Volume 13 — Mills's Surrogate Reports

<p>Compromise—Of Actions—Action by Administratrix to Recover fob. Death of Intestate—Code Civ. Pro., 1903.</p> <p>Where in 1914, and after the reversal of three successive verdicts in favor of plaintiff in an action commenced in 1908 by an administratis to recover for the death of her intestate by defendant’s wrongful act, the action was compromised and settled, the amount received in excess-of attorney’s fees and expenses must be distributed as provided by section 1903 of the Code of Civil Procedure as it stood- prior to the -amendment of 1911. So held on a contention of the ad-ministratix that under said amendment she took the whole amount to the exclusion of decedent’s next of kin, two brothers and two sisters.</p>

<p>Proceeding upon the final accounting on an executrix.</p>

<p>Executors and Administrators—Moneys in Hands of Administrator Applicable to Judgment Recovered Against Defendant—Code Civ. Pro., § 2719.</p> <p>Money in the hands of an administrator applicable to a judgment recovered against the decedent is money in the hands .of a third person to which the lien of the attorney recovering said judgment attaches and to the extent of such lien.</p> <p>Where an intestate left no personal property and .the only money in the hands of the administrator comes from the sale of decedent’s real estate, the administrator must first pay therefrom the reasonable expenses connected with the administration; second, the reasonable funeral expenses so far as the remainder of the money in his hands will pay the same, and any money then remaining must be applied in the order directed by section 2719 of the Code of Civil Procedure, except that the lien of the attorney of a judgment creditor of deceased in the amount established by the decree for the sale of decedent’s real estate must be paid with interest before any of the proceeds of sale are applied as provided by subdivision 3 of said section 2719.</p>

<p>Wills—Discretionary Power of Sale Contained in—What Title to Real Estate Passes Under Residuary Clause—When Residuary Legatee Entitled to Rents, Less Taxes, Etc.</p> <p>Where under a will the executors have a discretionary power to sell and dispose of any and all real estate of testator not specifically devised and the personalty is insufficient to pay funeral expenses, including a monument and bequests, the general legacies are a charge on the real estate which passes under the residuary clause of the will.</p> <p>The title to real estate passing under the residuary clause vested in the legatee at the death of testator and so remained, until divested by the execution of the power of sale by the executors and until such sale the residuary legatee is entitled to the rents, less taxes, insurance, repairs, etc.</p>

<p>Executors and Administrators—Duty to Preserve Bights of Besiduary Legatee in Trust Fund—Betention of Funds in Bank for Beasonable Time—Liability of Executors for Loss of Funds of Estate Caused by Failure of Bank.</p> <p>An executor is in duty bound to preserve the rights of the residuary legatee of a trust fund- as well as those of the life tenant.</p> <p>While the law permits an executor to retain funds of the estate in bank for a reasonable time- in which to seek an investment, such time is limited to the period in which a prudent and active man could find such investment.</p> <p>Wliat is a reasonable time depends upon the facts in -each particular case.</p> <p>A residuary estate was given to executors in trust to invest and reinvest with direction to pay the income to the life tenant and1 at his death to pay the principal to certain persons named. The executors from time to time sold certain of testator’s real -estate, collected money due on mortgages and -all money so obtained was by consent of all the-executors and- trustees deposited in the names of all the executors in a private banking house of good repute and standing, where both decedent and the life tenant deposited their funds, and it was at the latter’s request that the moneys of the estate were kept there. Held, upon the judicial settlement of the accounts of the executors, that they were liable for the loss of the funds of the estate caused by the failure ,y of the bank.</p>

<p>Surrogate's Court—Filing op Petition in, Pbiob to September, 1914— Code Civ. Pbo., §§ 2538, 2771.</p> <p>Sectiom 2771 of the Code of Civil Procedure is general in its application and all proceedings instituted by the filing of a petition in Surrogate’s Court prior to September 1, 1914, are governed and controlled solely by the practice as it existed prior to said date.</p> <p>Where in 1901 it was- stipulated that a claim on a promissory note made by decedent, and duly presented to the executors, should be heard before the surrogate on the judicial settlement of the accounts of the executors, and a decision of the Court of Appeals, affirming an order of the Appellate Division which reversed an order sustaining a demurrer to the answer in an action brought in the Supreme Court on said claim, 'held that under the stipulation the claimant was bound by her election to try the case before the surrogate, her demand for a jury trial under section 2538 of the Code of Civil Procedure, as amended, will be denied.</p> <p>Where the claimant as an incident to the retrial of the case before the surrogate after the reversal of a decision in her favor demanded a jury trial under said section 2538, she was not entitled to a special order denying her request; had her counsel wished to institute a separate proceeding upon which an order should be made and entered it should have been done before moving the case for trial, in which event she might have been entitled to an- order which could have been reviewed:</p>

