Volume 1 — Power's Surrogate Reports

<p>Judicial Settlement.</p>

Application to reduce amount of guardian’s bond. In October, 1887, William Patterson, of Albany, was appointed the general guardian of the above named minor. The penalty of the bond given by him, based uuon the rental value of certain real estate owned by the minor in the city of Yonkers, and of his personal estate, valued at $600, was fixed at $2,100. He filed such bond with the Fidelity & Casualty Company of the city of Eew York as surety.

Testator William Tobin died May 26, 1889. At the time of his death there was in the Newburgh Savings Bank an open account in the names of “William and Catherine Tobin,” amounting to $402.41. Catherine Tobin was the wife of William Tobin. Both had independent sources of revenue sufficient to account for the half or the whole of the account. William was a soldier in the employ of the government and was stationed at West Point.

, 1890. From statement of counsel it appears that on the 31st day of August, 1883, the deceased executed a will, but subsequently transferred all his property, so that, apparently, no property remains to pass by the will. The petitioner, desiring to attach the transfer, asks for the appointment -of a representative of tire estate, so that he may bring suit for that purpose.

<p>1. Will—Proof—Legacy to draftsman.</p> <p>Where a testator has that mental and physical vigor which is essential to make a valid will, it is not the law that the draughtsman of a will, even if he holds confidential relations to the testator, cannot be his executor or take a legacy thereunder, nor can fraud be presumed where the will contains such provisions, nor evidence be required to show that it was made freely, without fraud or undue influence.</p> <p>2. Same—Undue influence—Confidential relations.</p> <p>A mere agency to transact business in relation to investments in another State, where the principal takes little or no part in its management, does not create business relations of that confidential character from which will ordinarily arise any legal presumption of undue influence in the making and execution of a will drawn by the agent and containing a legacy to himself.</p> <p>S. Same—Evidence.</p> <p>On probate of a will, it need not be shown that the testator 'gave directions for making it, or that it was read to or by him. Knowledge of its contents will be presumed from his having signed it, and his declaration that it is his will.</p> <p>4. Same.</p> <p>Testatrix, who had no ancestors or descendants surviving, by her will, gave to certain nephews and nieces, with whom she had little communication, legacies of $500 and over, and the balance of her estate to a nephew who drew her will, his adopted son and grand-nephews and grand-nieces, children of a niece, share and share alike. Held, that the inequality of the legacies did not show undue influence, and that the will should be admitted to probate.</p>

Proceedings by Joseph S. Wood to revoke letters of administration c. t. a. of Samuel Wood, deceased, issued to Jennie E. Wood, and that same be issued to applicant, on the ground that he was named as a legatee in the will, but that she was not expressly named as a legatee, although she took an interest under the will.

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

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

<p>Will—Pkobate—Libelous clause.</p> <p>A will should not be permitted to be made a vehicle for libel or contumely, and when such design plainly appears from the context, such matter, in so far as it is not dispositive, should be refused probate and record.</p>

This is a proceeding to mortgage ,lease or sell the real estate of the deceased for the payment of his debts. Jacob H. Snyder, administrator of the goods, etc., of Jacob A. Snyder, deceased, presents a claim for the sum of $1,500, with interest thereon, on two promissory notes for $600 and $900, respectively, to which claim the heirs at law interpose the defense of the statute- of limitations.

This is an application by Ellen O’Brien, Francis O’Brien and Mary Kate O’Brien, three of the five children of William F. O’Brien, deceased, for the revocation of letters testamentary issued to Thomas O’Brien and Charles McCarthy, executors under the will of s'aid deceased. The application is resisted by the executors. The will was admitted to probate on the 15th day of August last, and said executors qualified and letters testamentary were duly issued to them.

<p>Application for decree to issue execution to sell lauds of decedent.</p>

Probate of will. Two wills are presented for probate; the first of which is dated July 2, 1888, with a codicil dated July 2, 1890, in which Eugene F. Barnes and Albert 0. Barnes are named as executors, and the second is dated July 22, 1890, in which Georgianna R. Green is named as sole executrix.

The report of the appraiser was overruled by the surrogate in the following opinion: Ransom, S. The appraiser has reported that the property to which the wife and children of testator became entitled vested at the time of the execution and delivery of the deed, and passed by such deed and not by his will; that the time of such vesting being before the act of 1891, the deed is not affected thereby, and, consequently their interests are not subject to the payment of the tax…

<p>Executor—When he should give bond as surviving partner.</p> <p>It having been provided by articles of copartnership that on the death of one of two partners, the surviving partner might agree with the representative of the decedent as to the continuation or sale of the business, held, that as, on the death of one of the partners, the only executor who qualified was the surviving partner, and as he could not therefore agree with himself as to the matters mentioned in the articles, he should, pending an appeal by him as to the amount due to the estate by the firm, give bond, under Code Civ. Pro. sec. 2687, subd. 3, for the funds (representing decedent’s interest in the firm) retained by him as executor, the testator’s widow and one of the petitioners having consented to such retention' pending the convenient winding up of the business.</p>

<p>1. Will—What is a sufficient execution.</p> <p>A will will be admitted to probate when the testator sent for the subscribing witnesses to come to his house to witness the execution, and he was explicit in his declaration that it was his will, and in his request to them to sign as witnesses, and one of the witnesses was explicit in testifying testator signed the will in their presence, although the other witness had no definite recollection, but had an impression it was not signed by testator in their presence, and that he did not observe his signature—ten years having elapsed from its execution and the latter witness having written the date of the will immediately preceding the signature of the testator, thereby allowing the assumption that so important an omission as the absence of testator’s signature would have attracted his attention.</p> <p>2. Same—Proof of execution by inspection.</p> <p>When there was a doubt as to whether testator executed a codicil to his will in substantial compliance with the statute, and both witnesses testified that testator said the paper he produced was a codicil to his will and asked them to subscribe as witnesses, which they did in his presence, held, that as an examination of the instrument showed that the signatures were all written with the same ink, and apparently at the same time, the codicil should be admitted to probate.</p> <p>3. Will—Construction—Uncertainty of beneficiary.</p> <p>A bequest to “ the heirs of ” a deceased daughter is not void for uncertainty as to the beneficiary.</p> <p>4. Same—Provision as to monument.</p> <p>The will in question directed that after payment of debts the balance and remainder of the estate, r.eal and personal, should be expended in the building of a monument and a suitable fence and fixtures. Held, that this was no more than a direction to his executors to set apart a reasonable portion of the estate, suitable to testator’s station in life, for that purpose.</p>

<p>Settlement of the account of the executor of the will of John Hildebrand, deceased.</p>

<p>Petition for the probate of a decedent’s will, executed while he was a patient in a hospital.</p>

Petition for the probate of decedent’s will. It appeared that two persons interested in the proceedings were non-residents of the State, and service of citation was ordered to be made either personally without the State or by .publication. The service was made personally, however, within the State, thirty days before return day.

