Volume 1 — Mills's Surrogate Reports

<p>Proceedings upon probate of a will.</p>

<p>Will — Testamentary Capacity.</p> <p>Where testamentary provisions were not unnatural or indicated unsoundness of mind or a lack of comprehension by testator of his relations towards his family, and the subscribing witnesses testified that the will was drawn in the presence of the testator after receiving full and clear instructions, that he was of sound mind, and that when completed the will was read over to him and executed with all formalities, the will will be admitted, even though testator at the time was suffering from a painful injury and physicians, from their subsequent observation of decedent’s condition, stated that he could not have been able to carry on the conversations sworn to by proponent’s witnesses.</p>

The decedent died intestate, leaving surviving her no husband, issue or relative in this country. Letters were issued to the public administrator who administered the estate and judicially settled his account, and fund was deposited under decree. Application is now made by certain parties claiming to be relatives of decedent for an order directing the chamberlain to pay over the fund to them as decedent’s next of kin.

Proceedings were instituted for a judicial settlement of the account of the executors of Morris Franklin, deceased. The widow, who was executrix, died before the commencement of the proceedings. The testator died October 22, 1885, being seized of real property in the town of Flushing, and the assessors of that town had assessed such property to him on their rolls. The tax-rolls were made out and confirmed by the board of supervisors after his death.

<p>Will — Witness.</p> <p>Where two subscribing witnesses gave necessary proof as to its execution, the fact that a third witness was a beneficiary did cause a forfeiture of his legacy, as his evidence was unnecessary.</p>

<p>Transfer Tax — Jurisdiction—Non-Resident.</p> <p>Where a non-resident dies, leaving shares of a domestic corporation within the jurisdiction of the surrogate, the letter may appoint appraiser of such stock, although the certificates of the stock were at' the time of the death of the owner held in a foreign State, in whose courts his executors had duly accounted and distributed his estate.</p>

<p>Proceedings upon probate of a will.</p>

<p>Jurisdiction — Westchester County — Ch. 938, Laws 1895.</p> <p>Chapter 934 of the Laws of 1895 annexes certain parts of Westchester county to the city and county of New York for municipal purposes only; but for judicial purposes, including the right to grant let- • ters of administration, the jurisdiction of the surrogate of Westchester over the annexed district remains unaffected.</p>

<p>Jurisdiction — Guardian—Rights of Sureties.</p> <p>By a judgment in partition, rendered in 1869, it was erroneously decreed that the father of an infant son, who was also guardian ad litem in partition, had a right as tenant hy curtesy in the son’s share, and the father received the infant’s share and dissipated it. Reid, that this court had no power to review the, adjudication of the Supreme Court, from which no appeal had been taken, and direct the father in 1899, as general guardian, to pay the fund to the son, as his sureties as general guardian have a right to rely on the judgment in partition as the true measure of the respective rights of the father and son in the fund.</p>

Upon the part of the State the appeal was taken because the transfer tax appraiser deducted in the above estate the amount of upwards of $10,000, which was due to the United States under the War Revenue Law.

<p>1. Executors and Administrators — Administrator of Defaulting Executor — Code Civ. Pro., § 2606 — Liability of Sureties.</p> <p>The administratrix of a deceased executor is not authorized bisection 2606 of the Code of Civ. Pro. to account for the latter’s devastavit of a trust fund and procure a decree against herself as administratrix with a view to enforce it against the sureties on a bond which the executor gave as trustee, where no part of the trust fund ever came into her possession.</p> <p>2. Same — Admissions of Executor Binding His Sureties as Trustee.</p> <p>Admissions of the deceased executor, antedating execution of his bond as trustee, are not competent against the sureties where they do not show that he received the moneys in any other capacity than as executor; nor unless they were made after the bond was executed and in the transaction of the business of the trust estate.</p> <p>3. Same.</p> <p>An executor cannot be held to hold a fund as trustee until the trust fund has been in some way legally ascertained, identified and separated from the general fundds of the estate, and the trustee has entered upon the duties of his office as trustee, as distinct and separate from his functions as executor.</p>

<p>Proceedings for a compulsory accounting.</p>

<p>Guardian — Contempt, in Failing to Pat Monet.</p> <p>The guardian was a sister of the petitioning ward; she had used the money in support of the household in which petitioner lived, and while the surrogate stated that that claim was insufficient in law as a defense, he held that it was sufficient to protect her from being sent to jail, she having offered everything she possessed, though of little value, in payment of the sum found due her brother.</p>

Application to revoke letters, open decree, etc. The petitioner is a son of the decedent, a legatee under his father’s will and next of kin of his mother. The respondent is executor of the will and administrator of petitioner’s mother’s estate. Petitioner was a minor when appointments were made. That accounts were filed and proofs .submitted of service of citation on him to attend accounting. He denied such service on him.

<p>1. Will — Devise Within Sixty Days oe Death to Religious Corporation — Laws 1848, Ch. 319, Sec. 6.</p> <p>Where a devise was made to a church, incorporated under chapter 60 of the Laws of 1813, its right to take is not affected by the provisions of section 6 of chapter 319 of the Laws of 1848, requiring more than 60 days to elapse between the execution of the will and the death of testator. Nor is it affected by the General Corporation Law, Religious Corporation Law or the Membership Corporation Law.</p> <p>2. Same — Evidence Aliunde as to Intended Object.</p> <p>A devise to “ St. Mary Roman Catholic Church of Cooperstown, N. Y.” may be established by parol or other competent evidence to have been intended for the “ Church of the Lady of the Lake, Cooperstown, N. Y.”</p>

<p>Application by executors for issuance to them of letters testamentary.</p>

<p>Proceedings upon the probate of a will. Facts in decision.</p>

<p>Will — Legacy—Lapsing of.</p> <p>Testator gave his widow, for life or while she remained unmarried, the real estate and residuary personal estate disposed of by the will, and so much of the principal as was necessary for her comfortable maintenance. Upon her death or remarriage the executors were directed to sell and convey the real estate and convert the personal property into money and out of the proceeds to pay a son $1,500 and to A. T. $800, and the balance to be divided between two sons. A. T. died during the life time of the widow. Held, that the legacy did not lapse by the death of A. T., in spite of a direction for a conversion at a future time and payment from such proceeds to A. T., but vested indefensibly under the present words of gift, “ I do hereby give and bequeath,” although possession and enjoyment were postponed.</p>

