Volume 17 — Mills's Surrogate Reports

<p>Appeal by Frances H. Stoddard!, as administratrix, and others, from an order of the Surrogate’s Court of the county of Warren, entered in the office of said Surrogate’s Court on the 16th day of July, 1915, directing a sale of the real property of the deceased to pay the claim of the respondent against the estate of said deceased.</p>

<p>Appeal by the contestants, Walter W. Briggs and another, heirs at law and next of kin of the deceased, from a decree and order of the Surrogate’s Court in the county of Madison, entered ' in the office of said Surrogate’s Court on the 14th day of September, 1914, admitting an alleged will to probate and overruling the appellants’ objections to the issuance of letters testamentary thereon to Harriet C. Briggs.</p>

<p>Will—Trust—Validity of trust for purpose of public library and parks—Evidence insufficient to establish secret trust.</p> <p>A testator gave to his wife, in case she survived him, the use of all" the rest and residue of his estate'for her life, and in case she did not survive him, and in ca,se she did survive him, then upon her death, he gave all the rest and residue of his estate in trust to certain trustees named, directing that they and their successors should be a corporation and should hold the property for the purpose of creating and maintaining a public library and one or more public parks, pursuant to the provisions of chapter 160 of the Laws of 1890, as amended (now article 7 of the General Municipal Law). The 10th paragraph of the will provided as follows: “ I intend to legally dispose of all my estate whatever by this instrument; and, to be more certain of doing so, I hereby provide and will that if any devise or bequest hereinbefore contained for any cause or reason is or shall be held to be unlawful, invalid or void, then in any and every such case or cases I hereby give, devise and bequeath any and all the property and estate whatever as to which the hereinbefore devise or bequest, or any part of any such devise or bequest, is or shall be held to be unlawful, invalid or void,” to the trustees heretofore mentioned “ not as trustees nor as tenants in common, but to them as individuals, and 'absolutely and jointly and as joint tenants, and to be held by them in joint tenancy.”</p> <p>Held, that since the wife survived the testator, the trust was void as to one-half of his estate under section 7 of chapter 160 of the Laws of 189Q (now section 146 of the General Municipal Law), and that such one-half passed to the trustees individually and absolutely under the 10th paragraph of the will.</p> <p>Evidence examined, and held, in sufficient to establish a secret trust in the persons named in paragraph 10 of the will.</p>

<p>Will—Clause avoiding legacy in case legatee questions validity of will—Second will offered for probate by legatee—Right to legacy UNDER PRIOR WILL DEPENDS UPON MOTIVE OF LEGATEE-EFFECT OF OFFERING FORGED WILL FOR PROBATE-WHEN PRIOR DECISION OF SURROGATE RES AD JUDICATA ON QUESTION OF BAD FAITH.</p> <p>Where a will contains a clause avoiding a legacy in case the legatee controverts, disputes or calls in question the validity of the will, she does not forfeit her legacy by presenting for probate an alleged later will naming her executrix which is denied probate, providing she acted in good faith and with probable cause to believe that the later will was a genuine instrument and entitled to probate. But where the second will is a spurious instrument and offered for probate in bad faith by the legatee, she controverts or calls in question the validity of the former will and forfeits her legacy thereunder.</p> <p>Where the alleged second will names the legatee as executrix and she believes it to be a genuine instrument, it is her absolute duty to offer it for probate, for if she concealed or destroyed it with intent to prevent probate, she would have been guilty of a felony.</p> <p>Where the second will offered for probate by the legatee contained the genuine signature of the testator, but the body of the will was in the handwriting of the legatee which was so crowded at the end in order to make it fit above the signature of the testator that it actually overlapped said signature, and the opinion of the surrogate in refusing probate states that he is led to the conclusion that the will was written up to and over a previously existing signature of the decedent and is not in fact his will entitled to probate, the decision involves a finding of bad faith on the part of the legatee under the prior will and she forfeits her legacy thereunder for she has controverted or disputed its validity.</p> <p>It Seems, that if the question of the legatee’s good faith was-not material to the decision of the surrogate when he refused probate to the alleged second will, hi.s decree would not have been res adjudicata upon that question.</p>

<p>Appeal by Oscar Clark Miller from a decree ofy the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 1st day of April, 1915, dismissing the petition herein.</p>

<p>Appeal by the defendant, Mary J. Odell, individually and as trustee, from an order of the Supreme Oourt, made at the Dew York Special Term and entered in the office of the clerk of the county of Dew York on the 12th day of January, 1916, denying said defendant’s motion- to bring into the action certain additional parties.</p>

<p>Appeal by Matte Wium, petitioner, from an order of the Surrogate’s Court of the county of Bichmond, entered in the office of said Surrogate’s Court on the 28th day of September, 1915, denying her petition, as one of the next of kin of the deceased, for a citation ordering the production of the original or a certified! copy of the later will of May 18, 1907, and of a revocation of March 26, 1908, both of which were executed in Danish in Copenhagen, Kingdom of Denmark, and that the probate of the will of August 1, 1904, he revoked.</p>

<p>Appeal by the defendant, Jessie D. Bowne, from part- of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered- in the office of the clerk of the county of ¡New York on the 3d day of June, 1915, upon the decision of the court after a trial at the ¡New York Special Term.</p>

<p>Appeal in the action by the plaintiff, William H. Hastrich, individually and as executor, from a judgment of the Supreme Court in favor of the defendants, entered in -the office of the clerk of the county of Kings on the 30th day of January, 1915, dismissing the action and vacating an injunction pursuant to the decision of the court after a trial at the Kings County Special Term.</p> <p>Appeal in the proceeding by William H. Hastrich, as executor, from part of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 29th day of M-arch, 1915.</p>

<p>Executors and administrators—Claim by son when accounting as EXECUTOR FOR SERVICES TO DECEDBNTmEVIDENCE OF LOCAL CUSTOM.</p> <p>A son who; although over age, continued to live at home with his parents and to work for his father, and according to local custom received .only his board and clothes, with an allowance for spending money and for holidays, is not entitled, when accounting as executor seven years after his father’s death, to be allowed for services to his father and for gross earnings which he had given to his mother, where there is no evidence of any agreement express or implied to pa.y him wages while he vra-s at home, or that his father had any knowledge of the payments to his mother.</p>

Appeal by Annie McGrath, from an order and) decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 20th day of May, 1915, admitting decedent’s will to probate, and construing a paragraph thereof. Patrick Daly, who died January 23, 1915, left a will in which there was this residuary clause: “ Fourth.

