Volume 15 — Mills's Surrogate Reports

<p>Betekmixatiom of the claim of Henry 0. Bicketson.</p>

<p>Taxes—Transfer tax—Arriving at value of unlisted stock for transfer tax purposes—Evidence.</p> <p>In arriving at the value of an unlisted stock for transfer tax purposes, direct evidence of sales at or about the time of death will outweigh an unverified report of an investors’ agency based upon offers claimed to have been made by various unnamed brokers, and upon quotations in a financial publication, nothing being shown as to the weight to be given such publication.</p>

<p>Trusts—Transfer to trustees of all real and personal property— • Provisions—Wills—Fixing tax under law as it existed at death of SETTLOR.</p> <p>A decedent -by instruments executed and delivered before her death conveyed and transferred to trustees -all her real and personal property, upon a trust to apply the income to the use of the grantor or settlor during her life, and, if necessary in the opinion- of the trustees, to similarly apply the principal of the personalty- or the proceeds of the sale of real estate, and upon the death of the settlor to sell the remaining real estate and convert it into cash-, to be deemed pensonalty, and to pay the same together with the cash resulting from- the sale of the remaining personal property to such persons and in such- proportions as might be provided by the settlor in her last will and testament or else as provided by the laws of the State of New York in force at the time of the settlor’s death for the distribution of estates in case of intestacy. The trust further provided that if, upon the death intestate of the settlor, it appeared to the satisfaction of the trustees that the share of any legatee or next of kin was subject to seizure or interference by judgment, claim or execution against such next of kin, such share should be held in trust by the trustees and the income, and such part of the principal as the trustees might deem necessary be applied to the support of said next of kin until the exhaustion of the fund or the disappearance of the danger of seizure, in which latter event the balance of such share was to be paid to the next of kin or, if he had in the meantime died, to his issue per stirpes and not per capita. The settlor having died intestate,</p> <p>Held, that, as to those of the next of kin whose shares were not subject to seizure, -the tax must be fixed under the law as it existed at the time of the death of the settlor, they taking under the statute and not under the trust instrument, and that as to those of the next of kin whose shares were subject to seizure the tax should be fixed under the law as it existed on the date when the trust instruments were executed.</p>

<p>Wills—Gift to individuals not to a class—When remainder interests vested—Parol evidence inadmissible to explain will.</p> <p>Where the will of testatrix gave to her executors the sum of $30,000 in trust, the income thereof to be applied to the use and benefit of her nephew, Nathaniel Coles Pearsall, during his life, and at his death gave the sum of $30,000 to Thomas Pearsall and Helen Pearsall, children of James B. Pearsall, share and share alike, held that the legatees took as tenants ini common, the gift being to them nominatum and the use of the words “ children of James B. Pearsall ” being merely descriptive.</p> <p>Further, held, that the remainder interests of Thomas and Helen Pearsall were vested.</p> <p>Parol evidence as to declarations of testatrix held inadmissible, where the words and language of the will are not ambiguous, or have a fixed and settled construction.</p>

<p>Wills—Power of sale—Executors and administrators—Title in real estate—Executors and administrators—Objections to account upon information and belief—Objection to payments—Bight to deposit in check account—Commissions—Objection to amount paid attorney overruled.</p> <p>A general power of sale given in a will to the executrix applying to the entire estate and designed to facilitate its distribution may co-exist with an estate devised in fee.</p> <p>The will of testator, who was a lawyer, after directing an equal division of all his property, real, personal and mixed, among the children of his brother, one of whom was a minor, provided: “ I authorize and empower my executrix hereinafter named to execute any mortgage, deed or conveyance; to give good title to such property, and carry into effect the provisions of this, my last will and testament; and in case of her death, I give to the administrator, with the will annexed, the same power of sale as the executrix.” Under the advice of counsel and without objections from any interested party the executrix sold certain of decedent’s real estate through an agent for full value and free of fraud. Upon the judicial settlement of the accounts of the executrix five of the devisees made objections to the agent’s commissions and also to the executrix’s commissions on the ground that the will contained no power of sale but if it did there was no necessity for its exercise in order to make the will effective. Sold, that the executrix was invested with a discretionary power of sale valid as a power in trust to convert the land into personalty and that the executrix could convey good title.</p> <p>That the title of the devisees in the real estate had been divested and an interest in the proceeds of sale substituted therefor.</p> <p>An objection to an item of $125, paid by the executrix as broker’s commissions on a sale of a part of the real estate, overruled, and said payment allowed.</p> <p>Upon the judicial settlement of the accounts of an executrix, the account and the objections filed thereto constitute the pleadings and determine what issues shall be tried and limit the examination to such issues.</p> <p>Objections to an executrix’s account to be available must plainly indicate the defects claimed.</p> <p>An objection to an executrix’s account upon information and belief that the indebtedness of the contestant to the estate is not correctly stated, in the absence of a denial of that part of the account involving contestant’s interest, raises no issue and the accounting party is not bound to prove her account as against the contestant, and it not having been denied must be deemed to be admitted, and the amount thereof set off against any sum due contestant from the estate.</p> <p>Where the contested account of an executrix is modified though not sufficiently to wipe out a balance in her favor, an objection to the account that it appears therefrom that the executrix had paid herself more than she was entitled to must be overruled.</p> <p>An item of twenty-seven dollars and fifty cents paid by the executrix to her husband for painting certain property of decedent allowed.</p> <p>An objection to a sum paid by the executrix for coal purchased after decedent’s death to heat a house of his occupied by her and her family for a period of five months sustained and her account surcharged with the amount of the bill.</p> <p>An objectien to a payment made by the executrix of the balance due on a land contract which had been assigned to.decedent overruled on the ground that on the evidence the executrix was justified in making such payment.</p> <p>An executrix has a right to deposit in a check account the necessary money belonging to the ettate to meet the current’expendes of administration without being charged with interest.</p> <p>An item of twenty dollars paid to the appraiser at the time of the taking of the inventory which was carefully prepared, held not to be unreasonable and the same allowed.</p> <p>The executrix allowed her commissions, and an objection to the amount paid by her to an attorney for legal services on the ground it was unreasonable and excessive overruled and the amount allowed.</p>

