Volume 14 — Mills's Surrogate Reports

<p>Charitable Institutions—Provisions Under State Constitution fob Education and Support of Deaf and Dumb—When County Liable for Payment of Bills for Retention of Deaf and Dumb Child in Charitable Institution.</p> <p>The State Constitution (Art. VIII, § 14) while permitting the legislature to make provision for the education and support of the deaf and dumb, forbids payment therefor for any inmate of a charitable institution wholly or partly under private control who is not received and retained therein pursuant to rules established by the State board of charities.</p> <p>During the lifetime of decedent one of his six children, about six years of age, was, under section 928 of the Education Law, placed in the New York Institution for the Instruction of the Deaf and Dumb to be educated and supported at the expense of the county of Herkimer until he became twelve years of age. Later, he was transferred to the Central New York Institution for Deaf Mutes under said section 928, as amended in 1910 (now section 978 of said law). Upon the hearing of a claim of said county against decedent’s estate for moneys expended for the maintenance and education of said child up to the time of decedent’s death it appeared that to the bill of each of said institutions against the county of Herkimer there was attached a certificate of the State board of charities “that the institution has complied with the rules of the board for the reception and retention of inmates.” Held, that the meaning of each certificate was that each of said institutions1 had complied with all the rules which said1 board intended to be'in force during the time named in each certificate and was a repeal or waiver of the enforcement of a rule of the State board of charities which provides that “No child under the age of sixteen years * * * shall be retained in any such institution as a public charge unless accepted in writing as such by the officer charged with the support and relief of the poor of the county * * * upon which such child' * * * is sought to be made a public charge,” and1 the county became liable for the payment of the bills, though there was no written acceptance by the superintendent of the poor of Herkimer county of the retention of said child in either of said institutions, and that the claim of the county for reimbursement from decedent’s estate should be disallowed.</p>

<p>Trusts—When Provision for Use of Income for Home to be Maintained for “ Refined, Educated, Protestant Gentlewomen ” Void.</p> <p>Where testatrix gave to her executors a certain sum in trust the income to he used for hiring a house to be maintained and used as a i‘ Home for Refined, Educated’, Protestant, Gentlewomen — whose means are small •— and whose home is made unhappy, by having to live with Relatives, who think them in the way,” but the will discloses that by such provision testatrix intended to provide a home for six relatives, naming them, and their descendants, naming them, and six friends, naming them, to the exclusion of all others, the trust' attempted to be created is not a charitable trust and is absolutely void, and as to the corpus of said- attempted trust it will be decreed that testatrix died intestate.</p>

<p>Wills—Direction to Executor to Purchase Annuity—When Balance of Principal of Estate Must be Held in Trust—When Yearly Accumulation Not Void.</p> <p>Where a will which as a whole was designed to accomplish testator’s primary object of securing for his only daughter, an incompetent, every possible care and comfort during her life, directed the executor to purchase for her an annuity of $425 and declared the same to be “ in addition to the annuities I now hold for her lifetime or hers and my own of $800 a year,” the purchase by testator of an additional $500 annuity is not an ademption of the one of $425 and the executor must purchase the same as directed by the will.</p> <p>The balance of the principal of the estate must be held by the executor in trust for the daughter during her life and from the income thereof he must make payment of the annuity and satisfy all expenses of the daughter’s maintenance and hold any surplus income thereof to meet and defray any unforeseen additional or extraordinary expense for maintenance and- support which does not presently exist.</p> <p>Where a will contains no direction for the accumulation of income the necessary accumulation yearly resulting from the use of but a portion of the income is not a void accumulation under the statutes.</p>

<p>Wills—Provisions of—Scheme of Will Showing Intention to Divide Property into Two Parts—When Residuary Legatees Not Entitled to Securities Constituting Part of Estate Received by Testatrix from Her Father.</p> <p>The whole scheme of the will of testatrix showed that it was her intention to divide her property into two parts, to wit, one part her individual property and the other part that received by her from her father’s estate, and that she intended that the principal of trust funds created in the second, third and fourth paragraphs of her will should consist of the entire estate actually received from her father irrespective of the form in which it might be invested. The fifth paragraph provided that “ as to any other property or estate of which I may die seized or possessed and' which did not come to me from my father’s estate I give, devise and bequeath as follows: ” The sixth paragraph provided: “All the rest, residue and remainder of my estate of every kind and nature, including such legacies as may lapse, I give, devise and bequeath to my friend * * *■ absolutely and forever.” Held, that testatrix did not intend the residuary legatee to receive any of her father’s estate and it should and was intended to form the principal of the trust funds' created under the second, third and fourth -paragraphs of her will.</p> <p>The bequest of that portion- of her estate received from her father was not limited or curtailed by a statement in her will that the securities representing such portion were in a certain box in- a safe deposit company and the securities “belonging to my estate” were in another box in the same company, and that the residuary legatee was not entitled to securities constituting a part of the estate of testatrix received from her father though found in the latter box.</p>

