Volume 12 — Mills's Surrogate Reports

<p>Taxes—-Transfer tax—Recognition by state of joint ownership of personal property—Conveyance of real estate by tenants in common—When not subject to transfer tax.</p> <p>The law of this state recognizes joint ownership of personal property.</p> <p>A contract by which each of two persons, holding property as tenants in common, transfers his interest therein to the other if he survive is supported by a good consideration and is not subject to revocation.</p> <p>It is immaterial for what purpose the joint tenancy was created, as property may be transferred by gift inter vivos, or for a valuable consideration, and not be subject to the provisions of the Transfer Tax Law.</p> <p>Where a decedent and her sister while tenants in common of certain real estate conveyed it to a third person, and the deed of reconveyance to the grantors expressly declared that it was made to them as joint tenants and not as tenants in common and certain bonds and mortgages originally held by decedent and her sister as tenants in common were by separate instruments assigned to a third person who then assigned said bonds and mortgages to decedent and her sister as joint tenants, an order that decedent’s interest in both the real and personal property was not subject to a transfer tax will be affirmed.</p>

<p>Wills—Devise in trust to pat widow and children certain sum annually—Termination of trust—What property subject to transfer tax—Domicile.</p> <p>By the will of a testator who gave his estate in trust to pay his widow a certain sum annually, and to pay a certain part of the income to his two daughters until they were twenty-one years of age, the trustee was directed to divide the residue of the estate between the daughters upon attaining their majority subject to the payment of an annuity to their mother during her life. When said daughters became of age one of them, decedent herein, then domiciled in France where she died, and her mother executed an instrument terminating the trust in favor of the mother in so far as it affected’ one-half of the estate of testator, and assigning said one-half of the estate to the mother and another as trustees with direction to collect the income and therefrom pay the widow an annuity for life, the balance of said income to be paid to decedent herein and upon the death of testator’s widow to pay the principal of the trust fund to decedent herein if living, and in case of her prior death to her issue. The decedent herein predeceased her mother. It did not appear that the securities constituting the estate of testator were kepi in the state of New York by the testamentary trustee who was a resident of the state of New Jersey, or that they were in the state of New York when decedent herein executed the deed of trust, but it was conceded that said securities were kept in the state of New York by the trustee appointed under the deed of trust. Held, that the property transferred by the deed of trust was not subject to a transfer tax.</p> <p>That the interest of decedent herein in said securities consisted of a right to compel .the trustee to pay her one-half of what remained after he had set apart a sum sufficient to pay her mother as provided by testator’s will; that not having enforced such right she never acquired title to the property.</p>

<p>Wills—Bequest to unincorporated association—Validity of bequest —Law of foreign state.</p> <p>A bequest by the will of a Hew York testatrix to the fire department of Ridgefield, state of Connecticut, a voluntary and unincorporated association, is valid, as by the law of that state the legatee has capacity to take.</p>

<p>Order to show cause why certain notes which were impounded by the appraiser should not be delivered up to the owner, and why the examination of a witness before the appraiser should not be terminated forthwith.</p>

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

<p>Proceebing upon the accounting of trustees of several trust funds.</p>

<p>Wills—Subscribing witnesses—When probate denied—Signature of TESTATRIX.</p> <p>Where it appears that neither of the subscribing witnesses to a will saw the testatrix sign it, and one of them is not positive as to whether or not he observed her signature thereto, and the other, after a lapse of three years, at the request of testatrix signed the will as a subscribing witness, probate will be denied.</p>

<p>Proceeding pursuant to title 5 of chapter 18, Code of Civil Procedure, for the payment of debts and funeral expenses.</p>

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

<p>Wills—Creation of trust under—Gifts—Executors and administrators.</p> <p>A will, after creating trusts under which in part it was provided that a portion of the fund in trust should be divided so soon as testator’s son R. should attain, the" age of thirty years, or as soon as testator’s son L. should reach the same age if R. should die before attaining that age, provided that if either of said sons should die before the division of the estate between them as directed to be made then the share or interest of the one so dying should go to his heirs, executors and administrators absolutely and forever. R. died before his father and before he became thirty years of age leaving his widow and his father as the only distributees of his personal estate. L. survived his father and was over thirty years, of age at that time. Held, that the gift over upon the death of R. was not impaired by the fact that he died before his father and that such gift inured to his administratrix.</p>

<p>Proceeding under section 2707 of the Code of Civil Procedure to discover property of decedent.</p>

