Volume 1 — Connoly's New York Surrogate's Court Reports

<p>While executors should endeavor earnestly to act in harmony in all matters for the good of the estate, united, if possible, in policy, and acting consistently with the wishes of the deceased, neither is required to submit to the dictation of the other nor to surrender his positions in respect to his administrative duties. He is not required to merge himself or his judgment in the office or judgment of his colleague.</p> <p>Qualifying executors honestly differing as to the conduct of the affairs of the estate may each separately employ counsel to render to them professional services on substantially parallel lines, but quite independent of each other, and each executor is entitled to be reimbursed for a reasonable compensation paid by him to his counsel.</p>

Petition by Sarah D. Williams, the mother and natural guardian of Theodore- Frank Ogg, an infant, for an order directing the guardian of the estate of said infant to pay her out of the principal thereof a certain sum for past and future maintenance.

<p>Personal property owned jointly by husband and wife, e. g. a bond and mortgage, at the death of one belongs to the survivor, and forms no part of the estate of the deceased.</p> <p>Where an offer of compromise of a claim was made to executors and by them rejected, they will not, where they acted in good faith and with reasonable prudence, be charged with the excess over the amount offered in compromise recovered by the claimants against the estate and the expenses of the litigation.</p>

<p>Testator died at about the age of ninety-two years, leaving a will and four codicils thereto, executed at various times from about five years to six months before his death. Testator was unmarried and the beneficiaries of his will in varying amounts, were all his relatives, clergymen, his intimate friends, his attorney, and several charitable institutions. About the time of the execution of the will and codicils, testator had attacks of dizziness, during some of which he lost consciousness entirely, in one instance for about the space of twenty minutes; he was forgetful, lost his way in the streets, and asked questions as to places with which he had once been perfectly familiar; he complained of inability to attend to his business, and, from time to time, failed to recognize old acquaintances. But it was shown -that when he was informed of the names of persons and places which he had forgotten, he appreciated the information given and acted in accordance with it, and his conduct and remarks were rational. It was shown clearly also by those who were well acquainted with him, among others by the cashier and teller of the bank where he kept his papers and almost every day spent a portion of his time, that he was accurate and intelligent in his business affairs, and gave good reasons for bis actions in relation thereto. Although in many details, the distribution of his property was altered by the codicils, the general scheme in its outlines remained the same and coincided with his declarations as to what he intended to put, and what he had put, into Ms will and codicils. Held, that the testator had testamentary capacity, and that even if his condition could be called one of mental alienation, that such condition was not continuous, and failed to establish the existence of senile dementia.</p> <p>Where a man at the time of the execution of his will is of unusually advanced age, and, consequently, of weakened powers, to admit his will to probate it is necessary to decide that he fully understood the nature and consequences of his testamentary act, and this must be determined from evidence other than that of the formal execution of the will.</p> <p>The fact that a will is illegal in some of its provisions can be no evidence to show that the attempted disposition was not understood, unless the testator was a lawyer, and well acquainted with the law.</p> <p>A will should be viewed from the testator’s standpoint rather than from that of the scrivener who drew it, and if it appears that the will as dictated by the testator was comprehended by him, and that his ideas have been accurately expressed in the will, although in language more obscure than is ordinarily used, and not readily understood by a stranger, it must be held that the will in this respect complies with the law, although for some other reason it may not do so.</p> <p>Where, upon the whole evidence, the conclusion is imperative that the testator, at the time of the execution of his will, is able to understand the condition of his property, his obligations to those who are related to him by ties of blood, or who have legal or moral claims upon him, and the character and effect of the provisions of his will, although it may appear that his perceptive powers and memory are somewhat impaired, as would naturally be supposed in one of his advanced years, that his regulative faculties and business acumen are shown to have been remarkably well preserved; in such case, the testator has testamentary capacity.</p> <p>Where a weak-minded person makes a will in favor of his confidential adviser, to the exclusion of the natural objects of his bounty, the law presumes undue influence, and, in order to sustain the will, there should be some proof besides the making of it. This presumption, however, is one of fact, and where the evidence tends to show that the will was the voluntary, deliberate act of a person of ordinary intelligence prompted by affection, without improper persuasion, and the will is not unjust, a decree admitting it to probate will be upheld.</p> <p>The court will jealously examine the evidence and be judicially satisfied that the paper expresses the true will of the testator, in the case of a will in favor of the person who drew it, but proof of the fact that the testator had full testamentary capacity and knew the contents of the will is sufficient to remove such suspicions, and place the burden upon the contestants of proving undue influence.</p> <p>A legatee who accepts a legacy under a decree entered admitting a will to probate is thereby estopped from contesting the validity of the will.</p> <p>A tender of the amount of such legacy with interest, but without costs, into court after the filing of a petition to set aside the probate had been commenced, does not remove the estoppel of the legatee.</p> <p>It seems, that even a tender of the full amount of the legacy, interest, and costs at such time would not have, the effect of removing an estoppel.</p> <p>Upon a proceeding for revocation of the probate of a will the whole case is left open and the contestant has the right to have litigated, tried, and determined, upon the same, or upon additional, evidence, the very questions which were litigated when the will was first proposed for probate.</p> <p>Upon application for the revocation of probate of a will the legality of a direction as to the accumulation of interest cannot be considered, the only inquiry being whether the will was legally executed, and if it shall stand as proven, or if probate should be revoked and the will set aside.</p> <p>The construction of a will and the decision as to the legality of particular provisions must be had either upon the judicial settlement of the accounts of executors, or in a proceeding or action brought for that purpose.</p>