<p>Wills—Gift to class—When Statute of Limitations not available— Trustees.</p> <p>A will of personal estate is presumed to speak with reference to the time of testator’s death.</p> <p>A gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift to be ascertained at a future time who are all to take in equal shares or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number.</p> <p>A clause of a will in no manner relating to or connected with all the other provisions of the instrument provided: “ I give and bequeath to my son George Ralph, Jr., and my daughter Lydia Fish, and the survivor of them, the sum of $6,000 in trust to invest the same in such securities as they may deem proper, and receive the interest thereon as it accrues, and pay the same as it is received by them over to Jane, widow of my deceased son, William Ralph, for and during her natural life and in further trust upon the death of said Jane Ralph to pay over the said sum of $6,000 and the interest due thereon, in equal shares to the children of my said son William.” At the time of testator’s death there were living five children of his deceased son William. Held, that one of said children, a married daughter, who died before her mother and without issue, took an undivided one-fifth share of' the principal of the trust fund with accumulations, if any, and that her husband as administrator of her estate was entitled to maintain a proceeding to compel an accounting by the trustee in charge of the funds.</p> <p>It appearing that the substituted trustee from the time of the death in 1905 of the mother of testator’s grandchildren down to 1913 had on many occasions in conversation with their father promised him to render his account as trustee in the near future and giving on each occasion some trivial excuse for postponement, the Statute of Limitations was not available to the trustee to bar an accounting.</p>

<p>Wills—Due execution of *—Testimony on probate considered—When probate may not be denied.</p> <p>Testimony on a proceeding to probate a will considered, and held that testator at the time of the execution of the instrument had full testamentary capacity, and that there was no proof that undue influence was practiced upon him. at such time.</p> <p>A will duly executed by a competent testator free from, restraint at the time of its execution may not be denied probate on the ground that testator did not sign his name at the end of the instrument where it appears that there was no date inserted at the beginning of the will nor in the body of it, nor above the signature of testator, the only date appearing just below the attestation clause.</p>

<p>Jurisdiction—Of Supreme Court—Regularity of Assignments—When EXAMINATION OF RESPONDENTS UNNECESSARY-WHEN PROCEEDING IN SURROGATE’S Court dismissed.</p> <p>Where upon the return of an order granted for the examination of respondents upon the petition of an administrator alleging that respondents have the custody, possession or control of a certain, real estate mortgage which had been assigned by petitioner’s intestate to one of the respondents and by him to the other respondents, both assignments being regular in form, the answers allege possession, custody and title in one of the respondents and set forth the transaction, means and sources of title, with a full statement of the records thereof and place of recording, an examination of respondents is unnecessary.</p> <p>The trial of the issues raised by the petition and answers is exclusively within the jurisdiction of the Supreme Court and the proceeding in the Surrogate’s Court will be dismissed.</p>

<p>Executors and administrators—What is a charge on real property— Wills—Conditional legacy.</p> <p>Where prior to the death of testator’s- widow his personal estate had been fully administered and applied in accordance with the terms and provisions of his will, a legacy of $500 given “ to the trustees of the Reformed Church at Tappan ” on condition that they keep testator’s family burial plot in good order, etc., is a charge upon the real property which comprises testator’s residuary estate.</p>

<p>Wills—Construction of—When bequest not specific—Code Civ. Pro., § 2615,</p> <p>The first paragraph of a will bequeathed “ fifteen .shares of American Car and Foundry Preferred Stock, and twelve share's of United States Steel Common,” and the second paragraph, “ any money remaining to my credit in the Bank of Savings, in. the City of New York, and my gold watch and chain and bracelet with fifteen gold dollars attached)” to legatees named. ° 5</p> <p>■ It appeared that the testatrix left only $225, in addition to the property bequeathed in said paragraphs of her will, which sum was not sufficient to pay debts, funeral and testamentary expenses.</p> <p>In a proceeding for the' construction of'said will under section 2615 of the Code of Civil Procedure, held: That the bequest made by the first paragraph is not a specific but a general legacy, and that the bequest of money in- the Bank of Savings made by the second paragraph is a specific legacy.</p> <p>That the second paragraph is not in effect a residuary clause.</p> <p>That the property bequeathed by the first paragraph must be applied to the payment of debts, funeral and testamentary expenses, if these exceed the sum of $225, before the property specifically bequeathed by the second paragraph can be applied to such purposes.</p>

<p>EXECUTOBS AND ADMINISTRATORS—APPLICATION TO, FOB ADVANCEMENT TO LEGATEE-WHEN APPLICATION WILL BE DENIED.</p> <p>An application for an advance payment on a legacy denied because (1) the moving papers do not show that the husband has not sufficient means to support and maintain the legatee; (2) it does not conclusively appear that the income which petitioner is receiving from the estate is insufficient for her support, and (3) there is no fund indefensibly vested in her from which the advancement asked for can be made.</p>

<p>Wills—When probate proceeding does not abate—Decree admitting ■will TO PROBATE—JURISDICTION OF COURT.</p> <p>A probate proceeding does not abate by reason of the death of any of the heirs at law and next of kin of decedent before the entry of the decree admitting the will to probate and such decree binds the personal representatives who voluntarily appeared in the proceeding and submitted to the jurisdiction of the court.</p>

