Volume 11 — Mills's Surrogate Reports

<p>Wills—Construction op—Probate—Residuary Clause—Power op Sale —Administrator with the Will Annexed.</p> <p>A testator survived by a son and a daughter, after a bequest of $1,000 to his wife who predeceased him, devised and bequeathed to her the use of all his estate, real and personal, over and above said $1,000, until the daughter should reach majority at which time the sum of $1,000 of the estate was bequeathed to her and the balance to the son. Neither the children nor testator’s wife owned any property in their own right. Testator left about $6,000 in personal property and a house and lot worth about $1,000, all of which property was in substantially the same form as when his will, which contained no residuary clause, was made, and the executrix for the purpose of carrying out its terms was given full power to sell the real estate. A construction of the will being asked for on the probate proceedings, held, that the $1,000 bequest to the wife lapsed.</p> <p>That testator intended the property to be held by his executors, or whoever might administer the estate during the minority of the daughter, the income to be applied to the support of his wife and children.</p> <p>That the residue, including the real estate and proceeds thereof, if sold by the administrator with the will annexed, was to be held in trust by him, the interest, income, rents, issues and profits thereof payable equally to the son and daughter until the latter was twenty-one years of age when she was to be paid $1,000 and the son the balance.</p>

<p>Executors and Administrators—Accounting by—Provision in Will' for Payment of Accumulation—Money Expended in Improvements and Disposing of Unimproved -Real Estate should be Charged to Principal and not to Income.</p> <p>Where a gift of the residuary estate to testator’s minor son directed that the income should be held, with the corpus, until the son became of age at which time he was to receive the entire net income, and upon reaching the age of twenty-five years one-quarter of the corpus was to be paid to him, but in the event of his dying before reaching that age the corpus was to be paid to testator’s next of kin, the intention of the testator was that the accumulation should be paid to the son on his attaining majority and not retained as part of the corpus of the estate.</p> <p>Money expended in improving and disposing of unimproved real estate of which testator died seized should be charged to principal and not to income.</p> <p>Where, upon an annual accounting made by executors and trustees of the estate, expenditures for improving such real estate were charged to income and all interested parties appeared but made no objection to the decree entered, such decree is binding on them until reversed.</p>

<p>Wills—Making and Execution of—Undue Influence Exerted upon Testatrix—When Probate Decreed.</p> <p>Where it appears that the influence exerted upon testatrix in the making of her will did not amount to fraud, coercion or duress, probate should not be refused.</p>

<p>Taxes—Transfer Tax—When Subject to a Transfer Tax.</p> <p>Wiles—Provisions in Will of Nonresident, Disposing of Real Estate in this State, Determined—Trusts—Suspension of Power of Alienation.</p> <p>Property over which a contingent power of appointment may be exercised is presently subject to a transfer tax.</p> <p>The validity of a provision in the will of a nonresident disposing of real estate in this state is determined by the laws of this state.</p> <p>Where a nonresident testatrix devised her real estate to trustees with direction to pay the income thereof to her three daughters during their respective lives and upon the death of any of them to pay said income to her issue, if any, otherwise to be paid to her surviving sisters, and upon the death of the daughters without issue the property was to be disposed of by the last will and testament of the daughter last dying, and none of the daughters had issue at the death of testatrix, the trust is void as suspending the power of alienation for more than two lives in being.</p>

<p>Taxes—Transfer Tax—Monet Deposited in Savings Banks—Gifts— Trusts.</p> <p>Where a decedent deposited money in savings banks and received pass-books showing that the deposits were made in his name as trustee for his wife, and handed said books jto his wife and they were_ subsequently kept at their home, but there was no proof that the husband either at the time when he gave the said books to his wife or at any time thereafter declared that he was making a gift to her or giving her the money represented by the books, the trust was revocable until the death of the depositor, and the money then became subject to a transfer tax.</p>

<p>Wills—Bequest in Trust—Death of Life Tenant—Remainder in Trust Fund—Distribution Among Remaindermen Who Survived Life Tenant and Testator.</p> <p>Where a certain sum was bequeathed in trust to testator’s nephew to loan or invest as he in his best judgment might think safe, and semi-annually pay the income to testator’s stepsister during her life and at her death the principal of the trust fund was bequeathed to “ her children living at her death,” share and share alike, and the life tenant died before testator leaving her surviving four children all of whom survived the testator except a daughter who died leaving her surviving five children, the remainder in interest in the trust fund was distributable only among those remaindermen who survived both the life tenant and the testator.</p>

