Volume 1 — Tucker's Surrogate Reports

<p>Where an executor’s account states that certain assets of the estate were one-third interest in a copartnership, as yet unliquidated, and it appeared the executor was surviving partner of his testator.—Held that the executor should not be attached for contempt, but his accounts should be investigated in the usual manner of practice in a Surrogate’s Court.</p> <p>An executor, who is a surviving partner of his testator, must produce the books and accounts of the firm.</p>

<p>The law of married women before the act of 1860. Husband and wife cannot be partners. ■ The law of 1860 does not relate to earnings and profits made by a woman in a business in which she is united with her husband. Husband’s estate liable for wife’s separate property put into the business and received by him, with interest.</p>

<p>The policy of our law does not favor administration by strangers. But a widow having consented to join a stronger with her in the administration, cannot revoke the consent.</p>

<p>A petition filed by a widow with the Surrogate for admeasurement of dower, is not the commencement of proceedings for the recovery of dower as contemplated by the statute.</p>

<p>A judgment recovered in a court of law against an executor for services rendered in and about tbe administration of the estate, is an expense of administration, and not a debt of the estate.</p>

<p>Where objections to the issuing of letters testamentary are filed by a person claiming under oath to be a creditor of the estate, the Surrogate will entertain and try them, even though the person named as executor in the will alleges the objector to be a debtor instead of a creditor. The Surrogate will assume that he is a creditor.</p>

<p>Upon the discovery and probate of a will of later date, the Surrogate would have power to revoke a decree of probate of an earlier will. The interest of a claimant, when sworn to, will be assumed as proven prima fade, and will not be tried on an application for the giving of security.</p> <p>What is the due administration of an estate.</p>

<p>• Exemplification of proofs not required to accompany exemplification of a foreign will, when offered to the Surrogate for the purpose of obtaining letters testamentary.</p>

<p>No counsel fees can be allowed by a Surrogate on a probate proceeding.</p>

<p>The collector of the personal property of an estate willbe directed by the Surrogate to bring suit for the recovery of assets, where they probably belong to the estate, but are detained from his possession.</p>

<p>The policy of our law discourages claims for labor and service among and between near relatives, and looks with suspicion upon the presentation of such claims against the estates of deceased persons.</p>

<p>'Legacies consisting of personal property or charged upon personal estate, and payable in the future, vest from the death of the testator, and are not divested by the death of the legatee, but belong to his representatives..</p>

<p>. Removal of a general guardian for misconduct. Decree charging him / with moneys received, and.the costs of the .proceeding, personally.</p>

<p>Surrogates have no jurisdiction over the conduct and the accounts of the attorneys and counsel of guardians.</p> <p>Payment of infant’s money into Court.</p>

<p>Legal resilience of a minor after parents’ death. Who may change the residence of minors.</p>

<p>Disobedience to a subpoena duces tecum.</p>

<p>An administrator held responsible for non-collection of a good debt.</p>

<p>A debt, due to the testator or his estate, from one whom he makes a cestui que trust under his will, to he collected and deducted by the executor out of the principal of the trust fund.</p>

<p>A mariner made a nuncupative will on tlie Mississippi river, opposite Vicksburg.—Held, that the mariner was not “ at sea,” and the will rejected. The limits laid down by statute within which such wills can he maintained, will not he enlarged by construction.'</p>

<p>The domicil of a wife is determined by that of her husband. A wife living apart from her husband cannot have a separate domicil for testamentaiy purposes.</p>

<p>Abatement of money legacies. They are -not a charge on the realty unless expressly declared so to be.</p>

<p>When the account hooks of executors will be required to he produced.</p>

The will nominated Daniel Devlin and Levi Silliman Ives as executors. Ives filed a written renunciation, arid letters issued to Devlin only. Devlin died, and Ives then applied by petition asking to retract bis renunciation and receive letters.