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

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

<p>1. Surrogate’s Court—Decision—Findings.</p> <p>An irregularity in the decision of a surrogate by reason of its failure to state separately the facts found and conclusions of law is waived by a failure of the aggrieved party to take an appeal and avail himself of his rights under section 2545 of the Code.</p> <p>2. Same—Laches.</p> <p>Motion to vacate the decree on the ground of a failure to file find'ugs of facts and conclusions of law cannot be made after the expiration of one year.</p> <p>Motion to- set aside the decree settling the executor’s accounts.</p>

Upon the return of citations Hudson B. Farrington appeared and presented a claim to be proved against the estate based upon a promissory note assigned to him by the payee, Madeline Harter, which was dated March 8, 1875, for $1,200, executed by Thomas R. Petrie and Stillman B. Sanders, payable one year after date, with interest, and was the joint and several note of the said makers. Sanders died September 18, 1890.

Upon the accounting in the above entitled proceeding the administratrix sought to prove and have established as a debt due from the estate to her the amount of a promissory note dated April 4, 1867, made by Dennis L. Clapsaddle and Lawrence Clapsaddle, promising to pay jointly to Harriet Clapsad-. die, three years from date, $2,100, with use.

On January 1, 1891, Ambrose Arnold and Cornelius D. Lucy were the owners as tenants in common, each owning an undivided half of a farm of 160 acres, and a dairy of 40 cows upon it, situated in the town of Fairfield, N. Y. On or before January 1, 1891, Arnold and Lucy entered into an agreement that Lucy should, during the year 1891, cany on and conduct dairy and general farming business with the said farm and dairy, and that Arnold should have three-tenths, and Lucy should…

Judicial accounting of executors. Testator gave a legacy to his grandson, George D. M. Fullerton, to he paid when he should become 21 years of age. The executors filed a petition for a settlement of their accounts, hut the infant legatee died before service of the citation on him,, and no administrator of his estate was appointed. He left as his next of kin-his father, who claimed that the legacy should be paid to him.

<p>1. Will—Undue influence.</p> <p>Undue influence, when relied upon to annul a testamentary provision, must be proved; it cannot be presumed. It need not necessarily be proved by direct evidence, but, if not, then such circumstances must, be proved from which that conclusion logically and irresistibly follows.</p> <p>2. Same—Testamentary capacity.</p> <p>Incapacity to make a will cannot be inferred, alone, from advanced years, poor health or a weak mind.</p>

Probate of will. The will in question was signed by a cross-mark. Only one attesting witness was produced at the hearing, the other having died.

Probate of will.' Mary Sohn, a daughter of the testator, filed objections to the probate of his will, but upon the hearing withdrew the objections to the probate, but demanded that the will be construed to be an effectual disposition of the real and personal property of the testator only for the life of Caroline Sohn, testator’s wife; that only a life estate is created by the will, and that as to the remainder the deceased died intestate.

On April 1, 1882, Byron L. Huntley made, executed and delivered his note as follows: “$1,000. West Winfield, April 1, 1882. “For value received I promise to pay J. Frank Huntley or hearer, one thousand dollars with use one year from date: “Byeon L. Huntley.” The note was transferred by Huntley to, and is now the property of Esther A. Bentley. On May 1, 1887, Byron L. Huntley died intestate, leaving a widow and several minor children.

On the 9th day of February, 1890, Thomas Mulligan, a resident of of the town of Winfield, in this county, died at said town intestate, leaving a widow, Bridget Mulligan, and three sons, Edward T. Mulligan, James H. Mulligan and William 0. Mulligan. At the time of his death the intestate was the owner •of and in possession of both real and personal property.

<p>1. Will—Knowledge of contents.</p> <p>Where the deceased was a man of prudence and care, and all the requirements of the statute as to the execution of wills was complied with, it is not to be presumed that he signed or affixed his mark and made a declaration as to what the instrument was without knowledge of its contents, and the court cannot require, on account of his lack of education, that it must he made to appear that the instrument was. read to him.</p> <p>2. Same—Delusions.</p> <p>To constitute a delusion, there must be a belief in the existence as a fact of something which does not exist; and such belief must be-without basis for its support, springing up without cause in the imagination of the person entertaining it, and become so firmly implanted in the mind as to withstand such evidence and argument as would convince reasonable persons of its falsity.</p> <p>3. Same.</p> <p>When decedent’s son was seven years old, decedent came home intoxicated and told his wife he had been told that said son was not his child, and repeated the story at different times for thirty years, but only when intoxicated. Some years before his death he told the priest the same thing, and in his will disinherited said son. JSeld, that decedent was not the subject of a delusion which would invalidate the -will.</p>

<p>Collateral inheritance tax—Appraisal of property omitted.</p> <p>While the decree of the surrogate in a proceeding under section 13 of the act is conclusive upon the State and the property affected thereby cannot he reappraised; yet where property was withheld from the appraiser, whether intentionally or otherwise, and therefore was not appraised, such omitted property may be assessed in proceedings under sections 16 and 17.</p>

<p>Limitation-—Waiver of by inclduing claim in inventory.</p> <p>Including in the inventory a note or claim against the executor, without other comment or memoranda, is such an acknowledgment as to take it out of the statute of limitations.</p>

<p>Collateral inheritance tax proceedings.</p>

<p>Probate of will.</p>

<p>1. Executors and administrators—Assessment on bank stock.</p> <p>By the will of testator the executors were directed to hold- certain bank stock owned by him. Upon the settlement of the estate the' executors were directed to retain the stock in two banks, as trustees,, and pay the income to testator’s daughter for life and the stock on her death to her issue; if none, to certain of testator’s children. One of the bardes failed, and an assessment was made on the stockholders for the amount of the stock. Held, that the legatees interested under the-will took their interest subject to all the necessary incidents, including the possibility of such assessment, and that the trustees should sell the other bank stock to pay said assessment and distribute the balance among those entitled under the will.</p> <p>2. Same.</p> <p>The daughter died without issue, and, in the meantime, certain of testator’s children had also died. Held, that the interest of such as. died lapsed with their death, and the fund should be distributed among the survivors.</p>

Proceeding to compel payment by a general guardian of a. claim for services rendered by a guardian ad litem in litigationsresulting in securing the property now held by said guardian.

