Volume 1 — Bradford's Surrogate Reports

<p>Though the jurisdiction of the Surrogate when once obtained is exclusive of all other Surrogates, this is no bar to the institution of a suit at law upon a final decree.</p> <p>A Surrogate’s decree for a money payment would form the basis of an action at law, and not being the decree of a Court of Record, unless suit be brought thereon in six years, the statute of limitations may be set up as a bar.</p> <p>The principle of the statute of limitations is applicable by analogy, to demands prosecuted in the Surrogate’s Court, without any express provision.</p> <p>Creditors, legatees, and distributees, have a concurrent remedy at law, In Equity, or in the Surrogate’s Court, for the recovery of their debts, legacies, or distributive shares, and the time for the commencement of a suit for such demands in a Court of Law, should apply to all proceedings brought for the same cause of action in the Surrogate’s Court.</p> <p>Though an executor is a trustee, yet his trust is' not exclusively within the jurisdiction of a Court of Equity; it is also cognizable at law, and thus secures to Mm the benefit of the application of the statute of limitations in certain cases.</p> <p>Where by a decree on the final accounting of an executor and executrix, the executor was directed to pay a debt due the Corporation of the city of New-York; and subsequently the Corporation, on the application of the executrix, representing herself as “ a principal legatee, and one of the executors in the will of the said J. D. named,” assigned her the decree without consideration: Held that the assignment enured to the benefit of the estate, and the decree was thereby discharged; that the fund left in the executor’s hands to pay the decree, belonged to the estate, and the executrix could not deal with the creditor for her own benefit, so as to enforce the payment of the decree against her co-executor.</p>

Ralph, being within this territory, was claimed by Montgomery, a resident of the State of Missouri, as his slave, and, by virtue of a precept from a Justice of the Peace, under the Act of the… Held: that, although he was still subject to servitude on his return to the Indies, yet “no coercion could be exercised over him while in England.” — (2d Hagg. Adm.

<p>Upon the agreement to leave premises on receiving ten days notice, ten full days must elapse, exclusive of that on which notice is given, before action can be instituted to expel the tenant from the premises.</p>

This was an action of debt brought by assinee of plaintiff in error, against defendants in error, on a bond. Plea, Non est factum.

<p>The heirs and devisees of a deceased debtor are liable for all his debts to the extent of the lands descended of devised, provided the personal estate be insufficient or has been previously exhausted.</p> <p>The land itself may also be reached, and through the intervention of the executor or administrator, be mortgaged, leased, or sold by the order of the Surrogate, for the payment of the debts, in case the personal estate be not sufficient to discharge them.</p> <p>Voluntary proceedings for this purpose by executors and administrators, are limited to the period of three years after the granting of letters testamentary, or of administration.</p> <p>The creditor may at any time institute compulsory proceedings for the same purpose, and require the executor or administrator to show cause why he should not be ordered to sell the real estate, and the statute expressly prohibits him from assigning as cause, ‘‘that the time within which he is allowed to sell the same has expired.”</p> <p>But though the lapse of three years after the granting of letters is not a flat bar to a compulsory proceeding, yet it is discretionary with the Surrogate after a long delay in making the application, whether to order the sale or not. The proceeding must be instituted within a reasonable period, and a neglect to apply, for many years, without explanation, is good reason for rejecting the application.</p> <p>The heirs or devisees may make the same defence to the claims sought to be established before the Surrogate, as they could before another tribunal.</p> <p>At common law, and in Equity, a judgment against the executor or administrator never was any evidence against the heir. There is no privity between the personal representatives and the heirs.</p> <p>By the Revised Statutes it seems that a judgment recovered against the executor or administrator after a trial on the merits', was made prima facie evidence of a valid and subsisting debt as against the heir.</p> <p>By the 72d section of the Act of 1837, “ concerning the proof of wills,’’ &o., it was provided that where a judgment has been recovered against an executor or administrator for a debt due by the deceased, and the personal estate is insufficient for its payment, the debt for which the judgment was obtained shall, notwithstanding the form of the judgment, remain a debt against the estate of the deceased, to the same extent as before, and to be established in the same manner as if no such judgment had been recovered,</p> <p>A judgment recovered against an executor in 1841, while the law was in this condition, cannot be received in evidence against the heir.</p> <p>The 73d Section of the Act “ concerning the proof of wills,” was amended in 1843, to the effect that where a judgment or deoree has been obtained against the executor or administrator 11 after a trial or hearing ,upon the merits,’’ it shall be “ prima facie1'' evidence of the debt on an application to mortgage, lease, or sell the real estate. But this amendment is not to be applied retrospectively to a judgment or decree recovered before the passage of the amended act in 1843.</p> <p>Even under the 72d Section as now amended, the judgment is only prima facie evidence of the debt, and does not change its nature or character, nor convert it from a simple contract debt into a speciality, nor make the lands descended to the heir liable for the costs.</p> <p>The heir may set up the statute of limitations against a debt sought to be established against the lands, and if the debt upon which the judgment against the executor or administrator was obtained, is barred by the statute, the recovery of the judgment does not prevent the statute from running, nor attach to the debt the limitation of twenty years, in which time a judgment is presumed to be paid, instead of the limitation of six years applicable to a simple contract debt,</p>

<p>It is proper for the District Court to direct such a change in the language of the jury as to make their verdict correspond to the usual forms, wherever such change cannot alter the evident meaning of their verdict.</p> <p>This may be done without consent of the jury, and is therefore proper after their separation.</p>

<p>This Court has no power to examine into errors in fact in the court below not appearing on record.</p> <p>An erroneous decision of the Court below on an application for a new trial may be brought here for review and correction.</p>

<p>Omission of an arraignment will be a sufficient ground for reversing a judgment.</p>

This was an Action of Replevin, brought by the Defendant in Error vs. the Plaintiff in Error, and Verdict was for the Plaintiff in Replevin, — upon which the Defendant in Replevin moved for a new trial, on the ground that verdict was contrary to evidence. cited Cornwall us. Gould, 4 Pick. R. 446 —White vs. Snell, 9 Pick. R. 16 — Grant on New Trials, 85 — Usher vs. Dansey, 4 M. & S. 94 — Rex vs. Hayes, 2 Sir. 842 — Clarke vs. Lamb, 8 Pick. R. 512— 8 Pick. R. 415.

In this case the verdict was for the Defendant in errror in the court below, and judgment thereon was never rendered, having been arrested, on the motion of plaintiff in error. In this stage of the proceedings the plaintiff Wallis, brings his writ of error to the Supreme Court. And now the defendant moves to dismiss the case from the docket, on the ground that a writ of error does not lie till after final judgment.

This was an action of debt brought by the defendants in error to recover the amount of certain notes of hand given by the plaintiff in error. The plea was that the contract which formed the consideration for the notes was illegal, being given in furtherance of a sale of public lands belonging to the U. States, The Court below charged the jury that if the plaintiff had improved the premises being public lands, such sale was legal.