<p>Motion to compel an executor to account.</p>

<p>Distribution — Code Civ. Pbo., § 2732, Sub. 12 — Issue op Deceased Uncles and Aunts.</p> <p>Testator left only nephews and nieces, the issue of deceased nephews arid nieces, and the issue of deceased uncles and aunts. Held, that under sub. 12 of sec. 2732 of the Code of Civil Procedure, as amended by chap. 319, Laws 1898, the issue of the deceased uncles and aunts took by representation the shares which their ancestors would have taken if living and were therefore entitled to be cited.</p>

<p>1. Will — Execution—Must be Declared to be a Will.</p> <p>Where one of the subscribing witnesses cannot be found, testimony of the other, a French woman, examined by commission, that the decedent subscribed the will in the presence of both witnesses, and requested her to sign the “ instrument ” as a witness, that she so signed and saw the other witness sign, but that she is positive that decedent did not declare that the instrument was her will, at least not in the French language, and that witness did not understand English, and testimony by the husband that he was present and he asked the missing witness to sign the “ instrument,” and that neither he nor the decedent informed the witnesses that it was a will, probate will be refused, even though the attestation clause was in proper form.</p> <p>2. Same — Force of Attestation Clause.</p> <p>When supported by other proof, the attestation clause becomes very important, but the formal proof may not be presumed from the attestation clause alone and against positive credible testimony.</p>

<p>Proceedings on judicial settlement of executors’ account.</p>

Application to vacate a decree settling the accounts of an administrator with the will annexed, on the ground of fraud and jurisdictional error.

<p>Application for a decree on report of referee granting application for a sale.</p>

<p>Statute of Limitations — Trustee.</p> <p>The statute does not run between the beneficiary and trustee of an express trust; unless there has been a distinct disavowal or repudiation of the relationship by the trustee, but such disavowal must be established by the evidence.</p>

<p>1. Will — Execution of — Testamentary Capacity.</p> <p>Where a prior will, made while testatrix was in good health, and under circumstances of deliberation and care, is sought to be overthrown by a later will, in hostility to the provisions of the first instrument, and made while the testatrix was on her death bed, weakened by disease, the court will enquire most minutely into all the concomitant circumstances touching the execution of the second instrument; and will require the proponent to clearly show that the testatrix was fully cognizant of her acts and reflected her intentions in the will offered for probate.</p> <p>2. Same.</p> <p>Testatrix, in 1890, in possession of all her faculties, willed her entire estate to her husband. Un 1894, in a state of enfeebled health, twelve days before her death, she, in the absence of her husband, made a will dividing her property between her brothers, sister and husband, appointed her brother sole executor and directed that if any beneficiary contested the will his share should go to the others. Held, that upon consideration of the entire evidence the court was not satisfied that decedent was competent to make the second will and probate would be refused.</p>

<p>Decedents’ Estates — Contributions to the Family Support Presumed Gratuitous as Between Son and Deceased Mother.</p> <p>Where the proof in regard to an unmarried son’s claim against his mother’s estate is that, while living during several years with her and the other children in the family relation, he used a considerable portion of his earnings for the general support, there is no presumption that his contributions were to be regarded as debts to be repaid him by his mother, and, in the absence of satisfactory proof of her express promise to that effect, he cannot recover of her estate.</p>

<p>Witt — Testamentary Capacity — Subsequent Insanity.</p> <p>Where the proof offered on behalf of the proponents by witnesses of standing and character show that testator had full testamentary-capacity and was of sound mind on May 9th, 1886, when the will was executed, the fact that he became insane July 26, 1887, and so remained for ten years until his death, does not prove that he was incompetent when he executed the will.</p> <p>Affd. 48 App. Div. 83.</p>

<p>Motion to vacate the appointment of a transfer tax appraiser.</p>

Proceedings in the Surrogate’s Court of Otsego county, for the judicial settlement of the accounts of the executor of the last will and testament of Caroline Counrod, deceased.

<p>Exceptions to referree’s report.</p>

<p>Proceedings upon an accounting by a substituted trustee.</p>

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

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

<p>Appeal from a decree, entered upon the report of an appraiser, appointed under the Transfer Tax Act.</p>

<p>Wile — Legacy—bio Priority Among General Legacies.</p> <p>Testatrix disposed of her residuary estate with much detail and made five bequests of $2,000 each to sets of grandchildren, directing her executors to pay the “ following bequests in the order named in my will.” Bold, that no set of legatees had preference over the other, there being no strongly and unequivocally expressed intention of testatrix’s intention to create such preference.</p>

<p>Proceedings upon probate of a will.</p>

<p>Will — Trust where no One Presently Able to Receive and Administer Estate Void.</p> <p>Where a resident testatrix, dying in 1877, bequeathed the remainder in a fund to “ the selectmen! or other municipal authorities of the East Parish of the town of Barnstable, Mass., in trust, to apply the income in their discretion for the relief of respectable native-born persons in reduced circumstances in said parish, who are not wholly dependent upon the town or parish for their support,” and it appeared that there are no such officers as the selectmen of the parish mentioned, the bequest is void under New York decisions, even though, under the law of Massachusetts, a trustee might have been appointed to administer the gift.</p> <p>Affirmed 48 App. Div. 624; see note.</p>

<p>Proceedings upon the settlement of the accounts of trustees.</p>

<p>Will — Bequest to Corporations — Laws of 1848, Chap. 319, § 6.</p> <p>Corporations organized by special acts of the legislature, in the absence of express words, are not subject to the rest fictions of section 6 of chapter 319, Laws of 1848, preventing them from taking where decedent died within two months of the execution of the will.</p>

<p>Contempt — Administrator’s Failure to Pay Special Guardian Excessive Allowance — Code Civ. Pro., § 2555.</p> <p>Where an administrator, as such, is directed by the surrogate to pay an allowance to a special guardian in excess of the statutory costs, and not out of the infant’s share and it appears that there were no funds of the estate from which payment could be made, his failure to so pay is not contempt under section 2555, Code Civ. Pro.</p>

<p>Executor — Claim: by, Against Decedent for Board — Evidence Insufficient.</p> <p>Executor, a nephew of testator, on his final accounting, presented a bill for two years’ board of his uncle, founding his claim on the testimony of his son that when claimant invited the uncle, who believed himself to be destitute, to make his home with him, he said to him, “ You need all that you have got to take care of you, and you let everything go just as it is, and then when you are done, then if there is anything left I want my pay.” During the two years executor never presented a bill, nor did the uncle pay anything except that he did promise to pay for his washing. Meld, that under all the circumstances the express promise to pay was not supported by sufficient evidence and the facts did not justify a recovery under an implied promise.</p>

By the fifth clause of the will of the testatrix she bequeaths to Brownell Tompkins the sum of $6,000, in trust, nevertheless, to invest the same and keep the same invested in good interest-hearing securities during the term of the natural life of her son, Edward Pason Clark, and to apply the income arising therefrom to the personal support, maintenance and comfort of her son during the term of his natural life.

