24 A.D.2d 572 (1965)

In the Matter of The Estate of Everett A. Miller, Deceased. Franklin T. Miller, Respondent; William C. Graf, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 6, 1965

Order affirmed, with $10 costs and disbursements.

In our opinion, assuming that the appellant, William C. Graf, was merely to be treated as a legatee under the will, his specific legacy of the automobile, or the equivalent proceeds of sale thereof, was properly subjected to the payment of decedent's debts, funeral expenses and administration expenses. Where the testator's general personal estate is insufficient to defray these preferred obligations, specific legacies may be called upon by the executor for abatement to the extent necessary to pay such obligations (Taylor v. Dodd, 58 N.Y. 335, 349; Matter of Smallman, 138 Misc. 889, 892). If appellant were to be considered solely as a pledgee, then upon decedent's death, absent an enabling provision in the written agreement, appellant had no authority to sell the automobile in his possession, without prior demand for repayment, or to act in violation of the rule that, upon default in payment of the obligation, title to the article pledged remained in the pledgor, subject to existing equities (First Trust & Deposit Co. v. Potter, 155 Misc. 106, 111).


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