<p>Executors and Administrators—Bight of Public Administrator tú Letters of Administration—Who Competent to Serve as Administrator.</p> <p>The right of a public administrator to letters of administration on the goods, chattels, etc., of an alien decedent leaving him1 surviving no person competent to serve as administrator is prior to the right of a consul general of the nation of which decedent was a subject. So held, on an application for the appointment of the public administrator of the county of Bronx opposed by the consul general of Italy at New York.</p>

<p>Application for letters of administration on the estate of a deceased alien.</p>

<p>Wills—Interpretation of—Construction Favored That Upholds Rather Than Invalidates .Will—When Provision of Will Does not Result in Violation of Statute Prohibiting Unlawful Suspension of Power of Alienation.</p> <p>“All the rest, residue and remainder of my estate, both real and personal .property of every kind, character and nature whatsoever and wheresoever situated, of which I may die seized and possessed of, I give, devise and bequeath to my executors hereinafter named, and the survivor of them (in trust nevertheless), to convert the same into cash, and and divide the interest thereof equally among my children, * * * and my grandchildren, * * and the survivor of them, share and share alike, the share belonging" to my said grandchildren shall be deposited' in banks1 for their benefit until the youngest of them shall arrive at the age of twenty-five (25) years, * * And until the distribution of my estate which shall take place ten (10) years after my decease, I give my said executors full power and authority to collect the rents, issues and profits thereof and to pay the net income thereof to my said daughters in the same manner as hereinbefore provided for the distribution of the corpus of my said estate.” Three daughters and one grandchild survived the testatrix.</p> <p>On probate a construction of the foregoing paragraph was requested, and it was held: (1) That the testatrix intended that the executors and trustees should divide the proceeds of the sale of her property, deposit the share belonging to the grandchildren in a bank for their benefit and hold the shares belonging to each child respectively for ten years, each child to receive the income of her share. (2) That by the language of the whole of paragraph “ Third,” the testatrix intended to dispose of her entire residuary estate and not only “ the interest thereof.” (3) That a construction which brings about intestacy is not to be favored, and that where one of two constructions may be given to the provisions of a will, that construction should be favored which upholds the will rather than that which invalidates it. (4) That there are words of present gift, and a consequent vesting and only the actual paying over deferred for ten years during which* time those to whom the property belongs are to receive the rents, income and profits of their respective shares. That this provision does not result in a violation of the statute prohibiting an unlawful suspension of the power of alienation.</p>

<p>Application pursuant to section 2615 of the Code of Civil Procedure for the construction of a will.</p>

<p>Wills—When Properly Executed—Execution by Layman—Appointment of Executors—Subscribing Witnesses—Codicil.</p> <p>Testator, a layman, after filling with testamentary provisions the space in an ordinary will blank down to the printed clause for the appointment of executors continued on to the third' page leaving the second page blank. A sentence begun on the first page was completed on the third page and the word “ over ” was written on both pages to show the connection. The printed form on the first page for the appointment of executors was filled in and the testator and subscribing witnesses signed their names in the appropriate spaces on the first page. The writing continued connectedly down the third page to about the middle where the signature of the testator only and the date “ Feby. 25, 1911 ” appeared and then followed a direction, signed by the testator only, that no bonds should be required of the executors named. At the bottom of the third page there was the following: “Fe'by. 27th, 1911. Codicil No. 1. I bequeath to my first born son Henry Wilson Griffiths the sum of Fifty dollars $50.00 in cash.” Directly below this and1 at the actual' end of the writing were the signatures of testator and subscribing witnesses. It appeared by the uncontradicted testimony that the date at the bottom of the third page was the date of the execution of the paper and that all the signatures were affixed at one sitting. It also clearly appeared that testator did not use the word “ codicil ” in its legal sense but referred to it as the “ end of the will,” meaning that the so-called codicil was part of the entire transaction in making the will. Held, that the signatures of testator and subscribing witnesses at the bottom of the third page were at the natural end of the will and that the entire writing was properly executed as a will and was entitled to be admitted to probate.</p>

<p>Wills—Provision of—When Remainder Interests Vested—Meaning of Words, “Upon Death of My Wife"—Direction as to Division at Future Date.</p> <p>The fifth paragraph of testator’s will provided as follows: “ Upon the death of my wife I direct the survivor of my executors to divide the balance of my estate into two equal portions or parts: one portion or part I give, devise and bequeath to my daughter ® * *, her heirs and assigns, forever; the other share or portion I give, devise and bequeath to my executor surviving, in trust nevertheless to invest, reinvest, and keep the same invested and receive the rents, issues and profits thereof, and to pay over the net income or profits therefrom to” another daughter, “ during her life, and upon her death divide the same between my grandchildren, * * * share and share alike.”</p> <p>Held, that the remainder interests were vested and not contingent.</p> <p>That the words “ upon the death of my wife ” did not fix or determine .the time of vesting but simply denoted the time of enjoyment in possession.</p> <p>That the division directed to ibe made at a future date did not render the remainder interests contingent.</p>