Appeal by Bessie R. Johnston from part of a decree of the Surrogate’s O'ourt of the county of Mew York, entered in the office of said Surrogate’s Court on the 25th day of September, 1915, construing the will herein and directing a distribution of the estate.

Appeal by Trustees of Columbia University in the City of ¡New York andi others from an order of the Surrogate’s Court of the county of ¡New York, entered in the office of said Surrogate’s Court on the 1st day of March, 1916, denying a motion to transfer the issues in this contested probate proceeding from the Surrogate’s Court to the Supreme Court, except from such part of the order as stays all proceedings pending this appeal.

<p>Will construed—Trust with remainder over—When remaindermen TAKE PER STIRPES, NOT PER CAPITA—PARENT AND CHILD-PRESUMPTION AS TO LEGITIMACY—BURDEN OF PROOF-ANNULMENT OF PRIOR MARRIAGE— Husband and wife—Annulment because of false representation AND LACK OF AGE OF CONSENT-EFFECT UPON SUBSEQUENT MARRIAGE— Mortgage of trust property, when not binding upon remaindermen— Equity—Adjustment of increased values of remainders—Lease of TRUST PROPERTY.</p> <p>A testator gave annuities to his daughters charged upon his estate which were declared to be inalienable for several lives, and the property subject to the annuities was placed in trust, income for the support and maintenance of his sons J. and S. during their lives. The will then provided that' upon the death of the sons the real estate should descend “ to their heirs and descendants,” and if none, then to the heirs at law of the testator. It was further provided that in case of the death of either J. or S. his share of the income “ shall be paid to the heirs of such decedent until the death of the survivor of my said two sons—it being my will that the same shall remain in trust as aforesaid until the death of both of my said sons.” Will construed, and held, that on the death of the sons their descendants took per stirpes and not per capita as a class.</p> <p>Where it is asserted that a person claiming under the will aforesaid as a granddaughter of the testator was illegitimate in that a month prior to her mother’s marriage with the testator’s son she had entered into a ceremonial marriage with another man at a time when both of them were under the age of legal consent, and it appears that the child was born after the second marriage and the parties to the former marriage never cohabited and the former husband has since remarried, the burden is upon those contesting the legitimacy to show that the first marriage had not been dissolved, for the presumption of its continuance is not so strong as the presumption of legitimacy.</p> <p>The court on appeal will not consider a judgment annulling said first marriage and declaring it void ah initio upon the ground that it was procured upon false representations and that the parties were not of the age of consent, where the decree was procured after the judgment in the present action.</p> <p>Moreover, such decree of annulment could not dissolve the marriage ah initio, for the statute declares that such marriage is void only from the time it is annulled.</p> <p>In any event, the decree of annulment.would not validate the second marriage as the latter would be void under section 6 of the Domestic Relations Law.</p> <p>As the trupt created by the will aforesaid had no relation to the vested remainders, the court had no authority to authorize the trustees to mortgage the real estate so as to bind the interests of the remaindermen.</p> <p>But where the proceeds of the mortgage were used to erect new buildings which increased the value of the remainders, the court should make an allowance to persons who subjected their interests to the mortgage and thereby paid for the improvements.</p> <p>Where the record on appeal does not furnish data from which such allowances can be made, the case should be remitted to the Special Term for a further consideration and an equitable adjustment.</p> <p>It is not necessary to except to the findings of fact in order to raise the question as to the validity of a lease of the trust property for a term of years affecting the rights of the remaindermen, and, it seems, that such lease violates section 107 of the Real Property Law. »</p>

<p>Will construed—Trust with remainders over on death of life beneficiary—When gifts divided per stirpes, not per capita.</p> <p>A -testator placed Ms property in trust, charging the trustees with an imperative power of sale. He created life estates for Ms widow, his daughter Sarah, and his brother, and directed that the residue and the sums reserved for the life estates as they should expire should be divided into equal parts. One of these he gave to his son Frank, if he survived him, one part to his son Orange, for life, after his death said part to be “ equally divided between his children.” There was a gift in similar-words to his daughter Fanny and children, and another to his daughter Mary and children. It was then provided that if Frank should predecease the testator, his issue should take as a class, but should he die without issue, Orange, Fanny and Mary, or the survivors or survivor of them, if either of them should die without issue, shall have the use of the share given to him or her in equal portions during their natural ■ life. Upon the decease of the children, Orange, Fanny or Mary, or either of them, the share of each was to be divided equally between his or her children, but in the case of the death of Orange, Fanny or Mary, or either of them, without issue, “ the survivors or survivor of them shall have the use of the share or portion bequeathed and given to him or her during his or her natural life in equal portions. After his or her decease the share, the use of which is given to the parent, shall be divided between the parent’s children share and share alike.” Will construed, and held, that on the death of Fanny, leaving a daughter and two grandchildren, the descendants of a deceased daughter, Fanny’s share passed to her daughter and granddaughters per stirpes, not per capita.</p>

<p>Real property—Trusts—Will—General beneficial powers—Power of APPOINTMENT-SUSPENSION OF ABSOLUTE OWNERSHIP OF PERSONAL PROPERTY.</p> <p>A testator’s father executed a deed of trust under which the testator became the life beneficiary of the income of 71 shares of corporate stock, -with power of appointment to dispose thereof absolutely by will to any person whomsoever. His mther executed a similar trust deed of 527 shares of stock of the same corporation, making him a life beneficiary -with a similar power of appointment. The testator by will in effect provided that the trust property be kept in solido for convenience of investment, the income being given in two equal shares, one to his wife and the other to his daughter, each half of the principal being liberated upon the death of the life beneficiaries, and disposed of in a certain specified manner. The will did not specifically provide to which beneficiary the property appointed under each power should go, nor did it apportion the property appointed under each power between the two beneficiaries.</p> <p>Held, that the powers of appointment given in each trust deed are general beneficial powers;</p> <p>That it was the intention of the testator to create separate trusts;</p> <p>That such trusts do not suspend the absolute ownership of personal property beyond two lives in being in violation of section 11 of the Personal Property Law, although the testator’s daughter was not in being at the time of the execution of the first trust deed, since the shares of stock under said deed were severable in kind and may be embraced in the trust created for the benefit of the testator’s wife.</p> <p>The power given by the testator to his daughter to appoint to further use does not violate the statute against perpetuities.</p>