<p>Wills—Construction of—Conditional bequests as to payment of debts —Petition made under section 2615 of Code of Civil Procedure— When petition denied.</p> <p>Where a petition made under section 2615 of the Code of Civil Procedure for the construction, of a will by the son of testatrix to whom bequests were made on condition that he pay the debts of testatrix within a year after her decease alleges that it will he practically impossible for ■him to comply with the condition and asks that the limitation of one year be eliminated the application will he denied as any construction of the will based on the assumption that petitioner will not comply with said condition would not only be premature but speculative and impractical.</p>

<p>Wills—Clause in, as to good-will of business—Transfer tax.*</p> <p>Where as the result of an oral agreement between testator and Ms brother, who was his partner in business, that in the event of either dying nothing should be paid by the survivor for the good-will or firm name, and that the last will of each partner should contain such a provision, a clause in testator’s will that his death should not dissolve the partnership and that the extent of his interest in the firm should be determined within a certain time and nothing paid by his estate for the good-will or firm name does not justify a finding in a proceeding to fix a transfer tax that the good-will of the firm had no existence; the testator could not by his will reduce to nothing a substantial asset of his estate and thus escape its proper taxation.</p>

<p>Wills—Devise as to certain real estate fob ufe—Liability of EXECUTOR TO ACCOUNT FOR PROCEEDS PAID TO TESTATRIX AS UFE TENANT-Accounting—Executors and administrators.</p> <p>Where many years prior to the death of testatrix the proceeds of certain real estate devised to her by her husband for life were lent or given for investment by her to her executor, he is not liable to account for such proceeds as were paid to his testatrix as life tenant under the will of her husband; the executor should, however, account for moneys which belonged to testatrix individually and which she loaned and gave to him to invest.</p>

<p>Wills—Execution of—Drawn by inexperienced layman—Construction of will—Bequests—Power of sale under—Code Civ. Pro., § 2615.</p> <p>A will inartifieially drawn by an inexperienced layman but duly executed and attested provided:</p> <p>“ First. After my lawful debts are paid, I give & bequeath to my wife the income of all my real & personal estate while she remains my widow, should she remarry I want my estate to be divided as follows, as written & mentioned on page 2 of this will. * * *</p> <p>“ I hereby appoint my son Henry J. Schriever of New York City to be executor of this my last will and testament, hereby revoking all former wills.”</p> <p>On page 2 appeared:</p> <p>“ To my widow whatever the law allows her, in lieu of dower, & remainder to be divided as hereafter mentioned.</p> <p>“(1st) I bequeath to my wife & executor power to sell whatever real estate I may own at the time of my death if they deem it to advantage.</p> <p>“ (2d) I bequeath to my daughter Annie C. Fifty dollars,' ($50) my said daughter having married without my consent. I therefore give her the above small amount should my daughter die before the settlement of my will I bequeath said amount of ($50) Fifty dollars to my son & executor.</p> <p>“ (3d) I bequeath to my nephew John H. Schriever son of my brother Herman in Attwistedt Germany the sum of Five thousand ($5,000) dollars, if said nephew should die before my estate should be settled said sum of Five thousand (5,000) dollars should go to my son & executor.</p> <p>“ (4th) I bequeath to my Brother-in-law Diederick Hinek the sum of twenty five hundred ($2500) dollars, should said Hinek die before the-settlement of my will, said sum of twenty five hundred dollars I bequeath to my son & executor.</p> <p>“ (5th) The remainder of my real & personal estate whatever it may be, I will & bequeath to my son & executor, or his heirs forever, said sum to be regulated by the first clause of my said will & testament.</p> <p>“ I heretofore bequeathed to my daughter the sum of Fifty dollars said, small bequest was on account of marrying without my consent & knowledge, the only notice received by me was the telegram sent by her husband annexed to this will.”</p> <p>In a proceeding brought under section 2615 of the Code of Civil Procedure by testator’s' daughter to obtain a judicial determination as to-the validity, construction and effect of the above mentioned clauses of testator’s will, while his widow was still living and unmarried, held:</p> <p>That the testator has made a valid testamentary disposition of his. entire estate;</p> <p>That the executory bequests on page two are limited upon the widow’s remarriage, and will not become effective unless and until that event, occur;</p> <p>That the estate in remainder, whatever it may be; whether it arise upon the widow’s death unmarried, or upon her remarriage, will pass to the-son absolutely, and without any qualification, but subject to the widow’s right of dower in the real property ;•</p> <p>That the widow, in the event of remarriage, will forfeit her right to-the income from the estate; but will still have a right of dower in the-real property; and</p> <p>That the power of sale given to the' widow, conjointly with the son, will terminate in. the event of her remarriage, and that a decree should be entered accordingly.</p>

<p>Taxes—Appeal from order fixing transfer tax—Right of survivorship.</p> <p>On appeal by an executor from an order fixing the transfer tax on the estate it appeared that the decedent and his surviving wife by their joint industry and effort during decedent’s lifetime had accumulated the real and personal property of which the decedent died seized and that the bond, mortgage and certificate of deposit which were assessed reflected such property so accumulated and had been1 taken in the name of the husband and wife;</p> <p>Held, that the decedent intended when such investments were taken in his, and bis wife’s name, to create in his wife a right of Survivorship, and that therefore the amount represented by the bond, mortgage and certificate of deposit was not subject to the payment of a transfer tax.</p>