<p>Wills—Direction as to Disposition of all Rest, Residue and Remainder—Where the Language of is Inexact or Ambiguous—Real Meaning of Testator—Executors and Administrators.</p> <p>Where the language of wills is inexact or ambiguous the courts frequently transpose or insert words or phrases, or even leave out or insert provisions in order to effectuate an intention that is with reasonable certainty to be gathered from the whole text of the instrument.</p> <p>The will of testator directed1 all the rest, residue and remainder of' his estate put in trust for his brother during his lifetime; in ease of the death of testator leaving no issue living and of the death of said brother said estate was given to three second cousins of testator, naming them, “they to take such portion as they may deem necessary to build a town hall.” Said brother died seven weeks after testator bequeathing all his property to his wife who was also his sole executrix. Testator herein- left him surviving no widow or children and saidi three second1 cousins were the executrices under his will. The widow of the testator’s brother, by a release containing no words of assignment, discharged the estate of testator herein and his execntrices, their successors, heirs, executors and administrators from any andi all demands, if- any, which she had personally and1 as executrix and legatee under the will of her husband against the estate of his brother and his executrices, and thereafter she assigned to said executrices as individual grantees all her right, title and interest in the estate of testator herein.</p> <p>Held, that a literal .reading of said testator’s willi did not express- his real meaning, that what he really meant was that in case of his death without issue then and in that event and after the death of his brother the - estate theretofore held: in trust for him. should go to said three second cousins.</p> <p>That the ancillary administrator of the goods, chattels and credits of a legatee under testator’s will took nothing under the release above mentioned and his objections to the account of the executrices of testator herein seeking to surcharge them with the amount of certain items, among others with the amount paid out for the erection of the town hall provided for by testator’s will, should he dismissed and the referee’s report sustaining them overruled and: the account settled and allowed as filed.</p>

<p>Hxecutors and Administrators—Accounting—Agreement as to Management of Trust Funds Not Enfobcible Against Trustees—Want of Consideration for Promise of Life Tenants to Waive Their Eight to Proportionate Share of Extraordinary Dividends.</p> <p>• Executors, upon accounting as such in 1908, paid over to themselves as trustees the residuary estate of their testator which, in part, consisted of certain shares of the stock of the Standard Oil Company of New Jersey which were equally divided among the eight trust funds created for the eight children' of decedent. Thereafter, by the decree of the federal court dissolving 'said corporation it was ordered to distribute to its stockholders the stock held by it in its subsidiary companies. In March, 1912, an agreement under seal prepared as disclosed by its recital by the trustees for the purpose of exempting them' from any liability for a failure to dispose of the stocks of said subsidiary companies as well as to avoid the then perplexing question of apportionment of stock dividends, provided: “Now, in consideration of the premises and of the undertaking of the trustees not to sell the said stocks prior to the receipt or declaration, as the case- may be, of the stock dividends now declared or about to be declared, nor earlier than in the exercise of their sound discretion the trustees shall deem- for the benefit of the principal of the trust in question, the undersigned, each for himself and in respect of all his present and future right under any one or more of the provisions of the will and codicils of * * * deceased, hereby requests the trustees to continue in the said several trusts the stocks above mentioned until, in the exercise of their sound discretion, they shall deem a sale thereof for the benefit of the principal of the trust in question, and hereby waives and releases any and all right to have any and all stock dividends heretofore or hereafter declared upon stock of the Standard1 Oil Company (of New Jersey) or of any of the said subsidiary companies deemed income, and requests that the same is deemed and taken to be principal of the trust in. each case in question. In consideration of the foregoing the trustees aforesaid undertake not to sell any of the said stocks until, in the exercise of their discretion, they shall deem a sale for the benefit of the principal of a trust for which the same shall be held, and until such a sale to credit any such stock dividends to the principal of the trust fund in question.” This agreement was signed by the trustees, by all the life tenants and by such of the remaindermen as were of full age. Upon the accounting of the trustees, held:</p> <p>That the trustees were in duty bound to retain the stock in the subsidiary companies until in the exercise of prudence it appeared advisable to dispose of it for the benefit of the trust funds, and their promise "so to do was not a sufficient consideration to support a contract.</p> <p>That said agreement was not enforcible as a contract between the remaindermen and the life tenants because it was not signed by all the remaindermen and, further, that no contract between them and' the life tenants could bind the trustees in the management of the trust funds.</p> <p>That as the trustees did not agree to do anything except what the law compelled them to do there was no consideration for the promise _ of the life tenants to waive their right to their proportionate share of the extraordinary dividends declared upon the stock of the subsidiary companies and- the alleged contract was not enforcible against them by the trustees.</p> <p>That said agreement was not enforcible by the remaindermen as a contract made between the trustees and the life tenants for the benefit of the remaindermen because the want of consideration for the promise of the life tenants rendered said agreement unilateral and unenforeible.</p> <p>That if said agreement could be construed as an assignment or transfer by the life tenants of their right to a part of the income of the trust funds which had not accrued at the date of the instrument, it would be invalid under section 15 of the Personal Property Law.</p> <p>That said agreement did not prevent the life tenants from demanding that the trustees pay to them their share of the extraordinary dividends declared upon the stock of the subsidiary companies of said corporation which constitute a part of the trust fund and that the trustees upon the present accounting should apportion such dividends between the principal and income in accordance with the rule enunciated in Matter of Osborne (209 2ST. Y. 450).</p>

<p>Wills—Provisions of Will for Division of Testator’s Estate Into Seven Equal Parts—Trusts—When Grandchildren Excluded.</p> <p>A will, after providing for the division of the residue of testator’s estate into seven equal parts, the gift outright to three persons therein named and a devise in trust of the four remaining parts for purposes separately stated with respect to each share, continued: “Upon the further trust to designate and set apart the remaining equal part or share for the use of my son * * * to receive the rents, income and profits thereof, and apply the same to his use during his natural life, and at his death to pay, divide and distribute the capital of such last mentioned share to and among his lawful issue equally.” Said son died leaving three children now surviving two of whom have each a child. Held, that the decree entered upon the judicial settlement of the account of the trustee should provide for the division of the fund once held for the benefit of testator’s deceased son among his three children to the exclusion of the grandchildren.</p>