<p>The provision of the stat. rendering it necessary to furnish the defendant with a copy of the summons was doubtless intended for his own benefit, and may be waived by him.</p> <p>The District Courts have a discretionary power to modify or reverse any order for arrest of judgment or of like nature during the term at which it was made.</p>

<p>The Surrogate of his own motion, can enforce the return of an inventory, after three months from the time of issuing letters testamentary, or of administration, and the rendering of an account after the expiration of eighteen months from the same date. It is not usual, however, to require the exhibition of an inventory or account, unless at the intervention of a party in interest."</p> <p>The mere appearance of an interest is ordinarily sufficient to justify the order, and if the allegations are properly verified, although the executor or administrator contests the claim, the Surrogate will require the inventory or account, without entertaining the issue.</p> <p>If the claimant in his petition also prays for payment of his demand, so that the Court has jurisdiction to try its validity; and an answer is interposed denying the claim, it is competent and proper to require it to be supported by proof before giving any portion of the relief sought.</p> <p>"When the petition for an inventory or account also seeks for payment, if the statute of limitations be pleadable to the demand itself, it is a good answer to the prayer for an inventory or account. ‘</p> <p>"Where there has been a great lapse of time between the death of the testator or intestate, and the citation calling for the inventory, this of itself is sufficient to justify a refusal by the Court to enforce its exhibition.</p> <p>An application for an inventory or account thirty years after the issuing of letters,—denied on the presumption that the estate has been properly administered.</p> <p>In the Ecclesiastical Courts an inventory cannot be falsified ; and although allegations pleading omissa'are entertained, yet if the allegations are denied in the answer, evidence will not be received against the answer. If the answer confesses more assets, the inventory may be amended.</p> <p>Under the provisions of the Revised Statutes, no mode is provided for impeaching an inventory.</p> <p>The administrator of a surviving partner stands in the same position as the surviving partner in his lifetime, and although he has the legal title to -the partnership effects, yet they are assets of the firm and not of his intestate, and should neither be inventoried nor accounted for as property of his intestate.</p> <p>It is only the interest of a deceased partner in the surplus after the payment. of the partnership debts, which is assets in the hands of his administrator. It is not usual, therefore, to make a specific inventory of copartnership assets, but it is deemed sufficient to note the interest of the deceased in the partnership, generally, upon the inventory.</p>

<p>In all cases of contest before a Surrogate’s Court, costs may be awarded to the parly, in the judgment of the Court, entitled thereto.</p> <p>When awarded, costs are taxed at the same rates as were allowed for similar services in the Courts of Common Pleas, in the year 1837.</p> <p>There are no stated terms in the Surrogate’s Court. In a case of contest, attorneys’ or proctors’ fees can be taxed only as fpp a single trial, except for services in relation to motions or interlocutory proceedings. A charge for copies of the depositions or minutes of the evidence taken by the attorney • or proctor, in the course of the trial, is not taxable.</p>

<p>A direction to executors to invest $4,000, and apply the interest to the support of M. and R., till they respectively attain the age of 21, and then to pay the principal to them or their assigns in equal moieties, creates a vested legacy in each of the donees, in a moiety of the sum, payable on attaining majority. If either of the legatees die before the time of payment, the bequest passes to his personal representatives.</p> <p>When the particular fund is directed to be severed from the estate, the interest applied to the use of the legatee, and the principal paid at a future time, the legacy is considered as vested, and the time of payment only postponed.</p> <p>A gift over of a legacy on a contingency, does not prevent the vesting, but can only operate to divest it, upon the happening of the' precise contingency specified by the testator. Such limitations are conditions subsequent, and are strictly construed.</p> <p>A legacy of $4,000 to two persons in equal moieties, and “ in case they shall die without leaving lawful issue before they attain the age of 21 years,” that “ the said money” shall fall into and become a part of the residuary estate of the testator, does not, on the decease of one of the legatees before majority without issue, carry the share of the one so dying to the survivor, nor to the residuary legatees, because the exact event upon the occurrence of which the previous gift was to be divested, namely, the death of loth before 21, has not happened.</p> <p>A covenant to pay to W., “ his executors, administrators or assigns,” one half the value of a party wall, about to be built by W., at the time of its use by the covenantor, and an express agreement that the covenant shall bind the lands and the owners thereof, for the time being, enures to the benefit of the grantee of the land of the covenantee, and the executors of the covenantee have no interest therein.</p>

<p>The right of a husband to administer upon the estate of his deceased wife, is a positive right, not dependent upon his interest in the estate. Whether it was an original Common Law right—Quare.</p> <p>His right to administer did not originate from his right to the estate, but on the other hand, he became entitled to the estate because he had a right to administer ; the statute of distributions never having deprived him of the interest in the residue of the estate, which before the passage of that act was enjoyed by all administrators, after paying the debts and deducting the partes rationabiles.</p> <p>The R. S., have also expressly declared that the assets of the deceased wife, after the payment of debts, shall pass to the husband, or Ms personal representatives, even where some other person admmisters.</p> <p>The acts of 1848 and 1849, for the more effectual protection of the property of married women, made no alteration in the statute of distributions. They only authorized a married woman to tajee, hold, convey or devise her property, but made no change as to its disposition in case she died intestate.</p> <p>The next of Mn of a married woman dying intestate, have neither acquired a right to administer under the Acts of 1848 and 1849, nor any interest in the surplus of her estate after the payment of debts.</p>

<p>Upon an application for letters of administration, if a will be alleged, the proceeding may be stayed, to afford an opportunity to prove the will.</p> <p>The situs of the property regulates jurisdiction as to administration ; a foreign will disposing of personalty here, must be proved here; but in taking proof, the law of the country where the deceased was domiciled at the time of his death, governs the decision as to what constitutes the last will and testament in regard to personal estate.</p> <p>Whether the deceased died intestate must be determined by the law of the place where he was domiciled ; and the same law governs the validity of the will, even though it has not been executed in conformity to the law of the place where it was made.</p> <p>It is therefore customary, upon the production of an exemplified copy of the probate granted by the proper Court in the country where the decedent was domiciled, for the Probate Court in other countries to follow the original grant, in decreeing its own Probate.</p> <p>Under the colonial government of New'-York, precedents of this kind are found of a very remote date; the practice was subsequently recognized by statute, and has been continued to the present time.</p> <p>The Surrogate has jurisdiction of the Probate of a foreign will, executed in conformity to the lex loci domicilii, though not valid by the lex loci actus.</p> <p>In the provisions of the statutes relating to testamentary matters, the terms ‘‘ resident ” and “ inhabitant ” have the same purport, and are to be construed in reference to the domicil of the decedent.</p> <p>A domicil once acquired continues till another has been gained animo et facto.</p> <p>T. G. domiciled in New Jersey, having a dwelling and establishment there, came to the city of New-York for the benefit of his health, hired a house, and died here after two years. Held, under the circumstances, that his abode in New-York was of a temporary character, and that at the time of his death he still retained his domicil in the State of New Jersey, and that an exemplification of the Probate of his will from the proper Court in that State, should be received and recognized as valid, and be made the basis of a grant of Probate in New-York. .</p>

<p>When, after the admission of a will of personal property to probate, allegations against the validity of the will and the competency of its proof, have been filed by any of the next of kin, within one year after such probate, it is not sufficient for the executors or legatees, in the first instance, in answer to the citation to “ show cause why the probate of the will should not be revoked,” to present the probate of the will as prima facie evidence of its validity.</p> <p>Though the probate is, generally, conclusive as to the validity of the will, it is of no force in a proceeding instituted directly to impeach the probate itself.</p> <p>If the allegations are sufficiently broad to question the validity of the will, and the competency of the proof, the executors or parties interested against the allegations, must prove the will de novo, by original proof; and none of the depositions taken on the first proof, can be received in evidence, except in the precise cases pointed out by the statute.</p>