<p>Executors and Administrators—Issuance of Letters op Administration to a Stranger as Coadministrator—Revocation op Letters of Administration—Code Civ. Pro. § 2685—Issuance of Letters of Administration to a Trust Company—Surrogate’s Court.</p> <p>Section 2685 of the Code of Civil Procedure has reference only to an administrator who received letters because entitled thereto, and does not apply to a coadministrator who received letters not as a matter of right but upon the consent of the person entitled thereto.</p> <p>Where the issuance of letters of administration to a stranger as coadministrator is dependent on the consent of one entitled to the letters, and such consent is withdrawn and the letters of the principal or original administrator are revoked, the letters issued to the coadministrator may be revoked without an allegation of the existence of any of the grounds mentioned in section 2685 of the Code of Civil Procedure, and letters of administration granted to one entitled thereto in accordance with the provisions of section 2660 of said Code.</p> <p>Where the only next of kin of an intestate were two infant granddaughters whose father was appointed their general guardian and to whom letters of administration upon decedent’s estate were issued and subsequently revoked, and, at the time letters of administration were granted by his consent to a trust company, decedent’s note for $2,700,000 held by the trust company as payee was not due and none of the securities pledged for the payment of said note had been sold, but while the trust company was acting as sole administrator of the estate it sold as pledgee the securities held for the payment of said note and paid to itself, as administrator, the balance realized from the sale in excess of the amount required for the payment of the note, the facts make it appear that the individual interests of the trust company as administrator are opposed to the interests of the next of kin, and the letters issued to it will be revoked.</p> <p>Where the facts upon which a surrogate’s decision is based are not controverted, it is not necessary to make findings of fact and conclusions of law.</p>

<p>Proceeding upon the accounting of an administrator.</p>

<p>Evidence—Burden of Proof—“ Hearsay ” of Members of Family Competent Evidence—Legitimacy Presumed.</p> <p>The burden of proof to establish that one is a half brother of intestate is upon the claimant.</p> <p>Where pedigree is directly involved in a procedure, “ hearsay ” of members of the family is competent evidence and the treatment of claimant by the members of the family of the intestate is some evidence of paternity and kinship.</p> <p>Legitimacy is always presumed.</p>

<p>Wills—Absolute Conveyance of Real Estate Operates as a Revocation of a Devise in Trust—When Residuary Clause is Specific— Statute of Distributions.</p> <p>An absolute conveyance of real estate operates as a revocation of a devise in trust of the same property by the will of the grantor.</p> <p>Where the residuary clause of a will is specific, a void or revoked devise does not fall into the residuum but passes to those entitled under the Statute of Distributions.</p>

Motion to vacate the general orders of the surrogates of this county designating a person in this-proceeding to receive citation and appointing such person as special guardian in this proceeding of the alleged incompetent daughter of testatrix; and also to strike out of the said petition for probate an allegation to tht effect that such daughter, he only heir at law an6 next of kin of testatrix, “ is mentally incompetent to protect her rights, although not judicially…

<p>Gifts—To A Class—When Bequest not a Gift to a Class.</p> <p>Wills—Construction of—Legacies—Lapsing of Legacies Under Residuary Clause.</p> <p>A gift to a class is an aggregate gift to a body of persons living but uncertain in number.</p> <p>A bequest is not a gift to a class where at the time of making it the number of the donees is certain and the share each is to receive is also certain and in no way dependent for its amount on the number who shall survive.</p> <p>A testatrix whose estate consisted solely of personal property, after bequeathing a legacy to each of her grandchildren, to her son T. and to her son P. and to her daughter Emma, gave the rest, residue and remainder of her estate in equal shares to her sons P. and P. and said daughter. The daughter and the son P. died single and without issue before the testatrix who left her surviving her sons P. and T., a son of her deceased son J., six children of her deceased daughter Elizabeth, and five children of a deceased son W. Held, upon a construction of the will asked for on the probate thereof, that the gifts to the son P. and the gift to the daughter Emma under the residuary clause lapsed and fell into the residuum of which testatrix’s son P. was entitled to one-third, and that of the remaining two-thirds P. took one-fifth, T. one-fifth, the son of J. one-fifth, the children of Elizabeth one-fifth, and the children of W. one-fifth.</p>

<p>Wills—Construction as to What Constitutes a Contingency in— Joint Will of Husband and Wife*—Gift Fails When Kvent Described Does not Occur.</p> <p>The rule that, when the event which constitutes a contingency in a last will can be construed to have been the occasion for its mailing at the particular time when made rather than as a reason for malring it in a particular way, the will should be so construed that its provisions survive the contingency, should be limited to a case where the whole will is resolved upon because of a fear of death from a specific menace.</p> <p>Where the making of a will is entered upon with no sign of any incentive thereto except such-as accompanies the ordinary will, words upon which only one of the gifts is limited must be construed as a condition if that would generally be their meaning.</p> <p>By the joint will- of a husband and wife each directed payment of his or her debts and funeral expenses and in the event of the death of either the entire estate was given to the survivor. The will further provided that “ In the event we both should die at the same time by some calamity, accident, or otherwise die together, without an opportunity for the survivor of us to make any other testamentary disposition of the estate of which said survivor should be seized or possessed, then we both doth, hereby devise and bequeath to our nephew John Klingel and Minnie Klingel, his wife, or the survivor of them, all of the estate which we or either of us shall be seized or possessed of.” The husband leaving no next of kin survived his wife nearly two years and repeatedly declared after her death that he had left all his property to Minnie Klingel. John Klingel died before testator.</p> <p>Held, that said provision must be regarded as containing a gift only to take effect in the event described, which did not occur, and that the entire estate went to the state and the decree must so provide.</p>