<p>Savings Banks—Where Deposit in Savings Bank Expressly Stated to be Joint Account—When Deposit Subject to Transfer Tax— Taxes.</p> <p>Where a savings bank deposit of $3,000, made in 1908 in the name of Mrs. Jane H. Reed, the decedent, and a niece, was- expressly stated to be a joint' account wi,th right of survivorship payable to either or to survivor, the full and complete ownership of the whole deposit was not intended to vest in the niece until she became the survivor at the death of decedent in 1914, and the deposit is subject to a transfer tax.</p> <p>Where decedent, shortly after making a deposit of $3,000i in a savings bank in 1910 “ In account with Mrs. J. H. Reed or Mrs. Sarah M. Olute, her sister,” informed said sister of the fact and showed her the pass-book, there was a gift' inter vivos of one-half of the deposit, thus creating a tenancy in common, and one-half is subject to a transfer tax.</p> <p>Where decedent, soon after making a deposit of $3,000 in a savings bank in 1911 in the name of “ Mary J. Reed in trust for Dow S. Olute,” showed the bank book to Dow who was an infant, and to his father, and told them that she intended it to be for the benefit of the infant and “ that it was and was to be his and to belong to him ” there was a present transfer by way of a gift inter vivos and the same was not subject to a transfer tax, it being conceded that Jane H. Reed and Mary J. Reed are the same person.</p> <p>A deposit made by decedent in 1910 “In trust for her nephew Fred S. Olute ” amounted to a gift inter vivos and the title to the deposit passed at that time and was not subject to a transfer tax.</p>

<p>Will—Proof of Due Execution and of Qualifications of Testator— Burden of Proof as to Testamentary Capacity.</p> <p>Before a propounded document can be admitted to probate as a last will and testament there must be shown to the satisfaction of the surrogate not only that the same has been executed with the formalities prescribed by section 21 of the Decedent Estate Law* (Laws of 1909, chap. 18; Consolidated Laws, chap. 13) but also that the person alleged to have executed the same was free from the disqualifications set forth in section 10 of the Decedent Estate Law, as to real estate, and was possessed of the qualifications prescribed by section 15 of the Decedent Estate Law as to personal estate. Among these is that to the effect that the alleged testator must be of sound mind.</p> <p>The burden of proving testamentary capacity, like the burden of proving the formalities of execution, is upon the proponent.</p> <p>Probate of will denied upon "the ground that the decedent at the time of the execution of the alleged will did not possess testamentary capacity.</p>

<p>Wills—Testamentary Capacity—When Testatrix Not Subject to Undue Influence—Evidence—When Will Entitled to Probate,</p> <p>If a testatrix at the time of making her last will is capable- of appreciating the value of her property, and can recollect -her relatives and any possible claimants- upon her bounty for a sufficient length of time to enable her to form a rational judgment concerning these elements, and1 if she can appreciate the scope and bearing of all the provisions of her will, she has testamentary capacity.</p> <p>Testatrix, about three months before her death, executed her last will by which after various- small legacies to several relatives, friends and institutions she gave the residue of her estate amounting to about $80,000 to her real estate agent and her attorney, who did. not draw the will, in equal shares and named both of them as executors. After explaining in the will why she left nothing to certain relatives, and , after directing that nothing should go to certain other relatives because of the trouble they had caused her, she embodied in the will the following: “My other relations, if any are alive, I have not seen or heard from in many years. They never manifested any interest in me nor called upon me in sickness or at any other time. They had no interest in me, nor I in them.” This statement in the will was fully borne out by the testimony. The probate of the will was contested- by second and more distant cousins of decedent on the ground of testamentary incapacity and -undue influence. Reid, upon consideration-' of the evidence, that testatrix understood’ the scope and nature of her will, was legally competent and capable when she executed it; that it expressed her free and voluntary act; that she was not the subject of undue influence in the execution thereof, and that it was entitled to be admitted- to probate.</p>

<p>Executors and Administrators—Election by Executor and Trustee to Claim Regular Commissions—When Renunciation of Money Legacy Does Not Call for Revocation of Letters Testamentary.</p> <p>The fact that an executor and trustee elects to claim his regular commission by filing with the surrogate a renunciation of a money legacy given him in lieu of commissions as executor and trustee does not call for the revocation of letters testamentary to him on the ground that under the terms of the will he has, by rejecting the bequest, disqualified himself as executor and trustee.</p>

<p>Wills—When Probate Denied—Testamentary Capacity—Burden of Proof.</p> <p>Where the uncontradicted facts show that at the time of the making of her alleged last will testatrix was a diseased, drug-eating, dying old woman, and because of bodily and mental infirmities and her absolute seclusion in her own house was practically prevented from receiving independent and unselfish advice, and it appears also that her habitual use of morphine and codein in large quantities continued up to within a day or two of her death which was less than a month after the execution of the alleged will, which was the third one made by her during the last nine months of her life, and by which she disposed of an estate of over a million dollars in value, probate will be denied on the ground that proponents have not sustained the burden of proof of clearly and satisfactorily showing that at the time of executing the will1 testatrix had testamentary capacity and that the instrument expressed the free and untrammeled will of a capable testatrix.</p>

<p>Wills—When Declarations of Testatrix Inadmissible as Evidence of Testamentary Intention—Presumption that Testamentary Gift is Absolute Unless Qualified by Words of Gift—Words of Limitation •—Heirs and Assigns.</p> <p>Unless a will is ambiguous or equivocal the declarations of the testatrix to the draftsman of the will are inadmissable as evidence of testamentary intention.</p> <p>Where a residuary estate was given to four persons, one of whom was Mrs. H, a sister-in-law of testatrix, “their heirs and assigns, to have and to hold the same to their own use, benefit and behoof forever, share and share alike, per stirpes and not per capita,’’ the gift to Mrs. H will be regarded as absolute and not as substitutional, and lapsed upon her dying before testatrix.</p> <p>The presumption is that a testamentary gift is absolute unless clearly qualified by the words of gift.</p> <p>Before the Revised Statutes the doctrine of l'apse applied indiscriminately to gifts with and without words of limitation to heirs or to heirs of the body, and it also applied equally to gifts of personalty even where words of limitation to executors or administrators' had followed a bequest to a person deceased before the will took effect.</p> <p>The Revised Statutes (2 Rev. Stat. 66) saved devises and1 bequests to a particular child or other specified descendant of testator and did not refer to devises and bequests to any 'other person, and the disposition-of testatrix’s residuary estate did not come within those classes of devises and bequests to which the doctrine of lapse -does not apply.</p> <p>The devise under the residuary clause was not to a class but rather to the devisees named and cannot be construed as intending to vest a life estate in the named beneficiaries and a remainder to their heirs. ■</p>

