Volume 18 — Mills's Surrogate Reports

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 7, 1915, 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 opinion.</p> <p>Walter S. West, at the time the assignments purporting to he of $100,000 of the share of the residuary estate of George West, deceased, that was to be paid over and transferred to him when he became forty years of age, if he lived to reach that age, were executed, had no assignable interest therein, and such assignments thereof were and are invalid as matter of law. (Lewisohn v. Henry, 179 N. Y. 352; Graff v. Bonnett, 31 N. Y. 9; Osburn v. R. T. & S. D. Co., 209 N. Y. 54; Blood-good v. Lewis, 209 N. Y. 95.) The decree entered June 10, 1908, in the action commenced March 19, 1908, is not a bar to the right of Walter S. West to challenge the validity of the assignments of $100,000 of the principal of the residuary estate of his father that under his will he became entitled to receive from the trustees of that estate when he reached the age of forty years. If those assignments were not, when made, valid within and of themselves, they were not made valid and enforceable by that action and the decree therein. (Druklieb v. Harris, 209 N. Y. 211; Mellen v. Mellen, 139 N. Y. 210; Crawford v. Winton, 34 App. Div. 457; Weed v. Cantwell, 36 Hun, 528; Matter of Brewer, 43 Hun, 597; Mayor v. Fitch, 9 App. Div. 452.) It was error in any event to dismiss the plaintiff’s complaint for the plaintiff was entitled to have the provisions of the assignments modified to conform to conditions arising from the remarriage of his wife. (Mowbray v. Mowbray, 136 App. Div. 513.)</p> <p>The interest of the plaintiff Walter S. West under his father’s will was and is assignable. (Lytle v. Beveridge, 58 N. Y. 592; Miller v. Von Sehwarzenstein, 51 App. Div. 18; Manice v. Manice, 43 N. Y. 303; Embury v. Sheldon, 68 N. Y. 227; Thompson v. Hill, 87 Hun, lll; Hersee v. Simpson, 154 N. Y. 496; Johnson v. Brasington, 156 N. Y. 181; Riker v. Gwynne, 201 N. Y. 143; Bushnell v. Carpenter, 92 N. Y. 270; Warner v. Durant, 76 N. Y. 133.) The judgment in the action brought by Emily Hathorn West and John H. Burke, two of the trustees under the will of the plaintiff’s father, in which action Hiram C. Todd, the third trustee, was made a party, as well as every other person directly or remotely, actually or contingently, interested in any of the property, were made parties, was and is forceful and binding upon, all the parties. (2 Perry on Trusts [4th ed.], §§ 476a, 928; 2 Pom. Eq. Juris, § 1064; Gobel v. Iffla, 111 N. Y. 170.)</p>

Appeal by the Comptroller of the State of Mew York from an order of the Surrogate’s Court of the county of Suffolk, entered in the office of said Surrogate’s Court on the 19th day of April, 1915, fixing the taxable value of the remainder interest in the Townsend trust- fund of $350,000 at the sum of $166,600 to be taxed at $1,666.

<p>Will — Construction—Life estate created by possession oe real property AND RIGHT TO BENTS AND PROFITS.</p> <p>A testator gave to his daughter ‘1 the sum of Two hundred and fifty ($250) Dollars per month during her natural life as agreed upon in a separate contract executed by me.” Eeld, that the words “as agreed upon in a separate contract executed by me” were used by the testator for the express purpose of limiting the entire amount to be paid to his daughter to the sum of $250 a month during her lifetime.</p> <p>Where a testator provided in his will that at the death of his son all his real and personal estate should be given to a grandson when the latter reached the age of twenty-one years, and the son was given the possession of the real estate and of the rents and profits thereof, and power of sale for the benefit of the grandson, there was created a life estate under section 92 of the Real Property Law.</p> <p>If the son should die before the grandson reaches the age of twenty-one years, the income accumulated up to that time would pass to the grandson.</p>

Separate appeals by Annie 0. McElroy and John H. Schriever, from parts of a decree of the Surrogate’s Oonrt of the county of Rockland, entered in the office of said Surrogate’s Court on the 2d day of September, 1915, construing the will of John H. Schriever, deceased.

