Legal Opinion

Benjamin v. Dimmick

New York Surrogate's Court

Decided November 15, 1878PublishedCited by 4 opinions

Motion to confirm auditor’s report, upon final accounting of executors. The testator, in his will, after giving certain specific bequests, directed his executors to divide all the rest, residue and remainder of his property, real and personal, into three equal parts, and gave to his wife, during her natural life, the income of one of such parts ; to his daughter, Lucretia B. Dimmick, during her natural life, the income of one other of such parts, and at her death he gave the…

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Motion to confirm auditor’s report, upon final accounting of executors. The testator, in his will, after giving certain specific bequests, directed his executors to divide all the rest, residue and remainder of his property, real and personal, into three equal parts, and gave to his wife, during her natural life, the income of one of such parts ; to his daughter, Lucretia B. Dimmick, during her natural life, the income of one other of such parts, and at her death he gave the last mentioned part to her heirs and assigns forever; and he gave to his son, Joseph R. Benjamin, until he should have…

1Opinion of the Court

Tiie Surrogate.—The main, if not the only question to be discussed, is whether the auditor erred in finding that the sums advanced by the testator to his son and daughter, respectively, were ademptions pro tanto of their respective legacies. There can be no doubt that a legacy from a parent to a child may be adeemed in whole or in part, and the rule in respect thereof may be deduced from the elementary writers upon the subject, as follows: That where a parent bequeaths a legacy to a child, and afterwards, in his lifetime, gives a portion or makes a gift to or a provision for the same child,…

2Cited by4 opinions

  1. In Re the Judicial Settlement of the Accounts of CallisterNew York Court of Appeals · 1897
  2. In re the Estate of PercivalNew York Surrogate's Court · 1913
  3. In re the Judicial Settlement of the Account of WeissNew York Surrogate's Court · 1902
  4. Miller v. PayneDistrict of Columbia Court of Appeals · 1906

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