<p>Guardians—When Commissions Granted in Accordance With Statute —When Guardian Not Entitled to Commissions on Income Received Each Year—Code Civ. Pro., § 2753.</p> <p>The commissions of a guardian must be granted in accordance with the statute in force at the time he accounts.</p> <p>Under section 2753 of the Code of Civil Procedure, which provides that a guardian who pays over income as required and renders an annual account shall be allowed the same commissions thereon as he would be allowed on principal' on a judicial settlement, and that if he , does not render such' annual account he shall be allowed on the judicial settlement of his accounts commissions on the total income then payable to the beneficiary, the general guardian of an infant, who was directed to accumulate the income of a trust fund for the benefit of the ward and none of the income was ever paid to him, is not entitled to commissions on income received each year, but only on the gross income received and ready for payment to the beneficiary at the final accounting.</p>

<p>Executors and Administrators—When Letters of Administration Should Issue to One of Residuary Legatees—When Decree Becomes Ineffective.</p> <p>Where upon the consent of all parties in interest a decree was entered that letters of administration should issue to one of the residuary legatees, and to two persons not interested in the estate, the decree becomes ineffective where said residuary legatee dies before the letters are in fact issued.</p>

<p>Wills—Declarations Contained in—Bequest of Certain Amount anb all Moneys Collected from Life Insurance in Lieu of Dower.</p> <p>Where a will declares that a bequest to testator’s wife of $30,000», and all moneys collected at his death from life insurance, whether in his name or hers, which together aggregate in amount $50,000 which he intends she shall receive and which sum he declares is deemed by him to be sufficient to maintain her comfortably during the rest of her life, and said sum is given in lieu of her dower right in his real estate, she is entitled to $50,000 in the aggregate and not the $30,000 plug, $21,021.23, the proceeds of the life insurance.</p>

<p>Wills—Devise of Mortgaged Real Estate in Trust—Duty of Executor to Pay Interest on Mortgages Which Accrued After Death or Testator—Power of Sale of Real Property.</p> <p>Testator devised- his mortgaged real estate in trust to hold, manage, direct and control it .and to collect the rents, issues and profits thereof and1 after payment of taxes, insurance and all other proper charges and expenses to apply the remainder of the income to the use of certain persons, etc. Held, that the executor to whom was given a power of sale of real property and who was directed' by the will to pay off, satisfy and fully discharge any and all mortgages, taxes, assessments, accrued interest on said mortgages or any other charges existing at the time of his death against said real estate, was in duty bound to pay the interest on mortgages which accrued after the death of testator.</p>

<p>Judgments—Foreign—Inquiry as to Jurisdiction—Divorce—Foreign— Effect as to Eight to Income of Trust Fund.</p> <p>The courts of this State are not prevented by the “ full faith and crédit ” clause of the Federal Constitution from inquiring into the jurisdiction of a court of a sister State to render a judgment upon which either of the parties to an action relies as the basis of right to invoke the aid of our courts.</p> <p>. A husband, after abandoning his wife in this State where they were married, became a resident of the State of Nevada and therein, obtained a decree of divorce against his wife in an action in which she did not .appear, the process having been personally served upon her in the State of New Jersey. The courts of this State will not recognize such divorce.</p> <p>Such a divorce will not operate to prevent trustees of a fund: from paying in their discretion the income to the husband or his wife, or partly to each, and the husband’s application for an order directing the trustees to pay to him the entire income will be denied.</p>

<p>Wills—Provisions of Codicil—Direction to Trustees as to Trust Fund—Authority to Executor to Pay Such Part of Principal .as Deemed Prudent—When Eight to Principal of Trust Fund Absolute.</p> <p>A provision in a codicil which purports to limit or defeat a bequest given by a will will not be given this effect unless the language of the codicil is as clear and explicit as that of the will to which it relatfes.</p> <p>Testator by his will -directed his trustees to set apart the sum of $20,000 for each of his daughters and pay the income thereof to each of them, and directed that $3,000 of the principal be paid' to each upon her marriage and that the unimpaired principal in the case of an unmarried daughter, or the remaining principal in case of a married' daughter, b.e paid to each when the youngest child surviving testator reaches majority. By a codicil the executors were authorized and empowered in their discretion to pay to said daughters such part of the principal as they might deem prudent. Held, that upon the youngest daughter reaching her majority her right to the principal of the trust fund, and also that of her sisters, was absolute, and not subject to the discretion and approval of the trustee.</p>

<p>Will—Bequest to Employees—Construction.</p> <p>Where a bequest of a certain sum to each person in the employ of a corporation at testator’s death, mentioned in the will, expressly provided, that piece workers should not "be included, the time spent by a piece worker, as such, who subsequently became a salaried employee of the corporation should he excluded in determining the length of service.</p>