<p>Wills—Subscription of—What is sufficient compliance with the statute—Subscribing witnesses.</p> <p>If a testatrix is physically unable to sign her name she may call in another to her aid even to the holding of her hand and guiding it, and so long as there is the conscious wish of testatrix that her hand should make the signature and she participates in any degree in the making of it and acquiesces in and adopts the signature thus made, there has been a sufficient compliance with the statute.</p> <p>Such subscription having been actually made in the presence of the subscribing witnesses, an acknowledgment by testatrix that the signature was hers was unnecessary.</p>

<p>Surrogate’s Court—When no jurisdiction to decide ownership or MONET DEPOSITED IN SAVINGS BANK.</p> <p>The Surrogate’s Court has no jurisdiction, on a motion, to decide whether money deposited in a savings bank in the joint names of decedent and another is the property of the survivor, where the form, of the deposit itself does not as matter of law vest the ownership of such money in the survivor j for what the intent was when such deposit was made is a question of fnct to be decided in an action.</p>

<p>Proceeding upon petition for revocation of letters of administration.</p>

<p>Wills—Construction of—Distribution per stirpes and not per capita —“ Grandchildren ” not included in the word “ children.”</p> <p>Where a testator disposed of his residuary estate to his “brothers and sisters and their heirs,” and gave to the children of a deceased brother his share, the distribution is to be per stirpes and not per capita, the intent of testator being to distribute his propery equally among his brothers and sisters, and by the use of the words “ their heirs ” meaning the children of a deceased brother or sister to take the share of the parent. A per capita distribution readily yields to a per stirpes one.</p> <p>The share of the deceased brother is given to his “children,” and “ grandchildren ” are not included.</p>

<p>Proceeding upon the judicial settlement of the accounts of executors and trustees.</p>

<p>Application by the state comptroller to assess a tax upon certain remainder interests created by the will of decedent.</p>

<p>Domicile—Acquisition of—Proceeding to appraise estate under Transfer Tax Law—Non-resldbnts.</p> <p>The domicile of a decedent, in a proceeding to appraise her estate, under the Transfer Tax Law, is material because if she were not a. resident of the state at her death her intangible personal property is. not subject to the tax.</p> <p>Where the actual separation of decedent and her husband, though, not evidenced by a judicial decree, had lasted for twenty-six years, during which they maintained separate' homes and paid their own expenses from their individual property, and he never visited at her residence in the state of West Virginia except upon the occasion of their daughter’s marriage, a finding is justified that decedent prior to her death acquired a domicile separate and apart from that of her husband, and that she was not at the time of her death, in; West Virginia, domiciled in the state of New York.</p>

<p>Application by an executor to modify an order of this court, which assessed a transfer tax upon the estate and to exempt from taxation the corpus of certain trust funds.</p>

<p>Executors and administrators—Proceeding for judicial settlement OF ACCOUNTS OF EXECUTOR—WHEN INTEREST ACCRUES FROM! DATE OF TESTATOR’S DEATH.</p> <p>Where proceedings for the judicial settlement of the accounts of an executor are pending, the petition of one who filed objections thereto for an order directing the payment to him of the annual income of a trust fund as directed by the will must be dismissed with costs, in the absence of proof that there is money or other personal property of the estate applicable to the satisfaction of petiitoner’s claim, without prejudice to an accounting.</p> <p>Where a sum is left by will in trust with direction that the interest and income shall be applied to the use of a person, he is entitled to the interest thereof from the date of testator’s death.</p> <p>The beneficiary’s right to income cannot exceed the amount received, or which should have been received, from the trust fund.</p> <p>The executor should be credited with the payment of the transfer tax from the income received.</p> <p>Where the provision of the will creating the trust fund is that the income be “paid to or for the use and benefit of” the petitioner, his note paid by the executor should be credited in the account as so much income paid.</p>

<p>Judicial settlement of account of trustee.</p>

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

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

<p>Wills—Evidence as to circumstances attending probate—Who is COMPETENT TESTATOR.</p> <p>Where a competent testator, who at the time of the making of his will and sometime before that and thereafter and up to the time of his death was in the home of his blood relatives who were hostile to his wife, gave the bulle of his estate to his daughter with whom he was on good terms and who had worked with him in his place of business and done much to assist him in carrying on such business, and the evidence as to the circumstances attending the execution of the will does not justify a finding of undue influence, it will be admitted to probate.</p>

<p>Wills—Construction op—Ho presumption op intestacy when there is A WILL.</p> <p>Where there is a will intestacy cannot be presumed, and the residuary clause, though ambiguous, should be construed so as to prevent intestacy.</p> <p>A general residuary clause of a will disposes of all testator’s real estate except such portions as are clearly devised or bequeathed under other parts of the instrument.</p>

