Volume 1 — Redfield's Surrogate Reports

<p>A mere intention to revoke a will never effectuates an express revocation. The most satisfactory evidence that the testator had repeatedly and explicitly declared a deliberate design to annul or destroy his will previously made, would not authorize the court to reject the instrument. A written statement to that effect, in the testator’s handwriting, is not a valid revocation, unless celebrated according to the forms prescribed by the statute.</p> <p>A legal act of revocation must be performed ' .vL-A-cAl There must concur both the intention and the act. Intention, or mere purpose, to become legally operative, must be expressed in a legal way. To design to do, and to do, are not the same. The act implies and embraces the intention, but the mere naked intention does not include and comprise the act.</p> <p>At common law there could be a revocation of a will implied from circumstances.</p> <p>There were two classes of such implied revocations: First. Such as were declared by the law, in view of a change in the testator’s circumstances, especially his family relations, since the execution of the will, and which effected a total revocation of the will and all its dispositions. This class was received in consideration by the probate courts. It was accordingly an established rule that marriage, and the birth of issue, effected an implied revocation of a previous will.</p> <p>Ultimately the birth of children (without a subsequent marriage after the will was made), in conjunction with other alterations in the testator’s circumstances, was held sufficient to establish an implied revocation.</p> <p>An alteration in the testator’s circumstances, when that alteration did not include as one of its essential ingredients either marriage, or the birth of issue, has never been held to revoke a previous will.</p> <p>Second. The second class of implied revocations at common law were revo cations by alienation of property, or such acts of the testator in regard to his property, as indicated an intention to exempt it from the dominion of the will. These revocations were implied from the testator’s dealing with the property which was the subject of testamentary gift, and their extent was consequently commensurate with the dealing. This class of revocations only affected the property devised, and did not produce a revocation of the will per se; and therefore such cases never came within the purview of the probate courts.</p> <p>The whole subject of implied revocations in the State of New York, is now controlled by statute, and no implied revocations are admitted except those enumerated in the-Revised Statutes.</p> <p>The will of a competent testator stands as the reason for the act, and requires no other evidence to support it, than proof of due execution according to the ceremonies prescribed by law.</p> <p>But a different degree and class of proof are required where the will has been made by the intervention of the party profiting by its provisions, and occupying- relations of confidence and influence towards a testator of weak or doubtful capacity. For example, where the parties are in the relation of guardian and ward, principal and agent, trustee and cestui que trust, attorney and client, the court is exact and scrutinizing in its requisition of the plainest evidence of volition and capacity. Where such relations of confidence exist, and the party frames the instrument for his own advantage and benefit, every presumption arises against the transaction. In such a case, it is not necessary to prove fraud and circumvention, but the proponent must remove the suspicion by clear and satisfactory proof.</p> <p>The principle involved in this rule must be considered as relating rather to the quantum of evidence required in such cases, than to an actual conclusion of fraud in fact.</p> <p>And in its application it requires from the proponent evidence, outside of the document itself, that the contents were understood by the decedent, and were conformable to his real wishes; that the act was the result of free volition, the actual will, wluntas ipso, of a competent mind — and if from any cause such proof fail, probate must be denied..</p> <p>Where the testator made with due deliberation and under legal advice his will in the year 1843, whereby, after providing for his wife, and making other legacies, he made'his two brothers residuary legatees, the residue at the time being small;</p> <p>And subsequently in 1849, when such residue had increased very largely, and he had made no change in the will, was seized with apoplexy, and after a partial recovery and the exhibition of some degree of intelligence, he made a codicil in favor of his wife, proved to have been conformable in a measure to intentions expressed previous to his illness; — Held, that such codicil should be admitted to probate.</p> <p>Held, also, in respect to subsequent codicils, not supported by any extrinsic evidence of intention prior to his illness, which were made in favor of his wife, while he was in her charge,-his faculties wore enfeebled and impaired, and his power of communication and mental manifestation greatly affected, that the proof in support of such codicils was deficient, and they should be denied probate.</p>

<p>On an application that the executors file an inventory, and give security for the due administration of the estate, a motion for an order that the executors deposit with the surrogate the books of a copartnership composed of the deceased and one of the executors, so as to enable the next of kin to ascertain the amount of the interest of deceased in such copartnership, will not be granted. The surviving partner being entitled to the custody of the books of the firm, ought not to be compelled to give them up.</p>

