Volume 1 — Gibbons's Surrogate Reports

<p>Application for letters testamentary by Catharine Ann Cornell upon revocation of her former renunciation, and by Horace G. Young, as successor of Edwin Young, deceased.</p>

Proceedings to mortgage; lease or sell real estate for the payment of debts. Application by purchaser to be relieved from his purchase and to have the sale canceled.

Application to compel an accounting by an executor. Robert H. M. Dawborn, an heir of the deceased, claiming to be interested in her estate under her last will and testament, cited said executor to show cause why he should not render an. •account.

<p>1. Executors — Claims must be presented.</p> <p>Knowledge of the executor or administrator of the existence of claims against the estate does not avoid the necessity of due presentation of such claims.</p> <p>2. Same — Presentation.</p> <p>Claims must be presented in some writing stating the nature and amount of the claim, the name of the owner, and demanding payment.</p> <p>3. Same — Eights of claimant.</p> <p>Where a claim is not presented within a reasonable time after publication of the notice to creditors, the claimant cannot complain of a disposition of the personalty made with the consent of the persons interested.</p>

The petitions are substantially alike except as to amounts asked for. They set forth that the petitioner was, on the 3rd day of May, 1893, duly appointed by the surrogate of New York guardian of the persons and property of said infants, who were residents of that county, and are under fourteen years of age; that upon such appointment she gave the necessary bond to each of said infants in a penalty of $8,000; that said minors are legatees under the will of Sarah H. 0.

The testatrix, by her will, after making some specific bequests, and providing for the erection of a monument,, the expense to be paid out of her personál estate, gave all the rest and residue of her personal estate to the petitioners. She then ordered and directed her executors to sell and convey her real estate, and to divide and distribute the proceeds, in certain shares, among certain relatives of her deceased husband, among whom the petitioners were not included.

<p>1. Limitation.</p> <p>Section 2739 of the Code, suspending the operation of the statute of limitations on a debt due the executor until his final accounting, does not apply to a claim of a third party assigned to the executor.</p> <p>2. Same.</p> <p>Claims against an estate are barred by the statute in seven years and six months from their maturity, although they have been duly presented to and admitted by the executor, and can only be renewed by a payment, acknowledgment or promise in writing, signed by him.</p> <p>3. Same — Acknowledgment.</p> <p>A petition by the executor for leave to sell a legacy due the decedent, which states the names of creditors and the nature of their claims, is a sufficient acknowledgment to stay the running of the statute as to them.</p>

<p>Appeal from decree of Surrogated Court confirming report of appraiser and assessing and fixing the cash value of the property of Grace O. Stiger, deceased, and the tax to which the same is liable.</p>

<p>Judicial settlement of the accounts of the temporary administrator of Clara M. Egan, deceased.</p>

<p>Will — Execution—Proof of.</p> <p>Where one of the subscribing witnesses cannot be produced and no other persons were present at the execution of the will, testimony of the other witness, if his character is unimpeached, when supported by the apparent good faith of the transaction and a full attestation clause, is sufficient to prove that testator made his mark.</p>

A decree was made in this proceeding directing the executors to pay to Ann M. Paddock and Phebe B. Rockwell, each, the sum of $6,082.55.

<p>Suspension op alienation.</p> <p>A will bequeathed the income of a specified sum to three persons, the principal of the share of either on his or her death to go to his or her children, if any; if none, the income of such share to go to the survivor or survivors, and the principal to the children who survived all three. Held, that as to the share of the one first dying the bequest was void as suspending the absolute ownership for three lives; but that as to the shares of the other two it was valid.</p>

The testator died in 1865, and his will was proved in this county the same year, disposing of a large estate. By the will he provided that the executors or administrators of the survivor of two executors and trustees appointed by him should have the power to appoint an executor and trustee in their place.