<p>Accounting—op Trustees—Testamentary Trust to Receive and Pay Income to Persons Named—Equitable Division op Expenses of Trustees.</p> <p>Under an ordinary testamentary trust to receive the income and pay the same to persons named during their respective lives, the trustees, upon accounting for certain stock and cash dividends on corporate stock, should present proof from which it may be determined whether any part of the dividends embraced in the account came from the corporate earnings before the death of the testator.</p> <p>There should be an equitable division of the expenses of the trustee’s accounting between the fund of the trust and the income, and the remaindermen should also contribute to such expense.</p>

<p>Wills—Provision fob Distribution Among Children and Issue of Deceased Children—Indication of Testator’s Intention as to Division Among His Children—What the Term “Issue” Includes.</p> <p>Where a will provides for a distribution among testator’s surviving children, and the issue of his deceased children, “issue” is used simpliciter only in'respect of descendants of testator’s deceased children.</p> <p>Where a will indicates testator’s intention that his estate primarily should be divided among his own children, the issue of his deceased children take the share of their parent per capita and not per stirpes.</p> <p>The term “ issue ” includes children conceived but not yet born at the time a life interest terminates.</p>

<p>Executors and Administrators—Judicial Settlement oe Accounts of —Claims Withheld During Lifetime of Debtor and Sought to be Enforced After His Death Should be Carefully Scrutinized— Code Civ. Pro. § 829.</p> <p>Upon the judicial settlement of her accounts, an executrix who has paid bills aganst the estate which have been objected to, is incompetent under section 829 of the Code of Civil Procedure to testify as to conversations between the payee and the deceased, but the creditor whose claim is paid is a competent witness to such conversations.</p> <p>Where an issue is raised as to whether there was a loan to the decedent, his financial condition may be shown in rebuttal of claimant’s testimony that he made the loan to decedent.</p> <p>Claims withheld during the lifetime of a debtor and sought to be enforced after Ms death are to be carefully scrutinized and the uncorroborated testimony of the claimant may be insufficient to establish the claim.</p>

Proceeding to vacate and set aside and to decree to be null and void and without force and effect certain abrogation proceedings taken before the late Surrogate Abner C. Thomas, one of the surrogates of this county.

Appeal by the defendant, Arline A. Wilson, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of January, 1913, upon the-decision of the court rendered after a trial at the Kings County Special Term.

Cboss-appeals by The Mercantile Trust Company, as executor, etc., and by Adelena Muhlenbach Smith, legatee, and Charles Stuart von Lutnow Smith, legatee, from parts of a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 17th day of October, 1911, settling the account of The Mercantile Trust Company, as executor.

Appeal by the petitioner, Hattie Amrhein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1913, denying a motion for the removal of the substituted trustee under the last will and testament of Franz Amrhein, deceased.

Appeal by the defendants, Theodoras Bailey and others, from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of New York on the 10th day of October, 1912, upon the decision of the court rendered-after a trial at the New York Special Term.

Appeal by the plaintiffs, Mary E. Dickerson and another, and the defendants, Agnes Marie Klauer and another, from a judgment of the Supreme Court in flavor of certain of the defendants, entered in the office of the clerk of the county of New York on the 1st day of October, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining a demurrer to the complaint and dismissing the same upon the merits.

Appeal by Lascelles C. Maxwell and Thomas Y. Crafts, as executors, etc., and another, from an order of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 30th day of December, 1912, affirming an order-entered on the 7th day of July, 1911, in so far as the same affirms the assessment of a transfer tax in this proceeding.

Appeal by D. Remsen Robinson and Edward E. Perkins, as executors, etc., of Phebe H. Robinson, deceased, from a decree of the Surrogate’s Court of the county of Dutchess, entered in said Surrogate’s Court on the 24th day of September, 1912.

Appeals by the plaintiff, Benjamin Lichtenberg, and the defendants, Eliza Lichtenberg and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of February, 1918, denying a motion for distribution of a fund now in the hands of the chamberlain of the city of New York among the creditors of Moses J. Lichtenberg, deceased.

Appeal by the defendant, Henrietta Loser, individually and as executrix, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1913, denying the defendant’s motion for judgment on the pleadings.

<p>Decedent’s Estate—Action to Recover on Oral and Written Contracts of Decedent—Evidence—Costs—Presentation of Claim to Executors.</p> <p>Action by a person engaged in selling pictures to recover commissions claimed under an alleged oral contract and also on a contract in writing subsequently made with one since deceased. Evidence examined, and held, insufficient to justify a recovery on the oral contract;</p> <p>That recovery could be had on certain sales under the written contract;</p> <p>That the plaintiff not having presented his claim to the executors, is not entitled to costs, although he presented the claim to the testator.</p> <p>Olarke and Scott, JJ.., dissented.</p>

<p>Decedent’s Estate—Suit by Administrator to Recover Money of Decedent—Fraud and Undue Influence—Gift—Evidence.</p> <p>Action by an administrator to recover certain sums of money received by his intestate from the sale of land, and alleged to have been obtained from him by the defendant, with whom he lived until his death, by the exercise of fraud and undue influence. Evidence examined, and held, that the moneys were voluntarily given by the decedent to the defendant, without fraud and undue influence, and that a judgment for plaintiff should be reversed and a new trial granted.</p> <p>Kellogg, J., dissented.</p>

