Volume 16 — Mills's Surrogate Reports

<p>Wile construed—Devise in trust with contingent remainders if beneficiary DIE WITHOUT ISSUE—DISPOSITION OF INCOME WHILE CONTINGENCY EXISTS.</p> <p>The will of a testatrix gave her'property to her executors in trust to use the income and principal, if necessary, for the education and maintenance of her two sons during their minority, and in the meantime directed the accumulation of the surplus income. When the sons respectively attained the age of twenty-one she directed that the income thereafter arising he paid to them in equal shares. The next paragraph provided that when the sons arrive at the age of twenty-five one-eighth of her estate them remaining should be paid to each child absolutely. Then, provision was made for the further payment of another one-eighth to each child upon hisi arrival at the age of thirty. The 5th paragraph provided that “ After such division shall have been made, I then direct -my said executors and trustees to pay over to my said sons, the income arising from the balance of my estate, during the term of their natural lives, and in' case of the death of either, without leaving lawful issue, the whole income to go to the survivor, hut upon the death of either leaving lawful issue, then I give * * * to the! issue of such</p> <p>child the undivided one-half part of my estate- then remaining.” It was further provided that “ in ease of the death of both of Said children before arriving .at the age of twenty-one years- or after arriving at said age without leaving lawful issue, then I give * ":i untó their rela-</p> <p>tives on their father’s side, the property then remaining.” The next paragraph empowered the trustees “ to transfer and turn over unto my said sons in equal shares the whole of my said estate then remaining, or to either son a one-half part thereof, to be Ms absolutely, at any time af ten they shall arrive at the age of thirty years, and in the judgment of my-’said executors it would he for the best interest of said child or children to make such disposition thereof.” The younger son died during his minority without issue, and without receiving any portion of the corpus. The other son survives and .being over thirty years of age claims his brother’s share.</p> <p>Held, that if the surviving son should also die without issue, the • father’s relatives would take, so that there is an outstanding remainder in them which prevents payment to the surviving son; that in the meantime the trustee holds the property to pay the income to said son and to pay the corpus- to the father’s relatives if the said contingency should happen.</p>

<p>Appeal from a judgment of the Appellate Division of the • Supreme Court in the second judicial department, entered July-31, 1913, affirming' a judgment in favor of defendants- entered upon a dismissal of the complaint by the court on trial at Special . Term.</p> <p>The nature of the action and the facts, so- far as material, are stated- in the o-pinion.</p> <p>The court at Special Term erred in striking out the testimony of the witnesses Flynn, Devlin and Leddy. The testimony should not have been stricken out as privileged, because the evidence did not warrant the conclusion that the communications of Mrs. Wallace to the attorney acting for both herself and her husband were intended to be confidential as to her husband. (McCulloch v. Hoffman, 73 N. Y. 616 ; Kent v. Harcourt, 33 Barb. 491 ; Jackson v. Woolsey, 11 Johns. 445 ; Mowell v. Van Buren, 77 Hun, 569.) If two persons are cognizant of a communication to an attorney of a matter involving a matter of common interest, the communication is not privileged in a litigation between those two persons involving that matter. (Hurlburt v. Hurlburt, 128 N. Y. 420 ; Sherman v. Scott, 27 Hun, 331 ; Britton v. Lorenz, 45 N. Y. 51 ; Sandiford v. Frost, 9 App. Div. 44 ; Mertens v. Wakefield, 35 Misc. Rep. 508 ; Doheny v. Lacy, 168 N. Y. 213 ; Rosenberg v. Rosenberg, 40 Hun, 91 ; Smith v. Crego, 54 Hun, 22 ; Green v. Green, 58 Hun, 251.) If two persons are, at the time- of its making, -cognizant of a , communication by one of them to- his attorney, which does not involve a matter of common interest, the communication is not privileged in any litigation. (Baumann v. Steingester, 213 N. Y. 328 ; Matter of McCarthy, 55 Hun, 7 ; Matter of Simmons, 48 Misc. Rep. 484 ; Lecour v. Importers & Traders Bank, 61 App. Div. 163 ; People v. Buchanan, 145 N. Y. 1.) The error in striking out this evidence was highly prejudicial. (Edson v. Parsons, 155 N. Y. 555 ; Rastetter v. Hoenninger, 214 N. Y. 66 ; Orford v. Walpole, 3 Ves. 402.)</p> <p>The court did not err in striking out the testimony of witnesses, clerks employed hy the attorney.who drew the will of May 18, 1894. (Code Civ. Pro., § 835 ; Matter of Cunnion, 135 App. Div. 864 ; Loder v. Whelpley, 111 N. Y. 239 ; Matter of Coleman, 111 N. Y. 220 ; B. M. E. Church v. Brooks, 143 App. Div. 685 ; Matter of Young, 14 A. & E. Ann. Cas. 596 ; Rintelen v. Schaefer, 152 App. Div. 727.) A judgment cannot be reversed for error in rejecting admissible evidence where the evidence if received would not have changed the result; such an error being harmless. (Matter of Rice, 81 App. Div. 223, 176 N. Y. 223 ; Prime v. City of Yonkers, 131 App. Div. 110 ; De St. Laurent v. Slater, 23 App. Div. 70 ; McSorley v. Hughes, 58 Hun, 360 ; Matter of Turner, 208 N. Y. 261 ; Horn v. Pullman, 72 N. Y. 269 ; Post v. B. H. R. R. Co., 195 N. Y. 62.) Appellants would not be entitled to judgment without reference to extrinsic proof of the contract alleged in the complaint, even if the contents of the will of Juliet Wallace of May 18, 1894, had been proved. (Rastetter v. Hoenninger, 151 App. Div. 853 ; Edson v. Parsons, 155 N. Y. 555 ; Driscler v. Van Den Hinden, 17 J. & S. 508 ; Miller v. Hill, 64 Misc. Rep. 199, 137 App. Div. 378, 203 N. Y. 654 ; Everdell v. Hill, 27 Misc. Rep. 285 ; Walpole v. Orford, 3 Ves. 402 ; Mahany v. Carr, 175 N. Y. 454 ; Rankin v. Simpson, 19 Penn. St. 471.) The Appellate Division having unanimously sustained the findings of fact of the Special Term, that the plaintiffs had failed to prove the contract alleged in the complaint, the error, if any, of the Special Term in striking out admissible testimony is not reversible error. (Matter of Cameron, 47 App. Div. 120, 166 N. Y. 120 ; Kearney Co. v. Irvine, 126 Fed. Rep. 689 ; Kimbo v. Cont. Ins. Co., 101 Tenn. 245.) In an action in equity for the specific performancé of a contract, the plaintiff must prove by full, clear, definite, satisfactory and indubitable evidence, first, the making of the contract; second, all the terms and conditions of the contract, specifically and distinctly, leaving none of them incomplete or in doubt or uncertain. The court cannot act on conjecture or compel the performance of a contract vague,in its terms. (Winne v. Winne, 166 N. Y. 263 ; Tousey v. Hastings, 127 App. Div. 94 ; Holt v. Tuite, 188 N. Y. 17 ; Everdell v. Hill, 58 App. Div. 151 ; Pattat v. Pattat, 93 App. Div. 104 ; Rosseau v. Rosseau, 180 N. Y. 166 ; Crouse v. Frothingham, 97 N. Y. 105 ; Sarasohn v. Kamasky, 120 App. Div. 110 ; Gouge v. Gouge, 26 App. Div. 154 ; Dunckel v. Dunckel, 141 N. Y. 427.) In an action in equity for the specific performance of an oral contract alleged to have been made by a deceased person that his will shall not be changed or revoked, such contract must be clearly, definitely and fully established by the-clearest, most-convincing, most indisputable evidence. (Edson v. Parsons, 155 N. Y. 555 ; Wilson v. Heath, 23 Misc. Rep. 714, 718 ; Cross v. Cleary, 20 Ont. 542 ; Russell v. Sharp, 192 Mo. 270 ; Wilson v. Toothaker, 18 A. & E. Ann. Cas. 1190 ; Shaw v. Schoover, 130 Ill. 449 ; Kirk v. Middlebrook, 201 Mo. 245 ; Wood v. Chapin, 13 N. Y. 509 ; Josslyn v. Rockwell, 59 Hun, 129 ; People v. Stephenson, 11 Misc. Rep. 141 ; Hast v. Carroll, 85 Penn. St. 508 ; Allison v. Burns, 107 Penn. St. 50 ; Highlands v. P. & P. R. Co., 209 Penn. St. 286.) Alleged declarations of Juliet Wallace made May 14, 1894, to James P. Hoyt, and before the execution of wills of May 18, 1894, are not admissible in evidence to contradict the terms of the will of James P. Wallace or to show that the absolute gift to Mrs. Wallace and to her heirs forever was conditional. or in trust. (Throckmorton v. Holt, 180 U. S. 552 ; Stevens v. Van Cleve, 5 Wash. 569 ; Williams v. Freeman, 83 N. Y. 561 ; Dau v. Brown, 4 Cow. 453 ; Sugden v. St. Leonards, L. R. [1 P. D.] 154 ; Hammersley v. Lockman, 2 Dem. 524 ; Marx v. McGlynn, 88 N. Y. 357 ; Matter of Burbank, 104 App. Div. 312 ; Rothschild v. Goldenberg, 103 App. Div. 235 ; Underhill on Wills, § 220 ; White v. Hicks, 33 N. Y. 383 ; Jackson v. Kniffin, 2 Johns. 31 ; Matter of Kennedy, 167 N. Y. 163.) Declarations óf James P. Wallace alleged to have been made to Miss Whitcomb after the date of his will are not admissible in evidence. (Throckmorton v. Holt, 180 U. S. 552 ; Matter of Burbank, 104 App. Div. 312 ; Cromer v. Pinckney, 3 Barb. Ch. 466 ; Johnson v. Cole, 178 N. Y. 364 ; Kelly v. Home Sav. Bank, 103 App. Div. 141 ; Schelps v. Bowery Sav. Bank, 97 App. Div. 434 ; Augermiller v. Ewald, 135 App. Div. 691 ; Eighmey v. People, 79 N. Y. 546 ; Jones on Ev., § 345 ; Sanford v. Ellithorp, 95 N. Y. 53 ; Tierney v. Fitzpatrick, 195 N. Y. 433.) Declarations of Mrs. Wallace made after the death' of James P. Wallace are not admissible to affect the title of Mrs. Wallace to the property given to her absolutely by thq will of her husband. (Gibney v. Marchay, 34 N. Y. 301 ; Jackson v. Shearman, 6 Johns. 19 ; Jackson v. Vosburgh, 7 Johns. 186 ; Baird v. Slaught, 28 N. Y. S. R. 667 ; McDuffie v. Clark, 39 Hun, 166 ; Dodge v. Freedman S. & T. Co., 93 U. S. 379 ; People v. Holms, 166 N. Y. 540 ; Sanford v. Sanford, 61 Barb. 293 ; Barnes v. Taylor, 27 N. J. Eq. 259.)</p>