Henry W. Bibby, one of the executors, etc., of the deceased, presents a petition, in which it appears that the testatrix died on the 20th day of February, 1889; that by her will she bequeathed the use of the residuum of her estate to her niece, Augusta Bibby, during her life, and upon her death, leaving her daughter, Mary Bibby, surviving, then the like use for life to said Mary, and at her death the fund was bequeathed to others; that the executors rendered their account…

<p>Application to. determine commissions upon final accounting.</p>

The deceased died on the 11th day of May, 1891, leaving a last will and testament. Ilis estate consisted of real and personal property, all of which, with the exception of one house and lot, he bequeathed and devised to his two brothers, and was not of sufficient value to cause it to be subjected to taxation under the Collateral Inheritance Tax Law then in force. The house and lot mentioned was devised to one Louisa F. Hoffkens, who was not related to the testator.

<p>Proceedings to assess, tax upon property passing under the will of Maria Louise Sterling, deceased. -</p>

<p>Executors — Accounting—Limitation.</p> <p>The right of a creditor to compel an executor or administrator to account is barred by the statute of limitations at the end of seven years after the issue of letters.</p>

<p>Proceedings upon intermediate accounting and for a construction of the will of deceased.</p>

<p>Executors — Order oe payment.</p> <p>Judgments recovered against the decedent in his lifetime are to be paid in the order of their docketing, irrespective of the time when the assets or fund were acquired.</p>

The deceased, by his last will and testament, gave what was construed by the appraiser to be a legacy of $10,000' to Mary E. Field. On the coming in of the report the surrogate fixed a tax thereon under the Transfer Tax Law of $500. Notice was given accordingly, whereupon an appeal therefrom was taken to the surrogate, pending which, and in order to save a possible penalty, the executors paid the tax, under protest, to the county treasurer.

<p>Judicial settlement of accounts of executors.</p>

<p>Transfer tax — Exemption.</p> <p>The exemption of religious corporations in section 2 of the Transfer Tax Law of 1892 does not apply to foreign corporations.</p>

<p>1. Guardians — Custody of minor.</p> <p>The right of a guardian to the custody of his ward is not an arbitrary one, but he must make such disposition of the ward’s custody as will best promote his interests.</p> <p>2. Same — Refusal to contribute.</p> <p>Where the ward is well cared for and attached to the person with whom he resides, the guardian is not justified in refusing to contrib-. ute to his support on the ground that he refuses to leave such person and reside with the guardian.</p>

The testator, Charles W. Wyatt, of the town of Newburgh, died in the fall of 1892, leaving him surviving his wife, Mary J. Wyatt, but no children or descendants- of a child or children. He was also survived by two sisters, Mercy Dryer and Eunice Dougherty, each of whom have several children, nephews and nieces of the testator. The testator was also,- survived by a large number of nephews and nieces, the children, respectively, of five deceased brothers and sisters.

On the probate of the will in this matter, the special guardian of three minor children of the testator, born after the making of his; last will, asked for a construction of the will in so far as their interests were affected by that fact. There were also three children living at the date of the making of the will.

<p>1. Will — Validity.</p> <p>Tlie validity of a will is governed by the law of the testator’s domicile at the time of his death.</p> <p>2. Same — Revocation.</p> <p>An unmarried woman, while living in New Jersey, executed a will and subsequently married a resident of that State, with whom she thereafter removed to this State. Held, that the law of this State governed, and that her will was revoked by her marriage.</p>

<p>1. Legacy — Payment.</p> <p>Where the answer in a proeeeding to compel payment of a legacy complies with the requirements of the statute and shows that the determination of the petitioner’s rights will involve a construction of the will, the proeeeding must be dismissed.</p> <p>2. Subrogate — Jurisdiction.</p> <p>An independent proceeding for the construction of a will cannot be entertained.</p>

The testator bequeathed all his household furniture to his widow. He then devised a certain parcel of land to his son, Stephen L. Purdy, and next provided as follows: “ Third.