<p>Wills—Rules fob construction and interpretation of—Devise to EXECUTORS IN TRUST—WHO ENTITLED TO REMAINDER INTEREST IN PRINCIPAL OF TRUST FUND.</p> <p>Rules for the construction and interpretation of wills are to be applied in subordination to the intention of the testator, deducible from the terms used and the whole context of the will.</p> <p>Adverbs of time such as “ when,” “ then,” “ after,” “ from and after,” etc., in the devise of a remainder limited upon a life estate should be construed as merely indicative of the time of the enjoyment of the estate and not of its vesting.</p> <p>Where on the death or remarriage of testator’s widow all his real estate was devised to the executors in trust to sell and invest the proceeds and to collect, receive and pay over to testator’s two daughters in equal shares the interest, dividends and profits of the investment, and “ from and after the decease ” of the daughters the principal of the trust fund, together with the interest, dividends and income thereof, was bequeathed to the children of said daughters, the children of each “on the decease of their mother” being given the one-half in equal shares, the estates in remainder are vested and not contingent.</p> <p>Testator was survived by his widow, who never remarried, and by two daughters one of whom upon the death of her husband contracted a second marriage of which there was no issue and her son by her first marriage predeceased her, dying intestate, leaving him surviving no widow, no child or issue of any deceased child. Held, that the remainder interest of said son in the principal of the trust fund vested in him on the death of testator and that one to whom he had assigned one-half of all his right, title and interest of, in and to the estate of his grandfather was entitled to receive one-half of the balance of the principal of the trust estate remaining in the hands of the accounting trustee, testator’s daughter having in the meantime died.</p>

<p>Insurance (life)—To whom proceeds of policy belong—Use of terms “ LEGAL REPRESENTATIVES ” and “ NEXT OF KIN ” WHEN USED IN CONTRACTS OF LIFE INSURANCE. EXECUTORS AND ADMINISTRATORS—ACCOUNTING by—Duty to pay reasonable funeral expenses.</p> <p>The term “ legal representatives ” when used in contracts of life insurance to describe the insured is equivalent to “ the next of kin.”</p> <p>A policy of life insurance issued to decedent for a sum payable at. his death to “his wife (named) if living or his legal representatives” is for the benefit of his next of kin in the event of his wife dying before, him, and where testator was survived by a daughter as his only next of kin the proceeds of the policy belong to her personally.</p> <p>It is the duty of an administratrix to pay the reasonable funeral expenses of her decedent, and where in her verifiéd account she alleges that the charges therein for necessary expenses are correct the account must prevail so far as it is supported by vouchers, unless it is impaired by proof.</p>

<p>Application to revoke letters testamentary for alleged waste and mismanagement; also letters of guardianship.</p>

<p>Proceeding upon the judicial settlement of the account of Kings County Trust Company, as executor and trustee.</p>

<p>Wills—Bequest of certain sum in trust—Disposition of all the REST, RESIDUE AND REMAINDER OF ESTATE IN TRUST TO INVEST ANDi KEEP INVESTED-WHO ENTITLED TO ONE-HALF OF PRINCIPAL OF RESIDUARY TRUST FUND.</p> <p>The will of a testatrix having two brothers each of whom had a child bequeathed a certain sum in trust the net income of which was to be paid to testatrix’ sister semi-annually, and upon her death the principal was given in equal shares to a niece and nephew, the children respectively of the brothers of testatrix, and it was provided that should either or both of said brothers remarry and have lawful issue such issue should participate equally with the aforesaid niece and nephew in the principal of the trust fund. The trusts for the brothers of testatrix were expressed in the same form of words as the trust to the sister except that the gift over upon the death of the first beneficiary in each instance was to his child and his afterborn children, if any. All the rest, residue and remainder of the estate was given in trust to invest and keep invested, to collect the income thereon and pay one-third thereof to the sister of testatrix and one-third each to her brothers, and upon the death of either or all of her brothers and sister the principal of the trust fund was given to the aforesaid nephew and niece, share and share alike. The children of any subsequent marriage of the brothers of testatrix were to share equally with said nephew and niece in the trust fund. The will then declared that the purpose in creating the trusts was “to prevent waste of my dear father’s money, and in the instance of my brothers to prevent as far as possible their wives from participating in the enjoyment of my estate inasmuch as neither of them has - properly cared for their homes or families.” One of the brothers of testatrix died leaving an only child and there was no child of the brother except the niece above mentioned. On an application for the payment of his legacy, held, that the son of the deceased brother was entitled to one-half of the principal of the residuary trust fund.</p>