<p>The facts fully appear in the opinion.</p>

<p>Application for the probate of a paper propounded as the last will and testament of William A. W. Stewart, and that letters testamentary issue to the executors therein named.</p>

<p>A contract made by the testator becomes a charge against the estate, and is payable by the executors and not by the trustees.</p> <p>The trustees under a will cannot advance to a beneficiary any money in anticipation of income, when there is no income in their hands, and reimburse themselves thereafter for such advances.</p> <p>When expenditures for repairs have been allowed to trustees of a will by a referee without evidence of the actual necessity of such repairs, the whole matter will be referred back for further inquiry.</p>

Motion to confirm the report of a referee upon an accounting of testamentary trustees. The trustees filed their report in this matter on January 9, 1888, and objections thereto having been filed by Lydia H. Kane, the contestant, the matter was referred. Upon the coming in of the referee’s report (see ante, p. 91,) the matter was referred back to the referee for further proof. Upon the coming in of the supplementary report, various objections were filed thereto.

<p>Where a reference of an executor’s account was rendered necessary by the failure of the executor’s attorney to explain to the special guardian, when so requested by him, items of the account, which were afterwards found on the reference to be erroneous, and where the reference has been very much prolonged and delayed through the neglect of the executor and his attorney, the entire cost of the proceeding will be charged upon the executor personally.</p>

<p>When by the provisions of the will the trustees are empowered to hold any or all of the personal estate of testator in the manner and form in which the same maybe invested at the time of his death, the trustees cannot be held liable for losses incurred by reason of stocks bought by the testator in his lifetime selling for less than their inventoried value.</p>

Petition by Mary T. Keep, widow, to revoke probate of husband’s will on account of ante-nuptial agreement. The facts are stated in the opinion.

Contest on exceptions to referee’s report on the judicial settlement of administrator’s account. The facts are stated in the opinion.

<p>Application for removal of' Jemima Stanton as executrix of the will of James P. Stanton, deceased.</p>

<p>To grant ancillary letters testamentary the Surrogate must be satisfied that the testator resided at the time of his death or the execution of the will without the state, and when this fact is controverted, it cannot be determined on affidavits; and in such a case a reference will be ordered to determine the residence of the deceased.</p>

<p>Motion to charge costs of contest to the probate of a will to the attorney and counsel of contestant, personally, on the ground of misconduct.</p> <p>A petition was filed by one Henry Paul, attorney in fact of August Tacke, a brother of deceased, asking for the revocation of probate of will of decedent, and Sep. 28, 1887, a citation was issued requiring the parties to the original proceeding to show cause why the probate should not be revoked.</p> <p>The Surrogate, in an exhaustive opinion filed August, 1888, denied the application for revocation of probate and held that the contest was carried on “ for speculative purposes only and not at all to the credit of any who had sought to aid it,” and the Surrogate said, “ The attorney for the contestant and his counsel, who have had the practical control and management of this contest, will be given an opportunity on the 20 th of September next to present any facts which may explain and justify their course, and at the same time I will consider any facts and hear argument on behalf of the proponent bearing , upon the same subject. The statute expressly provides that, when justice requires, the contestant may be compelled to pay the costs of the contest. The court also has the power, in the case of palpable bad faith and fraud on the part of the attorney and counsel, either or both, to compel them to pay the costs personally. As to the contestant, I have no doubt now of his liability. I am not clear, however, as to his attorney and counsel. Let a decree be presented admitting the will. The proceeding will be placed on the motion calendar for September 20 next, for the purpose already indicated.”</p> <p>This motion having been heard, the Surrogate wrote the following opinion.</p>