<p>Wills—Consolidation of proceedings fob probate of two wills— Motion by executor of later well to discontinue proceeding denied.</p> <p>Where two instruments are propounded by different parties as wills, and applications made for probate of each, the proceedings will be consolidated and tried together.</p> <p>Hence, where two instruments have been presented for probate as wills of the same testator, the executor of the later will will not be permitted to discontinue his proceeding, especially since under section 2610 of the Code of Civil Procedure, as amended, “.each person named as executor * * * in any other will of the same testator filed in the surrogate’s office,” must be cited upon a petition for probate, and if he must be cited as executor of such will it would not be consistent to permit him to withdraw the proceeding for the probate thereof.</p>

<p>Tax—Transfer tax on personal property of citizen of foreign country —Court—Jurisdiction of surrogate to admit foreign will to probate—When widow, a citizen of foreign country, may contest transfer tax—Distinction between probate and transfer tax proceeding—Contest upon question of taxation does not necessarily ATTACK RIGHT OF SURROGATE TO ADMIT WILL TO PROBATE-CONFLICT OF laws—When foreign law governs as to bights of widow in property SITUATED HERE.</p> <p>Where a resident of a foreign country dies leaving personal property in ■the hands of bankers in this State the Surrogate’s Court of the county where the property is situated has jurisdiction to admit the decedent’s will to probate. The jurisdiction does not depend upon a finding that the decedent wias -a resident of this State owing to the fact that in order to protect himself during times of war he had taken out naturalization papers.</p> <p>Where the decedent both before and after his naturalization actually resided in the foreign country, and made only temporary sojourns in this country on his way to and from his residence, so that as a matter of fact he was not a resident of the United States, and where his widow and descendants are subjects of the foreign nation whose courts have decreed that she has certain rights in the decedent’s- personal property under the foreign law, the property in this State to which she is entitled is not subject to a transfer tax, and she is not estopped from contesting the levy of such tax -by the fact that she was cited by publication in the probate proceedings in this State and failed to appear and contest the same.</p> <p>Such contest by the widow, relating only to the assessment of a transfer tax, is not an attack upon the jurisdiction of the Surrogate’s Court in admitting the will to probate, for the assessment of the tax is merely incidental with the due administration of the decedent’s estate by our court.</p> <p>As under the law of Cuba, in which country the widow resided, she was entitled to one-half ownership in the .joint estate of herself and husband, and that fact having been established by a decree of the foreign court, the foreign law is applicable as to personal property situated in this State upon the principle that movables have ne situs. Hence, in assessing a transfer tax the widow’s half of the joint estate should be deducted.</p>

<p>Appeal by Alma Barton Strong Johnson, residuary legatee, and by George F. Chamberlin, as executor, from a decree of the Surrogate’s Court of the county of Saratoga, entered in the office of said Surrogate’s Court on the 26th day of November, 1910, judicially settling the .accounts of Willard Lester, as executor of and trustee under the last will and testament of Augustus Gerald Hull, deceased, which accounts were filed February 16, 1904.</p> <p>Appeal by Alma Barton Strong Johnson, residuary legatee, from a decree of the Surrogate’s Court of the county of Sara-toga, entered in the office of said Surrogate’s Court on the 27th day of March, 1915, finally and judicially settling and allowing the accounts of Willard Lester, as executor of and trustee under the last will and testament of Augustus Gerald Hull, deceased, which accounts were filed April 12, 1913.</p>

<p>Appeal by the Comptroller of the State of ¡New York from an order of the Surrogate’s Court of the county of ¡New York, entered in the office of said Surrogate’s Court on the 11th day of October, 1915, affirming an order entered therein on thé 31st day of December, 1914, fixing and assessing a transfer tax upon certain property.</p>

Appeal by Eliza F. Brush from a decree of the Surrogate’s Court of the county of ¡New York, entered in the office of said Surrogate’s Court on the 9th day of ¡November, 1915, settling the accounts herein.

<p>Appeal by the defendants, Walter F. Springsteen, individually and as guardian and executor, and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of December, 1915, upon the decision of the court after a trial at the Kings County Special Term.</p>

<p>Appeal by John R. Hayes from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 18th day of January, 1916, removing him as executor of the estate of John Hayes, deceased, and also from an order entered in the office of said Surrogate’s Court on the 13th day of January, 1916, denying his motion for a reargument of an application made by the respondent for an order directing him to sign certain checks or show cause why he should not be removed as executor of this estate.</p>

<p>Appeal by the defendant, Thomas Morris, from an order of the Supreme Court,, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of December, 1915.</p>

<p>Surrogate’s Court—Executors and administrators—Proceeding for ACCOUNTING BY EXECUTRIX UNDER WILL PROBATED IN FRANCE-RES ADjudicata—Community system, waiver of rights under—Allowance to testatrix from income of infants for their maintenance—Liability FOR DEPRECIATION OF SECURITIES-—-RIGHT TO COMMISSIONS, EXPENSES and' disbursements—-Right of Surrogate’s Court in this COUNTRY TO SETTLE ACCOUNTS OF EXECUTRIX UNDER FRENCH WILL.</p> <p>A testator whose mother was a French woman, but who was born in this country, removed, to France and until the date of his death had no other domicile or residence. He came to this State for the purpose of marrying, and immediately thereafter, .with his wife, returned to France and made it their home. At and before the time of the marriage, it was the intention of both parties to go to France to live. The testator at the time of his death had three daughers, two of whom married French husbands and are citizens and residents of France, and the other married a major in the German army and lived and died in Germany, and her minor children thereafter resided with the testator’s wife until the commencement of -proceedings to settle her accounts as executrix, when they returned to'their father in Germany.</p> <p>Held, that France was the matrimonial domicile, and that since the will was written by the testator himself, in French, and was probated in France, the law of France should determine its effect and control the settlement of his estate and the marriage rights of the parties;</p> <p>-That the judgment of the French court admitting the will to probate is not res adjudicata upon the question whether the system of community obtained between the testator and his wife;</p> <p>That the wife by proving the will and taking possession of the property in Europe did- not elect to forego her rights under the French law;</p> <p>That under the evidence, the wife did not waive her legal rights to community;</p> <p>That the children are not injured by the fact that their mother has not yet received all that she is entitled to, and they cannot urge that she is estopped thereby from claiming her legal rights or that she has waived them;</p> <p>That the account of the executrix should not be surcharged with payments made by her to the father of her grandchildren from their income, to which he was entitled under the German law;</p> <p>That the account of the testatrix should not be surcharged on account of depreciation in value of securities;</p> <p>Th'at since the executrix was charged with responsibility as such, she is entitled to full commissions, and her expenses and disbursements in the settlement and administration of the estate;</p> <p>That in the discretion of the court the accounting may be completed in the Surrogate’s Court or may be remitted to the French courts.</p> <p>The fact that the executrix is now a German subject, that the grandchildren and their father are residents of Germany, and that France and Germany are at war are circumstances which may be consideed in retaining the settlement of the estate in the Surrogate’s Court.</p> <p>Since the payments made by the 'executrix to her husband and to and for her daughters were made in France and her acts and neglects complained of took place in France, evidence of such payments should not be controlled by the law of this State if a different rule exists in France.</p> <p>Hence, unless it be stipulated that the executrix may prove such expenditures in any manner which would be competent in the settlement of her accounts in a French court, the matter should be remitted to France for trial and determination.</p> <p>Cochrane and Howard, JJ., dissented, with opinion.</p>