<p>Probate of will.</p>

<p>Probate of will.</p>

<p>Probate of will.</p>

This is an application to open the decree heretofore made in this matter by the surrogate of this county. The application is made by the executor of the last will, etc., of Martha Melius, widow of Henry Melius, deceased, upon the following grounds: 1. An excusable default. 2. That the granting of the relief sought would be in furtherance of justice. The will of Henry Melius, among other things, provides as follows: “First.

<p>Application by a receiver to compel an executor to account.</p>

<p>Proceedings for the probate of the will.</p>

<p>Will — Fraud.</p> <p>Where, at the time of execution the testatrix was in extremis and could only answer questions by a nod, and upon application for immediate probate one of the legatees was represented by a stranger and the names of infant legatees suppressed, held, that the facts were so suspicious that probate should be refused.</p>

Judicial settlemeut of the accounts of executors. The testatrix, by her will, directed her executors to erect-to her memory a certain style of tombstone or monument, and charged the expense to her personal estate. All the rest of her personal estate she beqdeathed to her nephew' and niece, John J. S. Mansfield and Elizabeth E. Mansfield.

<p>Legacy — Payment.</p> <p>Where there is an equitable conversion of the realty and there has been a delay in its sale, the surrogate may direct the payment of a legacy where the entire estate is sufficient to pay all debts and legacies which are entitled to priority or equality of payment.</p>

<p>Application for the appointment of a temporary administrator pending the contest of a will.</p>

<p>Application for the sale of real estate for the payment of debts.</p>

<p>1. Guardians — Letters.</p> <p>The issuing of letters of guardianship is not necessarily a judicial act. It is the order and not the letters that appoint.</p> <p>2. Executors — Expenses op education.</p> <p>A provision that the expenses of educating an infant legatee shall he charged against his share covers the services of doctors, dentists and oculists rendered to, and medicines furnished to him while at college.</p>

<p>1. Legacy — Forfeiture.</p> <p>The mere formal appearance of a legatee and cross-examination of the witnesses on probate is not such opposition as will forfeit the legacy under a provision forfeiting it if the legatee prevents or opposes the will.</p> <p>2. Same — Action against executor.</p> <p>But the bringing of an action against the executor for conversion of property to which the legatee claimed ownership, but which the testatrix had bequeathed to others, will forfeit the legacy.</p> <p>3. Same — Conditions.</p> <p>So also, the failure to comply with conditions as to testatrix’s burial will forfeit the legacy.</p>

<p>1. Executors — Assets.</p> <p>Where the testator’s land was worked on shares, his share of the avails of milk taken to the cheese factory, which were paid to the administrator, do not go to the heirs at law as rent of the farm, but are assets of the estate.</p> <p>2. Same — Services—Members oe family.</p> <p>The fact that a married daughter left her home to care for her father, at his request, and that he stated that he had money to pay for her services and that she would be paid, is sufficient to overcome the presumption, arising from their relationship, that her services were gratuitously performed.</p>

Proceeding to obtain the determination of the court as to- the payment of the transfer tax by the trustee. Bobert A. Forsyth died November 25, 18-73, leaving a last will and testament, dated October 4, 1871, which was duly proven before and admitted to probate by the surrogate of Orange county on December 4, 1873. So much of the fifth clause of said will as is pertinent to the matter now before the court is as follows: “ Fifth.

Petition by the trustees under the will of Joshua Brooks, deceased, to procure a determination as to the liability of the trust fund to the transfer tax.

Judicial settlement of the accounts of an administrator. The testator, by his will, gave the use of all his estate, real and personal, to his wife, Agnes, during her life.