<p>The Bank Clerks’ Mutual Benefit Association was incorporated under L. 1848, ch. 319, “An act for the incorporation of benevolent etc. societies ” for the purpose or relieving “ the necessities of the aged and disabled, and benefit the families of deceased officers and clerks ” of New York banks and savings banks. Its constitution provided for admission of members under a certain age, what assessments should be paid to entitle to membership, and for what cause membership should be forfeited. The object of the Association was, aid to the sick and' disabled, and provisions for the families of the deceased members. There was no provision in its charter, exempting it from taxation. Held, that it takes a legacy subject to the “ Collateral Inheritance Tax Act.”</p>

The deceased testatrix died December 12, 1886. Letters testamentary of her will were granted January 7, 1887. An inventory of her personal estate was filed in this office on the 4th day of March, 1887, which disclosed the value of her personal estate to be $96,786.70.

<p>When the husband of decedent is administrator of her estate, a receiver appointed in supplementary proceedings, instituted upon a judgment against the husband, is entitled to be cited upon the administrator’s accounting, and is the assignee of the administrator’s share of his wife’s estate.</p> <p>Where at the time of the appointment of the supplementary receiver, the administrator had used part of the assets of the estate in paying rent, and had used the remainder of the estate for his own individual use, he being entitled thereto as the husband of the deceased, who left no next of kin or heirs, the receiver can receive nothing in the right of the judgment debtor, the husband, because there is nothing in the hands of the administrator belonging to him.</p>

Accotottimg of John W. Voris, surviving executor of the will of Nicholas W. Williamson, deceased. Upon the filing of the executor’s accounts in this proceeding, objections thereto were interposed by the special guardian for the minor children of Charles W. Williamson, a deceased legatee, and by James C. Gregory, as receiver in proceedings supplementary to execution of the property of Jeremiah Williamson, also a legatee.

Accounting of William Prichard, surviving trustee, under the will of William D. Thompson, deceased. The only question raised by this accounting was by exceptions to the report of the referee in relation to the proceedings of the trustee in regard to the trusts created by the thirteenth paragraph of the will of deceased, which paragraph appears in the opinion of the Surrogate.

Petition by Charles J. Green, a foreign general guardian of Virginia W. Green, an infant. Ancillary letters of guardianship were granted ex parte to Charles J. Green the general guardian of the infant, Virginia W. Green, residing in the state of Texas, the petition purporting to be made by Charles J. Green, but signed: “ Charles J. Green by Howard W. Bayne his attorney,” and verified by Howard W. Bayne in the same manner as a pleading would be verified by an attorney.

Application of David King as committee of the estate of William H. King a lunatic, a creditor of the estate of John Matthewson, deceased, for authority to mortgage, lease, or sell the real property of the deceased for the payment of,his debts.

<p>Where the substantial requirements of the statute (L. 1813, ch. fiO) providing for the incorporation of religious societies, are complied with, as the holding of a meeting, the election of trustees, and execution of the certificate, an error in recording the certificate does not prevent the corporation from taking effect, and of being capable, therefore, of taking property as a legatee under a will.</p> <p>A cause of forfeiture cannot be taken advantage of or enforced against a corporation collaterally or incidentally, e. g. as upon proceedings upon the probate of a will, or in any other mode than by a direct proceeding for that purpose, instituted by the government creating the corporation.</p> <p>Where there is a bequest in a will to a society which is incapable of taking it and where a subsequent clause in the will bequeaths and devised “all the rest, residuum and remainder” of the estate to a certain corporation, the void legacy of the society falls into and becomes part of the residuum bequeathed and devised.</p>

Application by Gideon S. Drowne and Thomas Wilson for letters of administration of the estate of Charles Drowne, deceased. The facts appear in the opinion of the Surrogate.