<p>Br the Revised Statutes, no relatives of the deceased are entitled to administration, as of right, except those who succeed to the personal estate. Among those entitled to share in the distribution, the statute establishes a certain order of preference.</p> <p>After relatives who have an interest in the estate, in the county of New-Yorlc, the Public Administrator is next entitled to administration, in preference to creditors and strangers.</p> <p>A relative who has no interest, or no title to a distributive share, is considered as a stranger.</p> <p>The relatives who have an interest, as such, are those living at the period of the intestate’s death, and having at that time a title to a distributive share; and if a relative so entitled happen to die, the right to administer dies with him. His legal representatives will receive his distributive share, not as next of kin of the first intestate, but by right of administration on the estate of the second intestate.</p> <p>Where letters of administration have been irregularly issued to one having no interest in the estate, without citing the Public Administrator, they will be revoked.</p>

<p>Where A., domiciled in Massachusetts, died in that State, his will was proved there, and letters testamentary issued to C. A. and T. S.; and G. A., another executor, residing in India, proved the will, qualified as executor, and collected a debt due the testator in that country; and then transmitted bills of exchange for 3-7ths of the East Indian debt, the share of C. A. under the will, to T. S., at Hew-York, to be endorsed 11 without recourse” to C. A., the legatee, as 11 being her 3-7ths of the proceeds of the estate of her late husband in Bombay—held, that neither the bills nor their proceeds were assets of the testator in New-York, nor formed the subject of administration here:</p> <p>Also, that T. S. did not receive the bills, nor was entitled to collect them, as part of the estate of his testator, in his capacity of executor, but as agent of the East Indian executor, in the transmission, to a legatee, of a legatory share in a foreign debt collected, administered, and distributed by a foreign executor.</p>

<p>The Testatrix directed her executors to invest $2000 for the benefit of M. for life; and on the death of M., to “pay or transfer” the fund “unto all and every, the child or children of M., lawfully born or to be born, to be divided between or among them, share and share alike;” the shares 01 the daughters “ to become vested ” on their respectively attaining the age of 21, or on marriage ; and the shares of the sons “to become vested ” at 21; and “ to be paid or transferred at such age or ages, time or times as aforesaid, to such of the said daughters or sons of M., as shall arrive at or attain the same, after the decease of M. ; but as to such of them as shall arrive at, or attain such age or ages, time or times as aforesaid, in the lifetime of M., the payment or transfer of his, her, or their share or shares, to be postponed till after the decease of M.” Held that I., a son of M., who survived the testatrix, attained majority, and married, but died before the death of M., took a vested interest in the legacy, transmissible to his personal representatives ; and that his share did not survive to his brothers and sisters.</p>

<p>Where two instruments of a testamentary character are propounded by different parties, the several applications for probate will be consolidated and tried together.</p> <p>1 The power to devise real and personal property, given to married women by the li Act of April 11,1849, is general, and not limited to property acquired subsequently to the passage of that act.</p> <p>If a will be properly proved, it is the duty of the Surrogate to admit it to probate, without inquiring as to its effect or construction, except so far as may be necessary to determine which is the last will, when there are several instruments inconsistent with each other.</p> <p>There can be but one last will, and yet several papers may, when taken together, constitute the last will.</p> <p>Wills made under a power, must be executed with the same formalities and be proved in the same manner as proper wills. They must be proved in the Ecclesiastical or Probate Court; but that Court has nothing to do with the question, whether the power is well executed, or whether it authorizes the will, or in fact exists at all.</p> <p>It is not necessary for the Probate Court to have before it the instrument containing the alleged power ; but if the testamentary paper be properly proved, the probate is limited, the decree declaring the instrument to be duly proved as a valid will, so far as it may be authorized by a valid power for that purpose,—thus leaving the question of its being a due execution of a power, for the determination of a Court of Construction.</p> <p>A will in execution of a power, is ambulatory and revocable, in the same manner as a proper will.</p> <p>The Revised Statutes declare, that a married woman may execute a power by devise, after attaining full age. Where M. M., a married woman, under a power to devise, executed a will in 1844, when she was a minor,—held that the will was invalid, as to real estate.</p> <p>By our statute, an unmarried female is competent to make a will of personalty at the age of 16 ; and a married woman over that age, but under 21, may, under a power, execute a valid will of personal estate.</p> <p>A revocatory clause in a will, of all former wills, is not always imperative, but • its effect depends upon the intention to be gathered from all the instruments.</p> <p>Wills devising and bequeathing all the real and personal estate of the testator, operate upon lands and personalty embraced in a testamentary power, although the power be not recited or referred to.</p> <p>And where M. M. made a will under a power, in 1844, and after the passage of the Act, authorizing married women to devise, in 1849, executed a will, whereby, without formally reciting the power, she revoked all former wills, and devised and bequeathed all her real and personal estate to her husband; —held, from the clause of revocation, the inconsistency of the testamentary dispositions in the last, with those in the first instrument, and from other circumstances indicating an intention to revoke, that the will of 1844, so far as it was a valid will, was revoked.</p>

<p>The grant of administration follows the law of the place where the estate is to be administered; the distribution of the property is governed by the law of the domicil of the deceased.</p> <p>Our statute gives the right to administer to the next of kin entitled to share in the distribution of the estate ; and where the intestate was domiciled in a foreign country, the law of the domicil determining who succeeds to the estate, also determines who has that interest which by our law is a necessary qualification to administer.</p> <p>E. II., an illegitimate, domiciled in England, died intestate and unmarried, leaving assets in New-York,—held that by the law of England, there was an absolute obstruction of the course of succession, she having no lineal descendants, and no lawful ancestors or collateral relatives.</p> <p>The goods of an intestate who leaves no relatives, do not pass to the State by any derivative title from the last owner, but by virtue of the sovereign prerogative to the custody of bona vacantia, within the territory.</p> <p>Whether as to assets in this State of a foreign intestate dying without relatives, The sovereignty of the country where he was domiciled, will be regarded as forming the basis of any title to the assets.—Quaere.</p> <p>The lex domicilii being recognized as establishing the rule of distribution, the relatives of the intestate, an illegitimate, on the part of the mother, not entitled to distributive shares by the law of the domicil, have no valid claim by the law of the place where the assets are situated.</p>

<p>If a portion of a decree be appealed from and reversed, the remainder stands, except so far as it may be necessarily affected by the reversal of the part. In such a case, updn final accounting, the whole accounting is not opened, but the accounts as settled by the Surrogate, will be altered only fro tanto, to the extent necessary to carry out the decree of the Surrogate, as modified by the decree above.</p>