<p>What is drunkenness, as declared by the statute to constitute incompetency to administer.</p>

<p>The 'devise to G-. C. of a house and land on the line of an unopened avenue, gave G-. C. one-half the avenue, and entitled him' to the award given by the Supreme Court for damages in opening the avenue. ... . .</p>

<p>Attorneys are not officers of the Surrogate’s Court. A party to a proceeding in a Surrogate’s Court may''select his own proctor, and change him at will. . ; ’ ' •></p>

<p>Á compromise of k claim belonging, to the estate of a deceased person - will not be- allowed,.except-in special cases, as in case of insolvency, or doubtful validjty of the claim.</p>

<p>Extraordinary dividends belong to the person holding a life interest in the stock upon which such dividends áre earned.'</p>

<p>A-guardian being insolvent,- his "sureties will be prosecuted before .entertaining a motion for his imprisonment on attachment . .' ■ ’</p>

<p>The jurisdiction of the Court of Chancery to grant divorces was not .original, but limited and statutory. Where a record of a decree of .divorce, granted by that Court, is offered in evidence, exemplified copies of the pleadings, orders and'master’s report, must be produced.</p>

<p>An administrator, whose letters have been revoked by the Surrogate, can be cited'to account, but is not subject to the orders of the Surrogate, otherwise than in the proceedings for accounting.</p>

<p>The Surrogate will not appoint a special guardian on the nomination of an executor, to examine the executor’s accounts on behalf of a minor.</p>

<p>A general guardian held liable for moneys belonging to his ward of which the guardian had been robbed. It is his duty to prosecute for its recovery. • '</p>

<p>■Improvidence and want of .understanding, in order to disqualify for administration, must amount to a lack of intelligence, and are not to be presumed from a simple lack.of information upon legal subjects or' business matters. A creditor, in such a case,-must look to the sureties. . . .</p>

<p>The Surrogate cannot pay over to the general guardian a sum of money which is found in the Surrogate’s office, belonging to an infant, and which is neither a legacy or a distributive share.</p>

<p>A; recovered ¿judgment against an estate which’ the Surrogate ordered paid by the administrator. But the Legislature stepped in and ordered the Comptroller, of the city to pay it. The Comptroller .paid A.’s attorneys of record. ' A. now petitions the Surrogate for payment to her.—Held, that A.’s only remedy was in a Court of Law.</p>

<p>A residuary legatee, as such, has no right to letters of administration de lords non, with the will annexed.</p>

<p>The proceeding for probate involves simply the factum of the will. The Surrogate does not then examine the contents of the will, except as they hear on the question of its execution and authenticity, and the capacity of the testator.</p>

<p>A special guardian in probate proceedings should be a lawyer. No person can appear in behalf of another, in the New York Surrogate’s Court, who is not admitted as an attorney at law.</p>

<p>Circumstances of cohabitation, acknowledgment, reputation and recognition by the family, form a presumption that a connection was matrimonial, not meretricious. An administratrix charged personally with interest and expenses of compulsory accounting.</p>

<p>How an estate is to be settled on accounting, where a son of the testator was a subscribing witness to the will, examined on the probate. .</p>

<p>The distinction made by the statutes of tlxis State between a testamentary and a genex-al guax-dian. A testamentary guardian not to receive a minor’s legacy or distributive share, -but in default of a , general guardian, the moixeys must be paid into,Court.</p>

<p>A person named in a will as the executor, and who -is also a subscribing witness, may he examined as a witness on the probata</p>

<p>Where an executor was ordered to file an inventory of property out of this State, and he appealed, and the Court of Appeals sustained . the order, an attachment will he ordered on the remittitur. , .</p>

<p>Attachment against executor for. disobedience to a decree for payment of money to a creditor.</p>

<p>Where a testator directs Ms executors to give security, they ought to make a bond to the legatees, not to the people of the State.</p>

<p>Responsibility for a devastavit.-</p>

<p>The intent of the legislature has been to leave a female guardian of minors, liable to removal by the Surrogate, after her own marriage, lest her duties to the child might be forgotten in her obedience or affection to her husband. Without a strong case, however, this Court will not interfere to deprive a mother of guardianship.</p>