<p>The Surrogate has jurisdiction to allow an appellant who has seasonably served notice of appeal, to file and serve an undertaking on an appeal, when he has through mistake or inadvertence omitted to do so within the proper time.</p> <p>Where the appellant has acted in good faith, his omission to file and serve an undertaking is excusable neglect.</p>

<p>Petition by Henry B. Brewster in Ms own right as legatee, and as assignee of legacy of William C. Brewster and others for the payment of his and their shares in the estate.</p>

<p>A legacy, which, by the direction of the will, draws interest from the attainment of the majority of the legatee, draws simple interest from such time, although the death of the testator took place subsequent thereto.</p>

Petition by Henrietta E. Hoxie, a creditor of decedent, asking for a judicial settlement of the account of Anna E. Kennedy and Sarah L. Downer, as executrices of the will of Terence J. Kennedy, deceased. A petition was filed by Henrietta E. Hoxie, a creditor, asking that the executors be cited to show cause why they should not render and settle their accounts, and a citation was thereupon issued in accordance with the prayer of the petition.

Accounting of Mary J. Clark as executrix of the will of Lemuel B. Clark, deceased, of the proceedings of said Lemuel B. Clark, as executor of the will of Freeman J. Fithian, deceased.

<p>Accounting of Abram A. Demarest, executor of the will of Abram J. Demarest, deceased.</p> <p>The facts sufficiently appear in the opinion.</p>

The will was offered for probate by the wife of the deceased, and was contested by his sons. During this contest the wife died, and the contest was then carried on by her legal representatives. The facts appear in the opinion.

<p>Petition by James Ellis and Annie F. Guider for the revocation of the probate of the will of Anthony Ellis, deceased.</p>

<p>A niece of testatrix, to whom she bequeathed most of her property, resided with testatrix at her request for a period of twenty-eight years. She had not been adopted by testatrix by any legal formalities, but had rendered to her the services, and bestowed on her the care and attention, to be expected of a daughter, and testatrix treated her, and lived with her, upon the same terms and in the same manner as a mother would be expected to live with her daughter, caring and providing for her as if testatrix were an actual parent. The words “mother” and “daughter” were not used by them, but they addressed each other as “Aunty” and “Mary” respectively and neither made any statements that parental relations existed between them. There seems to have been no payment contemplated for the services of the niece. During her residence with her aunt, the niece married, and with her husband, at the request of the testatrix continued to live with her; and testatrix almost wholly supported them. Weld, that the testatrix was a person standing towards the niece in the mutually acknowledged relation of a parent for more than ten years, within the provisions of the Collateral Inheritance Tax Act, (L. 1887, Ch. 713), and that a legacy from the testatrix to her niece was not liable to a tax under that act.</p> <p>The relation of one who stands in the place of a parent may arise by circumstances surrounding the commencement and continuance of such relation, and it was the intent of the Collateral Inheritance Tax Act to give this class of cases the benefit of its exempting clause.</p> <p>Under that law the character of proof is not suggested, it does not require the acknowledgment of the parental relation to be in writing or by declarations in public, or to any person or persons, so that if the evidence conclusively shows that the parties understood that their relations were parental, and that they thus lived together in this belief, discharging their duties and obligations to each other upon the theory that such relations existed, such manner of life is a mutual acknowledgment of the relation which each sustains to the other.</p>

<p>■ Application for the probate of the will of Sarah J. Macpherson, deceased.</p>

<p>Motion that the report of an appraiser appointed under the Collateral Inheritance Tax Act, be amended and supplemented by making separate appraisements of the real estate of this estate situate in the counties of New York and Kings.</p>

<p>Accounting of James Kerr, executor and trustee of the will of James Maxwell, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>The transfer of property by a declaration of trust depends on the same facts that are necessary to create a valid gift inter vivos, except that it is not essential that the property should be delivered to the beneficiary, or that he should be informed of the trust. To establish such transfer the donor or creator of the trust must, have relinquished all ownership of the property; he must have absolutely parted with the beneficial interest. If he has reserved any control of the property it can only be as trustee or representative of the beneficiary.</p> <p>A decedent had deposited money in the name of her son, who was thriftless and improvident. Afterwards she drew out this money and then delivered most of it to the person who was afterwards her executrix, asking her not to let any one know she had the money, saying that she would not even let her husband know it for he would not be troubled about it, that the executrix had been a kind friend to her son and herself, that she had tested her friendship, and knew she had a mother’s heart, and asked her whether she would be a mother to testatrix’s son. Held, that the original deposit in the bank created an irrevocable gift to the son even though he was entirely ignorant of it, that it came back into the possession of testatrix as trustee, and .that her executrix having obtained possession of the fund as such executrix, must account therefor to the son.</p> <p>The Surrogate’s Court has jurisdiction under § 2*743 of the Code of Civil Procedure to decide as to the validity of a trust such as the one in question, as without such a determination a distribution of the estate could not be had.</p>