<p>Taxes—Assessment of Transfer Tax—Jurisdiction of Surrogate to Assess Transfer Tax—Tax Law, § 231.</p> <p>The jurisdiction of the surrogate to assess a transfer tax is derived from section 231 of the Tax Law which provides that from the report of the appraiser and other proof the surrogate shall determine the cash value of all estates and the tax to which the same are liable.</p> <p>The surrogate having made the assessment in accordance with the statute is not authorized to determine what the tax would be upon the transpiring of certain events or the happening of certain contingencies.</p> <p>A provision in a proposed order for an assessment of the transfer tax that “ the total amount of the tax to which all the said transfers would be liable if the interest in the remainder had vested in possession on the date of the appraisal thereof is ” a certain amount, is unauthorized and will not be included in the order.</p>

<p>Application for letters of guardianship.</p>

<p>Guardians—Appointment of, by Order of Court Other Than Surrogate’s—Bonds—Duties and Liabilities of General Guardian Appointed by Supreme Court—Code Civ. Pro., § 2653.</p> <p>The new section 2653 of the Code of Civil Procedure which provides that a certified copy of the order or decree of any court other than the Surrogate’s Court appointing a general guardian of an infant’s person • or property, or both, and of the bond or undertaking given by such guardian, and which attempts to subject the guardian appointed by the Supreme Court to all the duties and liabilities' of a general guardian in Surrogate’s Court has no application to bonds, decrees or orders made by the Supreme Court prior to September 1, 1914.</p>

<p>Guardians—Duties of—When Objection by Special Guardian Upon ■Accounting Overruled.</p> <p>Where the general guardian- of an infant to save its mother from a pauper’s grave paid her funeral expenses, sixty-seven dollars and fifty cents, out of the infant’s estate, an objection thereto made by the special guardian upon the accounting of the general guardian will be overruled.</p>

<p>■Constitutional Law—Power of Legislature—When Special Guardian may not be Granted Allowance fob Services-—Code Civ. Pro., § 2748.</p> <p>The legislature having no power to take away vested rights cannot legally authorize a surrogate to' grant an allowance to one party out of the private property of other parties.</p> <p>Where an accounting proceeding is uncontested, a s-pecial guardian whose infants have no- present interest in the estate in the hands- of the accountants may not he- granted an allowance for services out of the principal of the estate which belongs to others.</p> <p>The new section 2748 of the Code of Civil Procedure which provides: “A special guardian for an infant or incompetent shall receive a reasonable compensation for his services- to be fixed by the surrogate, payable from the estate or fund, or from the interest of the ward therein, or from both, as the surrogate may direct,” considered, and its constitutionality doubted.</p>

<p>Domicile—Indication That Decedent Claimed City of New York as Place of Residence—Acquisition of Domicile in Another State Considered.</p> <p>Where the facts seem to indicate that decedent always claimed the city of New York, where he died in 1913, as his place of residence, living at hotels therein and1 having no home elsewhere, and up to and including the year 1911 had his domicile in this State and for about nine years prior to December of that year did not live in any other State except in the summer of each year, it will 'be deemed for the purposes of a transfer tax proceeding that at the time of Ms death his domicile was in the State of New York.</p> <p>The claim of the executors of decedent that in 1912 he acquired a domicile of choice in another State, considered, and1 held that though he intended to make his home in that State and acquire a domicile therein he never, for the purposes of the taxing act, completed the change.</p>

<p>Wills—Construction of—Eight of Beneficiary to Try Title by Jury to Determine Validity of Provisions of Will—Objection to Interposition of Surrogate—Code Civ. Pro., §§ 1866, 2510' (8), 2538.</p> <p>Section 2538 of the Code of Civil Procedure having no application to a jury trial in a proceeding brought for the construction of a will and any judgment which the surrogate without a jury might render as to the validity of a devise not being conclusive in the proper forums unless a jury trial had' been expressly waived, the surrogate, in a proceeding brought for the construction of a will pursuant to section 2510' (8) of said Code, ought not to pass upon the validity of any disposition of real property where a trial by jury is a matter of right and is not waived.</p> <p>In no ease where a beneficiary under a will has a right to try his title by jury can the surrogate without Ms consent determine the validity of the testamentary provisions; nor in' such case can a special guardian appointed in a proceeding brought for the construction of a will under section 2510 (8) of said Code waive the infant’s right to trial by jury in another court.</p> <p>The limitations in section 1866 of the Code of Civil Procedure, which provides that the validity, construction or effect of a testamentary disposition of real property situated within the State may be determined in an action brought for that purpose in like manner as the-validity of a deed purporting to convey land may be determined, are-applicable generally in principle to the procedure under the new Surrogates’ Code.</p> <p>The surrogate ought not in any event to entertain such a proceeding-merely for the purpose of removing the doubts of the parties, provided the means of forming a correct- legal judgment are patent on the face, of the will.</p> <p>In every such case some necessity for the interposition of the surrogate ought to be shown on the face of the petition, and where it on its face discloses that the construction sought is expressly declared to-be for the very purpose of a final accounting in futuro the petition will be dismissed on the ground that the relief sought is appropriate for the proceeding to settle the accounts of the executors and trustees and that at the present time issue should not .be prejudged.</p> <p>An objection- that there is no ground for the interposition of the surrogate may be taken on the return of the citation or on the hearing.</p>