<p>David Patullo died at Glen Cove, Queens county, M. Y., September 12,1868, being, at or immediately previous to his death, resident in the county of Mew York. The Public Administrator in the city of Mew York seized a portion of his effects, and advertised notice that he should apply to the Surrogate for letters of administration on the 23d day of October, stating the amount of the assets at $200,000. On that day, the proctor for the Public Administrator attended and demanded letters. One Hugh Ferrigan, who claimed to be a creditor of the decedent, also appeared and gave oral notice that he objected to and contested the granting of letters of administration to the Public Administrator. The Surrogate set down the case for the hearing of the contest on the objections, upon his Movember calendar of contested administrations and wills, but required of the objector to give a notice of his contest in writing. Such a notice of contest was accordingly given and filed on the 27th-October, 1868;</p> <p>- The contest was made under the following provision of the Revised Statutes: .</p> <p>“At the time specified in such notice'(to be ^advertised by the Public Administrator), any person interested in the estate of the deceased may appear and contest the granting of letters of. -administration to the Public Administrator; and shall be entitled to subpoenas to compel the attendance of witnesses on such hearing.” (3 H. ¿S.,5th ed.,p¡ 209, § 18.)</p> <p>It is proper to remark in this place, that on the 6th October, on the petition of the same person, alleging himself a creditor, the Surrogate had appointed Edward Schell collector of the personal estate, who had given bonds, in $400,000, and taken -possession of the assets.</p> <p>On the 11th day of November, 1868; Henry, -E: Davies, Jr.,-Public Administrator, applied to a Justice of the Supreme Court (Sutherland), in Chambers,- for an alternative mandamus, which, was granted, to the relator and was served on the Surrogate on the 12th day of November. By this writ the Surrogate was commanded, “ that immediately after the receipt of the ¡writ," he grgnt letters of administration upon the estate of the said David Patullo, deceased, to the said Henry E. Davies, Public. Administrator, or that he show cause to the contrary before, the Supreme- Court, at. a Special Term, on the 16th day of November.” To this writ, the Surrogate made return on the 16th of November, admitting the facts, and averring -that the application of the Public Administrator for administration and the contest thereof were upon his calendar,- and had not yet been reached in its order on the call of said calendar; admitting that he had not issued letters to the relator, and that he did not, immediately after the receipt of the' alternative writ'of mandamus, grant such; letters to the relator (as he was thereby commanded to-, do), and for cause tc the .contrary^ the Surrogate 'showed. and respectfully submitted and insisted, that the granting of letters of administration, and the determining and deciding of all questions arising upon applications for such letters, are judicial powers solely and exclusively vested in the Surrogate, by the laws of this State, and that the Supreme Court has no jurisdiction to adjudicate any contest in the Surrogate’s Court, or to direct or command the granting of such letters to the Public Administrator, or to any other person, except upon an appeal from the said Surrogate, and the more especially in the present instance, inasmuch as notice has been given of the contesting of the grant of such letters, and the contest thereon remains untried by the said Surrogate.”</p> <p>The return waS argued before Mr. Justice Cardozo, of the Supreme Court, by E. L. Larremore and F. Gr. McDonald, Esqs., for the Surrogate, and by William Fullerton, Esq., for the relator. The Justice delivered his decision on the 17th day of December, as follows:</p> <p>“ The relator has no remedy except by mandamus. His rights, unless a person who has prior claim to administer appears, are fixed by statute. The return I think is defective in not showing that the person objecting to the letters issuing to the relator, is .interested. If the respondent thinks he can amend it so as to sh.ow that the objector has a prior right, he may do so. Otherwise a peremptory mandamus.. Ho costs.”</p> <p>There being no further or amended return offered by the Surrogate, a peremptory mandamus was granted, and served on the Surrogate on the • 22d day of December, 1868. By this writ the Surrogate was commanded, that “ immediately after the receipt of this writ, you do issue letters of administration upon the estate of the said David Patullo, deceased, to Henry E. Davies, Jr., Public Administrator in the city of Hew York, and how you shall have executed this writ, make known to our said Supreme Court at a special term, to be held at the City Hall, in the .city of Hew York, on the 29th day of December) 1868.” On the same 22d day of December, there personally appeared before the Surrogate, one Helen Patullo Simpson Mitchell, a niece, and one of the next of kin of the ' decedent, and applied by petition for letters of administration to be issued to her, producing the renunciation of the; other next of kin, Edward Weir and George Patullo Weir, nephews of the intestate, by them attorney in fact; ’ and filing their renunciation and power of attorney in the Surrogate’s office.</p>

The Surrogate, on the petition- of a person claiming' to be ■ a ' creditor of the estate, hid appointed Edward - Schell, Colléctor or.