<p>The Testatrix gave $6000 to her executors in trust, to apply the interest of $4000 to the support of her sons, B. and J.; and at their discretion to apply the interest of the remaining $2000 in like manner ; and on the death of either of her said sons, to pay the interest appropriated for his support to her daughter R.; and on the death of the survivor of the sons, to pay the whole of the said interest to R. for life ; and on her decease, to pay the principal sum of $6000 to R.’s children or their issue.—Held, that each of the sons was entitled to the interest of one half of $4000, which share of the income on his decease passed to his sister R.; and on her death, the principal of that share became payable to her children or them issue; so that the absolute ownership of no part of the $4000 was suspended for a longer period than two lives in being.</p> <p>Held, also, that as to the remaining $2000, part of the $6000, the appropriation of the interest of which to the support of the two sons was discretionary with the executors, and the income of which was not to be paid to R. until after the death of B. and J.,—there was an invalid suspension of the absolute ownership for three lives, and that portion of the fund went to the residuary legatee.</p>

<p>In selecting a Guardian for an infant, the wishes of the nearest relatives, or the declared wishes of the deceased parents will be considered ; but there is no arbitrary rule controlling the selection, the matter being within the discretion of the Surrogate, to be exercised with a view to the social relations and the welfare of the minor.</p> <p>The relatives have no interest as parties, but they are summoned to give the necessary information to enable the Court to judge who is the most proper person to be the guardian.</p>

<p>Any person interested in the estate of a Testator, may apply to the Surrogate for an order, requiring the executor to show cause why he should not be superseded, on the ground that his circumstances are so precarious, as not to afford adequate security for'the due administration of the estate.</p> <p>An apparent interest, positively sworn to, will be sufficient to justify the order; and the validity of the claim will not be tried on such an application.</p> <p>A mere allegation of irresponsibility, is not enough to compel an executor to give security; but if the allegation be denied, the charges must be proved.</p> <p>In determining the question, whether or not the executor is in such precarious circumstances as to make it proper to- require security, the proportion of the estate belonging to the executor by the provisions of the will, may be taken into consideration, in estimating the executor’s pecuniary means,— regard also being had to the extent of the claims existing against the estate.</p>

I. The bequest to testator’s daughter Ann Catharine, late Mrs. Yan Wyck, of the equal fifth part of the testator’s personal estate (remaining after satisfying the provisions of the will), was vested in her, notwithstanding she did not survive until the death of the testator’s wife ; time being annexed in this case, not to the substance of the gift, but merely to its payment. 1st. The testator, before reaching the clause on which the question arises, had made, to each of the…

<p>Upon an application by an administrator, after the filing of an inventory, for the sale of the real estate of an intestate for the payment of his debts, the Surrogate gains jurisdiction by the presentation of the petition, as against all parties regularly brought into Court.</p> <p>When jurisdiction has been obtained of the subject matter, and of the parties in interest, and the Surrogate has made an order for the sale of the property, it will be presumed that he had sufficient evidence of the facts necessary to be ascertained, before making such judicial determination.</p> <p>After jurisdiction is obtained, errors or irregularities in its exercise cannot be impeached collaterally, but only on appeal.</p> <p>Where an order has been,made for the sale of the real estate, and the Surrogate has neglected to enter in his book, the demands which upon the hearing he has adjudged tobe valid and subsisting against the estate, the error can be corrected afterwards by directing such an entry, nunc pro tunc.</p> <p>After hearing the parties and passing upon the debts claimed, the Surrogate, if satisfied that all the provisions of the statute have been complied with, may, from time to time, order a sale of so much of the real estate as shall be necessary to pay the debts ; and if the first sale ordered, has fallen through, or has produced an insufficient amount, he may make other orders from time to time, till all the debts are paid, and all the real estate necessary for that purpose is exhausted.</p> <p>If the administrator make a voluntary application for the sale of the real estate, all the parties be brought in, a hearing had, the debts proved, and an order of sale made, the administrator cannot at his option discontinue the proceeding, but the creditors may insist upon its further prosecution, and apply as may be necessary for reviving or speeding the proceedings.</p> <p>In determining, upon proceedings to sell the real estate, whether the debts claimed are barred by the Statute of Limitations :—Held that the statute ceases running on the institution of the proceeding or the return of the order to show cause.</p> <p>Whether, as to applications for the sale of real estate, the period of eighteen months after the issuing of letters forms any part of the time limited for the commencement of actions.—Queere.</p>

<p>A bond for the payment of money, past due eighteen years and four months when the obligor died, no payment or demand of payment of principal or interest ever having been made upon it, will not from the mere lapse of time be presumed to have been paid; but presumption of payment may be deduced from other circumstances, in connection with lapse of time.</p> <p>A failure to demand payment until after the decease of the obligor, the assignment of the bond immediately after his death to a third person, and the absence of a verification by the claimant, of the validity of the debt, and that no payments have been made, are, together with the expiration of more than eighteen years since the bond became due, without any payment or demand of payment, circumstances from which payment might be presumed.</p> <p>It is discretionary with the Surrogate, whether or not on the petition of an alleged creditor, he will order the payment of a demand against the estate contested by the administrator or executor.</p> <p>If the executor or administrator has rejected a claim, it is not incumbent upon the creditor to prosecute his demand within six months thereafter, unless there has been an advertisement for claims under the statute. Such an advertisement is necessary to set running this statute of short limitation of six months, after the presentation and rejection of a demand.</p>

<p>Commissions are not chargeable upon legacies, unless indirectly by way of abatement, when the general estate is insufficient to pay them.</p> <p>Legacies are payable out of the surplus remaining after the payment of debts, expenses of administration, and the commissions of the executor or administrator.</p> <p>If a legacy be given to an executor in trust, double commissions will not he allowed ; hut if the trust require the executor to receive and disburse the income of the legacy, he will be entitled to commissions upon the amount of such income, and also to his expenses in managing such trust fund as against the legatee or cestui que trust.</p>

<p>Where an order for a grant of administration to the Public Administrator had been made, but in consequence of an appeal and stay of proceedings, the letters bad not been issued ; and during the pendency of the appeal, the Legislature passed an act vesting all the right of the People of this State, to the assets of a foreign intestate, illegitimate, in the children of the deceased mother of the illegitimate, and directing administration to be granted to the said children, some or one of them:—Held, that the Surrogate having power by law to revoke his previous order, and no letters of administration having been issued, the provisions of this special act were notin conflict with his previous judicial determination.</p> <p>The authority of the Public Administrator is superseded, whenever letters of administration are granted upon the estate, by any Surrogate having jurisdiction, at any time within six months after the Public Administrator became vested with the power of an administrator upon such estate. And if any relative of the intestate, entitled to administration, who was not residing in the city of Hew-York, at the death of the intestate, or was not served with proper notice, shall, within three months after the grant of administration to the Public Administrator, apply for administration, the same shall be granted to him.</p> <p>Where several persons are equally entitled to administration, letters will be granted ex parte to any one of them without citing the others. A citation is necessary only, where there is some person who has a preference to the applicant.</p> <p>A person not entitled to administration cannot be joined as administrator with one who is entitled, on the suggestion of the Surrogate, and without or against the consent of the party entitled.</p>