<p>Will — When extrinsic evidence may be received to determine whether A LEGACY IS CHARGED UPON TESTATOR’S REAL ESTATE — WHEN SUCH EVIDENCE MAY BE RECEIVED TO SHOW MEANING OF WORDS c c PERSONAL, ESTATE” AS USED BY TESTATOR — CONSTRUCTION OF WILL AND CODICILS: TOGETHER WITH EXTRINSIC EVIDENCE — BEQUESTS TO CERTAIN CHARITABLE INSTITUTIONS HELD VOID.</p> <p>1. Whether a legacy is charged upon the real estate of a decedent is always a question of the testator’s intention. The language of the will is the basis of the inquiry, but extrinsic circumstances which aid in the interpretation of that language, and help to disclose the actual intention, may also be considered.</p> <p>2. Ordinarily the words “personal estate” have a well-understood meaning and seldom require resort to extrinsic evidence to explain their significance. But the presence of the words “personal estate” as they appear in the seventh clause of the codicil of testator of necessity gives rise to an ambiguity which required the justice at Trial Term to resort to extrinsic evidence to aid in an interpretation of the will and codicil in connection with the general scheme of the instruments.</p> <p>3. On examination of the will and codicils of testator, together with the extrinsic evidence, held, that the testator intended to charge the payment of legacies given by his will and codicil upon the real property not devised by him; that the valid legacies given by the will of the testator and the codicil thereto are charged upon the real property of which he died seized which was not specifically devised by him; that the power of sale given to the executors of the will is a valid power arid should be exercised by them for the purpose of paying the legacies given by the will and the codicils thereto together with the transfer and inheritance taxes.</p> <p>4. Where legacies bequeathed to certain charitable institutions fail, not by reason of any defect in the will and codicils, but solely in consequence of matter dehors the instrument (Decedent Estate Law [Cons. Laws. eh. 13], § 19), the doctrine of “Dependent relative revocation” is not applicable to preserve bequests made in a former codicil from the operation of the statute since in the codicil under consideration the declaration of revocation was complete and not dependent upon the validity of the bequests made therein which upon the face of the instrument were unambiguous; hence the courts are powerless to reinstate the earlier bequests.</p> <p>5. A bequest to an unincorporated charity managed by boards and officers of another association of which it is an offshoot is held invalid for the reason that it was absolute, not in trust, and was in effect a bequest to an association which was incapable of taking; neither can the bequest be sustained as one to an unincorporated voluntary association.</p> <p>6. A bequest to a hospital named, whieli was neither incorporated nor an unincorporated association, to endow in perpetuity as many beds as may be permitted to be used, by such persons as may be designated from time to time by the brothers and sister of the testator and their direct descendants, is valid, since it creates a trust for charitable uses, and even if no trustee competent to take had been' named the legacy would not fail. (Fries v. Osborn, 190 if. Y. 35; Austin v. Oakes, 117 N. Y. 577, 589, distinguished.)</p>