<p>The provisions of a will may be declared null and void on final accounting, where it was revoked by a subsequent marriage of a testatrix. Intestacy declared in a decree on final accounting.</p>

<p>A will "once proved ás a will of personalty may afterwards be proven as a will of real estate, but in that event must be recorded anew by the Surrogate. ...</p>

<p>On settlement of accounts on final accounting, a claim of widow for separate property of hers, taken into possession of her husband in his life time, disallowed for want of proof. A claim of the executor for moneys advanced to testator, also disallowed for want of proof.</p>

<p>Where an executor de son tort afterwards takes letters testamentary, his responsibility relates back to the death-of his testator,"¿r to'his own first act of unauthorized interference. ' ' '</p>

<p>An executor is never discharged as suck. And every person who takes letters testamentaiy must file an inventory of asset's, "</p>

<p>An exemplified copy of a will, executed conformably to the lex loci, by a citizen of this State, temporarily absent therefrom, cannot be received by the Surrogate. The original will required.</p>

<p>Upon an application to open a decree on accounting, error or fraud must be clearly shown, the lapse of time must be explained, and the application must be generally meritorious.</p>

<p>The act of 1866, gives full commissions to a trustee upon each accounting.</p>

<p>The assistants to the Surrogate of the county of New York administer and certify oaths, which, in contemplation of law are taken before the Surrogate, the legal presumption being that the witnesses are examined before him. When these depositions are recorded, the name of the Surrogate is substituted upon the jurat for that of his assistant.</p>

<p>Unless a will so directs, a legacy does not, draw interest before it is legally payable. Annuities run from death'of testator. .</p>

<p>Full payments to creditors disallowed in a bankrupt estate. Administratrix charged on a collusive sale. Real estate items stricken from her account. Machinery built into the wall is part of the realty.</p>

The proceeds arising from the sale of the real estate were found to be insufficient for the payment of the intestate’s debts. Mrs. Voorhies, a creditor, had obtained a judgment, after trial at law, against the administrator, for $5,621.81, which claim had been established before the Surrogate ; and the administrator had paid a portion of this indebtedness.

<p>Where surplus moneys, belonging to a minor, are paid into Court, the Surrogate may order a portion applied for the minor’s support.</p>

This paper was propounded for probate by S. D. Yan Schaick, one of the persons nominated therein as an executor. It was contested by the widow of decedent, as widow, and as general guardian of the only heir andhext of kin, a minor. On the trial, the contestant’s counsel called the widow, Margaretta Dieterich, as a witness in her own behalf. Objection to her testimony being taken.

<p>The law of 1863 gives to each executor full commissions in every estate exceeding $100,000 in value, without regard to the services rendered hy them respectively.</p>

<p>What is a subscription of a testator to a will. Proof of handwriting cannot be given where the subscription is not made in handwriting.</p>

<p>Payment of a note held to have been properly made within this State, although secured by a mortgage elsewhere. The real estate mortgaged must, however, be relieved of the lien.</p>

<p>A person claiming as legatee under an alleged will of prior date which had been lost or destroyed, may be admitted to contest the paper propounded before the Surrogate, upon his commencing an action in the Supreme Court to establish there the destroyed will.</p>

<p>An executor cannot be allowed for professional services as an attorney for the estate, even upon a written retainer, and where his services have been highly beneficial to the estate.</p>

<p>Where a new surety has to he given by an administrator, a bond reciting the former bond, and executed by the single new surety, is in proper form. The administratrix need not join in the new bond.</p>

<p>Contradictory evidence being given by the witnesses to a paper propounded as a will, and one of them, a counselor:at-law, swearing that all the formalities were observed, and the two others, ladies, not remembering a portion of the proceeding—Held, that the professional evidence was most reliable, and the presumption was in favor of the due execution.</p>

<p>Charges made against infants for moneys paid and expended for their benefit during administration of an estate, not allowed to an administrator and administratrix, where there has been no guardian of the infants.</p> <p>A guardian cannot encroach on the capital of his ward’s personalty, without previous order.</p>

<p>An administrator with the will cannot account for, and is not liable as such before the Surrogate for rents of real estate, received under a devise which the Courts have declared void, and where the testator has been declared to have died intestate as to such realty and rents.</p>

<p>The material testimony of a witness who has not been impeached as to general character, and who has been contradicted only as to particulars of his testimony, ought not to be discredited.</p> <p>It is not necessary that a testator should have touched the paper of the will with his own hand, or with the point of his pen, if the subscription of his name thereto be adopted by his acknowledgment and declaration.</p> <p>The evidence only of such witnesses as are acquainted with the handwriting of the decedent can be received, as to whether the paper propounded, or its subscription, are in decedent’s handwriting.</p> <p>Witnesses may be examined as to the general handwriting and subscription of- a former will, already admitted to probate, and made an exhibit (in a proceeding tó prove a testamentary paper of later date), and may compare such handwriting and subscription with those of the paper propounded, and testify, as to their judgment, therefrom.</p> <p>Other papers, not in the case, cannot be compared by the witnesses. Comparison being a question of fact, the evidence of experts not acquainted with the handwriting of the decedent, is not competent. The Surrogate will make the comparison, with the aid only of wit- • nesses so acquainted with the handwriting.</p> <p>Photographs of last wills and testaments, not admitted as evidence.</p> <p>In proceedings to prove an alleged later will and to revoke probate of one already admitted to probate, allegations need not be filed within one year, under the statute;</p>

