
    Pauline Haebler, Plaintiff, v. The John Eichler Brewing Co. et al., Defendants.
    (Supreme Court, New York Special Term,
    December, 1898.)
    Legacy — Conditional on pairing testator’s debts —Effect of failure! to pay.
    Where a testator beqeueaths his shares in a brewing company to his-brother and executor provided he pays all the testator’s debts and, failing this, to the testator’s wife, the neglect or failure of the brother to pay the debts entitles the wife to the shares, but, where the executor has not accounted nor advertised for creditors and they exist, the wife-must secure the executor against the claims of the creditors.
    Action for the construction of a will.
    Shiland & Honeyman (Joseph H. Choate, of counsel), for plaintiff.
    Ashbel P. Fitch (Elihu Root, of counsel), for defendant John Eichler Brewing Co.
    George E. Mott, for defendant John C. Heintz.
   Cohen, J.

On the 12th day of March, 1893, Louis J. Heintzdied, leaving a last will and testament whereby, after directing the-payment of his debts, he made the following bequest: “ Second, I do hereby give and bequeath to my brother, John 0. Heintz, any and all of my right, title, interest, shares or stocks in or in any manner relating to the John Eichler Brewing Company upon the sole and express condition, however, that my said brother, in consideration of this bequest, assume and pay any and all amounts of indebtedness which I may owe to any person at the time of my decease. If, however, my said brother shall neglect or refuse to assume and pay such indebtedness, then, and in that event, I do hereby give and bequeath the property referred to- in the second subdivision of my will pursuant to the terms, agreements and considerations of and in the manner prescribed by me in the fourth subdivision of this my will, in the same manner, and to the same extent as if this second paragraph of my will had never been written.” The will then provides as follows: Fourth, I do hereby give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, owned by me at the time of my death, of whatsoever kind and wheresoever situated, to my dear wife, Pauline Heintz, absolutely and forever.” Fifth, I do hereby nominate, constitute and appoint my dear brother, John C. Heintz, to be the sole executor of this my last will and testament.” A few days after the funeral of the testator the executor came to the widow and stated that he did not want the Eichler shares; that he did not think he ought to have them, and that Mrs. Eichler, an aunt of the testator, would pay the debts. Subsequently, he took from the-widow the certificate of stock representing these shares, which had been in her possession, and thereafter returned it to her. John C.. Heintz did not assume or pay the indebtedness of the testator, but he neglected and refused so to do, and thereby, under the provisions-of the will above quoted, the shares of stock became the property of the widow under the residuary clause of the testator’s will, subject to the claims of creditors of the estate. The widow continued in possession of the certificate of stock, and monthly and other payments were made to her until the autumn of 1896. During that period the executor, as such, voted upon the shares at the annual' meetings of the company. In November, 1896, after the engagement to marry of the widow to her present husband had been announced, John 0. Heintz endeavored to obtain possession of the stock by an offer of its par value, namely, $10,000, to the widow. He claims that this sum was a mere gift to her, but the widow contends it was an effort to purchase the stock, and the testimony bears-out the conclusion that it was an attempt to purchase. From these facts it is entirely plain .tih'at as between the plaintiff and the defendant, John 0. Heintz, the plaintiff is the owner of the shares in question, and as between the two claimants the plaintiff is entitled to a new certificate of stock to be issued by the defendant, the Eichler Brewing Company, in her name, upon the surrender of the certificate now held by her, when duly indorsed by the defendant, executor. John 0. Heintz, as executor, who was not originally joined in this action, was directed to be made a party by an order of the court. Under the pleadings and .the evidence, it is clear that the executor never advertised for claims or filed an account. It is undisputed that at least one claim against the estate has been presented to and rejected by the executor, the maximum amount of all such alleged claims not exceeding the sum of $25,000. The rule is well established that an executor holds as trustee for the benefit, first, of his testator’s creditors, and, second, of the distributees under the will. Blood v. Kane, 130 N. Y. 514. The settlement of the executor’s account is a matter of adjudication before the surrogate, and is not properly before the court in this action. Therefore, the plaintiff, upon the delivery of the certificate to her, should execute to the executor a bond in the sum of $25,000 to secure the payment of any claims that may be finally adjudged to be due from the estate of Louis O. Heintz to creditors thereof.

Ordered accordingly.  