<p>1. Transfer Tax — Appraisal of Widow’s Life Estate — Laws 1887, Chap-. 713, §§ 2, 13.</p> <p>The widow of decedent, a life tenant under his will, died intermediate the death of decedent and the transfer tax appraisal. Held,. that the value of the widow’s interest should have been made in accordance with sections 2 and 13 of chapter 713, Laws 1887, and not measured by the term of its actual duration.</p> <p>2. Same — Value of Good Will — Shares in Publishing Association.</p> <p>The value of the good will of a newspaper is taxable. In estimating the shares in an unincorporated joint stock newspaper publishing association it is proper to include the value of the real estate used in, such business.</p> <p>Modified, 69 App. Div. 237. See note.</p>

<p>"Will — Probate—Proof of Subsequent Lost Will.</p> <p>Probate of a will refused where the execution of a subsequent lost will, revoking the former, is proved by the testimony of the attorney who drew and witnessed it, also by a draft thereof produced .by him, by the other attesting witness, who testified as to the contents of the will, and although its provisions in favor of a second wife, whom the testator had deserted, were entirely inconsistent with those of the prior will, executed five months previously, and beneficial only to a niece.</p>

<p>Jurisdiction — Trust—Surrogate Cannot Apply Surplus Income to Creditors op Beneficiary.</p> <p>Where a gift of income from a trust created by a will is made, and a surplus remains beyond what is necessary for the suitable support of the cestui que trust, an equity action may be maintained by a judgment creditor to reach this surplus, but a surrogate, being a court of special jurisdiction, has no equity powers as to directing the application of such surplus to the payment of debts.</p>

<p>Will — Execution of — Undue Influence.</p> <p>The mere fact that testatrix was not considered a very devout or religious woman, that she sometimes indulged in profane and irreligious language, does not prove that large charitable and religious bequests by her were made under any undue influence.</p>

<p>Proceedings upon application for letters of administration with the will annexed.</p>

<p>Proceeding upon the probate of a will.</p>

<p>Will — Revocation Clause Falls with Annulment of Probate — Code Civ. Pro., §§ 2647, 2652. .</p> <p>Where the court revokes a will, disposing of realty and personalty, as to the personalty alone, on the ground that it was not the will of the testator in respect thereto, the revocation clause in said will falls at the same time so far as relates to the disposal of personalty, made in a former will.</p> <p>See Matter of Keefe, cmte, p. 119.</p>

<p>1. Will — Testamentary Capacity — Use of Stimulants.</p> <p>Although testatrix indulged liberally in alcoholic stimulants, at times was largely under their influence, and died from ailments caused by such over-indulgence, such impairment of her physical condition did not affect her testamentary capacity where, during the greater part of the time, she was entirely in the possession of all her faculties, quite able to attend to the affairs of her household and the management of her business in an intelligent and capable manner, and especially at the time of the execution of her will.</p> <p>2. Same — Undue Influence in Procuring One’s Appointment as Executor.</p> <p>One who has made a purchase from testatrix, which proved profitable to him and detrimental to her, will not be charged with undue influence in naming her executrix of the will and appointing him executor, with a view to preventing or postponing any actions upon the part of her estate to cancel the contract, where it appears that the offer to sell was made by her through her own attorneys and that the executor had had no communication with her personally for about eleven years before she made her will.</p>

<p>Will — Undue Influence — Meretricious Relations.</p> <p>Meretricious relations are insufficient to prove undue influence, and where a prostitute bequeaths the greater part of her estate to her paramour, a married man, whom she describes as her “ husband,” the will will be probated where it was executed in due conformity to- law and with due testamentary capacity.</p>

<p>1. Transfer Tax — Gift to Take Effect at Death — Laws 1898, Oh. 908, § 220.</p> <p>Where a testator transferred stock in a corporation to his four daughters, who gave a power of attorney, irrevocable, to him to receive all dividends for the term of his life and the right to vote as though no transfer had been made, and subsequently testator and his daughters, in order to keep the control in the family, transferred the stock to testator and others in trust, who issued new certificates, but never actually delivered them, such transfers were “ intended to take effect in possession or enjoyment ” at the death of donor, and were therefore taxable under Laws 1898, ch. 908, § 220, sub. 3.</p> <p>2. Same — Where ho Market Value eor Stock.</p> <p>Where there is no market value for extremely profitable stock, which is not for sale, an appraiser may estimate its taxable value-upon the basis of the earning capacity of the corporation, its good will and the value of its secret recipes used in manufacture.</p> <p>3. Same.</p> <p>Where it is impossible for an appraiser to ascertain the market value by reason of the fact that there is none, the actual value will be presumed to be the market value until the contrary is shown.</p> <p>Reversed, 58 App. Div. 575. See note.</p>

<p>Appeal from a decree heroin entered upon the report of an apprasier appointed to assess the transfer tax.</p>

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

<p>Executor — Attorney’s Eees on Smaul Estate.</p> <p>The size of the estate must necessarily play an important part in fixing the compensation of an attorney for an executor. If attorneys, who receive large fees for their time and labor, care to engage in the litigation of a small estate they must be satisfied with correspondingly small remuneration. A charge amounting to one-half of an $8,000 estate reduced to one-quarter.</p>

<p>Trustees — Failure of, to Set Aside Principal to Produce Income fob Legacy.</p> <p>Decedent directed her trustees, who were her executors, to set apart such a sum as would yield an annual income of $250, to a sister, and upon her decease the sum to become a part of her residuary estate. They set apart $5,000, which was reduced by losses to $3,500. Held, that the gift was plainly one of income only, and in such a case the beneficiary may only have a remedy against the trustees on an accounting.</p> <p>Affirmed 47 App. Div. 625.</p>

<p>Applications for orders granting inspection of a document in possession of the temporary administrator.</p>

<p>Jurisdiction — Transfer Tax — Opening Decree — Code Civ. Pro., § 2481, Sdb. 6.</p> <p>A surrogate has no power by the statute, Code Civ. Pro., § 2481, sub. 6, to open a decree, assessing the transfer tax, for errors of law ‘made in treating the interest of a decedent in firm real estate as personalty, and in failing to make a deduction for mortgages existing upon firm personalty. Nor can such decree be opened by him for material errors of fact alleged to- have been made in appraising firm assets too high, and in not making a sufficient deduction for firm debts.</p>

<p>Application to vacate an order appointing an appraiser.</p>

<p>Appeals from an order fixing the transfer tax herein.</p>

<p>Executor — Expense or Unsuccessful Attempt to Probate Will.</p> <p>Where a will was admitted to probate, but the decree reversed in the General Term on questions unsettled and novel, it was the duty of the executor to have the matter presented to the court of last resort and he should be recompensed for his disbursements for counsel, etc., in that behalf, notwithstanding he was personally interested in the result, but the last circumstance should be taken into consideration in the amount allowed.</p>

<p>Appeal by the executors from the assessment and determination of the transfer tax.</p>

<p>Proceedings upon the probate of a will.</p>

Motion by a creditor whose claim was disallowed by the referee upon the accounting in this matter, and who, although cited, failed to appear, in the proceeding, for a rehearing.