<p>The testator had purchased for his wife certain real estate which she held in her own name, subject to the joint bond of the husband and wife, and to the wife’s mortgage for the purchase-money. The widow as executrix, paid off the bond with the funds of the estate; — Held, that she was not entitled, on an accounting, to be credited for the amount thus paid.</p> <p>Parol evidence that at the time of making the bond and mortgage, and subsequently, the testator declared his intention to pay off the incumbrance, and give the property to his wife unincumbered, — Held, inadmissible.</p> <p>The will directed the whole estate to be converted into money, and, among other provisions, out of the fund, directed a certain sum to be invested, the interest of which was to be paid to the wife, but without expressing it to be in lieu of dower; and another sum to be invested, and the interest paid to his adopted daughter.</p> <p>Held, 1. That whether these provisions are legacies or annuities, they are general, and are subject to abatement with the other general legacies of the will.</p> <p>2. That no time being stated for the payment of the interest to the widow and adopted daughter, the widow is not entitled to interest until one- year from the granting of letters; but that the adopted daughter is entitled to interest from the death of the testator, he standing in loco parrentis, and there being no other provision for her maintenance.</p>

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

<p>A legatee under a will made prior to the one offered for probate, who is neither an heir-at-law nor next of kin of the deceased, may intervene to oppose the probate of the subsequent will.</p> <p>Where suspicions of undue influence are created by reason of the advanced age, blindness, and imbecility of the testator, — Held, that a presumption is raised against the will, which requires that they be removed by dear and satisfactory evidence, beyond the mere fact of the existence of the will and the capability of the testator.</p> <p>Held, further, that such presumption is-satisfactorily removed by proof of the instructions given by the testator in regard to the drawing of his will; that the same was carefully read and explained to him at the time of its execution; and that he subsequently declared every thing was arranged to his satisfaction.</p>

Letters of administration were granted October 31,1836, and an inventory was filed on the 12th day of January, 1837. An order to advertise for claims was made in June of the same year, and notice published for six months. No further proceedings were had in the Surrogate’s Court, or elsewhere, for an account or distribution, until October,-1850, when one of the next of kin applied for an order requiring an accounting by the administrator.

<p>An executor has the authority, as the successor and legal representative, to sell a debt of the testator; and such sale having been made in good faith, prudently and discreetly, — Held, that he should not, in equity, be held liable for more than he received.</p> <p>Medical attendance upon the deceased being valuable, the law presumes a promise to pay, and in order to defeat the claim, affirmative evidence that such service was gratuitously rendered must be produced.</p>

This was an application on the part of Richard Oox, sole executor of the last will and testament of Mrs. Mary Welsh, that the will be admitted to probate. The will was contested by several of the next of kin, as being the result of undue influence exercised by parties benefited, and they claimed that the probate should be refused.

<p>Where no failure of memory was exhibited at the time the will was executed, and the testator is not shown to have had any disease of the brain which permanently impaired his mental faculties, — Held, that the facts of his old age, declining health, and his failure to recollect or understand certain transactions, do not prove a want of mental capacity to make a will.</p> <p>A statement made by the testator after the execution of a codicil, to a daughter whom he had therein disinherited, that he had given her the sum of $600, and no such sum appeared in the will, — Held, not sufficient to prove a want of capacity. The capacity of a testator to make a will must be determined by what happened at its execution, and not what afterwards occurred.</p> <p>The influence to vitiate an act must amount to force and coercion, destroying free agency. It must not be the influence of affection and attachment, nor the desire of gratifying the wishes of another. The proof must be, that the act was obtained by coercion; by importunity that could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear. The natural influence of a wife, arising from her relations with the testator, without proof of any specific acts, will not amount to such coercion.</p>

<p>Where letters of administration with the will .annexed are granted, in a case where letters testamentary have never been issued, and there is no executor to take, or where the administrator with the will annexed dies, they issue to persons in the following order of preference: 1. Residuary legatees; 3. Principal or specific legatees; 3. The widow; 4. Next of kin; 6. The public administrator (in the city of New York); 6. Creditors; 7. Any person not interested, who will accept.</p> <p>In other counties than New York, the county treasurer takes next after creditors.</p>