Applications by each of the above named petitioners to have a fund held for her benefit by a trustee of the estate of Temperance S. Lewis, deceased, paid over to her as the owner thereof.

<p>Collateral inheritance tax proceeding.</p>

<p>Motion to file satisfactions of decree.</p>

<p>1. Will—Construction.</p> <p>Testator, by his will, made a complete division of his property. By a codicil he gave to his wife and two daughters certain real and personal property in trust to continue his business for three years from his death, or, in their discretion, for five years. He gave authoi'ity to use part of the trust fund to pay the specific legacies, gave instructions as to the management of the business, and for distribution at the termination of the trust, and then authorized his wife “to collect all my interest money and rentals of my property during her lifetime, or until the estate is finally settled, and apply the same to her own use.” The personal estate not embraced in the trust was insufficient to pay the legacies. Seld, that the last provision of the codicil referred to the income and rentals of the trust estate, and did not authorize the widow to take the interest and rentals of the estate not placed in trust.</p> <p>2. Same—Trust.</p> <p>The trust attempted to be created by the codicil was void, because limited by a period of years, and not upon lives.</p> <p>Judicial settlement of the accounts of the executrices and executors under the last will and testament of John Snyder, deceased.</p>

<p>Will—Probate.</p> <p>Two instruments, complete in form, upon a four page blank, were offered for probate. One disposed of money and specific articles, and the other of specific articles alone. They were drawn by testatrix, and were the same in all respects except as to the legacies, and were not dated. The subscribing witness testified that one was executed Borne months before the other, but she had only an impression as to-which was executed first. It appeared that after one was executed testatrix received property from her sister which consisted wholly of household furniture. Feld, that as the will bequeathing articles alone was not a complete disposition of testatrix’s property, it must be . deemed the last one executed and the clause of the revocation ignored under the circumstances, and that the will disposing of money should be admitted as the will of testatrix and the other as a codicil.</p>

<p>Collateral inheritance tax—Parental relation.</p> <p>The deceased was a co-tenant of certain property with her sister, the mother of petitioners, and resided thereon with her sister’s family until her sister’s death, without any agreement as to board or payment of rent. After the sister’s death she continued to reside there in the same manner. After their father’s death the petitioners continued to work the farm in the same manner as formerly and deceased continued to reside with them until her death. Held, that this was not sufficient to constitute the relation of parent and child between them so as to justify an exemption from tax upon the property received by them from her.</p>

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

<p>Petition to revoke probate of will. Denied.</p>

<p>Probate of will of Henry Gagan, deceased. Granted.</p>

A decree having been made on the petition of a creditor of Marcus L. Filley, deceased, requiring the executor to give a penal bond in the sum of $32,000 or, in default, be removed from his office, the executor, Marcus L. Filley, Jr., made a motion requiring the creditor, Horace Staples, to show cause why the penalty should not be reduced to $8,000. Denied.

<p>Probate of will of Theodore L. Jackson, deceased. Granted.</p>

<p>Judicial settlement of accounts of William Lang, as executor of Eliza Stringer, deceased.</p>

<p>Judicial settlement of account of executor of Isaac H. Beach, deceased.</p>

<p>Administbatoe—Judicial settlement—Joint deposits.</p> <p>When it appeared that although an intestate had two deposits in banks in his own name, the same represented the earnings of decedent and of bis brother, the administrator, and as the evidence disclosed that they both worked for about the same period of time at the same wages, held, that the administrator having drawn the entire moneys, was liable to account for one-half thereof, and also held, that as to a third deposit in the joint names of intestate and the administrator, as it appeared that this sum also represented the joint earnings of the brothers, the administrator should likewise charge himself with one moiety thereof.</p>

<p>1. Will—Undue influence—Drugs.</p> <p>In a proceeding to set aside a decree, admitting a will to probate, on the ground of undue influence, contestant insisted that from the fact of the administration of morphine to decedent by his nephew, a physician, to alleviate the pain of inflammatory rheumatism, decedent’s mind had become so impaired that it could be more easily controlled, and that the nephew had administered the drug for the purpose of unduly influencing decedent in the making of his will, held, that as it appeared that decedent was a man of robust frame, strong constitution, temperate in habit and of splendid business attainments, and of perfectly sound mind, and that he had not taken any great portion of morphine up to the time of the execution of the will, and such as he had taken was properly administered for the sole purpose of alleviating extreme pain, no such inference could be drawn from the evidence as alleged by contestant.</p> <p>2. Same—Evidence—Burden of proof.</p> <p>It was further insisted by contestants that for a long time prior to the execution of the will, testator’s nephew, the physician, had charge of the business affairs of decedent, who deferred to his nephew’s opinion and judgment in the management of some of his affairs, and that there was therefore an opportunity for the nephew to unduly influence decedent in the making of his will. Feld, that undue influence is a fact which must be proven; it cannot be guessed at. The burden of proving that fact was upon the contestants, and unless they established to the satisfaction of the court not only that the opportunity existed, but that it was followed by coercion or fraud, they could not sustain their position. That as there was no evidence that the nephew or any other person than decedent’s legal adviser talked with decedent about the making of any will, or the disposition of his property, either ' prior to or at the execution of his will; that the witnesses to the will positively testified that decedent did not appear to be under the influence of any person, that the disposition of decedent’s property was dictated by the excellent judgment which had characterized all the acts of his life, and that there was no evidence that decedent was unduly influenced by any one between the time of the execution of his will and of his death, the will in all respects conformed to the requirements of law.</p> <p>3. Same—Costs.</p> <p>When the evidence shows that a proceeding to revoke probate of a will was not brought in good faith, the contestants should be subjected to costs.</p>

<p>Petition by A. S. Prime, a creditor of decedent, for an order that petitioner’s claim he paid by the administrator with the will annexed, out of moneys of the estate alleged to have been received by him.</p>