<p>Appeal from a decree entered in a proceeding brought by the district attorney, compelling the payment of the transfer tax.</p>

Application to set aside letters of administration and the decree granting said letters upon the alleged ground that the applicant, by reason of his being the executor of a sole legatee, was vested with a right to letters superior to that of respondent by section 2660, Code of Civil Procedure, and should have been' cited in the proceeding to procure letters as required by section 2644 of said Code, which was not done.

<p>Application to revoke letters of administration.</p>

<p>Judicial settlement of the account of an executrix.</p>

<p>1. Decedent’s Estate — Statute of Limitations as to Sebvices.</p> <p>Where there has been no payment made on account of a claim for services rendered through eleven years, nor any such acknowledgment or promise as referred to in section 395, Code Civ. Pro., and no new agreement upon a sufficient consideration for the payment of the claim, so much thereof ag is for services rendered for a period terminating six years before the death of decedent is barred.</p> <p>2. Same — New Pbomise.</p> <p>Casual or passing statements made by decedent to claimant that when he should sell certain real estate he would pay her, there being nothing said by claimant that she would await the sale for the payment of the claim, are insufficient to prove a new and valid agreement, sufficient to take the case out of the statute,</p> <p>3. Same — Deposit in Savings Bank fob Husband and Wife.</p> <p>Where a decedent deposits money in a savings bank in his own name and that of his wife, with the intention that she shall take it if she survives him, she is entitled to it upon his death.</p>

<p>1. Transfer Tax — Bequest to Bishop.</p> <p>The exemption from the transfer tax of any property devised or bequeathed “ to any person who is a bishop ” under Laws 1896, ch. 908, § 221, as am’d by Laws 1898, eh. 88, covers a bequest to an archbishop or to the cardinal archbishop in his official capacity.</p> <p>2. Same — Practice.</p> <p>Before the surrogate has acted upon a transfer tax appraisers’" report he may send it back to him for the introduction of additional proof.</p>

<p>Proceedings upon probate of a will. The principal question herein was the validity of one of the bequests contained in said will.</p>

<p>Judicial settlement of the account of a temporary administrator.</p>

<p>1. Executors — Accounting—Trust Not Set Apart Unth, Accounting.</p> <p>Where executors neglected to pay over to themselves as trustees the principal of certain trusts created by the will of their testator, until about the time of their final accounting, the trusts cannot be charged with any part of the expenses of the principal incurred since the last accounting, nor be credited with any part of the net increase of the principal since the death of the testator, as these items must be deemed, respectively, debts and credits of the residuary estate.</p> <p>2. Same — No Commissions as Trustee on Trust Not Set Apart.</p> <p>Where the life beneficiary of a testamentary trust has died before the trust was formed, by the payment of the principal thereof by the executors to themselves as trustees, the executors are not entitled on their final accounting to trustees’ commissions on the principal.</p>

<p>Will — Testamentary Capacity — Paralytic Testatrix.</p> <p>Testatrix, who had had three paralytic strokes, bequeathed one-half of her estate to a paid nurse, who had been for six years devoted to her, and the other half, about $500, to her sons, who were self-supporting. She had been separated from her husband for seventeen years, hut had been supported by him. Held, that there was nothing to show that at the time of the execution of the will that the testatrix was of weak or unsound mind or incapable of making a will.</p>

<p>1. Reference — Who Liable for Stenographer’s Fees.</p> <p>Where the widow’s attorney did not appear before a referee until after a stipulation had been made as to the payment out of the estate of the stenographer’s fees, and did not in any way join in or become a party to the stipulation, she should not be called upon to contribute anything toward their payment.</p> <p>2. Same — Adjournments—Stenographer’s Fees.</p> <p>Four adjournments and one hearing were had before the stipulation was entered into. Held, that nothing should be allowed stenographer for the four adjournments, but as to the other adjournments, unless the parties could agree, the surrogate would take testimony in regard to the question whether due notice had been given the stenographer.</p> <p>3. Same — Stenographer Has Right to Apply for Payment.</p> <p>The surrogate may entertain an application by a stenographer to compel payment of his fees on a reference on accounting.</p>

<p>Proceedings upon the judicial settlement of the account of executors and trustees.</p>

<p>Application by executors for the issuance to them of letters testamentary.</p>

<p>Proceedings upon probate of a will.</p>

Proceedings upon probate of -a will. Decedent died possessed of one small house and lot valued at $6,000 and $1,400 cash in banks which he gave to his sisters. His brother and another contested the will on the ground of want of mental capacity.

<p>1. Taxable Transfers — Second Appraisal.</p> <p>Where property of decedent has been once honestly appraised at its fair market value as of the time of his death, and it is found that the amount appraised did not represent the entire property of the deceased, the new appraiser should confine himself to the newly-discovered property, and will not be permitted to institute a second-appraisal in order to collect a tax on a foreign newspaper enterprise and on pictures for which executor had since the first appraisal received sums much greater than was then estimated.</p> <p>2. Same.</p> <p>Nor will the State Comptroller be allowed on the second appraisal to show that the estimated deductions for debts were excessive as compared with the actual payments which have been made for debts.</p> <p>3. Same.</p> <p>Where there is a doubt as to the deductions for uncertain debts and claims, it is suggested that there might be an appropriate recital in the appraisers’ report and the order that the deduction so made is without prejudice to the right of the State to a further proceeding if it should afterwards appear that the items are not valid claims or are less than allowed.</p> <p>Affirmed 56 App. Div. 253.</p>

<p>Proceedings upon probate of a will. Motion that objections be overruled and will admitted to probate.</p>

<p>Will — Not Wholly Revoked by Trust Deed Unless Latter Executed Like a Will.</p> <p>A will cannot be wholly revoked by a trust deed containing a provision to that effect unless the deed was executed by the testator with the same formalities with which a will is required to be executed. The only exceptions to this rule are where revocation is effected by marriage and the birth of issue or by the subsequent marriage of an unmarried woman.</p> <p>Reversed 49 App. Div. 410.</p>

Proceedings upon judicial settlement of the account of an executor. Reargument of exceptions filed by the executor tó the referee’s report.

