Volume 10 — Mills's Surrogate Reports

<p>Executors and Administrators—Death of Italian Subject Intestate —Right of Italian Consul to Letters of Administration. Where a subject of the kingdom of Italy dies intestate in this state leaving him surviving no relative in this country entitled to succeed to his personal property, the Italian consul under treaty provisions has the prior right of administration upon the estate.</p>

<p>Appeal by executors from an order confirming the report of an appraiser, fixing and assessing the transfer tax.</p>

<p>Decedent Estate Law, § 26—Rights of After-Born Children Not Mentioned in Will of Testator.</p> <p>The phrase “unprovided for by any settlement” in section 26 of the Decedent Estate Law, relating to the rights of a child born to a testator after he had made his will, means a settlement made by the testator.</p> <p>Where after-born children of a testator were neither mentioned in his will nor provided for by any settlement made by the testator, the decree admitting the will to probate should make the same provision for the said children as they would have been entitled to had their father died intestate.</p>

<p>Wills—Execution in Triplicate—Two Lost—Declarations oe Testatrix—Probate.</p> <p>Where a will was executed in triplicate in 1883, the presumption, that the one traced to the possession of the testatrix but which could not be found after her death was destroyed with intention to revoke, is overcome by proof of her declaration, made a few days before her death on the opening of a safe in which were found a will made by her in 1874 and another made by a deceased sister, that the wills were at Williams College.</p> <p>Where the testatrix had no immediate relatives or friends with whom intimacy of any kind existed, and the provisions of her will seem entirely natural, and it appears that one of the triplicate wills was left with testator’s attorney who sent one to the then president of Williams College and the third one was taken away by testatrix at the time of the execution of her will, and its whereabouts not known, and the absence of the one left with her attorney is satisfactorily accounted for, the one produced by Williams College and shown to have been in the possession of its treasurer at the time of the death of testatrix will be admitted to probate.</p>

<p>Appeal from an order confirming the report of an appraiser fixing and assessing the transfer tax.</p>

<p>Legacy—Specific ob Demonstrative—Delivery to Savings Bank op Certificate of Deposit—Executors and Administrators.</p> <p>Where an executrix the day before the death of her testatrix delivered to a savings bank a certificate of deposit for 81,000, indorsed by decedent and payable to her order on its return properly indorsed to a national bank from which she received it, and the savings bank, within a week after her death, upon being informed by the indorsee that the certificate had been paid, opened an account in the name of the decedent, in trust, for her executrix, naming her a legacy of 8500 payable exclusively out of any funds testator might have on deposit is payable by the executrix whether said legacy be called specific or demonstrative.</p>

<p>Wills—Corpus of Estate After Death of Life Tenant Given to Testator’s Children—Gift to Issue After Life Estate.</p> <p>Where the corpus of an estate after the death of a life tenant was given to testator’s children in equal shares, the will stating the issue of any deceased child or children to represent the share which the parent would have been entitled to receive, a grandchild of testator, whose father died before the life tenant, is entitled to receive the entire share to which her father would have been entitled.</p>

<p>Wills—Probate—Witnesses—Codicil Executed in Sister State in Accordance With Laws Thereof.</p> <p>Where a resident of this state while in the state of Florida executes a paper purporting to be a codicil to her last will, and the law of that state provides that all wills of personal property shall be in writing and signed by the testatrix or some other person in her presence and by her express direction, said codicil, so far as it affects personal property, is entitled to probate in this state, though not attested by any subscribing witnesses. •</p>

<p>Proceeding upon the judicial settlement of the accounts of a sole surviving trustee.</p>

<p>Appeal from a determination made by the transfer tax appraiser to the surrogate under section 232 of the Transfer Tax Law.</p>

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

<p>Application under subdivision 4, section 2685 of the Code of Civil Procedure, to revoke letters of administration obtained by an alleged false suggestion.</p>

<p>Depositions—Surrogate’s Court—Letters Rogatory to the German Empire—Code. Civ. Pro. § 913.</p> <p>There being no provision of law in the German Empire for taking testimony by commission, letters rogatory may issue in a proper case under section 913 of the Code of Civil Procedure to the officials of said Empire, but without prejudice to any objections to the relevancy, materiality or competency of the proposed interrogatories, or the answers thereto, all such matters being reserved.</p>

<p>Executors and Administrators—Directions to, Under Will—Accounting—Retention by, of Corporate Stock—Costs—Payable by Executor Personally.</p> <p>Where, on the judicial settlement of the accounts of a son as executor of his father’s estate, payment of a claim allowed by him on a note held by a bank, which represented in part an indebtedness of a partnership between him and his father which had existed for several years prior to the latter’s death, is objected to by the sister and co-executor of the accounting party on the ground that the note being a partnership obligation the estate was not liable thereon until all legal remedies against the partnership or the surviving partner had been exhausted, and it appears from the evidence that at the death of testator he and said son were equally liable on the note, which in one of the schedules was described as a partnership debt, the claim will be disallowed and the account of the executor surcharged with the amount paid by him to the bank, out of the funds of the estate, on the note, with interest to date.</p> <p>Where the will of testator directed his executors to call in and collect from his son on account of his promissory note or notes held by testator sufficient money to promptly pay all cash bequests and after payment thereof from the proceeds of said note or notes the balance was bequeathed equally to testator’s son and daughter, the son as executor must account for, as cash, the amount due on his unmatured personal note for $40,000 with interest, and upon failure so to do he will not be allowed to retain a legacy of certain corporate stock which he had transferred to himself soon after the grant of his letters testamentary, and the decree judicially settling his account will order and direct him to restore to the estate said stock, together with all dividends paid to him thereon, and that said stock shall not be again transferred until the further order of the court.</p> <p>Costs on such judicial settlement allowed to the contestant, to the special guardian, and to all parties appearing therein, to be taxed on notice and to be paid by the accounting executor personally.</p>

<p>Executors and Administrators—Costs and Expenses of Annual Accounting—Annual Accounting of Trustee.</p> <p>The costs and expenses of an annual accounting by a testamentary trustee should be borne by the income unless they have been incurred in the administration, preservation or increase of the principal.</p>

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

Proceedings upon the judicial settlement of the accounts of a surviving executor and also of an executor of a deceased executor.