<p>Wills—Gift of chattel—Securities in joint names in safe deposit. Executors and administrators—Husband and wife—When wife-as administratrix must account for securities found in safe, DEPOSIT BOX.</p> <p>One may not by parol make a chattel owned by him the subject of a voluntary disposition to take effect upon his death unless he conforms to the law of gifts or the law of wills.</p> <p>Securities, or other instruments for the payment of money, are chattels and any arrangement for their distribution upon the death of the owner which is not evidenced by a will, delivery or some form of written convention must fail.</p> <p>Where a husband and wife on renting a safe deposit box as joint tenants, with free access thereto at all times, signed a contract by which it was agreed that in the case of the death of either the survivor was to have access to the box, either to have power to appoint a deputy, the wife as administratrix of her husband must account for corporate securities found in the box at his death and which were in his name when deposited.</p> <p>A certificate of stock, produced by the administratrix but not from said box, standing in decedent’s name, presumptively came into her hands after the death of her husband and must be accounted for as, part of his estate.</p>

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

<p>Wills—Execution of *—Acknowledgment by notary public as to subscribing WITNESSES’ SIGNATURES—PRESUMPTION OF DUE EXECUTION-When probate refused.</p> <p>Where the execution of a last will, drafted by the testatrix, was directed by a notary public who attached thereto an acknowledgment of the subscribing witnesses’ signatures, no presumption of the due execution of the instrument arises; and where there was no publication, no legal request made to the subscribing witnesses to act as such, and no acknowledgment to one of them who was not present when the testatrix signed and who did not see her signature, probate will be refused.</p> <p>* See Note, Vol. V, p. 10.</p>

<p>Marriage *—Annulment on account of lunacy—When husband may NOT APPOINT TESTAMENTARY GUARDIAN OF CHILD WHOSE MOTHER IS LIVING.</p> <p>Where a marriage was annulled because of the lunacy of the wife existing at the time of the marriage, the husband may not appoint a testamentary guardian for a child, the issue of such marriage, if its mother be still living.</p> <p>*See Note on Presumption of Marriage, Vol. IV, p. 187.</p>

<p>Determination of issue as. to domicile of decedent.</p>

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

<p>Appeal from an order assessing the transfer tax in above estate.</p>

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

<p>Executors and administrators—May sell personal property por payment of debts—Conduct of executors reviewed.</p> <p>For the purposes of administration, executors have title to all the personal property of their testator not specifically bequeathed either directly or by necessary implication.</p> <p>Executors may sell the personal property of their testator for the payment of debts and expenses of administration and distribute the residue among the legatees as directed by the will.</p> <p>The conduct of executors in the sale of the stock of a business corporation not dealt in on the public exchanges reviewed, and the report of the referee to hear and determine questions raised by objections to the executors’ account approved and confirmed.</p>

<p>Dower *—When wipe has right to assert dower in specific lands DEVISED TO HER-WILLS-WHEN WIDOW IS PUT TO ELECTION.</p> <p>A wife, for a more favorable adjustment of the transfer tax, has a right to assert dower in specific lands devised to her by her husband, and in the possible case that she shall find that claims of creditors may intervene between the gift and its enjoyment.</p> <p>But where, in addition to such devise and a devise of the residuary estate in trust, the income thereof to be equally divided between testator’s wife and son, the will provides that if the son dies during the lifetime of his mother one-half of said income shall go to his surviving child or children share and share alike, and directs that upon the death of testator’s wife all the estate shall go to the son, and in the event of his death before hers then upon the death of testator’s wife all of the estate is given to the child or children of his said son, the widow is put to her election between dower and the provisions of the will as to lands other than those specifically devised to her.</p> <p>* See Note, Vol. I.</p>

<p>Trusts—Conduct of trustees—Loan of trust funds of bond and mortgage—Rule as to investment of trust funds—Accounting by trustees—What system of investment of trust funds deemed LEGAL.</p> <p>Every rule which has been established for the conduct of trustees depends upon the truism that the first care of the law is the safety of the trust estate.</p> <p>The loan of trust funds on bond and mortgage must be secured by property sufficient under prescribed standards to secure repayment of the loan, and the personal wealth or character of the borrower is a secondary consideration.</p> <p>Trust funds may not lawfully be mingled with other funds with which the trust is not concerned.</p> <p>The loan of a trust fund, in combination with other trust funds, in a transaction which may in any conceivable event require the concurrence of a stranger to the trust for the enforcement of the security, is illegal.</p> <p>The law condemns an investment in which the trustee’s personal funds are coupled with funds of the trust, lest the latter be at the peril of the trustee’s selfish interest.</p> <p>The rule that investment of trust funds can only be made in the name of the trustee and in his character as such is largely provoked by the need that such investments shall not only stand apart from every other interest, but be openly stamped with the individuality of the trust against every doubt.</p> <p>In the account of a trust company as testamentary trustee there was described a bond and mortgage representing an investment of trust funds, but in neither of the instruments was there any word to qualify its affirmation that both were held by the company in its individual name and solely as its own, and although the mortgage was recorded there was not of record any declaration of trust affecting the transaction. During the life of the trusts involved herein, the trustee had the custody of many other trusts under which it made many investments. These other trusts proceeded from separate interests and have had nothing to do with each other or with the trusts which are the subject of the present accounting. It has been the practice of the accounting trustee to take mortgages in its own name and, from time to time when it has become its duty, to invest the funds of any of its trusts, to allot to such trusts a portion of the investment represented by such mortgage until the moneys of several unrelated trusts are invested together in the same mortgage, the trustee making fair and precise records in its books clearly demonstrating as to each mortgage the parts thereof which have been distributed to the various trusts concerned and notifying the beneficiaries thereof. There was no suggestion that the mortgages presented in the account had been made upon insufficient security. Held, that under the authorities in this state such system of mvestments must be deemed legal.</p>