<p>Will — Undue influence.</p> <p>Two hours before the death of a man aged sixty, who had been suffering from Bright’s disease, he made a will by which he gave his entire estate to his third wife, to the exclusion of his children by his former wives. The wife had property of her own, was strong mentally and physically, and had frequently importuned him to make a will, which he refused to do. She sent for the scrivener and witnesses, and gave him a stimulant, before the will was drawn. No other member of the family was present. Eeld, that testamentary capacity and want of undue influence were not shown.</p>

<p>Assessment of the collateral inheritance tax against the estate of Samuel R. Weed, deceased.</p>

Judicial settlement of the accounts of an executor. The deceased left a. widow, Hattie S. Spears, a son, William J. Spears, and two minor children. He was the owner of valuable real property at Clausen’s Point, Westchester county, where he died, estimated to be of the value of about $100',000. He also had a leasehold estate in No. 2472 Second avenue, New York city. The inventory of the personal property amounted to $700, including two horses valued at $200'.

<p>1. Services — Members of family.</p> <p>In the absence of a contract, express or implied, to pay for services rendered by a child, no claim therefor can be made, as it will be presumed that such services were gratuitous.</p> <p>2. Same.</p> <p>Declarations by a father, made during the absence of the daughter, and not communicated to her, that she “ ought to be paid,” and that “ she should be paid for what she did for him,” are not sufficient to overcome such presumption.</p>

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

<p>1. Limitation — Claim or surety.</p> <p>Where a debt is paid by a surety after the death of the principal, the statute does not begin to run against his claim for reimbursement until the appointment of an administrator.</p> <p>2. Sale or real estate.</p> <p>A proceeding to sell real estate for the payment of debts may be maintained, although there has been no judicial settlement of the accounts of the administrator; but in such case the petitioner must show affirmatively that all the personal property applicable to the payment of debts and funeral expenses has been so applied, or that the executors or administrators have used reasonable diligence in converting and applying the personal property to the payment of debts and funeral expenses, and that it is insufficient.</p> <p>3. Same — Jurisdiction.</p> <p>The fact that, in such a proceeding, the claim of the petitioner i^ disputed does not deprive the Surrogate’s Court of jurisdiction to determine its validity.</p> <p>4. Same.</p> <p>The fact that the devisees have quitclaimed their interests to a claimant against the estate does not deprive him of the right to maintain a proceeding to sell the real estate to pay his claim.</p>

<p>Gifts- — Declarations.</p> <p>If the subject of an alleged gift is a debt of the donee, it must be established by instruments in writing; mere declarations of the testatrix that the debt was paid by services is not sufficient.</p>

<p>Judicial settlement of accounts.</p> <p>The testator’s daughter Eliza and her two children, Maggie and Carrie, survived him, and Maggie survived her mother, hut Carrie died before, without issue, leaving her father, Theodore Pelser, her next-of-kin. The additional facts sufficiently appear in the opinion. ^</p>

<p>Will — Construction.</p> <p>The use of all testator’s real and personal property was given to. two sons for life, and the will then provided that “After the death of my two sons and their heirs, if they have any,” the property was given to testator’s brothers and sisters. Field, that it was testator’s intention that only in the event of the extinction of lineal descendants the property should go to the collateral relatives, and that on the death of the sons the grandchildren took an absolute fee.</p>

<p>Administration — Charitable devises.</p> <p>A devise to “ the Sisters of Charity attached to ” a certain church, where the body named is not incorporated, cannot be sustained on the theory that it is given to the individuals composing such body, so as to entitle one of them to letters of administration.</p>

<p>Surrogates — Depositions.</p> <p>A surrogate lias power to order the examination of an aged, sick or infirm witness who resides in another county, other than a subscribing witness to the will, to be taken before a referee in such county.</p>

<p>Proceeding to discover personal property alleged to belong to tbe estate of tbe decedent.</p>

<p>Guardians — Bond.</p> <p>An ancillary guardian who is also the general guardian, and as such, has given the bond prescribed by section 2838 of the Code, is not required to give the bond prescribed by section 2746 in order to entitle him to receive legacies due to his wards.</p>

Appeal by Elizabeth Pope Westcott and Cora P. Gannung, as executrices of the will of Monroe Westcott, deceased, and by Cora P. Gannung individually, from the decree of the Otsego County Surrogate’s Court, entered on the 20th day of December, 1894, confirming the report of the appraiser appointed under the Transfer. Act to appraise the property of said decedent for the purposes of taxation.