Arpeal by Title Guarantee and Trust Company and another, as executors and trustees, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 18th day of Hevember, 1915, dismissing an appeal by said executors from an order of Hon. John P. Cohalan, one of the surrogates of the county of New York, which modified an order of Hon. Robert L. Fowler, another of the surrogates of the county of New York, which last order…

<p>Discovery proceedings under sections 2675 and 2676 of the Code of Civil Procedure.</p>

<p>Proceeding 'upon the judicial settlement of accounts of a guardian.</p>

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

<p>Wills-—-Devise to executors .in trust—Residuary estate—Trusts— Power of sale—Division of proceeds.</p> <p>Testator by bis will gave all his residuary estate to .his executors in trust “ to hold, and manage and divide and pay over the same with the income arising therefrom,” in the manner indicated by the instrument which further provided that “it shall further be the duty of my executors and trustees, and they are hereby authorized and empowered, whenever it shall be necessary for the purpose of a division of my estate under the terms of this my will, or whenever in their judgment the interest of the beneficiaries of my residuary estate will best be promoted thereby, to sell 'and dispose of any of my productive and improved real estate and invest the proceeds in securities ” designated, and further directed that the net income from the residuary estate be paid over to his two daughters share and share alike, and upon the death of either of them testator' gave, devised and bequeathed one-half of the residuary estate unto her issue. Held, that testator intended that his residuary estate should be held in trust until a division was made necessary by the death of one of his daughters, and that when this event occurred the trustees were to divide the trust estate into two portions 'and pay over one to the issue of the daughter who died, retaining the other half in trust until the death of the surviving daughter.</p> <p>That the sale of the real estate could not be made advantageously in the condition of the present real estate market was not a sufficient excuse for the failure of the trustees to sell it a'nd divide the proceeds in accordance with the terms of the will.</p>

<p>Accounting—Executors and administrators—Distribution of fund in ACTION FOR CAUSING DEATH OF TESTATOR—EXECUTOR ENTITLED TO DEDUCT FROM FUND ONLY REASONABLE EXPENSES OF ACTION-—CONSTITUTIONAL LAXtf.</p> <p>An accounting by an executor of a fund recovered in an action brought under sections 1902, 1903 and 1904 of the Code of Civil Procedure for Causing "the death of plaintiff’s testator by wrongful ‘act is not an accounting sui generis regulated by particular statutory rules.</p> <p>The distribution of the fund recovered in such action is regulated by the special statute, and the widow of testator is not solely entitled to receive the net sum recovered to the exclusion of grandchildren of testator where he did not leave children him surviving.</p> <p>Upon such an accounting the executor is entitled to- deduct from the fund only the reasonable expenses of the action.</p> <p>The constitutionality of the amendments to said statute considered.</p>

<p>Application by State Comptroller for a resettlement of an order upon a decision rendered on an appeal talcen from an order-assessing a tax upon estate of decedent. - ■</p>

<p>Domicile—Determination of—Last residence—Evidence—Transfer Tax Law.</p> <p>The last residence as employed in the Transfer Tax: Law is to be determined by the decedent’s last domicile.</p> <p>Evidence considered, and held that decedent's last domicile was' in the State of New York and not in the islands of Bermuda as contended by the executors.</p>

<p>Application by a general guardian to require an administratrix to render and settle a final account.</p>

<p>Decedents’ estates-—No limit of time within which real property MAY BE SOLD FOB PAYMENT OF LEGACIES-SURROGATE’S COURT-CODE ClV. Pro., $ 2703.</p> <p>There is no limit of time within which the real property of a decedent may be sold for the payment of a legacy charged thereon, or for the purposes of distribution.</p> <p>Where the whereabouts of any of the heirs of a decedent, in this case his only surviving child, are unknown, the .surrogate in his discretion under section 2703 of the Code of Civil Procedure, as amended by chapter 443 of the Laws of 1914, may direct a sale of the decedent’s real property to pay a legacy charged thereon, the personal property being insufficient for that purpose.</p> <p>A contention that any power of the surrogate over the real property of the decedent must be exercised within the time limit of eighteen months from the date of letters testamentary, and that the only remedy to enforce payment of the balance owing upon a legacy charged thereon is an action in the Supreme Court, is untenable.</p>

<p>Application on behalf of executors for construction of a will.</p>

<p>Wills—Subscription op—Requirement op statute—Attestation clause—Code Civ. Pro., § 2612.</p> <p>Where a testator affixed to his will a holiday seal printed in colors and thereon inscribed his initials above and below the word “ seal,” which was also in his handwriting, the requirements of the statute that a will must be subscribed by the testator are satisfied if he intended the holiday seal and his inscription thereon- as a signature.</p> <p>Where the attestation clause is complete the failure of the subscribing witnesses to testify positively to the testator’s subscription to his will in their presence, or to the acknowledgment of the signature to them, may well be referred to lack of memory and a finding that the will was subscribed by decedent in the presence of the subscribing witnesses is justified in view of the provisions of Section 2612 of the Code of Civil Procedure.</p>