<p>Special proceeding—Proceeding to obtain will alleged to have been</p> <p>EXECUTED SUBSEQUENT TO THE WILL ADMITTED TO PROBATE—WHEN ORDER of Appellate Division affirming order of surrogate- is final order AND APPEALABLE TO COURT OF APPEALS-.</p> <p>1. Where a will of a decedent has been admitted to probate and a proceeding is afterwards commenced in the Surrogate’s Court upon the petition of an heir at law asking for an order requiring a certain person to show cause why he should not produce a will alleged to have been executed by decedent, subsequent to the will admitted to probate, which is alleged to he in his possession, such proceeding is an independent special proceeding, and hence an order of the Appellate Division affirming an order of the Surrogate’s Court vacating the order to show cause is a final order in such proceeding and is appealable to the Court of Appeals.</p> <p>¡Same—WheIn petitioner interested in estate sufficiently to maintain PROCEEDING.</p> <p>2. Decedent, by a will which has been admitted to probate, gave all of -his property to the Metropolitan Museum of Art. Subsequently the heirs at law and next of kin of deeendent entered into an agreement with -the museum- by which, in consideration of a certain sum paid to them, they released to the museum all right, title and. interest in and to any property of decedent which they had or might have. Thereafter a proceeding was commenced in the Surrogate’s Court by a brother of decedent upon a petition asking for an order requiring a designated person to show cause why he should not produce a will alleged to have been executed by decedent, subsequent to the will which had been admitted to probate, which was alleged to be in his possession, and the Surrogate’s Court made an order which required the production of the alleged will. This order was reversed by the Appellate Division. Thereafter a sister of decedent filed a petition claiming to be interested in the estate, making substantially like allegations as those made by her brother. Upon this petition she obtained an order requiring such person to show cause why he should not produce the will of decedent alleged to be in his possesion. Upon the hearing upon said order and petition and opposing affidavits, the Surrogate’s Court vacated and set aside the order, although petitioner stated that she was prepared to offer additional testimony concerning the existence of said will. The surrogate recited as authority for such decision the opinion of the Appellate Division in the proceeding previously instituted by the brother of the petitioner herein. Held, error; that the petitioner was in no way a party to the proceeding • commenced by her brother and is not bound by the decision therein; that, although the petitioner is bound by the agreement with the Museum of Art until it is successfully attacked, she is interested in the estate of decedent (Cole Civ. Pro., §§ 2607, 2768, subd-, II), her interest being contingent upon the production and probate of the alleged subsequent will and upon the annulment of the contract with the Museum of Art.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July-14, 1915, in favor of defendant upon the submission of' a controversy under section 1279 of the Code of Civil Procedure.</p> <p>The nature of the controversy and the facts, so- far as material, are stated in the opinion.</p> <p>The executors had full and complete title, power and authority to transfer these lands to any one, and' by transferring the same to the Schoellkopf Holding Company they vested in that company full and- complete record title. (Albany Ex. Savings Bank v. Brass, 59 App. Div. 370, 171 N. Y. 693 ; Anderson v. Blood, 152 N. Y. 285.) The decree -of the surrogate passing and -settling the accounts of the executors of the Jacob F. Schoellkopf estate, based so far as the interest of Alfred Schoellkopf therein is concerned, upon the payment -to and the release by Alfred’s executors of that distributive share is final and conclusive upon that interest. (Salisbury v. Slade, 160 N. Y. 278 ; Greenland v. Waddell, 116 N. Y. 234 ; Stagg v. Jackson, 1 N. Y. 206 ; Matter of Wagner, 119 N. Y. 28.) The agreement of the 12th of September, 1901, was- valid and effectual and required -these lands to be sold and disposed of in the manner that they were. (Matter of Wagner, 119 N. Y. 28 ; Matter of Hodgman, 11 App. Div. 344.) The agreement of September 12, 1901, in equity operated to convert all of the interest in this land into stock of the company so to- be formed; hence the carrying out of that agreement by the trustees and the delivery of stock therefor was not a breach of trust. (Williams v. Haddock, 145 N. Y. 144 ; De Barante v. Gott, 6 Barb. 492.) The trust created for the wife and children of the testator’s son Louis was in no manner interfered with; the only thing done was to invest in the capital stock of the plaintiff company rather than in other securities, all of which was not only originally consented to, but after the expiration of the trust the interested parties, with full knowledge, released the trustees. (Woodbridge v. Bockes, 59 App. Div. 504, 170 N. Y. 596.)</p> <p>The executors and trustees had no power to convey the lands and premises involved, except pursuant to a bona fide sale and for a valuable consideration in the„ form o-f cash or its equivalent. (1 Jarman on Wills [6th ed.], 917 ; 2 Underhill on Wills, 1119, § 783 ; Griswold v. Caldwell, 65 App. Div. 371 ; Adair v. Brimmer, 74 N. Y. 539.) The conveyance by these executors and trustees to plaintiff “ holding company ” was, in effect, merely a transfer or delegation of their own powers and responsibilities as trustees to- another, and is condemned by law and void. (2 Underhill on Wills, 1124, § 784 ; O’Connor v. Waldo, 83 Hun, 489, 158 N. Y. 672.) The conveyance to plaintiff is void 'because it violates the scheme- of t-he- will, and defeats the trust created for the-wife and children of the testator’s son, Louis. (2 Heaton on Surrogates’ Courts, 1330 ; Matter of Ungrich, 201 N. Y. 415 ; Stringer v. Young, 191 N. Y. 157 ; Dale v. Guaranty Trust Co., 168 App. Div. 601.) The new agreement of July, 190-6, is absolutely void because the infant children of Alfred Schoellkopf were not, and were incapable of being, parties; because the executors of Alfred Schoellkopf had no legal authority to execute it; because its effect is to utterly defeat and annihilate the intention of the testator and the specific provisions of the will; and because the children of Louis Schoellkopf were under the age prescribed in Jacob’s will. (Turco v. Trimboli, 152 App. Div. 431 ; Matter of Evans, 82 Misc. Rep. 193 ; Matter of Easterly, 202 N. Y. 466.)</p>

<p>Will—Action to revoke probate—Undue influence—Evidence—Trial— Finding by jury on specific question—Special term—Authority to</p> <p>VACATE ORDER SETTING ASIDE VERDICT.</p> <p>In an action under former section 2653a of the Code of Civil Procedure, by the only child and1 heir at law of the testator, to have adjudged invalid an instrument which had been admitted to probate as his last will and testament, upon the grounds of lack of testamentary capacity, undue influence and fraud, it appeared that the testator when between seventy-five and eighty years of age, after the death of two wives, left the place where he had always lived and came to live with a widow whom- he married shortly afterwards. A few weeks later, while very sick in bed, he made the alleged will, leaving all his- property to the widow for life, but with absolute power to disposition, with remainder over -to her children. Two days later another will was made in which $100 was- bequeathed to the plaintiff and: the rest of the estate to the widow in the manner provided in the first will, which was -then destroyed.</p> <p>Neld, on all the evidence, that an order setting aside a verdict in favor of the plaintiff and directing a new trial should be reversed and the verdict reinstated.</p> <p>Questions as to the three grounds upon which the will was sought to be declared invalid were presented to the jury, with a request for written answers, but they returned to the court without writing the answers, and it appeared from the statement of the foreman and several of the jurors that they had agreed to answer the first and second questions in the affirmative, and had not been able to agree as to the third. Upon their second return, they had written the answer “ No ” to the first question, and upon the apparent inconsistency of this answer with their formal oral answer being called to their attention, they declared that they intended to find testamentary capacity. It appeared that they had answered the second question as to undue influence in the affirmative, and that they gave the same answer upon their third return. There was no confusion among them as to the question of undue influence. Held, that the trial justice was in error in setting aside the finding of undue influence.</p> <p>A Special Term has' no power to grant a motion vacating an order setting aside a verdict, after the end of the Trial Term in another county at which the verdict was rendered.</p>

<p>Surrogate of Queens county—Eight to compensation for drawing JURCffiS UNDER SECTION 26 OF JUDICIARY LAW-PUBLIC OFFICERS-EXTRA COMPENSATION FOR ADDITIONAL SERVICES.</p> <p>The surrogate of the county of Queens is not entitled to compensation for the drawing of jurors under section 26' of the Judiciary Law providing for compensation “ to each, judge, including each justice of the Supreme Court, for the services performed by him in connection with the drawing of jurors,” notwithstanding the provisions of the Code of Civil Procedure for the drawing of jurors for services in the Surrogate’s Court.</p> <p>Additional services required of an officer in the discharge of his office do not afford' to him the right of additional compensation, and there arises no implication that there was legislative intent to requite for such services. Eight to such additional compensation must appear in the plain expression of the statute.</p>

Appeal by the plaintiff, Blanche L. Lightfoot, from an order of the Supreme Court, made at the Kew York Special Term and entered in the office of the clerk of the county of Kew York on the 20th day of September, 1915, granting the motion of the defendants herein, except the defendant Rosemary Kane, for judgment on the pleadings dismissing the complaint.

Appeal by the plaintiff, Leon. Mitchell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 19 th day of March, 1915, dismissing the complaint on the merits upon the decision of the court after a trial at the Hew York Special Term.