<p>A marriage established before the Surrogate, which had been solemnized under a false name on the part of the husband, and had be^n concealed by the husband from his relatives.</p> <p>The Supreme Court, after ordering issues to be settled and tried at circuit, on an appeal from the Surrogate’s decision in an administration proceeding, reversed its own order, as having been made without power, and ordered new trial before" the Surrogate.</p> <p>In obedience to this order, after four years spent in the appeal, the Surrogate placed the proceeding again on his contested calendar, for a</p> <p>■new trial. ;</p>

Isabella Phillips McGuire propounded for probate, May 25th, 1867, a paper purporting to be the last will and testament, bequeathing personal property only, of the decedent.. Her petition set forth that she was his widow, and that his only surviving heirs and next of Mn were his three sons William James, George and Hugh, whose places of residence, after diligent search and inquiry, she had not been able to ascertain.

<p>Two instruments, executed and attested at the same time, may constitute the will of a testator, and may he admitted to prohate as such, notwithstanding their repugnance in certain particulars.</p> <p>The tearing up of a will is not to he considered a revocation, if the testator was at the time under such mental excitement as incapacitated her from forming a reasonable and intelligent intention to revoke her will.</p>

<p>Where the witnesses to a will swore, on their direct-examination, to the contents of a printed deposition which set forth the observance of all the necessary legal formalities in the execution of a will, and on their cross-examination, on question and answer, swore that these formalities were not observed, probate was denied.</p> <p>The witnesses not being professional men of the law, and not'having consulted the statute, no presumption of the observance of the necessary formalities obtained.</p>

<p>Where the Surrogate, in 1857, had ordered one of the executors to “ reform his accounts,” and the executor appealed, and the remittitur in that appeal came back to the Surrogate’s Court after eleven years, an order was made that all the executors account, arid a referencemade to an auditor, whose reports were confirmed.</p> <p>Where a litigation, to which a minor should have been a party, was carried on iri the Supreme Court and Court of Appeals for eleven years, and the Surrogate discovered the omission on the remittitur, a special guardian was appointed to care for the minor’s interests; -</p>

<p>Construction of the act of 1860, limiting bequests to benevolent and ■ charitable corporations.</p> <p>Where a testator bequeathed his estate in trust to pay an annuity to his wife, &c., and upon her decease to hold for the use and benefit of and convey to a charitable society—Held, that the bequest was valid as to one-half of the estate, and the annuity was chargeable upon that half the bequest of which was good; and that testator died intestate as to the other half.</p>

<p>A balance of money left by a testator with his sons, who had "suc- - ceeded to his former' business.—Held, under the circumstances, -to have been intended as a loan to them.</p> <p>A testator having moneys in the hands of his sons, refers to such moneys, in his will, as “ lent or advanced.”—Held, that the circumstan'ce's did not constitute an “ advancement,” as described in our statute.</p>

<p>" A sale of lauds vacated for irregularity where the description was faulty and the price disproportionate.</p> <p>The Surrogate cannot allow the purchaser counsel fees.</p>

<p>Reasons for not filing an executor’s account overruled.</p>

<p>Probate <?f will denied for want of proof of observance of the statutory formalities of execution.</p> <p>Marriage established by evidence of reputation and cohabitation. Reversal of Surrogate’s decree, by the Supreme Court, without a trial of the issues before a jury.</p>

<p>A person not having a demand against the estate of a deceased person, cannot have an order for a. compulsory accounting against.an executor,'' 'V A general.guardian -claiming against his "late ward, who has arrived at age, must settle accounts before the Surrogate, and .cannot sue in' the Supreme Court for the balance due him....... .</p>

<p>Responsibility of an attorney" for mistaken and erroneous advice given • to his client.- ■ An attorney held to respond to his client for culpable negligence" in.not - watching the,changes of the public statute law ■ made by the Legislature. • .</p>