<p>Proceeding for the construction of a will.</p>

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

<p>Surrogate’s court— Trial by jury—Wills—Code Civ. Pro., § 2614.</p> <p>There is no provision of the new Surrogates’ Law (Laws of 1914, chap.. 443) which makes a verdict of a jury in a contested probate proceeding conclusive upon the surrogate or which relieves him from the paramount obligations of his office stated in section 2614 of the Code of Civil Procedure.</p>

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

<p>Taxes—Transfer Tax—Ascertaining taxable value—Evidence,</p> <p>In ascertaining the taxable value of a decedent’s undivided interest in mortgaged premises a deduction from the gross value of such interest may properly be made for the probable expenses consequent upon a possible sale under a judgment in partition or foreclosure.</p> <p>The statute gives the appraiser in a transfer tax proceeding considerable latitude concerning the evidence he shall accept as to values; the title of “ appraiser ’’ carries with it the significance that he is to be the judge of the nature of the evidence he may desire submitted to him on the question of valuation in cases fairly treated by him.</p>

<p>Wills—Declarations of testatrix that interlineations were made AFTER EXECUTION OF WILL—EVIDENCE—PROBATE-BURDEN OF PROOF.</p> <p>Declarations of a testatrix that interlineations in her last will were made after the instrument was executed should be disregarded particularly where they are not shown to have been made at any particular time.</p> <p>There is no presumption that an unexplained interlineation fair upon the face of an instrument offered for probate as a last will was fraudulently made after the will was executed, and the burden of proof is upon the contestant to show the fact.</p>

<p>Executors and administrators—Duties of testamentary ' trustees DISTINGUISHED-TRANSFER TAX—WHO ENTITLED TO COMMISSIONS-Trusts—Trustees.</p> <p>Where the various powers and duties devolving upon testamentary trustees as distinguished from executors* show that testator intended that their duties should be distinct and separate and that when their duties as executors terminated and as trustees began was when the debts and general legacies had been paid and the residue of the estate divided. in accordance with the will, they are entitled to commissions in each capacity.</p> <p>Where the income of trust funds was directed to be paid to certain persons for life, the .remainder at their death to be paid to .such persons as the life beneficiaries by their respective last wills should designate and appoint, the commissions that may be deducted in a transfer tax proceeding must be limited to full trustees ’ commissions for' receiving the various trust funds, the. taxation on the remainder being suspended; if the power of appointment be exercised by the respective donees of the " powers the trust funds will be taxed as part of the estates of the persons exercising the powers of appointment, and trustees’ commissions for paying out the tru t funds may be deducted in the transfer tax proceeding brought to assess a tax upon the respective estates of the donees of the powers.</p>

<p>Trusts—When not invalid—Executors and administrators—Power OP ALIENATION-PERSONAL PROPERTY LAW.</p> <p>Where testatrix gave her entire estate to her executors in trust to divide it into equal parts with direction to pay the income of two parts to her husband for life and upon his death to her sister for life, and upon her death to divide the principal of said two parts among her surviving children as they respectively attained their majority, there is neither a suspension of the absolute ownership of personal property for more than two lives in being nor of the absolute power of alienation of real estate in contravention of section 42 of the Beal Property Law, and the trust so created is not invalid.</p>

<p>Subrogates—Powers of—Surrogates’ law of 1914—Trial—Where VALIDITY OF TESTAMENTARY DISPOSITION CANNOT BE SEPARATED—CONSTRUCTION of wills—Code Civ. Pro., §§ 1866, 2615.</p> <p>The judicial construction of chapter 238 of the Laws of 1853 (now Code of Civil Procedure, § 1866) which authorized the judicial determination of the- validity of devises in the same manner as the validity of deeds could be determined affords a criterion for the true construction of section 2615 of the Code of Civil Procedure in determining the powers of the surrogate thereunder.</p> <p>The Surrogates’ Law of 1914 making no provision for a jury trial in proceedings involving legal titles to land, the surrogate under section 2615 of the Code of Civil Procedure may not, in a proceeding for the construction of a will, determine the legal title to real property, nor may he construe a will relating to personal property only unless in connection with some real contention in another proceeding to the solution of which a construction of the will is .immediately essential.</p> <p>Where the validity of testamentary dispositions of real and personal property cannot be separated, the surrogate may not, under the powers conferred upon him by section 2615 of the Code of Civil Procedure, construe the will, even by consent. ,</p>

<p>Executors and administrators—Physical impairments do not disqualify—Wills—Testator’s choice as to executor—Code Civ. Pro., § 2654.</p> <p>Wheie the right to receive letters testamentary is controverted the issue, for the convenience of the parties and of court, must be heard separate and apart from the proceeding to probate the will.</p> <p>A separate proceeding for a grant of letters testamentary is a proceeding in rem.</p> <p>At common law, and now, an executor at ^ the death of his testator derives his office and estate from the will and neither depends upon its probate or the issuance of letters testamentary; his estate, however, is not strictly proprietary but in autre droit or in right of another.</p> <p>Upon an application of the one named as executor for letters testamentary, his common law right to the executorship is the primary-consideration and neither the rights of creditors nor of legatees will be considered.</p> <p>Where probate of a last will was not disputed, the testator’s choice as to who should be executor is entitled to the greatest consideration by the surrogate unless under some settled rule of law or some statute the named executor is disabled from entering on the duties of his office.</p> <p>The phrase ‘ ‘ for want of understanding ’ ’ in section 2654 of the Code of Civil Procedure which describes those incompetent to receive letters testamentary refers only to imbeciles and lunatics, and is not to be determined by the extent of the estate and the peculiar difficulties of a particular administration.</p> <p>Where the physical deterioration resulting from two paralytic attacks has not affected the character of one named as executor as a man of integrity and honor and his mental efficiency is not impaired he is not thereby disqualified to act as executor.</p> <p>One may be chosen as executor for his moral worth alone, the testator ignoring his want of business ability which of itself does not render him incompetent for “ want of understanding ” in the common law sense of that term, and if there be no such want of understanding his application for letters testamentary will be granted.</p> <p>A grant of letters testamentary in such case though contested is not res adjudicata of the rights of those interested in the estate to apply for the remoyal of the executor on equitable grounds stated in the statute governing the revocation of letters testamentary.</p>