<p>The order of right to administration in the city of New York is, first, the-widow; second, the next of kin; third, the public administrator; fourth, creditors ; fifth, any other person who will accept the same. In other counties, the treasurer, as public administrator, comes in next after creditors. i!</p> <p>One having priority of right to the administration, can only deprive those coming after him of their right by taking letters himself. He cannot nominate a third party to the exclusion of the others.</p>

<p>The facts are fully stated in the opinion.</p>

The surrogate granted an order requiring the executor to tender an account of his proceedings. The sufficiency of the account as rendered was contested by the petitioner

<p>The executor is accountable only for what he has actually received as proceeds of sales; and where real estate, subject to a power of sale by the executor, has been sold under a decree of a Court of Chancery, and the proceeds paid over to the heirs, by order of that court, the executor is not bound to account for such proceeds in the Surrogate’s Court.</p> <p>Where a will creates a trust of the rents of real estate for the benefit of a family, while “ they continue such,” and there is no similar trust of the proceeds of the sale of such lands, under a power contained in the will, such power, though not limited in terms, cannot be exercised until the family is broken up.</p> <p>At common law, the spiritual courts had no jurisdiction over real estate or its proceeds; and the provisions of 2 Rev. 8tat., 110, § 57, and Laws of 1837, 586, §.75, — giving the surrogate power in such cases, — only apply where there is an out-and-out conversion, and not where a mere discretionary power to sell or to make division is given.</p> <p>A power of sale, where the grantees of such power have authority to make such partition as they deem best, is not an imperative power or an out- and-out conversion, as will give the surrogate jurisdiction.</p> <p>Though a power to sell, for the purposes of distribution, be an entire conversion of land into money; yet, if one of the distributees die before actual conversion, the conversion, so far as his representatives are concerned, is not complete, and the executor is accountable for the proceeds only to his heir, and not his personal representatives.</p>

<p>An administrator’s ■ account ought to present clearly, so as to be seen at a glance, results, in reference to which the decree is final, so as to enable the court readily to make the abstract required by law, and an omission to do so is ground of legal suspicion; but an account cannot be rejected, merely because it mingles with statements as to personal property, statements as to the proceeds of real property.</p> <p>An heir-at-law, who, upon an accounting of the administrator, knowingly receives from the court in which such accounting is had, a certain sum as his share of the proceeds of land sold by such administrator, is estopped, in equity, from denying the validity of the sale.</p> <p>The power of an executor at common law is confined to personal estate. An executor has power over real estate, vatione officii, in three cases only. 1. Where no trustee to sell is named, and the proceeds of land sold are to pay debts and legacies. 2. In cases under the provisions of the Revised Statutes (2 Rev. Stat., 109, § 55), permitting a sale by those executors alone who have proved a will. 8. In cases where the survivorship of a naked power to sell is in question, where one of several donees of it, 'also made executors, remained.</p> <p>Where an executor is removed by a surrogate, the person succeeding to the administration is not chargeable with moneys collected by the former, or the value of chattels to whose use a legatee is entitled for life by the will.</p> <p>Statutory provisions conferring on administrators with the will annexed the right of exercising powers of sale given to executors — stated.</p>

<p>The testatrix died February 6,1856, and among other legacies in her will, she bequeathed a certain sum to the Troy Conference Academy, at West Poultney, Vermont. On the 13th day of January, 1857, the trustees of the academy executed a lease to a private individual for nine hundred and ninety-nine years, at a nominal rent, it being fully provided that the lessee should “ carry on the school contemplated by and in the charter, or acts incorporating the same, according to all the conditions of said acts of incorporation.”</p> <p>Held, that the legacy became vested in the academy on the death of the testatrix; and whether the subsequent execution of the lease operated to dissolve the corporation or not, the fact of such previous vesting controlled the course of the legacy and entitled the academy thereto.</p>

<p>Where a father, by an instrument in writing, surrendered his infant children to the custody of a charitable institution, with the powers and subject to the provisions contained in its act of incorporation; — Held, that notwithstanding such surrender, the surrogate may appoint a general guardian of the children. The obligations of such a guardian are not inconsistent with the guardianship which the institution may claim under the act of its incorporation.</p>