<p>1 Will—When widow entitled to dower in addition to devise.</p> <p>A testator directed that “all rents and interest moneys be paid by his executors to his wife,” out of which she should pay all taxes and assessments, the balance, or so much thereof as might be necessary for the purpose, to be used by her in support of herself and family, and after bequeathing his household furniture to his wife, he devised and bequeathed the residue of his estate to his children to be paid to them, in equal shares, as they arrived at the age of 21. Reid, that as dower is favored, and there were no express words, or a demonstration upon the face of the will of the intention of the testator, that the widow should not take both dower and the provision made for her, the widow, was entitled to dower, in addition to what was given to her by the will.</p> <p>2. Executor—Sale eor his personal benefit.</p> <p>In such ease the executor sold certain lots to persons who did not complete their purchases, as the same were bought in behalf of the executor, his sister or the widow. The nominal purchasers assigned their bids without consideration to the sister, who, after receiving a conveyance thereof from the executor, conveyed same at the executor’s . request to the widow. Held, that although no person acting in a fiduciary capacity can deal with the trust estate to his personal gain or benefit, yet as the sale was not unqualifiedly repudiated by the contestant, the executor would be held to the sale; but even though the-right of repudiation existed, quaere whether the court, under the circumstances, could afford practical relief.</p> <p>3. Executor’s account—Credit for widow’s dower.</p> <p>On such sale to the widow, the executor cannot be allowed the value of the widow’s dower in a payment to the widow, as the sale made by him must be presumed to have been made subject to the. right of dower, and, if not, the executor was not authorized to purchase her dower, and, on the other hand, if she had no dower, the payment was without consideration.</p> <p>4. ■ Same—Repairs to preserve real property.</p> <p>An executor has the right to make repairs to preserve the- property and to obtain a proper income therefrom, and proof must be given that such expenditure was not necessary, before the item will be disallowed. . .</p> <p>5. Same—Taxes—When payment allowed out of principal.</p> <p>As the will expressly provided that the widow should pay taxes out of income, such payments are not chargeable against the principal estate unless it appeared' there was insufficient income for the purpose, and that such payments became necessary for. the preservation .of the estate.</p> <p>6. Same—Eire insurance.</p> <p>As the executor was clothed with trust authority oyer the estate, items for insurance are proper credits when, although not expressly, they were impliedly, authorized by the will, and the payments were necessary to the preservation of the property.</p> <p>7. Same—When costs of repairs will be disallowed.</p> <p>In the absence of explanation, an item for repairs to property paid two years after its sale, will not be allowed.</p> <p>S. Same—Item personal to executor.</p> <p>A credit will not be allowed for the amount of a judgment against the executor’s brother, when it has no connection with the administration of the estate, and the proof shows that it is a personal matter between the executor and his brother.</p> <p>8. Same—Expense of resale.</p> <p>Items for expenses in making a resale of real estate will be allowed, when the resale was directed by the court, and the sums were necessarily incurred to carry out such direction.</p> <p>10. Same—Legal services—When not chargeable to estate.</p> <p>Legal services rendered to the widow cannot be charged to the estate.</p> <p>11. Same—Goods furnished to widow ob legatee.</p> <p>Goods furnished by the executor to the widow cannot be allowed against the principal. Same, if chargeable, can be only treated as a payment on account of income to her, and when the proof is insufficient to establish such, or that value in kind supplied a legatee was a payment on account of the legacy, the credits cannot stand, and the executor must seek redress in some other court.</p> <p>12. Same—Payment of interest on executor’s mortgage.</p> <p>Payment of interest on a mortgage which was the individual obligation of the executor, given by him upon a lot of the estate after he became the purchaser thereof from his brother, and which accrued between the first sale thereof and a resale ordered by the court, will not be allowed.</p> <p>13. Same—Plaintiff’s costs of suits against executor.</p> <p>Credit for costs paid in two suits brought in the Supreme Court against the executor will be allowed when the judgment rolls show a recovery against the executor as such, and not against him personally.</p> <p>14. .Same—Costs of defending shits against executor.</p> <p>An executor does not become entitled to reimbursement for sums expended for legal services by showing the fact of payment, or that he acted in good faith. Upon objection made, he must prove the necessity and value of such services.</p>

<p>1. Real estate—Sale to pay debts.</p> <p>A petition, for sale of real estate to pay debts alleged a large indebtedness of decedent to petitioner, that the only personal property realized by petitioner, as administrator, was $10, and that he had proceeded with reasonable diligence in converting the personal property of decedent into money and applying same to the payment of debts, held, that although the petition, as required by section 2752, subd.' 4, Code Civ. Pro., did not explicitly state what application-had been made of the personal property which came to petitioner’s hands, or the amount which might yet be realized therefrom, yet, .as the petitioner was the only debto'r, and as he could not make payment upon his own claim till it was established, the petition in fact disclosed that the petitioner had made the only legitimate application of the moneys which had come to his hands (viz., to hold same until his claim had been established), and that the amount which might yet be realized therefrom to apply upon his claim when established, was. the sum of $10.</p> <p>2. Same—Code Civ. Pro. sec. 2759, subd. 5.</p> <p>In such a case, the administrator has proceeded with reasonable diligence in converting the personal estate into money, and applying it in the payment of debts and funeral expenses, within the meaning of Code Civ. Pro. sec. 2759, subd. 5, although he did not actually apply the $10 towards the payment of debts.</p> <p>3. Same—Disputed claim.</p> <p>In a proceeding for the sale of real estate to pay debts, the court has jurisdiction to determine the validity of any claim, although disputed, even though it be that of the administrator.</p> <p>4. Lease—Covenant to maintain lessor.</p> <p>A lease for twelve years contained a covenant by lessees that they would maintain lessor during the term, as payment for the use of the premises. Lessor died prior to the expiration of the term. Held, that his maintenance during his life was a full performance of the covenant by the lessees. J</p> <p>5. Equitable mortgage—Wiiat constitutes.</p> <p>Decedent having leased his farm, subsequently made an agreement with lessee that latter would build a barn thereon, and that lessor would pay him the reasonable value of same on the expiration of the lease, and in case lessor should die meanwhile, lessee should have a legal claim against lessor’s estate for the value of said barn. Held, that although lessor had no personal property at the making of such agreement, lessor did not intend to make the value of the barn a lien upon his estate, but merely made an admission of his indebtedness.</p> <p>6. Covenant against cutting timber—Firewood and fencing.</p> <p>Such lease contained a covenant by lessee against cutting timber except for firewood and fencing purposes. Lessee, instead of repairing the fences from timber cut on the farm, sold same, and devoted the entire proceeds to purchasing other material which was used in repairing the fences. Lessee did not sell any more timber than was necessary for such repairs. Held, that the covenant was not substantially violated.</p>