<p>Application of executors and trustees for the construction of a will.'</p>

<p>Wills—Testamentary disposition—When widow takes entire estate for life—Power of disposal—Residuary estate—Transfer tax.</p> <p>Where by the will of testator his entire residuary estate was given to his widow for life with full power of disposal and without liability to account for either principal or interest, with remainder over, she takes the estate for all purposes except that of testamentary disposition.</p> <p>The widow being presently entitled to the beneficial enjoyment of the entire residuary estate, its full value is presently subject to a transfer tax though her right to use it may be defeated by .her death before she has used or disposed of it.</p>

<p>Trusts—Devise to executors in trust—When estates in remainder ARE VESTED—INTESTACY-—WILLS.</p> <p>Where testatrix who died in 1897 gave one-third of her estate to her executors in trust for the benefit of her daughter, who died in 1915, with direction "to pay the net income therefrom as often as half-yearly to her during her life, and in trust upon and after her death to pay over and divide the principal or capital thereof to and among the children of my said daughter, in equal shares, upon their severally becoming twenty-one years of age, and during their minority to apply the income of eách child’s share to his or her use towards their support and maintenance, ’ ’ the estates in remainder- are vested and not contingent and the share of a child of the life tenant, who predeceased her, goes to her legatees if she left a will, or to her next of kin if she died intestate.</p>

<p>Application for decree granting letters of guardianship to certain persons.</p>

<p>Proceeding upon the accounting of an executor.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered ¡November 10, 1915, which reversed an order of the New York County Surrogate’s Court denying a motion to exempt the estate of Seymour J. Hyde from a transfer tax and granted said motion.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Will—Marriage—Testamentary provision designed to prevent marriage op testator’s daughter with a designated-person—When such provision valid and enporoeable.</p> <p>At common law there was no prohibition against testamentary conditions in restraint of marriage with particular classes of persons or specific persons, and such prohibitions have not only received the sanetion of judicial authority, but are justified by sound reasoning. Hence, a condition which is designed to prevent the marriage of a testator’s daughter with a particular individual named in the will is valid and enforceable.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 24, 1916, which affirmed an order of the Westchester County Surrogate’s Court assessing a transfer tax upon the estate of Tootie McG. Terry, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 24, 1915, which modified and affirmed as modified a decree of the New York County Surrogate’s Court construing the will of Bryan McCahill, deceased, and directing’ distribution of a certain share of his estate.</p> <p>The facts, as far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1915 which modified and affirmed as modified a decree of the Yew York County Surrogate’s Court judicially settling the accounts of surviving executors and trustees under the will of William Ziegler, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>' Appeal 'from a judgment of the Appellate Division of the Supreme Court in the first' judicial" department, entered December 11, 1914, affirming a judgment of Special Term judicially settling the accounts of a trustee and construing the will of Jane V. 0. Cooper, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Will—Conclusiveness of degree of surrogate admitting "will to probate—Action commenced in 1913 for partition and to set aside "WILL ADMITTED TO PROBATE, CANNOT BE MAINTAINED-THE ONLY METHOD OF ATTACKING SUCH DECREE AT THAT TIME WAS BY AN ACTION UNDER THE statute (Code Civ. Pro., $ 2653a).</p> <p>Tinder section 2538 of the Code of Civil Procedure, as revised (Laws of 1914, ch. 443), provision is now made for a jury trial of questions of fact arising in a proceeding in a Surrogate’s Court, either in that court or in the Supreme Court. As the Code stood in 1913 (§ 2625) a decree admitting to probate a will of real or personal property, or both, was conclusive as an adjudication of the validity of the will and of the questions determined under section 2624, except that section 2653a, as it stood at that time, permitted a party to bring an action to set aside a will, and conferred upon such party the right to a jury trial in the Supreme Court in such action. That section prescribed the only method by which a party could at that time challenge the decree of a surrogate admitting a will to probate and try the issues thus raised by a jury; and, hence, where a will was duly admitted to probate in 1913, and in the same year an action was brought, under section 1537 of the Code, to partition the real estate of testator and to set aside his will, it cannot be maintained, and where plaintiffs refused to amend their complaint so as to bring the action within section 2653a the complaint was properly dismissed.</p>

<p>Tax—Transfer tax—Proof not establishing foreign residence—Domicile AND RESIDENCE SYNONYMOUS FOR PURPOSE OF TAXATION.</p> <p>Appeal from an order of a Surrogate’s Court determining that the estate of a decedent was exempt from a transfer tax upon the ground that he was not a resident of this State. Evidence examined, and held, that the decedent was in fact a resident of this State and that a transfer tax should be imposed.</p> <p>Although there is a difference between the legal meaning of the terms of "residence” and "domicile,” they are synonymous for the purpose of imposing a transfer tax and the domicile of a decedent, not his residence, may control.</p> <p>Although the statute of this State uses the word "resident” a person’s residence may be determined by applying the principles of domicile and relying upon the authorities relating thereto.</p> <p>The mere fact that a person who had resided chiefly, in hotels in the city of New York, having been left a bequest of household furniture ’ leased a house in the city of London for the purpose of storing furniture did not maké him a resident of England so as to exempt his estate from a transfer tax, especially where letters written shortly before his death show that he considered himself an American citizen and he stated therein that he considered New York to be his home.</p>

<p>Decedent’s estate—Action to enforce parol agreement to devise lands —Extent of relief in 'common-law action—Quantum meruit for SERVICES RENDERED-STATUTE OF FRAUDS-PLEADING-INVALIDITY OF CONTRACT NOT APPEARING ON FACE OF COMPLAINT.</p> <p>In an action at law. the court has no power to enforce an alleged oral contract made by a person since deceased whereby she agreed to devise lands in consideration of services rendered to her, such contract being void under the Statute of Frauds.</p> <p>The greatest relief which a court of law can grant in such action 'brought against the executor of the promisor is a money judgment for the reasonable value of the services rendered.</p> <p>Where the invalidity of a contract void under the Statute of Frauds does not appear on the face of the complaint the defense can only be taken by answer, and the court cannot anticipate issues which may be raised by an answer not yet served.</p> <p>Howard, J., dissented.</p>