<p>A man does not lose Ms established domicil, and acquire a new one, while Ms absence is compulsory, or is dependent upon the happening of any contingent event; yet where a person in ill health is convinced that he cannot live in the climate of his domicil here, and he removes from it, — Held, not to he such a compulsory absence, continuing his domicil here, as that a change of domicil may not be established by proof of a fixed intention to abandon it, and to become a permanent resident of some other place.</p> <p>The deceased, being in ill health, sold his house and furniture, and closed up his business here, and departed for the South, declaring that “he never expected to return; that he expected to make the South his home.” He purchased, stocked, and cultivated a. plantation in Florida, whither he removed, and lived with his family for over a year, and until his death.</p> <p>Held, that the domicil of the deceased, at the time of his death, was in the State of Florida, and the widow was entitled to one-third of the personalty, according to the laws of that State.</p> <p>The question is one of intent, and not whether the deceased was compelled to change his domicil by reason of ill health.</p>

<p>Mere absence of an attesting witness from the State, abroad on a journey, or tour, does not authorize proof of the will by proving the handwriting of' the testator and of the witness. To entitle such testimony to be-given,, the -witness must reside out of the State;</p> <p>The statute providing for such proof, where all or any of the witnesses “reside” out of the State (3 Bev. Stat., 5 ed., 139,140, §§ 9,13), imports something more than mere absence from the State. The word should be taken in its broadest legal signification, and means actual residence, without regard to the domicil.</p>

This was a proceeding to prove a will propounded hy the executor. It was contested by three of the heirs-at-law and next of kin, being daughters and joined with their husbands, on the ground, among others, that the will was not properly executed.

On the 2d day of September, 184-3, this court, then held by the Hon. David B. Ogden, on the application of the administrator, made an order for the sale of the real estate of the intestate. The property embraced in this order consisted of several valuable houses and lots within the county of Hew York.

This was an application by Howell and others as administrators of one Maloney, an attorney and counsellor-at-law, for an order allowing a compromise between them and Blodgett, a debtor of the decedent. It appears that Blodgett, who is solvent, and one Arnold, who is insolvent and residing out of the State, became indebted to the decedent for a bill of costs in a suit in which he acted as their attorney.

This was an application on the part of Rollin Colson and Noble S. Colson, administrators of Ebenezer Colson, deceased, for authority to mortgage, lease, or sell the real estate of the intestate, to pay his debts, under section 40 of chapter 460 of the Laws of 1837. (3 Rev. Siat., 5 ed., 187, § 2.) In the list of debts annexed to the petition is a judgment in favor of Josiah Colson against the administrators, for $1137.65 damages and costs, perfected and docketed July 7, 1858.

<p>The provision of the statute (3 Be®. Stat, 5 ed., 160, § 35), providing that where an application for administration is made by a person other than the one having the prior right, the applicant shall file a written renunciation of persons having such prior right, or a citation shall be issued to such persons to show cause — must be construed strictly. Nothing will satisfy the statute but a written renunciation, or a citation to show cause.</p> <p>Thus, where letters of administration were granted to D.'B. and A. B., who had the prior right, but were revoked on their failure to give new securities, and letters were subsequently granted to C., who was next entitled to them, — Held, that D. B. and A. B. were entitled to notice of the application of C. The failure of D. B. and A. B. to furnish new sureties, does not amount to a “written renunciation” within the meaning of the statute, nor does the previous notice or citation served on them to appear and file new sureties, dispense with the necessity of service of a citation on them, upon C.’s application.</p> <p>Where letters of administration have been irregularly issued, without citing those having a prior right to the administration, they will be revoked.</p>

Nathan Chamberlain, paternal uncle of the child, applied for the appointment of Elon K. Downer, as guardian of the estate of Charles Chamberlain, a minor, of the age of five years, whose father is dead, but his mother is living. All the competent male relatives of the child, being five paternal uncles and two maternal uncles, consented to this appointment. On the first hearing, the mother opposed the appointment, claiming that she should be appointed.

This was an application for the final settlement of the accounts of the executor, &c., of Seth Calkins, deceased. The facts will sufficiently appear in the opinion.

The will was executed in thp State of New York, August 21, 1857, and was proved in the county of New York, April 5, 1858. Letters testamentary were granted on the same day to Lewis B. Brown. At the time of making- his will, and at the time of his death, the testator resided, and his personal property was situated, in the State of New York. It does not appear that the will has been proved in any other State.