<p>Statute of Distributions—Eight of Succession Under—-When Conviction of Manslaughter not Equitable Bar to Eight of Succession.</p> <p>Where it is stipulated as a fact that a man at the time he killed his wife intended to kill another person, his conviction of manslaughter on the trial of an indictment for killing his wife is not an equitable bardo his right of succession to her estate under the Statute of Distributions.</p>

<p>Wills—-Investment by Testamentary Trustees When Principal Must be Kept Intact Against Loss by Payment of Premium on Securities Having Definite Time to- Run—When Life Beneficiary Entitled to All Interest.</p> <p>Where investments are made by testamentary trustees the principal in the absence of a clear direction in the will to the contrary must -be maintained intact from loss by payment of premium on securities having only a definite time to run while if the securities are received from the estate of the testator the whole interest should be treated as income.</p> <p>Testator bequeathed $300,000 to his executors in trust to receive the income and profits thereof and to pay and apply the same in equal quarterly payments to the use of his daughter during her life and upon her death said executors were authorized and empowered- “to invest the said trust in such securities as savings banks are now or may hereafter be allowed by' law to invest their deposits in, and to change such investments from time to time in their discretion. In- addition thereto, if in the joint judgment of my three executors, or such of them as may qualify, or the survivors thereof, it shall be wise and -proper so to do, I authorize and empower them in order to make up the said fund of Three hundred thousand dollars ($300,000) to be held in trust as aforesaid, to set apart out of the securities in which my said- estate may be vested at the time of my death, a portion thereof which shall in their judgment :be worth at their then market value, said sum- of Three hundred thousand- dollars ($300,000) or any part thereof, and I authorize and empower them, in case they shall set such securities aside, to .hold the same as legal investments of the -portion of said trust fund at which they shall have valued- the securities so set aside, during such time as in- their joint judgment may be wise, and for the best interest of said trust fund. This is not a direction to said executors to set any part of said securities aside for this purpose, but is an authorization to them- to so do, if they think it wise and proper, and to constitute any such securities so set aside as- legal investments of said trust fund by my said executors and trustees.”</p> <p>Upon the judicial settlement of the accounts of the trustees it was stipulated that they had established a trust fund as directed “ and that pursuant to the authorization and power contained therein the Trustees set apart securities' owned by the decedent at the time of her death, which at their then market value,, with an adjustment of cash amounting to approximately $100, aggregated $300,000, as the principal of said fund; and that among these securities were 'bonds having a fixed date of maturity, of the market value of $27,000, and of the par value of $251,000.” Meld, that there being no suggestion in the will to the contrary the beneficiary for life was entitled to all the interest payable upon the securities constituting the trust fund.</p> <p>That the trustees were not required to withhold portions of the interest as received in order to form a sinking fund sufficient to provide against the wearing away of the premium value of the securities which will result as they approach maturity.</p>

<p>Wills—Constkuction—Gift to Wife Absolute With Condition as to Resiabbiage—Rights of Ciiildken—How Affected.</p> <p>Testator by the first paragraph of a clause of his will, after directing the payment of his lawful debts, gave all his personal estate including proceeds of a life insurance policy and all moneys in .banks and savings institutions and the free title to certain real estate to his wife to be administered by her for her own personal benefit and that of her children so long as she remained a widow. The next paragraph of the same clause provided: “ To guard against the probability of her forming a second union in an ill-judged manner that may tend, to militate against the children’s interest, I provide in such case that she shall be content with one-third of the estate as duly prescribed-by law, the rest to be equally divided or used for the ’benefit of my three ehildre * * Held, that the wife took the whole estate contemplated in the first paragraph of the will in fee or ownership as the nature of the property required; that her interest was conditional upon her remarriage' and would remain absolute in the absence of that event; that upon such remarriage her interest to be reduced to dower in the land and her one-third of the personalty; and that there was given to the children a contingent remainder in the estate' less the dower and one-third of the personalty in the fund at their mother’s remarriage.</p>

<p>Code op Civil Procedure—Section 2748—Allowance to Special Guardian in Proceeding Pending September 1, 1914.</p> <p>Where a proceeding for the judicial settlement of the accounts of a trustee was pending .before September 1, 1914, a special guardian appointed therein may be granted an allowance under section 2748' of the Code of Civil Procedure.</p>