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

<p>Guardians *—Of infants—Who may make application for appointment—Court guided by best interests of infant—Evidence.</p> <p>The petitioner having the care and custody of an infant to which he was not related and which resided with him applied for appointment as guardian of its person and estate during its minority. Two of its maternal aunts opposed the application and claimed the right of guardianship on the ground of relationship, of their desire to care for it and of their desire that it he brought up in the faith of its deceased parents.</p> <p>It appeared that the parents of the infant were of the Catholic faith, and not long prior to the death of the mother she left a memorandum expressing the wish that the infant 'remain in the charge of the petitioner and his wife until she returned to claim her. The mother died before returning for the infant and there was some evidence that the mother before her death expressed the desire that one of the maternal aunts have the custody of the infant. In granting the application of the petitioner, it was</p> <p>Held, that upon applications of this kind it is well settled that the court should be guided in reaching a determination by considering what disposition is for the best interests of the infant; that the entire matter rests in the discretion of the surrogate, which discretion is weighted with great responsibility and must be most carefully exercised in view of its importance to the infants involved who are wards of the court and entitled to its fullest protection; also</p> <p>Held, that while the wishes of parents are given careful consideration by the courts in proceedings of this character, even these when fully proved and substantiated are not followed when the court is satisfied that the welfare of the child demands a different disposition; that while relatives will be preferred to strangers, all things being equal, such preference will not be given unless the court is satisfied that the welfare of the child will be promoted thereby; that the infant should receive instruction in the faith of her parents, because it must be assumed in the absence of evidence to the contrary that such would have been the wishes and desires of the parents; that the present custody of the infant should not be changed, and the petitioner should be appointed the guardian of its person and estate, upon the conditions, however, that the child receive religious instruction and training in the faith of her deceased mother until it arrives at years of discretion, and that the petitioner permit the respondents to visit the child at reasonable times.</p>

<p>Application for trial by jury of a controverted question of fact.</p>

<p>Appeal—From order entered on report of appraiser—Requirements of NOTICE OF APPEAL—TRANSFER TAX ACT—DECEDENT ESTATE LAW.</p> <p>Decedent who died in 1913 leaving no surviving husband, child or parent, gave her residuary estate to charitable corporations. Some of the next of kin opposed the probate of the will while others of them instituted a suit in the Supreme Court to obtain like relief. As the result of a compromise among all the parties, the residuary legatees without renouncing their legacies agreed in consideration of the withdrawal of the objections and the discontinuance of the suit to pay contestants one-tliird of the amount passing to the residuary legatees under the will, and thereupon it was admitted to probate. The transfer tax appraiser reported that the residuary estate was exempt from taxation under the Transfer Tax Act. Held, that an appeal by the state comptroller from the order entered on the report of the appaiser on the ground that his distribution of the estate was in contravention of sections 17-20 of the Decedent Estate Law must fail as section 17 was not applicable and sections 18, 19 and 20 were, repealed by chapter 857 of the Laws of 1911.</p> <p>A notice of appeal which states “ that the order entered fixes and assesses an inadequate and insufficient tax on the transfers of the property of said decedent ” is a sufficient compliance with the provision of the Transfer Tax Law which requires that a notice of appeal “ shall state the grounds upon which the appeal is taken.”</p>

<p>Taxes—Transfer tax—When good-will constitutes an asset op decedent’s estate *—Wills—Evidence—Report of appraiser.</p> <p>While the facts that decedent, who for nearly twenty years immediately preceding his death had conducted a manufacturing business, did not advertise in trade publications or daily newspapers but depended solely upon traveling salesmen for the sale of his manufactured product may be considered in estimating the good-will of the business they do not necessarily prove that there was no good-will; if, after deducting a reasonable sum for the services of decedent and for interest on capital invested, the business showed profits it had a good-will that constituted an asset of decedent’s estate.</p> <p>The average net profits of the business for the five years next preceding the date of decedent’s death, to be ascertained as indicated by the court, multiplied by two, held to represent the value of the good-will of the business.</p> <p>The evidence showing that certain machinery in a factory located in another state and run by decedent in connection with his business did not constitute a part of the building and was not erected in such a manner that its removal would materially alter or deface the building, the appraiser was correct in including in the assets of the estate the said machinery.</p> <p>Decedent having directed that the income from his residuary estate be paid to his widow and daughter during their respective lives and upon the death of the survivor that the principal be divided among the surviving issue of the daughter per stirpes and in the event of her death without leaving issue such remainder to be divided into sixty equal parts and paid to the various legatees mentioned in the will, the remainder should be divided into sixty parts and each legacy presently taxed as if it were bequeathed to an individual of the five per cent, class.</p>

<p>Wills—Of movables—Governed by law of testator’s last domicile— Eights of legatee.</p> <p>A will of movables is generally, in the absence of other intentions, to be governed by the law of the testator’s last domicile.</p> <p>Where under a French will of a domiciled Frenchman there is a universal succession to movables, the rights of a legatee thereto depend on the law of ¡France, although the will may have been- probated in the state of New York in the first instance.</p>

<p>Testamentary trustees—Accounting by—Jurisdiction of surrogate— Constitutional law.</p> <p>A surrogate upon the judicial settlement of the accounts of a testamentary trustee has not the general equitable jurisdiction and power of a chancellor; he cannot refer a part of the objections interposed to the account but must refer all or none.</p> <p>Whether the late legislation attempting to confer general equity jurisdiction on the surrogate is constitutional, quaere.</p> <p>The practice on motion to file affidavits affecting the subject-matter of the accounts indicated.</p> <p>The intermediate application of a legatee for payment of her share granted.</p>

<p>Executors and administrators—Eight to letters—When instrument PURPORTING TO BE A LAST WILL AND TESTAMENT DENIED PROBATE-WHEN RIGHT 03? WIDOW TO LETTERS ABSOLUTE.</p> <p>Where there is an executor or administrator whose right to letters appears and who asserts such right no tesnporary administrator can be appointed nor does the pendesicy of asv appeal from the decree which l'ecognizes such right afford any reason for delay in the granting of letters to such executor or administrator.</p> <p>Where an instrument purporting to be a last will and testament is denied probate, the right of the decedent’s widow to letters of general administration upon his estate is absolute.</p>