<p>Wills—Construction—Devolution of Interest—Direction for Sale of Real and Personal Property.</p> <p>Where a will in one paragraph directs the sale of certain real and personal property and an equal division of the proceeds of such sale among testator’s children and certain of his grandchildren, and, in the next paragraph, a daughter of testator is given all his right, title and benefit in a fraternal organization, and all the beneficiaries survive testator, the gifts under the first paragraph vest at the death of testator and the interest of a grandchild upon her death passes to her legal representatives and not to her next of kin; and a decree judicially settling the account of testator’s executor cannot be entered unless such legal representatives are brought into the proceeding.</p>

<p>The parties, in a proceeding for the probate of the last will (and a codicil thereto) of Charles Raab, deceased, expressly put in issue the validity, construction and effect of the following portions of the said will (executed within this state by a resident thereof), viz:</p> <p>“Fifth. All the rest, residue and remainder of all my estate, both real and personal, I give, devise and bequeath to my executor and trustee hereinafter named, in trust, however, to collect the rents, issues and profits thereof during the minority of my grandchildren, hereinafter provided for; to apply the same toward the payment of all taxes, assessments and toward the repair, maintenance' and improvement of said property; and the surplus thereof to accumulate the “same during the minority in bonds and mortgages and other securities as may be permitted by law.</p> <p>" Upon the arrival of the age of twenty-one years of any of my grandchildren,, to wit, the children of my son George Thomas Raab, I direct my said trustee to pay and distribute to such grandchild his or her proportionate share of my estate and the proportionate share of all accumulations thereof, dividing my estate into as many shares as there may be children of my said son George Thomas or the representatives of any children or children of my said son living at the time the oldest living grandchild arrives at said age of twenty-one years.</p> <p>“ In the event of the death of any child of my son said George Thomas who shall die before arriving at said age leaving lawful issue, the share of the one so dying shall be paid to and is hereby devised and bequeathed to such issue equally. Should any child of my said son die before arriving at said age of twenty-one years without leaving lawful issue, I then give and bequeath his or her share to the surviving sisters and brothers or the issue of any deceased brother or sister per stirpes.</p> <p>“ Sixth. In the event of the death of all my said grandchildren during minority without leaving lawful issue, I give and bequeath and I direct the payment of my estate and all accumulations thereof to the Presbyterian Hospital, St. Lukes Hospital, the Post Graduate Hospital, all of the borough of Manhattan, and to the Wartburg Home for Aged and Infirm of the borough of Brooklyn, in equal proportions.”</p> <p>Charles Raab, the testator, died in New York county on the 6th day of June, 1912. At the time of his death he was a resident of New York county.- His will was made and executed in New York county on the 14th day of March, 1906, and the codicil thereto was made and executed in New York county on the 21st day of December, 1908. At the time of his death he possessed both real and personal property in this state. George Thomas Raab, the contestant herein, was his only heir and next of kin.</p> <p>George Thomas Raab, the only son of the testator, had two children living at the time of the execution of the will, aged two years and one year, respectively. At the time of the execution of the codicil he had three children living; at the time of the testator’s death the said George Thomas Raab had four children living, aged eight, seven, four and two years, respectively.</p>

<p>Taxes—Transfer Tax—Annuities—Will of Foreign Subject—Executors and Administrators.</p> <p>Where an annuity, given by the will of a British subject to an Austrian subject, though payable from assets in the United States of America, is subject to a legacy tax in England, the remittance by the American representative of the estate to the English executors of the amount of such tax, and the deducting of the same from the property set apart by the executors in America for the production of such annuity, are justified, and an objection to such payment will be overruled.</p>

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

<p>Appeal by Olive L. Granfield, individually and as executrix of the last will and testament of Horace Granfield, deceased, from the assessment made and filed herein and also from the order and decree of the surrogate of the county of Westchester confirming the appraisal and fixing a transfer tax upon the property bequeathed and devised by the testator.</p>

<p>Taxes—Transfer Tax on Alleged Transfer of a One-Half Interest in Five Certain Mortgages—Evidence.</p> <p>Where the assignment of five bonds and mortgages to a husband and his wife and the survivor of them, with habendum to them and the survivor of them, to their assigns and the successors, legal representatives and assigns of such survivor, contained a power of attorney to the husband and wife, or the survivor of them, to discharge the mortgages, and only three of said assignments contained a statement that it was the intention that the survivor of the husband and wife should become the absolute owner of the bond and mortgage and that neither should have power to affect the right of the survivor, and there is no ground for a finding as to the ownership of the funds which went to the purchase of the five bonds and mortgages except the presumption that the husband and wife were the equal owners of the fund and the investment, it must be held that each owned his or her half down to the time of the husband’s death; and an order imposing a transfer tax on an alleged transfer of the husband’s one-half interest in the five mortgages will be affirmed, on the ground that the evidence forbids a finding of joint tenancy, and that the husband who was survived by his wife had an interest which was transferable only upon his death.</p>