<p>Appeal by Emma F. Boltz, residuary legatee, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 19th day of July, 1915, and also from an order entered in said office on the same day denying her motion for a new trial.</p>

<p>Husband and wife—Validity of antenuptial agreement—Oonsidertion —Evidence—Gift.</p> <p>An antenuptial agreement, executed the day before the marriage, by which the wife released her dower interest in her husband’s real estate, which he had previously willed to his children, examined, together with the circumstances under which it was executed, and held, to be valid and enforceable.</p> <p>The validity of such agreements rests upon the facts of each particular case.</p> <p>The surrogate being of the opinion that the agreement was without consideration, erred in refusing to admit evidence to show that the husband, coincident with the execution of the agreement, made and delivered to the wife a mortgage of about the value of her dower interest.</p> <p>Evidence that the husband admitted, from time to time, that he had given certain personal property to his wife and that it belonged to her, was sufficient to establish a valid gift.</p>

<p>Will—Trust op personalty—Vested remainder.</p> <p>Where a testatrix leaves personal property in trust during the life of her daughter, directing the trustees “to pay her the net income thereof semi-annually during her life, and upon her death to pay and transfer the principal thereof to her lawful issue, or in default of such issue to divide the same equally among her brothers and sister, the descendants of any deceased brother or sister to take the share their parent would have been entitled to if living,” the son of the daughter living at the execution of the will did not take a vested remainder, and, hence, upon his death prior to the death of his mother, leaving no issue, his interest should be paid to his sister, she being the only issue of the life beneficiary when the trust terminated.</p> <p>Where there is a gift of personalty to a class distributable on a future event, that class consists of those who answer the description and are capable of taking at the time of the distribution.</p>

<p>Will—Bequest op net income op trust estate—'Distribution op stock TO TESTAMENTARY TRUSTEES PURSUANT TO FEDERAL DECISION—WHEN STOCK DISTRIBUTED SHOULD BE TREATED AS INCOME RATHER THAN AS ADDITION TO CAPITAL—.DISTRIBUTION OP STOCK OP SUBSIDIARY COMPANIES by Standard Oil Company.</p> <p>Where a will directs the payment of the net income of a trust to a beneficiary until he shall attain the age of thirty years, and before the happening of that event the Standard Oil Company distributed to the testamentary trustees as holders of the stock the stock of certain subsidiary corporations pursuant to a decree of the Federal courts determining that the oil company could not continue to hold said stocks without violating the Federal statutes, the life beneficiary is entitled to the distributed stock as income and it cannot be retained by the trustees as capital, if such dividend was paid from the accumulated earnings of the company, and the assignment thereof to the "beneficiary will not entrench upon the capital of the trust fimd as received from the testator.</p> <p>The above rule holds where the stock distributed by the Standard Oil Company was the stock of certain pipe lines, which were constructed after the testamentary trust was created and the stock represents surplus profits of said companies accumulated after the creation of the trust.</p> <p>The contention of the testamentary trustees that the period of the accumulation of income by the corporation whose stock was distributed began when the enforced distribution of the stock was actually made, rather than from the time when the testamentary trust was created, is untenable.</p> <p>As the Federal decision determined that the pipe lines did not lawfully constitute a part of the working plant of the companies. subsidiary to the Standard Oil Company and that they could not lawfully conduct a pipe line business, and that in equity the properties belong to the stock holders, it cannot be contended that the stock of the pipe line companies distributed was part of the working plant of the oil companies- which held said stock.</p> <p>Where the oil companies after the Federal decision transferred properties to newly-organized pipe line companies in return for their respective stock, which was distributed to the testamentary trustees, it cannot be contended that such transfers depleted the surplus of the old companies, it being presumed that the stock was worth the eapitaliaztion’ of the new companies and no more.</p> <p>Although one of .the oil. companies-may have constructed its pipe lines prior to the creation of the testamentary trust, where it subsequent^ transferred those properties to a newly-incorporated pipe line company in exchange for its stock, which it distributed to the trustees, the stock distributed may be considered as part of the surplus of the old company</p>

<p>Appeal by Katherine B. Greet, as administratrix with the will annexed of Cathelina E. G^oot, deceased, from a. decree of the Surrogate’s Court of Albany county, entered in the office of said Surrogate’s Court on the 23d day of December, 1915, construing and holding valid the 10th item of said will.</p>

<p>Decedent’s estate—Devise to charitable institutions—Statutory limitation—Will—Power conferred upon executors to allot property in kind—Partition—When action premature.</p> <p>A testatrix leaving a husband surviving cannot give or devise over one-half of her estate to benevolent and charitable institutions as provided in section 17 of the Decedent Estate Law.</p> <p>Where a testatrix authorizes her executors in their discretion to retain the property of the estate, whether real or personal, as the same shall be received by them, and in their discretion to “distribute the same in kind to the persons who shall become entitled to any part thereof under the provisions” of the will at a valuation to be placed thereon by the executors, such valuation to be binding upon beneficiaries, the heirs at law entitled .to share in a portion of the estate which constituted the excess over charitable devises allowed by the statute are not entitled to maintain an action to partition certain lands in which they claim a fractional interest, for owing to said power conferred upon the executors the title of the heirs is defeasible until the executors have made an allotment, and hence the action for partition is premature.</p>

<p>Appeal by John M. Lyon, as executor, and others, from parts of an amended decree and order of the Surrogate’s Oourt of the county of Westchester, entered in the office of the clerk of said county on the 9th day of March, 1916.</p>

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Will—Construction—Authority or executor to convey realty.</p> <p>Provisions of a will construed, and held, to authorize an executor to convey marketable title of certain realty and to invest the proceeds therof for the purpose of increasing the income which was'to be paid to a life tenant.</p>