<p>Gifts †—Of certain shares of corporate stock—No evidence of delivery—Executors and administrators.</p> <p>Where a claim against an estate is based on a personal transaction between decedent and claimant, clear and convincing proof is needed.</p> <p>Where a father declares he has given certain shares of corporate stock to his son, who is also his executor, and thereafter throughout his life keeps such property in -his own hands taking to his own use all the income thereof, and after his decease the certificate of stock upon which was indorsed the usual assignment and power of attorney signed in blank by decedent is surrendered and a new certificate for a like number of shares issued to the executor in his own name personally, and there is no evidence as to whether the original certificate at the time of its surrender was held by the executor as his own property or as executor, the- presumption is that decedent remained the owner of the stock at his death and the son has not affirmatively established that there was a delivery to him of the stock with intent to effect a gift.</p>

<p>Taxes—Transfer tax—When affidavit of administrator misstated MARKET VALUE OF CERTAIN STOCK-ASSESSMENT OF TAX-WHEN ERROR MAT BE CORRECTED.</p> <p>Where it is conceded, that the affidavit of the administrator in a transfer tax proceeding inadvertently misstated the market value of certain stock belonging to the estate, and that following the report of the appraiser based on such statement the tax was assessed as if the stock was of its fair market value instead of its true value, the error may be corrected even after the lapse of two years from the making of the order assessing the tax.</p>

<p>Gifts *—Funds in bank—What is a valid gift inter vivos—Evidence.</p> <p>At the time of the death of decedent he had on deposit money in savings bank accounts in the name of “ John Klein for daughter Maria A," “ John Klein for daughter Mary A,” and “ John- Klein for daughter ■ Elizabeth M.” The bank books at the time of his death were in the possession of the decedent and there was no evidence to justify a finding that they had ever been in the possession of either of the daughters.</p> <p>The testimony established that the accounts were made up of moneys that were given to the daughters at different times, over a long period of years by the decedent, that were subsequently deposited in the above mentioned accounts tby the decedent at the request of the daughters and that were not given in contemplation of death.</p> <p>Held, that there was a valid gift inter vivos of the said moneys by the father to the respective daughters and that the mere fact that the father in depositing the fund which lie had presented to his daughters, and which they had turned over to him to deposit for them, did so in the form which if unexplained would constitute a revocable trust, did not in any way deprive said daughters of their ownership; that their title to the same did not arise, nor was there any transfer to them by reason of the death of the decedent; that the transfer from the decedent to them took place when he made the gifts to them, and nothing that he could do thereafter could deprive them of the right which they had to the moneys which were the subjects of the gifts; that the handing back of the accumulated gifts by the donees to the donor did not affect the gift.</p>

<p>Executors and administrators—Who entitled to ancillary letters in this state—Who may apply for revocation of—Wills.</p> <p>The only persons entitled to ancillary letters in this state are the persons entitled to the possession, in the domiciliary state, of the personal estate of the decedent.</p> <p>Local next of kin are not entitled to notice of ail application for ancillary letters, but for protection they should resort to the courts of the last domicile of decedent where the last will of their testatrix is acted on by public authority.</p> <p>As the local next of kin are not entitled to ancillary letters and not entitled to notice of an application therefor, they cannot apply for the revocation of such letters on the ground that the papers on which such letters were granted are defective.</p>

<p>Executors and administrators—Petition for judicial settlement or accounts'—-When bank not necessary party to proceeding—When MOTION TO DISMISS GRANTED; PARTIES—TO PROCEEDINGS FOR JUDICIAL SETTLEMENT OF ACCOUNTS OF EXECUTOR-CODE ClV. PRO., §§ 2510, 2736.</p> <p>Where, though in the .petition, for the judicial settlement of the accounts of an executor a bank is described as a depository of funds alleged to belong to the decedent, the statement in the account makes it clear that at the death of decedent the bank was only a debtor either of decedent or of the person named as a possible beneficiary of the deposit, the bank is not a necessary party to the proceeding, and where in accordance with the allegations and prayer of the petition the bank was Served with a' citation, its motion to dismiss the proceeding as to itself, for lack of jurisdiction, will be granted.</p> <p>The effect of section 2510 of the Code of Civil Procedure considered, and held to show no intention to enlarge the class of persons who may be parties to a proceeding for the judicial settlement of the accounts of an executor as provided by section 2736 of said Code.</p>

<p>Jurisdiction—Of surrogate—Constitutional law—Code Civ. Pro., § 2510; Executors and administrators—Accounting—Judicial settlement OF ACCOUNT OF GENERAL GUARDIAN—ADMINISTRATOR WITH WILL annexed—Trusts—Wills .</p> <p>The jurisdiction conferred upon a surrogate by section 2510 of the Code of Civil Procedure, to determine all questions legal or equitable “ arising between any and all of the parties * * * as to any and all matters</p> <p>necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires,” must be loyally assumed, and this court will not question the constitutionality of said section.</p> <p>In a proceeding for the judicial settlement of the account of a general guardian and also of the account of an administrator the assets with which both accounts were concerned came from the mother of the two respondents, who died leaving a will under which an executor was appointed. Said executor delivered the fund of his trust to the accounting party herein before he had received any appointment as1 guardian, trustee or administrator with the will annexed. Thereafter and at a time when both respondents were minors said accountant was appointed their general guardian and later received letters of administration with the will annexed upon the estate of the respondents’ mother and still later was appointed substituted trustee of the trust created by said will. In each of these capacities the petitioner accounts, displaying in each account the same items of receipts and disbursements, the same aggregates and the same final statement". The will contained a trust implied but distinct, under which respondents are the sole -beneficiaries for a term and in remainder. The trust requires that the fund thereof be used for the support of respondents according to the discretion of said guardians, necessarily meaning the trustees of the trust. There has never been a time when either of the respondents had any estate derivable from his mother of which a guardian could take charge and there has never been a time when there was any -property as to which the accountant as administrator had any possession or right of possession. At all times Since the accountant has been concerned with the asset for which he accounts the only person entitled to the custody and administration of said assets has been the testamentary trustee whose account is the only account requiring adjustment.</p>