<p>In the proceedings for probate the respondents ask for a construction of the will pursuant to section 3634, Code of Civil Procedure. The pertinent portions of the will of Mrs. Henrietta Swartz, for the purpose of construction, are as follows :</p> <p>“ Tenth. I give and bequeath to my daughter, Annie S. Lyon, the sum of five thousand ($5,000) dollars, to be hers absolutely, and I direct my executrices and executor, hereinafter named, to pay the said sum to her at the earliest possible moment after my decease.</p> <p>“ Eleventh. I give and bequeath to my daughter, Emily S. Andrews, the sum of seven thousand ($7,000) dollars, to be hers absolutely, and I direct my executrices and executor, herei'nafter named, to pay the said sum to her at the earliest possible moment after my decease.</p> <p>“ Twelfth. I give and bequeath to my daughter, Priscilla S. Eisenbach, the sum of one thousand ($1,000) dollars, to be hers absolutely, and I direct my executrices and executor, hereinafter named, to pay the said sum to her at the earliest possible moment after my decease.</p> <p>“ Thirteenth. Whereas on the 26th day of April, 1904, by a certain instrument in writing, I have paid over to my son-in-law, Lester J. Saul, as trustee, the sum of seven thousand ($7,000) dollars in cash; and whereas on the 28th day of October, 1905, by a certain instrument in writing, I have paid over to my son in-law, Lester J. Saul, as trustee, the additional sum of three thousand ($8,000) dollars, making the sum ten thousand ($10,000) dollars in all; and whereas the said instruments provide that the said sum of ten thousand ($10,000) dollars is to be invested, reinvested and kept invested by my said son in-law, Lester J. Saul, as trustee, and the net income therefrom paid to me by my said trustee during the term of my natural life; and whereas the said instruments provide further that upon my death my said trustee is to divide and apportion the said sum of ten thousand ($10,000) dollars amongst my surviving daughters; now I hereby direct that instead of the said sum of ten thousand ($10,000) dollars being divided amongst my surviving daughters, as provided in said instrument, it be divided by my said trustee into two equal parts of five thousand ($5,000) dollars each; five thousand ($5,000) dollars thereof to be paid to my daughter, Rebecca S. Saul, and five thousand ($5,000) dollars thereof to be paid to my daughter, Priscilla S. Eisenbach; for the reason that in paragraph ‘ fourteenth,’ hereafter, I am making provisions for my daughters Annie S. Lyon and Emily S. Andrews in lieu and in place of their interest in the said fund of ten thousand ($10,000) dollars, in which I direct that they shall not share or participate.</p> <p>“ Fourteenth. All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possessed or to which I may be entitled at the time of my death, I give, devise and bequeath in equal shares to my daughters, Annie S. Lyon and Emily S. Andrews, or to the survivor of them, to be their or hers absolutely, and this provision is made for my said daughters, Annie S. Lyon and Emily S. Andrews, in lieu of and in consideration of their or her non-participation in the fund directed to be distributed by paragraph ‘ thirteenth ’ heretofore.</p> <p>“ Fifteenth. Should any of the bequests made by me in the foregoing paragraphs of this my will lapse or fail for any reason I direct that the bequest or bequests so lapsing or failing, except where other provision is made, shall go to and form part of my residuary estate and be disposed of under and in accordance with the provisions of paragraph ‘ fourteenth ’ heretofore.</p> <p>“ Sixteenth. The reason that I have made a greater provision for my daughter Emily S. Andrews than for my other daughters is not that I bear her any greater love as a mother, but realizing that she is a widow and is without a husband’s support, which my other daughters enjoy, it is not my wish to leave her in a dependent position.”</p> <p>On the hearing the parties put in evidence, without objection, the two trust deeds or instruments referred to in the thirteenth clause of the will. It was conceded that the value of the estate was approximately $25,000, exclusive of the $10,000 covered by the trust deeds, and deducting therefrom the specific legacies of $13,000, the residuary estate is worth approximately $12,000, subject to deductions for expenses of administration and possible debts not believed to be large.</p>

<p>Executors and Administrators—Judicial Settlement of Accounts of —Code Civ. Pro. § 829—Surcharging Accounts of Executors— Claim for Services During Quarantine of Widow.</p> <p>Wills—Intent ' of Testator—Ademption—Advancements—Life Estates.</p> <p>Where, upon a conveyance of certain premises to his favorite daughter, the grantor took back a mortgage for the entire purchase price which was never recorded but delivered to and found among his effects after his death, and upon the judicial settlement of the accounts of said daughter as his executrix it satisfactorily appears that while her husband, as he testified, pursuant to an agreement with the testator, assigned certain corporate stock to said daughter, testator never carried out on his part said agreement by satisfying said mortgage or by delivery thereof to his daughter, the husband’s parting with stock, independent of the marital relation, was a good consideration for the promise of testator to give the mortgage to said daughter and she as his executrix was not chargeable therewith.</p> <p>The contingent interest of her husband in the property as tenant by the courtsey did not disqualify him as a witness under section 829 of the Code of Civil Procedure.</p> <p>Where testator and his wife had given a joint deed of different parcels of land owned by them severally and the purchase price, $1,000, was paid to testator who deposited the amount to his own credit and made no .settlement with his wife, and said daughter as executrix of her father paid to her husband as executor of her mother $1,024, the account of the executrix will be surcharged with the difference between said sum and the amount she should have paid, $961.39.</p> <p>A claim for the services rendered by the wife of a nephew of the deceased testator for alleged nursing of his widow during the quarantine period of forty days disallowed, and the account surcharged with the same and interest at three and one-half per cent, from the date of payment.</p> <p>No evidence being offered against the bill of the attorneys for the executrix and same being reasonable in amount will be allowed.</p> <p>Where during the trial a note of the husband of the executrix, which did not bear interest and was not included in the accounts, was paid, the account will be surcharged with the amount of the note, with interest at three and one-half per cent, from one year after grant of letters testamentary.</p> <p>Testator by his will made in 1899 gave the use of one-half of his estate, real and personal, to his wife for life, with remainder absolutely to his grandson to whom he stood in loco parentis; §2,000 to a granddaughter and the use of an undivided one-half of his estate to two daughters for life. Upon the death of either of said daughters, her share was given to the heirs of her body, share and share alike, and in the event of her leaving no heir her share was also given to the grandson absolutely. In 1905, testator gave to his daughter F., who was also his executrix, a mortgage for §1,000 which he held on her home, and in 1907, two years prior to his death and without changing his will, he conveyed to L., his other daughter, real property valued at §3,500, and to the grandson a certain factory which, with its contents, was worth §15,000. The inventory, as filed, showed an estate of about §14,000. Held, that it was the intention of the testator that the conveyance to the grandson was to operate as an ademption of all testamentary provisions in his favor, but that ‘testator did not intend to adeem the residuary provisions of his will or any part thereof.</p> <p>Held, that testator by the conveyance to his daughter L. intended to give her a portion in advance of what she would ultimately take under his will and that §3,500, the value of the property conveyed to her, should be taken out of the one-fourth of his estate of which she was given the use for life, and that she should have the life use of the difference between that amount and the amount of the net one-fourth of his estate.</p>

<p>Taxes—Transfer Tax—Wills—Exemption from Payment of Transfer Tax—Laws 1912, oh. 206.</p> <p>A bequest to the American Society for the Prevention of Cruelty to Animals, under the will of a decedent who died in 1911, is subject to a transfer tax.*</p>

<p>Taxes—Transfer Tax—“ Lineal Descendants ”—Illegitimate Children.</p> <p>The children of a decedent’s illegitimate daughter, though born in lawful wedlock, are not his “ lineal descendants,” and legacies to said children are taxable at the rate of five per cent.</p>