<p>Executors and Administrators—Judicial Settlement of Account— Funeral Expenses-—Part Received as Funeral Benefit from Trade Society—Action to Recover for Negligent Killing of Decedent— Code Civ. Pro., § 1903.</p> <p>Section 1903 of the Code of Civil Procedure which provides that plaintiff in an action for negligent killing may deduct from the recovery the reasonable expenses of the action, reasonable funeral expenses of decedent and his commissions upon the residue only contemplates a reduction of funeral expenses when the beneficiaries of the recovery are under obligation to pay them, and no such obligation exists where the expense has been, paid from- a fund charged with its payment.</p> <p>The only person interested in a recovery of damages for the negligent killing of decadent was his wife, an incompetent, and the sole legatees and devisees under his. will were two nephews. Decedent at death was entitled to a funeral benefit of $100 from a trade society, which was collected by the executor who before the recovery of damages for the death of decedent paid the funeral bill, $403.50, from the general estate to which he credited the amount of the funeral benefit received. The will directed payment of testator’s funeral expenses as soon as convenient and devised the residue which could only be measured by first deducting from the estate the amount of the funeral charge. Eeld, that the credit for funeral expenses which the executor had suspended in his account must be madfe a credit to him' in the settlement of his accounts with the beneficiaries of the general estate, -and that the amount now held by him should be paid to the widow.</p>

<p>Wills—Construction of—Rule of Intention Governs—Authorization to Executors to Sell Real Estate—Vesting of Title in Residuary Devisees—When. Executors Entitled to Possession and Rents of Real Property.</p> <p>The rule that the intention of a testator governs, and that the court will give force and effect thereto, is applicable to questions of equitable conversion.</p> <p>There is no conversion of realty into personalty or personalty into realty taking effect at the time of a testator’s death unless it appears to the court that such was his intention.</p> <p>Where a will authorizing executors to sell testator’s real estate expressly declares that the only real estate left by him, other than that which he had specifically devised and which he 'believed to be more valuable than it subsequently proved to be, should not be sold, and it is clear that he intended that the title thereto should vest in his residuary devisees subject to the lien of certain specific legacies, such title in the circumstances is subject to be divested' by the exercise of the executors’ power of sale.</p> <p>The said real property being inadequate for the payment of the lien of specific legacies, the specific legatees in an appropriate equitable action and through a receiver could have acquired possession prior to the sale by the executors, but until then the executors as owners of the legal title would be entitled to the possession of the property and the rents and profits thereof.</p>

<p>Wills—What is Undue Influence—When Undue Influence Mat be Inferred*—When Probate Denied.</p> <p>The burden of proof that a will was the result of the exercise of undue influence is upon him who alleges it.</p> <p>While undue influence is seldom1 susceptible of direct proof there must be affirmative evidence of facts from which it may fairly and reasonably be inferred.</p> <p>Undue influence consists in exerting upon a person such an influence as results in such person being impelled1 or compelled to make a testamentary disposition that otherwise would not have been made.</p> <p>Where it appears that there was opportunity to exercise undue influence and motive to exert it, and that influence sufficient to break the will of testatrix was actually exerted in the preparation of an instrument in writing purporting to be her last will and' testament, probate must be denied.</p>

<p>Wills—Not Revoked by Burning, Tearing, Canceling, etc.*—No Intention to Cancel Whole Instrument—Decedent Estate Law, § 34.</p> <p>Under section 34 of the Decedent Estate Law a person cannot alter or change his last will by burning, tearing, canceling, obliterating or destroying a part of it.</p> <p>The nearest relatives of testatrix who left no descendants were cousins. Her husband who was living when she made her will died about a year .before her. About four months before her death she took her will from the custody of her attorney saying that she wanted to change it. After her death it was found in a locked bureau drawer in her room with one clause and part of another 'cut out. From the facts and circumstances shown by the evidence it was1 not certain that it was she who cut out the parts which were missing, but assuming that it was her own act there was nothing in the circumstances attending the act or in- the nature thereof from which any conclusion could be reached that she intended to cancel the whole instrument or that she had anything in mind -beyond altering it by striking out some of its provisions. Held, that the will as originally executed was- never revoked and was entitled to be admitted to probate though the substance of the missing portions was not proved, except by the declarations of testatrix as to their contents.</p> <p>In- such case, however, there should -be an accompanying adjudication of the fact that certain parts of the will hadi been cut out and were missing.</p>

<p>Taxes—Amount of Transfer Tax Controlled by Statute in Force at Time of Transfer—When Tax Assessable—Tax Law, §§ 220, 221.</p> <p>While the method of procedure .to determine the amount of a transfer tax is controlled by the statute in force when the proceedings are begun, the rights of the parties and the amount of the tax are controlled by the statute in force at the time of the transfer.</p> <p>Where the estate of a decedent who died in January, 1911, was appraised at $6,363.64, one-half of which was transferred to a sister and the balance to nieces and a nephew, each of whose shares amounted-to more than $500, the transfer tax is assessable under sections 220 and 221 of the Tax Law, as amended in 1910, which were in force at the date of decedent’s death, neither of which provides for any deduction of $100 in eases of collaterals or $500 in eases of direct heirs where the property passing exceeds these sums.</p>