<p>Wills—Devises and bequests incorporated in—Action for construction—Destroyed will—Renunciation of real estate by devisee— Devisee may disclaim rights under will without consideration —Pleading.</p> <p>A testatrix survived by sons and daughters devised and bequeathed her entire estate to the daughters. Shortly after the death of testatrix all her children met and without any fraud or overreaching the will, by agreement, was destroyed, and within a few days the daughters signed a paper wherein they agreed to waive any and all wills made by their mother, and consented that her entire estate should be divided among all the children share and share alike. In an action by the daughters to have determined whether they were entitled to the interest in their mother’s estate given by her will, held:</p> <p>That the transaction which involved the rights of plaintiffs under the will was the one which took place when the will was destroyed and nothing further was required to be done in order to vest in each of the children an undivided interest in the estate as heir-at-law.</p> <p>That there was no need for the making of an executory contract and that the evidence would not warrant a finding that the paper was signed by plaintiffs as such a contract.</p> <p>While renunciation of real estate by a devisee must be by deed, unequivocal acts on the part of the devisee may amount to a sufficient renunciation of the devise.</p> <p>A devisee may disclaim his rights under a will without consideration; the disclaimer may be otherwise than by deed or by record, and when such a disclaimer is made the title to the property devised does not vest in the divisee under the will.</p> <p>The agreement in this case held to have met all the requirements of a disclaimer.</p> <p>An allegation of the complaint that plaintiffs were entitled to recover only as heirs-at-law tends to support defendants’ claim that the destruction of the will and the signing of the paper thereafter were acts which were understood by plaintiffs.</p>

<p>Proceeding for construction of will under section 272é of ■the Code of Civil Procedure.</p>

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

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

<p>Motion to strike out one of two bills of costs taxed and included in judgment of Surrogate’s Court of Westchester county.</p>

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

<p>Executors and administrators—Accounting by—When account of-EXECUTORS IS SOUGHT TO BE SURCHARGED THE BURDEN OF PROOF IS ON OBJECTANTS—WILLS. JURISDICTION—Of SURROGATE OVER EXECUTORS-And ADMINISTRATORS—STATUTE ENLARGING JURISDICTION OF SURROGATE-MUST BE STRICTLY CONSTRUED—MEANING OF “ ESTATE ” IN SECTION 2731, Code Civ. Pro., considered.</p> <p>Where the account of executors is sought to be surcharged with property not brought into the inventory or account, the burden of' proof is on the objectants alleging the omission, and if they do not sustain such burden the inventory or account stands and the objections thereto must be overruled.</p> <p>The sources of the jurisdiction of the surrogate over accounts of executors and .administrators reviewed and considered.</p> <p>A. statute enlarging the original jurisdiction of the surrogate must be strictly construed.</p> <p>The jurisdiction of the surrogate to determine controverted claims to property formerly of a decedent is purely statutory.</p> <p>Whether section 2731 of the Code of Civil Procedure confers on the surrogate jurisdiction to determine, on equitable considerations, the validity of transactions fully consummated by testatrix because such transactions happened to have occurred with the one named as her executor, quaere.</p> <p>The meaning of the term “ estate ” in said section 2731, considered. Executors have a reasonable time after the death of their testatrix in which to break up her domestic establishment and discharge her-servants, and within that limit disbursements incurred in the course of such breaking up will be allowed them upon their accounting.</p>

<p>Proceeding upon the judicial settlement of the United States Trust Company, as executor.</p>

<p>Wills—Specific legacies—Bequest *of shares of stock is specifio . bequest—Distribution made in conformity with decree of United States Supreme Court.</p> <p>A will, in the case of specific legacies, speaks as of the date of its execution.</p> <p>A bequest of “the thirty shares of the stock of the Standard Oil Company owned by me” is a specific bequest, and any subsequent inherent increase in the value thereof, represented by shares of stock in subsidiary companies to which the said thirty shares became entitled upon the distribution made by the company in eomfority with a decree of the United States Supreme Court, passes to the legatees of the original shares.</p>