<p>Petition for sale of real estate of an intestate must be made within three years. ■ - - 1 " '</p>

<p>The Surrogate will not instruct a special guardian appointed by him for a minor, in a probate proceeding, where the propounded will is adverse to the minor’s interest, to discontinue opposition to the will. The Supreme Court, in such a case, where the minor was twenty years of age and her interest against the will was $250,000, instructed the special guardian to discontinue his opposition, at the minor’s request, and the will went to probate.</p>

Anna Margaret Jackson presented her petition to the acting Surrogate of- ¡New York- on the 16th day of August, 1862, setting forth that she was the widow of Moses W. S. Jackson, deceased, and a person named as executrix in the last will -and testament of said decedent; that said decedent was, at, or immediately- previous to his death, an inhabitant of the township of Bergen, in the county of Hudsoti, in the State of New Jersey, and departed this life in said county on the…

The last page of the paper propounded as a will in this proceeding read thus: “ In witness whereof, I, Harris Oohen, have to this, my last will and testament, consisting -of one sheet and written :upon three-pages, subscribed'my name and set my seal, this twenty-sixth.day-of January, eighteen hundred and sixty-nine. [L. 8.] “ Subscribed by the testator, after the same was fully read and explained to him, in the presence of each'of us, and-at the same time declared by him to…

<p>A deCB.be of distribution made according to the. law . of the place of "domicil of intestate, namely, the Territory of New Mexico. ' -</p> <p>The statute law; of New Mexico excluding brothers and sisters of ’the half blood, where there ate relatives of the whole blood, the former were held to take no distributive share. ■</p>

. The Public .Administrator presented his petition to the Surrogate, setting forth the death of -Francis -Depau, probate of his will, and the issuing of letters testamentary • to the executors; and that all the executors.are deceased, ■ leaving assets unadministered to a large amount, and praying for the issuing of letters of administration cum testamento anneseo to the petitioner as Public Administrator in the city of FTew York. , Amelia Fowler, one of the legatees and…

- Sidney S. Harris, one of the persons named as executors therein, propounded for probate the following paper, purporting to be a will… Held: , owned and enjoyed by her, and her heirs and assigiis forever; which said legacy or legacies, given to-my wife as aforesaid, I hereby declare is intended to be and is so given to her in full satisfaction and recompense of and for . her dower and thirds which she may or can in any wise ’ claim or demand out of my estáte. 1 1 Second.

Patrick McElroy propounded, for probate, on the 10th day ofuSTovember, 1865, a paper purporting to be the -will qf Patrick M. Langton, deceased, setting forth that it related to both real and personal property; that the widow of the decedent was Lydia M. Langton, and that the only next of kin and heirs-at-law were Mary Langton, the mother of the decedent,- and.

The testator left two daughters, both of whom died afterwards, without issue. The question upon the final accounting of the executors was, to whom should the property and estate be paid over. The following was the will: I, James Robinson, of the city of Rew York, do make, publish and declare this to be my last will and testament, in manner following, that is to say: First.

<p>Charges against an infant next of kin for board, made by administratrix of an intestate and allowed and paid by herself to herself, disallowed on final accounting.</p>

<p>An administratrix held liable for loss of assets intrusted by her to an agent, less the value of securities assigned to her by him.</p> <p>The estate of the intestate husband held liable for income of his wife’s realty, received and converted by him during coverture.</p>

<p>Incomplete accounts of an administrator will be sent to an auditor. Taxes paid on real estate, due at intestate’s death, allowed.</p> <p>Sale of lease sustained, the amount received being reasonable.</p>

<p>Wheee the Surrogate had made a decree for the payment of money on final accounting, and the administrators desired to appeal, but tendered to the Surrogate, for his approval, informal and null bonds of appeal, without giving the Surrogate the notice of appeal required by statute, the Supreme Court, on ex parte application of the administrators, compelled the Surrogate to point out the defects in the bonds, and the want of legal notice, so that the appellants’ proctor, being thus instructed by the Surrogate, was able to prepare and tender a proper bond and notice.</p>

<p>Application for leave ,to issue execution against the real estate of a person who had been dead eight years.. Review of the statutory provisions on the subjecti • - - '■ : -• - 1</p>

<p>Apportionment ordered of an assessment for a.permanent improvement, "between the life tenant and the residuary devisees, according to the age of the life tenant.</p>

