(178 N.Y.S.) of and be looking after the welfare of the infant by a decision inferring that he is the illegitimate child, and, if not directly, indirectly causing him and his name to bear such a stain throughout the remainder of his years? I think not. Had Jerry Mancini, the father, and Mary Delos, the mother, agreed to get married? Had they agreed to live together as man and wife? Did they live as man and wife? The mother says that she went to Schenectady to get married. If we take this as true, there can be no other inference but that there had been an agreement to get married. He had furnished a home on Center street in Amsterdam, which the mother knew of, and knew that it was being so furnished, so that she and Jerry might live there as man and wife, and the mother says that they had agreed to be married. This all happened three months before this infant, John Mancini, was born. They went to live at the house which Jerry Mancini, the father, had furnished, and they lived there together in such manner as any man and wife would live. The neighbors called her "Mrs. Mancini," she was known as "Mrs. Mancini," and it was generally understood that they were husband and wife and even her father and mother, Peter Delos and Louisa Delos, thought they were man and wife. Their relations were such that another child was born. I cannot help but conclude, from these facts and many others that might be cited, that John Mancini is the legitimate child of Jerry Mancini. It has not been shown that Jerry Mancini is incompetent to act as the guardian of his son, and, therefore, upon the facts in the case, not forgetting that the mother has in her custody and under . her control the younger child, and inasmuch as she consented in writing that the father have the custody and control of this infant, I will grant the application of the petitioner. [3] I should like, however, to have such appointment conditioned with the provision that the mother should have access to her son at such times and in such manner as might be proper and conducive to the best interests of the infant, and the order appointing the father the guardian may provide for some access to the infant on the part of the mother. The order may be settled by the attorneys for the respective parties appearing before me at a designated term, by agreement or upon notice, and the amount of the security then fixed, when I will also hear arguments as to the terms and conditions of the mother's access to her child. Decreed accordingly. (108 Misc. Rep. 107) In re KEAN et al. In re VAN CORTLANDT'S WILL. 1. EXECUTORS AND ADMINISTRATORS 122(2) - TEMPORARY ADMINISTRATORS HAVE TO DO ANYTHING NECESSARY TO PERFECT CHOSE IN ACTION. The general power of temporary administrators, under Code Civ. Proc. § 2597, "to secure and preserve the estate," implies the further power to do whatever is requisite to perfect a chose in action. 2. EXECUTORS AND ADMINISTRATORS 122(2)-CERTAIN PREFERENTIAL PAYMENTS NOT CLAIMS AGAINST ESTATE, BUT AGAINST COLLATERALS PLEDGED. Where an order of the surrogate, not appealed from, authorized temporary administrators to arrange with firms, etc., for sale of preferred stock held by them as collateral, and authorized pledgees to effect such sale and to apply proceeds to reduction of debit balances due and owing to them by estate, such preferential payments were not claims against estate in the first instance, but against the stock pledged as collateral. 3. EXECUTORS AND ADMINISTRATORS122 (2) - SETTLEMENT OF ACCOUNTSPARTIES ENTITLED TО ОВЈЕСТ. Where unappealed order of surrogate authorized temporary administrators to arrange to sell preferred stock pledged as collateral, and authorized pledgees to make such sale and apply proceeds on their debit bal\ances, parties plaintiff in an action against decedent in his lifetime for a money judgment, now pending against his executors, on settlement of accounts of such administrators and executors, under Code Civ. Proc. §2768, subd. 3, defining "debts" and "creditor," might object to such preferential payments; but where account indicated that such sale and payment realized a profit to estate, and consequently to creditors, they could not be injured, if ultimately securing judgment in their action. 4. EXECUTORS AND ADMINISTRATORS 308 ACCOUNT CHARGEABLE WITH PAYMENT TO GENERAL DEVISEE BEFORE PAYMENTS TO CREDITORS. Account of executors would be charged with money transferred to a general devisee, a legatee of testator, in advance of the payment of the claims of creditors. Proceeding upon the judicial settlement of the accounts of Hamilton Fish Kean and another as temporary administrators and as executors of Robert B. Van Cortlandt, deceased. Decree that executors be charged with certain sums paid out by them. See, also, 177 N. Y. Supp. 789. Crescens Hubbard, of White Plains, for executors. W. Bourke Cockran, of New York City, for objectors. SLATER, S. In the matter of the accounting of the temporary administrators of decedent, Otto Schiff and others appear as objectors. They are plaintiffs in an action now pending in the Supreme Court, against decedent in his lifetime and now against the execu For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 Ν.Υ.S.) tors and others, to obtain a money judgment. Section 2768 of the Code of Civil Procedure, subdivision 3, defines the word "debts" as including every claim and demand upon which a judgment for a sum of money or directing the payment of money could be recovered in an action, and the word "creditor" includes every person having such a claim or demand. Therefore they have the right to appear at this time and object. [1-3] The objection is made to certain payments to Kean, Taylor & Co., Bank of Manhattan Company, Davies, Thomas & Co., Union Trust Company, and the United States Mortgage and Trust Company. Section 2682 of the Code provides for the order of payment of debts against an estate. The powers of temporary administrators are set forth in section 2597. Among the general powers granted is one "to secure and preserve" the estate. The doings of temporary administrators are regulated entirely by the order of the surrogate. The surrogate may by order authorize the temporary administrator to pay funeral expenses or any expenses of the administration of his trust. He may also direct the payment of a legacy. Under section 2599, any time after completion of the publication of the notice to creditors, the surrogate may empower the temporary administrator, prior to an accounting, upon proof and his satisfaction that the assets exceed the debts, to pay the whole or any part of a debt due to a creditor. The temporary administrators claim that by order of the former surrogate of this court, dated May 3, 1918, they were empowered to pay certain debts to the creditors named in the objection filed herein, in these words: "Ordered, that the said temporary administrators be and they hereby are authorized to arrange with any and all of said firms and corporations holding as