<p>Executor and Administrator—Reference Upon an Accounting— Evidence—Surcharge " Against Executor—When Surcharge Should be Charged Back Against Heirs—Expenses of Reference —Commissions and Costs of Executor—Degree Modified.</p> <p>Some twenty objections having been filed upon an accounting by an executor, the matter was sent to a referee at a large expense in fees, and as the result of which only three items of surcharge upon the debit side of the account were sustained. The referee deducted from the credit side of the account items aggregating $3,314.-78, of which $2,093.80 was the amount of a credit erroneously appearing upon both the executor’s and trustee’s accounting; $250 was a fee paid his attorneys after the period covered by his account; $660.98 was for a discrepancy in coal bills. The executor appeals from the three items surcharged.</p> <p>Evidence examined, and held, that the first and second surcharges for the value of a horse and for the difference between the total amount of decedent’s deposit and the portion thereof which the executor claimed to be the property of the decedent was erroneous and should be set aside;</p> <p>That the surcharge for rent which should have been collected for premises which had been occupied by certain of the heirs under an agreement between them whereby they released the executor • from liability arising thereunder, was proper, but the amount thereof should be charged back against the heirs who assumed to use the premises and release the executor from liability;</p> <p>That the decree appealed from should be modified by striking out the first two surcharges, by charging the expenses of the reference and the costs of the executor to the estate, by striking out the provision that the executor has grossly mismanaged the estate, and by allowing him his commissions and costs upon the accounting.</p>

Appeal by the plaintiff, Leo Schlesinger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of April, 1913, denying the plaintiff’s motion for the continuance of a temporary injunction order .granted ex parte, and also from an order entered in said clerks’ office on the 14th day of May, 1913, denying a motion for a reargument.

Appeal by the defendants, John C. Hoenninger, as executor and trustee, etc., and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of March, 1913, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Wills—Limitations Contained in—Application of the Rule Against Perpetuities Construed—Testamentary Dispositions—Trustee’s Accounting.</p> <p>The limitations contained in a will executing a power of appointment relate back to the will or deed granting the power and, for the purposes of the application of the rule against perpetuities, are to be construed as if contained in said instrument.</p> <p>Unless testamentary dispositions taking effect in possession in futuro control the immediate disposition of the property involved upon a trustee’s accounting, their validity cannot be determined because no occasion arises for it.</p>

<p>Wills—Construction of—Testamentary Provisions Authorizing executors to Sell and Convert into Cash Any or All Property—Direction in Case Any Litigation Arises—Executors and Administrators.</p> <p>A testamentary provision authorizing the executors “to sell and convert into cash on such terms and conditions as they may think best, any or all property, either real or personal, of which I may die seized or possessed, except such articles as I have specifically bequeathed,” is valid.</p> <p>While a provision authorizing the executors to invest and reinvest the proceeds, in such amounts and in such manner as may to them in their absolute discretion, seem advisable, although the said investments may not be of the character permitted for the investment of trust funds by the ordinary rules of law, cannot be regarded as invalid, the manner of the exercise of the discretion given is not placed beyond judicial review on behalf of the interested parties.</p> <p>A proper construction of said provision permits the executors to invest the trust funds in securities other than so-called court securities, or those mentioned in section 111 oí the Decedent Estate Law, using such diligence and such prudence in the care and management of the trust funds as prudent men of discretion and intelligence in such matters employ in their own like business concerns. If the executors and trustees in their discretion do not invest the funds in such securities as are mentioned in said section 111, known genr erally as court securities, in case of the depreciation of the investments, their conduct as to good faith, diligence and prudence may be inquired into on a settlement of their accounts. If, in the investment of the funds, they should take securities which diligent and prudent men, acting in good faith, would not take, they would be held liable for the loss, but if they should act with good the faith, prudence and diligence which would characterize a good, careful business man under the circumstances in the investment of funds, they would not be held liable, although there might be a loss.</p> <p>A provision of the will that “ Any or all of the trusts or legacies hereinbefore directed to be set apart, may be set apart in the discretion of my said executors, in money or property, belonging to me at the time of my decease, at such valuations as my said executors in their absolute and uncontrolled discretion, may deem advisable ” is valid.</p> <p>A provision of the will that directs that in case any litigation arises with respect to its construction, or any question growing out thereof, all the costs, expenses and disbursements attendant thereon incurred by the executors or trustees shall be charged against the amount coming under the will to the persons commencing or joining in such legal proceedings, and a further provision that the statement of the amounts incurred by the said executors or trustees, as aforesaid, shall be accepted as conclusive upon any accounting by them with respect thereto, both as to the reasonableness of any counsel fees paid and as to the correctness of all payments made, are both ineffective and invalid.</p>