<p>1. Executors—Accounting—Liability fob profits of business.</p> <p>When the profits of a business carried on by the executors jointly with a third person are not accounted for during a certain period, and there is no proof that the same were received by the accounting executors, or that the same were lost to the estate by their negligence, they should not be charged therewith, especially upon the contention of a contestant who was himself an executor during the period in question, and who had special supervision over the business out of which the profits arose, but who had been subsequently removed from the executorship.</p> <p>2. Same—Trust estate—Liability for repairs and taxes.</p> <p>Testator devised all his property to his executors upon trust to receive the income thereof during the life of his widow, and pay the same to his widow and children, and he directed that should his sons C. and G-. and his wife desire to reside in his dwelling house they might do so without paying rent therefor during his wife’s lifetime, each paying one-third of the living expenses of the household. Held, that the widow and such children did not take an estate in the dwelling house analogous to a life estate, so as to charge them with repairs and taxes, as the executors took a legal title, with the duty not only of receiving the income, but of discharging thereout all taxes, insurance and repairs, and pay over the balance in accordance with the directions of the will.</p> <p>3. Same—Set-oee.</p> <p>To entitle the executors to credit for the price of goods of the estate sold by them, and which the purchaser owes the estate, it should be shown to be uncollectible without their fault, or that actual credit has been given (and not merely intended to be given) in the nature of a payment or set-off on an account or claim against the estate.</p> <p>4. Same—Proof of payment—Voucher.</p> <p>When there is no voucher for an expenditure, the burden is upon the executors to establish the credit by the uncontradicted oath of the accounting party, stating positively the fact of payment, etc. Code Civ. Pro. sec. 2734.</p> <p>5. Same—Debt due by a contesting executor.</p> <p>Contestant will be charged with a debt due by him to the estate, when the same appears by the evidence of one of the executors to be the balance due by contestant out of wood and 'brick transactions between him and the estate, although the contestant claims that the item was the amount of a loan made by him to the executors and repaid to him, when his testimony is unsupported, and as he was himself an acting executor at the time, he could have had an entry made in the executors’ books, showing that it was a loan, the actual entry being “Dif. in brick and wood account, $277.66.”</p> <p>l</p> <p>6. Expenses of administration—Reasonableness of expenditure.</p> <p>Items of an executors’ account for administration expenses, including professional services, in the absence of proof that such services were necessary for the protection or administration of the estate, and that the sum charged is reasonable in amount, should be disallowed.</p> <p>7. Executors—Trust estate—Right to rental income.</p> <p>Testator provided that should his son (the contestant) desire to reside where he now does (being a dwelling, part of testator’s estate), he might do so without paying any rent during the testator’s wife’s lifetime. Contestant, after living in the dwelling for some time, removed elsewhere during the widow’s life, whereupon the executors (who were directed by the will to receive the income of testator's property and apply the same as directed) let same to other tenants and received the rents thereof. Held, that the contestant was not entitled to such rents, as the will gave him only a right of occupancy during the widow’s life, and that they belonged to the trust estate.</p> <p>8. Same-—Purchase by executor individually.</p> <p>When it appeared that the one-half interest in a barge, the other half of which was owned by the estate, was purchased for a consideration of $2,300, and the bill of sale thereof taken in the name of one of the executors, who claimed that he purchased individually, but all the circumstances connected with the purchase and the relation of the parties, showed that the purchase was in the interest of the estate, the profits of the barge paying the purchase money, save $50 paid by the executor to whom the bill of sale was given. Held, that the purchase was one for the estate, and that the property thereby acquired, and the earnings thereof, should be accounted for as estate property and assets.</p>

Petition by Harriet A. Burtis, a residuary devisee and legatee under the will of George B. Valentine, to hold the executor liable in damages for certain- alleged fraudulent sales of the testator’s real estate made by him.

<p>Probate of will of Solander Carver, deceased. Granted.</p>

<p>1. Executors and administrators—Negligence—Personal liability.</p> <p>When an invalid claim is presented to an administrator, and he, although doubting its validity, yet willing to have it in some manner made binding upon the estate, agreed to refer it, but neglected to employ counsel to protect the estate before the referee, neglected to oppose the confirmation of the report allowing the claim, failed to appeal from the judgment thereon, or adopt any other measures to relieve the estate therefrom, he is guilty of such negligence as to render him liable personally, and contestants will not be driven to the expedient of moving to set the judgment aside.</p> <p>2. Same—Interest on use of property.</p> <p>An administrator will be charged with the value of the use of personal property, consisting of farming stock and implements of husbandry, of which he had the avails between decedent’s death and the sale thereof.</p> <p>3. Same—Interest on uninvested moneys.</p> <p>An administrator will be charged with interest on moneys of the estate which he might have invested, after allowing him a reasonable length of time (six months) in which to invest it.</p> <p>4. Same—Interest upon personal claim.</p> <p>An administrator is entitled to interest upon a claim due to himself, although he received funds sufficient to defray same, as he is without authority to retain his own debt till allowed to him by the surrogate upon his accounting.</p> <p>5. Same—PbooV of personal claim.</p> <p>Existence of an alleged claim due to an administrator must be established by legal evidence. Mere presentation thereof with an affidavit of verification is not sufficient.</p> <p>6. Same.</p> <p>When an account filed and verified by an administrator claiming a debt due to himself, concedes payments to substantially the full amount of the claim as established, such payments will be set off as against the amount so established, and will not be applied upon that portion of the account which the executor fails to establish.</p>

<p>1. Construction of will—Original gift.</p> <p>Testator directed that the residue of his real estate should, upon" the decease of his wife, to whom he had given the income thereof for life, descend (inter alia) “to my sisters and their heirs and assigns, and to the children of my deceased brother and their heirs and assigns. The children of any of my sisters or my brother are only to receive the same share that my brother or sisters would receive if they were living at the decease of my said wife.” A sister of testator had died before the execution of the will, leaving a son whom testator had no reason to disinherit. Held, that such son was entitled to take the share his mother would have received had she survived testator’s widow, not by way of substitution, but as a substantive independent original gift.</p> <p>2. Same—Lapsed legacy—Residue.</p> <p>Such will directed payment of the income to the widow for life or until her remarriage, and in the latter event she was to receive only one-half the income. The widow remarried, and thereupon the executor paid half the income to the testator’s father (to whom testator gave the estate upon his wife’s death) for his life, and upon his decease (prior to the wife’s death), paid a part of the income to one of the residuary legatees under the father’s will. Held, that the. moiety of the income which lapsed upon the widow’s remarriage became a part of the residue.</p> <p>3. Judicial settlement—Res adjudicata.</p> <p>As such payments to the father had been allowed on a prior account of the executor, the judicial settlement thereof was res adjudicata on the subject.</p> <p>4. Accounting—Advancement.</p> <p>The payment to the father’s residuary legatee, who was also one of the residuary legatees under testator’s will, should be treated as a payment to her upon her distributive share.</p> <p>5. Executors—Death of life tenant.</p> <p>The executor will not be charged with interest on the funds of the estate after the death of the widow, when conflicting claims, which are being litigated, are made to the residue, and he holds the funds in readiness to pay the parties entitled thereto on the termination of such litigation. i</p> <p>6. Executor—Compensation. , .</p> <p>An executor, who is an attorney, will not be allowed compensation for appearing on his own account, and on behalf of others interested, in an action brought to determine conflicting claims to p, residuary share, other than the commissions allowed executors by law.</p> <p>7. Same—Tombstone.</p> <p>An expense of $300 for a tombstone will be allowed when the estate amounts to much over $6,000, the rights of creditors are not impaired, and the residuary legatees are collateral relatives only.</p>

Applications by creditors who had recovered judgments against decedent’s executor, as such, for leave to issue executions thereon. Denied.