<p>Suspension oe alienation — -Validity.</p> <p>The provisions of a will as to the suspension of the power of alienation and of absolute ownership are valid to the extent of two lives in being at testator’s death, although testator has attempted to accomplish a further suspension, or to make any other unlawful disposition of the remainder.</p>

<p>Wile — Revocation.</p> <p>Shortly before his death, testator had differences with his brother, which he settled by conveying to him real estate which he had devised to one of his daughters. With the will was found a codicil, written partly upon it, which simply modified it in a few particulars, and was evidently intended to readjust said daughter’s share, but the signature to such codicil was erased by testator by drawing ink lines through it. Held, that the will was thereby revoked.</p>

<p>•Transfer tax- — Parental relation.</p> <p>The relation of parent and child does not exist between an únele and niece, within the meaning of section 2 of the Transfer Tax Law, where he merely resided with her mother and contributed toward the household expenses in common with the other members of the family, and it does not appear that he ever called her his child or spoke of her as his daughter, or that she called him father.</p>

<p>Distribution — -Foreign consul.</p> <p>The consul-general of Italy has, under the treaty with that country, power and authority to demand and, on giving the proper receipt, to receive the distributive shares in an estate which belong to persons in his country and have been deposited in court.</p>

<p>Judicial settlement of accounts.</p>

<p>Application for the issuance of a citation in a proceeding for the probate of the will of Robert F. Washburn, deceased.</p>

<p>Petition for leave to sell decedent’s real estate for the payment of debts.</p>

<p>Surrogates — Completion of proceedings by.</p> <p>Where the office of a surrogate becomes vacant by his death or ex-> piration of his term after he has filed an opinion, but before he has rendered a decision in a proceeding for an accounting, the proper course for his successor to pursue is to continue the proceeding from the point where it was left, and upon the evidence previously taken, and any additional proofs that may be offered, to make the proper decision.</p>

<p>Proceedings on appointment of administrator with the will annexed.</p>

<p>Proceedings for the appraisement of the estate under the Transfer Tax Act.</p>

<p>Application for letters of guardianship of the persons: and estates of Jerome Alexandre and Leonie Alexandre.</p>

<p>Will — Witness.</p> <p>A person who is unable to see is incompetent to act as an attesting witness.</p>

<p>Proceedings on behalf of Jeanne Marie Nellie Genin Gregory to open, vacate and set aside a decree, heretofore entered, admitting to probate the will of Nelson B. Gregory, deceased.</p>

<p>Proceedings for the judicial settlement of the accounts of art administrator with the will annexed.</p>

<p>1. Executors — Accounting.</p> <p>The “ actual and necessary expenses,” for which an executor will be reimbursed, are those which were contracted in good faith and with reasonable judgment, whether with or without the advice of counsel.</p> <p>2. Same.</p> <p>Expenditures made by an executor in the defense of claims against the estate, although incurred by advice of counsel, should not be allowed to him where, in the management of his own affairs, under like circumstances, he would not have incurred them.</p>

<p>Transfer tax — Parental relation.</p> <p>The exemption in the Transfer Tax Law in favor of persons toward whom testator has stood for ten years in the mutually acknowledged relation of a parent is not limited to illegitimate children, but includes any person who has been brought up by him as a child for the requisite time, and who has recognized him as a parent. ;</p>

<p>Wnx — Probate.</p> <p>Where one of the subscribing witnesses is dead and the other has not been heard from in six years, the will may be admitted to probate on proof of the handwriting of the testator and witnesses, and declarations of testator as to its execution.</p>

<p>Judicial settlement of accounts.</p>

<p>1. Husband and -wipe — Separation.</p> <p>A separation agreement is annulled by any subsequent cohabitation, in the absence of proof that it was intended to be anything else than a permanent resumption of the marital relation.</p> <p>Ü. Executors — Accounting—Burden of proof.</p> <p>The burden of proving that debts paid by the administrator did not exist and were not paid in good faith rests on the contestant.</p>