<p>Trusts—Irrevocable—Deposit of money in savings bank in trust—• When not subject to transfer tax.</p> <p>Where a decedent deposited certain of her own money in a savings bank in her own name in trust for a named niece, and at a time not shown delivered to her the bank book which- remained in her possession continuously -until decedent’s death, and it appears that there were neither withdrawals nor additions to the deposit, the finding must be that the deposit was of the character of an irrevocable trust and therefore not subject to a transfer tax.</p>

<p>Executors and administrators—Application by county treasurer for REVOCATION OF LETTERS OF ADMINISTRATION-CODE ClV. PRO., § 2570.</p> <p>Where letters of administration upon the estate of a resident alien and subject of the kingdom of Italy were issued to the proper consular agent, and the estate, which is small, is ready for final distribution, the surrogate under section 2570 of the Code of Civil Procedure may in his discretion refuse to entertain an application made by the county treasurer for the revocation of the letters of administration, and by reason of the treaty between this country and Italy it will be decreed that the fund be paid to the consul general of Italy residing at the city of New York who appeared in behalf of the next of kin of decedent.</p>

<p>Executors and administrators—To whom letters granted—When letters REVOKED.</p> <p>Where on petition of a sister of a decedent for the revocation of letters of administration granted to one claiming to be his widow she admits that she was never married to decedent, such admission- being against her interest, it must be taken as a fact that they were never married, and the letters will therefore be revoked and administration granted to-petitioner.</p>

<p>Executors and administrators—Provisions of will—Application fob CONSTRUCTION OF WILL-RIGHT OF EXECUTOR TO PAT FUNERAL EXPENSES.</p> <p>A will contained the provision: “I direct my executor after paying the above bequests out of the balance of my money on deposit in the Bowery Savings Bank and Seamans Savings Bank, that said balance shall be used to defray Euneral Expenses and the erection of a monument over my grave.”</p> <p>Decedent’s estate amounted to $1,471.95 and the net amount to become available for the erection of a monument would probably amount to $253.18. The executor, being in doubt as to whether he was required to expend the whole amount of the balance referred to for the erection of a monument, applied for a construction of the will.</p> <p>Held, that without any testamentary direction to that effect an executor has the right to pay the funeral expenses of the decedent, and a reasonable sum for a tombstone is regarded as a legitimate item of such expenses; that no arbitrary rule can be laid down establishing what is such reasonable sum, and each case depends for its determination upon its own peculiar conditions; that the provision under consideration did not in terms require that all of the balance should be expended for funeral expenses and the erection of a monument, and that the intent of the testatrix was that so much of the balance as would be reasonable, having in mind her station in life and the amount of her estate, should be used for such purposes.</p>

<p>Appeal from order of transfer tax appraiser—Evidence—Transfer tax—Corporations.</p> <p>On an appeal by decedent’s next of kin from an. order entered upon the report of the transfer tax appraiser it appeared that the decedent was the owner of 232 shares of capital stock in a corporation, the par value of which was fifty dollars per share. He died on January 18, 1914, and on April 20, 1915, the public administrator as administrator sold at public auction 140 of said shares at thirty-seven dollars per share and 92 shares at thirty-six dollars per share. The appraiser fixed the value of these shares at seventy-eight dollars' each, based upon a valuation of the physical assets and an estimate of the good-will of the corporation. He took a six years’ purchase on the annual net profits', although the corporation had been in existence for only twenty months and justified this by the contention that it was continuing the business of another corporation. From the date of its incorporation in May, 1912, to February, 1915, there had been twenty-eight transfers of the stock of the corporation; fifty-three shares were sold in July, 1913, at twenty-five dollars-, and eighty-four shares sold in December, 1913, at thirty dollars per share. The uncontradicted testimony of the treasurer of the corporation was1 that the shares were at that time worth forty-three or forty-four dollars per share and forty to forty-one dollars in January, 1913, and a few dollars more in January, 1914. The sale of the said 232 shares took place fifteen months after decedent’s death. All the stockholders were notified of the sale.</p> <p>The returns to shareholders from the profits of the corporation during its existence of about twenty months would be large. The appraiser did not give any weight to the evidence of the actual sales prices of the shares under consideration, nor to other sales of the same stock in-arriving at a valuation of shares of the stock in question.</p> <p>The -appellant contended that the appraiser’s valuation was unjustified and the questions- presented were whether the appraiser was warranted in giving no weight at all to the evidence of actual sales prices of the shares under consideration, and, if so, whether he erred in his method of arriving at the valuation of good-will. Upon the facts</p> <p>Meld, (1) that the transfer which is taxed is that which takes place at the date of death and it is the fair market value of the property transferred at that time which forms the basis of the tax;</p> <p>(2) That the amount realized by the sale at public auction after due and proper advertising and conducted in a proper and legal way represented the value of the Shares of stock at the time;</p> <p>(3) That, the sale mentioned should have been considered by the appraiser, not as necessarily conclusive, but as one of the sales which together with the other's made during the life of the corporation might have aided him in fixing the market value which is the subject of the tax;</p> <p>(4) That other sales' of stock and the uncontradicted testimony of one of its officers should have been considered in arriving at the valuation of the said 232 shares;</p> <p>(5) That while the taking of a number of years purchase on annual net profits has received the sanction of courts, and while there are decisions to the effect that remote sales are not binding on the appraiser as to the value of the security at the date of death, such decisions do not go so far as> to hold, that the appraiser, where the shares under consideration were sold in the manner and under conditions which fix the market value fifteen months after decedent’s death' and which may throw light on their value at the time of such death, must disregard them entirely in appraising property whose market value must of necessity be at best only an approximation;</p> <p>(6) That the fact that the returns to shareholders from profits would he large does not of itself give the appraiser the authority to ignore actual sales of stock;</p> <p>(7) That the method of fixing the value of the stock adopted by the appraiser should be resorted to only when there are no sales from which such valuation can be ascertained;</p> <p>(8) That the corporation in question was not doing business under the name of a former corporation, and that there was no force in the contention that it was practically the former corporation and enjoyed its good-will should be based upon a calculation of profits before decedent’s death, and the life of the corporation should be one of the elements considered;</p> <p>(9) That the taking of a six years’” purchase was not proper and that, under all the circumstances, a more just result would be obtained by taking the actual net profits made during the life of the corporation, about twenty months, as being the value of the good-will instead of a six years’ purchase on the .average annual profits.</p> <p>(10) Accordingly held that the said shares should have been appraised at forty-four dollars' per share.</p>