<p>Accounting—Substituted Trustee—Objections to Payments Made • Under Decree of Court—Commissions of Resigning Trustee Deductible From Corpus of Trust Fund—Rights of Remaindermen Not Involved.</p> <p>Objection to the payment by a substituted trustee of necessary disbursements in connection with the accounting of his predecessor and of commissions for paying over the trust fund will be overruled in the absence of am allegation that they were improperly allowed by the decree of the surrogate.</p> <p>Where under the law as it existed at the time the allowance of commissions to a resigning trustee was in the discretion of the court and having been duly -allowed to the representative, of the resigning trustee on the value of the trust fund and- paid over to the substituted trustee they are properly deductible from the corpus of the trust fund. ■</p> <p>The substituted trustee not having accounted, the amount of $500 paid ■by it to counsel, in> a proceeding on the petition of a remainderman for an accounting by the substituted trustee, should he apportioned between-income and principal as follows: $125 to income and $375 to principal.</p> <p>An objection to that part of the account which described said remainderman as entitled “ to a contingent remainder interest ” cannot be considered in the present proceeding as it does not involve the rights of the remainderman as the accounting was only for the purpose of showing the condition of the trust estate and payments made to the life tenants.</p>

<p>Administration—Ancillary Letters—Proof of Laws of Foreign Country Where Testator Died and Who Entitled to His Estate.</p> <p>Where, upon an- application for ancillary letters of administration with the will annexed, it appears that the will was established in Peru where it was executed and where testator resided- at the time of his death, and the petition does not clearly set forth who is or who are entitled' to the possession of the personal property of testator in Peru, competent proof must be furnished of the laws of that country from which the authority of the person entitled to possession of the estate- therein is derived.</p>

<p>Transfer Tax—On Savings Bank Deposit Made in 1819—No Presumption That Decedent Died Prior to 1885—Time of Death Must be Established by Proof—Motion to Vacate Order Made in 1911 Assessing Tax Denied.</p> <p>In 1819 decedent made a deposit of $47 in a savings bank which he never withdrew and upon the application of the public administrator to whom in 1901 letters of administration were issued an inheritance tax of $109.18 was assessed in 1911 upon said deposit and accumulated interest. Held, that an application to vacate the order fixing the tax should not be granted unless it was found as a fact that decedent died prior to 1885 when the first inheritance tax law was passed and that no demand for payment of the deposit'was made raised no presumption that decedent died before the year 1885.</p> <p>Where the time of death is material it cannot rest on presumption, but must be established by proof.</p>

<p>Contracts—Claim fob Breach of Contract to Indemnify Aqainst Loss Under a Will in Consideration of Promise to Marry—When Oral Promise to Mabry Void—Defense of Statute of Frauds and Statute of Limitations.</p> <p>. Every oral .agreement made in .consideration of marriage except a mutual promise to marry is void.</p> <p>A mother’s will provided that in- case of the marriage or death, of either of her unmarried daughters M and C the share of the one so marrying or. dying in certain property devised and bequeathed' to them should revert to and vest in the survivor of them. M, upon accounting as administratrix of her husband, whom she married in 1905, presented a claim and the evidence justifies a finding that her husband, in consideration of her promise to marry him, promised that he would in the event of their marriage indemnify her for any loss which she might sustain with respect to a devise to her contained in her deceased mother’s will, which did not contain any unlawful restraint of marriage. The husband died in 1913 without having done anything which could be regarded as a fulfillment on his part of said agreement. The claim was resisted on the grounds that the promise of the husband was void under the Statute of Fraud's and that the claim was barred by the Statute of Limitations. Held, on rejecting the claim, that, if the contract were void under the Statute of Frauds, there would be no need1 to consider other defenses; if it were good, the claim thereon might be defeated by the Statute of Limitations; or, if it were good' and not so defeated, it might fail, for the absence of damages, upon, a finding that the wife could not be subject to loss of her estate under her mother’s will.</p>

<p>Will—Document Incorporating at Length Earlier Instruments Which Testator Declared He Could Not Find But Did Not Revoke— Probate Granted.</p> <p>A paper offered for probate as decedent’s last will opened with a recital by him that he had earlier made his last will and testament and several codicils thereto; that he could not find them; that he had not in any manner revoked them, and that the following, incorporating the earlier instruments, are copies of said last will and testament and codicils. The document then closed with the following: “Now, therefore, I, the said Joseph H. Beams, do hereby re-publish the said last will and testament and said codicils thereto, and do hereby declare the same to be my last will and testament and codicils thereto.” The testator’s signature appeared at the end of the paper and the usual attestation clause was subjoined, signed by three witnesses.</p> <p>Held, that it appearing that the instrument was subscribed, declared and attested in the full form required for the execution of a will, it is entitled to probate.</p>

<p>Administration—Revocation of.</p> <p>It is dishonesty on the part of the sons of decedent, now her administrators, to take from her for themselves and a sister to the exclusion of another sister all the property their mother had at a time when her competency was questionable and to avail themselves of her willingness to give away all she had and to so distribute it that one of her children was disregarded, and letters of administration granted to said sons will be revoked.</p>

<p>Executors and Administrators—Accounting—Fund Collected in Compromise of Action Under Foreign . Statute—Division of Proceeds.</p> <p>The account of an administratrix reported; a fund collected by her in compromise of an action brought in England against the corporate owners of the steamship Titanic to recover damages for alleged negligence in causing the death of her intestate. The action was brought under a statute (9 & 10 Viet. chap. 93, § 2) which declares that every-such action shall be for the benefit of the wife, husband, parent and! child of the deceased. The intestate was survived by his wife, theadministratrix herein, and one child. Held, that the fund must be-divided equally between the' wife and child, in accordance with the-statute under which said action was brought.</p>

<p>Win—Action fob Construction—Latent Ambiguity in Designation of Legatees—When Instructions of Testatrix to Attorney Who Drew Will Not Privileged—Erroneous Exclusion of Testimony of Such Attorney as to Such Instructions.</p> <p>Where is appears hy extrinsic evidence, in an action for the construction of a will, that there is a latent ambiguity in that the language used did not accurately designate either of two persons who claim to be one of the residuary legatees, parol evidence is properly receivable in the effort to dissolve this ambiguity, and where, at the time' testatrix gave instructions to her attorney for drawing the will, she was accompanied by a woman, who lived with her as a companion and housekeeper, who remained in the room and within hearing of such instructions, the communications of testatrix to her attorney were not mode in confidence, and, hence, were not privileged. It was error, therefore, to exclude the testimony of such attorney, when asked as to the instructions he had received from the testatrix as to the legacies and the provisions for the ■residuary estate, upon the ground that they were privileged communications within the meaning of sections 835 and 836 of the Code of Civil Procedure.</p>