<p>Services—Presumption that They Were Gratuitous—Witness as to the Nature and Extent of—General Rule Applicable that Where Services are Rendered by One and Accepted by Another a Promise to Pay is Implied.</p> <p>The presumption of gratuitous services springs from the existence of mutuality of consideration, privileges and benefits on the one hand ■and corresponding duties and obligations on the other; but in a case where all elements of reciprocity are lacking, where it is simply a matter of labor and services on one hand without benefit or advantage on the other, no equitable reason exists for disallowing compensation.</p> <p>Where decedent, who was eighty-one years old at the time of his death and the owner of certain real estate and a small quantity of personalty, soon after his wife’s decease and four and one-half years before his own decease, began losing his eyesight and during the closing years of his life was totally blind, developed a serious injury to his hip, and was lame and crippled from rheumatism, and in consequence of his infirmities required constant care, attention and surveillance, and for ten weeks immediately preceding his death was confined to his bed, and during the entire period of four and one-half years a daughter watched over and cared for him without receiving any compensation and without decedent being able to do anything for her, her claim for services will be sustained on the ground that the absence of all mutuality in the performance of such services removes such claim' from the operation of the presumption that the services were gratuitous and renders the general rule applicable that where meritorious services are rendered by one and accepted by another the law implies a promise to pay.</p> <p>Where the administrator, the husband of claimant, emancipated her as to such services before the rendition thereof, he was a competent witness as to the nature and extent of claimant’s services.</p>

<p>Wills—Execution of—Simultaneous Presence of Testator and Subscribing Witnesses is not a Requisition to Due Execution of Will—Attestation May be Made on Different Occasions—Proof by Subscribing Witnesses.</p> <p>The simultaneous presence of testator and subscribing witnesses is not a requisite to the due execution of a last will.</p> <p>While publication and the request of testatrix to the subscribing witnesses to attest a will may be made to them on different occasions and when they are separated and apart, both a sufficient publication and such a request by testatrix must be proved by each of two subscribing witnesses or there is no due execution of the instrument as a last will.</p>

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

<p>Wills—Provisions of—What Includes Right op Maintenance, Etc. —When Legatee Has Valid Claim Against Estate for Being Deprived of Her Right to a Home.</p> <p>Where a testator who left him surviving no widow devised and bequeathed the residue of his estate to his son, living daughters and an infant grandchild, who upon the death of her mother and desertion by her father had been taken by testator into his own family and treated at all times with the care and consideration he would have given his own child, a provision for her by his will of a home at his homestead until she was twenty-one years old, at which time the executor was directed to pay her a certain sum of money, includes the right of maintenance, board, clothing and, if necessary, medical attendance until she arrives at full age.</p> <p>While such provision constitutes no actual lien on the real estate comprising the homestead, it creates a condition where if the legatee is deprived of her right to a home there by the acts of those who succeed to the property she will have a valid claim against the estate therefor.</p>

<p>Wills—Testamentary Capacity—Compliance with Statute as to Due Execution—Testimony oe Subscribing Witnesses.</p> <p>About six days after testatrix had taken bichloride of mercury, presumably with suicidal intent, she requested that her mother and two witnesses be sent for as she desired to make her will. Shortly after their arrival at the hospital the two witnesses were taken into the room where testatrix, sitting up in bed, had a paper which had been drawn and signed by her. The nurse handed the paper to the two witnesses and said, “ this is Anna’s will and she wants you to sign it,” and testatrix answered “ Yes,” according to the testimony of one subscribing witness, and nodded her head, indicating “ Yes,” according to the testimony of the other subscribing witness. Both witnesses then in the presence of each and in the presence of testatrix signed their names as witnesses to the will. Within two weeks testatrx died from the effects of bichloride poisoning. Held, that there was a practical compliance with the statute as to due execution of the instrument as a last will and that it should be admitted to probate.</p> <p>The fact that testatrix had taken bichloride of mercury with suicidal intent did not of itself warrant the deduction that her mind was unsound, or that she lacked testamentary capacity at the time of making her will.</p>

<p>Wills—Interpretation of—Residuary Clause—Direction to Executors to Sell Real Estate—Executors and Administrators—Distribution.</p> <p>The primary guide in the interpretation of any will is the manifest intention of the testator and it is the duty of the court to give that force and effect to the scheme of distribution devised by the testator for the disposition of his property among the objects of Ms bounty where a construction and interpretation of the will to that effect is not inconsistent with, or does not contravene or render nugatory, statutes or decisions.</p> <p>Grandchildren may be included in the word “ children ” whenever it is necessary to give effect to the words of a will, and such appears to have been the intent of the testator.</p> <p>By a will which contained no residuary clause the testator who was survived only by brothers and sisters and nephews and nieces directed his executor to sell certain real estate and from the proceeds pay to a sister and sister-in-law, naming them, each a certain sum and to set aside another sum for expenses of administration. After payment and discharge of any mortgages and loans on said property and payment of said legacies the executor was to take from the purchaser of the property a mortgage for one-half of the balance of the purchase money payable at the death of said sister-in-law, which mortgage was to recite the trust and contain a provision that it should not be assigned or transferred during the life of said sister-in-law to whom the trustees were directed to pay the income during her lifetime. The remaining one-half of the balance of the purchase money was directed to be divided among testator’s brothers and sisters and children of deceased brothers and sisters equally. Upon the judicial settlement of the account of the executor it appeared that all of the property of decedent had been distributed except the part held in trust for testator’s sister-in-law, and that upon her death the executor had collected the mortgage, and filed his accounts of the moneys received which were distributable pursuant to a clause of the will which provided that after the death of the sister-in-law the executor should collect the bond and mortgage, divide the amount into six equal parts and pay one equal part to the following of her sisters “if living, or the children of such as shall be dead,” to-wit, one-sixth to A., one-sixth to B., one-sixth to the children of O., deceased, one-sixth to the children of D., deceased, one-sixth to the children of E. and one-sixth to E. A. died after testator leaving her surviving only grandchildren, and of the five who survived her only four survived the life tenant. O. died before testator leaving one son who died before testator leaving three children. Held, that the scheme of distribution adopted by testator was to divide his property into two equal parts and the legatees into two classes, one comprehending his blood relatives, and the other his wife’s relatives.</p> <p>That testator in using the word “ children ” with regard to the shares distributable under said clause intended, in case there were no children, to use the same in the sense of descendants so as to include grandchildren.</p> <p>That the legacies to the children of C., D. and E. were gifts to a class and that only those living when the final distribution is to be made, that is at the death of the life tenant, can share.</p> <p>That as to the distribution of the parts given to A., B. and F. futurity was annexed to the substance of the gift and only those of them who survive the life tenant are entitled to share.</p>