<p>Judicial settietment of executrix’s accounts.</p>

<p>1. Executors—Accounting—Beal estate.</p> <p>A testator devised and bequeahted to his wife, the use, occupation, income and profit of all his real and personal estate for her life, and directed that two of his sons (also named as his executors) should cut, haul and prepare for burning, firewood sufficient for her use. No duties were charged upon the executors with respect to the application of the income. Held, that the gift of the income of the real estate to the wife created an estate in the realty itself, and that the executors were net bound to account for the income of the real estate, or as to the cutting of wood and timber.</p> <p>2. Same—Personal estate.</p> <p>In sucli case the executors retained the custody and management of the persona] estate. Held, that if the income was collected by them without power under the will, they were only liable individually, and. the couit had no power to entertain an accounting therefor.</p> <p>3. Same—Personal estate—Income.</p> <p>The executors invested part of the personal estate and used the remainder for their individual purposes. They paid the widow the income cf the investments, and for legal interest on the moneys expended for their own use they paid her with cash, goods from-their store, and' by paying taxes for her. The evidence of witnesses other than that of the executors was given of payments in money and kind to the widow, who, it was also shown, paid sometimes for goods received- - from the executors. Held, that even if the latter were accountable for the income of the personal estate, the evidence was insufficient to charge them -with any balance of income for which they were liable to pay the widow or her executors.</p> <p>4. Same—Liability for principal.</p> <p>One of the executors died during the widow’s life. Held, that the survivor was accountable for the principal personal estate, except as to the va’ue of articles of personal property which he placed in charge of the widow for her use, and which were lost by ordinary use and wear.</p> <p>5. Same—Surviving executor—Credit.</p> <p>The decedent executor had purchased part of the personal estate, for which he did not pay. Held, that as he had an equal right to the custody of the property of the estate, the surviving executor was nob liable for bhe purchase price.</p> <p>6. Same—Credit for interest.</p> <p>When the executors could, out of moneys in their hands, have paid' off the amount of a note due by testator, within a reasonable time after they entered upon their administration of the estate, they will not be allowed for accruing interest paid on the note.</p> <p>7. Same—Costs of accounting.</p> <p>An item for legal services on the accounting cannot be properly charged in the account. Such is a matter for adjustment upon the allowance and taxation of costs in the proceeding.</p>

<p>1. Executors—Accounting—Costs.</p> <p>An executor who has been forced to account by process of the court, and who has failed to sustain many items thereof, will be only allowed costs as if there were no contest.</p> <p>2. Same—Contestants—Costs.</p> <p>Contestants who have forced an executor to account, and who have successfully contested nearly all the items of his account, will be allowed out of the estate, if not against the executor personally, costs of compelling the executor to account, for time occupied in the trial, and a contest fee, but not for time occupied in preparing for trial.</p> <p>3. Same—Income—Costs.</p> <p>When there is a doubt as to whether the executor, as such, received and disbursed the income of personal estate, during the continuance of a life estate, and that even if he had, there was no balance due by him on foot of such income, costs will not be allowed the executor or the contestant.</p> <p>■4. Same—Principal—Costs.</p> <p>If such costs were allowed, they could not be charged against the principal of the estate.</p> <p>S. Same—Contest. :</p> <p>The executor’s costs in such case will not be awarded against the contestant, when the executor kept no account of the income fund.</p>

Petition by Anna P. R. Kirkland, a legatee, for the judicial ■■settlement of the accounts of T. 0. Richardson, styled in the petition “substituted trustee,” who was appointed executor of the estate of Richardson, deceased, in lieu .of the widow of •deceased, the sole surviving executor and trustee under the will. The widow died on January 29th, 1890.

The will of decedent, who died in Connecticut, was proved in that State by his executors, Henry F. Smith and James H. Groom, who were thereafter appointed ancillary administrators here, on their petition alleging assets to the extent of $100 in Westchester County, N. Y., and that decedent owed $60 to a resident of this State, and on giving1 bond in the sum of $120.

<p>1. Legacies—Advancements.</p> <p>The statutes of descents (1 Rev. St. p. 754, secs. 23-26) and of distributions (2 Rev. St. p. 96. secs. 75-77) as to advancements, only relate to cases of intestacy.</p> <p>2. Ademption—Bequest of residue.</p> <p>Testatrix provided by her will that her property should be sold and the proceeds equally divided amongst her five children. After the execution thereof she made advances to them, and took a receipt from each which expressed that testator intended to advance each $5,000. Three of the receipts were for the full sum of $5,000, but two were for less than that sum. After testatrix’s death, her executor, prior to an equal distribution of the assets, paid to each of the two children who had received less than $5,000 the difference necessary to make up the $5.000 which testatrix intended to give each in her lifetime. Reid, that the payments so made were authoritatively made as advances or payments, to carry out the intention of the testatrix to equalize the distribution of her property among all of her children.</p> <p>3. Same.</p> <p>The principle of ademption of a legacy is applicable to a bequest of residue.</p> <p>4. Same—Devise of realty.</p> <p>In such case the proposition that the rule of ademption is only predicable of legacies of personal estate, and is not applicable to devises of realty, does not apply, as the will devised the real estate to the executor in trust to sell the same and divide the proceeds, and in any event, as the executor had received $24,000 of personalty, and applying the rule of ademption to only a bequest of personalty, strictly such, the payments to the two children in question were properly made.</p> <p>5. Estoppel op legatee—Payment as ademption.</p> <p>When one of such residuary legatees gave her assent without qualification to the making of the payments so as to equalize the two children who had received less than $5,000 with the other children, and withheld objections to the same being made, knowing that the same were being made, or were about being made, until the payments were actually made, and then first interposed objections, held, that such legatee was estopped from claiming that such payments were illegally and improperly made.</p>