<p>Contempt — Release of Executrix from Confinement by Sheriff on Order of County Judge — Code Civ. Pro., § 2284.</p> <p>The act of a sheriff in releasing an executrix, who had been committed to his custody for a failure to pay distributive shares of her testatrix’s estate, upon a mere direction to discharge indorsed by a county judge upon the order of commitment, such indorsement having been made without notice of the proceedings to the parties interested in continuing the imprisonment and no habeas corpus proceedings having been taken, is wholly unauthorized and constitutes a contempt which is punishable by a fine under section 2284 of the Code of Civil Procedure.</p> <p>Reversed, 47 App. Div. 381. See note.</p>

This proceeding is brought by the petitioner, Clarence H. Barringer, under section 2716 of the Code of Civil Procedure, to compel Jacob Barringer and Theodore Barringer, administrators, etc., of Harriet S. Barringer, deceased, to file an inventory of the decedent’s personal property, as required by law.

<p>1. Attorneys — Common-Law Lien, on Legacies Decreed, in a Special Proceeding.</p> <p>Attorneys have a common-law lien upon legacies awarded to their clients in a special proceeding in the Surrogate’s Court, settling the accounts of an executor, and that court, as one of record, has power to enforce the lien and protect its officers.</p> <p>2. Same — Enforcement of Lien by the Court — Notice—Amount.</p> <p>Where attorneys have served the executor personally with a notice of their lien, and the value of their services has been thereafter fixed by a judgment (unsatisfied) recovered by them against the legatees, the Surrogate’s Court will, so far as is necessary to pay the judgment, vacate the legatees’ satisfactions of the decree directing payment to them and awarding costs to the attorneys, it appearing that the satisfactions were the result of a settlement made only by the parties themselves.</p> <p>3. Same — Statutory Lien Did Not Exist in a Special Proceeding Until September 1, 1899 — Code Civ. Pro., § 66.</p> <p>Prior to the amendment of section 66 of the Code of Civil Procedure, taking effect on September 1, 1899, an attorney had no statutory lien, in a special proceeding, upon his client’s claim.</p> <p>Reversed, 58 App. Div. 1. See note.</p>

<p>Temporary Administrators — Executors Charged with Undue Influence.</p> <p>The rule that the court should refuse to appoint an executor the temporary administrator of a decedent whom he is charged with having unduly influenced in the execution of his will, is not so absolute as to admit of no exception, and the majority of the parties in interest request it, where the executors are peculiarly familiar with the estate and where the charges, inferential and conjectural in their character, are denied by such executor, his appointment would not be improper.</p>

Proceedings before the surrogate of Rensselaer county by Julia Ann Curley, as administratrix of the estate of Rensselaer Rawson, late of Troy, FT. Y., deceased, for a judicial settlement of her accounts, and for a decree of distribution of the estate. She is also a niece of the deceased and claimed to be entitled to his estate in conjunction with other nephews and nieces.

<p>Executors and Administrators — Eeal Estate Cannot be Sold to Pay Expenses Of Administration.</p> <p>Eeal estate of a decedent cannot be sold to pay the expenses of administration nor to pay any debts which have been incurred by the administrator subsequent to the death of the decedent, except funeral expenses.</p>

<p>Tbansfeb Tax — Domestic Policies, on Life of Non-Resident, Held Without the State, Abe Not Taxable.</p> <p>Policies, issued by domestic life insurance companies upon the life of a non-resident of the State of New York, and which were not within its jurisdiction at the time of his death, are not subject to the transfer tax.</p>

<p>Application for letters of administration.</p>

<p>Proceedings upon probate of a will.</p>

<p>1. Executors and Trustees — Double Commissions Refused on Unsold Lands of Trust.</p> <p>Executors, given “ as trustees ” a residuary estate with a discretionary power of sale, directed to divide the estate into certain shares, and pay the income to certain beneficiaries for life, with remainders over, are not entitled to commissions on trust real estate which they had not sold up to the time of their accounting, as they had never had any absolute" title, the unsold lands passing to the remaindermen by force of the original devise.</p> <p>2. Same — Commissions on Income Lost if Paid Over.</p> <p>Unless a trustee retains his commissions on income which he pays over, he loses them.</p> <p>3. Same — When Executors Are Entitled to Commissions as Trustees.</p> <p>Double commissions may be allowed executors where their functions as such and as trustees are distinct; but the executors cannot be allowed trustees’ commissions until their first accounting as trustees.</p> <p>4. Same — Double Commissions Refused on Unexpended Income of Residuary Estate. ■</p> <p>Where a will contemplates that the income of the residuary estate shall be received by the trustees directly and never be held by them as executors, they are not entitled, when accounting as executors, to double commissions on unexpended income in their hands.</p>

<p>Proceedings upon a final accounting by an executrix.</p>

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

<p>Proceedings upon probate of a will.</p>

<p>Jurisdiction — Will—Residence or Decedent.</p> <p>A testator had been a resident of Piermont, Rockland county, up to March, 1894. He went to New York city and boarded there for little more than a year at his wife’s expense, she being unwilling to live with him in Piermont because of his intemperate habits, and refusing to do so until he had reformed. He did not reform and she brought an action for a separation in April, 1895. In that month he left New York city and went to New Jersey and from there to Piermont, where he died in October, 1895. His typewritten will, dated April 27, 1895, described him as residing in the city of New York, but in two assignments of a trust fund, which it was in part the purpose of the will to secure, and in two accompanying affidavits, executed in February and April, 1895, he was described as of Piermont and that place was stated in the affidavits as his permanent residence.</p> <p>Held, that he was, at the time of his death, a resident of Piermont and not of the county of New York, and that hence the surrogate of New York had no jurisdiction of his will.</p>

Application to sell real estate of decedent and also application to distribute the surplus arising under a sale in partition of the real estate of said decedent.

