In re the Accounting of Lynn , 204 Misc. 163 ( 1953 )

McGrath, S.

On the judicial settlement of the executor’s account, a construction is sought of the following paragraph of the will: ' ‘ Second: I hereby give, devise and bequeath to my grandchild, Stanley Linetzky, the sum of Five Hundred ($500.00) Dollars, which is on deposit with Dollar Savings Bank at 121 East 170th Street Branch, which bank book is in my name in trust for Stanley Linetzky.”

The decedent had on deposit in his individual name with the Dollar Savings Bank approximately $2,400 which sum was withdrawn shortly before his death. At no time had he ever opened an account in his name in trust for his grandchild in the Dollar Savings Bank or any other bank.

It is the contention of the executor and the special guardian that the bequest is a demonstrative legacy and therefore that Stanley Linetzky is entitled to receive the sum of $500 out of the general funds of the estate. If this is so, one son of the decedent will be excluded from sharing in the estate as the will provides for him only in the event that the remainder and residue exceed a certain sum.

In Giddings v. Seward (16 N. Y. 365) the will of the testator provided in part: “I give and bequeath unto my beloved mother, Antha Seward, the sum of twelve hundred dollars and interest on the same, contained in a bond and mortgage given to me by Orren W. Seward and Caroline his wife, and dated the third day of January, 1847.” The court held this provision to be a demonstrative legacy, it being noted that the bond and mortgage was in the principal sum of $1,200. This point of the decision was approved in Crawford v. McCarthy (159 N. Y. 514, 520; see, also, note to decision of Newton v. Stanley, 28 N. Y. [1881 ed.], 61, 66).

Surrogate Collins, New York County, in Matter of Kuhr (N. Y. L. J., Feb. 1,1950, p. 401, col. 3) considered the following provision: “I give and bequeath to my beloved niece, Frances Eodriguez of 334 East 9lst Street, Borough of Manhattan, City and State of New York, Five thousand dollars with interest the money which I have already placed in trust for her in Central Savings Bank, Broadway & 73rd Street, Borough of Manhattan, City of New York.” At the date of death of the decedent the described account had a balance of only $973.41. The court held this bequest to be a demonstrative legacy.

In the light of the afore-mentioned decisions, the court accepts the contention of the executor and the special guardian.

Proceed accordingly.