<p>Appeal by .the defendants, James C. H. McLean, individually and as administrator, and others, from parts of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 11th day of May, 1916, upon the decision of the court after a trial at the. Westchester Special Term, in a. suit for the judicial settlement of the accounts of the surviving trustee under the will of James M. McLean.</p> <p>This testator died May 13, 1890, leaving two sons, George H. and Cornelius, who both married. This will gave the trust property to be held by trustees, who were to apply the net income of half of the residuary estate to the use of each son (George H. and Cornelius) during his natural life. On the death of either son half of his residuary estate was to be paid over to his living lawful issue. But each son had a power of testamentary appointment to dispose of one-third of his share, of which he had enjoyed the life use, “ among my then living lineal descendants and his wife him surviving or any or either of them, and in such manner and proportions as to him shall seem proper.” If, however, either son should have no surviving issue, then .the share, or so much thereof as shall not be disposed of by his testamentary appointment, should be paid over to the other son, absolutely or to his issue- taking -per stripes.</p> <p>Cornelius died leaving a widow, Leslie (but no issue), on February 18, 1908. About two years before his death he executed a will, in which he gave the use of all the property over which he had the power of appointment to his wife, Leslie, during life or widowhood, with a power to appoint in her will the principal, one-half thereof to the Mount Vernon Hospital (or so much as would be needed for a wing or ward), and the remaining half to the Westchester Women’s Club of Mount Vernon. His wife was also named as residuary legatee. The precise wording of this provision appears in the subsequent opinion.</p> <p>On Cornelius’ death a question arose as to the widow’s right to the capital of one-third of Cornelius’ interest in this trust fund (one-third being the extent of this power under the will of James M. McLean), which amounted to $93,305.81. All then agreed that these securities should be- set aside, and that she should enjoy the income, and that, on her remarriage or death, there should be a judicial determination of the title to the capital of this fund. On March 9, 1909, Mrs. Leslie A. McLean executed a will, followed by a codicil on March 18, 1912, by which she provided that, if her estate should exceed $75,000, certain small legacies should be paid to relatives — and one of $2,000 to the Mt. Vernon Hospital, and $1,000 to the Westchester Women’s Club, also another of $2,000 to the Martha Wilson Home. All the rest, including any property to which she was entitled then or thereafter under the wills of James M. McLean and Cornelius McLean, except as in said last- will and testament provided, the testatrix bequeated to her sister, Laura M. Schofield.</p> <p>On February 18, 1913, George H. McLean died. His will gave all his property to his wife and two sons. Mrs. Leslie A. McLean died on March 19, 1915, leaving in force the dispositions by her will as above.</p> <p>The chief question is the construction and effect of the will of Cornelius McLean.</p> <p>Plaintiff and the representatives of George H. McLean con: tended that, .beyond the life estate to his widow Leslie, 'Cornelius had not validly exercised his power of appointment. Defendant Schofield claimed that an execution of the power had been exercised so as to vest same in the widow, which by her testamentary appointment then passed to her _ sister and other legatees. This is also claimed on behalf of the hospital and the Wilson Home.</p> <p>The learned justice at Special Term held that under the limits of the original power of appointment, Cornelius could not name the hospital and woman’s club, as he was confined to the donor’s “ lineal descendants ” and the son’s surviving wife. He sustained the appointment to the wife, Leslie, for life, or during widowhood, of the property “ over which he had the power of appointment.” The residuary clause was held effectually to pass and exercise in the wife’s favor the power to appoint the capital of the trust fund.</p> <p>The appeals here are by James C. H. McLean as an individual, and in his representative capacities. Mrs. Harriet A. McLean also appeals as executrix, trustee and individually, and Alan D. McLean, individually, also is an appellant.</p>

<p>Wills — Devise op certain real estate — Decedent’s estate — Codicil— Lack of formality of execution — Exoneration op personalty.</p> <p>In order to charge the realty of a decedent with the payment of funeral and administration expenses and debts there must be a clear intention to exonerate the personalty before resort will be had to the realty;</p> <p>Where an aged testatrix, after selling certain real estate known as the "Octagon Cottage’’ which she had devised by the 7th clause of a will drawn by herself, indorsed thereon "Codicil — The above 7th -bequest of Cottage sold and instead bequeath house on Saratoga Ave., cor. Kavanaugli St.” and signed her name to such indorsement, and the personalty not specifically bequeathed is insufficient to pay the funeral and administration expenses and debts, but it is apparent from a subsequent clause of the will that she expected all her debts and expenses would be paid from the income of her estate, her intention to devise the property mentioned in the codicil cannot be carried out because of lack of formality of execution.</p>

<p>Wills — Authentication of — Construction of — When probate refused —Residuary legatee — ¡Statutes.</p> <p>Where the language of a statute is plain, to construe it to mean what it says is reasonable.</p> <p>Where a stationer’s blank form folded across the short way of the paper making four pages, none of which were numbered, was used by decedent in fhaking his last will, and on the fourth page, more than half of which is blank, and on which there is no signature or authentication of any kind, there appears in the handwriting of decedent a money bequest to one already named as a legatee with an expression of a desire that he shall be the residuary legatee of decedent’s estate, and such writing is not in continuation of anything written elsewhere in the instrument nor referred to in any way nor authenticated in any manner, and the signatures of testator and of the subscribing witnesses are on the third page, probate will be refused on the ground that the instrument was not signed “at the end.”</p>

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

<p>Gifts — When gift cannot be sustained — Bequest to unincorporated RELIGIOUS SOCIETY-CORPORATIONS.</p> <p>A direct -bequest to a religious society, unincorporated at the time of ■testator’s death, is invalid and though it appears that the legatee was duly incorporated after the death of testator the attempted gift cannot be sustained as one to a de facto corporation.</p>

<p>Wills — Signature of testator — When probate decreed — Subscribing witnesses — When signature mat be regarded as being “at the end OF THE WILL. ’ ’</p> <p>Where all the writing of a last will, drawn on a blank form, other than that of the subscribing witnesses is in the handwriting of testator and both witnesses testify that testator’s signature, which was in the attestation clause, was written therein by him before they signed it, testator’s signature may properly be regarded as being “at the end of the will,” and probate thereof will be decreed.</p>