collateral second preferred stock of the Gulf States Steel Company for the exchange of said preferred stock for common stock of said company or for the sale of said preferred stock, and that such firms and corporations be and hereby are authorized to effect such sales and to apply the proceeds thereof to the reduction of the debit balances due and owing to them respectively by the estate of the decedent." This order was not appealed from, and therefore I will assume at this time that upon this accounting it stands with full force. Even admitting that it was made at a time when the court was without power to make it, unless it had power under the general equitable powers given by the Code, I conclude that these preferential payments were not claims against the estate in the first instance, but against the stock which had been pledged as collateral security. The temporary administrators, upon order of the court, would have the right, to pay the maturing debt for which collateral was pledged. The general power to secure and preserve the estate implies the further power to do whatever is requisite to perfect a chose in action, for the power to do an act includes the power to do all that is reasonably necessary to do it effectively. Matthews v. American Central Ins. Co., 154 Ν. Υ. 449, 48 Ν. Ε. 751, 39 L. R. A. 433, 61 Am. St. Rep. 627. By the sale of the stock and the payment of these preferred creditors from this primary fund, the account indicates that the estate has been able to realize a profit from the "right" which belonged to the stock, to the benefit of the entire estate and consequently to any and all creditors. I cannot observe that any money has been lost to the general estate by the payment of these preferred debts, or that any right of the objectors has been invaded, should they ultimately secure a money judgment. [4] Otto Schiff and others also object to the fact that the executors have transferred certain moneys to the general devisee and legatee of decedent, Columbia University in the City of New York. The executors were without power to do this until the payment to creditors had been made, and I must decline to permit the account to approve of these payments, and the executors must stand charged with these sums of money so paid to Columbia University. Decreed accordingly. (108 Misc. Rep. 111) In re KREUSSER et al. (Surrogate's Court, Westchester County. July, 1919.) 1. WILLS 820(1)-WHETHER LEGACY CHARGE ON REAL ESTATE MATTER OF INTENT. Whether a legacy is a charge upon real estate of a testator is always a question of his intention. 2. WILLS820(3) - LEGACIES INTENDED TO BE PAID FROM PERSONALTY NOT A CHARGE ON REALTY. Where a will giving executors discretionary power of sale provided that if proceeds of the residuary estate, in which testator's wife was given a life estate, were insufficient to pay certain legacies, which were less than the personalty, they should be paid pro rata, and that any excess, after all other legacies had been paid in full, should be divided equally among certain persons, the realty was not charged with payment of legacies, but it was the intention that they should be paid from the primary personal estate, so far as it might go after expenses were paid, and to create a life estate in the wife in the balance of estate, and on her death to pay the legacies. Proceeding upon the judicial settlement of the account of Louise F. Kreusser and others, as executors of John Kreusser, deceased, with request that the court construe the will of testator as to payment of legacies. Will construed, and decree to be entered accordingly. George Haas, of New York City, for executors. SLATER, S. On this accounting, the court is asked to construe the will of decedent in so far as it may relate to the payment of legacies. The decedent provided for the payment of his funeral ex For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 N.Y.S.) penses and made a specific gift of his household furniture to his wife. By the third paragraph he disposed of certain jewelry and gave $500 in 5 cash legacies of $100 each. By the fourth paragraph he gave $7,600 in 15 cash legacies of specified sums of varying amounts. Included among the last-mentioned legatees is Anna Beyrodt, who is contending that the legacies under the third and fourth paragraphs should be paid in full at this time. [1, 2] It appears that at the time the decedent made his will, and also at the time of his death, he had about $11,000 personal property, and the legacies under these two paragraphs amounted to $8,100. The expenses of the estate, being a primary charge upon the personalty, reduce the money in hand at the present time to about $5,000 or less for the payment of these legacies. The question is raised whether the legacies in these two paragraphs are not a charge upon the realty. Whether a legacy is a charge upon real estate of a decedent is always a question of testator's intention. Carley v. Harper, 219 N. Y. 295, 114 Ν. Ε. 351. A legacy is charged upon real estate when at the time of making the will the testator's personalty is considerably less than the amount of the legacies, indicating an intention upon the part of the decedent to have the legacies paid out of real estate. This state of facts does not obtain here, because the legacies of the third and fourth paragraphs of the will are less in amount than the personalty, and I conclude that it was not the intention of the decedent to charge his real estate with the payment of the legacies in these two paragraphs of his will. In the fifth paragraph of the will the decedent gives and bequeaths all the rest, residue, and remainder of his estate, real and personal, to his executors in trust, to pay the net income thereof to his wife during life, and upon her death the executors are directed to sell the real and personal estate and pay over the same to 21 beneficiaries therein named in varying amounts specified aggregating $47,400. The sixth paragraph of the will states: "If there be not sufficient sums of money realized on the sale of my residuary estate to pay the above set forth legacies and bequests in full, then such legacies shall be paid pro rata, but should there be more moneys on hand, then such excess and such other moneys as may have reverted back to my estate by reason of the death of any of my legatees not leaving issue shall (after all the other legacies herein provided have been paid in full) be divided equally share and share alike unto and between Anna Beyrodt and all of my nephews and nieces and whom the said Anna Beyrodt and my said nephews and nieces I do hereby constitute, declare, make and appoint them to be the legatees of my said residuary estate." This paragraph is followed by discretionary power of sale. The testator had in mind the withholding of a division of his estate until after the death of his wife and the payment of the "above set forth legacies and bequests in full," referring to those named in the fifth paragraph of the will. |