<p>1. Executors — Agreement as to payment eor services.</p> <p>An agreement by one who has been paying board, but feels unable to continue, that in return for care and maintenance the party furnishing it shall have whatever property such person- may die possessed of, is valid and enforceable. ^</p> <p>2. Same — Amount oe claim.</p> <p>Where claimant has furnished board under an agreement that he shall have whatever property the decedent left at her death, he is entitled to the entire residuum, without proof of the extent or value of such maintenance.</p> <p>3. Husband and wipe.</p> <p>The right of a husband to recover for services rendered by his wife is not affected by the Married Woman’s Act.</p> <p>4. Decedent’s estate — Claims.</p> <p>The rule that claims not presented during the decedent’s life should be closely scrutinized does not apply to a case where, by the terms of the agreement, no right of action exists until the debtor’s death.</p>

<p>1. Trustees — Commissions.</p> <p>Where, prior to his removal, a trustee has paid over the entire income to the beneficiary without 'deducting his commissions and has turned over the securities to his successor, the surrogate has no jurisdiction to direct his successor to pay him the commissions.</p> <p>2. Executors — Accounting—Costs.</p> <p>The costs of an accounting by an executor who has resigned or been removed must be borne by him, and cannot be charged against the estate.</p>

<p>Proceedings under the Transfer Tax Act.</p>

<p>Judicial settlement of an executor’s accounts.</p>

<p>Will — Execution:</p> <p>Exhibition to the witnesses of a piece of apparently blank paper, with the remark that “this is my will,” of “I have made my will; I want you to sign it,” is not an acknowledgment of a subscription within the meaning of the statute.</p>

<p>1. Will — Execution.</p> <p>A substantial compliance with the requirements of the statute in relation to the execution of wills is sufficient.</p> <p>2. Same — Probate.</p> <p>A will may be admitted to probate although one of the witnesses denies that the usual formalities were observed.</p> <p>3. Same — Attestation clause.</p> <p>Where there is a contest as to what took place, the attestation clause is to be considered as bearing.on that question.</p> <p>4.' Same — Publication.</p> <p>An affirmative answer to a question by the scrivener as to whether the testator wished the persons present to witness the will is a suf•ficient publication of the will and a valid request to the witnesses to attest the will.</p>

Motion by claimant to confirm referee’s report except as to' disallowance of $1,902.33 of claim of Douglas Hartman, assigned to claimant, and motion by contestants to confirm the report except as to the allowance of interest, which they ask to be set aside and disallowed.

<p>Judicial settlement of accounts.</p>

Accounting by an executor. The parties to the proceeding move for an order to send back the report of the referee for correction, and to require him to state his findings of fact and conclusions of law separately.

<p>Proceeding h> set aside an appraisal.</p>

<p>Motion to compel payment of the transfer tax.</p>

Appeal by the county treasurer from an order of the surrogate, confirming the report of the appraiser under the act in relation to- taxable transfers of property, and adjudging that the estate of decedent was not subject to- the tax.

<p>Appeal from a decree rendered on the report of the appraiser.</p>

<p>Motion to confirm referee’s report.</p>

<p>Application for the probate of the will of James A. Carey, deceased. Decedent’s daughter filed objections toi its probate on the ground that is was not properly executed.</p>

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

<p>Upon the settlement of this estate the contestants claim that the executor should be charged with the amount of a certain note made by Albertus A. Foster to his mother, the testatrix, and held by her at the time of her decease, for $150-, with interest thereon from July 15, 1882, and that said executor should mot he credited in his account with his legacy of $200', bequeathed to said Albertus A. Foster, and paid to him by said executor, but that said legacy should have been credited and applied fro tcmto upon said note.</p>