<p>Appeal by the defendant, L. Baffin Kellogg, as executor, from a judgment of the Supreme Court in favor of the plain a iff, entered in the office of the clerk of the county of New York on the 28th day of May, 1915, as. amended by an order entered in said clerk’s office on the 14th day of June, 1915. ¡</p> <p>The judgment was entered upon the report of a referee appointetd to hear and determine the issues.</p>

<p>Appeal by the petitioners, William H. Wood and another, from an order of the Surrogate’s Court of the County of Kings, entered in said Surrogate’s Court on the 5th day of April, 1915.</p>

<p>Executors and administrators—Trust—Liability of estate for payment OF LEGAL SERVICES RENDERED TO TRUSTEES.</p> <p>The obligation of a trustee or an executor for services rendered by an •attorney to him as such trustee or executor imposes no obligation upon the estate, but is an individual obligation of the trustee or executor employing the attorney, which, in a proper case upon the settlement of the accounts of the.trustee or executor, may be allowed to him out of the estate.</p> <p>Hence, where an attorney has been retained by a trustee to resist an application for his removal and has been successful therein, but his services have no contract relation to the property of the estate, the court has no jurisdiction either at law or in equity to decree that the payment for such personal services rendered to the trustee shall be a charge upon either the principal or income of the estate.</p> <p>McLaughlin and Scott, JJ., dissented.</p>

Appeal by Thomas 0. Reid and another, as trustees, from a decree of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the 26th day of July, 1915, judicially settling the intermediate account of said trustees. An appeal is taken from said decree in so far as it disallows an investment made by said trustees, and charges them with the amount of such investment as so much cash in hand.

<p>Will construed—Provision that the share of devisee who dies before TESTATOR SHALL GO TO SURVIVING BROTHERS'—PRESUMPTION AGAINST INTENTION TO CREATE INTESTACY.</p> <p>Action for partition involving the construction of a will .devising real estate. The testator gave a business carried' on by him to his three sons in equal shares, -with a provision that the share of any son who should! die before the testator should go to his surviving brothers. The devise to one son, W., was made upon the condition that he give up the use of intoxicating liquors', the share to go eventually to the other brothers if he failed to do so, with a further provision that if W. should die within five years, leaving issue him surviving, the income of his share should go to the issue for five years and thereafter to the surviving brothers. The daughters of the testator were entirely excluded from any interest disposed of by this clause of the will.</p> <p>The daughters, however, were provided for in a subsequent clause which the will stated was intended! to effect “ an equal distribution ” of the estate among the testator’s child¡ren. By a subsequent clause the testator gave to his grandson, whose mother had died prior to the making of the will, a legacy of a specific sum of money and then iby the residuary clause made a division of the residue among his other children, their issue, if any, to take the parent’s share per stirpes, in' case the parent was not living at the testator’s death. There was a similar provision making W.’s share in the residue contingent upon his giving up the use of intoxicating liquors. W., however, died without issue before the' testator.</p> <p>Held, that the testator did not intend to create an intestacy as to W.’s share if he died before the testator, and, hence, the grandson of the deceased daughter did not share in W.’s portion, which passed, on the contrary, to his surviving brothers and sister.</p> <p>A will will be so construed as to avoid intestacy, if possible.</p> <p>Laughlin and Dowling, JJ., dissented.</p>

Appeal by Enoch G. Megrue, as trustee, from an order and decree of the Surrogate’s Court of the county of Lew York in favor of the petitioner, entered in the office of said Surrogate’s Court on the 18th day of October, 1915.

Appeal by the Real Estate Title Insurance and Trust Company of Philadelphia and another, as trustees, and by others from parts of a decree of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the 6th day of August, 1914.

<p>Appeal by Katherine Major, individually and as administratrix with the will 'annexed of Annie V. McMahon, deceased, and others, from parts of a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s. Court on the 6th day of March, 1915, directing the distribution of the estate of Bryan McOahill, deceased.</p>

<p>Appeal by Katie H. Finck, individually and as executrix, etc., from a decree of the Surrogate’s Court of the county of Kew York, entered in the office of said Surrogate’s Court on the 24th day of Kovember, 1914.</p>

<p>Decedent’s estate—Claim fob board and lodging furnished intestate —Presumption as to board furnished by son-in-law—Evidence not JUSTIFYING RECOVERY. ,</p> <p>In order to entitle a son-in-law to recover from the estate of his mother-in-law moneys alleged to he due for board and lodging furnished to the -decedent, a contract to pay therefor must be established1, either by written evidence, or, if established by parol, it must be by the testimony of disinterested witnesses, or the contract must be- corroborated by them in all substatial particulars.</p> <p>Where a son-in-law receives his mother-in-law into a home occupied by himself and his wife, the law does not imply an obligation on her part to pay for board and lodging.</p> <p>Evidence examined, and held, that such claim for the value of board and lodging was not sustained in that it was not asserted- during the lifetime of the intestate, etc.</p>

Appeal by the defendant, Thomas Oarmody, as Attorney-General, from an order of the Supreme Court, made at the Ontario Special Term and entered in the office of the clerk of the county of Ontario on… Held: that the motion was properly denied upon the merits for the reasons, 'stated in the opinion of Mr. Justice Clark ; also for the reason that such a motion cannot be made in this action after judgment.

<p>Banks—Decedent’s estate—Transfer of savings bank deposit to EXECUTOR ON DEMAND-PERSONAL LOAN TO EXECUTOR ON SECURITY OF PASS book—When no implied trust in favor of legatees—Failure to show negligence or bad faith—Lien of lender is prior to right of legatee.</p> <p>Where the executor presents the- surrogate’s certificate appointing him as -such and also a waiver from the attorney for the state comptroller to a savings hank in which the testator had a deposit and! has the account represented by a new pass' book transferred to his own name, the legatees after the insolvency of .the executor cannot recover in an action- against another bank which- made a personal loan to the executor secured by an assignment of the funds' represented- by the pass hook bearing his name, on the theory that the fund's were impressed with a trust in favor of the unpaid legatees', there being no proof showing bad faith on the part of the hank which made the loan.</p> <p>Where- the lending bank, being made codefendant with the hank issuing the pass hook, interposed no answer asking relief against its codefendant, and the latter merely prayed that the rights- of the parties to the fund in question be determined, the decision should be limited to the determination of that question, and no relief can he given in favor of the lender against the bank issuing the pass hook.</p> <p>As an executor as such takes unqualified -legal title to all the personal property of his testator not -specifically bequeathed, and- a qualified title to that which is- so- bequeathed, the bank of deposit was justified in issuing to the executor a pass book in his own name instead of paying over to him the actual cash, and hence the legatees as against it are only entitled to a judgment impressing a trust m their favor upon the balance of such account remaining after the lien of the bank which made the loan- has been paid, there being no proof of had faith on, the part of either institution.</p>

Appeal by the defendants, German Exchange Bank and another,,from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 4th day of June, 1913, upon the decision of the court after a trial at the Hew York Special Term.

<p>Separate appeals by the plaintiff, John IT. Hughes, and the defendant, John H. Stoutenbu-rgh, as trustee, from an int-erloctory judgment of the Supreme Court in favor of certain of the defendants-, entered in- the office of the clerk of the county of Hew York .on the 26th day of June, 1914, upon the decision of the court after a trial at the Hew York Special Term.</p>

<p>Sepakate appeals by the plaintiff, Hattie G. Frankel, and the defendant, Charlotte Rosenbaum, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county -of Hew York on the 18th day of August, 1914, upon a decision of the court after a trial at the Hew York Special Term.</p>

<p>Will—Construction.*</p> <p>A testatrix in one paragraph of her will gave to each of the surviving sons (Frank and1 William) of her brother $1,000, to-be paid from her personal estate or from rentals of her real estate, and in said paragraph directs how the legacy to Frank is to be paid. In the next paragraph of her will she gave $1,000 in trust for the support and maintenance of William. Provisions of the will construed, and Held, that the testatrix intended that the legacy given to William by the first paragraph should be held in trust for him under the next paragraph, and that he should not receive $1,000 and an additional $1,000 in trust under the second paragraph.</p>

<p>Appeal by William Ziegler, Jr., from part of a decree of the Surrogate’s Court of the county of Hew York, entered in- the office of said Surrogate’s Court on the 1st day of May, 1914, settling the accounts of the executors of and trustees under- the last will and testament of William Ziegler, deceased.</p>

<p>Decedent’s estate—Jurisdiction of surrogate—Conflicting claims to' SAVINGS BANK DEPOSIT-WHEN DECREE OF SURROGATE NO BAR TO ACTION.</p> <p>The Surrogate’s Court has no- jurisdiction to -determine whether a savings bank deposit formerly owned by a decedent belongs to his estate or to a claimant to whom it is alleged- he assigned it during his lifetime. Hence, although the representative of the deceased included the amount of said deposit in her acocunts which were judicially settled and allowed by the surrogate, -such decree is not a bar to an action brought by the other claimant against the savings -bank to recover the amount of the deposit.</p> <p>The claimant to the deposit was not obliged to raise the issue- as to her ownership in the Surrogate’s Court by objecting to the account of the representative.</p>

<p>Wills—Probate of—Renunciation of appointment as administrator WITH WILL ANNEXED-VACATION OF JUDGMENT ISSUED OUT OF SURROGATE’S Court—Supreme Court—Motions and orders.</p> <p>After the probate of a will the executor renouneedl his- appointment and letters of administration with the- will annexed were issued to the sole devisee and legatee under the will. Later a transcript of the decree of probate, by which an allowance of costs was made to one who appeared in person and by attorney in the proceeding and produced another alleged will of deceased, was filed in the proper county clerk’s office and docket thereof was entered in the judgment book in said office against “ Judgment debtor Estate of Margaret McTevey.” Under an execution issued out of the Surrogate’s Court for the collection of said judgment for costs the sheriff levied upon all the rights, title and interest that said devisee and legatee had on the day of the filing of the transcript of the decree of probate in certain lands formerly belonging to testatrix, and advertised them for sale by virtue of such execution. On motion by the legatee and devisee to vacate such execution and from an order restraining the sale of said premises on the ground that said executor and notice of sale were irregular and void and that no judgment was ever rendered or entered against said legatee and devisee, it appeared that a previous motion for similar relief made in the Supreme Court was denied with costs upon the ground of lack of jurisdiction in the court to act in the premises. Held, that a preliminary objection that because of the non-payment of costs in the motion in the Supreme Court the motion to vacate the execution could not be heard until the expiration of ten days from the entry of the order awarding motion costs was untenable, and a further contention that section 779 of the Code of Civil Procedure does not apply because the order awarding cost® was made by the Supreme Court and, therefore, does affect the present proceeding in the Surrogate’s Court is also untenable.</p> <p>A further preliminary objection to the hearing of the motion to vacate execution upon the ground that the order to show cause by which the application was instituted was granted by a county judge of an adjoining county was obviated by the making of an order by the surrogate on the return of the order to show cause returnable forthwith upon the motion papers.</p> <p>As the devisee and legatee under the will was not at the time of the granting of the decree of probate a representative or prospective representative of the estate no docket could properly be made against her individually in the county clerk’s office upon the decree of probate nor could any execution be issued against her personally upon such decree, and her motion to vacate should be granted, with costs, in case the costs of the former motion in the Supreme Court are paid within three days after service of the order to be entered thereon, otherwise the application should be dismissed with costs of the motion with leave to renew the same on payment of costs of all proceedings.</p>