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

<p>Executors and Administrators—Commissions and Expenses of—Supplementary Proceedings.</p> <p>Where the will of a testator, who died possessed of a bond of his brother, who was his residuary legatee, for $3,000, secured by a second mortgage, contains general legacies to the amount of $850, the account of the executor, who after charging himself with said mortgage and- interest as so much money in his hands, must be settled according to his statement that he has a balance of $3,811.12 subject to commissions and expenses of administration.</p> <p>The claim of said brother’s receiver in supplementary proceedings, that he is entitled to receive a part of the residuary legacy, and that the mortgage is a subsisting claim against the residuary legatee and should be enforced for the benefit of the receiver, requires no attention upon the face of the executor’s account.</p> <p>Where after the death of testator his brother gave a third mortgage on the same lands with an agreement that the second mortgage had been merged in the fee, that he would obtain a satisfaction thereof from the executor, and that the third mortgage should be a superior lien to the second mortgage, the third mortgagee has no standing to intervene and ask that her claim be ascertained and decreed superior to the chain of the said receiver.</p> <p>Until the mortgage for $3,000, without the aid of which the legacies and charges against the estate cannot be paid, is converted into cash and the actual balance of the estate is substituted for the balance as stated in the account, the rights of the receiver and the holder of the third mortgage do not require determination; and the surrogate will not advise the executor with regard to the disposal of the mortgage for $3,000.</p>

<p>Evidence—When Disallowed—Conflict of—Executors and Administrators.</p> <p>Where the claim of an executor against the estate is based on an alleged assignment of corporate stock, then under pledge to secure a loan to the decedent who died before the stock was to be delivered under the assignment, and one of the two subscribing witnesses thereto swears to its execution and delivery, and the other, who was not present either at the time the paper was signed or delivered, testifies that she signed it after the death of decedent at the request of the claimant; and because of irreconcilable conflict in the evidence no, solution can be reached without the recognition of conscious untruth either in the prosecution or defense of the claim, it will be disallowed on the ground that the claimant upon the whole case has not established his right of recovery by clear and convincing testimony.</p>

<p>Executors and Administrators—Letters of Administration to Brother Revoked—Letters of Administration to Italian Consul Under Treaty with United States Containing “Most Favored Nation ” Clause.</p> <p>Where a subject of the kingdom of Italy dies intestate in this state leaving him surviving a brother, a resident of this state, and his father, a citizen and resident of Italy, letters of administration granted to the brother will be revoked and letters issued to the Italian consul under the Italian treaty with the United States, . containing the “Most Favored Nation” clause.</p>

<p>Taxes—Transfer Tax—What Estate is Subject to Transfer Tax—. Savings Bank Accounts—Tax Law, § 220 (4).</p> <p>Upon the death of a testator who died in October, 1911, one-half of the balance due on joint deposits in bank in the name of himself and wife became transferrible as a gift to the wife intended to take effect in possession or enjoyment at or before his death and is subject to a transfer tax under section 220 (4) of the Tax Law, as amended by Laws of 1911, chapter 732.</p> <p>Where, three years before testator’s death, the heading of Ms savings bank account was changed by the addition of words which enabled his wife to draw the money, the full amount in said bank at his death is also subject to a transfer tax.</p>

<p>Decedents’ Estates—Sale of Real Estate fob the Payment of Legacies—Power of Sale Under Will—Executors and Administrators—Wills—Life Estates—What Amount Payable for Reasonable Burial Expenses of Decedent.</p> <p>Where, in the absence of personal property, a sale of testator’s real estate was necessary to create a fund for the payment of legacies, it is the duty of the administrator with the will annexed, upon selling decedent’s real estate under a power contained in the will, to bring the proceeds intact into court and after citing the legatees, next of kin and creditors of testator, if any, distribute such proceeds in accordance with the surrogate’s decree.</p> <p>Where, from the proceeds of sale, the administrator, without the consent of a daughter of testator, a devisee and legatee under his will, voluntarily satisfies a judgment against her on the theory that it was a lien on her interest in the real estate, his accounts will be surcharged with the amount paid in satisfaction of said judgment, with interest from the time of payment.</p> <p>Where a husband dies, knowingly leaving an indigent widow, and a will by the provisions of which he gives her a life estate in all his property with provision that “if at any time the income of same is insufficient for her support, then she is to have as much of the principal, each year, as is necessary for her maintenance, including the income, as aforesaid,” he intended that her reasonable burial expenses should be paid from his estate, and the administrator will be allowed the amount thereof.</p>

<p>Wills—Signature or Testator at end.</p> <p>Where a single paper, consisting of two sheets of legal cap woven together in the web and folded so as to make four pages, was used in drafting a will, and the writing was commenced on the first page, continued consecutively on the fourth page and concluded on the second page with the signature of the testator, and there is no writing or signature on the third page, the instrument is signed at the end thereof within the meaning of the Statute of Wills and is entitled to probate.</p>

<p>Proceeding for the sale of decedent’s real property for the payment of his debts.</p>

<p>Proceeding upon the judicial settlement of the account of executors.</p>

<p>Petition by guardian for an allowance for support and maintenance of two female wards.</p>

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

<p>Surrogate’s Court—Motion to .Consolidate Separate, Contested Probate Proceedings—Motion at Chambers for an Order Regulating the Procedure on the Trial of a Contested Probate Proceeding.</p> <p>A motion to consolidate separate, contested proceedings for the probate of instruments in writing purporting to be last wills • and testaments is a part of the trial of a contested probate proceeding; and in the county of New York such a motion must be made before the surrogate assigned to preside at the “ trial term.” A motion made at chambers for an order regulating the procedure and order of proof on the trial of a contested probate proceeding will be denied as premature.</p>

<p>Application to open and set aside decree of probate under section 2481, subdivision 6, of Code of Civil Procedure.</p>