<p>Trustees—Appointment of—Accounting by—When account surcharged with amount that should have been added to trust fund.</p> <p>Where testator did not direct that his investments in Standard Oil stock should be retained by his testamentary trustees, they should, in the exercise of that diligence and care which the law requires, dispose of shares received by them on account of extraordinary dividends declared on such trust fund stock at the market price, the same to be added to the corpus of the trust fund for the benefit of the remaindermen; and where, though acting under the advice of counsel, they transferred certain of said shares to the life tenant, their account will be surcharged with the amount that should have been added to the trust fund, thus placing the remaindermen in exactly the same position with relation to the extraordinary dividend that they would have occupied had the trustees performed their duty in the premises.</p>

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

<p>Proceeding upon the judicial settlement of an administratrix with the will annexed.</p>

<p>Application to declare above estate exempt.</p>

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

<p>.Proceeding to compel payment of legacy.</p>

Application by United States Trust Company as trustee of a trust deed, for an order declaring that the trust fund is exempt from taxation under the provisions of the Transfer Tax Law.

<p>Proceeding upon the judicial settlement of account of administrators with the will annexed.</p>

<p>Executors and administrators—When letters oe administration will not be granted—Eight to administer given only to persons interested—Code Civ. Pro., § 2588.</p> <p>A sister of decedent, who was not entitled to share in her personal estate because the deceased was survived by infant children, cannot have letters of administration granted to her under section 2588 of the Code of Civil Procedure as amended in 1914, as the right to administer is given by said section only to persons interested.</p>

<p>Executors and administrators—When limited letters of administration GRANTED FOR THE PURPOSE OF PERMITTING PROSECUTION OF AN] action—Actions arising under section 1902 of Code of Civil Procedure NO LONGER RESTRICTED.</p> <p>Under sections 2559 and 2592 of the Code of Civil Procedure, as amended in 1914, limited letters of administration may be granted for the purpose of permitting an administrator to prosecute any cause of action, the authority to issue such letters is no longer restricted to causes of action arising under section 1902 of said Code.</p>

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

<p>.Wills—Drug or liquor habit—Testamentary capacity.</p> <p>A person addicted to the drug or liquor habit, if lucid and sober when her last will is made, does not lack testamentary capacity by reason of such habit.</p> <p>Where the court does not find as facts all that was assumed in a hypothetical question, great weight will not be given to a physician’s answer thereto.</p>

<p>Jurisdiction—Op surrogates court—In probate proceedings—Prior to September 1, 1914.</p> <p>In a probate proceeding pending prior to September 1, 1914, the surrogate has no power to grant an application for a trial by jury of controverted issues of fact.</p>

<p>Costs—Taxation or—In Surrogate’s Court—Code Civ. Pro., § 2771.</p> <p>The taxation of costs is c^. trolled by the statute in existence at the time of taxation, and a 1; ter statute prevails over the one in existence at the time when ihe action or proceeding was commenced; hence the costs in a preceding pending in the Surrogate’s Court on September 1» 1914, must be taxed under the statute then in force. - - —'</p>

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

<p>Application by a special guardian for an allowance under; section 2748, Code of Civil Procedure.</p>

<p>Transfer tax proceeding.</p>

<p>Appeal by the state comptroller from an order assessing a tax upon estate of decedent.</p>

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

<p>Wills—When revoked—Provision of statute as to revocation— Statute does not provide for revocation of part of will by burning, tearing, canceling, etc.</p> <p>A duly executed last will and testament can be revoked or altered only in the manner prescribed by statute.</p> <p>The statute does not provide for the revocation of a part of a last will and testament by burning, tearing, canceling,' obliterating or destroying that part alone.</p>

<p>Wills—Undue influence—Burden of proof—Declarations of co-conspirators—Admissions of one legatee not competent against co-legatees.</p> <p>On an allegation of undue influence in a probate cause the burden of proof and the onus of sustaining it rest on him who alleges it.</p> <p>Undue influence is distinct from fraud and is a moral wrong applied to mental states of a testator.</p> <p>Undue influence postulates freedom of will and any coercion which subverts such freedom is undue influence in probate law.</p> <p>Undue influence may be established by circumstantial evidence which must be legally relevant; it is not enough that it is logically relevant</p> <p>Declarations of conspirators are admissible only when part of a competent res gesta, or, in furtherance of the conspiracy.</p> <p>Admissions of one legatee are not competent as against co-legatees.</p> <p>Where a legatee is charged with undue influence and conspiracy his declarations in furtherance thereof or as a part of competent res gestos may be given in evidence.</p> <p>A testatrix induced to make her will by a misrepresentation designed-to procure the will is unduly influenced in law.</p>

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

Appeal by the state comptroller from an order assessing-a tax upon a transfer of property effected by the will of decedent.