<p>Appeal — By executrix from order assessing transfer tax — Surrogate’s Court.</p> <p>On. an appeal by the executrix from a pro forma order assessing a transfer tax, the same was reversed. Subsequently another order was entered as of course assessing the tax in accordance with the supplemental report filed in accordance with the opinion rendered on the first appeal to the surrogate. Thereupon, the state comptroller appealed to the surrogate from the second order fixing the tax and the executrix also appealed from the same order urging a ground of appeal that might have been raised on his appeal from the first order entered, but which was not incorporated in the notice of appeal taken therefrom and therefore was not reviewed. In dismissing the last mentioned appeal of the executrix and affirming the order appealed from by the state comptroller, Reid, that it must be assumed that the appellant considered the first order appéaled from correct in all respects, except such as she alleged to be errors in her notice of appeal therefrom; that the order fixing the transfer tax is an entirety and a party appealing therefrom should present upon that appeal every objection which he has to the order; that only such objections as the appellant specifies may be considered, and that the specification of one or more objections is deemed equivalent to a concession that the appellant deems the order correct in all other respects.</p>

<p>Accounting — Settlement of decree upon — Wills—Executors and administrators — In Surrogate’s Court — What is sufficient to effect A LEGAL CONVERSION.</p> <p>A will authorized the executor to sell real estate in order to pay a ¡bequest out of the proceeds in ease the personal estate should be insufficient. From the account filed it appeared that the personal estate was sufficient to pay the legacy referred to. On settlement of, the decree on an accounting,</p> <p>Beld, that the power of sale in the will in question was not mandatory ■ and, therefore, in the absence of a controlling intention to the .contrary to be gathered from the whole will, did not work an equitable conversion; that the mere fact that a will provides that real estate should be sold to pay a legacy is not sufficient to effect an equitable conversion of real estate so as to make all of the proceeds of the sale personalty.</p>

<p>Proceedings on the probate of a. lost will under sections 2613 and 1865 of the Code of Civil Procedure.</p>

<p>Pboceedihg for the construction of a will under section 2615, Code of Civil Procedure.</p>

<p>Wills — Provisions of — Testamentary capacity — Appearance by special GUARDIAN IN PROBATE PROCEEDINGS-JURISDICTION OF SURROGATE’S Court — Code Civ. Pro. sec. 2490.</p> <p>A legatee who appears in probate proceedings by a special guardian, duly appointed by the surrogate, is bound by the decree admitting the will to probate to the same extent and in the same manner as the other parties to the proceedings.</p> <p>Under section 2490 of the Code of Civil Procedure the jurisdiction-of the surrogate to vacate a decree of probate -is limited to those cases where the moving papers show fraud in the probate proceedings, or the existence of such newly-discovered evidence as would change the result if a new trial were granted'; it must appear, however, that such evidence has been discovered since the trial and could not, by the exercise of due diligence have been discovered before, that it is material to the issues and not merely cumulative or impeaching or contradicting former evidence.</p> <p>Where, notwithstanding the advanced age of a testatrix and her eccentricities and peculiarities, she by her will provided for those who were the natural objects of her bounty and comprehended the scope and bearing of the provisions of her will, she will be deemed to have had testamentary capacity.</p>

<p>Wills — Construction of — “ Out of the residue ” does not make a bequest A RESIDUARY BEQUEST WHERE A “ TRUE RESIDUARY ” CLAUSE FOLLOWS.</p> <p>A testator, after bequeathing a certain sum in trust hy a. clause in his will declaring “ out of the residue of my estate then remaining,” directed that a portion thereof, to-wit, the sum of $30,000, should be set aside as a separate trust estate, the net income to be applied to the use of a nephew of testator for life and upon his death to the use of his widow during her Ifetime, and that upon the death of both of said beneficiaries the corpus of the said trust estate should be divided among and paid over to the issue of said nephew, then living. Held, that said legacy of $30,000 to the trustee was not a true residuary lagacy and that upon the death of said nephew and of his wife leaving no issue then surviving the corpus of said estate passed under a subsequent, and the true, residuary clause of the will to another nephew. who survived testator.</p>