<p>Taxes—Transfer Tax—Beneficiary of a Trust Fund—Wills— Estates in Remainder When Taxable—Life Estates Subject to Transfer Tax.</p> <p>Where testator’s son was a life beneficiary of a trust fund with power of disposition thereof by will, and testator’s daughter, the life beneficiary of another trust fund, one-half of which on her death was bequeathed to her husband should he survive her, the remaining one-half to become a part of testator’s residuary estate, was given a similar power of disposition of the whole trust fund in case she survived her husband, the life estates are presently subject to a transfer tax payable out of the residuary estate, but the estates in remainder are not subject to such a tax until the death of the respective life beneficiaries.</p> <p>Thp question whether the tax on the estates in remainder is chargeable on the residuary estate, or upon the principal of the respective trust funds, which question involves a construction of the will, cannot be determined on the settlement of an order fixing the tax on the life estates, but must await an accounting when all parties in interest will be before the court and have an opportunity to be heard, or until a proceeding is taken to ascertain and impose the tax.</p> <p>Under a clause of the will “that all the gifts, bequests, devises and legacies hereinafter mentioned be paid, transferred or received in full (subject to any provisions for abatement hereinafter contained), and that all succession or transfer taxes imposed thereon, or on any of them, be paid out of my residuary estate,” the taxes to be imposed on the estate in remainder constitute a charge on the residuary estate.</p> <p>Under section 220 of the Tax Law as amended in 1910 and in force at testator’s death, which provides: “ Whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this chapter, such appointment when made shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will,” it is the exercise of the power of appointment and not the creation thereof which affects the transfer which the statute makes taxable; consequently the estates in remainder are not taxable until the time arrives for the exercise of the testamentary power of appointment conferred on the life beneficiaries.</p>

<p>Wills—Legacy of Amount Due on Bond and Mortgage is Specific— Executor as Legatee in Trust Under Residuary Clause.</p> <p>A bequest, in trust, to the executor of the amount due on a bond and mortgage held by testatrix on her mother’s farm, directed that the amount thereof should be kept intact during the life of the father of testatrix, the income collected annually, or allowed to remain uncollected, as the executrix might deem advisable to the extent that it was not needed for the support, care and maintenance of the father, and the executor was directed to collect and use so much of the income as he might deem proper and necessary for the father’s use and benefit and to invest any amount collected and not used at his death, or at the death of testatrix if she survived him, and to give the principal sum and any income invested to the brother of testatrix, or in case of his death to his lawful issue, if any, and in case he left none the same was to be paid to the children of the sister of testatrix, share and share alike. By agreemnt with the mortgagor, testatrix, the day after making her will, indorsed thereon $2,986.05, the sum fixed as the amount unpaid on the mortgage. The mortgagor devised the mortgaged premises to her son who, with his sister, the testatrix herein, contributed to the support of their father until his deah. Thereafter, the son in satisfaction of said mortgage gave to testatrix a new one for $3,600, but the interest paid thereon by him from time to time was not kept apart, intact, in any separate fund by testatrix who also deposited in her general bank account the sum of $4,039.12 paid to her in satisfaction of the last named mortgage. The residuary clause of the will of testatrix herein who never was married provided:</p> <p>“I give, devise and bequeath to my Executor hereinafter named in trust all the balance, rest, residue and remainder of my estate of all kinds both real and personal wheresoever situated to use the income thereof as he deems advisable for the benefit of the children of my said sister * * * until the youngest becomes twenty one years of age at which time and as soon as practicable thereafter my Executor is to divide the amount so given him by this * * * clause of my will, between the issue of my said sister * * * share and share alike, if any of my said sister’s children die before the youngest shall arrive at 21 years of age, leaving lawful issue which survive at the time the youngest child of my said sister shall arrive at 21 years of age, the issue of such deceased child to take the part of the property devised by this * * * clause of my will, the same as its parent would take if living.”</p> <p>Upon the judicial settlement of the accounts of the executor, held, that the bequest in trust of the amount due on the bond and mortgage held by testatrix against her mother was specific in character and became adeemed before the death of testatrix herein; that the executor took in trust under the residuary clause and that nothing was left as unbequeathed assets.</p>

<p>Guardian—General—Infants—Accounting by Guardian.</p> <p>Where money belonging to an infant was applied by his general guardian to her personal use, her estate is chargeable with the amount so applied, less the expense of her appointment.</p> <p>Where, by her son’s will, such guardian was bequeathed all his interest in certain real estate on condition that she should take care of his son until he became of age, it was the guardian’s duty, having qualified as executrix, to care for and maintain her infant grandson, and a charge for his board and maintenance cannot be allowed on her accounting for his money which she had illegally expended for her own use.</p>

<p>Wills—Residuary Clause—Trusts—Distribution of Trust Funds.</p> <p>Where by a will containing no residuary clause the executors were . given certain personal assets in trust to invest and pay the income to testator’s sister during her life, with direction that at her death the estate was to be divided into as many equal shares as the sister left children, and that each be paid his share on reaching the age of twenty-one years, upon the death of the sister leaving no children her surviving there arises' an intestacy as to the principal of the trust, distribution of which must be decreed accordingly.</p>

<p>Wills—Bequest of Certain Weekly Sum to Husband fob Life— Power of Sale—Executors and Administrators—What Interest Passes by Will.</p> <p>Where testatrix bequeathed a certain weekly sum to her husband for life, and the clause by which all the rest, residue and remainder of the estate, both real and personal, was given to her four children share and share alike, provided: “ Should either of the said children die then his or her share to go to the survivor or survivors, but said children shall only have the interest of their share or shares until they are twenty-one years of age, and they then shall receive the share or shares due them,” and the executors were given a discretionary power to sell any of the real estate, but such sale, if possible, not to be made until the youngest child became twenty-one years of age, there is nothing in the will from which a trust may be implied.</p> <p>The only duty of the executors with regard to the weekly payment to the husband of testatrix, which was but a legacy, was to arrange for its fulfillment so far as the personal estate might serve, or, under the power of sale, to apply thereto the proceeds of any property sold.</p> <p>Where one of the residuary devisees died after one piece of testator’s real estate had been sold, he died possessed of an interest in the proceeds of such sale as personalty, and such interest passed by his will.</p>

<p>Appeal from an order fixing and assessing the transfer tax.</p>

<p>Application for limited letters of administration,</p>

<p>Appeal from an order fixing and assessing the transfer tax.</p>

<p>SURROGATE'S COUBTS-JURISDICTION-TO HEAR AND DETERMINE A Cl/AIM fob Work Done.</p> <p>A surrogate has no jurisdiction to hear and determine a claim for work done, on the order of an executor, after the death of the testatrix.</p>

