Anna K. Gilman, Executrix, etc., Appellant, v. Theophilus Gilman, Respondent

Anna K. Gilman, Executrix, etc., Appellant, v. Theophilus Gilman, Respondent. (Argued May 23, 1876; decided May 30, 1876.) This was an appeal from an order of General Term affirming an order of the surrogate of the county of New York directing the payment to respondent of a legacy left to him by the will of his father, Nathaniel Gilman, out of a fund on deposit in the Union Trust Company. (Reported below, 4 Hun, 68.) It appeared that decrees for payments of large sums to legatees and others had been made, and some not properly chargeable upon the fund deposited had been paid therefrom, and no accounting had been had by the executors. It was claimed by appellant that respondent’s legacy had been paid. Held, that an accounting should be had and the rights of legatees and distributees adjudged before the assets of the estate were further encroached upon; and that defendant had failed to establish a legal right to be paid the legacy in full from the fund charged; also, that as important questions of fact were put at issue, by the conflicting statements of the petition and opposing affidavits, it was the duty of the surrogate to ascertain the truth by evidence aliunde. Wellesley W. Gage for the appellant. Ohas. E. Whitehead for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for reversal of order of Supreme Court, and of decree of surrogate and proceeedings instituted, with-directions to the surrogate to proceed in accordance with views expressed in opinion. All concur. Ordered accordingly.