<p>Application for an allowance to the freeholder’s counsel upon the sale of the decedent’s real estate. The facts appear in the opinion of the Surrogate.</p>

<p>In the absence of a special agreement on the part of a married woman to pay for medical services rendered to her, her husband and not herself is liable therefor; and in the event of her death the compensation of the physician is a debt of her husband and not of her estate.</p>

Mahlon Sands died May 8, 1888, being at the time of his death a resident of, and leaving personal estate within, the county of New York. He left him surviving his widow, Mary M. Sands, and four children, his only heirs-at-law and next of kin : 1. Mabel Sands, his daughter by a former marriage; 2. Ethel Sands; 3. Mahlon Alan Sands; 4. Morton Harcourt Sands. The last three named children are the issue of his marriage with Mary M. Sands.

Application by Charles S. Wright the father and general guardian of Florence Wright, an infant, for. the judicial settlement of his account, and the revocation of his letters of guardianship.

Accounting of Charles S. Wright, general guardian of Florence Wright, an infant.* The facts in the present proceeding are fully shown in the opinion of the Surrogate.

The decree admitting the will of the decedent to probate, was entered June 20,1887. Dyckman Odell, a next of kin, contested the probate on various grounds, much testimony being taken with a view to sustaining his objections.

Motion to confirm the report of an appraiser appointed under the Collateral Inheritance Tax Act. The facts appear in the opinion of the Surrogate.

Construction, upon probate, of the will of John Hadden, deceased. On the probate of the will, the court was requested to construe some of its provisions. The testator at the time of his death, owned the following stocks and bonds whose relative market values, when the question was submitted, were thus stated: $5,000 St. Louis, Vandalia and Terre Haute it.

Philip R. Underhill was the executor of the will ,of the deceased. Proceedings for a judicial settlement of his accounts were instituted, which resulted in a final decree of distribution, in November, 1882. By the will Elizabeth M. Guión, now deceased, was entitled. to the income of a certain share of the estate, with remainder to her children.

The will upon its presentation for probate was contested by Albert F. Baby, a brother of decedent, upon the ground that a subsequent will which had already been admitted to probate revoked the former one.

Compulsory accounting of David H. Dunham, surviving executor.

<p>At the time of the execution of the will of testatrix there were present the draughtsman and four witnesses who testified as to what took place substantially to the same effect, the only disagreement being as to the order in which the witnesses signed the will. The will was written on a printed blank and there was very little for the draughtsman to write. The testimony was that he drew a table very near the bedside, a lamp was set on it and testatrix “kind of raised up” and looked at him and then called off the various sums she wished to have inserted in the will. After he had finished, he said to testatrix: “Now you will sign.” She raised up and signed, and he then asked testatrix if she wanted the witnesses to sign their names; she said: yes, that this was her request, that she wanted the will read just as she had said. The will was such a one as under the circumstances the testatrix would naturally make. One witness testified that the will was read aloud to the testatrix before and after it was signed, and at the time she said, “Now at last it is done.” Testatrix spoke to several witnesses as to her religious feelings, and understood that she was in danger of death. She had been ill for six weeks with typhoid fever, but not all the time in bed. The will was executed two days before she died. Some evidence was given that at noon on the day on the evening of which the will was executed, and also at times on the two days following execution of the will, testatrix was “ flighty.” There was testimony that she was of sound mind on the day of the execution of the will and the day before. There was medical evidence that in cases of typhoid fever where delirium exists it is intermittent, is most marked at night; that it, is not due to any organic change in the brain, and that between the periods of delirium the patient is in a rational condition, and capable • of speaking rationally. Held, that testatrix had sufficient mental capacity to make a will.</p>

Accounting of executors. John Cocks, the testator, died in 1868, leaving' a will, which was admitted to probate the same year. He left five children, all of whom he made executors, together with his widow, Adelia Cocks, and the husbands of such-of his daughters as were then married. By the will, among other things, he directed his executors to invest on bond and mortgage, a fund sufficient to .yield an annual income of $1,000, which he gave to his widow in lieu of dower.