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

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

<p>Evidence—Promissory Note—Notice of Protest When Insufficient in Law—Corporations—Negotiable Instruments—Admissibility of.</p> <p>Waiver—of Notice of Protest—Negotiable Instruments.</p> <p>Where, on the hearing before a surrogate of a disputed claim on a primissory note indorsed by decedent, it appears that the notice of protest was mailed to her at the place of business of a corporation in which she was a director and stockholder, but no proof was offered that she actually received said notice, or that she was accustomed to receive her mail at that place, or that it was her place of business, the claim must be disallowed on the ground that the notice proved was insufficient in law to charge her as indorser.</p> <p>A certified copy of the corporation minutes under the secretary’s hand and under the corporate seal, reciting that decedent attended a directors’ meeting on a certain day, offered in evidence to impeach the secretary who had testified that decedent was neither a stockholder nor a director and that no directors’ meeting was held, is not evidence of the facts therein recited.</p> <p>The original minutes of a corporation are admissible to prove a meeting of its directors.</p> <p>An executor may not waive notice of protest of a promissory note on which his testatrix is an indorser.</p>

<p>Executobs and Administbatobs—Letters of Administbation When Granted—Statute of Distributions.</p> <p>Under section 2660 of the Code of Civil Procedure administration by relatives is to Be granted only to such as are actually entitled to share in the distribution of the estate in the order in which such relatives are named.</p> <p>Where a grandchild is the only person entitled to take under the Statute of Distributions all the estate of an intestate, letters of administration must be issued to him in preference to the intestate’s half-brother.</p>

<p>Proceeding upon the final judicial settlement of the accounts of a substituted trustee.</p>

<p>Proceeding upon the judicial settlement of the account of an administratrix.</p>

<p>Executors and Administrators—Granting of Allowance fob Counsel Fees in Resisting Removal from Office—Expenditure made in Due Course of Administration.</p> <p>Trustees—Removal of—Allowance to, fob Counsel Fees.</p> <p>An executor or trustee may be granted an allowance for counsel fees paid in resisting an effort to remove him from office only on the theory that the expenditure was made in due course of administration and for the benefit of the estate; that he was successful in avoiding removal is not of itself sufficient to justify the allowance.</p> <p>Where a trustee made an investment in the bonds of an industrial corporation secured by the usual mortgage to a trustee, and during the trial of a proceeding to remove him, in which the facts as to such investment were shown and its unlawfulness asserted, the trustee sold the bonds without loss and reported that he had received and held the proceeds in place of the bonds, the services of counsel in the proceeding were not rendered for the benefit of the estate and there can be no allowance to the trustee for counsel fees, nor for sums paid to a real estate expert whose services were primarily directed to the defense of the removal proceedings and in no way required for any general need of the estate.</p>

<p>Wills—Executed with Lead Pencil—Striking out Certain Testamentary Provisions—Revocation op—Decedent Estate Law, § 34.</p> <p>Where a testator, after having duly executed his last will, struck out some of the testamentary provisions, added clauses and changed the amounts of many legacies, but the original words are plainly discernible beneath the pencil marks, the testator’s signature is undefaced and material parts of the instrument as originally executed remain unchanged and uncanceled, such acts of testator will not be deemed to have been done mimo revocandi.</p> <p>Such acts even if made with intention fo revoke the will would be inoperative, as under section 34 of the Decedent Estate Law a will cannot be revoked, either in part or in whole, by a cancellation of a part of the instrument.</p>

<p>Wills—When Probate Granted—Execution of, Four Months Previous TO COMMMITMENT TO STATE HOSPITAL FOR INSANE.</p> <p>Where It appears that testatrix had delusions and that she had been taken to a private institution for the insane the day after she executed her will, that she had been legally adjudged insane and legally committed to a state hospital for the insane about four months after the execution of the will and died hopelessly insane thirteen years thereafter, and it also appears that she was rational on many occasions while she was in said hospital and that she was rational when she executed the will, probate will be granted.</p>

<p>Subrogates—Depositions—Settlement op Interrogatories Annexed to Letters Rogatory to take Testimony—Code Civ. Pro., § 913.</p> <p>While a surrogate upon the settlement of interrogatories to be annexed to letters rogatory to take testimony pursuant to section 913 of the Code of Civil Procedure must pass upon the pertinency of the interrogatories, all other objections must be reserved until the trial when the desposition is offered in evidence.</p>

<p>Wills—Bequest oe Part oe Residuary Estate—Bequests to Unincorporated Associations or Societies—Residuary Estate as Undisposed oe to Pass as in Case of Intestacy.</p> <p>A bequest of one-third of a residuary estate to the treasurer, for the time being, of the “ Womans Presbyterian Synodical Board in Aid of Foreign Missions of the Synod of Albany ” which never was incorporated and went out of existence shortly before the will was executed, is invalid, as is also a bequest of one-third of said residuary estate to the treasurer, for the time being, of the “ Womans Presbyterian Synodical Board in aid of Home Missions of the Synod of Albany ” also not incorporated.</p> <p>The said two-thirtis of said residuary estate will be decreed as undisposéd of and pass as in case of intestacy.</p>

<p>Two applications were made to the Surrogate’s Court in the above matter, one by Jeremiah Tator, a cousin of decedent, asking that letters be issued to him; and another by Everett Ostrander, another cousin of decedent, asking that letters be issued to him. Citations in both matters were returnable at the same time and heard together.</p>

<p>Taxes—Transfer Tax—Conveyance of Beal Estate by Husband and Wife—Purchase Money Mortgage.</p> <p>Where, upon the conveyance of real estate by husband and wife as tenants by the entirety, a purchase money mortgage was taken in their joint names, and a cash payment made to them by a check payable to them jointly was deposited in a trust company in the wife’s name solely for the purpose of being reinvested in real estate in the same manner as that which had been conveyed as testified to by the surviving husband, he, upon the wife’s death, became entitled to the sole possession of one-half of the mortgage, and one-half of the amount of the check, and the remaining one-half of said two funds passed into the wife’s estate and was subject to a transfer tax.</p>