<p>Probate refused where one subscribing witness swore he was not informed that the paper was the will of the decedent, and the other swore that she did not recollect what was said, but that she was satisfied, at the time, that she was witnessing a will. Meld—no publication or declaration as a will.</p>

<p>The Court of last resort having decided that a Surrogate cannot determine a disputed claim against an estate, the decision of Chancellor Walworth, in 2d Barbour, is overruled.</p> <p>Review-of the decisions of Surrogates and of Supreme.Court General Terms, on this question.</p> <p>Surrogates are prohibited from assuming jurisdiction to try disputed -claims, even by consent.</p>

<p>A devise declared void, where limited upon three minorities. In falling, it carries with it all subsequent and dependent limitations.</p> <p>B. died leaving a will, containg this unlawful limitation. The devise failing, he is declared to have died intestate; and his widow took only her dower hi his real estate, and her third part of his personalty.</p>

<p>Where W. was divorced from his wife by the Supreme Court of this State, and forbidden to re-marry, but went to reside in New Jersey, and re-married there, and returned hither and died, leaving-a widow and children of the second marriage.—EM, that .the second marriage was valid, and the widow and children of that marriage entitled to .the sum and personal property to be set apart under our statutes.</p> <p>The interest which the first wife had in her husband’s personal property had been liquidated in the shape of alimony ordered paid to her by the Supreme Court during the life of the testator.</p>

<p>Whether an attachment for refusing to return an inventory can issue against an administratrix, who is a married woman—Quera ? An order made in such case, that husband and wife' show cause, &c.</p>

Christina K. Martling, propounded the following paper: In the name of God: Amen. I, Garret J. Hopper of the city, county and State of Hew York, considering the uncertainty of this life, and being of sound -mind and memory—blessed be Almighty God for the same—do make, declare and publish this, my last will and testament, in the manner as follows, viz: Imprimis.

Robert Hood died at Manilla, in the ■ Phillippine Islands. His will was proven, September 4, 186.0, before .the Surrogate of Hew York, and letters testamentary issued to John H. Hood. The following was the will: Know ye all men by these presents : That I, Mr. Robert .

<p>Where one of the next of kin, who was cited to attend probate, and did not contest the probate, and gave no sufficient reason for her failure to contest, afterwards moved to vacate the order of probate, claiming that others next of kin existed who were not cited, which the executor denied, the motion was refused by the Surrogate, there appearing to be no merits in her application, and there being a remedy given by statute, on the filing of allegations against the probate, by the petitioner, or any other claiming to be next of kin.</p>

<p>The Surrogate ordered the hond of a general guardian to be prosecuted where there had been a palpable breach of its condition, and the guardian had died; leaving no will, and there was no administration . of his goods in-this State,</p>

<p>Where a legacy of' §12,000 was given to nephews and nieces, viz.,, the five children of C., to he equally divided, share and share alike,” and one died, in testatoi-’g lifetime, leaving a husband and child surviving; Held, that the children took individually and hot as a class, and.that the surviving four took each a fifth, and the remaining fifth fell into the residuum.</p> <p>The same deceased legatee being also a residuary legatee, and the residuum being bequeathed to several in common; Held, that her share of the residuum passed to the next of kin of testatrix. -</p> <p>Reference to. an auditor to report the amount to be retained by executors to keep a lot in a cemetery in order, as directed by the will.</p> <p>A sum given to a person flamed as executor, as compensation for his services, Held,, to fall into the residuum where that executor never . qualified. - 1 " ’. ■ -"</p>

<p>Upon a final settlement, the Surrogate will not order payment of a legacy to a foreign guardian, even where the will provided that “money or property which might, under it, become vested in a minor, might be" delivered to any foreign guardianthere being a guardian appointed for the same infant by the Supreme Court of this State, payment was ordered made to him.</p> <p>The treaty with Switzerland of 1850, does not require the reciprocal recognition of foreign guardians.</p>

Maby H. Wallace, general legatee under the instrument, propounded for probate the will of the decedent, who was her brother. The only next of kin to be cited was the father of the decedent and the proponent, George Harder, who contested the probate. The only testimony taken was that of the two subscribing witnesses, under a commission issued to Jefferson, in the State of Ohio.

Charles F. Pbescott died in the city of Hew York intestate, and letters of administration were issued on the 30th of October, 1867, to Dexter B. Britton, a creditor, upon the renunciation of the widow and the Public Administrator, there being no general guardian, of his only child, the next of kin, who was an infant.

