In re the Estate of Bea y Urquijo , 125 Misc. 357 ( 1925 )

Foley, S.:

In this accounting proceeding, in the discretion vested in the surrogate by the provisions of sections 164 and 165 of the Surrogate’s Court Act, I direct that a sufficient sum be reserved by the ancillary executor out of the assets in his hands to cover the amount of the judgment, with interest, obtained by Lawrence Turnure & Co. against Pedro Bea y Urquijo and Juan Joseph Bea y Urquijo, two of the residuary legatees of this estate. (Helme v. Buckelew, 229 N. Y. 363, 372; Hopper v. Hopper, 125 id. 400; Matter of Hughes, 95 id. 55; Despard v. Churchill, 53 id. 192, 199; Bostwick v. Carr, 165 App. Div. 55; State of Iowa v. Slimmer, 248 U. S. 115; Matter of Bliss, 121 Misc. 773; Matter of Worch, 124 id. 380; Matter of Lorillard, L. R. [1922] 2 Ch. 638; 36 Harvard Law Rev. 36, 608; 9 Cornell Law Quarterly, 334.)

The decree directing the transmissal of the remaining assets to the Cuban administrators should properly identify the funds so transmitted and specifically recite the retention of the other assets for the account of the judgment creditors of the residuary legatees named above. It is unnecessary to give further reasons for the exercise of my discretion in the matter other than to say that justice will be done to a New York creditor, whose rights have been legally established through an attachment against the two residuary legatees (Civ. Prac. Act, § 916), which was merged into a judgment of the Supreme Court. Circuity of action will be avoided by a direct payment in this court instead of transmitting the entire funds to Cuba and remitting the New York creditors to their speculative remedies against the judgment debtors in the foreign state. The statement filed in this proceeding, of the estate assets and liabilities in New York, Spain, Cuba and elsewhere, shows an apparent surplus and a probable distribution to the residuary legatees of an amount in excess of the judgment against them. It would appear, however, that final distribution of the funds directed to be retained should await a future decree herein, after the final settlement of the principal Cuban estate, or after some other determination of the interests of beneficiaries of the estate to the satisfaction of the surrogate.

Submit decree on notice accordingly.