<p>Wiles—Residuary Estate to Executors and Administrators, in Trust, to Sell and Dispose of Same and to Divide the Proceeds—Duty op Trustees to Obey Direction “ to Invest Each Share Separately ” in Trust—Accounting by Trustees—Executors and Administrators.</p> <p>Testator gave his residuary estate to his executors and trustees, in trust, to sell and dispose of the same and to divide the proceeds into as many equal shares as he should leave him children surviving. The trustees were to invest each share separately and apply the income to the use of the son or daughter for whom it was set aside. Each daughter was to have a life use of such share and the principal was to be paid over upon her death to her children or to her appointees by will. Each son was to receive one-half of the principal of his one-ninth share when he became twenty-five years of age and, by the codicil to the will, the other one-half of his share he was to have a life use of, the same to be paid over to his children or his appointees under his will at his death.</p> <p>By a later clause permission was given to the trustees to make certain advances to the sons which in their discretion they deemed necessary. Such advances, however, were limited to an amount “ to which they will probably or possibly be entitled to under the provisions of the will.” Such advances to any one son, however, not to exceed “ one-half the amount that such son will probably or possibly be entitled to,” but in the event that such advances or shares shall not ultimately go to such son, “ no personal claim shall be made against such son, or his estate, for the repayment of such advances.”-</p> <p>Held, that testator intended the principal of his estate should be divided into nine equal parts and both principal and income paid over as directed by the will, and upon the judicial settlement of the accounts of the sole surviving executor and trustee the executors of one of testator’s sons are entitled to whatever there is left in the one-ninth fund which was to be set apart for their testator, including principal and income; that the trustees in estimating and advancing a certain sum to said son merely carried out -the provisions of their testator’s will and that no interest should be charged by them on the amounts so advanced.</p> <p>It was the duty of the trustees to have obeyed the direction of the will “ to invest each share separately ” in trust for the nine children of their testator as provided and such division should have been made at the commencement of the accounting period herein.</p> <p>In order that the trust funds may be accurately administered the decree herein should provide that the trustees forthwith divide the estate, in so far as the same is capable of subdivision, into separate trusts as directed by the will.</p> <p>The executors of the deceased son of testator being now entitled under the will to all of the one-ninth share, except such portion as has been conveyed or assigned by them, may make any agreement with the trustees they see fit as to such share.</p>

<p>Wills—Subscription Thereof by Testator and Witnesses on First Page *—Subscription by Testator Alone on Third Page—Subscription Insufficient—Decedent Estate Law, § 21(4).</p> <p>Where a will drawn on a blank, consisting of one sheet of paper folded so as to make four pages, was signed by the testator and the subscribing witnesses on the first page, and by the testator alone on the third page, it is pot signed at the “ end of the will ” as provided by section 21(4) of the Decedent Estate Law, and probate of the instrument will be refused.</p>

<p>Legacy—To Pastor of Church fob Saying Masses—To Whom Payable —Lapsed Legacy—Decedent Estate Law, § 29.</p> <p>A legacy to the pastor of a certain church, for the purpose of saying masses for the souls of testatrix and her deceased husband, is payable to the person who at the death of testatrix is the pastor of said church.</p> <p>A legacy to a decedent who predeceased the testatrix lapses and is distributable under the residuary clause of the will, and where a child of said legatee also predeceased testatrix without leaving issue section 29 of the Decedent Estate Law as amended by chapter 384 of the Laws of 1912 does not apply.</p>

<p>Proceeding for the judicial settlement of the account of an executor.</p>

<p>Application for the appointment of a successor trustee under section 2818, Code of Civil Procedure.</p>

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

<p>Wills—Testamentary Intention—Use in Will of Misnomer.</p> <p>Where it appears by extrinsic evidence that a bequest of $1,000 was intended for the “ Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children,” an incorporated society, and the use in the will of the name “ St. Joseph’s Union,” an unincorporated branch of said mission was a misnomer, the testamentary intention will be effectuated by payment of the money to the mission.</p>

<p>Evidence—Of Undue Influence Wholly Circumstantial—Wills.</p> <p>Where though the evidence is convincing that the only cause for testator’s separation from his wife and children for the last ten years of his life was his devotion to the chief beneficiary under his will and codicil with whom during the same period he had maintained a meretricious intimacy and that she established an influence over him that barred his return to his marital and parental duty, but the evidence that such undue influence extended to the making of his testamentary acts is wholly circumstantial and contains no direct view of the beneficiary in the act of unduly influencing testator in making either his will or the codicil thereto, both instruments may be admitted to probate.</p>

<p>Proceeding upon, the judicial settlement of the account of an executor.</p>

<p>Executors and Administrators—When not Entitled to Commissions * —Wills—Power oe Sale by Executors.</p> <p>Where it becomes unnecessary to exercise a power of sale by executors of their testator’s real estate, the personal property being ample to pay all bequests and an annuity to testator’s widow, and the residuary legatees and devisees give written notice of their election to take the realty free from any and all powers of sale given to said executors, they are not entitled to commissions on the unsold realty, in the absence of an actual sale.</p>

<p>Trusts—Direction to Trustees to Pay Income to Respective Beneficiaries—Contract Between Testator’s Widow and Ron to Prevent the Conversion of Residuary Estate . into Money—Code Civ. Pro., § 2472a—Jurisdiction to Construe—-Assignment and Agreement—Turning Over to a Holding Corporation of Securities Constituting Trust Eund.</p> <p>A will aside from certain general legacies created distinct trusts of $50,000 each for testator’s widow and his three children who were all of full age, and the trustees were directed to pay the income of each of said trusts to the respective beneficiaries, and the residue of the estate was given to the widow absolutely who, three years after the probate of the will, made an absolute assignment of a two-ninths interest in the entire residuary estate to one of testator’s sons, a resident of the state of California. A written contract between the widow and said son, reciting that they were desirous of preventing the conversion of the residuary estate into money, expressed a wish that the executors should not exercise their power of sale over the real estate nor their authority for the disposition of the personal securities but that they should transfer the same to a holding corporation formed to create a method of preserving and holding intact the residuary estate, and said contract made no distinction between the trust fund for the widow and that portion of the residuary estate which had actually come into her possession, but provided that it was mutually covenanted and agreed between the parties that all the property and estate, both real and personal, should belong to and become a part of the residuary estate and be transferred to the holding company. The son’s wife, by a writing at the end of said contract, approved thereof and agreed to join with him in the execution of any deed necessary to make the contract effective and for the purpose of conveying any contingent right of dower she might have in the property. The son subsequently died in California leaving him surviving beside his widow two minor children, and upon the probate of his will in that state letters testamentary were issued to his widow. In a controversy between her and her husband’s mother as to the title to the trust fund for the benefit of the latter, held, that under section 2472a of the Code of Civil Procedure, as amended, the surrogate upon an intermediate accounting of the testamentary trustees had jurisdiction to construe both the assignment and the agreement and to determine in whom was the title to the trust fund.</p> <p>That upon the execution of said assignment, which was made without any other consideration than love and affection, the son became the absolute owner of an undivided two-ninths in the principal of the trust fund.</p> <p>That the agreement between mother and son, which was fully consummated in every detail before his death, except the formal transfer of the funds constituting the trust estate so soon as the same were released from the operation of the trust, did in fact provide for a transfer to the holding corporation of the two-ninths interest assigned to the son, and the demand of his executrix for payment thereof to her was neither just, equitable nor conscionable. ■</p> <p>That the transfer of the son’s interest in said trust fund was effected by the agreement between him and his mother, and all that remained to be done after his death in order to effect a complete performance of said agreeent was the turning over to the holding corporation of such securities as constituted the trust funds; that it was not necessary for the executrix of the son to execute any formal transfer of the two-ninths of the trust fund to the corporation, as by the agreement the son had parted with and surrendered his right to the possession of any portion of such securities and had agreed to accept stock in the holding corporation equivalent to and in lieu of his two-ninths interest hi the samej and his executrix was not entitled to recover anything more.</p> <p>That the separate trust for the benefit of the said son having expired at his death should be delivered by the trustees to the holding company.</p> <p>That income derived from the trust for the benefit of said son prior to his death and not paid over to him should be paid by the trustees to his executrix, and income derived since the death of said son should be paid by the trustees to the holding corporation.</p>