<p>'WILLS—Default of exercise of power of appointment over a tax fund—Directions as to certain part of a trust fund—Directing PAYMENT OF DEBTS FROM TRUST FUND-WHEN INTERESTS OF BENEFICIARIES SUBJECT TO TRANSFER TAX—RENUNCIATION OF LEGACIES—. Transfer tax.</p> <p>In default of the exercise of a power of appointment over a trust fund, the persons entitled to take it upon the death of the donee of the power are those who under the laws of the state of which the donee was a resident at the time of her death would be entitled to her personal property if she had died "intestate; in this state her husband and next of" kin.</p> <p>The last will of decedent’s father, after directing the payment to her, his daughter, of a certain part of the income of a trust fund for life, and, on her death, payment of the trust fund ■ as she by will might direct, provided: “and in default of such last will to pay over the same to those who by law should be entitled to receive it, had she died intestate seized or possessed thereof in her own right.” The decedent after several bequests directed that her debts be paid from the trust fund and the' balance thereof paid over to her issue, her surviving, per stirpes. Her husband to whom she made a bequest from the trust fund predeceased her. In a transfer tax proceeding, decedent’s three children elected to take their respective shares of the trust fund under the will of their grandfather. Held:</p> <p>That there was a valid exercise of the power of appointment by decedent and a valid and effective disposition of the trust fund and that the interests of the beneficiaries thereof were subject to a transfer tax.</p> <p>That decedent’s surviving children could not take under the will of their grandfather because the contingency upon which their right to so take, namely the failure of their mother to make a valid disposition of the .property by will, never took place.</p> <p>That said children not having renounced their legacies under the will of their mother, the question of the disposition of her estate or its taxation in the event of such renunciation was not before the court for determination.</p> <p>Money advanced by a legatee to whom decedent was not indebted to pay certain creditors was not properly included in the taxable interest bequeathed to said legatee.</p>

<p>Taxes—Transebb tax—Meaning of “ transfer ” as used in sections 220 AND 222 OF TAX LAW—WHAT MAT NOT BE CONSIDERED IN ASSESSING TRANSFER TAX.</p> <p>The word “ transfer ” as used in section 220 and 222 of the Tax Law means the passing of property or any interest therein by inheritance or will.</p> <p>A transfer tax is imposed upon the value of the estate of a decedent at the date of his death and any increase or diminution in value between such date and the time of the distribution of the estate may not be considered in assessing the transfer tax.</p>

<p>Appeal from an order fixing the tax on estate of decedent.</p>

<p>Wills—Residuary estate to be divided among children of testatrix LIVING AT HER DEATH-—MEANING OF “ ISSUE ”-RULE OF PER CAPITA DISTRIBUTION.</p> <p>The word “ issue ” when used in a last will, and not otherwise explained or defined, refers to descendants generally.</p> <p>The rule of per capita distribution yields to a very faint glimpse of different intention.</p> <p>Where a residuary estate was to be divided among the children of testatrix living at her death, with direction to the trustees to appropriate one share to “ each of my said children * * * and to the collective issue living at my death of each of my children who shall have died before me,” and by the next subdivision of the same paragraph the trustees were directed to pay over the income of the trust fund to each of the children of testatrix during the life of that child, and upon the death of that one to pay the principal to his or her lawful issue “so that the issue of each deceased child shall take the same share which their parent would have taken if living,” the use of the word “ parent ” in connection with “ issue ” discloses an intention on the part of testatrix to benefit the children of a deceased child rather than more remote descendants, and the word “ issue ” will be given its primary signification of “ descendants ” so as to include grandchildren only in the event of there being no child, and among children and grandchildren there should be a per stirpes and not a per capita distribution.</p>

Application by the state comptroller to assess a tax upon the value of the life estate of Whitewright Stuart in the remainder after the life estate of his father in a trust fund created by the will of William Whitewright, deceased.

