Miller v. Coudert

Appellate Division of the Supreme Court of the State of New York

Decided July 1, 1902

Appellate Division of the Supreme Court of the State of New York · decided 1902-07-01

Appeal by the plaintiff, George M. Miller, as trustee under the last will and testament of Edmund H. Miller, deceased, and by the defendants, George M. Miller and Edward S. Rapallo, as executors, etc., of Edmund H. Miller, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, George M. Miller, as trustee under a certain contract dated October 15, 1877, and also in favor of the defendant Frederic R. Coudert, Jr., as ancillary administrator with…

Decided 1902-07-01

Van Brunt, P. J. (dissenting):

¶1I concur in that part of the opinion of Mr. Justice Laughlin which holds that the $34,000 should be charged as therein stated, but I dissent from the conclusion ' arrived at. I am of the opinion that the fund reverted to the testator’s estate and must be distributed as part of his residuary estate. To hold otherwise is to make a new *545contract between the parties to the marriage settlement without the consent of either.

¶2Judgment modified as directed in opinion, and as modified, affirmed, with costs to all parties payable out of the fund.