<p>Transfer Tax — A Transfer of United States Bonds is Taxable.</p> <p>A transfer of United States bonds which took place after March 21, 1898, the date on which chapter 88 of the Laws of 1898 took effect, is taxable, although the bonds were issued under an act which provided that they should be exempt from taxation by the United States and “ from taxation in any form by or under State, municipal or local authority.”</p> <p>The State of New York has power to tax the transfer itself.</p> <p>Affirmed, 47 App. Div. 625, 161 N. Y. 631.</p>

<p>Will — Testamentary Capacity — Undue Influence.</p> <p>Proof that an aged woman, comparatively ignorant and without known relatives, while under the influence of stimulating hypodermic injections, executed a will about an hour before her death by making •a cross-mark as she was too weak to write, that this will was entirely :at variance with one which she had made eleven years before in favor ■of a “ socalled ” sister, with whom she was still on friendly relations, that by the last will she gave all her property to her nurse and to a female doctor of questionable character who was living in the same house, coupled with the opinion of two experts that" the testatrix was incompetent to make a will, present a case where the proponents have failed to prove testamentary capacity and have not repelled the presumption of fraud or undue influence arising from the quasi confidential relations.</p>

<p>1. Dower — Additional Provisions.</p> <p>The law favors dower and unless dower is absolutely repugnant to the terms of a will, additional provisions, made for the widow in the form of an income for life, do not put her to an election as she is entitled to both.</p> <p>2. Legacy — General, Not Chargeable on Realty.</p> <p>Where there is nothing in a will to indicate that a testator intended to charge upon his lands a general legacy to his niece, the legacy is not so chargeable.</p>

<p>Proceedings upon judicial settlement of the accounts of executors.</p>

Application by the trustees for the purpose of having the transfer to the children of a deceased daughter, which took effect upon her death, declared exempt from the transfer tax.

<p>Proceedings upon the judicial settlement of the accounts of an executor.</p>

This matter comes before the court upon a petition by William J. Morgan, Comptroller of the State of Few York, for an order that the executor of the last will and testament of Alfred Fulton, deceased, show cause why a decree made and entered herein on the 23d day of May, 1899, appraising, assessing and determining the transfer tax upon the legacies and inheritances created by and under the provisions of said last will and testament, should not he vacated and set aside, and…

In this estate, a compulsory accounting was had at the instance of the executors of one Elizabeth Carter,- who claimed to be creditors of the estate of George R. Baldwin by virtue of a judgment… Held: be set up collaterally, and it reversed the surrogate’s decree, “ with costs to the said appellant.” From this order of reversal an appeal was taken by the petitioning executors to the Court of Appeals.

<p>Gift Inter Vivos — Undue Influence of Nephew and Advisee.</p> <p>Where the nephew of an aged woman, upon his accounting as her executor, claims that she gave him a considerable share of her personal estate at a time when she was living with him and he was acting as her adviser, the burden is upon him to prove, by the clearest evidence, that the gifts were complete and absolute, and that they were not made by her under undue influence upon his part, as the presumption of law is against their validity.</p> <p>Affirmed, 54 App. Div. '629.</p>

<p>Executors and Administrators — Liability of a Cosurety on an Administration Bond to Another Surety and Sole Distributee.</p> <p>Where an illiterate administratrix permits her coadministrator, a banker, to control the entire administration of the estate, sureties, on the official bond of both, are liable to the administratrix, as sole distributee, for moneys of the estate which the administrator deposited in his own private bank and kept there during a whole year when he was insolvent, and until his bank failed upon his making a general assignment.</p>

<p>1. Experts — Judicial Criticism of, when Inapplicable.</p> <p>Judicial criticisms, unfavorable to handwriting experts, should not be given controlling force, where the- testimony of the experts tends-to support the inference, as to genuineness, drawn from the surrounding facts, as well as to support the impressions of the lay mind.</p> <p>2. Same — Experts as to Handwriting.</p> <p>An opinion, as to handwriting, should depend, not so much upon mathematical measurements and minute criticisms of lines, or their exact correspondence when placed in juxtaposition with other specimens, as upon the general character and features of the handwriting— ■ as would be the case in a recognition of the human face.</p> <p>Affirmed 47 App. Div. 643.</p>

<p>Will — Construction of “Heirs,” in a Residuary Bequest in a Holographic Will.</p> <p>Where a holographic will makes pecuniary gifts to relatives of the testator’s own blood and also to relatives of the blood of his wife, and further provides that any excess, over his bequests, shall be paid proportionately “ to all heirs herein named,” the word “ heirs,” in a residuary clause directing that estate “ to be divided on a percentage basis in proportion to the bequests of all heirs herein named in this will and testament,” will be construed to entitle all the legatees to share, whether they were of his own blood or of that of his wife.</p>

Application by trustee for leave to resign bis trust, and to have his accounts judicially settled. Exceptions to referee’s report.

<p>Application for an accounting.</p>

<p>Proceedings upon the judicial settlement of the account of an executrix.</p>

<p>Proceeding to set aside an order of adoption made herein by the county judge of Erie county on the ground that the foster-parents are not proper persons to have the care and custody of the child.</p>

Jane H. Sherman died in September, 1898, leaving a last will and testament by which she bequeathed all of her property. The appraiser appointed by the surrogate to determine and ■assess the transfer tax upon this estate reported that the remainders created by the twenty-fourth clause of the will were ■exempted from taxation and an order confirming said report was entered by the surrogate.

<p>1. Trust — Statute of Limitations.</p> <p>Where trust duties are continuing, the Statute of Limitations does not begin to run until the trustee, or person occupying a fiduciary relation, has openly repudiated the duties and brought notice of such repudiation to the beneficiaries.</p> <p>2. Same — Proceeding bt Administratrix with Will Annexed to Procure Corpus for Distribution.</p> <p>Where an administratrix with the will annexed, of a testatrix who-had created a trust, claiming as a legatee herself as well as for other legatees, brings a proceeding against the administrator of the life beneficiary to compel payment of the corpus which had been in the possession of the life beneficiary and was transferred by him to the person who became his administrator, the Statute of Limitations does not begin to run in favor of the life beneficiary or her estate until an administrator thereof has been appointed nor until the administratrix has been appointed as such.</p> <p>3. Same — Administratrix Mat Distribute Corpus where the Trustees Have Died.</p> <p>Where all that remains to be done, in regard to a testamentary trust originally reposed in executors who have since died, is to pay over the corpus to those entitled, an administratrix with the will annexed of the testatrix may make the payments.</p> <p>4. Same — If Executed as a Trust, Does Hot Vest in the Supreme Court.</p> <p>A trust does not, upon the death of the original executors and trustees, vest in the Supreme Court where it was fully executed as a trust in their lifetime.</p> <p>5. Citation- — Waiver of Issuance and Service Before 1896.</p> <p>Prior to 1896, issuance and service of a citation to account might be waived without a writing and must be deemed to have been waived where the accounting party appeared voluntarily by an attorney and thereafter proceeded with the accounting.</p> <p>6. Costs — Charged Against Administrator Personally.</p> <p>Where the administrator of the life beneficiary of a trust, in possession of the corpus, urges technical objections. against a proceeding to compel him to account therefor, the court will charge him personally with the costs of the proceeding.</p>

<p>Application for the payment of certain legacies under the will of said deceased.</p>

<p>Appeal from an appraisal under the Transfer Tax Act imposing a tax upon the property of said deceased.</p>