<p>Taxes—Transfer tax—Trusts—Tax Law, § 221.</p> <p>A devise and bequest of property to a domestic incorporated village in trust for the benefit perpetually of the worthy indigent women of the town in which the village is located comes under both the spirit and the letter of section 221 of the Tax Law providing exemption to charitable and benevolent institutions, and is not subject to a transfer tax.</p>

<p>CrUARDIANS*-INFANTS—APPLICATION FOR LETTERS OF GUARDIANSHIP-Burden of proof—Establishment of relationship—Preference as • to relationship.</p> <p>Two proceedings were brought by the petitioner claiming to> be a distant relative of the decedent, the father of the infants, and praying that letters of guardianship issue to her. The petitioner alleged in each proceeding that she became the custodian of the infants at the request of the infants’ father and in accordance with the wishes of the infants’ deceased mother who predeceased their father. The applications in each case were opposed: by the paternal uncle of the said infants. It appeared that the father of the infant had' boarded with the petitioner for about seven years and up to the time of his death. During all these times, he paid for board and lodging for himself and children in the petitioner’s home. Prior to the commencement of these proceedings, a paternal aunt of the infants in question and of another infant child of the decedent filed petitions praying for the appointment of said paternal uncle of the infants as the guardian of the persons and estates of the three children, two of whom only are involved in this proceeding. All of the relatives of the infants in question within this State consented to the last mentioned appointment. Upon the evidence the applications were denied, the guardianship of the infants’ estates was awarded to the respondent and that of their persons to a paternal aunt and it was:</p> <p>Held, (1) . that the burden of proving the status of petitioner in this proceeding as a relative ■ of decedent was upon her; that she has not sustained this burden and that no relationship exists between the petitioner and the infants; that it is well settled that all things being equal relatives are to be preferred to strangers in applications of this character, and' therefore the petitioner should not he preferred upon the ground of . relationship;</p> <p>(2) That weight should be given to the wishes of deceased parents in deciding questions of guardianship, and as the evidence of such expressed wishes appears clearly to preponderate in favor of the contention of the respondent to the effect that the father desired the uncle of' the infants to take care of them in case of his death and that he anticipated taking the two infants to one of their aunts in. the city of Syracuse; therefore the petitioner should' not receive a preference;</p> <p>(3) In matters of this character, relationship and. even the expressed desires of the parents must give way to the rule that the welfare of the child must be the guide in matters affecting the latter’s guardianship; and the conclusion reached that the petition should not be granted upon this ground;</p> <p>(4) The court is not limited in appointing a guardian of an infant to naming the person for whose appointment the petition prays.</p>

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

<p>Application by administrator with the will annexed authorizing him to sell certain real estate.</p>

<p>Proceeding under section 2685 of the Oode of Oivil Procedure for the sale of property.</p>

<p>Attorneys—Proceeding in Surrogate’s Court in relation to an estate —When attorney cannot be compelled to disclose administrator’s address—Executors and administrators.</p> <p>Where there is no proceeding pending in a Surrogate’s Court in relation to an estate, one not shown to be the attorney for the administrator cannot be compelled to disclose the latter’s address on the petition of a creditor of the estate.</p>

<p>Domicile—Presumption that domicile op origin continued—Wills.</p> <p>Where decedent, who in his will described himself as a resident of Rhode Island, on becoming an invalid came to the State of New York for treatment and on account of being in no condition to be removed to his home in Newport remained in the State of New York until his death some years later, the evidence is insufficient to overcome the presumption that his domicile in Rhode Island where he was born continued and was his last domicile.</p>

<p>Application under section 2650, Code of Civil Procedure, for an order dispensing with security by the guardian of an infant.</p>

<p>'Executors and administrators—Duties op—Who- entitled to certain stock—Decedents’ estates—Actions—Accounting.</p> <p>Where decedent, a stock broker, held stock purchased by him for account of petitioner as security for the payment of the balance of the purchase price and it is unpaid at the time of the decedent’s death, the -title to the stock is in decedent.</p> <p>In case the administratrix fails to perform the contract for the purchase and delivery of the stock in question, the petitioner has a cause •of action against her on a claim against decedent’s estate enforcible in an appropriate tribunal or determinable upon the judicial settlement -of the account of the administratrix, but the court cannot direct her to purchase and deliver to petitioner the securities claimed by him as the effect will be to create a preference over other creditors of the estate.</p>

<p>Appeal from an order entered upon an appraiser’s report.</p>

<p>Lunatics—Presumption " in favor of sanity—Rule as to change of domicile—Domicile—What evidence necessary to establish domicile —When adjudication binding on Surrogate’s Court—Evidence.</p> <p>Where, without determination as to -the sanity of an inmate of an asylum for the insane, she was discharged and permitted to go at large, the presumption is in favor of a resumption of sanity and that she was again sui juris to all intents and purposes.</p> <p>The rule is that every person sui juris is free to choose his domicile and change it at his- pleasure.</p> <p>Where one since deceased' while- a resident of California brought a suit therein in a -court of competent jurisdiction in- which it was determined that her last domicile was in that State, such adjudication is binding upon the Surrogate’® Court in this State under the full faith and credit clause of the Constitution of the United States-.</p> <p>The fact that a decedent resided in California continuously for the last two years of her life, and that on her death the courts of that State granted administration upon her estate, sufficiently established her domicile in the State of California at the time of her death.</p> <p>Very little evidence of intent to take up a new domicile is necessary in the case of an unmarried woman or widow who continuously resides in a place far from her domicile of origin.</p>

<p>Surrogate’s Court—Contested probate—Trial by jury—Framing of issues.</p> <p>A surrogate is not bound by the findings of the jury in a contested probate proceeding.</p> <p>Whether a surrogate shall grant or refuse an application for an order for framed issues in a contested probate proceeding is a matter for the exercise of his discretion upon consideration of the circumstances of each particular case.</p> <p>The determination of the special issues for the jury in a contested probate proceeding is a part of the trial, and where the issues are to be framed in advance of the trial in the Surrogate’s Court of the county of New York they should be framed and settled only on regular notice of settlement as required; by section 970 of the Code of Civil Procedure, rule 31 of the General Rules of Practice and rule 7 of Practice of the Surrogate’s Court.</p>

<p>Executors and administrators—Amount agreed upon for services of ATTORNEY IN BRINGING ACTION FOR WRONGFUL DEATH OF INTESTATE— Services—Evidence.</p> <p>The amount agreed, upon between an administrator and his attorney for services in bringing an action to recover for the wrongful death of the intestate, investigating the facts and negotiating a settlement of the action, will be allowed the administrator upon the judicial settlement of his accounts, in the absence of evidence of fraud or that undue advantage was taken of the administrator.</p> <p>The testimony of members of the bar in answer to hypothetical questions as to the value of the services of said attorney, that the amount paid, him was excessive, is improper and incompetent; otherwise, had the claim been based upon the theory of a quantum meruit.</p>

<p>Decedent Estate Law, § 90*—Relatives of the half-blood—Intestacy.</p> <p>A decedent who died intestate seized of a farm which descended to him from his father left no widow or descendant, no brother or sister nor descendant of a deceased brother or sister, no paternal uncle or aunt nor descendant of any such deceased uncle or aunt. Held, that under section 90 of the Decedent Estate Law the decedent’s maternal and1 half-blood cousins took the inheritance.</p>

<p>Wills—Probate of—Consolidation of two proceedings—When jttbt trial granted.</p> <p>Where in both of two proceedings for the probate of distinct instruments executed on different dates as a last will and testament the parties are identical and no issues have been tried in either proceeding, an order for the consolidation of both proceedings may be granted in the- discretion of the surrogate.</p> <p>Where in the proceeding for the, probate of the earlier dated will a written demand for trial jury was made by the proponents and in the proceeding for the probate of the will of later date a demand for a jury trial in- the objections was filed on the return day of the citation, and the demand in each proceeding was made before any party had begun to try any controverted question of fact, the demands in both proceedings were seasonable, and an order 'will be granted consolidating both proceedings and granting a jury trial of the issues.</p>

<p>Wills—Pkovisions of—Who entitled to shake in residuary estate— Vesting.</p> <p>Where by the will of a testator who left him surviving no descendant his residuary estate was given in equal shares to such of the grandchildren of two deceased uncles, naming them, as should survive testator, one grandchild of each uncle, otherwise provided for by the will, being expressly excluded from sharing in the residuary estate, the children of any of the grandchildren of either.of said uncles are not entitled to share in the residuary estate, but the next of kin' of a grandchild of one of the uncles, who survived testator, are entitled to take the share which vested in their mother upon the death- of testator.</p>

<p>Guardians—Testamentary—Wills—Code Civ. Pro., §§ 1210, 2534.</p> <p>A “ party ” for whom under section 2564 of the Code of Civil Procedure a special guardian must be appointed means a, party to be cited under and pursuant to section 2610 of said code.</p> <p>An infant grandson of a testatrix and a cestui que trust trader her will, whose father is living is neither an heir at law nor next of kin of the testatrix, and where he is not designated in the will as an executor, testamentary trustee or guardian, he is not entitled to have service of the citation made upon him; neither is he a party to a proceeding to have the will admitted to probate.</p> <p>Where on the probate proceedings said infant who was upwards of eighteen years of age did not petition for the appointment of a special guardian and Ms general guardian did not appear for him, but due and timely service of' the citation having been made upon his father as testamentary trustee,., the proper party to he served on behalf of said infant and who appeared, it was not necessary to appoint a special guardian for the infant.</p>