On the petition of George F. Gilman, claiming to be an executor named in the -last will and testament of Nathaniel Gilman, deceased, a citation was issued to the widow, heirs, and next of kin, to have the will proved. The instrument propounded bore date April 10, 1858, and was alleged to have been executed in the city of New York, in the presence of William Miles, Samuel Hurley, and Alex. 0. Collins, as attesting witnesses.

This was an application for the proof of the will of Henry J. Van Hooser, deceased. The widow presented it for probate, and it was contested by some of the heirs. The facts are fully stated in the opinion.

This was an application .by the executors of the last will and testament of Dexter Haven, deceased, for the final settlement of their accounts as executors, and for directions as to the payment of certain legacies, and the final disposition of the fund in their hands.

This was an application for letters of administration upon the estate of Jacob Lowe, deceased. His sister, Margaret White, applied, and her claim was contested by Christina Lowe, claiming to be the widow of the deceased. The deceased left no descendants, parents, or brothers. The sister was, therefore, next entitled after the widow.

<p>Where a wife abandoned her husband, on account of his intemperate habits, cruel treatment, and absence from home, and during five successive years resided in an adjoining county, with a second husband, and it did not appear that she had knowledge of the death of her first husband, or that he was not generally well known to be living, — Held, not such a continuing absence for five successive years, within the provision of 3 Rev. Stat., 139, § 6, as to render valid the second marriage, and authorize the issuing of letters to the woman as the widow of the second husband.</p> <p>There should be a 6ona-fide absence of the absconding person from the State, and without being known to the other party to be living; or, at least, there should be such an absence from the county as would preclude the idea that he was living, after the most careful and diligent inquiry had been made.</p>

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

The will of Louisa W. Cuming, among other things, contained the following bequests: “ I give and bequeath to my son, Thomas Waring, all my silver and plated ware, and two parlor clocks, and direct the same to be held in trust for him until he shall marry, or arrive at twenty-one years of age.” Then, after giving a life estate to her husband, in all her property, real and personal, “ I give, devise, and bequeath to my son, Thomas Waring, all my property, real and personal, of…

<p>The facts are fully stated in the opinion.</p>

<p>It is a general rule, that a beneficiary who seeks the payment of a legacy must resort to the jurisdiction of the State or country where the testator was domiciled at the time of his death, where letters ■ estamentary were originally granted; and that payment of it will not be decreed by a foreign tribunal, out of assets situate within its jurisdiction which are under administration ancillary.</p> <p>But, it seems, that where it is shown that no injury can arise to creditors or legatees, from decreeing the payment of a legacy, the surrogate may require its payment out of assets situate within the jurisdiction where the legatee resides.</p> <p>The testator; at the time of his death, was domiciled in Connecticut, in which State his will was admitted to probate. The executor afterwards obtained letters ancillary here, to reach effects in this State.</p> <p>Held, that the executor could be called upon to account here only for such assets as the testator left in this State, and which were here at the time the letters ancillary were granted.</p> <p>The accounting of the executor here, is to be carried no further than may be necessary to enable our own- citizens to secure their claims out of assets situate within our own jurisdiction; after which, and the payment of expenses, the further administration of the assets is to be left to the jurisdiction where the estate is to be finally closed.</p>

The testator, Asher P. Hamlin, died August 11,1858, and by his will devised and bequeathed all his real and personal estate to his executors, upon trust, to divide the whole proceeds into ninety equal parts; and, among other bequests, to pay and deliver to his niece, Lydia Day, eight of the said ninety equal parts. To his sister, Jerutha Day, ten of the said ninety equal parts. To his nephew, James D. Hamlin, five of the said ninety equal parts.

On the accounting of Alexander Taylor, and Halsey W. Knapp, executors of the last will and testament of Geo' W. Miller, objections to the account were filed by Mary J. Delmotte, Sneckner, and others, next of kin, on the ground that certain furniture, a gold watch, and horses and carriage, belonging to the estate, were not accounted for.