<p>Wills—What Questions Involved Upon Probate of—Evidence—Subscribing Witnesses—Bulb Applicable to Ancient Documents—Satisfactory Proof of Handwriting*—Code Civ. Pro., 933.</p> <p>Where no objections are filed to the probate of a will the only question involved is the sufficiency of the proof to establish the will.</p> <p>Under section 933 of the Code of Civil Procedure, certificates of the death of each of the subscribing witnesses to a last will certified from the state department of health- are competent evidence of the death of the persons named in the certificates in a proceeding to have the will admitted to probate. '</p> <p>The testimony of an attorney that about 1882 decedent and the proponent of the instrument offered for probate as decedent’s- last will showed it to him and decedent declared that it was his will and inquired if it was correctly drawn, and that thereupon the witness drew a Similar will for said proponent in favor of decedent, was properly admitted in a proceeding instituted in 1915 for the probate of the will.</p> <p>Under the rule applicable to ancient documents the subscribing witnesses to a will executed for more than thirty year's and hearing a full and complete attestation clause are presumed to be dead, and where- the signature and the handwriting of the subscribing witnesses -have been Satisfactorily proven there can be no objection to the probate of the will, even though the certificates of the death of the subscribing witnesses and the testimony of the attorney, all of which was received in evidence over objection, be not considered.</p>

<p>Wills—Probate of—Opening of Decree of Probate—Code Civ. Pro., § 2490(6).</p> <p>Where on motion to open a decree of probate one claiming to be decedent’s widow submits numerous affidavits in support of her claim that she married him in San Francisco in 1888, and the parties opposing the motion claim that decedent was not a party to any such alleged marriage and submit evidence that on the date thereof decedent was the husband of one to whom' he had been married in 1869, and the so-called widow while admitting the earlier marriage claims that decedent between 1870 and 1875 divorced his first wife in California and that the records of said decree of divorce were destroyed in the fire caused by the San Francisco earthquake, and in substantiation of her claim submits the declarations of decedent to the effect that he had obtained such divorce and also the affidavit of the attorney who procured it, he stating that all the records in his oilice were destroyed in said fire, and it is conceded that the so-called widow was not served with a citation in the probate proceeding, the surrogate under section 2490(6) of the Code of Civil Procedure has power to open the decree admitting the will to probate.</p> <p>If upon the opening of the decree of probate objections are filed and answers interposed attacking the validity of decedent’s marriage to the so-called widow, the court as a preliminary proposition has the right to determine the question.</p>

<p>Wills-—Validity and Effect of Temporary Disposition of Personal Property, How Regulated—Incompetents May Execute Valid Will* —Weight of Testimony of Expert Witnesses as to Mental Condition.</p> <p>The validity and effect of a testamentary disposition of personal property is regulated by the laws of the state of which testator was a resident at the time of his death, and the validity and effect of Such a disposition of real property within this state is regulated by the laws of this state without regard to testator’s residence (Decedent Estate Law, section 47).</p> <p>The testimony of expert witnesses as to testator’s mental condition at a period some years prior to the date of the execution of the propounded document, and the probability of a continuance of -such condition- up to that date, is not entitled to more weight upon the question of the testator’s alleged testamentary capacity -at the time of the execution of the document than that of disinterested lay attesting witnesses who testify to testator’s mental capacity immediately prior to and at that time.</p> <p>It seems that even where a person is an adjudged incompetent he may still execute a valid last will and testament, if the same be executed during a lucid interval.</p> <p>Before the provisions of a will can be said to be unnatural all the circumstances of its execution must be examined in order to ascertain wliat disposition the testator from his known views, feelings and intentions, would have been expected to make. It does not follow that a document is unnatural in its term's because the testator does not pay that regal'd to kindred which he might be expected to pay when the surrounding circumstances indicate a reason1 for his apparent lack of feeling towards those who would, under usual conditions, be the natural objects of his bounty.</p>

<p>Executobs and AdministbatoeS.—Application fob Lettebs of Administbation—When Application Dismissed.</p> <p>On an application for letters of administration made on the petition of one alleging that lie is a surviving son of decedent, to which objections were filed by the widow of intestate alleging that the petitioner is- not a son of decedent, held, that as the petitioner had not sustained the burden of proving that he is one of the persons entitled to apply for letters of administration the application must be dismissed.</p>

<p>Executors and Administrators—Who Cited to Attend Judicial Settlement—Presentation or Claims.</p> <p>A creditor of a decedent who not having presented • ¡his claim assigns it before the account of the administratrix is filed need not he cited to attend the judicial settlement of her account.</p>

<p>Executors and Administrators—Proceeding to Compel Payment of Claim—Determination as to Priority of Judgment Cbeditobs—Code Civ. Peo., § 2687.</p> <p>A proceeding to compel payment of a claim instituted on the petition of one who claims an interest through a judgment creditor of the decedent is governed iby section 2687 of the Code of Civil Procedure.</p> <p>A contest as to priority between some of the judgment creditors of a decedent can only be properly determined in an accounting proceeding in which all interested parties are before the court, and while such a proceeding is pending a petition to compel payment o'f a claim) will be dismissed, but without prejudice to the enforcement of any rights of the petitioner in any other proceeding or action.</p>