<p>The Testator directed by his will as follows: “ And for the better bringing up and taking care of my said children, who are minors, at the time of my decease, I give and dispose of the care and custody of them to my said wife, as long as she shall remain my widow, for such time as they shall continue minors, or under the age of twenty-one years, she to be guided by the advice of my said executors as to the education of my said children; my said wife and my said executors to manage, educate, and bring up my said children in the manner they may deem most conducive to their welfare.”— Held that the wife was constituted the sole testamentary guardian, and she having married again, and thereby avoided or terminated her guardianship ; that it was competent for the Surrogate to appoint a guardian under the provisions of the statute.</p> <p>A clearly manifested intention in one part of a will ought not to yield to a provision of doubtful meaning; and technical terms are presumed to have been employed by the testator in their legal sense, unless the context plainly controls them.</p> <p>A female infant of tender years should, if possible, be left under maternal care and influence, and in the appointment of a guardian, this circumstance will have an important influence in the selection.</p>

<p>A bequest to A. L., upon several “ conditions and regulations,” one of which, is to pay to J. H. W., $1500 “ within two years” from the testator’s decease, does hot lapse by the death of J. H. W., before the expiration of the two years.</p> <p>Time, in this case, is not of the substance of the gift, but relates only to the payment, which is postponed for the convenience of the first legatee.</p> <p>The condition in favor of J. H. W., is legatory, and constitutes him a legatee. The benefit on his death survives and passes to his representatives.</p> <p>The legacy to A. L. is conditional, and unless he perform the conditions, he cannot take the gift. If he accept the bequest he must perform the conditions.</p> <p>By the civil law, the death of J. H. W., before the expiration of the time limited for payment, prevented the strict performance of the condition, and consequently the vesting of the legacy in A. L.; but in equity, payment to the personal representatives of J. H. W., will be received as performance.</p>

<p>The provision of the Revised Statutes, that a physician shall not be “ allowed to disclose any information which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient,” is not applicable to the physician of a deceased person, in a testamentary cause concerning the probate of the will of such decedent.</p> <p>The statute does not establish a general and absolute prohibition of such testimony in all cases ; but secures a personal privilege to the party, not to the witness, which may he waived.</p> <p>If such a privilege does not die with the party, still, before administration, in a testamentary proceeding, there is no one competent to assert the privilege in exclusion of testimony necessary to the determination of what constitutes the last will and testament of the deceased.</p>

<p>When an executor or administrator, in compliance with a citation to account issued at the instance of a creditor, a legatee, or distributee, has rendered his account, and submitted to an examination, that terminates the proceeding ; unless the executor or administrator asks for a final settlement; or the party who has applied for the account has also prayed for the payment of his demand. In either of the latter cases the Surrogate may proceed to settle the account.</p> <p>On a final or voluntary accounting, the Surrogate is imperatively required to make a decree, settling all questions concerning any debt, claim, legacy, bequest, or distributive share, unless a suit be pending thereon, or the claim be not due. On a compulsory accounting at the instance of a creditor, legatee, or distributee, if the claimant ask for payment of his demand, the Surrogate may not only proceed to settle the account as between the parties, but also to order payment of the claim.</p> <p>The Surrogate has power to decree the payment of debts, legacies, and distributive shares; and where the executor or administrator appears and contests the claim, the Surrogate lias jurisdiction, and may proceed to hear the case, and it is a matter of discretion whether to order payment, op leave the party to his action at law.</p>

<p>It is a general rule that the heir cannot be prejudiced by the act or admission of the executor or administrator. But a covenant in a lease to pay the value of improvements, as appraised at the end of the term by appraisers to be appointed by the parties, ‘‘ their heirs, executors, administrators or assigns,” authorizes the administrators to appoint the appraisers, in default of a nomination by the heirs, and'the appraisement made by the persons so appointed, will bind the heirs in respect to the land descended.</p> <p>Upon an application to sell the real estate of an intestate for the payment of his debts, equitable as well as legal demands may be proved and established against the estate.</p> <p>An equitable claim being an equitable lien on a certain portion of the real estate, is not an express charge upon the property, and not being secured by mortgage or judgment, may be directed to be paid out of the proceeds of the real estate, when sold under the order of the Surrogate for the payment of the debts of the deceased.</p> <p>The heirs may set up the statute of limitations in bar to such claims as are presented to the Surrogate, upon proceedings to sell the real estate.</p> <p>If a portion only of the heirs object to certain demands, and the objection is sustained, the entire claim mpst be rejected, gnd the Surrogate cannot rejeet only such part of the demand as wbuld be the prbportion falling bn the share of the heirs objecting.</p>

<p>Generally, the authority as to administration, depends upon the domieil and place of death, or the situs of the assets at the time of death, or assets coming into the jurisdiction after death.</p> <p>The jurisdiction of the Surrogate in relation to the estates of deceased persons, is the same as was possessed by the Colonial Governors of the province of New-York, and subsequently by the Court of Probate, except as restrained or regulated by statute. He must exercise his powers in the manner prescribed by statute, but in an omitted case should not decline jurisdiction, because the mode in which it is to be exercised is not prescribed.</p> <p>The ddse of a person not an inhabitant of this State, dying in the county of the Surrogate, and leaving no assets there, but leaving assets in another county ; and that of a person not an inhabitant, dying in the county,- leaving no assets, but assets thereafter coming into the County, are not p'fbvided for, in terms, by the Revised Statutes.</p> <p>An article alleged to have been the property of the ihtestate, temporarily-brought into the county after his death on a bailment, but returned before the application for administration, does not form the subject of administration.</p> <p>Debts due the intestate constitute assets at th'e' place where the debtor resides.</p> <p>A Foreign executor oivadministrator is not liable to account in the Courts of this State, unless he has brought assets of the decedent within this jurisdiction.-</p> <p>Rents of real estate belonging to the decedent, accruing and cólléCted subsequent to his death, are not a part of the personalty, and do not form the basis of administration.</p>

<p>An administrator will be allowed for the expenses of communicating intelligence of the death of the deceased to his family; for necessary charges attending his interment; and for his own travelling expenses; he will not he allowed for a copy of the inventory.</p> <p>A. and B., administrators of C., employ counsel for the benefit of the estate; A. dies and B. administers on his estate.—Held, that the payment by B. of the demand for professional services against the estate of C., cannot be allowed to B. as administrator of A. by way of contribution, unless the estate of C. be insolvent.</p> <p>An administrator having the funds of the estate in cash for six years, not showing that the money was kept in bank or otherwise ready to be paid over, and not explaining the delay in closing the estate, held chargeable with interest, on the presumption of use of the funds.</p>

<p>A will executed previously to the Revised Statutes, although attested by only two witnesses, if the testator died after the statute went into effect, is sufficiently attested as a will of real estate.</p> <p>In determining the construction of a will, the testator is presumed to have used words in their ordinary or primary sense, unless from, the context it appears he intended to give them some other or secondary meaning.</p> <p>The word children includes only immediate legitimate descendants, and not a step-child.</p> <p>A devise or bequest to a designated individual, with a gift over in case of death, does not necessarily lapse, if the devisee or legatee die before the testator, but the ulterior gift takes effect on the testator’s decease.</p> <p>Where the testator had had eleven children, but at the time of the execution of his will, one of them had died leaving issue, and the will directed the residue to be equally divided among the testator’s “ eleven children,” and in case of the death of any of them, their portion to be divided among their children, if they should leave any.—Held that the ehildieri of the deceased daughter wef'e entitled to one eleventh of the residue.</p>