<p>The testator, Alexander L. M. Scott, departed this life on the 31st day of August, 1857, leaving a will bearing date the 8th day of January, 1857, and leaving him surviving, his widow, Margaret M. Scott, and his children, James O. Scott (afterwards declared to be a person of unsound mind, and represented in this proceeding by John J. Monell, his committee), John M. Scott, Fanny L. Scott, and Gilbert 0. Scott — the two latter, minors.</p> <p>By the second clause of his will, the testator gaVe his wife his dwelling-house, &c., situate at ¡No. 582 Broome-street, in the city of ¡New York. This devise was revoked by a codicil to the will, bearing date the 17th day of August, 1857, and in lieu thereof he gave her his farm, &c., situate in Orange county, ¡New York.</p> <p>By the third clause of the will, the testator gave to his executors and executrix fifty thousand dollars, to be invested for the support of his wife during life, and of his two children, Louisa and Gilbert, during their minority. (This amount was reduced by the codicil to forty thousand dollars.)</p> <p>By the fourth clause, he directed that in case his wife should marry again, she should have the income of thirty thousand dollars, only during life, and that the income of the balance of the fund should be for the benefit of said minor children. This clause also "provides that upon the death of his wife, the sum invested and set apart for her should become a part of his residuary estate.</p> <p>By the sixth clause, he directed that on his son Gilbert becoming of age (or if he should die before that time, then in a reasonable time thereafter), his whole estate (except the fifty thousand dollars before invested and set apart), should be sold, unless the same could be divided to the satisfaction of all concerned".</p> <p>" By the seventh clause, he directed that the share of his estate given to Louisa should be invested, and the income thereof only should be paid to her during life.</p> <p>By the remaining clauses of his will, the testator gave his executors and executrix power to sell bis real and personal estate, and appointed his wife executrix, and his son Janies 0. Scott, and his friend Matthias Clark, executors thereof.</p> <p>The will was admitted to probate on the 8th day of October, 1857, and shortly thereafter letters testamentary were issued thereon to the persons named therein as executrix and executors.</p> <p>Shortly after the death of the testator, his widow loaned the sum of forty thousand dollars, belonging to the estate, to one John W. Lewis, taking his bond and mortgage therefor in her own name. The interest received by her from Lewis, subsequently, she appropriated to her own use, and for the support of her two minor' children.</p> <p>She also invested the sum of seven thousand seven hundred and fifty dollars, of moneys belonging to the estate, in the purchase of a house and lot in Thirty-fourth-street, in the city of Mew York, the deed of which was taken in her own name.</p> <p>She also paid the sum of nine hundred and eighty dollars as interest due upon a mortgage upon the farm in Orange county, which had been devised to her by the codicil in lieu of the Broome-street house.</p> <p>On the 5th of October, 1859, the executrix, on behalf of herself and the executors named in the will, applied to the surrogate for a final settlement of her accounts as such, and afterwards filed her separate account.</p> <p>In the accounts filed by her, Mrs. Scott credited herself with the sum of $11,663.87, being the aggregate amount of interest received by her from John W. Lewis on the forty thousand dollars mortgage, and which she had expended for herself and her two minor children. This credit John J. Monell, as committee of James O. Scott, objected to, on the ground that the trust created by the third clause of the will (under which Mrs. Scott claimed the right to appropriate the money in the manner above stated), was void, as it suspended the absolute power of alienation for a longer period than that allowed by the statute. Other objections to the account were made, which appear in the opinion. On the part of the executrix, it was claimed, that the payments with which she sought to credit herself, were all made by the advice and consent of all the children, and were formally ratified by them in writing.</p>

<p>An executor claimed credit on Ms accounting for moneys advanced to a sister of the testator in his lifetime.</p> <p>Held, that the court might presume, after a long lapse of time, — e. g., twenty-six years, — a request by the testator, and hold the estate responsible. But inasmuch as the executor had omitted to prove the claim within the statute period of limitation, the credit could not be allowed.</p> <p>But moneys advanced to the sister as a legatee, after the death of the testator, though made out of the executor’s private means, and not out of the estate, must be allowed as a charge against the estate.</p> <p>The payment of taxes by the executor accruing on the real estate, subsequent to the testator’s death, — being for the benefit of the heirs, — the court, after a long lapse of time, wiH presume a request, and allow as a charge against the estate.</p> <p>After a lapse of upwards of twenty years, the court will presume that the executor, in paying a debt barred by the statute, had evidence of a new promise by the testator, and credit should be allowed accordingly for such payment.</p> <p>So, the payment of a judgment obtained against the executor on a demand barred by the statute, on proof of a new promise made by Mm, — Held, a proper charge against the estate. Every presumption must be given in favor of the executor after a long lapse of time, — e. g., twenty-one years, —that he had good and sufficient reasons for making the new promise.</p> <p>Where there is a conflict of testimony as to certain payments alleged to have been made to the widow by the executor, and no vouchers are produced, —Eeld, that such payments will not be allowed.</p> <p>The executor is not chargeable with dividends due the estate, not actually received by him, he having allowed such dividends to be retained in satisfaction of a debt due from the testator, even where such satisfied debt was barred by the statute.</p>

