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In re the Estate of Emery

In the Matter of the Estate of William S. Emery

In re the Estate of Emery, 134 Misc. 714 (N.Y. Sur. Ct. 1927)
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Court
New York Surrogate's Court · State Specialty Courts
Decided
November 3, 1927
Judges
Foley
Citations
134 Misc. 714236 N.Y.S. 1351927 N.Y. Misc. LEXIS 1331

Opinion of the Court — Foley

Text extracted by OCR from a scanned original; check the original for exact wording.

Foley, S.

The referee’s report will be confirmed and the exceptions thereto will be overruled. I hold that his findings and conclusions with respect to the claim of Bertha Belle Emery and Grey Gables, Inc., to the proceeds of the sale of certain real property are correct; that his determination with respect to the sale of 200 shares of Sinclair Oil Company preferred stock was likewise proper; and that the claim of Laura E. Finnie was properly disallowed. As to the further question raised before me, I hold that the claim of Bertha Belle Emery, as life tenant of the residuary trust, to the gross income earned on the estate during the period of administration, must be disallowed. Under the language of the will she became entitled to all income earned upon the residue after the payment of certain annuities. Necessarily the determination of the amount due her for income from the date of death of the decedent depended upon the ascertainment of the clear residue which constituted the corpus of the trust. There is no indication of intent in the language of the will that gross income should be paid to her from the date of the testator’s death. The circumstances here, therefore, must be distinguished from the facts in Matter of Slocum ( 60 App. Div. 438, 441 ), where the will directed that all the income “ of my estate ” be páid to the life tenant. The direction to pay the income earned *715 on the residue requires the ascertainment of residue in accordance with the authorities of this State. (Matter of Benson, 96 N. Y. 499, 511 ; Williamson v. Williamson, 6 Paige, 298, 306 ; Matter of Brokaw, 165 N. Y. Supp. 700 .)

All income earned during the period of administration must be included in the computation of such residue. On the settlement of the decree the parties may submit computations of their respective claims with regard to the exact amount of income payable to the widow pursuant to the rules laid down by the later decisions.

Submit decree on notice confirming the referee’s report and settling the account accordingly.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1929: 11930: 11931: 119292026peak 1929 · 1

Relies on it most ⓘ

  1. In re the Estate of Lord134 Misc. 198 (N.Y. Sur. Ct. 1929)
  2. In re the Estate of Reese141 Misc. 428 (N.Y. Sur. Ct. 1930)
  3. In re the Estate of Ryan140 Misc. 364 (N.Y. Sur. Ct. 1931)

Most recent

  1. In re the Estate of Ryan140 Misc. 364 (N.Y. Sur. Ct. 1931)
  2. In re the Estate of Reese141 Misc. 428 (N.Y. Sur. Ct. 1930)
  3. In re the Estate of Lord134 Misc. 198 (N.Y. Sur. Ct. 1929)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Williamson v. Williamson, 6 Paige Ch. 298 (1837) 94
In re Accounting of Benson, 96 N.Y. 499 (1884) 81
In re the Judicial Settlement of the Accounts of Slocum, 60 A.D. 438 (1901) 17

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