
    In the Matter of the Estate of Cornelia Post, Deceased.
    
      (Surrogates’ Court, New York County,
    
    
      Filed March 26, 1890.)
    
    1. Wills—Tested interests.
    The will directed the investment of a certain sum, the income to be paid to testatrix’ husband for life, and on his death the principal of the fund to be paid to certain persons in specified shares. Held, that the latter persons took a vested interest not defeasible by the death of either; that the personal representatives of the legatees, who died before the life tenant were entitled to their legacies, and that the administratrix with the will annexed was entitled as against the executor of her predecessor to the fund for the purpose of distribution.
    2. Executors and administrators—Trust—Laws 1882, chap. 185.
    Chapter 185, Laws 1882, relates solely to the case where one who, is a trustee as distinguished from an executor merely, dies leaving the trust unexecuted.
    3. Same—Limitations.
    The representatives of the former executors paid over the fund in their hands to the administrator with the will annexed, who died, and within six years after such payment this proceeding was brought against his executor to recover said fund. Held, that the statute of limitations was no bar to the proceeding.
    Exceptions to referee’s report.
    
      Daniel G. Rollins and John C. O'Connor, Jr., for petitioner; F. W. Hinrichs and George D. Beattys, for resp’t.
   Ransom', S.

The referee has reported that this proceeding should be dismissed. The petitioner excepts to this conclusion of law and to the grounds upon which the referee bases it. They are, first, the inability of petitioner to maintain the proceeding in the capacity in which she has brought it, to wit, as administratrix with the will annexed. Second. That the right to compel the accounting sought is barred by the statute of limitations. As an additional ground for sustaining the disposition made by the referee, the respondent insists that all those who were ultimately entitled to share in the principal of the fund in question had received their entire interest, and that therefore, and as there are no unpaid creditors, there is no estate for the petitioner to administer. The last claim involves the question as to whether or not certain specified legatees, to whom a portion of the fund was given after the death of the life beneficiary, and who predeceased the latter, but survived the testatrix, were entitled to a vested interest therein. The testatrix died June 22, 1873, leaving a will and appointing an executor and executrix who, after the admission of the will to probate, July 10, 1873, took out letters testamentary, the former on July 10,1873, and the latter April 13, 1876. One of the executors died in July, 1879, and the other December 9,1881. The will contained, among other provisions, the following:

“I order and direct that my executors invest the sum of $20,000' upon bond and mortgage of real estate, or such stocks as they may regard as safe and permanent, and to pay over the interest and income thereof as the same may be received to my husband, Edwin Post, for and during his natural life; and upon his death, out of the principal of said trust fund, to pay to Jane Eliza Davis, daughter of Elijah Davis, the sum of $5,000; and after deducting said sum of $5,000, to divide and pay over the remainder of said, trust fund unto and among my sister, Emily Bell, and my brother, Gilbert T. Davis, in equal shares.”

On May 16, 1883, letters of administration c. t. a. were issued, to the husband of the testatrix, the life beneficiary mentioned in the foregoing provision. Subsequently to his appointment, and in pursuance of two orders of the surrogate, dated respectively July 19 and 20, 1883, directing the transfer thereof to the said administrators, there wore delivered to him a certain certificate of deposit belonging to the estate of testatrix, then held by the executors of one of the executors of testatrix, and certain bonds and mortgages, also belonging to said estate, and formerly in the possession of the executor of a deceased agent of testatrix’s executors. These are the funds respecting which an accounting is sought. The said administrator died June 9, 1887, and letters of administration upon his estate were issued to the respondent August 25, 1887. The petitioner, who was appointed administrator c. t. a. of the testatrix, began this proceeding January 12, 1888, to compel the respondent, as administrator of testator’s husband, to account for the administration of the latter of his wife’s estate.

The first question presented is, whether the persons among whom the will directed a "division of the fund upon the death of the life beneficiary took a vested or contingent interest therein. There is no doubt that they each took a vested interest not defeasible by the death of any of them in the life-time of such beneficiary. Coit v. Rolston, 44 Hun, 548; 9 N. Y. State Rep., 232; Da Costa v. Bass, 48 Hun, 31; 15 N. Y. State Rep., 281; Van Axte v. Fisher, 27 N. Y. State Rep., 257; Smith v. Edwards, 88 N. Y., 104; Estate of Randall, Surr. Dec., 1890, p. 25.

Such being the case, the personal representatives of the two-legatees who predeceased the life beneficiary are entitled to their legacies, and the petitioner, as administratrix c. t. a. of the testatrix, is entitled to receive them for the purpose of administration, and distribution unless for some other reason she is precluded from doing so.

It is claimed that the trust respecting the fund is of such a, character that it could only be executed by a trustee appointed for the purpose, and not by an administrator with the will annexed. The provision containing the bequests in question, when considered separately or in connection with the rest of the will, evidences no intention on the part of the testatrix of reposing any such special or personal confidence or discretion in her executors as would dissociate the .trust confided to them from their office as executors or prevent them from fully administering it. Hood v. Hood, 85 N. Y., 569-571; Mott v. Ackerman, 92 id., 552-3 ; Matter of Clark, 5 Redf., 466; Bain v. Matteson, 54 N. Y., 663-4.

The claim that, pursuant to chap. 185 of the Laws of 1882, the execution of the provision in question devolved upon the death of the executors of the will upon the supreme court, is unfounded. The chapter cited relates solely to the case where one who, being a trustee, as contradistinguished from an executor merely, dies leaving the trust unexecuted. We have seen that the present is not a case of this character.

The question remains as to whether the petitioner is barred from maintaining the proceeding by the Statute of Limitations. It is to be noticed that the proceeding is not" brought against the representatives of the deceased executors of testatrix. More than eleven years have elapsed since the issuance of letters to the executor who last qualified and the commencement of this proceeding. If the proceeding had been begun against them, doubtless the plea of the bar of the statute would prevail. Matter of Van Dyke, 44 Hun, 397; 9 N. Y. State Rep., 137; Matter of Clayton, 1 Connoly, 444 ; 22 N. Y. State Rep., 886.

The attitude in which respondent’s decedent stood with reference to the fund or property in question was that of having a claim therefor against the estates of those having possession of it. The representatives of such estates having surrendered the property or fund to respondent’s decedent within six years prior to the commencement of this proceeding, the attempt to interpose the Statute of Limitations to defeat the present proceeding is ineffective. Matter of Coman, 14 N. Y. State Rep., 937. See Leroy v. Bayard, 3 Bradf., 228; Warren v. Paff, 4 id., 266, 267; Paff v. Kinney, 5 Sandf., 380; House v. Agate, 3 Redf., 311.

The exceptions to the referee’s report are sustained and the report must be referred back to the referee to proceed with the accounting.  