<p>Domicile—Cannot be Changed by Admissions of Executrix of Testator—When Domicile of Choice is Acquired—Of Military and Other Officers—Federal Territory—Jurisdiction of State. Transfer Tax—Domicile of Testator.</p> <p>That a will was admitted to probate in the county of New York as that of a resident of the state, and that in an affidavit filed with the transfer tax appraiser the executrix stated that decedent died a resident of the city of New York are not conclusive that his last domicile was in the state so as to subject his estate to a transfer tax.</p> <p>An executrix cannot change the actual domicile of her testator by admissions made after his death, nor can she do so by her own acts, even if amounting to an estoppel as against herself.</p> <p>The principle of domicile when applied to the conflicting pretensions of the internal laws of different sovereign states is a part of private international law, but when applied to the conflicting pretensions of imperfectly sovereign states of the same empire it is more properly classed as conflict of laws.</p> <p>In administrative matters concerning the incidents of taxation of the succession to estates, the sovereign states composing the United States will inter se determine, each for itself, the principle of domicile which it is willing to enforce.</p> <p>A domicile of choice may cease though no new domicile of choice is acquired.</p> <p>When a domicile which is abandoned was itself acquired by choice, the intention may be limited to that of abandoning it, since if no intention be directed toward any other country, the domicile of origin will be reacquired by reverter on the occurrence of the necessary fact of merely leaving the country in which a domicile had been acquired.</p> <p>By the law of civilized nations the domicile of military and other officers is fixed at the place where their functons must be discharged.</p>

<p>Jurisdiction—Of Transfer Tax Appraiser—Not Exclusive—On Appeal from Order, Entered on Report of Appraiser Surrogate Has Power to Decide Every Question Raised—Transfer Tax Law.</p> <p>A transfer tax appraiser has jurisdiction in the first instance to determine whether certain corporate stock constitutes a part of the estate to be appraised, and such determination must necessarily pre cede the valuation of said stock for the purposes of the transfer tax.</p> <p>The jurisdiction of the appraiser is not, however, exclusive, and on appeal from the order entered on his report the surrogate has power to decide every question that may be raised in a proceeding under the statute.</p> <p>In one of the affidavits filed with the transfer tax appraiser a reference was made to an instrument, executed by decedent and others three years before her death, in which it was alleged that she was at that time the owner of certain corporate stock, and the executor filed supplemental affidavits tending to show that she was not the owner of said stock and that, because of facts coming to his knowledge after the filing of the original affidavits, the interest of decedent in said stock was not subject to a transfer tax. The appraiser granted the motion to strike the supplemental affidavits from the record. The executor then made the present application to the surrogate to have determined whether the transfer of the interest of decedent in said stock was subject to a tax, and pending said determination no further proceedings were taken before the appraiser..</p> <p>Held, that the appraiser had in the first instance jurisdiction to determine all questions in connection with the appraisal of the estate, but that said determination was reviewable by the surrogate on appeal from the order entered on the appraiser’s report.</p> <p>That under section 228 of the Tax Law the surrogate had jurisdicton to hear and determine all questions arising under the provisions of the Transfer Tax Law, and, therefore, had jurisdiction to hear the question raised on the present application.</p>

<p>Wills—Proceeding fob Probate of—Code Orv. Pro. § 2618—Proper Time for Examination of “ Surrogates’ Witnesses.”</p> <p>In a proceeding for the probate of a will the contestants obtained an order pursuant to section 2618 of the Code of Civil Procedure for the examination of about all the important witnesses, including the subscribing witnesses, thus making such witnesses what are known as “ surrogates’ witnesses,” and the proponent after the examination of the subscribing witnesses, rested, but the contestants insisted that the other “ surrogates’ witnesses ” be examined before contestants opened their case. Held, that the proper time for the examination of “ surrogate’s witnesses ” was before the contestants opened their case and after the examination of the subscribing witnesses by proponent, and that the surrogate would not direct counsel for proponent against their will to examine “surrogates’ witnesses.”</p> <p>The history and construction of the statutes calling for “ surrogates’ witnesses ” indicated and the practice relating to their examination explained.</p>

Appeal by the defendants, John J. Halligan, individually and as executor and trustee, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 16th day of December, 1912, upon the decision of the court, certain questions having been submitted to the jury upon a trial before the court and jury at the Rensselaer Trial Term.