<p>Pkoceedihg on judicial settlement of an executor’s account.</p>

<p>Peoceedis-gs for the judicial settlement of the administrator’s account.</p>

<p>Wills—Provisions of—Specific legacies—Mortgages—When specific LEGATEES ARE ENTITLED TO INTEREST FROM DATE OF DECEDENT'S DEATH.</p> <p>A will duly admitted to probate contained the following provision: “ Thirteenth. I give and bequeath the mortgage now held; by me on premises East 17th Street, Borough of Manhattan, City of New York, on which there is now unpaid the sum of 'Forty-five thousand1 ($45,009) Dollars, to my daughters Lena Smith and Elizabeth Ochse, absolutely, in equal shares, and share alike.” Interest had accrued upon this mortgage at the date of the decedent’s death, and the question was as .to the method' of the distribution of the interest which accrued between the interest date prior and that subsequent to the death of the decedent.</p> <p>Held, that the legacy of the mortgage was a specific legacy and that the specific legatees are entitled to interest from the date of the decedent’s death instead of from a date one year thereafter; that if a legacy is expressed in an amount, even though that amount be payable out of a sum secured by a bond and mortgage or evidenced by some other security, the accrued interest does not pass, but if the- security itself is bequeathed the specific legatee is entitled to sucn interest; and that the .specific legacy of the mortgage mentioned accordingly carried with it . the unpaid interest that accrued prior to decedent’s death as well as that which accrued thereafter.</p>

<p>Taxes—Transfer taxes—When transfer tax may be imposed—Double taxation—Tax Law, § 220(6).</p> <p>Under section 220(6) of the Tax Law, which provides that whenever ■a person shall exercise a power of appointment such appointment shall •be deemed a transfer taxable in- the same manner as if the property-belonged absolutely to the donee of the power, a transfer tax may be imposed upon property passing under a power of appointment exercised By a life tenant.</p> <p>The fact that such property was taxed as part of the estate of the donor of the power cannot prevent its taxation under said section of •the Tax Law; the remedy of those interested in preventing double taxation is by a modification of the order entered in the estate of the donor of the power.</p>

<p>Evidence—Upon hearing of disputed claim for services—When claim DISMISSED.</p> <p>Where, upon the hearing of a disputed claim for services in assisting a trained nurse who was in attendance upon decedent, there is no corroboration of claimant’s testimony that decedent told her that she would be paid for her services, and the conclusion that neither intended that any service rendered by claimant who was on a msit to decedent should he the subject of monetary remuneration receives added force from the fact that claimant who was a music teacher and was not a trained-nurse did not present a claim against the estate until nearly two years after decedent’s death, the claim will be dismissed except as to the amount of railroad expenses incurred by claimant which, as the evidence tended to show, decedent intended to pay.</p>

<p>Hearing upon a disputed claim.</p>

<p>Wills—Directions contained in—Division among “issue” per stirpes;</p> <p>Where a will directs that upon the death of testator’s son, the life beneficiary of the income of her residuary estate, the estate in remainder shall be divided among his “ issue ” per stirpes, it must be held that it was the intention of testatrix that the issue of any of the children of her son who predeceased him should take their parent’s share, as had testatrix intended to limit the distribution of the remainder to the children of her son who survived until the time of distribution it was reasonable to assume that she would have used the word “ children ” instead of “ issue ” and there would' have been no occasoin for the use of “ per stirpes.”</p>

<p>Taxes—Transfer tax—Report of tax appraiser as to rate of taxtion UPON LEGACY—DEDUCTIONS—EVIDENCE—TAX LAW, § 221a.</p> <p>Where a transfer tax appraiser reported that a legatee under the will was a grandniece of decedent and that the legacy should be taxed at the rate of five per cent., but the evidence shows that decedent for more than ten years immediately prior to her death stood in the mutually acknowledged relation of parent to the legatee within the meaning of section 221a óf the Tax Law, the legacy to her is taxable at the rate of one per cent.</p> <p>The tax appraiser should have deducted from the assets of decedent within the State of New York the- expenses of administration and commissions allowed by the laws of this State and also the proportion of the debts due to non-residents and administration expenses incurred in the State of decedent’s domicile which the net New York assets bore to the entire assets of the estate.</p>

<p>Executors and administrators—Power of sale contained in will— When order directins sale of real estate denied—Code Civ. Pro., §§ 2701-2718.</p> <p>Where executors may dispose of the real estate of their decedent under a valid power contained in the will, the procedure prescribed by sections 2701-2718 of the Code of Civil Procedure is neither necessary nor proper, and an application for an order directing a sale of said real estate, will be denied.</p> <p>Where there is a power of sale contained in a will the executors have a right to sell the real estate of their decedent and the proceeds will be regarded as personalty for the payment of debts and legacies.</p>

<p>Wills—Construction of—Devise to executors in trust—Legacy— Residuary estate—Application under Code Civ. Pro., § 2615.</p> <p>Where executors allege that it is impossible for them to pay any of the general legacies until it is determined whether they are a charge upon' the real estate, the surrogate will entertain an application under section 2615 of the Code of Civil Procedure for a construction of the will.</p> <p>Where at the making of her will by one who had no- immediate relatives and no one she would be under obligation to support the difference between the value of her personal property and the value of the pecuniary legacies bequeathed by her was so great as to render reasonably certain the conclusion that she then' knew that her personal- property was insufficient to pay the legacies, and she devises her real estate to her executors in trust to sell and divide the proceeds and the entire residuary estate into two equal shares one of which was given to a charitable corporation and the other to a friend, it will be held that it was the intention of testatrix that the general legacies should, so far as necessary, be paid out of the proceeds realized from the sale of the real estate of which she died seized.</p>

<p>Dower—When widow entitled to testamentary provisions in addition to dower—Wills—Devise to trustees op real and personal property WITHOUT POWER TO SELL OR MORTGAGE.</p> <p>A widow is entitled to dower ip addition to testamentary provisions in her favor unless it is clear from the will that she should not have both.</p> <p>Where testator gave his real and personal property to trustees without power to sell or mortgage the realty, but directed them to pay the net profits of the estate to his widow during her life or until her remarriage and the will expressly provides that in the event of her remarriage her interest in testator’s estate shall be limited to dower, she is entitled .both to dower and the testamentary provisions for her benefit.</p>

<p>Taxes—Assessing transfer tax—When Surrogate’s Court without JURISDICTION TO DECLARE ESTATE OF DECEDENT EXEMPT UNDER TRANSFER Tax Law.</p> <p>By the will of his father who died a resident of the State of New York the decedent herein who died a resident of New Jersey was given a power of appointment which he partly exercised. Under the Tax Law in force at the father’s death property over which a life tenant had a power of appointment was not taxable until the power was exercised or the remainder otherwise vested in possession when it was taxable as part of the estate of the donor of the power. The Surrogate’s Court, in which a proceeding to assess a tax upon the estate of the father was brought, ascertained the value "of the remainder after the life estate of decedent herein in the fund set apart for him by the will of his father and over which decedent had a power of appointment, and suspended taxation upon said -remainder. After the death of decedent herein a proceeding was "brought in the Surrogate’s Court of the county in which decedent’s father died, in the matter of the transfer tax upon the remainder of the trust created for the benefit of decedent .herein, his, appointees and remaindermen, and an order was entered assessing a tax upon that part of the remainder which was transferred to the appointees by virtue of the power of appointment exercised by decedent herein as well as that part which passed under the will of his father. The state comptroller appeared in said proceeding, consented to the entry of such order, accepted payment of the tax assessed thereby and issued- his receipt therefor. Held that this court was without jurisdiction on an application to declare the estate of decedent herein exempt from taxation under the Transfer Tax Law.</p>

<p>Appeal from order entered upon appraiser’s report.</p>

<p>Taxes—Transfer tax—Property passing under exercise of power of APPOINTMENT—REFUND OF TAXES—ESTATE IN REMAINDER,</p> <p>Upon the death of testator’s widow the property passing by virtue of her exercise of a power of appointment by will given by his will contingent upon her remaining his widow is subject to a transfer tax as a part of her estate.</p> <p>Where it appears that the contingent power of appointment has been exercised, the surrogate has power to modify an order fixing a tax upon the property as a part of the estate of the donor, but he has no jurisdiction to direct the state comptroller to refund the difference between the amount of tax assessed by the original order and the amount assessed by the modified order.</p> <p>The remainder estate passing as it did under the power of appointment and not under the original will was not subject to a transfer tax.</p>

<p>1 Proceeding to fix transfer tax.</p>

<p>Motion for an order transferring the issues in a contested, probate proceeding to a Trial Term of the Supreme Court pursuant to section 2538, Code of Civil Procedure.</p>