<p>Death — Circumstantial Evidence that a Testatrix Perished in a Eire — Will.</p> <p>Circumstantial evidence deemed sufficient to prove that a testatrix perished in a hotel fire, although the remains of all the victims of the fire were so completely consumed as to be incapable of identification.</p>

<p>1. Decedent’s Estate — Sale of Real. Estate to Pat Decedent’s Debts • — Liability of' Estate of Devisee fob Debts of Her Devisor — Code Civ. Pro., § 1843 — Parties. . '</p> <p>Where three' years have elapsed since letters were issued under the will of a testator, his sole devisee and executrix becomes personally liable, to the extent of the estate effectively devised to her, to his creditor for a debt of the testator arising by simple contract; and, consequently, where the sole devisee dies and her administratrix applies for leave to sell her real estate to pay her debts, the creditor is entitled to be made a party to the proceeding and prove his debt therein.</p> <p>2. Same — Admissions of Deceased Devisee as Shown by Heb Books.</p> <p>Semble, that, where a sole devisee continues to conduct the business of her testator, and keep the same books, in the same manner as if he were living, entries in the books, in favor of the testator’s creditor with whom she had continued to deal, are provable and sufficient as admissions of her liability for the testator’s debt.</p>

<p>Appeal by the Comptroller of the State of Hew York from the determination and order of the surrogate of Broome county .in fixing and assessing the transfer tax on the estate of Horace H. Crary, deceased.</p>

<p>T. Reference — Rights Under Notice of Election to Terminate, when Not Waived — Code C. P., §§ 1019, 2546.</p> <p>A party to a reference, ordered in an executor’s final accounting, has a right to terminate it where the referee does not file or deliver his report within sixty days from the final submission of the matter; and where the party has duly and properly served a notice of his election to terminate the reference, his right to object to the report as invalid is not affected by his filing exceptions to it, nor by a subsequent order, made without notice to him upon the substitution of the testatrix of a party who had died pending the proceedings, by which the reference was attempted to be revived and the referee directed to report with all convenient speed.</p> <p>2. Same — Costs and Fees on Vacating Report.</p> <p>Upon vacating the report, the surrogate refused all fees and costs, except fees to the stenographer and costs to the executor for preparing his account.</p>

<p>Accounting — Consolidation of Compulsory and Voluntary — Code O. P., § 2727. . .</p> <p>Where petitioners for a compulsory accounting by executors, and the executors themselves, stipulate in writing that the time of the executors to file an account be extended to a certain date, and before that date the executors petition for a voluntary accounting, the fact that no formal order was made,. on the return of the order to show cause, adjourning that proceeding to a day certain, does not preclude the surrogate from consolidating both proceedings on the return of the citation procured by the executors, and this should be done in the interest of convenience and economy where the parties and the fund are the same in both proceedings.</p>

<p>Proceedings upon probate of a will.</p>

<p>Objections on behalf of the State Comptroller and County Treasurer to the report of an appraiser, appointed under the Transfer Tax Law to appraise the taxable estate of the deceased.</p>

<p>■ Proceedings upon the judicial settlement of the account of an executor.</p>

<p>1. Transfer Tax — Property Adjudicated, After First Appraisal, to Belong to a Decedent’s Estate.</p> <p>The surrogate has power under the Tax Law (L. 1896, ch. 908, § 230) to order a further appraisal where personalty, not taxed on the first appraisal because claimed by a daughter of the decedent as having been assigned to her by her mother, is subsequently, at the suit of the only other child, adjudged to be a part of the decedent’s estate.</p> <p>2. Same — Effect of Failure to Tax Known Property — Final Adjudication.</p> <p>Where a surrogate, knowing of the existence of personalty, does not tax it, there is a determination that it is not taxable, which becomes final where there was no appeal from the order of taxation and it has stood for five years.</p> <p>3. Same — Subsequent Adjudication Permitting Will to Operate on the Whole Estate — Appraisal Delayed.</p> <p>Where, however, the subsequent adjudication vacates the assignment to the daughter and permits the will of the decedent to operate on her whole estate, personalty not taxed on the first appraisal becomes taxable, and the contention of an exemption by a prior adjudication has no force. Upon proof that an appeal has been taken from the said adjudication, the surrogate directed the new appraiser to suspend action until the litigation had been finally determined.</p>

<p>Will — Construction—Implied Residuary Bequest.</p> <p>A will, drawn by an illiterate draftsman and executed by an illiterate testatrix, containing a disposition reading: “Give and bequeath all my personal property such as bed and bedding, etc., to the St. Joseph Hospital for the use of the poor in said institution — and I further give and bequeath all such moneys that may be left after the other bequittals are paid off and discharged,” is to be construed as conveying to the St. Joseph Hospital not only the bed, bedding, etc., but also all the residuary personalty of the testatrix, it being her evident intention not to die intestate as to any part of her peronalty.</p>

<p>Proceedings upon probate of a will.</p>

<p>Proceedings upon probate of a will.</p>

<p>Proceedings upon the judicial settlement of the accounts of a guardian.</p>

<p>1. Transfer Tax — Statute of Limitations.</p> <p>The transfer tax is laid upon the devolution of property and not upon the property itself, and, therefore, neither the two year nor six year Statutes of Limitation are a defense to a proceeding to collect the tax.</p> <p>2. Same — Discharge of Executors in Foreign State Does Not Preclude Subsequent Appraisal.</p> <p>The fact that the executors of a non-resident decedent have already been discharged in the State of his domicile, does not affect the jurisdiction of a surrogate to entertain a proceeding brought by the State Comptroller to tax taxable assets of the decedent located in the State of New York which have never been taxed.</p> <p>3. Same — Former Adjudication as to Realty Tax Does Not Preclude Appraisal of Untaxed Personalty.</p> <p>An adjudication in this State relative to the transfer tax, expressly limited to real estate, is not a bar to a subsequent proceeding brought by the State to tax personalty not disclosed on the first appraisal.</p> <p>4. Same — Taxable Pensonalty of Non-Resident.</p> <p>Shares held by a non-resident decedent in domestic corporations and his interest in firms doing business in the State of New York are taxable upon the second appraisal. *</p> <p>Revd. 56 App. Div. 479.</p>

<p>Administration — Presumption of Death — Evidence.</p> <p>Where a person has emigrated from a foreign country, without intending to return there, a presumption of his death does not arise until inquiry has been made for him at his last known place of residence in this country.</p>

<p>Proceedings upon the judicial settlement of the account of an administrator.</p>