<p>Will—Execution—Inoompetency of testator—Fraud and undue influence—Evidence—Publication of holographic will.*</p> <p>A testator wrote his will on a sheet of letter paper of his club, and after signing it procured a member of the club to sign as a witness in his presence after declaring the instrument to be his last will and testament. The steward of the club signed the instrument later in the day at the request of the testator. On the following day the testator sent the will with a letter to his housekeeper, the sole legatee therein named. The testator died unmarried about five months after the execution of the will, and his father filed objections to' probate upon the grounds that the will was improperly executed, that its execution was obtained by fraud and undue influence and that the testator was of unsound mind and memory.</p> <p>Held, on all the evidence, that the objections were not sustained, and that the will was properly admitted to probate.</p> <p>The rule in respect to holographic wills as to the manner and method of publication is not so strict as where the will is drawn and executed under the direction of an experienced scrivener.</p>

Appeal by Otis H. Deck, contestant, from a decree of the Surrogate’s Court of Otsego countjq entered in said Surrogate’s Court on the 5th day of February, 1912, admitting the proposed will to probate and decreeing that the testatrix was of sound mind and memory and free from undue influence.

Appeal by the defendants, Rose D. Schaefer, individually and as executrix, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of Februray, 1913, adjudging a certain paper which had been admitted to probate as the last will and testament of .Elizabeth Rintelen, deceased, to be not in truth and fact the last will and testament of said deceased.

Reabgüment of an appeal by Richard E. Fowler and others from parts of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said surrogate on the 6th day of December, 1912. (See 157 App. Div. 893.)

Appeal by the defendant, Emily M. Keenan, as executrix, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 6th day of February, 1913, overruling the defendant’s demurrer to the complaint.

Appeal by the proponent, Walter Hernandez, from an order of the Surrogate’s Court of Kings county, entered in the office of said surrogate on the 15th day of July, 1913, as resettled by an order entered in said office on the 21st day of July, 1913, denying proponent’s motion for an order disallowing certain proposed interrogatories.

Appeal by The People of the State of New York and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1913, granting the petition of Charles W. Moon, as administrator of the goods, chattels and credits of Mary Elizabeth Brown, deceased, and of Jacob Levi Brown, deceased, defendants herein, and directing the Comptroller of the State of New York to draw and deliver…

Appeal by the defendant, Mary M. Klopsch, as executrix, etc., from ,a,n order of the Supreme Court, made' at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1912, vacating a judgment and granting a new trial.

Appeal by the plaintiff, Lizzie M. F. Spallholz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 18th day of October, 1912, upon the decision of the court after a trial before the court without a jury at the Washington Trial Term.

Appeal by the defendant, Kittie P. De Groote, individually and as executrix, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of April, 1913, overruling a demurrer to the complaint and awarding judgment in plaintiff’s favor.

Appeal by the defendants, William Jamison and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of April, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of April, 1918, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by Albert Smith Sheldon and another from a decree of the Surrogate’s Court of the county of Madison, entered in the office of said surrogate on the 23d day of December, 1912, with notice of an intention to bring up for review the findings made by the surrogate.

<p>Decedent Estate Law, § 98(5) —Where intestate leaves him surviving NO WIDOW, DESCENDANT, ETC.-WHO SHARES IN SUBPLUS OF ESTATE.</p> <p>Where an intestate leaves him surviving no widow, descendant, brother or sister, or descendants of a brother or sister, and no uncle or aunt, his first cousins share equally as next of lcin in the surplus of his estate under section 98 (5) of the Decedent Estate Law.</p>

<p>Trusts—Life beneficiary entitled to ordinary dividends—Wnd ENTITLED TO EXTRAORDINARY DIVIDENDS-WHERE RESIDUE OF ESTATE WAS BEQUEATHED IN TRUST-CERTAIN VOUCHERS SIGNED BY LIFE TENANT DO NOT ESTOP HER FROM CLAIMING CERTAIN SHARES OF STOCK.</p> <p>“ Ordinary dividends, regardless of the time when the surplus out of which they are payable was accumulated, should he paid to the life beneficiary of the trust.</p> <p>“ Extraordinary dividends, payable from the accumulated earnings of the company, whether payable in cash or stock, belong to the life beneficiary unless they entrench in whole or in part upon the capital of the trust fund as received from the testator or maker of the trust or invested in the stock, in which case such extraordinary dividends should be returned to the trust fund or apportioned between the trust fund and the life beneficiary ” in accordance with the amount thereof accumulated before and after the creation of the trust or purchase of the stock.</p> <p>Where the residue of an estate was bequeathed to testator’s widow and a nephew, in trust to collect and pay the income to her during her life and the remainder to others including said nephew, and among the assets of the trust estate were certain shares of the capital stock of a corporation which later apportioned its surplus, i. e., the accumulated earnings and profits of tie corporation, among its stockholders by an issue of additional stock of which the trustees under the will received as their portion fifty-four shares, such stock increase will be treated as an extraordinary stock dividend and should be apportioned between the life tenant and the remaindermen as follows:</p> <p>The portion of the earnings and profits accumulated prior to the creation of the trust should be awarded to the remaindermen and the portion thereof which was accumulated and earned subsequently to the creation of the trust should be awarded to the life beneficiary of her successors in interest.</p> <p>The method of apportioning the extraordinary stock dividend as explained in Matter of Osborne, 204 N. Y. 484, applied.</p> <p>Certain vouchers signed by the life tenant held not to estop her or her representatives from claiming the fifty-four shares in question.</p>