<p>The Commissioners of Emigration are authorized by law, in all cases in which the minor children of alien passengers shall beconle orphans, by their parents'or last surviving parent dying on their passage to the port of New-York, or in the Marine Htispital, on Staten Island, or in any establishment under the charge of the Commissioners, to take in charge and appropriate</p> <p>■ for the benefit of said minors, the personal property their parents may have had with them ; subject, however, to the rights of other persons as creditors, next of kin, or legatees of the deceased parents.</p> <p>If there are other persons entitled to a share bf such personalty, the portion belonging to the minor children must be applied to their tise, by the Commissioners, who in respect thereto act as qftasi guardians, and the remainder is to be disposed of according to law.</p> <p>In regard to the interests and shares of other parties, the Commissioners are not constituted administrators; but such remainder, after tdking out the shares of the minors, forms the subject of administration by the Public Administrator, next of kin or creditors, dud is to be delivered to such administrator by the Commissioners.</p>

<p>If the accounts of an executor or administrator be objected to, he must make due proof of every payment.</p> <p>He may be allowed any item of expenditure, not exceeding twenty dollars, for which no voucher is produced, provided the payment, the time when, and the person to whom made, be supported by his oath. But such oath may be contradicted ; and items sustained in this way, should not be allowed in the aggregate exceeding five hundred dollars.</p> <p>The disbursement of sums over twenty dollars must be verified by vouchers, or by other satisfactory evidence in lieu thereof.</p> <p>If vouchers are produced, they are of themselves prima facie evidence of disbursements without any other proof, and should be admitted, unless impeached ; if lost, the accounting party should make oath to that fact, and state the contents and purport of the voucher.</p> <p>When a claim is presented to the executor or administrator, he may require satisfactory vouchers, and the affidavit of the claimant in support thereof; but the want of such a verification is not sufficient ground for the rejection of a voucher on accounting before the Surrogate.</p> <p>Objections to the accounts must be stated in the form of distinct and specific allegations, surcharging for omissions where the estate ought to have been credited, or falsifying for improper debits against the estate.</p>

<p>The testator bequeathed leasehold estate unto his sons B. and W., “ and their heirs,” “ the income arising therefrom to be divided between them equally, share and share alike, and in ease either should die leaving no issue, the one surviving to have the share of the one so dying.”—Held that the contingent limitation of survivorship was valid, and that the legatees took a vested interest as tenants in common in the premises, subject on the decease of either without issue, to a limitation over to the survivor.</p> <p>A devise to M. and E., with a direction that the income ‘‘ be equally divided between them until the youngest arrive at lawful age, when the same may be sold, and the proceeds divided equally between them ; and in case of the death of either leaving no heirs, the one surviving to have the share of the one so dying.”—Held that the word heirs was used in the sense of issue, and that the right of survivorship must be referred to the contingency of death without issue, previous to the period appointed for division and distribution.</p> <p>A gift to the testator’s wife of the use and income of certain real and personal estate, and the interest of a specified sum to be invested, does not throw upon the general estate the taxes, expenses, and commissions, but they are chargeable upon the particular devise and bequest.</p> <p>A legacy declared by the testator to “ be in lieu of all rights” the legatee may have in his real or personal estate, does not debar the legatee from a share, as next of kin, of an undisposed of residue, as to which the testator died intestate. The same rule applies to the interest of the widow in such a residue, although bequests are made to her by the will, “ in lieu of all interest whatever” in the testator’s personal estate.</p>

<p>Where an administrator of a solvent estate in pursuance of an agreement to pay a particular sum in discharge of the debt of his intestate at a certain' time, shortly after that period, transmits the money in bank bills by mail, and the creditor who had previously been vigilant in the prosecution of his claim, makes no further demand to the time of his death, 18 months after, and his executors subsequently apply for an order for the payment of the demand.—Held, that under the circumstances, there was sufficient to justify the probability of a receipt of the money by post, and the presumption of payment.</p>

<p>Where the testator provided that advances to his children should be charged on their respective shares of his estate.—Held, that an advance to his son-in-law, made without the consent or privity of his wife, could not be charged against the share of the latter; she having survived her husband, the legacy never having-been reduced into possession, and being bequeathed in trust for her sole benefit.</p> <p>Held, also, that another advancement made with the consent of the wife could be charged against her share.</p> <p>Interest is not allowed or advances, unless directed to be charged by the terms of the will. Otherwise interest runs only from the period when the legacy-falls due, which ordinarily is a year after the testator’s death.</p>

<p>The person entitled to a preference in administration cannot be excluded from his right, except in the cases enumerated in the statute.</p> <p>Slo degree of legal or moral guilt, or delinquency, is sufficient to effebt such exclusion, unless the person has been convicted of an infamous crime.</p> <p>The applicant may be excluded, if he be incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding.</p> <p>The statute recognizes a difference between such hazardous occupations as place a person in precarious circumstances, and such a want of care and foresight in the management of property as indicates improvidence. In the former case, uncertain responsibility, in the latter, incompetenoy or want of . capacity, are intended.</p> <p>The single fact that the applicant for administration is a professional gambler, is not of itself sufficient to establish his incompetenoy by reason of improvidence, and thus to debar him from the preference or right to administration secured to him by statute, when it also appears that he has been successful in the pursuit, has accumulated money, and there is no evidence of want of care or prudence in managing the property thus acquired, or of inaptitude for business, or of extravagande in expenditure.</p> <p>The Surrogate may open an order entered on the default or non-appearance of a party.</p> <p>"Where on a citation to a person entitled to a prior right to administer he does not, appear, and an order is entered for the grant of administration to the applicant, but he neglects to perfect the requisite bond, the party having the preference, on appearing may receive letters.</p>

<p>Tub validity of a Will executed before the Revised Statutes went into effect, must be determined by the law as then existing, and will not be impaired by the provisions of the R. S.</p> <p>Whenever the witnesses to such a will are dead, and their handwriting, and that of the testatrix, are proved, the due execution will be presumed, though it does not appear from the attestation clause, that the witnesses subscribed the will in the presence of the testatrix. The same presumption exists when two only of the witnesses are dead, and the other is absent from the State and beyond the jurisdiction of the Court.</p>

<p>If a legatee upon condition accept tlie legacy, and enter into possession, he must perform the condition, however burdensome. He is not bound to make his election whether or not to take the bequest, until the condition and value of the gift can be reasonably ascertained. A mere design or intention to accept will not conclude him, or prevent a retraction, if he was ignorant of the real state of the legacy, and the extent of the charges upon it.</p> <p>The opinion in this case (p. 213) previously given, reviewed, and held that though a legatee on condition to pay certain charges refuse to accept the legacy, the executor may be considered as a trustee holding the fund for the benefit of those interested in the legatory charges.</p>

