
    
      In re Phalen’s Estate.
    
      (Surrogate's Court, New York County.
    
    April 13, 1889.)
    Wills—Rights of Legatees.
    Code Civil Proc. N. Y. § 2717, provides that a petition may be presented to the surrogate’s court by a legatee asking the payment of his legacy, or a part thereof, after the expiration of one year from the granting of letters of administration. Section 2718, subd. 1, provides that if the answer of the executor denies the validity of the claim, and it shall appear that the claim is doubtful, the petition shall be dismisses, without prejudice to an action or accounting. A legatee filed such a petition, which the executors answered, setting out the status of the fund in their hands, and denying that they could pay any part of the legacy without injuriously affecting the rights of others. They also averred that the will bequeathed the residuary estate to a trustee, to he divided into shares, one of which was to he for petitioner’s benefit, and that a specified portion thereof was to be paid to him, and the income from the residue not so withdrawn by petitioner was to be paid to him. They alleged that a codicil revoked the direction to pay over a portion of the principal to petitioner, and directed that he should only receive the income. They further averred that the trustee claimed to be entitled to receive all the petitioner’s share, and that the codicil mentioned was being contested in pending proceedings. Held, that the petition should be dismissed.
    Petition by Charles James Phalen, a legatee under the will of James Phalen, deceased, to require the executors thereof to pay him the sum of $10,000 on account of his legacy Code Civil Proc. N. Y. § 2717, provides that any legatee may present his petition to the surrogate, asking that the executors may be required to pay him the whole or a portion of his legacy at any time after the expiration of one year from the issuing of letters testamentary. (Por prior •report, see 3 N. Y. Supp. 205.) Section 2718, snbd. l; provides that if the ■executors shall deny by written answer, duly verified, that the claim is valid, and if it shall appear to be doubtful whether the claim is valid, the petition shall be dismissed without prejudice to an action or accounting.
    
      Charles H. Woodruff, for petitioner. Stewart <& Sheldon, for Edgar Lockwood and the Comtesse dé Gabriae, executors. Roe c6 Maclin, for various legatees.
   Ransom, S.

This is an application made by the son of testator, praying for a decree directing the executors to pay to him, out of funds in their hands belonging to the estate, the sum of $10,000, to be charged against him as a payment on account of his interest' in said estate, as the same may be ascertained and determined to be. The application is opposed by the executors, who file, an answer admitting the place of residence of the petitioner, and that he is the only son of the testator; that the will and codicils thereto were admitted to probate in April, 1887, and allege that letters testamentary were issued upon the same day to the executors named in the will. They further admit that the petitioner is named in the will as a legatee and beneficiary, and ■as to the nature and extent of such interest beg leave to refer to the will. They further admit that the estate left by said decedent is worth at present about $500,000, the appraised value being $618,610. They further admit that proceedings have been instituted, and are now pending, to revoke the probate of the said will", and that more than one year has expired since letters testamentary were granted. They deny, upon information and belief, that there is now money or other personal property in their possession applicable to the payment of the petitioner’s claim herein, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment; and they likewise deny, upon information and belief, that the petitioner’s claim for the payment to him by them of any portion of said estate is a valid and legal claim. They allege that the income received by them since the granting of letters testamentary has amounted to about $70,000, of which about $8,000 is interest accrued prior to January, 1887, the date of the testator’s death, and that after paying debts, expenses of administration, taxes, etc., which have been paid with the knowledge and assent of the petitioner, there remains in their hands the sum of $21,735.12, in addition to certain securities, whose appraised inventory value was $475,090, and whose present value is $434,215. They further allege that since the institution of revocation proceedings default has occurred in the payment of interest on $140,000 of the Missouri, Kansas & Texas Railroad bonds, described in the inventory, which bonds were, in December, 1883, pursuant to the directions contained in the will, transferred to the United States Trust Company of Sew York, trustee therein named, and also on $50,000 of the International & Great Northern Railroad second mortgage 6 per cent, bonds. They further allege-that the present income producing property in the estate amounts to the sum of $24,640. The assignment of the interest of the petitioner in the income from said estate, to the extent of 35,000 francs, has been delivered by the executors to the United States Trust Company, and the executors allege that, they are informed and believe that the petitioner is further indebted to the firm of John Monroe & Co., of Paris, in the sum of 10,000 francs; and they further allege that by an instrument in writing, dated February 10,1887, the petitioner acknowledged and declared that he had received from the testator the sum of 55,523 francs as an advancement made to him against and out of his share in the estate, and to be charged as such by the executors of said will. They further allege that they are advised and believe that by the terms of the-will an hotel or dwelling-house in Paris was devised by the testator to the petitioner absolutely, the value of which hotel at the time of the death of the-testator was in the neighborhood of 50.U00 francs. They allege further that the United States Trust Company of New York, the residuary devisee and legatee in trust under said will, claims to be alone entitled to receive from them any part of the residuary estate of said testator, and has requested them not to pay any part of said residuary estate to the petitioner herein.

By the twelfth paragraph of the will all of the residuary estate was devised and bequeathed to the United States Trust Company of New York, as trustee* to divide the same into four equal shares, and to hold such shares upon certain trusts set forth in the ninth paragraph of the will, and, when so divided* one-fourth part of the residuary estate is directed to be set apart, and the income paid to this petitioner; but, by the seventh codicil to the will, the power in the petitioner to withdraw a portion of this one-fourth from the operation of the trust is revoked, as well as a power of testamentary disposition. The-case cited by the petitioner, In re Macaulay, 94 N. Y. 574, is not in point. There it was held that it was not sufficient to simply deny the validity or legality of a claim presented under section 2717,’ but that the answer must set forth facts to show that it was doubtful, and, as they were lacking, the ease was not brought within subdivision 1, § 2718, of the Code. The leading case is Hurlburt v. Durant, 88 N. Y. 121, where facts were set up by the answer that led the court to believe that it was at least doubtful whether the petitioner’s claim was valid and legal, and, as in other respects the answer was sufficient, the surrogate should have dismissed the petition. As has already been-said, by said subdivision 4 of paragraph 9 of the will, the one-fourth part of the residuary estate, less any sum the petitioner might have received from the-testator by way of advancement, was to be set aside by the trustees, who were directed to invest the same upon the following trusts, namely, to pay over to-the petitioner any part of the capital of said fund at such time or times as lie' may by an instrument in writing, duly proved or acknowledged, and upon reasonable notice require, saving and excepting always the sum of $70,000, and upon the further trust to pay over from time to time, at least half yearly* the net income accruing from said fund, or from such residue thereof as may at any time be remaining in their hands, unto the petitioner for and during-the remainder of his natural life. And by the seventh codicil it is directed that the portion and property of the estate which by will was left to the petitioner was left to the United States Trust Company of the city of New York; in trust, to pay the income thereof annually, or at convenient- intervals in each year, to or for the use and support of the said petitioner during his life* and at his death the principal to go elsewhere.

It appearing from the answer that the United States Trust Company claims to be entitled to receive from the respondents any part of the residuary estate-of the testator, and that the seventh codicil, which revokes the power given to the petitioner in the fourth subdivision of the ninth paragraph of the will* is being attacked upon the proceedings for revocation, these facts, considered with the rest of the respondents’ answer, namely, denying “that there is now money or other personal property in their possession applicable to the payment of the petitioner’s claim herein,” etc., under the case above cited (Hurlburt v. Durant) compel the surrogate to deny the motion.  