<p>Executors and Administrators—-Investment op Trust Funds—Violation of Express Terms of Will—Investment in Real Estate— Accounting.</p> <p>In the absence of -special authority in the will an executor may invest trust funds only in United States or state bonds, in loans- on real estate and in the obligations of a city of this state issued pursuant to law.</p> <p>Where an executor in violation of the express terms of the will invests trust funds in the real estate of his wife, the account of tris administratrix will be surcharged with the sum so invested, with interest.</p>

<p>Wills—Disposition op Remainder op Estate—When Gift of Remainder Vests—Intention of Testator—Who Entitled to Entire Remainder.</p> <p>Where a testator, in disposing of the remainder of his estate after a life estate therein to a sister, directed the conveyance of one-half of his property to a niece, the payment of a certain sum to another sister, and the residue to still another sister to be conveyed at her death to her two sons and a daughter, the gift of the remainder of testator’s estate was future and contingent and did not vest until the death of the life tenant.</p> <p>Where by the same paragraph of the will disposing of the residue it was provided that should any of testator’s sisters, nieces or nephews die before the life tenant of the whole estate the property should be divided pro rata among the persons mentioned, testator’s evident intention was to confine the distribution of the remainder among such of those mentioned in the will as were living at the death of the life tenant, and one of testator’s nephews who was the only person mentioned in the will who survived the life tenant of the entire estate was entitled to the remainder.</p>

<p>Wills—Construction of Bequests- of Personal Property—Corporations—What Passes Under Bequest of Certain Shares of Stock.</p> <p>A -bequest of “my one hundred and sixty-six shares of St. Jo Lead Mining Company” and “thirty-three -shares of Cattle Co.” is a specific bequ-est and the -will in its relation1 thereto must be construed as of the date of its execution.</p> <p>When testatrix made her will she was the owner of 166 shares of mining stock -and 33 shares of the stock of a cattle company. At a reorganization of both companies she received 16 shares of mining Stock in exchange for her holdings in the cattle company. Thereafter, because of her ownership of .the original 166 -shares she received 472 shares in stock dividends all of which resulted from the distribution of the surplus accumulated by the mining company, and at the time of .her death she was the owner of 654 shares of the mining stock. Held, that they all passed under the bequest of “ my 166 shares,” etc.</p>

<p>Peoceedihg upon the accounting of an executor!</p>

<p>Wills—Delivery of Check by Testator Three Days Before Death— Revocation of Authority.</p> <p>Where testator drew his check for $20,000 to the order of his daughter and delivered it to her .three days before his death, and she delivered it to her own- hank which, through its correspondent, collected it from the trust company -on which it was drawn, but it was not paid to her until two days- after decedent’s death, her -contention upon the accounting of the executors, of whom she was one, that by the delivery of the cheek to her and payment thereof she became the absolute owner of the $20,000 was untenable and she must restore it to the estate.</p> <p>Upon the delivery -of the check to the daughter she became decedent’s -agent to withdraw the amount called for by said check, and her authority as such agent was revoked by his death.</p>

<p>Wills—Probate of—When Facts Unknown Cannot Be Regarded in Determining State of Mind—Evidence as to Existence of a Fact— What Constitutes Insane Delusion.</p> <p>In a proceeding for the probate of a will wholly in favor of testator’s ■ son, contested by the widow upon a claim that the mind of decedent was obsessed by insane delusions, proof was made by contestant of .testator’s declarations, Which both in express and topical form tended to show that he believed that his wife who for years had lived apart from him by agreement was unchaste, but no direct evidence was given as to whether testator had any basis or justification for such belief, held:</p> <p>Facts unknown to a person whose mind is under observation cannot be regarded in determining the state of his mind.</p> <p>Proof of an external fact, to be used to determine that a belief in its existence was sane, cannot be given unless founded upon evidence' that the belief was conceived with knowledge .of the fact, either actual or constructive.</p> <p>No fact can be shown for the purpose of characterizing or revealing a mental state unless it be the naked fact of knowledge itself on the part of the person whose mental attitude is in question.</p> <p>Evidence may not be given of the existence of a fact belief in the existence of which is claimed to constitute an insane delusion unless there be evidence or circumstances showing, or from which it can be presumed, that knowledge of the fact was brought to the mind of the subject so as to operate thereon.</p> <p>Proof of the existence or non-existence of a fact the belief in which by a person is claimed to constitute .an insane delusion may, however, be given if it concerns matters directly affecting Ms own person or presence and necessarily open to his knowledge.</p>

<p>Statute or Distribution—Who Takes Entire Personal Property— Application to Intervene in Proceeding to Probate, When Denied.</p> <p>Where a testator died in 1915 leaving him surviving no next of kin nearer than cousins and children of deceased cousins;, the cousins take the entire personal estate, and an .application by the children of deceased cousins to intervene in a proceeding to probate the will upon a claim that petitioners would be entitled to share in decedent’s estate if it were found that he died intestate must be denied.</p>

<p>Taxes—Transfer Tax—Proceeding to Fix Cash Value of Shares of Stock—When Arbitrary Deduction of Amount Claimed fob Depreciation in Value of Stock Cannot Be Allowed—Decedents' Estates.</p> <p>In a proceeding to fix the cash value of shares of stock of a corporation, property of the decedent, the transfer of which is subject to a tax under the Transfer Tax Law, it appeared that the president and the decedent, the vice-president and treasurer of the corporation, who owned the bulk of the stock of the corporation, failed to draw salaries commensurate with the services rendered by them, and permitted the difference between what they earned and what they received to accumulate as profits. In appraising the value of the good-will in fixing the value of the sh-ares of stock, the appraiser treated this difference as profit. Held, that a fair deduction from these apparent profits of an amount as a salary for services rendered is justified in arriving at the value of the good-will of the business and should have been allowed, and the report should be remitted to the appraiser for correction in this respect.</p> <p>Where in such a proceeding a deduction of an amount is claimed for possible depreciation in the value of the stock and there is no proof of sub. depreciation,' the arbitrary deduction of such an amount is not justified and cannot be allowed.</p>