<p>Proceedings for the judicial settlement of accounts of administrators.</p>

<p>1. Administration — Charged with Interest on Funds of Estate Deposited in His Private Bank.</p> <p>Where an administrator, conducting a private bank, deposits therein funds of the estate of his intestate and places them to the credit of said estate, he is in the same situation as an individual who’ mingles estate moneys with his own and is therefore chargeable with interest.</p> <p>2. Same — Protected in Holding Bank Stock for Several Years.</p> <p>An administrator protected in holding dividend-paying bank stock of his intestate for three or four years and until it had depreciated considerably.</p>

<p>Transfer Tax — Debt Due Non-Resident Decedent from Non-Resident" Creditor, and Payable in a Foreign State, Not Taxable.</p> <p>A debt due a non-resident decedent from a non-resident debtor, who merely did business as a banker in the State of New York, and payable in the foreign State of the common residence of the parties, is not subject to the transfer tax.</p> <p>The fact that at the time of the decedent’s death there was a balance in- her favor on the books of the debtor in New York city, does not make that balance taxable, it appearing that the decedent had no voucher for it and never had drawn checks upon it.</p>

<p>Proceeding in the nature of an inquiry respecting the property of decedent.</p>

<p>Executor — Proceedings to Recover Property Withheld from — Code C. P., § 2707 — Decree Cannot Determine Title.</p> <p>A corporation, which has been the banker of a decedent, and from time to time has had the custody of assets which he deposited with it as security for loans, may be required, under section 2707 of the Code of Civil Procedure, to disclose to the executor what those assets were, although it has parted with the possession of them.</p> <p>The decree in such a proceeding may determine possession, but cannot determine title.</p>

<p>Proceedings upon the probate of a will.</p>

<p>Decree, Denying Probate to a Codicil, Conclusive, as to Personalty, Upon One Not Eequibed to be Cited and Who Did Not Appear— —Code C. P., §§ 2626, 2617.</p> <p>Under section 2626 of the Code of Civil Procedure, a decree denying probate to a codicil, made upon notice to all the parties required to be cited, is conclusive as to the personalty of the testator, not only upon the parties cited, but also upon a person who had an interest in establishing the codicil but was not cited and did not appear voluntarily. This construction is not affected by the provisions of section 2617 of said Code.</p> <p>Affd. 56 App. Div. 277.</p>

<p>Transfer Tax — Shares of Brother and Sister, Less than $10,000, Nor Taxable, Although Personalty Exceeded $10,000.</p> <p>Where the shares, in the personalty of a decedent, of a brother and sister aggregate less than ten thousand dollars, their shares are not subject to the transfer tax although the personalty of the decedent, which might be subject to tax, exceeded ten thousand dollars.</p> <p>Bevd. 55 App. Div. 124, 171 N. Y. 516. See note.</p>

<p>1. Executor and Administrator — Not Chargeable with Legal Interest on Moneys He Deposited in a Bank of which He was s Stockholder.</p> <p>An executor, who kept money of his estate for two years or more in a bank in which he was a stockholder, director and cashier, will not, at the instance of legatees, be charged with legal interest on the fund or with any more interest that it earned, where no objections to his conduct in thus making the deposit were made until his final accounting and where the legatees had not demanded of him payment of their legacies.</p> <p>2. Same — -Form of Assessment of Taxes on Estate Personalty.</p> <p>An executor should be allowed a payment, for taxes upon the personalty of his estate, made under an assessment in the form “ Bead, James C. Est., Henry Sudds, Adm. Personal, $-,” as, rejecting the words “ Bead, James C. Est.” as surplusage, the form of the assessment is sufficient under the Tax Law (L. 1896, ch. 908, § 32).</p>

<p>Proceedings upon the judicial settlement of the accounts of an executor.</p>

<p>Petition for probate of the will of Lulu Y. De Castro, deceased.</p> <p>Objections were filed on behalf of Jennie W. Jetter, an infant and heir-at-law and next of -kin of said deceased, on the usual grounds; among others “ That at the time the said instrument was signed the said Lulu V. De Castro did not know or understand the contents thereof.”</p>

<p>Foreign Judgment — Presumption of Jurisdiction — Transcript of Judgment of Inferior Foreign Court Dockpted in Court of General Jurisdiction — Inquiry into Jurisdiction,</p> <p>Where a foreign statute declares that where a transcript of a judgment of an Alderman’s Court, a court of limited jurisdiction, is filed in the office of the prothonotary of the county, the judgment docketed thereon shall have the force and effect of a judgment of the Court of Common Pleas, a court of general jurisdiction, and no statute or decision of the foreign State is produced showing what presumption attaches in that State to a judgment docketed under that statute, a court of the State of New York must presume that jurisdiction of the person existed by virtue of the docket of the judgment in the Court of Common Pleas, although the return of the constable, who served the summons in the Alderman’s Court, fails to show such jurisdiction; and hence, the burden is upon one, representing the estate of the debtor since deceased, and who resists payment of the judgment, to show affirmatively that such jurisdiction did <not exist.</p> <p>This he may do, notwithstanding the constitutional provision that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of any other State.</p>

<p>Husband and Wife — His Eight to Heb Personalty, whebe She Leaves no Descendants and Dies Intestate as to Heb Whole Estate, Except a Life Intebest Willed to Him.</p> <p>Where a wife, leaving no descendants, dies intestate as to her whole estate except that she wills the use of it to her husband for life, he takes all her personalty, the life estate by virtue of her will and the remainder by virtue of his marital rights.</p>

<p>Application to vacate and resettle an order.</p>

<p>Revocation of Will — “Pebson Interested.”</p> <p>Where a testator leaves a son as his only heir and next of kin and by his will creates a trust in personalty for his own sister for her life, and she, after the death of the son testate, duly institutes proceedings to revoke the will which created the trust for her, her administrator cannot, after her death, continue the proceedings, as he is not a “ person interested ” in the estate of the said testator within sections 2514, subdivision 11, and 2647 of the Code of Civil Procedure.</p>

<p>Appeal from an order fixing the tax under the Transfer Tax "Law.</p>

<p>1. Decedent’s Estate — Sale of Land fob Debts — Delay in Issue of Citation.</p> <p>A proceeding to sell the land of a decedent for the payment of her debts, begun within three years from the issue of letters by the filing of a petition, does not lapse because of the failure, for more than four years thereafter, of the moving parties to procure the issue of a citation.</p> <p>2. Will — Debts Not Charged on Realty.</p> <p>A will, which contains no reference to debts or creditors beyond a provision that “ after the payment of my debts and funeral expenses I give, devise,” etc., and which' contains no power of sale, does not charge the debts of the testatrix upon her real estate.</p>

<p>Appeal from a decree of the Surrogate’s Court, entered upon the report of an appraiser, assessing the transfer tax.</p>