<p>Peoceeding upon the judicial settlement of the account of a trustee.</p>

<p>Wills—Contents of residuary devise—Lineal descendants—Executors AND ADMINISTRATORS.</p> <p>The residuary clause of testatrix’s will is as follows: “ All the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever the same may be situate, I give, devise and bequeath unto my executor hereinafter named, but in trust nevertheless, to invest the same in good interest bearing securities- within the United States of America, and to collect and pay over the net income to each of my three stepsons, * * *, for and during the period of their natural lives, in equal shares, one-third of said net income to each of my said stepsons, and which income shall be paid to- them quarterly in each year, such quarterly payments- to be computed and paid as, of and from the first day of January in each year. Upon the decease of my said stepsons, or either of them, I give, devise and! bequeath an equal one-third- of the principal of my -said residuary estate which may at that time be in the hands of my executor and trustee, unto the lawful issue of my said stepson- so deceased should he or they die leaving issue, but should he or they die without issue, or should such issue predecease him or them, then and in that event I give, devise and bequeath the equal one-third share of my said residuary estate to which his issue would have -been entitled, unto the survivor or survivors of my said stepson?, to be applied to the principal of their shares in equal parts, share and share alike; such bequest and devise in the event of the death of either of my said stepsons, should he or they die leaving issue, him or them surviving, to be paid, determined, set over and transferred to said issue immediately upon my stepson’s decease, but in the event that he or they die leaving no issue, him or them surviving, then such share shall be returned to, and added and applied in equal portions to increase the shares of my other surviving stepsons.”</p> <p>The husband-of testatrix predeceased her. She left no lineal descendants, her heirs-at-law and next of kin being two brothers, a -sister and two nieces none of whom was mentioned- in the will save one brother to whom a life annuity was given. On the judicial settlement of the account of the executor and trustee under the will it appeared that the trust estate consisted of personalty and that the beneficiaries thereof were living, two of them married, one having two children and the other none, the last. - one being unmarried.</p> <p>Held, that the residuary clause should be interpreted and construed' as follows:</p> <p>That it creates three separate and distinct trusts, one in favor of each-stepson, each being determinable according to its own terms; and, therefore, that there is no unlawful suspension of ownership.</p> <p>That each stepson is entitled to receive the income from his primary share, namely, one-th-ird of the residuary estate, as long as- he lives.</p> <p>That upon the death of the first stepson his issue, if he leave any, will' be entitled- to the principal of the share previously held in trust for him; and his personal representative will be entitled to any accrued income-then in the hands of the trustee; and if the said stepson shall leave no-issue him surviving, then and in that event the principal of his share shall be applied in equal parts to the principal of the shares of the two surviving stepsons, and therewith invested, and the surviving stepsons will he entitled to the income from said secondary shares so long as they live.</p> <p>That upon the death of the second stepson, his issue, if he leave any, will be entitled to the principal of his primary share, and his personal representative will be entitled, to any accrued income from either the-primary or secondary share then in the hands of the trustee; and the next of kin of the testatrix, as- in case of intestacy, will be entitled to-said- secondary share; and if the said stepson shall leave no issue him surviving, then and in that event his primary share -shall be applied to the principal of the share of the last surviving stepson and. therewith invested, and the last surviving stepson shall -be entitled to receive the income therefrom as long as he lives.</p> <p>That upon the death of the last surviving stepson, his issue, if he leave any, will be entitled to the principal of his primary share, and his personal representative will be entitled to any accrued income from either the primary or secondary shares then in the- hands of the trustee; and the next of kin of the testatrix, as- in case of intestacy, will be entitled to said secondary shares; and if the said stepson shall leave no issue him surviving, then and in that event the next of kin of the testatrix will, in like manner, as in cases of intestacy,' be entitled to the sa.id primary share.</p>

<p>Proceedings oil the judicial settlement of an administrator’s account.</p>

<p>Motion for reargument.</p>

<p>Taxes—Transfer tax—Assessing tax upon mortgage—What is sufficient PROOF AS TO VALUE OF MORTGAGE-APPEAL-EXECUTORS AND ADMINISTRATORS—Code Civ. Pro., § 2753.</p> <p>Where the report of a transfer tax appraiser contains no competent evidence of the value of a mortgage owned' by decedent at the time of her death, but the testimony shows that her executors foreclosed the mortgage and bid in the property at the sale for the ben.efit of the estate for the sum of $5,000, an order assessing a tax upon the mortgage at a valuation of $16,500 will be reversed and the report of the appraiser remitted for correction and the taking of further testimony as to the value of the mortgage, it appearing that he refused to allow material questions propounded by the executors to be answered.</p> <p>While an affidavit as to the value of the mortgaged premises may be considered, it is not in itself sufficient proof of the value of the mortgage which may be affected by the financial responsibility of the mortgagor, the length of time it has to run and the character and location of the mortgaged premises.</p> <p>A transfer tax appraiser upon a hearing to ascertain the value of a decedent’s estate should allow any question which tends to elicit information that may assist him in determining the value of the property, and a witness should be allowed to answer a question objected to, so that on appeal from an ordbr entered on the appraiser’s report the surrogate may consider the materiality of the answer.</p> <p>The fact that one of the executors, an attorney and counselor at law, represented the estate in his professional capacity, did not warrant the appraiser in refusing to allow expenses of administration as upon an accounting the surrogate may allow such an executor, under section 2753 of the Code of Civil Procedure, a reasonable sum as compensation for professional services rendered by him.</p> <p>The power of the surrogate, in such a case, to grant such an allowance is governed: by the law in force when the application therefor is made.</p> <p>The expense of foreclosing the mortgage is an expense of administration and should be deducted from the assets .of the estate.</p>

<p>Wills—Filing objections to probate—Executors and administrators— Evidence—Code Civ. Pro., § 836.</p> <p>The husband of testatrix who filed objections to the probate of her last will and1 testament died before the matter came on for hearing. Held, that his executor, who was made a party to the proceeding, was a “ party in interest ” within -the meaning of section 836 of the Code of Civil Procedure and that his waiver was sufficient to Warrant the reception of the testimony of the physician who attended testatrix immediately before her death that.at the time she executed the will she lacked testamentary capacity.</p>

<p>Executors and administrators—Renunciation of letters of administration—When order revoking letters vacated—Code Civ. Pro., § 2569(4).</p> <p>An intestate died unmarried survived by bis father, mother and several brothers and sisters. The- public administrator and a resident brother renounced and letters of. administration issued to a sister upon her petition. Held, that where the allegation- of a petition for revocation of letters brought utider subdivision 4 of section 2569 of the Code of Civil Procedure that the administratrix wilfully and deliberately concealed the relationship of a sister, not having included her in the next of kin, is denied by the replying affidavit of the administratrix, an order revoking her letters will be vacated but without prejudice.</p>

<p>Taxes—Bequest to “ Vivisection Investigation’ League ” subject to tbansfeb tax—Executor entitled to commissions as trustee.</p> <p>An executor and trustee is entitled to commissions in each capacity.</p> <p>A bequest to the “ Vivisection Investigation League,” a corporation organized for the investigation of vivisection both upon animals and upon human beings, and for carrying on any work for the purpose of rousing public sentiment against the evils of vivisection, is subject to a transfer tax.</p>

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

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

<p>Wills—Proceeding for probate in Surrogate’s Court—When jury TRIAL DEMANDED-NEW TRIAL—EVIDENCE—VERDICT—WHEN MOTION TO SET ASIDE VERDICT DENIED.</p> <p>The verdict of a. jury in a proceeding for the probate of a will in the Surrogate’s Court is conclusive, and while the court is under the serious responsibility of setting aside the verdict, if, upon grounds well recognized, it should not endure, there can be no interference with the verdict unless it be accompanied by an order for a new trial by jury, and' if the verdict be not set aside there is no .power in the court to proceed to decree in defiance of the findings of the jury.</p> <p>In a proceeding for the probate of a will in which a jury trial had been demanded the jury by direction of the court found that the instrument was duly executed and was not procured by fraud or undue influence, and upon submission to them, of the question as to testamentary capacity of testatrix rendered a verdict that she was possessed of testamentary capacity. The contestant moved to set aside the verdict and for a new trial. On the hearing at which no exceptions taken at the trial were presented there was added in behalf of the contestant the assertion that the verdict as to testamentary capacity was not conclusive and that, notwithstanding, the court remained under the duty before admitting the will to probate to inquire into all the circumstances' and to be satisfied otherwise than by the conclusion of the jury that the will was genuine and; valid in its execution, and that testatrix was in all respects competent to make a will and was "not under restraint.</p> <p>Helé, that the evidence being amply sufficient if believed by the jury to justify their finding, and there being no indication' that their verdict was affected by other than fair and rational consideration, the motion so far as it seeks an independent decision by the court on the question of testamentary capacity will be denied as will also the motion for a new trial.</p>

<p>Executors and administrators—Judicial settlement of accounts— Rejection of disputed claim—Code Civ. Pro., § 2681.</p> <p>Where no written consent that a disputed claim against decedent’s estate be heard and determined upon the judicial settlement of the accounts of the executrices has been filed in the surrogate’s office, and no action upon said claim has been brought within three months after its rejection, a motion to dismiss the claim which was rejected July 20, 1915, at which time section 2681 of the Code of Civil Procedure as amended in 1914 was in force, must be denied, and the claim he tried and determined on the judicial settlement.</p>

<p>Proceeding upon final judicial settlement of the accounts of an executor. ■</p>

<p>Fraud—Attorneys—Dower*-—Sale oe infants’ real estate—When CLAIM DISMISSED.</p> <p>Decedent herein was the attorney for -petitioners in a certain proceeding for the sale of infants’ real estate who derived their title from one W., and was also liis attorney in an action for divorce, brought by him in which no final decree was entered- because of his death within three months of the docketing of the interlocutory decree in his- favor. In the proceeding for the sale of the infants’ real estate decedent herein, who was one of their general guardians, testified that at the time of his death W. was unmarried, and the other general guardian, a sister of W., testified that he was a single man at the time of his death and that there was no one who had any dower right in the property. After claimant had purchased the property he discovered that it was- still • subject to the dower interest of W.’s widow who was living. Held, that it not appearing that decedent intended to mislead- or defraud and not having profited by the misrepresentations, a claim against his estate for alleged fraud will be dismissed.</p>

<p>Gifts—Subject of—Direction to executors or trustees to pay or. divide—Where future interest is devised—Wills.</p> <p>Where there is no gift but a direction to executors or trustees to pay or divide and to pay at a future time, the vesting in the beneficiary will not take place until such time arrives.</p> <p>Where a future interest is devised, not directly to a given persbn, but indirectly through a power conferred upon trustees, the devise is designed to he contingent and survivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift.</p>

<p>Proceedings on the intermediate judicial settlement of the account of trustees..</p>