<p>Petition by John W. Purdy, an heir-atrlaw and next of kin, to revoke probate of will.</p>

<p>Application by Elizabeth Blakeman, to compel payment of a legacy.</p>

<p>Application, to revoke probate of will and letters of administration c. t. a.</p>

<p>1. Will—Construction.</p> <p>A testator gave to Ms wife the income of all his property, both real and personal, “as long as she lives, for her benefit and support,” but out of the income she was to pay all necessary repairs upon the buildings, and all taxes, etc. The only authority the executors were to exercise during the wife’s life was to pay debts and funeral expenses. After her death they were directed to sell the property, and pay the legacies enumerated in the will. Testator also directed that his two sons should not .come into possession of their property until after his wife’s death, unless she consented thereto in writing. Held, that the widow took a life estate under . the will, and no title to testator’s property or control thereof during the wife’s life was given to the executors except to pay his debts and funeral expenses.</p> <p>2. Executors’ accounting—Commissions.</p> <p>In such case the executors were not entitled to include in their</p> <p>account the income of the estate collected by them during the widow’s life under an arrangement with her, nor the disbursements thereout for taxes during her life, nor commissions on such collection.</p> <p>4. Same.</p> <p>The compensation for such collection was a matter to be adjusted between the executor, as an individual, and the personal representative of the widow.</p> <p>,4. Same.</p> <p>The persons interested in the estate agreed in writing with the executors that the real estate should not be sold; that for the purpose of fixing the executors’ compensation the same should be treated as of a certain value; and that the executors.would accept a certain agreed compensation. Held, that although the real estate was not sold, the beneficiaries and executor were mutually estopped, under this agreement—the former from depriving the executor of his commissions thereunder, and the latter from claiming more than the agreed compensation, which was less than the statutory allowance.</p> <p>5. Same.</p> <p>An executor’s commissions should not be included in his account. Commissions are allowed only by order of the Court, and on settlement of the account.</p> <p>6. Compensation to bookkeeper—Adjustment.</p> <p>Under the circumstances of this estate, a credit of $950 for the services of a bookkeeper was proper, but the same should be adjusted between the income estate of the widow and the estate held by the executors.</p> <p>7. Same.</p> <p>An item of $100 for the services of a.bookkeeper in preparing the executors’ account should be excluded from the account and be disposed of upon the taxation of the costs of accounting.</p>

<p>1. Executors and administrators—Business carried on by decedent</p> <p>AND ADMINISTRATOR.</p> <p>An administrator will not be allowed to deduct from the amount of the inventoried estate, on his accounting, the value of the chattels belonging to a milk business, on the ground that the same belonged to him, and not to the estate, when it appeared that decedent (administrator’s father) bought the milk route and property necessary to carry it on, and that the expenses of the sale of the property were charged to and paid out of the estate moneys by the administrator, and that it was upon a farm belonging to decedent and through the milk business that the father and son, by mutual family relations, without any definite fixing of rights, provided a livelihood and home for themselves.</p> <p>2. Same.</p> <p>Such administrator is chargeable with the proceeds of the sale of the “good will” of such milk business.</p> <p>3. Same—-Profits on sale of estate.</p> <p>An administrator cannot make profit out of the estate by purchasing articles at an auction sale of chattels of the estate and reselling them at a profit, and on his accounting will be chargeable with the profits so made.</p>

<p>1. Legacy—Answer—Sufficiency.</p> <p>A motion to dismiss a petition for payment of a legacy bequeathed to the executor in trust for petitioner will be denied when the written answer filed in pursuance of Code Civ. Pro. section 2805 does not contain a specific denial of the validity of the claim, and an affirmative allegation of facts showing the doubtful nature of the claim, as required by that section, but merely presents an issue as to' the manner in which the trust is being executed, as to which the surrogate has jurisdiction under Code Civ. Pro. see. 2472, subd.</p> <p>2. Will—Construction—Legacy for support.</p> <p>A testator bequeathed to his brother $1,000 in lieu of all claims of his brother against his estate, and, appointed his son trustee of the bequest “to use it for the comfortable support of my said brother, and to pay his funeral expenses,” and if any part should remain after the ■decease of his brother, to divide same amongst testator’s sons and daughters. Meld, that the will neither expressly nor impliedly conferred upon the trustee any authority over petitioner’s person, and. that he could not compel the latter to reside with him, nor dictate as. to where he should reside.</p> <p>3. Same.</p> <p>The petitioner was entitled to demand and receive from the trustee-such portion of the legacy as was necessary for his support, without regard to the question of. his ability to support himself.</p> <p>4. Same.</p> <p>As the will- did not authorize the trustee to determine the amount, to be paid for the support of the beneficiary, and did not authorize the beneficiary himself to determine the amount, such amount should be-fixed by the court.</p>

Proceeding to construe the following clause of the will of Ophelia P. Odell, deceased. “Eleventh.

Application by a creditor of decedent for an order under CodeCiv. Pro., section 1825, permitting execution to issue on a judgment obtained by petitioner against the administrator for the.amonnt of his debt. Denied.

<p>1. Executors and administrators—Accounting—Jurisdiction.</p> <p>Surrogates’ Courts have power under Code Civ. Pro. see. 2472 (providing that such courts may, upon an executor’s accounting, construe the provisions of a will whenever necessary to make the decree as to distribution), to determine as to the validity of an antenuptial agreement made by decedent and his intended wife, made in contemplation of death, whose subject matter is the distribution of his property after his death.</p> <p>■2. Antenuptial contract—Fraud—Burden of proof.</p> <p>The presumption is against the validity of such a contract, and the burden of proof is cast upon the husband or his representatives to show perfect good faith, and strict proof will be required, especially where the provision for the widow is inequitable.</p> <p>3. Same.</p> <p>Decedent, when 70 years of age, married his deceased wife’s niece,</p> <p>' aged 52. He was then worth $20,000. Prior to the marriage he had an agreement drawn up by his attorney by which his intended wife was to receive on his death $2,000 in lieu of dower and interest in decedent’s personal estate. This was signed by decedent and his wife the evening prior to the marriage, and there was no evidence of prior negotiation in reference thereto. The wife testified it was not read to her, and she only became aware of its contents after the marriage, and decedent admitted to several persons that in having the paper signed he wished to convince his sisters that his wife had not married him for his money. Held, that although the wife had subsequent to the marriage acquiesced in the agreement, the burden of proof which the law placed upon the husband’s representatives to show perfect good faith had not been met with, and the agreement was invalid.</p>

<p>Application by widow to open decree. (See p. 246 of this volume for former report.)</p>

Proceeding to determine tire tax to which, tire estate was liable under the act of 1385, c. 483, upon the report of an apprasier, appointed on the surrogate’s own motion, to determine the value of the estate.