<p>The testator having left a residue undisposed of by his will, and leaving surviving him a widow, nephews and nieces, grand-nephews, grand-nieces, and no other next of kin.—Held that the widow took a moiety of the residue, and $2000 besides, under the Statute of Distributions ; and that the remainder should be distributed among the nephews and nieces; there being no representation among collaterals after brothers’ and sisters’ children, and the grand-nephews and grand-nieces not being entitled to any distributive share.</p> <p>Where the will directed the amount of a certain bond to be collected three years after the decease of the testator’s wife, and divided among certain legatees, and the testator subsequently took from the obligors, in lieu of the first bond, an assignment of another bond and mortgage of equal amount, which, at his death, remained among his assets uncollected.—Held that the legacies were general, and were no_t adeemed.</p> <p>Whether a specific legacy be adeemed by a change of the particular form in which the thing given exists, depends upon the terms of the gift, the intention of the testator, the extent or nature of the alteration, and the circumstances attending it.</p> <p>A bequest of the principal or income of a fund, to be paid after the decease of the testator's wife, to a stranger, not of kin to the testator, does not raise a life-estate, by implication, in the testator’s wife.</p>

<p>The testator bequeathed his personal estate, after several legacies, “ to his brother James and. his children, and the child of his sister Catharine, to be equally divided between them and their heirs and assigns, for ever.”— Held, that James Moran and his children took equal shares in the legacy as tenants in common.</p> <p>Also held, that “ the child of his sister Catharine” having died before the decease of the testator, her share lapsed, and there being no gift of the residue, passed to the testator’s widow and next of kin, as in case of intestacy.</p> <p>Also held, that the issue of “ the child of his sister Catharine” did not take the share intended for their deceased parent, by way of substitution, under the term “heirs” contained in the bequest; but the word “heirs” was there a term of “ limitation,” and not of purchase, or substitution.</p> <p>“ And” is never read “ or” unless the context of the will favors such conversion.</p> <p>The provision of the Revised Statutes saving a legacy from lapse in favor of a child or other descendant of the legatee, applies only where the legatee is a child or other descendant of the testator.</p> <p>A legacy to a sister’s child is not a legacy to a descendant of the testator. By descendant is not meant any relative to whom in some possible contingency property might descend, but lineal descendants,—issue of the body.</p>

<p>Reasonable repairs and improvements, enhancing the value of the property, may be made by an executor, upon leasehold estate, occupied by the legatees or parties in interest jointly, as a residence, and the lease containing a covenant for renewal of the term, and for payment of the value of the improvements to the lessee at the expiration of the demise.</p> <p>A trustee for sale is absolutely disabled from purchasing the trust property, and the cestui que trust may set aside the sale and take back the property.</p> <p>Where executors, under a power of sale, sold the testator’s real estate at public auction, and a third person at the solicitation of one of the executors, and for his benefit, purchased the premises:—Held that the sale, upon an accounting, might be treated as invalid, so far as to hold the executor responsible for the real value of the property at the time of the sale.</p> <p>A special partnership formed under the provisions of the Revised Statutes, is dissolved by the death of the special partner. It is, like a general partnership, a personal contract, expiring with the death of any of the parties.</p> <p>The valuation made by the appraisers in the inventory, is not conclusive against the executor or administrator, but may be shown to have been erroneous.</p> <p>When a surviving partner, who is executor of the deceased partner, has retained the stock of the firm, and traded with it, he is chargeable with the prices actually realized, or with its fair market value. He cannot charge commissions as surviving partner for collecting the assets of the firm.</p>

<p>If an agent has been necessarily employed in the collection of rents of leasehold estate, by executors under a trust in the will, his commissions may be allowed ; but if an executor has himself performed the service, he cannot receive any other compensation, than his regular statutory commissions.</p> <p>In case of a continuing trust for the payment of annuities, the executors may account annually, or make annual rests and receive commissions accordingly.</p> <p>The testator being the owner of leasehold premises under a lease, containing a covenant on the part of the lessor, to renew the term or to pay 11 the value of suck buildings as should be erected in pursuance of the leaseand the lease contained a covenant on the part of the lessee, to have the buildings on the premises made fire-proof, within two years, which covenant was not performed by the lessee :—Held, that in consequence of the breach of the covenant by the testator, the lessor not being bound to renew the term, the executors were not chargeable with loss for a failure to renew.</p> <p>The executor or administrator of the lessee, becomes personally responsible to the lessor for rent of leasehold premises, accruing subsequent to. the death of the testator or intestate, only to the extent of the profits of the land. If he renews the term, the new lease becomes assets ; but if he purchases the reversion in fee, the acquisition does not enure to the benefit of the estate.</p> <p>Whether by renewing the term, executors make themselves personally liable on the covenants of the new lease;—Quiere. If they do, this is no excuse for losing the value of the right of renewal, because that rightf if valuable, may be sold.</p> <p>Lands devised by the testator, having been previously mortgaged by him as security for the payment of the debt of H.; and H., the debtor, having after the testator’s decease transferred to the executors a bond and mortgage, as collateral security for the liability growing out of the previous transaction :—Held, that H. being the original debtor, and the land of the testator surety for that debt, the devisee took the land with a right as against H. to exoneration from the mortgage; and that the executors having received securities from H. sufficient to discharge the mortgage, the devisee had an equitable claim to the specific application of the proceeds of those securities by the executors, towards the extinction of the incumbrance.</p> <p>Executors are trustees of funds properly applicable to a specific purpose ; and such assets are trust and not general assets.</p>

<p>A judgment against the deceased in a Justice’s Court, not having been docketed in his life-time, has no priority of payment over other debts.</p>

<p>In accounting before the Surrogate, a general guardian cannot be charged with moneys received and disbursed by him previous to his appointment, which had been paid to him by a foreign guardian for the purpose of applying to the benefit of the minor.</p> <p>Nor can a guardian, in such case, be charged in his accounts, for a contested debt, alleged to have been due by him to his ward at the time of his appointment. The Surrogate has no jurisdiction to try such a controverted claim.</p> <p>In allowing the guardian for counsel fees disbursed for the benefit of his ward, he will be credited only for such sum as was a reasonable charge for the services rendered.</p>

<p>Under the provisions of the Revised Statutes relative to the due execution of wills, it is not requisite that the subscribing witnesses should, strictly and. literally, sign their names to the will, in the presence of the testator.</p> <p>The formalities prescribed by the Revised Statutes are all that are necessary to the valid execution of a will. They are not cumulative to those required by the Statute of Frauds, or by the act of March 5,1813, “ concerning wills.”</p> <p>The “ act concerning wills,” passed March 5, 1813, has been repealed, and none of the English statutés are any longer to be considered as laws of this State ; and there is no other law in existence prescribing the mode in which wills may be validly executed, than the Revised Statutes.</p>

<p>If the executor be examined by an adverse party under oath, for the purpose of charging him, a portion of his statements tending to charge him, cannot be taken separate from an accompanying explanation operating in his favor.</p> <p>A donatio causa mortis is an executed gift,'revocable or conditional on the contingency of expected death, and is distinguished from an irrevocable gift.</p> <p>Interest is not ordinarily chargeable against an executor or administrator for the period of a year after the issuing of his letters, especially if the funds of the estate have been kept separate and not mixed with his own. Bi)t at all times, if he has employed the funds, he will be charged with interest on the ground of the use of the assets for his own benefit.</p>

The following is a copy of the will propounded for probate:— 11 The last will and testament of Alfred Hill, of the city of Hew-York. “ I, Alfred Hill, do make, publish and declare, this to be my last will and testament, as follows : I give, devise and bequeath unto my mother, Mary Hill, and my sisters, Caroline, Amanda, and Emily, all and singular my real estate of every description, and wheresoever situated, to have and to hold the same in equal proportions, share and…