<p>Decedent’s estate—Proceeding by legatee to compel partial distribution—Pendency of voluntary accounting by executor no bar-^-TesTAMENTARY PROVISION THAT STOCK MAY BE DIVIDED BETWEEN LEGATEES—• When order of distribution should not compel cash payment— Appeal—Modification of order of surrogate by Appellate Division— When distribution should be partial only.</p> <p>Although a proceeding for the voluntary accounting of an executor is pending and undetermined in the Surrogate’s Court, the statute allows an independent proceeding brought by a legatee to compel a partial distribution of the estate, if it can be done without prejudice to the rights of the creditors or representatives, and the pendency of the former proceeding is no bar to the latter.</p> <p>But where a will expressly provides that testamentary trustees may divide in kind the actual securities constituting the trust fund, and order for a partial distribution to a legatee should not require payment to be made in cash, and especially so, where the legatee in the proceeding for an accounting has challenged the propriety of investments made by the trustee in corporate stock.</p> <p>But where the surrogate has erroneously ordered a distribution in cash, the error may be corrected by a suitable modification by the Appellate Division.</p> <p>Section 2736 of the Code of Civil Procedure has no application where the will authorizes delivery of specific property.</p> <p>It is within the power of the surrogate to determine whether the whole or only a part of a distributive share shall be paid to a legatee before the final aecqunting, and his determination in this regard will not be disturbed on appeal unless it is manifestly unfair.</p> <p>Evidence examined, and held, that the discretion of the surrogate was wisely exercised in ordering a partial distribution only.</p>

<p>Appeal by the defendants, Rochester Trust and Safe Deposit' Company, individually and as executor" and trustee, and others,, from a judgment of the Supreme Court in favor of the plaintiff, eiitered in the office of the clerk of the county of Monroe on the 3rd day of November, 1915, upon the decision of the court after & trial of the Monroe Equity Term.</p> <p>Each of the defendants appeals from so much of said judgment as affects himself. The judgment decreed that plaintiff recover from defendant Rochester Trust and Safe Deposit Company the sum of $1,403.88 and costs, and that the defendant Rochester Trust and Safe Deposit Company recover from each of the other appellants the sum of $305.80.</p>

<p>Decedent’s estate—Claim against estate for board, etc.—Evidence HELD INSUFFICIENT.</p> <p>Public policy demands that the estates of deceased persons shall not be raided by persons claiming that which they have never asserted in any manner during the lifetime of the deceased.</p> <p>The evidence by which a claim against the estate of a decedent for table board, room rent, washing and mending, care and nursing of decedent, cash _ advanced for necessaries during his last illness, a promissory note and board of two guests was sought to be established, examined, and held, not to justify the conclusion that there was any express or implied contract or promise on the part of decedent, who had paid his board up to the week of his death, to pay for the services alleged to have been rendered</p> <p>Kellogg, P.J., and Howard, J., dissented.</p>

<p>Appeal by tbe defendants, Edmund B. Wells and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eew York on the 18th day of Hay, 1916, upon the decision of the court after a trial at the Eew York Special Term.</p> <p>The judgment construed the will of Joseph E. Bulkley, deceased.</p>

Appeal by the defendants, Lawrence Mulligan and another, as executors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23rd day of March, 1916, upon the verdict of 'a jury, and also from an order entered in said clerk’s office on the 27th day of March, 1916, denying defendants’ motion for a new trial made upon the minutes, with notice of an intention to bring up for review an order entered in…

Appeal by the defendant, Levy Dairy Company,' from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22nd day of January, 1916, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 25th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Executors and administrators—Trusts—Eight of executors and trustees TO TRIPLE AND DOUBLE COMMISSIONS.</p> <p>W,here a testator bequeaths money in trust for a life beneficiary and upon the latter’s death directs that a portion of said money shall be paid to certain persons and that the balance "shall be paid over” to the executors to be held in trust during the respective lives of designated beneficiaries, the executors, who also acted as trustees, are not entitled to triple commissions upon the balance of the money. This because the "paying over” of the money by the trustees to them was a matter of mere bookkeeping and amounted to nothing more than retaining.in their own hands certain securities in which the money had already been invested.</p> <p>Where executors are directed to hold money in trust for the life of the beneficiary and upon her death to distribute the corpus among those entitled thereto under the residuary clause of the will they are not entitled to additional commissions as trustees.</p>

<p>Proceeding under section 2687 of the Code of Civil Procedure to compel payment of a legacy.</p>

<p>Executors and administrators—Accounting—Infants—Wilds.</p> <p>Upon the settlement of the decree on an accounting by executors, it appeared that an infant was born subsequently to the death of the testatrix.</p> <p>Held, that such infant did not take under the provisions of the will for the reason that the language of the same explicitly provided that the lawful descendants of the daughters in question who ai'e to receive the share in question to which the parent would have been entitled are such children as survive the testatrix.</p>

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

<p>Proceeding for contempt committed by juror.</p>

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

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

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

<p>Pboceeding upon the final judicial settlement of the accounts of a substituted trustee.</p>

<p>Proceedings to compel executors to account.</p>

<p>Application by an administrator to authorize the settlement of a claim against a railroad company.</p>

<p>Wills—Probate of—When testator possessed of sufficient mental capacity-—Executors and administrators—Endue influence—-Evi DENCE—WITNESSES.</p> <p>The law permits a person to dispose of his property at pleasure and, so long as testator was possessed of sufficient mental capacity and observed in the execution of his last will the required legal formalities and acted freely, his wishes must be respected, and the will given effect regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property.</p> <p>Where shortly after the commencement of a proceeding for the probate of a last will each adult heir and next of kin of testator and the general guardian of an infant interested in the estate and a legatee requested the executor named in said will to offer no more than formal proof of the subscribing witnesses and not to oppose the probate of an earlier will, which had been offered for probate, expressing it to be their desire that it be admitted to probate, no consideration can be given to such wishes, and where it appears that testator, an old man who had lost much of his physical and mental strength, on the day of the execution of the later will, went unaccompanied to the office of an attorney who had known him for thirty-five years and who drew the will, and, considering its terms, no doubt dictated, signed and executed it, and the court must find from the testimony that testator at the execution of said instrument was possessed of sufficient mental capacity to make and execute a valid will and that he was at the time under no undue influence or restraint, a decree for the probate of the later will should be granted, there being but a slight difference in the testamentary provisions of both instruments.</p> <p>Where relying wholly and only upon the testimony of lay and medical witnesses and disregarding entirely - the testimony of the subscribing witnesses a doubt as to the competency or incompetency of testator is equally balanced, there is to be added to the scale the natural weight of the presumption of sanity and further weight must be given to the fact that less mental faculty is required to make a will than any other legal instrument.</p>

Application by Otto 0. Heinze asking: (1) That letters of administration be revoked. (2) For reargument of an order denying application to be appointed administrator and for vacation of that order. (3) For reargument of an order appointing a guardian and for a vacation of such order.