- Upon the death'of William T. Pinckney, his widow, Eliza Pinckney, was advised to and did apply for administration, as in case of intestacy, under the state of, facts hereafter related. - An application for probate was, however, also made hy ' Howard Pinckney,- and was heard at the same time: This petitioner was named as an executor in a paper purporting to be the will of the decedent, and dated the 16th day of March, 1863.

<p>Construction of a trust, which was for the support, &c., of a widow and minor children, until remarriage or majority, but which changed its character on the widow’s remarriage.</p> <p>As the widow has married again, she is entitled under the will only to the interest of the income of one-third of the residuum. The executors are to invest the income of this third, and pay her the interest of the amounts invested. This one-third of the residuum is not otherwise bequeathed by the will.</p> <p>The executors have a trust for the benefit of the infants, in the other two-thirds of the residuum, for the income of which they are responsible.</p>

Emma C. Clark presented her petition setting forth the death of the decedent, and that the petitioner was a legatee named in her last will and testament, and propounded it for probate. -Citations to kin were issued.

<p>An annuity, or income of a "sum directed to be invested for support, commences to run from the death of testator. . ■</p> <p>Otherwise, with interest on a legacy of a sum of money, which only runs from the time when such legacy is due.</p>

<p>Tins will of Frederic Bronson, admitted to probate oil the lYtli day of Hovember, 1868, gives his executors a power of sale of real estate and establishes a trust in them, It then appoints the executors by the following clause:</p> <p>“ Thirteenth. I hereby appoint Philip R. Kearney and John J. Townsend, both of the city of Hew York, general executors of this my will, and trustees of all that portion of my estate, the trust of which is not conferred upon the said Hew York Life Insurance and Trust Company, except as herein provided; and in- ease of the death of either of them before the termination of their duties under this my will, the survivor shall have the poAver, and it shall be his duty, to appoint another executor and trustee, in the place of the one so dying, by deed under his or their hands and seals, and filed in the Surrogate’s office, of the county of Hew York, and thereupon such nominee shall be and become invested with all the rights, powers and duties of the executor and trustee so dying, in like manner as if he had been named executor and trustee in this my will, and the same poAver of appointment may be exercised, from time to time, in case of vacancy by death, by the surviving trustee and executor, whether original or substituted. And I further authorize and empower the executors of this my will, to retain for their compensation for the execution of my will, and the trusts therein mentioned, five per cent on the net income of my said estate, that shall be collected and received by them.”</p> <p>On the 26th day of Hovember, 1869, the surviAdng executor of this will, John J. Townsend, petitioned the Surrogate, setting forth the original grant of letters testamentary to both executors named in the will; that Philip R. Kearney, after the issue of such letters to him, and on the 23d day of June, 186Y, had died; and that, pursuant to the power and direction contained in.the will, the petitioner had, by deed, under his hand and seal, nominated and appointed Egerton L. Winthrop, as an executor of said will, in conjunction with the petitioner, and a trustee -under said will, for the 'purposes therein mentioned, in the place of the said Philip E. Kearney. And that the appointment was filed in the Surrogate's office.</p> <p>The petition prayed for the issuance of letters testain eritaryto the said Egerton L. W-inthrop, in conjunction with the petitioner.</p>

- • John B. Moreau, general guardian of Fanny and Aletta F. Moreau (appointed by the Surrogate), having neglected to file his annual inventory and account for the year 1867, was cited'by the Surrogate pursuant to statute/ On the 27th ofi April, 1868,- the guardian filed his accounts of-the estates of both infants, in which he claimed a balance as due him from his ward Fanny, of $1,772.53, and a balance as due him from his ward Aletta F. of $49.66.

.Asa T. Davison lived and died in the.State of:Hew Jersey, on the .29th .of June, 1868, .aged eighteen years and ten months. The instrument^ offered as a will of personal property only, was, executed by him,' after .he had attained the age,of eighteen years, iii theState of New Jersey.

' The testator died on the 19th day of December, 1866, ind his will was admitted to probate, as a will of both real and personal estate, on the 2d day of February, 1867. He left a widow and five children, two of whom, .G-eorge and Phillippine, were of age at the time of the accounting. At the time of the death, and of the creation of the estates and trusts under the will, four of the five were infants. The following was the will: In the name of God: Amen.

On the 23d of April, 1869, legatees under the last will and testament of Augustus Whitlock, deceased, petitioned the Surrogate for an account from the executors and the payment of their legacies.