<p>Wills—Undue Influence—Testamentary Capacity—Failure to Sustain Burden of Proof—When Not Sufficient to Render Testamentary Disposition Invalid.</p> <p>Before an instrument propounded as a will can' be criticised as unnatural for the reason that it ignores relatives and leaves all of decedent’s estate to strangers, -the relations existing ¡between the decedent and his ¡heirs at law and next of kin should .be considered to ascertain whether it is contrary to what the testator from his feeling -towards ¡his relatives, if known, would have been expected to make; and when such inquiry disclosed an apparent lack of intimacy -between the -testator and his relatives and a seeming lack of interest on their part for the welfare and care of the testator in his old age and ill-health, held, that little weight can -be given to the contention that the provisions of the propounded document are unnatural and indicate a lack of testamentary capacity. 7</p> <p>Undue influence is an aflirmative assault upon the validity of a will and -must be proved by the contestant. ;</p> <p>The burden of proving testamentary capacity of the decedent at the time of the execution of tile propounded document is upon the proponent.</p> <p>Testimony examined and analyzed and held that the contestant had failed to sustain the burden of proof on the issue of undue influence, and that the proponent had sustained the .burden of proof of testamentary capacity and that, therefore, the instrument offered should be admitted to probate.</p> <p>That the decedent was old, slovenly in dress and given to peculiarities of speech, and habit Which at times were such as to impress others that they were irrational, is not sufficient to render a testatmentary disposition of his property invalid.</p> <p>Even if the decedent had been insane and had been so adjudged, his will would be valid if made during a lucid interval.</p>

<p>Trustees—Testamentary—Direction to Pay General Guardian Accumulated Income of Trust Funds.</p> <p>Where testamentary trustees are directed, to set apart >as. a separate fund either money or securities, or both, sufficient in their judgment to produce a clear net income in a certain amount and pay the same from the time of testator’s death to a certain person six years of age for the purpose of his education until he becomes of age, the trustees will be directed to pay his father as general guardian the accumulated income of the trust funds, the trustees under the language of the will .having no discretion in the matter.</p>

<p>Wills—Old Age Not Disqualification in a Testator—When Will Entitled to Be Admitted to Probate.</p> <p>Old age is not per se a disqualification in a testator.</p> <p>In -testamentary causes the burden of proof on1 an issue of undue influence is on the contestant.</p> <p>After probate of a -testamentary paper has .been refused on the ground ■ that it was not proved to the satisfaction of the surrogate an earlier testamentary paper executed by decedent when he was over eighty years of age, about two and one-half years prior to -his death, with precise regard for statutory requirements, was offered for probate. Of the four subscribing witnesses three were lawyers of experience, one of whomi had known the decedent upwards of forty years and the evidence was convincing that said instrument was the voluntary act of a free and capable testator. Held, that the instrument was entitled to be admitted to probate.</p> <p>A motion to dismiss the proceedings for the probate of said instrument as decedent’s last will on, the ground that by the terms of the later alleged will, which was refused probate as not well executed, the earlier instrument was revoked is not entitled to weight.</p>

<p>Wlls—Revocation of—What Abe Specific Legacies—Provisions as to Lapse of Certain Bequests.</p> <p>Legacies of a certain clustered diamond ring' and a remainder interest in a certain table-cloth and of a certain long diamond chain are specific legacies.</p> <p>Where testatrix in a separate clause in the same paragraph by -which she made such specific legacies bequeathed her remaining jewelry in the following order: to her husband any one piece which he might select, he to have first choice; to another any one remaining piece of said jewelry the legatee to have eleventh choice, and a codicil revoked a legacy of any one remaining piece of said jewelry given to one who was to have second choice, a gift of the remainder of testatrix’s jewelry and other articles of personal use, together with her silverware, to her executors with request that they give the same to such friends of testatrix as they might select, refers solely to jqwelry remaining after the payment of the specific legacies and the several legatees had made their choice from the “ remaining jewelry,” and under it legacies which have failed because of the revocation by the codicil did not pass.</p> <p>Where a will provides that should certain bequests lapse or fail for any reason such bequests should go to and form part of the residuary estate and be disposed of in accordance with a clause naming a certain person as sole residuary legatee, he takes the lapsed legacies.</p> <p>A bequest of all furniture, pictures except family portraits and certain furniture subsequently mentioned and contained in the residence of testatrix includes the rugs, draperies and furnishings of said residence which were not specifically disposed of by the will.</p>

<p>Wills—Bequests Under—Name in Residuary Clause Erroneous.— Devise of alt. Rest, Residue and Remainder.</p> <p>By the third paragraph of ,his will testator bequeathed to “ Anne McGrath of Vandebilt Avenue near Atlantic Ave., Brooklyn, one hundred dollars, to Annie Darrell all my family pictures.” By the next paragraph all the rest, residue and remainder of the estate was devised and bequeathed to testator’s son-in-law and “ Annie McGrath of 5191 Greene Ave.” in equal shares. Held, that the name “ McGrath ” in the residuary clause was erroneously written in the place in which the name “ Darrell ” should have .been written and that the gift of one-half of the residue was to Annie Darrell.</p>

<p>Motions and Orders—When Interlocutory Order Is Not Res Ad judicata—Motion to Dismiss Objections Filed to Probate Denied.</p> <p>Ordinarily, an interlocutory order in an action is not res adjudieata.</p> <p>A decision of the Appellate Division, reversing an order granting alimony and counsel fees in an action for a separation upon the ground that the alleged marriage between the parties is void, is not conclusive on the plaintiff in said action in a proceeding to probate the will of her alleged husband, and a motion to dismiss objections filed by her to the probate of Ms will on the ground that the decision of the Appellate Division was res adjudieata on the question of marriage must be denied. ■</p>