred me to the case of Kearney v. Missionary Society, * * * also decided by Mr. Justice Van.Vorst, and claimed that the decision in the latter case was antagonistic to the decision in Fry v. Smith.

*“*The learned justice refers to that case, in his opinion in the case of Fry v. Smith, and states as follows-: ‘ That case differs essentially from the present one in its facts. I do not think it upholds the plaintiff’s proposition; but if it announces doctrines in opposition to the conclusions reached in this case, to that extent it cannot be followed.’

*“*This is a clear indication that the learned justice did not consider the case of Kearney v. Missionary Society as con- . flicting with his decision in the case.of Fry v. Smith. In this view I also concur, but if there were any doubt upon this point, deeming as I do that the decision in Fry v. Smith is a correct exposition of the law upon this subject, I should feel bound to follow the latter case.”'

The opinion just quoted from was the opinion of the court at Special Term, and was adopted and quoted by the General Term as a part of its own opinion on its affirmance of the judgment rendered at Special Term: and the judgment of the General Term was affirmed by the Court of Appeals in 100 N. Y. 328.

In Matter of McLeod, 32 Misc. Rep. 229, a wife, who left no descendants, devised and bequeathed to her husband the use of all her property *“*during his natural life,”- and died intestate as to the rest; and the court said:

*“*It is now claimed by the husband that he is entitled to the personal property absolutely after - the payment of the debts, funeral expenses, and the expenses of administration, and this claim is resisted by the brothers and sisters of the testatrix, who claim to be entitled to the personal property, subject to the life use of the husband.

*284“ It seems to me that the claim of the husband must be allowed.

“ The testatrix died intestate as to her entire estate, except the interest given to the husband by the will, and under the decision of the Court of Appeals, in the case of Robins v. McClure, 100 N. Y. 328, and the cases there cited, particularly Fry v. Smith, 10 Abb. N. C. 224, the husband takes a life estate by virtue of the will and the remainder in the personal property absolutely by virtue of his marital rights.

“ The case of Fry v. Smith, supra, is exactly parallel to the case at bar, except that in that case the testatrix attempted to dispose of her entire estate by will, but the bequest of the remainder lapsed by reason of the death of the legatee prior to that of the testatrix.

“ Courts cannot guess at the wishes of a testator, and can only attribute to him su'ch intentions in regard to his estate as are expressed in or are necessarily to be implied from the will.

“ In this case we are left without the slightest intimation of the wishes of the testatrix as to the remainder of her personal estate, for provision in a will for a person who would take a share of the estate in case of intestacy raises no implication of an intention to exclude that person from sharing the residuum undisposed of. ' To cut off such person it is necessary that the estate should be effectively bequeathed to another. Jackson v. Schauber, 7 Cow. 187.

“ The remainder of the personal property must go according to the laws of intestacy, that is to the husband absolutely.”

These decisions in the cases of Fry v. Smith, Robins v. McClure, and Matter of McLeod, supra, in all of which the essential facts seem quite analogous to the case at bar, are controlling and decisive of this demurrer. To the same effect are the decisions in Van Axte v. Fisher, 117 N. Y. 401, and Connolly v. Connolly, 122 App. Div. 492.

The case of Seaward v. Davis, 198 N. Y. 415, cited and relied upon by counsel for the plaintiff, does not seem to me to be authority for this action. In that ease the entire remainder after the life estate was bequeathed to third parties and completely disposed of, and there was no intestacy as to the remainder.

*285My conclusions are that, under the will of Anna E. Comer, her husband took a life estate, with the right to use and dispose of the entire estate during his lifetime; and that the testatrix is to be deemed to have died intestate as to such of the estate not used or disposed of by her husband during his lifetime; and that the husband became vested with the absolute ownership of such undisposed of personal estate immediately upon his wife’s death, by virtue of his marital rights; and that the husband, during his lifetime, was accountable to no one save the creditors of the testatrix, if any; and that his executor, the defendant Wisner, is accountable to no one for such of the estate of Anna E. Comer as came into his hands, except the unpaid legatees. There is no allegation in the complaint that there are any unpaid debts of creditors of the estate, and upon the argument it was conceded that there are none. Hence there is nothing for the plaintiffs to administer of the estate of Anna E. Comer, the defendant Wisner being accountable directly to the unpaid legatees. These views lead to a judgment in favor of the defendant Wisner, sustaining his demurrer to the complaint, with costs.

Demurrer sustained, with costs.