<p>Wills—Who Entitled to File Objections to Probate.</p> <p>One who, though a legatee under a will, is neither an heir at law nor next of kin of testatrix, and' who makes no claim as a legatee or devisee under any other will or codicil of said decedent, is not entitled to file objections to the probate of her last will.</p>

<p>Wills—Witnesses—Contradiction of Witnesses Does not op Itself Make It Incumbent on Surrogate to Effuse Probate—Burden of Proof—Undue Influence not Presumed.</p> <p>The fact that the witnesses to a will contradict each other does not of itself make it incumbent upon the surrogate to refuse probate, particularly where the witnesses have signed an attestation clause reciting a full compliance with the statute.</p> <p>Undue influence cannot be presumed and the burden of proving it rests upon the party to the proceeding who raises that issue.</p>

<p>Executors and Administrators—Authorization to Pat Monets Due Next of Kin—Certification bt Foreign Notart not Evidence of Fact that Patment Was Authorized—When Patment bt Administrator Cannot be Made.</p> <p>A document apparently signed by the father of decedent, his sole next of kin, authorized the administrator to pay .the former’s son any and all moneys due said next of kin from the estate- and authorized the administrator to pay decedent’s funeral expenses subject to certain limitations as to amount. The signature of the next of kin was certified to by a royal Prussian notary under the seal of his office and the American consul- at Bremen under his official seal certified to the seal and signature of said notary.</p> <p>Held, that the document was not executed in the manner prescribed by law so as- to make it evidence without further proof of the authority of the son to receive and receipt for payment.</p> <p>That the certificate of the notary, which being translated: is as follows: “ The above signature of the pensioner Heinrich ICroog .of Hinnebeclc, is hereby certified,” fails to show that the document was acknowledged or proved and certified in the manner required by section 937 of the Code of Civil Procedure, and1 was, therefore, not of itself evidence of the fact that a payment to the son was authorized, proof of execution being lacking.</p> <p>That as no “ seal of the- city or town in which the notary resides ” appears upon the document it did not comply with section- 301(8) of the Real Property Law which provides that where an acknowledgment or proof of a conveyance of real property -situated within the State is .taken without the State- it may be made without th-e United States ■before certain officers and “ if within the States comprising the empire-of Germany it may also be made before a judge of a court of record under the seal of such -court or before a notary public under the seal of his office and' the seal of the city or town in which the notary resides-,” said document standing alone was not evidence of authority on the part of the claimant to receive payment of the share of decedent’s estate due to the- next of kin, even though supported by the affidavit of one acquainted with the signature of the next of kin to the effect that he believes that the signature attached to the document is that of said next of kin, and payment cannot be made by the administrator except at his peril.</p>

<p>Executors and Administrators—Who Entitled to Letters—Application by Brother op Decedent por Letters op Administration—Code Civ. Pro., § 2588.</p> <p>The right to letters of administration upon the goods, chattels and credits of the decedent is a statutory right, and the surrogate must grant such letters to the persons entitled thereto who are competent and willing to serve in the order provided by section 2588 of the Code of Civil Procedure.</p> <p>Where the petitioner is alleged to owe money to the estate and to have lost money in real estate investments, these facts' alone do not justify a finding that he is incompetent by reason of improvidence.</p> <p>So held, on an application by a brother of a decedent for letters of administration, opposed by the only other next of kin of decedent, a sister.</p>

<p>Wills—Action for Construction of—Proceeding for Sale of Certain* Lands—When Title Doubted by Vendee—Code Civ. Pro., §§ 1866-2615 —Who Parties to Proceeding—Rules to Which Supreme Court Subjected Also Constrain Surrogate’s Court.</p> <p>Section 2615’ of the Code of Civil Procedure in its general if not universal application is to be controlled and directed by recourse to all the’ rules which have grown up in courts of equity with respect' to an action brought for the construction of a will whether these extend and strengthen the jurisdiction or harness and restrain its employment.</p> <p>A testator died seized of certain lands leaving his widow, children of his own and children of a deceased child him surviving, and thereafter such lands were conveyed to F. by conveyances of the wife and adult heirs at law ofi testator and by a further conveyance in behalf of infant heirs by a guardian duly authorized thereto in a proceeding for the sale of such lands. F. died intestate leaving the petitioner herein and three others his only heirs at law, all of whom entered into a contract for the sale of the premises, but the title proffered by them being doubted by the vendee named in the contract on the ground that it is threatened by the provisions of testator’s will, a special proceeding under section 2615 of the Code of Civil Procedure for the construction of the will was brought.</p> <p>Held: That an action for the construction of the will based upon the facts stated should fail.</p> <p>That section 1866 of said Code only bestows the right of action upon the heir at law or devisee of the decedent whose will is offered for construction and that with or without the aid of said section such an action could not be maintained by heirs at law or devisees who had parted with their title.</p> <p>That in any action appropriate to the facts disclosed the vendee who was not made a party to the present proceeding would be a necessary, party, and the Supreme Court would have resources for enforcing its judgment which are denied the Surrogate’s Court, and the rule to which the Supreme Court would be subject if that action presented the defect of parties here apparent must also constrain the Surrogate’s Court, and the proceeding must be dismissed.</p>