<p>Application under section 2615, Code of Civil Procedure, to obtain a construction of the will of deceased.</p>

<p>Taxes—When entibe value of securities transferred by decedent to his wife as a gift is taxable—Conveyance of real estate by: decedent to his wife about ten days before his death taxable.</p> <p>Where certain bonds and mortgages taken in the names of a decedent and his wife were executed at various times between 1905 and 1908, both years inclusive, the transfer to her of the right of survivorship was taxable under the statute in force at the date of the respective-transfers.</p> <p>The entire value of such securities transferred to the wife as a gift, intended to take effect at or after his death was a taxable transfer under the statute as it stood prior to the amendment of 1910.</p> <p>A conveyance of real estate by decedent to his wife executed and delivered about ten days before his death was a taxable transfer, but she was entitled to have the gift taxed as an independent transfer and to have an exemption of $5,000 deducted from its value.</p>

<p>Executors and administrators—Claims presented to—Accounting by—Consideration and allowance of claims.</p> <p>A claim presented to the executor by claimant as surviving partner of a firm that had been the attorneys of decedent, an elderly person, and an aunt of the deceased member of the firm, for professional services rendered while having the general charge of her business, investment and affairs covering a period of about seven years, considered upon the judicial settlement of the accounts of the executor, who was also the claimant, and allowed, as presented, except as to such portion as had accrued more than six years prior to the presentation thereof.</p> <p>A claim by the executor who had general charge of decedent’s estate after the death of his partner for professional services, considered and allowed, except an item for accountings.</p>

<p>Wills—Codicil—When lapse takes place in part of besiduaby estate —Distribution of besiduaby estate—Executors and administrators.</p> <p>One having made a will and codicil and named certain legatees, the law presumes she did not intend to leave a portion of her estate absolutely undisposed of.</p> <p>Where a lapse takes place in a part of a residuary estate by reason of the death of a legatee, the distribution takes place according to law and not as a result of testatrix’s intention.</p> <p>Testatrix bequeathed to each of her three brothers one-fourth of her residuary estate and bequeathed the remaining one-fourth in equal shares to the children of a deceased brother. By a codicil such gift to one of the brothers was revoked and canceled and in place thereof he was given a specific money legacy. The gift to another brother was also revoked by said codicil on account of his death and in place of said bequest the said one-fourth of the residuary estate was bequeathed to the two children of said deceased brother in equal shares.</p> <p>Held, that upon distribution the one-fourth of the residuary estate that had been bequeathed to a brother and revoked by the codicil which gave said brother a money legacy should be distributed as follows: one-third to the other brother of testatrix and one-sixth to each, of three nephews and a niece.</p>

<p>Proceeding under section 2675 of the Code of Civil Procedure by an administrator to discover property of estate withheld.</p>

<p>Executors and administrators—When administration granted—Renunciation OF RIGHT TO LETTERS OF ADMINISTRATION—CODE ClV. PRO., § 2588.</p> <p>Administration may be granted to a competent person not entitled thereto, upon the written consent of all persons entitled to take or share in the estate who are within the state and competent, but such consent must be filed in the office of the surrogate.</p> <p>A renunciation of the right to letters of administration on the estate of decedent is not such a consent as is contemplated by section 2588 of the Code of Civil Procedure. So held, where the mother of decedent applied for letters of administration and presented with her petition the renunciation of the father who waS the only person entitled to take or share in the estate of decedent.</p>

<p>Application by a guardian appointed by will for letters of guardianship.</p>

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

<p>Application for an order for a trial by jury in a proceeding to discover property alleged to be withheld from an executor.</p>

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

<p>Will—Action to determine validity of probate—When action should NOT BE STAYED BECAUSE COPLAINTIFFS HAVE NOT PAID COSTS IN SURROGATE’S court—Security for costs.</p> <p>Section 2653a of the Code of Civil Procedure, authorizing an action in the Supreme Court to determine the validity of the prohate of a will, does not limit the right to maintain such action to those who filed objections in the Surrogate’s Court, but it may be maintained by any persons who are or represent the heirs at law or next of kin of the testator.</p> <p>Hence, an action under said section should not be stayed merely because some of the parties plaintiff, but who might have been made defendants, were charged with costs in the Surrogate’s Court, and have-not paid the same.</p> <p>But where the other plaintiffs, not charged with costs, are nonresidents they should he required to give security for costs in such action.</p>

<p>Will—Devise op real property in trust—Title and right of trustee TO RECEIVE INCOME—ACTION BY SUBSTITUTED TRUSTEE AGAINST ADMINISTRATRIX TO RECOVER ACCRUED INCOME FROM TRUST PROPERTY.</p> <p>When a testator devises real property to a trustee the legal title and the right to receive the income passes at once to such trustee.</p> <p>Where a testator by the terms of his will appointed a trust company both executor and trustee, and devised to it all of his residuary estate, including his real estate, upon certain trusts, and the trust company failed to serve, and one person was appointed trustee and another administratrix with the will annexed, the legal title to the real estate vested in the substituted trustee and not in the administratrix.</p> <p>Hence, such trustee is entitled to recover from the administratrix the rents and profits from the real estate accruing from the time of the testator’s death to the date of the sale of such property under the statute.</p>