Motion by the comptroller of the state of New York to fix a transfer tax upon the transfer of contingent remainders which have vested in possession upon the death of the intermediate tenant.

<p>Executors and administrators—Accounting by—Institution oe proceeding TO REVOKE LETTERS TESTAMENTARY-TRUSTEES—-FITNESS FOR DUTIES "OF SUCH OFFICE—CODE ClV. PRO., § 2685(2).</p> <p>If an executor has made a fault within the classification contained in section 2685(2) of the Code of Civil Procedure, the fact that his continuance in office can do no harm is foreign and immaterial to the question of his fitness for the due execution of his remaining obligations.</p> <p>The fact that at the time of the institution of a proceeding under section 2685(2) of the Code of Civil Procedure to revoke letters testamentary there is before the court the account of the executors sought to be removed, that they are amply responsible for the return of a large amount paid by them from the funds of the estate to counsel selected by them for services pertaining solely to executorial duties and that there is no necessity for their removal so far as the safety of the estate need be regarded, has practically no bearing upon the issues tendered by the petition and cannot move the court, and the executors will be removed as unfit for the undue execution of their office.</p> <p>The same circumstances which have nothing to do with an executor’s fitness for the duties of such office are of controlling force to demonstrate his fitness as trustee under the will, and his fitness for continuance therein will be based upon a finding that he is abundantly able to respond for any default and that such default may be liquidated on an accounting by her as trustee.</p>

<p>Appeal from an order made in a transfer tax proceeding.</p>

<p>Wills—When probate denied—Confinement in institution for insane —Evidence.</p> <p>Where it appears that six years before testatrix made her last will she was confined for several months in an institution for the insane, and the whole evidence leaves the question of her sanity in doubt, probate will be denied.</p>

<p>Appeal from an order assessing a tax upon decedent’s estate.</p>

Cross-appeals by the plaintiff, Julius G. Paider, as committee, etc., and the defendants, Josephine Suchy and others, as executors and trustees, etc., and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 17th day of February, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the Town of Orleans, Barnstable County, Massachusetts, from a decree of the.Surrogate’s Court of the county of New York, entered in said surrogate’s office on the 16th day of June, 1918, settling the accounts of the executors herein.

Appeal by Henry J. Williams, as administrator, etc., from a decree of the Surrogate’s Court of the county of Delaware, entered in the office of said surrogate on the 21st day of October, 1912, in so far as it adjudges the claimant Mary Sutton Lakin to be entitled to the sum of $598 from said estate.

Appeal by the petitioner, Giovanni D’Adamo, from a decree of the Surrogate’s Court of the county of Jefferson, entered in the office of said surrogate on the 19th day of June, 1913, denying a petition to revoke letters of administration issued herein to the Italian consul and for the granting of said letters to the petitioner, Giovanni D’Adamo.

<p>Decedent’s estate—When contract with decedent is testamentary in CHARACTER-FAILURE OF SPECIFIC LESAOY BECAUSE OF DISPOSITION OF SUBJECT-MATTER.</p> <p>In an action by the plaintiff on behalf of herself and all other creditors of a testatrix against the executrix to establish the indebtedness of the estate to her, and to set aside certain conveyances alleged to have been made in fraud of creditors, it appeared that the testatrix when over seventy years of age signed the following instrument: “ I, Mary F. Ga Nun, do promise to care for Jane M. Sands in sickness and health as long as she lives. I, Jane M. Sands do promise to pay Mary F. Ga Nun Seventy dollars a month for the support of the house and her clothes as long as I live, and at my death she is to have Twenty thousand dollars that she will find in the Safe Deposit in New York and she is to take my keys and distribute the packages in box as they are marked, and all my clothing and wearing apparel and silver (in short) everything in the house shall be Mary F. Ga Nun’s.” About six months thereafter testatrix left plaintiff’s house and went to reside with the defendant, where she remained until her death about six years later, at which time she did not have any money or property in a safe deposit in New York or elsewhere. Prior to her death she had conveyed nearly all her property.</p> <p>Held, that although the first part of the agreement was contractual, the latter provision was testamentary in character and the $20,000 was a gift of a specific legacy which failed because the subject-matter thereof was not in existence at the date of the death of the testatrix;</p> <p>That since the specific legacy to the plaintiff failed, she was not a creditor and, therefore, the action was improper and the complaint should be dismissed.</p>

Appeal by the defendant, A1 Bassett, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of September, 1913, granting plaintiff’s motion for judgment on the pleadings.