In re the Judicial Settlement of the Account of Arnton

Citations

• 106 A.D. 326
• 94 N.Y.S. 471

Syllabus

<p>Legacy — when not presumed to have been intended to be given in discharge of an indebtedness of. the testator'to the beneficiary — commissions, how divided among executors.</p> <p>Where a man, who, at the time of his death, owed his brother the sum of §890.81; leaves a will, in which, after reciting that “In making this will I consider I am doing my duty and trying to repay those who have been good and kind to me düring my long and tedious illness,” he bequeaths $6,000 and all his jewelry to his brother, such bequest is not to be considered as having been intended as a payment of the testator’s debt to his brother.</p> <p>The rule that a legacy. given by a debtor to his creditor, which is equal to or greater than the debt, shall be considered as a satisfaction of such debt, is merely a rule of presumption; as such it is still in force.</p> <p>One of two executors of an estate should not, under section 2730 of the Code of Civil Procedure, be awarded all of the commissions to the exclusion of his coexecutor, where it appears, that the work of the executors, apart from formal acts, was performed by an accountant and by attorneys'who were paid out of the estate, and that the coexecutor' shared in the responsibility of the executorial office and took part in such work as was done personally by the executors. In such a case the commissions' should be equally divided among the executors.</p>