<p>1. Will — Probate.</p> <p>Where the attestation clause and surrounding circumstances satisfactorily establish the due execution of the instrument, it should be admitted to probate even against the testimony of the subscribing witnesses.</p> <p>2. Same — Signature.</p> <p>It is not necessary that the witnesses should see the mark made by the pen, or its actual contact with the paper; it is sufficient that they see it in testator’s hand and hear its scratching on the paper.</p>

<p>Application for leave to sell real estate for the payment of ■debts.</p>

<p>Proceeding for revocation of probate.</p>

<p>Judicial settlement of accounts.</p>

<p>Proceedings under the Transfer Tax Act.</p>

<p>Judicial settlement of tbe accounts of the executor, involving the construction of the will of deceased.</p> <p>Helen Torrance died April, 1895, leaving a will bearing date May 20, 1890. She left her surviving sons, William M. Torrance and George R. Torrance, and a grandchild, Helen R. Torrance, a daughter of a deceased son. By her will she gave $5,500' to different religious and charitable objects, also $500' to R. D. Williamson. She also gave various articles of personal property to various persons.</p> <p>By the 7th clause of her will she provides as follows: “ Should there be any money in the bank to my credit after the preceding sums have been paid, I give and bequeath the same to the board of ministerial relief of the United Presbyterian Church of North America.”</p> <p>At the time of making the will, her estate in cash and securities amounted to about $7,700, of which only $400' was in cash in the bank. At the time of her decease, testatrix had in the bank in cash $5,347.36, of which $3,052.50' was in the Troy Savings Rank, the balance in the Troy City National Bank, and securities amounting to $11,000. ■ The money disposed of by her will in general legacies amounted to $6,500, including a legacy given to Mary Stone, of Troy, of $500 by a codicil to her will, dated March, 1894.</p> <p>George A. Stone, the sole acting executor of her will, was president of 'the Troy City National Bank and acted as agent of the deceased in investing her money, selling her securities and investing in others as he deemed it for her interest. It appears that the money of the deceased came from the principal sum of $92,000, left by her husband, from which she received an income ranging from $2,000' to $5,000' or more a year. The income was received by Mr. Stone for her. She applied such portion of it as she abose for her support and other purposes, and the balance he, without special direction from her and without her knowledge, invested from time to time in various securities. He states that she gave him no specific directions upon the subject and had no knowledge of the character of thei investments which he made until he informed her afterwards. It appeared that the amount she had to her credit in the bank, of which Mr. Stone was president, and subject to her draft, varied, sometimes only a few dollars, at other times several thousand dollars. She kept a bank book and drew her money in the usual way by check.</p>

Objections were filed thereto upon the ground that the said will was not properly executed; also upon the ground of fraud and undue influence. Mary Murpby was a native of Ireland, and came to T'roy in 1835 and resided there at the time of her death, which occurred February 25, 1895, aged about eighty years. The paper offered for probate was made about five years before her death, and is dated March 31, 1890. The deceased could neither read nor write.

<p>Proceeding to revoke the decree of probate heretofore entered.</p>

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

<p>Will — Revocation—Adoption.</p> <p>Adoption of a child does not operate as a revocation of a prior will of the adopting party.</p>

<p>Sale oe seal estate — Costs oe suits not to be allowed.</p> <p>Costs recovered in an action against tlie surviving partner of tlie decedent upon a firm indebtedness cannot be allowed in a proceeding for the sale of real estate for the payment of debts.</p>

<p>1. Will — Revocation.</p> <p>A proceeding to revoke probate is instituted by the filing of the petition, within the statutory time, and citations may issue thereafter from time to time to bring in necessary parties.</p> <p>2. Same — Neglect to proceed.</p> <p>Neglect of the petitioner to proceed further after filing the petition is not ground for dismissal, as the executor may, in such case, apply for citations.</p>

<p>Application for the sale of real estate for the payment of debts.</p>

<p>Motion to punish the executrix for contempt in refusing to comply with a decree of the Surrogate.</p>

Proceeding to compel surviving administrator to render an account of his proceedings and distribute the remainder of decedent’s estate among the next of kin. The facts appear in the opinion.