<p>Proceedings upon the judicial settlement of the account of a trustee.</p>

<p>Wills—Construction of—Execution of—When extrinsic evidence admissible—When lapse avoided.</p> <p>In the absence of .proof of actual survivorship there is at common law no presumption of survivorship or simultaneous death where persons perish in a common disaster.</p> <p>Extrinsic evidence is inadmissible in the construction of wills except in three specific instances: (1) latent ambiguity; (2) to rebut a result-</p> <p>ing trust, and (3) a patent ambiguity susceptible of resolution thereby.</p> <p>Extrinsic evidence of the circumstances surrounding a testator at the time' of the execution of his will is inadmissible where the instrument is clear and free from equivocation.</p> <p>A testator’s direction to a court to reverse a rule of law is contrary to public order.</p> <p>Where a will is susceptible of two constructions that which 'validates it will be preferred.</p> <p>Lapse will be avoided by construing a bequest as substitutional whenever possible in the instance of commorientes.</p> <p>A direction in a will considered arid held to have been intended to avoid a lapse and substitutional.</p>

<p>Wills—Execution of—Contested probate proceeding—When bill of PARTICULARS DENIED-EXERCISE OF UNDUE INFLUENCE.</p> <p>In a contested probate proceeding an application .for a bill of particulars which must state the names of the persons who; as alleged by contestant, exercised undue influence on testator in the matter of the execution of the will, will be denied.</p>

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

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

<p>Bequests—Of government bonds and bank stock—Income of securities ACCRUED SINCE DEATH OF-TESTATRIX.</p> <p>A bequest of all government bonds and bank stock of which testatrix might die possessed carries with it all the income of such securities accrued since the death of testatrix.</p>

<p>Proceeding upon the settlement of the intermediate account of trustees,</p>

<p>Application for an order directing administrators to make and file their account.</p>

<p>Peo obedecí o upon the settlement of the account of administratrices.</p>

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

<p>Constitutional law—Tax Law, § 220 (6‘)—Power of appointment— Transfer tax—Statutes.</p> <p>Section 220 (6) of the Tax Law which declares“whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this chapter, such appointment when made shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will,” is constitutional when the power of appointment is exercised by will, even though the transfer would not be subject to the tax except for the exercise of said power.</p> <p>The question of the constitutionality of said statute, the power of appointment by deed and not by will not being entirely free from doubt, will be sustained on the ground that a statute should not be pronounced void by a court of first instance.</p>

<p>Application for revocation of letters testamentary.</p>

<p>Accounting—In Surrogate’s Court—Executors and administrators— Pleading—Corporations.</p> <p>A petition stated that the respondent was concealing bonds and certificates of shares of the capital sto'ck of certain corporations belonging to the estate so that they could not be inventoried or appraised and the respondent interposed an answer in which the material- allegations contained in the petition and supporting affidavits were denied. In the course of the examination inquiry was also made as to property not referred to in the petition. The answer did not allege title to or the right to possession of any property involved in the inquiry. In dismissing the proceeding as to all items except one,</p> <p>Held, that -the matter proceeded not as a trial but as an examination only; that the object of the statute is to provide a summary means of discovery and in case of a mere naked possession of decedent’s property to compel delivery thereof to the legal representative; that the delivery of such property cannot be directed unless it conclusively appears as a matter of law that the claim of title by the respondent is not well founded; that the power of the surrogate to direct delivery of property where the proceeding is simply an examination and not a -trial should be exercised with the greatest caution; and that a proceeding of this kind cannot be brought for the purpose of obtaining an accounting or of collecting a debt.</p>

<p>Proceeding- and judicial settlement of an -administratrix’s account.</p>

<p>Wills—-Attesting witnesses—Evidence—When probate denied.</p> <p>The attesting witnesses of a will in direct contradiction to -the statements contained in the attestation clause testified that the decedent was unconscious when the alleged will was executed, that he did not declare it to be his will nor ask them to act as witnesses and that the cross mark which appeared in lieu of his signature was made with the assistance of another who was present at the time and guided the decedent’s -hand. The testimony of another witness who was present at the time the alleged will was executed was to the effect that it was duly executed.</p> <p>Eeld, in denying probate, that the due execution of a propounded document may be shown by witnesses other than the attesting witnesses; that as a rule the testimony of such witnesses is not entitled to the same weight as is given to that of attesting witnesses-; that a will may be admitted to probate even against the testimony .of the attesting witnesses; that the burden of proving the execution of the propounded instrument with the formalities as required by law and by a competent testator still remains upon the proponent, and that the proponent in this matter had failed to sustain the burden placed upon him.</p>

<p>Wills—Construction of—Devise of real estate in trust—Provisions FOR DISPOSITION OF INCOME AS WELL AS CORPUS OF ESTATE AFTER DEATH OF LIFE TENANT DEFERRED—CODE ClV. PRO., § 2615.</p> <p>Testator devised all his real estate in trust to pay over and apply one-third of the income to the use of his wife for her life with direction to divide the remaining two-thirds equally among his three children during the life of their mother. Testator’s wife and all his children survived him, then one of his daughters died intestate leaving her surviving three, children who subsequently died intestate without issue them surviving and leaving her husband as their sole next of kin. On petition of the trustee for a construction of the will as to the disposition of the income bequeathed to testator’s children during the life of their mother, held, that the daughter of testator who died took a vested interest in one-third- of -two-thirds of the income during the life of her mother, and- upon her death her interest in the income passed to her husband and children and upon the death of all the children their father succeeded to their interest and was entitled to two-ninths of the income during the-, life of testator’s widow.</p> <p>A construction of that part of the will providing for the disposition of the income as well as the corpus of the estate, after the death of the life tenant, deferred until such happening under section 2615 of the Code of Civil Procedure.</p>

<p>Discovery—In Surrogate’s Court—-When not entitled to jury trial. The petitioner in a discovery proceeding in the Surrogate’s Court is not entitled to a jury trial as matter of right.</p>

<p>Objections filed to issuance of letters testamentary to the executor named- in the will. ■</p>

<p>Appeal from au -order 'assessing the transfer tax.</p>

<p>Proceeding under Transfer Tax Law to appraise and assess a tax upon a transfer under a will.</p>

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

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

<p>Wills—When admitted to probate as will of personal property may BE ALSO ADMITTED AS WILE OF REAL PROPERTY.</p> <p>Where a will relating to both real and' personal property is probated as a will of personal property only, it may, on allegations that at the time it was offered for probate proponent was ignorant of the existence of any real property, be admitted to probate as- a will of real property also.</p>

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

<p>Motions for a new trial and judgment in a probate pro- . ceeding. -</p>

<p>Joint ownership—How established—Transfer tax—Aoreement between A HUSBAND AND WIFE AS TO JOINT OWNERSHIP OF SECURITIES— Contracts.</p> <p>Where an agreement made in 1913 between a husband- and wife of the first part and a trust company of the other part declares that securities which were the subject of the agreement were owned by the husband and wife jointly such statement is not so unalterably expressive of joint ownership that it could not upon resort to the circumstances be found consistent with ownership in common, but the circumstances tend only to the conclusion that joint ownership was intended and effectuated.</p> <p>A provision of the agreement “ that the same might be revoked ” was not applicable to" the arrangement by which joint ownership was established but was confined to the recall thereof between the parties thereto.</p> <p>A stipulation of the agreement that the trustee should pay the income of the securities to the husband and wife in equal shares was not inconsistent with joint, ownership, and the only transfer, whether of the securities mentioned in the contract or those which were later brought within its operation, was a transfer "consummated in the lifetime of the decedent and was not then subject to a transfer tax, nor did it become so under chapter 664 of the Laws of 1915.</p>

<p>Husband and wife—When tenants in common—Contracts—-Evidence —When securities not subject to transfer tax.</p> <p>Where a husband and wife rent a safe deposit box they are tenants in common of the lease and securities which are the separate property of each placed in the box by one of them remain his or her property unless the ownership be changed by contract.</p> <p>Where upon the death of the wife there were found securities in 'the box concededly belonging to her and other securities, which originally belonged to her husband, were in an envelope indorsed to the effect that the contents, life insurance bonds, were the property of the wife, held, that in the absence of proof of delivery of the -bonds to the wife and her acceptance thereof for the purpose of making a present gift the ownership of said bonds remained in the husband and were not subject to a transfer tax as a -part of the wife’s estate. ■</p>