<p>Where one of the executors of an estate had prior to the death of the testator, acted as his agent, and as such received moneys due the testator, the debt is an asset of the estate for which the agent who has qualified as executor is liable as for so much moneys in his hands, and which is distributable in the ordinary course of administration.</p> <p>The Surrogate has power to try the validity of such a claim, and to hold the executor, if he be found to be a debtor, accountable therefor upon the settlement of his account.</p> <p>Where upon an accounting, it is shown that an executor had received prior to the death of testator, large sums of money as his agent, the burden is not on the contestant to show that those moneys had not been disbursed on account of the testator, or satisfactorily accounted for to him. It is the duty of the executor to give some account of their disposition.</p> <p>Where the evidence as to questions of fact is conflicting, the report of the referee will be sustained.</p>

Catharine Jansen as administratrix etc. of August H. Jansen deceased, in 1886 commenced an action in the Supreme Court, against Jay E. Tibbits and George Kellogg to recover damages claimed by reason of' the death of said August H., her husband, while in their employ, resulting instantly from his fall from an alleged defective scaffold constructed by the defendants in the erection of a certain building, the defendants being carpenters and builders.

<p>Application for probate of a will.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>Motion to confirm the reports of an appraiser fixing the amount to be paid as a tax on certain legacies by the Society for the Prevention of Cruelty to Animals under the Collateral Inheritance Tax Act.</p>

<p>Application" for probate of the will of John Bartholick, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>Accounting of executors.</p> <p>The facts fully appear in the opinion of the Surrogate.</p>

<p>Settlement of a decree in the matter of the probate of the will of Henry C. Bull, deceased.</p>

<p>Probate of a will.</p>

<p>Application for probate of the will of Roselia S. Look, deceased.</p>

Stewart. Cornelia M. Stewart, the widow of the late A. T. Stewart, died in the month of October, 1886, having executed in her lifetime a will and certain codicils, which were propounded for probate as her last will and testament, by Henry Hilton, one of the executors therein named, before the Surrogate of the County of New York. Upon such proceedings the will and codicils were admitted to probate without any contest, November 13, 1886.

Motion to confirm the report of an appraiser appointed to ascertain the value of certain contingent annuities under the Collateral Inheritance Tax Act. In this matter the appraiser reported as to the legacies to Mrs. George K. Reynolds, Caroline C. Reynolds, and Mary Clark-Reynolds that owing to their uncertain and contingent nature, he is unable to report as to the disposition to be made of them. He, however, reported that he had appraised their present value.

<p>Accounting of an administrator.</p>

<p>The power bestowed upon the Surrogate of New York county by section 2546, of Code Civil Procedure as amended by Laws of 1887, chapter 701, authorizing him to direct an assistant to take and report the testimony in probate cases, is valid.</p> <p>Such an assistant is appointed by the Surrogate alone, in his discretion, without the consent of the parties to the proceeding.</p> <p>This assistant has authority to rule upon the admissibility of evidence to which objection is interposed.</p> <p>Where a witness examined as to his knowledge of the handwriting of the alleged testator for the purpose of qualifying him to testify as to the genuineness of the signature to the- will, testifies that he has seen the testator sign a certain check, and that he has also seen him write at the lodge to which he belonged, and that its records were signed by the members, and witness was upon objection precluded from testifying as to the signature to the will otherwise than from knowledge derived from the signature on the check mentioned: Held, that this restriction was error.</p>

Motion to confirm the report of the referee appointed upon an administrator’s accounting. The facts appear in the opinion of the Surrogate.

<p>Accounting by Charles A. Hayden, Esther Hayden, and Ella L. Williams, executors of the will of Charles J. Hayden, deceased.</p> <p>The facts are fully stated in the opinion of the Surrogate.</p>

<p>Application for probate of a will.</p>

<p>Trustees under a will can only loan on real estate or on state or United States bonds as permanent investments, even though the will, after giving them the power to sell, also gives them the right to “ invest and re-invest the same in such manner and upon such securities as to them shall seem advisable.”</p>

<p>In the matter of the taxation of a legacy bequeathed to the St. John’s Riverside Hospital of Yonkers under the Collateral Inheritance Tax Act.</p> <p>The deceased left a will by which, among other things, he gave a legacy of $1,000 to St. John’s Riverside Hospital, of Yonkers. The support of this hospital is dependent wholly upon voluntary contributions. Frank Curtiss and Frederick de Bilier, the executors of the will, are prepared to pay the legacy, less the tax to which, they claim, the legacy is subject under the provisions of chapter 713 of the Laws of 1887, while the legatee claims it to be exempt therefrom under the provisions of that act; and an application is made to this court to determine the question.</p>