<p>Deeds — What creates a joint tenancy between husband and wife — ■ Assignment of undivided one-i-ialf interest in bonds and mortgages WHEN NOT SUBJECT TO TRANSFER TAX. Constitutional law — When article I, section 6, of the State Constitution violated — Tax Law, section 220.</p> <p>Where a wife’s deed of conveyance to her husband of an undivided half of certain real estate expressly declares her intention to he to create a joint tenancy in herself and her husband with an absolute fee in the survivor, the husband’s right of survivorship upon the death of bis wife is not subject to a transfer tax. (Matter of IClatzl, 216 N. Y. 83, distinguished.)</p> <p>Where both decedent and lier husband for a valuable consideration assigned to each other, an undivided one-half interest in various bonds and mortgages so as to hold them as joint tenants and not. as tenants in common and so that the survivor should have the absolute title and ownership, the right of survivorship is not subject to a transfer tax.</p> <p>Where prior to the amendment of 1915 to section 220 of the Tax Law there were deposits in several savings banks in the joint names of the husband and wife, payable to either or to the survivor, the right of the husband to the entire amount in the event of his surviving betng derived from the transaction which resulted in the opening of the joint accounts, no part of them was subject to a transfer tax as part of the wife’s estate.</p> <p>The amendment (Laws of 1915, chap. 864) to section 220 of the Tax Law, making taxable intangible property held in the joint names of two or more persons either as tenants by the entirety or as joint tenants, cannot be given a retroactive effect so as to tax interests vested prior to its enactment; such construction would be1 in effect to impose a tax upon property and not a tax upon succession to property and would violate section 6 of article I of the State Constitution.</p>

<p>Appeal by Clarissa Sprake fróm an order of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 9th day of September, 1916, denying her application for an order directing the Union Trust Company of New York, as executor, to pay her $10,000 as the amount of a legacy.</p> <p>William Washington Cole died March 10, 1915, whose will, executed June 5, 1900, was admitted to probate on May 10, 1916. It contained this provision:</p> <p>“ VI. I direct my executor to purchase within one year after my death of some Life Insurance Company or other company sound financially doing business in Great Britain of said executor’s selection an annuity payable quarterly to each of the following named individuals, said' annuity shall be such sum as the amount specified in each case shall procure. There shall be expended for each one of said annuities as follows: * * *</p> <p>“ 4. The same sum of Ten Thousand Dollars shall be expended in each case for an annuity as above provided for each one of the following named individuals, viz:</p> <p>“ a. Clarissa Sprake, of London, England, wife of Henry Sprake and daughter of my mother’s brother Henry Cooke.”</p> <p>The testator also named many legatees in the United States, directing that for them annuities should be purchased from some life insurance company, or other company sound financially, doing business in New York city, to be selected by his executor.</p> <p>The testator left a personal estate of over $1,000,000, and about an equal value in unincumbered real estate. The bequests provided for in the will, exclusive of those that have lapsed, amount to about $660,000.</p> <p>• Clarissa Sprake, by writing dated March 10, 1916, asked the Union Trust Company, as executor, to pay over to her the sum of $10,000 in lieu of purchasing for her an annuity as the will directed. This the executor declined unless so ordered by the court; whereupon, on June fifth last, Mrs. Sprake noticed a motion before the Surrogate’s Court for such relief. From order of the Surrogate’s Court denying this motion Mrs. Sprake appeals here.</p>

<p>Appeal by the defendant, Frank Kimball Scribner, as executor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange .on the 2d day of May, 1916, upon the decision of the court after a trial at the Orange Special Term.</p>

<p>Will — Probate—Proof of due execution — Signature by testator mak- * ing mark — Expert testimony as to making of Mark.</p> <p>In a proceeding for the probate of a will -signed by the, testator making a mark, the three attesting witnesses, one of whom was a lawyer, testified as to the due execution of the will. The lawyer testified that the mark was made in this way — the testator “ put his fingers on the pen and I moved it,” while the other two witnesses testified that he made the mark without assistance. The fact, however, according to the testimony of the three witnesses, that the testator signed -the will by making mark, is uncontrad-icted.-</p> <p>Held, on all the evidence, that the will was properly signed and exe- ’ euted by the testator;</p> <p>That, under the circumstances, -the surrogate did not err in rejecting the testimony of an expert by whom it was sought to prove that the mark by which the will was signed was not made by the testator.</p>

<p>Surrogate’s Court — Probate proceedings — Eight to oral examination OF SUBSCRIBING WITNESSES-SECTION' 2611 OF THE CODE OF ClVIL PROCEDURE construed — Examination by general guardian.</p> <p>Section 2611 of the Code of Civil Procedure, relating to the examination of the subscribing witnesses to a will in proceedings for probate, should he interpreted to mean that any party -to the proceeding is entitled to examine the subscribing witnesses whether he has filed objections to the probate or not. He is entitled to an examination in advance of filing objections as well as thereafter.</p> <p>Said right of oral examination of the subscribing witnesses should be accorded to the general guardian of infants interested in an estate.</p>