<p>Wills—Execution of—Bequests of Jewelry—Gift Inter .Vivos*— Contents of Safe Deposit Box.</p> <p>Testatrix, excepting savings banks books contained in her safe deposit box, bequeathed the contents thereof, consisting of jewelry, etc., to her cousin. A certificate of deposit payable to the order of testatrix and a lease of real estate, which she owned, were in said box at the time of the making of the will as were two bonds and mortgages owned by her. The premises affected by the lease were under a subordinate lease by ■decedent to one who had an option- to purchase the leasehold and upon said option being asserted the executors of testatrix assigned the lease and also collected the rent which accrued after her death. After making her will, decedent removed the certificate of deposit from the box and surrendered it in exchange for another certificate for a sum which was made up of the amount of the original deposit with accrued interest, and she also withdrew from the box the bonds and mortgages and consummated her intention to give them to said cousin by a valid gift inter vivos. Held, that the proceeds into which the certificate of deposit and lease were transmitted followed the gift to the cousin and payment thereof to her would be directed.</p>

<p>Trusts—Testamentary Trustee—When Constructive Trust Resorted to—Terms of Will as. to Part of Premises Devised—Rents Received as Tenant in Common and not as Trustee.</p> <p>It is only because a testamentary trustee, as such, cannot be called to account for his dealings with property as to which his trust has ceased that the device of constructive trusts has been resorted to where the trustee has acquired property by transferring his defined powers, and in such cases the constructive trust has no reason for "its being except that redress cannot be had against the offender in his original relation to the property.</p> <p>Under the terms of a will the trust as to one-half of premises devised expired upon the death of a beneficiary, on whose life the trust as to said one-half was limited. The one-half thus released from the trust vested one-half thereof, or one-fourtli of the aggregate estate, in one person whose estate came from a title superior to the will, and one-half thereof, or one-fourth of the aggregate estate, in the trustee as his own, while as to the remaining one-half of said premises the trust continued. While this was the state of the title the trustee, who was himself a tenant in common of the premises, collected the rents of the entire property. Held, that the only cause of action said other person had was against said trustee as tenant in common, the presumption being that it was as tenant in common and not as trustee that he received the rents.</p>

<p>Wiles—Devise of Life Estate Determinable Upon Certain Event— Direction to Executors and Trustees to Sell Real Estate—Meaning of Word “ Children ”■—Who Entitled to Proceeds of Sale.</p> <p>Where two processes inevitably come to the same end, it is not profitable to make choice between them.</p> <p>The third paragraph of the will of testator giving a life estate in a certain dwelling house and grounds but determinable upon an event, which has since occurred, provided that upon the happening of said event the house and grounds should revert to and become a part of testator’s residuary estate. The sixth paragraph of the will provided that in case of the remarriage or death of testator’s wife, or in case she should abandon her then place of residence, the executors and trustees were directed to sell for cash only the premises mentioned in the third paragraph of said will and divide the proceeds of sale equally among testator’s then'surviving children. All the rest, residue and remainder of the estate was given to testator’s five children, named, share and share alike, to have and to hold the same absolutely. Since the death of testator two of said children have died each leaving four children their only heirs at law respectively. The trustees sold the house and grounds mentioned in the third paragraph of the will pursuant to the power contained in the sixth paragraph. Held, that either as grandchildren, embraced within the word “ children ” in the sixth paragraph, or as the heirs of a parent who died seized of a one-fifth part of the premises in question, the children of the deceased children of testator respectively were entitled to one-fifth of the proceeds of the sale.</p>

<p>Wiles—Provisions of—When not Effectually .Canceled*—When Will Entitled to Probate—Decedent Estate Law, § 34.</p> <p>A will which in terms provides that it is to be regarded as canceled the day the testator enters matrimony is not effectually “ canceled,” within the meaning of section 34 of the Decedent Estate Law, by his marriage, and is entitled to be admitted to probate.</p>

<p>Pkoceeding upon, the .probate of a will.</p>

<p>Guardians*—Who mat be Appointed—Conditional Appointment of Protestant Guardian of Catholic Child.</p> <p>A Catholic child about nine years of age was intrusted by her married sister in Italy to the care of a Protestant minister who, though he had given his pledge to have her brought up in the Catholic faith of her father and family, placed her at his own expense in a home under marked Presbyterian influence, and while there she was constantly taken to the Presbyterian church on Sunday. After the eldest brother of the child, who is in no condition to support and maintain her, had filed a petition for his appointment as her guardian she became fourteen years of age. Held, that the minister on the request of said infant would be appointed her guardian on condition that he place her in a Catholic residential educational institution.</p>