<p>Application for the confirmation of the report of an appraiser appointed under the Collateral Inheritance Tax Act. . .</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>The testatrix at the time of making her will was under the control of a commission of lunacy. She left on certain conditions, all her property to her nephew with whom she had lived for years, and who had been opposing the attempts of the other relatives to wrest her property from her, the disposition being the same as was made by a previous will when testatrix’ sanity was unquestioned, and the will was made with the express intention of defeating an alleged will which the testatrix denied having made, and which, it was claimed, left all her property to her other relatives except her nephew. One of the subscribing witnesses had known her since his boyhood, and the other was a physician of forty years standing, and they both testified that at the time of the execution of the will she was sane. Zfeld, that the will should be admitted to probate.</p>

<p>John G. Wendel named as executor of the last will and testament of Francis W. Lasak, deceased, duly filed the usual petition with a view to the probate thereof. A citation was issued accordingly, and was on the 15th day of March, 1889, returned with due. proof of the service thereof on all partiesen interest. Some of the parties so cited appeared in support of the will, while others were present in opposition. The counsel for the executor produced and examined the subscribing witnesses who were cross-examined by the contestants. The matter was then adjourned to the 12th day of April by consent. On that day the counsel for the executor read a notice which he had caused to be served on the attorneys for the respective parties, to the effect that the executor declined to take any further part in the controversy, leaving it to the parties interested in the estate, and asked leave to withdraw therefrom. Subsequently he moved to dismiss the whole proceeding.</p>

<p>Application .for the reduction of a bond of an administrator with the will annexed.</p>

<p>Application for the probate of a will.</p>

Application by Harriet L. Stilwell the maternal grandmother of Mabel Lindley, an infant under the age of fourteen years, for the appointment of a guardian of the person and estate of the infant until she attain the age of fourteen years, or until another guardian be appointed. The facts appear in the opinion of the Surrogate.

<p>Petition* for the appointment of a trustee.</p>

<p>Application for probate of a will.</p>

<p>Testatrix’s will was drawn up under direction of one of her sons, who was one of the executors, and who was present at its execution, and whose family was favored in the will. No provision was made for the children of a deceased son, for whom she had promised to provide. In the main, the will was framed in accordance with what under the circumstances, was a scheme for an equitable distribution of the estate.</p> <p>A will containing substantially the same provisions had been drawn up a short time before and both papers were read to the decedent, who expressed her satisfaction in respect thereto. The reason why the will was re-drafted was to avoid some mistakes in the name of the son, the executor already referred to, and his wife, and to remove an ambiguity in reference to the cause of a special bequest to the son’s daughter.</p> <p>Another son of the testatrix, who was also an executor, was not notified of the changes in the will. Shortly before her death, the testatrix had given to her son, the executor, certain sums of money, the receipt of which he denied under oath. The son testified that his mother had read the will, while it was proved that she had had it read and could read nothing but her own name in English. Held, that these facts were not sufficient to justify the finding that the will was procured by undue influence of the son.</p> <p>A bequest of money in trust to the executors to be kept invested for thirty years after the death of the testatrix, the interest to be applied to keeping the grave of the testatrix in good order, and at the end of that time, the principal to be paid to a legatee, or in ease of her death, to be divided in accordance with a specified paragraph of the will, is void, there being no defined beneficiary of the trust.</p>

<p>The facts appear in the opinion of the Surrogate.</p>

<p>Petition for the appointment of a guardian of a minor under fourteen years of age.</p>

In 1861, as appears from the petition in this matter, Philip E. Underhill was appointed administrator with the will annexed of Isaac Underhill, deceased. The petitioner, Elizabeth E. Guión, claims an interest in the estate of the deceased, and alleges that said administrator has never rendered any account, as such. She therefore prays that he may be cited to appear and show cause why he should not render his account.

Accounting of an administrator. Elizabeth Collyer, a maiden lady, died intestate in 1883. John L. Collyer, one of several brothers, shortly thereafter, presented a petition, stating the usual facts, and praying that his brothers who were equally entitled with him, might be cited to show cause why letters of administration should not be granted to him. A citation was issued accordingly.