<p>Attorneys — Authorization from client empowering attorney to appear — Executors and administrators — When petition of non-resident TO COMPEL SETTLEMENT OF ACCONT WILL NOT BE FILED.</p> <p>A petition of a non-resident to compel the judicial settlement of the account of an executor signed and verified by the attorney for the petitioner will not be filed until the attorney presents an authorization from his client empowering him to appear, initiate and prosecute the proceeding.</p>

<p>Transfer tax — Trust deed — Where separate interests should be SEPARATELY ASSESSED IN FIXING TRANSFER TAX' — CORPUS OF ESTATE-Laws 1915, chap. 664.</p> <p>The delivery of a deed of trust containing no power of revocation to the grantor completes the transfer of the corpus of the trust fund and its liability to a transfer tax is to be determined by the law in force at such delivery.</p> <p>Where the decedent by her trust deed which contained no power of revocation provided for the payment to her of the income for life it is proper in a transfer tax proceeding, as against the remaindermen, to ascertain the value of the corpus of the estate as of the date of the death of the decedent.</p> <p>Where the trust deed was executed prior to the enactment of ehaptdr 664 of the Laws of 1945, relating to transfer taxes and the rates thereof, there should not be added to the estates in remainder the amount of legacies passing to the remaindermen under the last will of decedent but the separate interests should be separately assessed in fixing a transfer tax.</p>

<p>Proceeding upon the judicial settlement of the accounts of an executor and trustee.</p>

<p>Application for the appointment of a testamentary guardian of an infant.</p>

<p>Guardians — Appointment of — Surrogate's Court — Jurisdiction —• Code Civ. Pro., § 2514.</p> <p>Under section 2514 of the Code of Civil Procedure an application for the appointment of a guardian of the person and estate of an infant, as the successor of a guardian theretofore appointed, should be made to the Surrogate’s Court which exercised jurisdiction originally on the appointment and subsequently on the removal of the guardian.</p>

<p>Transfer tax — Fixing of — Wills — When commissions on real PROPERTY NOT ALLOWED -EXECUTORS AND ADMINISTRATORS.</p> <p>Where testatrix devised certain real property to her children who were also her executors and given hy the will a mere power of sale without direction to sell, and it docs not appear from the will or otherwise that a sale is necessary to carry out the testamentary provisions or that the executors intend to sell, commissions on the real property should not he allowed and deducted as an administration expense, in. a proceeding to fix a transfer tax.</p>

<p>Wills — Legacy — Guardians — Executors and administrators — Testamentary guardians — Trusts.</p> <p>The principal of a legacy to testator’s son was payable on his reaching thirty years of age, with direction that in the meantime the income be paid to him every six months. A like legacy to testator’s granddaughter provided that it and the interest thereon should be paid to her when she was eighteen years, of age and each of them was given one-third of the residuary estate with direction that “ such one-third share of the principal and interest shall be payable” to the son “when ■he reaches the age of twenty-five years,” and the other one-third shall he payable to the granddaughter “ when she reaches the age of twenty-five years of age.” The will then attempted the appointment of two persons named “ to be guardians of the property of my son and my granddaughter * * * until they shall reach the respective ages ” and in a separate paragraph the same persons were appointed executors of the will. "Opon the judicial settlement of the accounts of the executors, held, that while the appointment of guardians for the son was valid as to his interest under the will, it was effectual only during his minority.</p> <p>That while neither as to the son beyond his minority, nor as to the granddaughter for any period, was the attempted appointment of any effect to produce a true testamentary guardianship, yet there was still the gift of a power over the legacies to both, which was measured and defined by the duties ordinarily incident to a testamentary guardianship.</p> <p>That during the minority of the son his testamentary guardians were entitled to receive the semi-annual payments of interest upon the legacy to him as well as the personal chattels bequeathed to him, hut in all other respects the persons indicated as guardians have only a power in trust to care for any and all moneys or property which by the terms of the will shall become payable to the infants before the expiration of the time which the will set for the payment of the principal of the legacies.</p> <p>The powers in trust contained in the 'will adhere to the donees personally, and not in any representative capacity, and should be exercised by them as incidental to their duties as executors, if occasion for the exhibition of such powers shall arise.</p> <p>The executors should pay to themselves as guardians, upon proper security, the income of the legacy to the son during his minority and deliver to themselves the chattels bequeathed to him.</p> <p>The executors should also hold' the sums bequeathed to the son and granddaughter until payment of such sums or any part thereof shall become due and upion the happening of such event any party in interest may apply upon the foot of the decree to be entered thereon for further direction.</p>