<p>Mutual benefit societies'—Beneficiary named in certificate has no VESTED INTEREST IN SAME—EXECUTORS AND ADMINISTRATORS-ASSOCIATIONS.</p> <p>In the absence of any provision on the subject in the laws of a mutual benefit society the beneficiary named in a certificate issued to a member ■has no vested interest in the same which might in a contingency become payable on the death of said member.</p> <p>The account of an administratrix, so far as it fails to charge her with a sum received on a certificate of benefit insurance from a society which insured the life of her decedent, ’approved.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the -second judicial department, entered Hovember 19, 1915, which affirmed a decree -o-f the Kings County Surrogate’s Court surcharging the accounts- of the executors- of Mary J. Gallagher, deceased.</p> <p>The will speaks as of the date of the death of the testatrix, and the bequest of the contents of the safe deposit box covers only such articles as were therein at the time of the death of the testatrix. (Waldo v. Hayes, 96 App. Div. 454 ; Jarman on Wills [6th Eng. ed.], 409 ; Bothamley v. Sherson, L. R. [20 Eq.] 304 ; Trinder v. Trinder, L. R. [1 Eq.] 695 ; Drake v. Martin, 23 Beav. 89, 53 Eng. Rep. 35 ; Goodlad v. Burnett, 1 K. & J. 341, 69 Eng. Rep. 489 ; Robeson v. Hamilton, L. R [2 Ch. 1891] 559 ; Gaff v. Cornwallis, 219 Mass. 226 ; Richmond v. Vanhook, 38 N. C. 503 ; Hodgkins v. Hodgkins, 123 App. Div. 110.) The bequest of the contents of the box must be confined to jewelry and other articles of the same nature. (Matter of Reynolds, 124 N. Y. 388 ; Ball v. Dixon, 83 Hun, 344 ; Matter of L. I. R. & T. Co., 92 App. Div. 5 ; Ludwig v. Bungart, 33 Misc. Rep. 177 ; Fenton v. Fenton, 35 Misc. Rep. 479 ; Lathers v. Keogh, 39 Hun, 576, 109 N. Y. 583 ; Woodcock v. Woodcock, 152 Mass. 353 ; Barnaby v. Tassell, L. R. [11 Eq.] 363 ; Newman v. Newman, 26 Beav. 220 ; Matter of Schouler, 134 Mass. 426.) The question of the proper construction of Mrs. Gallagher’s will survives its unanimous affirmance by the Appellate Division. (Smyth v. Bklyn. Union, 193 N. Y. 335 ; Matter of Cunion, 201 N. Y. 123 ; Poel v. Brunswick Co., 216 N. Y. 310 ; Williams v. Jones, 166 N. Y. 522 ; Matter of Green, 153 N. Y. 223 ; Union Mills v. Harder, 191 N. Y. 483 ; Morehouse v. B. H. Ry. Co., 185 N. Y. 520.)</p> <p>The finding of the surrogate respecting the intention of the testatrix is, in view of the evidence introduced by the appellants', a finding of fact, and not reviewable by this court. (Effens v. Littlejohn, 164 N. Y. 187 ; Hankinson v. Vantine, 152 N. Y. 20 ; Matter of Yates, 99 N. Y. 94 ; Matter of Percival, 79 Misc. Rep. 567.) The intention of the testatrix was to bequeath to the respondent Mary Ann Harris all that was in the safe deposit box at the time of the execution of the will, with the exception of the bank books. (Wetmore v. Parker, 52 N. Y. 450 ; Rogers v. Rogers, 153 N. Y. 343 ; Matter of Delaney, 133 App. Div. 409, 196 N. Y. 530 ; Matter of Donahue, 109 App. Div. 158 ; Matter of Robson, L. R. [2 Ch. 1891] 559.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered Novemher 5, 1915, which, affirmed an order of. the Few York County Surrogate’s Court exempting from transfer tax a certain trust fund over which decedent had a power of appointment.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The term “ children ” does not include u grandchildren ” unless there is something in the will to show that the word was used in a broader sense. (Mowatt v. Carow, 7 Paige, 328 ; Palmer v. Horn, 84 N. Y. 516 ; Matter of Truslow, 140 N. Y. 599 ; Pimel v. Betjemann, 183 N. Y. 194 ; Matter of Keogh, 126 App. Div. 285 ; Davies v. Davies, 129 App. Div. 379, 197 N. Y. 598 ; Hurlbert v. Gerow, 148 N. Y. 378 ; Marsh v. Hague, 1 Edw. Ch. 174 ; Shannon v. Pickell, 55 Hun, 127 ; Matter of Seebeck, 63 Hun, 179 ; Matter of Brown, 93 N. Y. 295; Matter of Paton, 111 N. Y. 480 ; Pfender v. Depew, 136 App. Div. 636.) The grandchildren could not take by the intestacy of Charles King. (Knickerbocker Trust Co. v. King, 126 App. Div. 691 ; Clarke v. Cammann, 160 N. Y. 315 ; Doane v. Mercantile Trust Co., 160 N. Y. 494 ; Matter of Burgess, 204 N. Y. 265.)</p> <p>The term “ children ” is flexible and includes grandchildren whenever the “ reason of the thing ” demands it. (Pfender v. Depew, 136 App. Div. 636 ; Prowitt v. Rodman, 37 N. Y. 42.) The “ reason of the thing ” demands that these respondent grandchildren shall be included within the term “ children ” in Charles King’s will. (Matter of Paton, 111 N. Y. 480 ; Matter of Truslow, 140 N. Y. 604 ; Matter of Farmers L. & T. Co., 213 N. Y. 168.) These respondent grandchildren could elect as heirs at law and next of kin of Charles King benefiting by any reverter to his estate which took place at Fannie King’s death. (Matter of Slosson, 216 N. Y. 79 ; Matter of Vassar, 127 N. Y. 112 ; Matter of Euston, 113 N. Y. 174 ; Matter of Lansing, 182 N. Y. 238.)</p>

<p>Will—Probate of will in foreign State—If such State does not require NOTICE TO PARTIES ' INTERESTED SUCH PROBATE IS BINDING UPON SUCH PARTIES RESIDING IN THIS STATE.</p> <p>1. A proceeding to probate a will does not require service of process upon all parties interested, even though non-residents, but is in the nature of a proceeding in rem where such service may be dispensed with by statute.</p> <p>2. If a Probate Court of another State otherwise has jurisdiction-it may make a decree admitting a will to probate which is binding upon non-residents, even though notice has, by statute, been dispensed with on the original probate, and such probate becomes conclusive in the absence of contest within such period as is provided by the laws of that State. ’ It is error when a will is offered for probate in this State under such circumstances to reject evidence of such probate proceedings. (Code Civ. Pro., § 2629.) . .</p>

<p>Appeal from so much of an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 17, 1915, as affirmed a decree of the Westchester County Surrogate’s Court declaring invalid a trust attempted to be created by the will of Annie 0. __ MacDowell, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>If the purpose of the trust is charitable or benevolent within the .statute it is valid. (Personal Property Law, § 12 ; Allen v. Stevens, 161 N. Y. 122 ; Sailors Snug Harbor v. Carmody, 211 N. Y. 286 ; Matter of Griffin, 167 N. Y. 71 ; Bowman v. D. & F. M. Society, 182 N. Y. 494 ; Matter of Robinson, 203 N. Y. 380 ; Matter of Cunningham, 206 N. Y. 601.) In order that a trust may be held to be charitable or benevolent within the statute it must be public in nature and its general purpose must be the well being of humanity or some specified but indefinite class or part thereof. (Matter of Shattuck, 193 N. Y. 446 ; Allen v. Stevens, 161 N. Y. 122 ; Sailors Snug Harbor v. Carmody, 211 N. Y. 286.) In ascertaining the intent of a testatrix her will must be read in the light of the rule of law (1) that charitable trusts are highly favored and that a liberal construction will be adopted in order to render that intent effectual, and (2) that where a provision is fairly susceptible of more than one construction the one that sustains the will is to be preferred. (Matter of Robinson, 203 N. Y. 380 ; Matter of Cunningham, 206 N. Y. 601.) A charity which •is otherwise public is not deprived of that character by directing that in the administration of the charity a preference be given among eligible persons. (Perin v. Carey, 65 U. S. 465 ; Kent v. Dunham, 142 Mass. 216 ; Darcey v. Kelly, 153 Mass. 433.)</p> <p>The trust created under the last will and testament of Annie Coe MacDowell, deceased, is valid as a trust for charitable and benevolent purposes. (Matter of Lennon, 92 Pac. Rep. 970 ; Carter v. Whitcomb, 74 N. H. 482 ; N. E. Sanitarium v. Inhabitants of Stoneham, 205 Mass. 335 ; Little v. City of Newburyport, 210 Mass. 414 ; Wilson v. First Nat. Bank, 45 N. W. Rep. 948 ; Sailors Snug Harbor v. Carmody, 211 N. Y. 286 ; Matter of Shattuck, 193 N. Y. 446 ; Matter of Robinson, 203 N. Y. 380 ; Starr v. Selleck, 145 App. Div. 869, 205 N. Y. 545 ; Manley v. Fiske, 139 App. Div. 665, 201 N. Y. 546.) The provisions for preference to certain specified individuals or their lineal descendants does not affect the validity of the trust. . (Perin v. Carey, 65 U. S. 465 ; Dexter v. Harvard College, 176 Mass. 195 ; Kent v. Dunham, 142 Mass. 216 ; Darcey v. Kelly, 153 Mass. 433 ; Matter of Robinson, 203 N. Y. 380.) The provisions as to payment of board by'the inmates of the home does not render the trust invalid. (Schlaudorff v. N. Y. Hospital, 211 N. Y. 125 ; Hospital of St. Vincent v. Thompson, 81 S. E. Rep. 13 ; Thornton v. Franklin Square House, 200 Mass. 465; Jensen v. Maine E. & E. Infirmary, 78 Atl. Rep. 898 ; Little v. City of Newburyport, 210 Mass. 414.)</p> <p>The trust attempted to be created by the will of the testatrix cannot be carried out according to her intention because the fund provided is not sufficient to do so. The Supreme Court has no power to devote the fund to any kindred purpose under the ay pres doctrine, because it has power to apply that doctrine to charitable trusts only when conditions have changed since their creation and. not at their very inception. The said trust is, therefore, invalid. At least it is not one upon which the court should look with favor, and be astute in finding reasons for upholding. (Johnson v. Bowen, 95 Atl. Rep. 370 ; Gilman v. Hamilton, 16 Ill. 225 ; Morgan v. G. P. Seminary, 70 Ill. App. 575, 171 Ill. 444 ; Tilden v. Green, 130 N. Y. 29 ; Allen v. Stevens, 161 N. Y. 122 ; Sailors Snug Harbor v. Carmody, 211 N. Y. 286.) The trust attempted to be created by the will of the testatrix, being by its terms in perpetuity and not measured by lives, is void, unless it is validated by section 12 of the Personal Porperty Law. (Allen v. Stevens, 161 N. Y. 122 ; Matter of Griffin, 167 N. Y. 71.) The trust attempted to be created by the will of. the testatrix is not charitable or benevolent, and, therefore, is not validated by section 12 of the Personal Property Law. (Jackson v. Phillip, 14 Allen, 539 ; Saltonstall v. Sanders, 11 Allen, 446 ; Mason v. Zimmerman, 81 Kan. 779 ; Dulles Estate, 218 Penn. St. 162 ; People v. Powers, 8 Misc. Rep. 628 ; 2 Perry on Trusts [6th ed.], § 697.) If the preference given to specified persons as beneficiaries of the trust attempted to be -created by the will of the testatrix is not absolute, and such beneficiaries are to be determined by applying the test of whether they come within the general class, then the trust is not -one which can be executed by judicial decree and is, therefore, void. (Matter of Shattuck, 193 N. Y. 446 ; Matter of Robinson, 203 N. Y. 380 ; Matter of Cunningham, 206 N. Y. 601 ; Fairchild v. Edson, 154 N. Y. 199.) The trust attempted to be created by the will of the testatrix is riot public in its nature and its general purpose is not the well being of humanity or -some specified bu-t indefinite class or part thereof, but such purpose is the benefit of specified individuals: The trust, therefore, is not one of those validated by section 12 of the Personal Property Law. (Matter of Shattuck, 193 N. Y. 446 ; Russell v. Allen, 107 U. S. 163 ; Franklin v. City of Philadelphia, 2 Penn. D. R. 435.)</p>