<p>Executors and administrators—When balance paid to administrator—Evidence.</p> <p>Where claimant received from decedent, a feeble and illiterate old man, certain money upon the understanding that out of it should -be paid his living expenses and the cost of his burial, the balance must be paid over to the administrator in the absence of clear and adequate proof that claimant is entitled to retain it.</p>

<p>Guabdians—Application fob ancillaby lettees of quabdianship—Code Civ. Peo., § 2664(2).</p> <p>Under section 2654(2) of the Code of Civil Procedure an application for ancillary letters of guardianship must be made by the person authorized to act as guardian within the county where the infant resides, but no provision of said Code authorizes the surrogate to issue joint letters of guardianship.</p>

<p>Legacies—Specific and general—Payment of debts and expenses.</p> <p>Certain legacies held to he specific and another' general and the assets of the estate to be applicable to the payment of debts and expenses as follows: Pirst, the unbequeathed personalty as to which testator died intestate, and, second, a general legacy and then the specific legacies.</p>

<p>Wills—Provisions of—Additional executors—Application fob appointment of administrator with will annexed.</p> <p>Where a will provides for additional executors in the event that testator’s wife, the principal legatee and sole executrix, should not survive him, but no provision is made for the event of her death after the grant of letters testamentary to her, the proper course upon her death is to apply for the appointment of an administrator with the will annexed.</p>

<p>Accounting in surrogate’s court—Executors and administrators—Testamentary trustees—When executors entitled to full commissions-—Code Civ. Pro., § 2753.</p> <p>Since September 1, 1914, commissions to testamentary trustees upon an accounting in the Surrogate’s- Court must be allowed in- accordance with section 2753 of the Code of Civil Procedure, the last paragraph of which provides that “ If the gross value of the principal of the estate or fund accounted for amounts to $100,000, or more, each executor, administrator, guardian- or testamentary trustee is entitled to the full, commission on principal and income allowed therein to a sole executor,, administrator, guardian or testamentary trustee,” and not under section-3326 of said Code.</p> <p>The gross value of the principal of an estate is the determining factor as to whether or not two testamentary trustees shall each be entitled to full commissions on principal and income and the amount of the latter has nothing to do with the right to more than one full commission-</p> <p>Where the gross value of the principal of an estate consists of unsold real estate which is not to he distributed or delivered, it cannot be taken into consideration so as to bring the value of the estate beyond $100,000.</p> <p>Principal and income may not be added together in order to make an estate of over $100,000 and thus entitle each trustee to full commissions.</p> <p>Where the principal of a trust estate as accounted for amounts to $84,578.78, and the income accounted for amounts to $136,106i.34, the two testamentary trustees may be allowed one full commission to be divided between them.</p>

<p>Executors and administrators—Commissions arrowed temporary ADMINISTRATORS-SURROGATE’S COURT.</p> <p>The amount of commissions to be allowed to temporary administrators cannot be determined in advance of the judicial settlement of their accounts, and any provision in the order appointing them limiting or determining the amount of such commissions must be stricken out.</p> <p>An order appointing one as a temporary administrator should not provide that he serve without compensation, and where his appointment was conditioned upon his consenting to serve without compensation such consent should be filed in the Surrogate’s Court before the order appointing such administrator is signed.</p>

<p>Wills—Construction of—Life tenants—Trustee in bankruptcy—Executors AND ADMINISTRATORS.</p> <p>The construction of a will as determined by the Court of Appeals must be followed in the decree made upon the judicial settlement of the accounts of the administrator with the will annexed.</p> <p>While a life tenant is still living, the trustee in bankruptcy of one entitled only to an interest in the estate in remainder is not entitled to a construction of the will, or to an adjudication in reference to the remainder, and the decree to be entered upon the judicial settlement of the accounts of the administrator with the will annexed should contain no adjudication in relation to the interest of the bankrupt.</p>

<p>Application for leave to open decree admitting will to probate.</p>

<p>Trusts—Creation by will—Life beneficiary.</p> <p>Where a trust created by will is- that the life beneficiary shall have the net income, all that the will assures to him is the income which must bear all the just and proper expenses of carrying the assets of the trust fund unless exonerated by the will.</p>