<p>1. Executors — Liability.</p> <p>Where executors transfer to legatees personal property specifically bequeathed to them and make no provision for the payment of the debts, they are guilty of a devastavit and personally liable therefor.</p> <p>2. Same.</p> <p>Where executors have transferred personal property to the legatees to whom it was specifically bequeathed, and allowed the devisees to take possession of the real estate, without taking any measures to provide for payment of the debts, they cannot be allowed for discounts paid by them to raise money to pay such debts.</p> <p>3. Bills and notes — Limitation.</p> <p>The right of action against an indorser is governed by the law of the State in which the indorsement was made, although the note is payable in another State.</p> <p>4. Executors — Payments—Outlawed claims.</p> <p>An executor has no authority to allow a claim against which the statute of limitations has run.</p> <p>5. Same.</p> <p>On an intermediate accounting, to which the creditors are not parties, the executor cannot be credited with payment of an outlawed claim, although the heirs consented thereto.</p> <p>6. Estoppel — Silence.</p> <p>Mere silence will not estop except in eases where there is not only a right, but a duty to speak.</p>

<p>Application to settle decree on resignation of trustees.</p>

<p>Executors — Accounting.</p> <p>An undertaker or other person holding a claim, for funeral expenses is not a creditor or person interested in the estate within the meaning of section 2727 of the Code, and cannot maintain a proceeding to compel the executor to account.</p>

<p>Legacy — Ademption.</p> <p>A legacy to a church for the purpose of paying off a mortgage thereon is not adeemed by a reduction of the mortgage before testator’s death by subscriptions, except to the extent that subscriptions made by the testator contributed thereto.</p>

<p>Proceedings, on judicial settlement of accounts of administrator and proof of personal claim.</p>

<p>Proceedings for judicial settlement of accounts of executors.</p>

<p>1. Executors — Liability.</p> <p>An executor or administrator is not Hable for failure to take legal steps to recover alleged assets of the estate, where there were reasonable grounds for believing that such steps would be entirely ineffectual and he acted in good faith.</p> <p>2. Gifts causa mortis — Mental capacity.</p> <p>One who has testamentary capacity is competent to make a gift eausa mortis.</p> <p>3. Same — Subjects of.</p> <p>A certificate of deposit is a proper subject of a gift causa mortis.</p> <p>4. Same — Delivery.</p> <p>A delivery to a third person for the donee is sufficient, although the donor dies before the property is handed to the donee.</p>

<p>1. Testamentary capacity.</p> <p>Incapacity to make a will will not be inferred from advanced age nor from an enfeebled condition of body and mind.</p> <p>2. Same — Declarations.</p> <p>Where the testator undoubtedly possessed testamentary capacity at the time of the execution of the will, his declarations made before or after that time are not admissible to show fraud or undue influence.</p> <p>3. Will — Knowledge op contents.</p> <p>Where testator was able to read writing and to transact business, his knowledge of the contents of the will may properly be inferred.</p>

<p>Probate of will.</p>

<p>1. Testamentary capacity — Insanity.</p> <p>Where it is shown that general insanity existed as an habitual condition of mind, the proofs must show clearly that at the time the will was executed there was an absence of the disease itself, and not merely of its apparent delusions.</p> <p>2. Same.</p> <p>Evidence sufficient to show -incompetency because of alcoholic insanity.</p>

<p>1. Trustees — Commissions.</p> <p>Where the residue is left to executors and trustees in trust to pay the income to certain persons for life, with remainder over, and with full power of sale, they hold the legal title to the real estate as trustees, and as such are entitled to commissions not only upon the rents, but on the value of the property also.</p> <p>2. Executors — Taxes on unimproved property chargeable to-principal.</p> <p>Where unimproved real estate, having a prospective value, is carried by trustees for the benefit of the remainderman, the expense of carrying it, including taxes, is chargeable to principal and not to income.</p>