In re the Estate of Hunt , 82 Misc. 211 ( 1913 )

Sexton, S.

On November 28, 1910, Charlotte L. Hunt died and left a will containing this provision:

“ Second. I give, and bequeath unto Ida S. Myers, who though not legally adopted, has for more than twenty-five years borne the relation of adopted daughter to me, the sum of twenty thousand dollars, and in addition thereto, all my household furniture and effects and wearing apparel and personal adornment.”

Said Ida S. Myers died intestate March 21, 1907, and prior to the death of said testator, leaving as her sole heirs and next of kin, A. Stanley Myers and C. Stuart Myers.

The Utica Trust and Deposit Company, the accounting party herein, took the position in its account that said legacy of $20,000 to said Ida S. Myers lapsed.

The Citizens’ Trust Company of Utica, as administrator of the estate of Ida S. Myers, deceased, and also C. Stuart Myers and A. Stanley Myers, sons of Ida S. Myers, deceased, filed objections in writing to said account, contending that said legacy of $20,000 had not lapsed, and that it should be decreed to be paid to the representative of the estate of said Ida S. Myers, deceased.

The general rule is that a legacy lapses where a legatee dies before the testator.

Section 29 of the Decedent Estate Law contains the exceptions, but the legacy in question does not fall under this statute, because Ida S. Myers was not a child of the testatrix, either by birth or adoption.

From early childhood and until the time of her marriage, said Ida S. Myers had lived in the Hunt family, and had been reared and educated and treated as their child, but had never been legally adopted. Because of these conceded relations, it was contented on the trial, and proof was offered in support thereof, that such moral obligation rested upon the deceased, Charlotte L. Hunt, to care for said Ida S. Myers as would prevent the lapsing of said legacy. The evidence fails to establish such an obligation.

If such an obligation existed, it was more than met by transfers of real estate and gifts of personal property on the part of the Hunts to said Ida S. Myers, independent of the will. The children of said Ida S. Myers were given a legacy of $2,500 each, and will share with others in the residue of the estate. The attention of said Charlotte L. Hunt, who outlived said Ida S. Myers by about four years, was called to the fact that the legacy of $20,000 to said Ida S. Myers had lapsed and she was unavailingly importuned by said A. Stanley Myers to modify her will to the extent of giving said sum, or a part thereof, to him and his brother.

The cases of Cole v. Niles, 3 Hun, 426, and Matter of Gough, 74 Misc. Rep. 315, relied upon by the contestants have no application, as the decision, in each of said cases, rests upon a different state of facts. The question of a moral obligation was not involved.

I hold and decide that a decree may be entered overruling the objections and passing the account as filed.

Decreed accordingly.