In re the Final Judicial Settlement of the Accounts of the Utica Trust & Deposit Co.

Kellogg, J.:

The testatrix bequeathed to the appellant Margaret Bunn her piano and pianola and to Grace H. Bunn all her clothing, wearing apparel, other jewelry and personal ornaments. The testatrix gave various legacies with the remainder of her estate to her infant son. Letters testamentary were issued April 6, 1909/ and the executor filed its petition for final settlement September 21, 1910. All the general legacies and the. expenses of administration have been fully paid, and the only person now beneficially interested m the estate is the son of the testatrix.

At the time ©f her death the testatrix and her husband and son were apparently residing with her father. The items of clothing which were conceded to belong to the testatrix were delivered by the executor to Grace H. Bunn. The piano and pianola were claimed to be the property of the father or of the son, and have ever since remained in the house which at the time of the death of the testatrix belonged to her father and since then to her son. The executor has never had possession of any of the property in question. The appellant Grace H. Bunn claims that there were other items of wearing apparel belonging to the testatrix, and the appellants seek in this accounting to surcharge the accounts of the executor with the value of the piano and pianola and of the items of clothing which they claimed belonged to the testatrix and which have not been delivered.

Evidently the title of the testatrix to the property is so much in doubt that neither the specific legatees nor the executor feel justified in incurring the costs and expenses of a lawsuit seeking its recovery. It is evident that in order to recover this property from the residuary legatee, an action must be brought against him or his guardian, and the sole question tó be determined is whether the specific legatees claiming the property shall bear the expense of the litigation or whether such expense shall be charged upon the residuary legatee himself by compelling the estate to bring the action.

Clearly the executor has assented to the bequests, so that the legatees have an adequate remedy to recover the property if it belonged to the testatrix. (Stall v. Wilbur, 77 N. Y. 158; Matter of Van Monten, 18 App. Div. 301, 304.)

The property has not by any act or neglect of the executor been lost to the specific legatees, and no act of the executor has prejudiced or lessened then title to it or its value. The specific legatees, having a perfect right to maintain an action for its recovery, they are not in a very good position to claim that then failure to recover it is due to the neglect of the executor. The surrogate was right, therefore, in holding that the executor’s accounts cannot be surcharged with the value of this property.

A specific legacy vests in the legatee on the death of the testator. The ¿xecutor, however, has the right to reduce it to possession, and may hold it during the year after the letters are issued and until it is apparent that it is not necessary to use it for the payment of debts and the expenses of administration. He must then turn it over to the legatee, with its earnings and increase. Any interest he has in the property so bequeathed .is thus qualified, and when he assents to the title of the legatee, thereby conceding that it is not necessary to use it for the purpose of administration, such assent is irrevocable and the title of the legatee becomes complete, the legatée, however, being liable to respond to the executor if the result proves that; it is necessary for the payment of debts or expenses of administration. (Heaton Surr. Pr. [1909 ed.] § 843; Blood v. Kane, 130 N. Y. 514.)

In this case it is apparent that the debts and funeral expenses, are otherwise provided for, and this' property is not necessary for any purpose of administration, and that the executor has. assented to the title of the legatees. While the accounting-was in progress, the legatees having objected to the accounts on the ground that the: executor had not reduced this property to possession and delivered it to them, their attorney requested, the executor to institute proceédings for discovery of the property, and the surrogate granted an adjournment at the request; of the parties, the' executor subscribed .a petition, and the. attorneys for the legatees had charge of the proceeding, which, was undertaken at their .request and for their benefit.- The. surrogate dismissed the proceeding by order made, and with the order handed down an opinion holding that all purposes of', administration having been accomplished, and this property not being necessary for such purpose and the executor .having-assented to the title of the legatéés, that, so far as the executor-was concerned, the legatees were the owners of the property, and the proceeding could not be maintained by the executor. When the accounting was resumed the surrogate, acting upon, that decision, held that the accounts of the executor could not. be surcharged with this property, and that it had no further-responsibility with reference to it. By not appealing from the-former order the legatees have so far acquiesced in it that they are not in a position to- question .its propriety in this proceeding. The specific legatees are entitled to just the benefits given them by the will. If the testatrix did not own the property given them it is their misfortune; the other beneficiaries are not required to incur the expense of an action for their benefit. They must take the legacy as they find it when the executor assents to it or suffer by then* inaction. It is not the law nor is it just that the son of the testatrix should be charged with the expense of a litigation to recover this property from himself in favor of strangers in blood of the testatrix.

If the legatees desire to prosecute an action for the recovery of the property against the parties claiming it, they should be freed, so far as possible, from any embarrassment with reference to the assent of the executor, which we have assumed is apparent from the history of the case, and then title should be made clear so far as the executor is able to make it. It should, therefore, quitclaim to them any interest which the estate has in the property in question. • The decree, therefore, should be modified by incorporating therein a provision that the executor shall transfer to them respectively the property specifically bequeathed to them by will so far as the estate has any interest therein, and as so modified affirmed, with costs.

All concurred, except Houghton, J., dissenting in opinion, in which Sewell, J., concurred.