<p>Decedent’s estates—Claim against—Declaration as to trust fund— Executors and administrators—When claim allowed.</p> <p>Where testator’s daughter made a claim against his estate for $18,000, which sum he had declared he held in trust for her and that in the event that she should acquire a house in his lifetime there would become due to ■her from him said sum, and throughout the remainder of his life he paid ■her the interest on said sum, his executors are in duty bound to pay over the principal of the trust fund only when testator’s daughter shall actually and in good faith prepare for the building or purchase of a house, and her claim to said principal either as a debt due her in testator’s lifetime or as one becoming due upon his death must be allowed.</p>

<p>Devise—Of certain real estate—Wills—Exercise of power of sale.</p> <p>Where testator’s daughter to whom he devised certain real estate was given full power to dispose of the same by will “so that the absolute fee in possession will ultimately and within the statutory period vest in her brother’s heirs,” she had the legal right to dispose of the land as she chose, and any provision in her will which would vest the land in one or more of her brother’s heirs ultimately at the end of one life in addition to her own would he a complete exercise of the power.</p>

<p>Wills-—Devise to executors in trust—W’hen gift not deemed contingent.</p> <p>Where a gift over is contained only in a direction to pay and devise at the end of an intermediate estate, the gift will not be deemed contingent if by the utmost effort and cunning a contrary intention can be detected in the will.</p> <p>The will of testatrix, by which the whole income of all property derivable from the estate of her deceased father was given to her executors in trust to pay the income thereof to her husband for life, or while he remained a widower, directed the executors after the death or remarriage of said husband to divide the amount bequeathed to him- into five equal shares or portions and to pay over one of Said equal shares or portions to each of four named children of testatrix, the remaining share to be invested and the income therefrom to be paid to another daughter for and during her natural life and after her death the principal of said remaining share to be equally divided among the remaining children of testatrix share and share alike, and said children took the residuary estate equally.</p> <p>Held, that the gifts to the four children- were vested and not contingent; that the devise in trust for the fifth child vested in the trustees for her benefit subject to the contingencies of the trust, and that the share in remainder of one of said four children passed to her representatives.</p>

<p>Wills—Provisions op—Legacies—When estate in remainder vested.</p> <p>A will after general legacies made provision for each of the four children of testator in separate paragraphs of which one was as follows:</p> <p>“ Sixth. I give, devise and bequeath unto my daughter Mary Augusta for her sole and separate use, free from the control of any present or future husband, the net income of one other one-quarter of my estate for and during the full end and term of her natural life, and upon her death I give, devise and bequeath the said one-quarter of my estate to the lawful issue of the said Mary Augusta, and in default of such lawful issue I give, devise and bequeath the same to the survivors and survivor of my children and the lawful issue of such of my children as shall be dead.” Held, that upon- the death of Mary Augusta, who died after the testator, the estate in remainder vested in equal shares in the representative of her son who died in her lifetime, his child, his brother and the children of said brother.</p>

<p>Decedent estate law, §17—Provisions of—When decreases taken into consideration—Valuation appraised by use of life tables-.</p> <p>In the application- of section 17 of the Decedent Estate Law which provides “No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his- or her estate, after payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more,” the rule of calculation adopted in Matter of Johnston (76 Misc. Eep. 391), to wit: “ Ascertain the money value of the estate as it remained at death, subtract therefrom the amount of decedent’s debts, pay one-half of the remainder to the corporate legatees, whose legacies were subject to reduction,” mus-t be followed.</p> <p>Where by reason- of delay in the disposition of the estate there have -been decreases- as- well as appreciations- in the value of its property, and there have been accruals of interest or income, the decreases must be taken into consideration in ascertaining the value of the estate as of the time of the death of the testatrix.</p> <p>Where in the application of section 17 of the Decedent Estate Law it becomes necessary to include in the valuation of the estate the value of vested remainders, they must be appraised by the use of the life tables.</p>

<p>Wills—Devise in trust—Dower—Life estates—Duties of executors AND ADMINISTRATORS.</p> <p>Where lands are devised in trust, the dower of testator’s widow is preserved unless there is an obvious incompatibility between1 the actual assignment of dower and the complete operation of the trust. In such case the trust is not repugnant to the assertion of dower unless it is apparent that the trust requires the possession and control by the trustee of the entire lands.</p> <p>The 2nd paragraph of testator’s will, after the devise of a life estate in certain premises to his wife and a gift in trust of a certain sum of money for her benefit during her life, provided that after her death said premises and the trust fund should 'be given to testator’s children equally. The 3rd paragraph of the will provided “ All the rest, residue and remainder of my estate, of whatever kind and nature and wherever situated, 1 do direct my Executors to divide into as many equal parts or shares as I may have children at the time of my death, and I give, devise and bequeath one of such equal parts or shares to each of my children, the children' of any deceased child to take the share to which their parent would have been entitled if living'; provided, however, that the shares of my daughter or daughters shall be held separately in trust for them by my Executors and invested and kept invested, and the net income derived therefrom paid over to them during their natural lives; and on their death the principal of their shares I direct to be divided among their children; and provided further that inasmuch as my son Clarence Krogmann has received seven hundred dollars more than my other children, I direct that that amount be deducted from any share to which he would otherwise be entitled.”</p> <p>Held, that the operation of the trust and the assertion of dower might coincide without offense to any purpose which testator discloses, and objections to payments made to the widow from the income from lands which were the subject of the trust will be overruled.</p> <p>It is the duty of the executors to avail themselves of the privilege of the renewal of a lease of which the decedent died possessed not only as an incident to the exercise of the power given to them to continue testator’s business in the leased premises but generally as a prudent means of retaining the interest of the estate in the building erected upon the leased premises.</p>