Estate of Brickell

TYLER, P. J.

Appeal by the executors of the will of deceased from a decree of partial distribution of certain furniture belonging to the estate. At the time deceased executed her will she owned a considerable amount of this character of personal property, some of which was in storage, some in her rooms at the Palace Hotel, and some in an apartment house owned by her. The furnishings in the apartment house present the subject of the present controversy. At the time the will was executed the deceased owned the Whiteside Apartments, a four-story brick building. The building was leased as a whole, and the lessees owned the furniture in the building. This furniture was mortgaged to the decedent to secure the payment of the rent under the lease. On the 1st of December, 1930, on foreclosure of the chattel mortgage for accrued rental, the deceased became the owner of the furniture, having purchased the same for the sum of $1350. Between the time she thus acquired the furniture and the time of her death, November 29, 1931, the deceased added about $1,000 to it in the way of replacements and betterments. At the time

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of her death the furniture cost about $2,500. The will of deceased consists of some sixteen provisions. .We will refer only to those necessary for a consideration of the controversy.

Under one provision, deceased bequeathed her dining room suite to one Carolyn Snyder. By another provision she bequeathed all her wearing apparel, furs and the rest of her furniture to Virginia Kellenberg and Jennie Vandervoort, her two sisters, share and share alike. The fourteenth clause provided that as soon as practicable all corporate stocks, bonds and real estate should be converted into cash so that distribution might be made in cash.

Virginia Kellenberg and Jennie Vandervoort, the two sisters named in the provision of the will above referred to, petitioned the court for a decree of partial distribution, distributing to them the furniture owned by the decedent at the time of her death, which included that contained in the apartment house as above narrated. The court decreed its distribution to petitioners, together with the sum of $100 per month from the date of the death of decedent as and for reimbursement to petitioners for rental of said furniture received by the executors during the period from the death of decedent up to the date of the decree of distribution. From this decree of partial distribution, this appeal is prosecuted by appellants as executors and as trustees under the last will of deceased. It is their contention: (1) that decedent did not intend to bequeath the furniture in the apartment house to her sisters, but that her intention was to leave only her personal furniture to them; (2) that it was error for the court to decree partial distribution, for the reason it is impossible to rent the apartment house without the furniture, and thereby damage will result to the estate and to those interested therein; and (3) that even if the sisters are entitled to the apartment house furniture, the rental value thereof as fixed by the court is excessive.