<p>Banks—Negotiable Instruments—Acceptance of Checks—Death of Maker of Check Before Presentment.</p> <p>A bank check does not operate to transfer the amount it represents from the depositor to the holder of the check until it is accepted by the bank.</p> <p>A check not presented for payment to the bank upon which it was drawn until after the death of the drawer is not a valid assignment of the amount represented by it.</p> <p>While a bank, in the absence of notice of the death of a depositor, is protected in paying his checks, authority to draw money thereon is revoked by his death. The amount of the checks constitutes a part of his estate and the fact that the bank paid them to the holder and payee gives her no right to the possession of the money.</p> <p>Where within two days after the death of a testator two checks given by him to a legatee under his will were paid to her at the banks upon which they were respectively drawn, her legacy should be set off ■against the amount obtained by her on said checks.</p>

<p>Jurisdiction—Of Surrogate to Pass on Legal Devises and Legal Titles—When Petition by General Guardian to Determine Validity of Dispositions of Real and Personal Property Under' Last Will and Testament Dismissed—Code Civ. Pro., § 2615.</p> <p>Section 2615 of the Code of Civil Procedure, which purports to confer legal jurisdiction on the surrogate to pass on legal devises and legal titles, requires conformity with every rule known to legal procedure.</p> <p>A petition by the general guardian of an infant legatee, filed under section 2615 of the Code of Civil Procedure to obtain a determination as to the validity, construction or effect of dispositions of property real and personal under a last will and testament, must be dismissed, particularly where the court is not advised by the petition of the nature of the real property or whether or not it is all within, the county, and no part thereof is described by metes and bounds or even with reference to recorded conveyances.</p> <p>The dismissal of the petition, however, will be without prejudice to any proceeding or action of any kind on the same state of facts in any other court of competent jurisdiction.</p>

<p>Taxes—Assessment of Transfer Tax Upon Value of Life Tenant’s Interest in Remainder of Trust Fund—When Finding of Appraiser in Original Transfer Tax Prooedding not Res Adjudicata on State Comptroller in Subsequent Proceeding—Tax Law, § 230.</p> <p>An application for- the assessment of a transfer tax upon the value of a life tenant’s interest in the remainder of a trust fund created by will, after the life estate of his father therein, may be granted, though the interests of the remaindermen are not presently taxable; and the fact that the tax sought to be assessed may be paid out of the principal of the trust fund does not make the remaindermen necessary parties to the proceeding and they are not entitled to notice.</p> <p>The finding of the appraiser in the original transfer tax proceeding is not res adjudicata upon the State Comptroller in a subsequent proceeding to assess the value of the remainder interests.</p> <p>In assessing the value of the life estate upon which a transfer tax is sought to be imposed under section 230 of the Tax Law, it is the undiminished value" of the trust fund that must be taken into consideration and not the value of the remainder as found by the transfer tax appraiser.</p> <p>The constitutionality of section 230 of the Tax Law is not open to discussion in a Surrogate’s Court.</p>

<p>Partnership—When Surviving Partner Takes Title to Partnership Property—Pleading—When Further Proceedings Dismissed—Code Civ. Pro., § 2675.</p> <p>A surviving partner' for all practical purposes takes the legal title to partnership property.</p> <p>Where in a proceeding under section 2675 of the Code of Civil Procedure the petition, prays' for an order for the examination of a certain person upon an allegation that certain goods and chattels belonging to decedent are in her possession and control and she by answer claims title to said good and chattels and right of possession thereof as surviving partner of a firm of which decedent in his lifetime was a member, the court may take the proofs of partnership or no partnership; if a partnership is established further proceedings must be dismissed.</p>

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

<p>Costs—Or Appeal—Costs Allowed to Appellant—When Final Obdek Assessing Transfer Tax Upon Trust Fund is Reversed.</p> <p>Where a final order assessing a transfer tax upon a trust fund which came into the possession of the trustees after decedent’s death is reversed by the Appellate Division, the only costs which can be allowed to appellant are the costs of the appeal, viz.: $20 before argument and $40 for argument, besides disbursements.</p>

<p>Taxes—Transfer Tax—When Order Assessing Transfer Tax Affirmed —When Testimony as to Alleged Sales of Stock not Conclusive— Evidence.</p> <p>Where in a transfer tax proceeding the president of a corporation in which decedent held stock testifies that it was only worth $50 a share but according to the books of the company it is worth $186 a share, an order assessing the value of the stock at $125 a share will be affirmed.</p> <p>Testimony as to alleged sales of stock, not in the open market, is hot •conclusive and the price, received at sales made five years after the death of decedent may not be considered in a proceeding to assess value as of the date of his death for the purposes of a transfer tax.</p>