<p>Accounting of Thornton M. Niven as surviving administrator of John A. Van Wert, deceased.</p>

Probate of certified copy of a will and codicil purporting to be made by Frederick Klett, deceased, a resident of Pennsylvania, in which State the papers had been proved and admitted to probate on August 3rd, 1859. i

<p>Accounting by guardian. Bepoft of referee overruled on 'exceptions and- proceedings dismissed.</p>

<p>Probate of alleged will of Jane Kevins.. Denied.</p>

<p>1. Bequest to cemetery corporation—Validity.</p> <p>By section 9 of Laws of 1847, chapter 133 (general act as to rural cemeteries), it is provided that an association thereunder incorporated may take and hold property for (inter alia) improving the cemetery lots according to the terms of the grant, devise or bequest. Beld, that the Oak Hill Cemetery of Nyack, whether incorporated thereunder or under the special act, Laws 1865, chapter 139, relating to Oak Hill Cemetery, Bockland County, might take and hold a legacy upon trust -to apply the income for the perpetual care of a lot therein, as section 8 of latter act conferred upon said cemetery the powers contained in the general act.</p> <p>2. Same—Statute against perpetuities.</p> <p>A bequest to a cemetery corporation upon trust to apply the income for the perpetual care of a lot does not violate the statute against perpetuities, when the act under which it is incorporated authorises it to hold funds for such a purpose.</p>

<p>Judicial settlement of account of Holland Trust Company as administrator.</p>

<p>Probate of will of Mary Mabie, deceased. Granted.</p>

<p>Construction of part of will of Augustus Roos, deceased.</p>

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

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

<p>1. Tax—Collateral inheritance.</p> <p>Where a clause in a will recites that a legacy is given in view, and in consideration of the legatee’s unremitting care and attention to the testatrix during her years of sickness without asking any reward for services rendered, such legacy is taxable.</p> <p>:2. Same.</p> <p>In order to be exempt, the legacy must be in payment of a legally enforcible debt.</p> <p>3. Same.</p> <p>The court, in ascertaining whether a legacy is, or is not, taxable, has the right to determine, not only from the provisions of the will, but by extrinsic facts, if necessary, whether it is a voluntary gift or in payment of a legally enforcible debt. .</p> <p>-4. Same.</p> <p>In such case, the legatee, if he desires to escape the payment of the tax, must establish his debt against the estate, have it paid by the executor in the usual manner, and let the legacy to him go to the residuary estate.</p>

<p>1. Execution—Leave to issue.</p> <p>An application for leave to issue an execution upon a transcripted justice’s judgment, may be made before the expiration of three years after the issuing of letters of administration.</p> <p>2. Same.</p> <p>The better practice, in such case, is to apply first to the County Court, in which all questions concerning the validity of the judgment can be tested.</p>

<p>Surrogate’s Court—Referee’s fees.</p> <p>The surrogate has power to direct and enforce the payment of referee’s fees in his court out of the funds of the estate.</p>

<p>1. Evidence—Declarations.</p> <p>All acts or declarations, forming part of the act or transaction to be proved so as to explain or qualify it, are admissible when such transaction or act forms the fact in issue or is deemed relevant thereto.</p> <p>2. Will—Testamentary capacity.</p> <p>No presumption of want of testamentary capacity arises from old age alone, nor from enfeebled condition of body or mind.</p> <p>3. Same—Undue influence.</p> <p>Where it has been once proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is upon the party who alleges it.</p> <p>4. Same.</p> <p>Where the alleged testator is quite old and somewhat weakened, by reason of age and infirmities, both in body and mind, the burden is shifted upon the party in whose interest an important change in the will is made.</p> <p>5-, Same.</p> <p>The presumption, which the law raises under such circumstances, is one of fact and not of law, and may be repelled.</p>

<p>1. Executors, etc.—Disputed claim.</p> <p>The surrogate, upon an accounting by the personal representative of a deceased executor, may determine the validity of a claim of such deceased executor against the estate of testator.</p> <p>2. Contract—Implied promise.</p> <p>A promise to pay for services will be implied, unless a presumption arises from the relation of the parties that they were rendered without any expectation of compensation.</p> <p>3. Trust—Specific purpose.</p> <p>Delivery of money to a person, to be applied to specific purposes, to which he assents, creates a valid trust.</p> <p>Proceedings for a judicial settlement of the accounts of the executors.</p>

<p>Motion for leave to serve a case and exceptions.</p>

<p>Proceedings for an accounting by a guardian.</p>

<p>1. Will—Execution.</p> <p>A will may be proved by the evidence other than the testimony of the subscribing witnesses.</p> <p>2. Same—Competency.</p> <p>A mind partially clouded by drink may execute a valid will.</p> <p>3. Same.</p> <p>The fact that the testator had an epileptic fit does not raise a presumption of disability after he has recovered from the attack.</p> <p>4. Same—Undue influence.</p> <p>The act of a party addicted to intemperance, in disposing of his property, will not be invalidated on the ground of undue influence exercised over him' by the inmates of his family, through kind offices springing from attachment or affection.</p>

<p>1. Executors, etc.—Commissions.</p> <p>In case of an equitable conversion of realty, where the estate is held by the executors unconverted, they are not entitled to commissions' on the principal.</p> <p>2. Same.</p> <p>The value of the real estate, in such ease, may be considered in determining the commissions to which they are entitled on the income.</p>

<p>1. Tax—Transfer—Appraisement.</p> <p>In making appraisement of estate subject to the transfer tax, debts, funeral, and administration expenses are not to be deducted.</p> <p>2. Same—Surrogate’s valuation.</p> <p>The surrogate, in fixing such value, may deduct the debts owing by decedent from the value of the estate.</p> <p>3. Same—Indeterminate bequest.</p> <p>A bequest to the widow for life or until remarriage, cannot be appraised until the termination of such estate.</p>

<p>Probate of will of Charles A. Forbes, deceased. Denied.</p>

<p>1. Tax—Transfer.</p> <p>Neither the alienage nor the non-residence of a legatee or annuitant entitles him to an exemption.</p> <p>2. Same.</p> <p>Nor of the testator, since the act of 1887 went into effect.</p> <p>3. Same.</p> <p>In such case, the legacies will be taxed in the proportion that the assets bear to the foreign assets.</p> <p>4. Same.</p> <p>The examption of a certain class of corporations from such tax does not apply to foreign corporations.</p>