
    In the Matter of the Estate of Mary A. Edson, Deceased. In the Matter of Lizzie Ryan O’Connor.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15, 1895.)
    
    Executors—Legacy—Payment.
    The payment of a legacy will not be deferred merely because the person, who brought an action to establish another will, which, if established, will render the will, under which the legacy is claimed, inoperative, intends to appeal from the adverse judgment therein.
    Application to compel payment of a legacy contained in a will.
    
      P. S. Dean, for app’lt; John M. Perry, for resp’t
   Van Brunt, P. J.

The will of Mary A. Edson, deceased, together with three codicils thereto, was admitted to probate by the surrogate of New York county on January 14, 1891, and letters testamentary thereon were issued on the 20th of January, 1891. By one of the. codicils to the will, the respondent was left a legacy of $10,000. The executors admit that they have in their hands sufficient assets, over and above all debts and liabilities, to pay the respondent’s legacy in full, but they decline to do so because the attorneys for Margaret B. Edson, as executrix of Marmount B. Edpon, by whom the will of Mary A. Edson was contested, have notified them not to do so. This proceeding was commenced on the 24th of April, 1895, by the respondent, a legatee under the will of Mary A. Edson, deceased, to obtain payment to her of said legacy, Margaret B. Edson, as executrix of Mar-mount B. Edson, deceased, appeared on the return day of the citation issued in said proceedings, and submitted an affidavit, showing that there were three pending litigations involving the estate of Mary A. Edson; and that the second of these litigations was brought by her as executrix to establish a mutual will theretofore executed by Mary A. Edson; and that, if this mutual will of Mary A. Edson should be enforced, it will dispose of all the assets of the estate of Mary A. Edson, and the will as probated, and under which the petitioner in this proceeding holds, will be inoperative. Upon this state of facts, the surrogate made an order directing the payment of the legacy.

It seems to be assumed upon the part of the appellant that an intention to appeal operates as a stay of proceedings. We are not aware of any such intention, no matter from what source it may emanate, has any such potent effect. In fact,' the appeal itself were pending, it would not necessarily stay the proceeding in reference to the estate, compelling the residuary legatee to .pay interest upon legacies which were due and should be paid.

The order should be affirmed with costs.

All concur.  