<p>Wills — Provisions of — Insurance (life)— When gift not cut down.</p> <p>Where a will states that, in accordance with his intention that his wife should receive $50,000 in cash at his death, testator- had assigned or made payable to her certain life insurance aggregating $45,000, the initial gift is not cut' down by a provision of the same clause of the will giving her $5,000.</p>

<p>Wills — Proi isioxs of —■ Devise to trustees —• Codicil — Application FOR FURTHER DIRECTIONS.</p> <p>An entire estate was devised to trustees to pay the income therefrom to testator’s wife for life and, in the event of her death before their daughter, all the income was payable to her for life and in the event of the death of the wife, and of the daughter without issue, the trustees were directed to pay the estate to the legal representatives of testator then living. Held, that the provisions of a codicil revoking the bequest to testator’s said legal representatives and directing that in case his son-in-law survived his wife, testator’s daughter, the entire income of the estate should be paid to him and at his death the estate paid to testator’s legal representatives then living, so far as they sought to extend the trust for a third life, were void; that the provisions of the will T>y which the trust estate was suspended for two lives were valid; that the trust fund must remain in the hands of the trustees during the life of testator’s daughter and upon her death any party in interest may apply for further directions with respect to said trust fund.</p>

<p>Application to give security for costs in a proceeding upon the probate of a will.</p>

<p>'Wills — Provisions of — Corporations — Dividends — What is “ income ” —■ What represents earnings or profits.</p> <p>A will provided that after the death of testator’s wife, to whom he gave the entire net income of • his estate, it should he paid to his ■daughter during her life. Five years after testator’s decease a corporation in which 'he held stock at the time of his death began a suit to recover for loss of profits because of alleged infringement of certain of its patents, and, after the death of testator’s wife, received a substantial sum in settlement of the litigation. Held, that an extraordinary dividend declared from such fund was “ income ” and that there should be such an apportionment thereof between the life tenant and remainderman, that the latter may receive such part as represents earnings or profits before the death of testator, and the former suc-li part as represents earnings or profits since that date.</p>

<p>Application to open and modify a decree of this court, entered January' 19, 1910, which judicially settled the account of executors.'</p>

Application by a party who has filed objections to the probate of the alleged will and testament of testatrix for an order under section 2536 of the Code of Civil Procedure, directing an assistant to the surrogate to examine the temporary administrators heretofore appointed in this estate.

<p>Jurisdiction •— Of Surrogate’s Court — Marriage — Divorce — When application for letters of administration denied — Evidence — When judgment not subject To review.</p> <p>The Surrogate’s Court not having cognizance of matrimonial causes should not in the exercise of its jurisdiction, unless imperative so to do, go behind a marriage long established by cohabitation and reputation.</p> <p>The Jewish law of Rumania recognized divorces by rabbis, and such divorces are recognized in this jurisdiction.</p> <p>A rabinnical divorce in Rumania may be proved by parol.</p> <p>Where immigrants upon their arrival in this country represent themselves to be husband and wife and forever after live together as such, a common-law marriage between them will be presumed.</p> <p>An application for the revocation of letters of administration upon an allegation that the administratrix in her petition for letters falsely suggested that her daughter was the daughter of the decedent, considered, and the application dehied, it appearing that said suggestion was not made in bad faith.</p> <p>The Appellate Division of the Supreme Court in the exercise of its original jurisdiction may substitute its own findings of fact on the evidence for the surrogate’s findings, and its judgment is not subject to review.</p>

<p>Proceedings upon the judicial settlement of the accounts of an administrator.</p>

<p>Executors and administrators — When consent of comptroller to TRANSFER OF SECURITIES MAY NOT BE ARBITRARILY REFUSED - TRANSFER tax — Appraisal by jewelry expert — Tax Law, § 227..</p> <p>Under section 227 of the Tax Law which prohibits a transfer of securities, etc., belonging1 to or standing in the name of a decedent by a safe deposit company, trust company, corporation or person, without retaining a sufficient amount thereof to pay any transfer tax which may thereafter be assessed, unless the state comptroller consents thereto in writing, Ms “ consent ” is not a matter of favor, but a right which an administrator' is entitled to, and it may not ibe arbitrarily refused, and in case of such refusal the administrator may apply to the Surrogate’s Court for relief.</p> <p>Where it appears that the state comptroller’s representative required an administrator to have jewelry of decedent in a safe deposit vault appraised by a jewelry expert before consenting to the delivery of the ■ jewelry to the administrator, and it further appears that the estate may be benefited-by the appraisal, the court on application of the administrator will allow a reasonable fee to the appraiser for his services.</p> <p>The administrator having given to the comptroller the notice provided by section 227 of the Tax Law was entitled to the immediate possession of the jewelry and of furniture on storage, though the state comptroller withholds his consent to such delivery.</p>