<p>A will admitted to probate,—contested on the ground of incapacity, undue influence and fraud.</p> <p>If the general competency of the decedent be not questioned, the burden of proving that at the particular time when the will was executed, he labored under any delusion, aberration or weakness of mind, rests with the contestant.</p> <p>Whether such weakened capacity existed at the time, and whether the will was made and procured by the artifice, influence or control of others, is the subject of affirmative proof and not of surmise and suspicion.</p> <p>In determining whether a will has been procured to be made by undue influence, it is proper to see if the testamentary provisions are in harmony with the decedent’s dispositions and affections. Subsequent recognitions of the will by the decedent, when in health, and in the undoubted full possession of his faculties, are material facts in its favor.</p>

The facts of this case sufficiently appear in the opinion of the Court. Held: that when from equivocal words, it was doubtful whether the testator intended to give real or personal estate, or both, the Courts of Probate should allow evidence to show that the testator, when he made his will, had no real estate. This is the substance of the doctrine laid down in that case. YII.

<p>Though the statute does not.in terms give to any person the right to appear and contest a will offered for probate, except the widow, heirs, and next of kin, yet it is competent for a legatee under a will to oppose the proof of a codicil, which purports to revoke his legacy given by the will.</p> <p>A legatee is authorized by law to apply to have the will proved before the Surrogate, and may in all eases appeal from his decision. Though it is not necessary to cite the legatee to attend the probate, still he may at any time pendente lite intervene for his interest.</p>

<p>Where on an application for an order for the payment of a debt, the claim is contested, and appears to be based upon transactions of a remote date and of a complicated character,—to involve an inquiry into charges of fraud, concealment, falsification of books and accounts,—and is of a purely equitable nature, the Surrogate, in the exercise of the discretionary authority conferred on him by statute, will refuse to try the case, leaving it to the claimant to establish his demand in another Court.</p>

I. The evidence is sufficient to establish the paper as a will. It cannot be presumed from the lapse of time, that the witnesses can recollect all the facts and circumstances that transpired at the time of the execution of it. Their testimony is sufficient to establish its due execution. II. The paper is not defective as a will of personal estate. Ho emergency is referred to upon which the will is to take effect. Hor is there any condition annexed or referred to.

<p>It having appeared in the course of taking proof of a will propounded for probate, that the decedent at the time of her decease was a married woman:— Held, that the citation to her next of kin was not sufficient to authorize the proceeding, and that a new citation must issue to the husband of the decedent.</p> <p>If the will of a married woman, as authorized by the acts of 1848- and 1849, authorizing married women 11 to take, hold, convey and devise, real and personal property,” be offered for probate, her husband, if she leave him surviving, is the sole party in interest as against the will, and must be cited to appear and attend the probate,” so that he may have the proper opportunity of contestation.</p>

Allegations were filed against the will of the testatrix, within a year after its admission to probate. The testatrix, at the time of the execution of the will, was over 80 years of age.' She gave all her property to an unmarried daughter who resided with her. I. John V. Bleecker, one of the persons to whom the 'citation is directed, not having been served with the same, the will was not proved according to law. (2 B. 3d ed., 127, § 51.) 1. He %s a resident of this State.

<p>A devise of “ all the rest and residue” of the testator’s real and personal estate, “ not hereinbefore disposed of,” after the payment of debts:—Held, under the circumstances, to render the legacies previously given by the will a charge upon the real estate, the personalty being insufficient.</p>

<p>A conjoint or mutual will is valid, and may be admitted to probate on the decease of either of the parties, as his will.</p> <p>Such an instrument, though irrevocable as a compact, is revocable as a will, by any subsequent valid testamentary paper.</p> <p>But if unrevoked, it may be proved, provided it has been executed with the formalities and ceremonies essential to the due execution of a will.</p>

<p>Where upon an application for an order directing the administrator to pay a demand against the estate, the claim was founded upon a judgment more than 33 years old, and an alleged recognition of the judgment by' the intestate, after the lapse of 20 years, and the demand was contested by the administrator:—Held, that under the circumstances, the Surrogate in the exercise of a reasonable discretion, should refuse to hear the case, and leave the claimant to his remedy by action at law.</p>

<p>An order for a judgfnent as in case of nonsuit, against the intestate in his life-time, entered in the minutes of the Court, is the basis of a valid claim against his estate, though the record be not sighed or filed till after his decease. The taxation of the costs is mere matter of adjustment, consequent on the judgment.</p>

<p>The Surrogate has power to enforce all lawful orders, process, and decrees by attachment.</p> <p>The proceedings on such attachments are regulated generally by the statutory provisions applicable to such process when issued by Courts of Record.</p> <p>The Ecclesiastical Courts never had any authority to commit for contempt, except through the intervention of the Court of Chancery.</p> <p>When a decree has been made by the Surrogate, directing the payment of money by an executor or administrator, and the party in interest, on a certificate of the decree docketed with the County Clerk, having issued an execution which has been returned unsatisfied, then applies to the Surrogate for an attachment, and the executor or administrator on the return of the order to show cause, sets up his inability to pay,—unless it appear that the debt was fraudulently contracted, or that the party against whom the decree was made, wilfully retains possession of funds or assets still in his hands, or refuses to pay when he has the means of doing so, the attachment will not be issued,</p> <p>If inability to pay be alleged as the ground of non-complianee with the decree, the executor or administrator should submit to an examination as to his property, and consent to the application of his choseS in action to the payment of the decree, as conditions or terms of relief.</p>

<p>It seems that hy the sale of mortgaged premises on foreclosure, the interest of the owner of the equity of redemption, in regard to surplus moneys, is converted into personal estate, and if the owner die, the money must be distributed as personal estate among his legatees and next of kin.</p> <p>On a contest for preference as to administration, between relatives whose priority is not settled by the statute, the single point to be ascertained is, who will be entitled to the surplus of the personal estate.</p> <p>The Statute of Distributions, after providing for the succession to the estate in certain cases, directs in all other cases, the surplus to be distributed among the next of kin.</p> <p>Who are the next of kin, is to be determined by the rule of the Ecclesiastical Law, which in such matters is a part of the Common Law.</p> <p>In regard to the mode of reckoning degrees of kindred, the rule of the civil law has always prevailed, so far as relates to the succession tp the personal estate of an intestate.</p> <p>By the civil law, the grandfather of the decedent is in the second degree, and the aunt in the third; the former is, therefore, nearer of kin than the latter, and is preferred in administration or distribution. This is the rule in this State, where the intestate dies unmarried without issue, and his nearest relatives are a grandfather and aunt.</p>

<p>Whether at Common Law, or by the law of this State, a private contract of marriage per verba de prmsenti, without cohabitation, constitutes a valid marriage.—Quaere.</p> <p>The form of a private contract of marriage with a lunatic, without cohabitation, is not such a marriage with a lunatic, as is contemplated by the Revised Statutes to be valid, until annulled by a Court of Equity.</p> <p>To establish a contract of marriage, there must be evidence of an intention on both sides to enter into a contract of that especial character.</p> <p>An alleged marriage pronounced against because the proof was insufficient.</p>