<p>Appeal from a decree of the Surrogate’s Court fixing and assessing the transfer tax.</p>

Appeal by the defendant, Susan A. Penfield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 1911, upon the decision of a referee to whom the issues had been referred to hear, try and determine.

Appeal by the petitioners, Henry Doscher and others, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of December, 1911, denying an application to revoke letters testamentary issued to Gesine Engel and for her removal as trustee.

Appeal by Mary Benjamin, individually and as administratrix, etc., and others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 24th day of October, 1912.

Appeal by the defendants, Mabel R. Shoemaker and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14'th day of June, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling a demurrer to the amended complaint made upon the ground that the complaint did not state facts sufficient to constitute a cause of action in an action…

Appeal by the defendant, Willis Luckman, from a judgment of the Supreme Court, in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 28th day of October, 1909, upon the decision of the court rendered after a trial at the Erie Trial Term, a jurj’' having been waived.

Appeal by Florence A. Mustor, contestant, from a decree of the Surrogate’s Court of the county of New York, entered in the said Surrogate’s Court on the 15th day of August, 1912, admitting to probate a paper propounded as the last will and testament of Matthew J. TCeeffe, deceased. '

The plaintiff and the defendants’ testator were two of the heirs at law and next of kin of Lucena Briggs, deceased, and as such would each have been entitled to one-eighth of her estate if she had died intestate.

<p>Decedent’s Estate—Limitation of Action on Claim Rejected by an Executor—Uncompleted Agreement to Refer Such Claim—When Such Agreement Does not Estop Executor from Setting up Short Statute of Limitations Against Such Claim—When Such Statute a Bar to a Counterclaim set up Against Claim of Estate.</p> <p>Defendant having made a claim against the estate of which plaintiff is executor, plaintiff signed and served upon him the following notice: “ You will please take notice that I doubt the justice and validity of your claim of $748.00 against the above named estate, and I hereby dispute the same, and offer to refer it under the statute to some suitable and proper person as referee, to be approved by the surrogate, to hear and determine the same.” Held, sufficient under section 1822 of the Code of Civil Procedure for the purpose of setting in motion the short Statute of Limitations.</p> <p>After the notice disputing defendant’s claims was served by the plaintiff no proceedings were actually taken to enforce them until this action was commenced; but, after service of the notice, a verbal agreement was made by the parties for a reference under section 2718 of the Code of Civil Procedure, and it was left to the defendant’s attorney to prepare the proper papers for such reference. This, however, he did not do, although nearly three months elapsed between the date when it was thus agreed and the expiration of the short period of limitations, and thereafter the plaintiff insisted upon that statute as a defense to the claims. Held, that the parties contemplated that their oral stipulations should be consummated and made effective only by incorporation into written instruments; that the time was not extended thereby within which defendant must institute proceedings on his claim, and that the plaintiff is not estopped from setting up the statute.</p> <p>The bar of the statute (Code Civ. Pro. § 1822) is effectual not only in a proceeding against an estate but is operative against a claim pleaded as a setoff in an action brought on behalf of an estate and a claim which has been properly rejected may not be used by way of counterclaim after the expiration of the statutory period.</p>

<p>Will—Devolution of Residuary Estate—Application of Words “ Legal Representatives ”—Division of Residuary Trust Fund Per Stirpes and not Per Capita.</p> <p>A testator directed that his residuary estate be divided into six parts, and that three of such parts be held in trust for three daughters, that said three parts should be held severally during the natural life of said daughters and upon the further trust as follows: “ Upon the decease of my said daughters respectively, to pay over, transfer and deliver the principal of the part aforesaid, so holden in trust for the use of the daughter so respectively deceased, to the child or children of such deceased daughter respectively; and in default of such child, or ehidren, then to my other children named in this will, and to their legal representatives in equal proportions.” Held, that the testator used the words “ and to their legal representatives ” in the sense of lineal descendants, as in the Statute of Distributions (Decedent Estate Law, Cons. Laws, ch. 13; L. 1909, ch. 18, § 98, amd. L. 1909, ch. 240). One of the daughters having died without descendants, and it "appearing that the descendants or next of kin of the testator are of unequal degrees of kindred, held, that the testator intended by the use of the words “legal represensatives ” Ms legal representatives, and hence the trust fund must be apportioned according to their respective stocks. Each group of grandchildren must, therefore, take the share that their parent would have taken, if living.</p> <p>Under the provisions of section 1355 of the Code of Civil Procedure an order made by the Appellate Division on an appeal must be first entered in the office of the clerk of that court, who transmits a certified copy thereof to the clerk of the county where the judgment was entered, and upon such certified copy of the order and on the papers upon which the appeal was heard such county clerk enters judgment which is the judgment of the Appellate Division, and an appeal is properly taken therefrom to this court. It is not necessary to appeal from the order upon which the judgment was entered. (Matter of Union Trust Co., 172 N. Y. 494, distinguished, the appeal having been there taken under section 2585 of the Code of Civil Procedure.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July, 9, 1912, affirming so much of a decree of the Monroe County Surrogate’s Court as construed the 11th paragraph of the will of Charles E. Turner, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p>