Appeal by Louis F. Leland from an order of the Surrogate’s 'Court of the county of Yew York, entered in the office of said Surrogate’s Court on the 2'ith day of July, 1916, denying his motion for the examination of thé respondent before the trial or hearing on the objections filed relating to the qualifications of the petitioner to act as executor of the last will and testament of Francis L. Leland, deceased.

<p>Separate appeals by Laletta Leland and others, and by Frank R. Leland and another, from an order of the Surrogate’s Court of the county of Yew York, entered in the office of said Surrogate’s Court on the 20th day of July, 1916, granting the application of the respondent for the issuance of letters testamentary to him as executor of the last will and testament of Francis L. Leland, deceased, pending an appeal from a former decree directing the issuance of said letters and overruling objections to the qualification of the respondent as executor.</p> <p>Appeal by T-ouis F. Leland and another from an order of said Surrogate’s Court, entered in the office thereof on the 20th day of July, 1916, denying the application of the appellants for the appointment of the United States Trust Company of blew York as temporary administrator of the estate of Francis L. Leland, deceased.</p>

Separate appeals by the defendants, Laletta Leland and others, and the defendants Frank R. Leland and another, 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 12th day of July, 1916, overruling the objections of the appellants to the issuance of letters testamentary upon the will of Francis L. Leland, deceased, to the respondent Timothy H. Oheesman, and granting to him letters testamentary thereon.

Appeal by Lester C. Gilman, as executor, from a decree of , the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 24th day of January, 1916, judicially settling his account.

<p>Appeal by the petitioner, Thomas McDonough, from a decree of the Surrogate’s Court in the county of New York denying his application herein.</p>

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

Appeal by the appellants from two ordets of ’the Surrogate’s Court of the county of Richmond, entered in the office, of said Surrogate’s Court on the 27th day of May, 1916, and the 14th day of September, 1916, respectively. Before the surrogate of Richmond county had admitted this will to probate, he appointed, as temporary administrator, Mr. Apel, the executor named in the will. On probate of the will Mr. Apel received the usual letters testamentary.

<p>Wills — Action to determine validity of — Trial — Evidence —• Codicil — Undue influence — When verdict in favor of proponents directed — Code Civ. Pro., § 25SS.</p> <p>Where in an action under section 2538 of the Code of Civil Procedure to determine the validity of a last will the jury is unable to agree, the court has power to direct a verdict.</p> <p>Upon the trial of such an action it was conclusively shown that the codicil to the will was executed with all the formalities required by statute and there was no sufficient evidence of undue influence to justify the submission of that question to the jury, and while the testimony disclosed many odd, unnatural and irrational acts of testatrix these acts were not continuous, and it was established beyond dispute that during many and long periods subsequent tozthe time the codicil was executed testatrix was entirely rational and of full understanding mind. Not only was there no evidence from which an inference could be drawn, at least by a layman, that testatrix was in an incompetent condition on October 20, 1910, the day she executed the codicil but it was conclusively established that from October 16, 1910, until after October 20, 1910, she was in her normal and rational state of mind, conversant with her affairs and competent to look after them. Each of the subscribing witnesses, one of whom was a physician, relating in substance what occurred at the time of the execution of said codicil, testified that testatrix at that time was competent. Of four alienists called to testify as to her condition on that day two stated that in their opinion she was competent and the other two that she was incompetent. The question, directed by the surrogate to be tried in the action was whether at the time of making said codicil testatrix was of sound mind and memory and capable of making the instrument. The jury disagreed and upon the court entertaining a motion by proponents for the direction of a verdict it was stipulated by the parties before the jury was discharged that the motion might be retained and that the court might direct a verdict in all respects as if the jury were present, whereupon the jury was discharged. Held, that the court having power to direct a verdict should do so and that accordingly a verdict in favor of proponents will be directed, establishing the validity of the will and codicil.</p>