The widow of the deceased, an executrix named in the paper offered for probate, filed her petition, asking to have such paper admitted to probate as the last will and testament of the deceased. On the 27th of January, 1863, the parties appeared and proceeded to a hearing. The facts fully appear in the opinion.

The testator died in Hew York city, the 12th of June, 1862. His widow, Louisa Adam, propounded for probate, as the last will and testament of the decedent, a paper, bearing date June 24, 1859, and witnessed by John A. Stemmier and Lorenz Sebastian. Its probate was contested on the grounds of informality in the execution ; of mental incapacity of the testator; and of undue influence exercised by his wife, the proponent.

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

<p>On a petition by a special collector appointed during a contest on the probate of a will, for an order directing the sale of certain personal property alleged to belong to the estate, it appeared that the property in question was in the actual possession of a person claiming to be the widow of the decedent, who also claimed title to it on the ground that she had loaned the decedent the money with which the property was purchased.</p> <p>Held, 1. That the paper propounded as the decedent’s will, could not be resorted to for evidence as to the title.</p> <p>3. Without trying the absolute title of the property, the surrogate must determine the probable ownership.</p> <p>3. Although the probable title was in the estate, yet the surrogate would not order a sale of property which was not actually in the hands of the representative of the estate; but would direct the collector to bring suit to test the title.</p>

Joseph Larocque, the administrator of the goods, &c., of Warren Saxton, deceased, presented a petition foil an accounting by George Clark and Orville Brooks, executors of the last will and testament of Charles Saxton, deceased. The executors rendered an account of their proceedings, when it appeared that the sum of ten thousand dollars was in their hands for distribution.

The intestate died January, 1, 1863, and her husband applied for letters of administration upon her estate. Jacob Elmer, an alleged creditor of the intestate, opposed the granting of letters, on the ground that the petitioner was intemperate in his habits, which incapacitated him from administering upon the estate.

The testator, Abraham E. Lawrence, departed this life on the 3d day of August, 1863, and on the 13th of the same month the will was propounded by Andrew Lawrence.

On the accounting of the administrator of George H. Powell, one Decker presented an assignment executed by Mrs. Amelia D. Morton, who was (except for the assignment) entitled* to a distributive share of the estate, transferring to him all her interest in the estate; and he claimed that her share be paid to him. Por several years prior to the assignment, Mr. Morton had been employed by Decker to sell merchandise to purchasers, and collect the price.

The petitioners, Catharine Dobke and Gustavus Pheiffer, sought to obtain an order rescinding the conclusions of acting-surrogate Daly, and to open a decree, entered by him, denying probate to a paper propounded as the last will and testa-, ment of John Munro, deceased.

Edward P. Cowles recovered a judgment, February 27th, 1862, in the Supreme Court, against Edward G-. Thompson, as administrator with the will annexed, of Abraham Gr. Thompson, for $2,000.

James G-. Irwin died in January, 1863, leaving a will, which was offered for probate. The widow of the deceased objected to the probate, on the grounds that the will was not properly executed, and that there was not a sufficient publication of the instrument. It appeared by the testimony of John Hunter, who drew the will,- that he read the will to the testator, and then told him to-call his witnesses. The testator went to the door and called in Henry White and James H. Irwin.

The facts as agreed upon, and the claims of the respective parties in this case, were as follows: The proceeds for distribution were the moneys arising from the sale of real estate under the decree of the surrogate of Oswégo county, for the payment of the debts of the deceased. It was admitted that the deceased left three children — viz.,.