Volume 19 — New York State Reporter

<p>Application for probate of paper offered as 'will of decedent. The opinion contains all the facts.</p>

<p>Collateral inherit an ce tax—Real estate situated in foreign states NOT SUBJECT.TO THE LAWS OF 1885, CHAP. 483.</p> <p>A collateral inheritance tax is not payable under Laws of 1885, chapter 483, upon the passing of real property situated without the state of New York, under a devise contained in a will of a resident of the state of New York.</p>

<p>1. Legacy—Ween interest allowed.</p> <p>The rule which gives interest on a legacy to a child whose parent has left the legacy by way of support and for whose maintenance no other provision is made, does not apply to a case where the legatee has other means of support, although her income may be insufficient for her support in a style which she might desire.</p> <p>2. Same—When a tender of the amount of the legacy stops accumulation OF INTEREST.</p> <p>The tender by the executor to the legatee of the amount of the legacy and interest, if refused by the legatee bars a claim for interest from that time as effectually in the surrogate’s court as in court a of law. The will of the deceased gave to her daughter $20,000, which, by the codicil, was reduced to $10,000. The codicil was contested but admitted to probate. After a year had elapsed the executor tendered to said daughter the $10, - 000, with interest thereon from a year after the date of issue of letters testamentary, which she refused to accept. On the accoui ting she claimed interest from the date of the issne of the letters testamentary, and made affidavit tending to show that she was dependent on the legacy or the interest thereof for support. The executor produced affidavit showing that she had property of her own independent of that devised and bequeathed to her That he had paid her $200; that she had sold part of the, real estate devised to her for $4,000. The will made no provision as to the time when the legacy was to be paid.*</p>

<p>John Cocks, the administrator, died in 1866 leaving an estate of over $100,000, of which a large part consisted of mortgages on Westchester county property. There survived him his widow and five children, two of his daughters being married. All of which were named as executors in his will. His wife after his death remarried.</p> <p>The first clause of the will was as follows: “First. I direct my executors hereinafter named and the survivors of them to invest such sum of my property as will net $1,000, ever and above all taxes and assessments, per year upon bond and mortgage upon real estate in the county of Westchester within three months after my decease, and from such sum so invested to pay to my beloved wife Adelia Cocks, the sum of $1,000 per year from my decease, and to be paid to her by my said executors semi-annually so long as she shall remain my widow, unmarried and no longer, and this provision to my said wife in lieu of •dower.” In the second clause he gave his daughter Anna $3,000. In the third clause he gave the rest, residue and remainder of his estate, “including the above invested sum after the interest of his widow therein should cease, to his children share and share alike, provided that David’s share should be invested on bond and mortgage, the income thereof to be applied to the support of himself, wife and children during his life, and that upon his death his share was to be equally divided among his children. Said David was duly declared by proceeding taken in court to be a lunatic, and George J. Barlow was appointed his committee and received his share of the estate.</p> <p>At the time that these proceedings were commenced Mrs. Haviland as executrix had in her hands about $7,000, of the money of the estate of which about $4,350 was principal. The other necessary facts appear in the opinion.</p>

<p>1. Costs—Taxation op.</p> <p>By section 3328 of the Code of Civil Procedure, the plaintiff is entitled to costs in certain actions upon tlie rendering of final judgment in Ms. •favor. By section 3229 the defendant is entitled to costs upon the rendering of final judgment in an action specified in section 3228, unless the-plaintiff is entitled to costs as herein prescribed. Both parties are entitled, to costs in certain actions under section 3234 of the Civil Code, where the complaint sets forth several causes of action; and issues are joined thereon- and the plaintiff recovers upon one or more and the defendant upon the-others.</p> <p>2. Same—Who entitled to.</p> <p>Where it is shown that under section 3228 the plaintiff is not entitled to-costs it follows that the defendant is entitled to costs. Where the final, judgment in an action is not rendered in favor of plaintiff, he is not entitled to costs.</p> <p>8. Same.</p> <p>The case of Kalt v. Lignot (12 How., 535, affirmed 3 Abb. Pr., 190),, decided in 1856 is not now an authority.</p>

<p>,1. Negligence.</p> <p>Where tlie plaintiff was injured by stepping into a hole in the street between the tracks of a surface railway company, but there was no proof that it was the duty of the company to keep the space between the tracks in repair, and no defect in the construction or maintenance of the tracks was shown, it was held that there was no cause of action, and the complaint was dismissed.</p> <p>The cases of Worster v. The Forty-Second Street Railroad Co. (50 N. Y., 203), Wasmer, adm’rx, etc., v. The Delaware, Lackawanna and Western Railroad Co. (80 N. Y., 212), and Gale v. The New York Central and Hudson River R. R. Co. (76 N. Y. 594) distinguished.</p>

The order continuing the injunction was sustained by the general term. The action was discontinued on plaintiff’s application upon terms, with which terms the plaintiff has complied.

<p>1. Trustee—Title to realty—Purchase by trustee erom trust estate VOIDABLE, NOT VOID.</p> <p>A sale by trustees of trust property to one of tlieir number, as an individual, is voidable, not void, and such title will become absolute, unless avoided by a law suit brought by the proper person and within the legal time .</p> <p>2. Same—Statute oe limitations—When action against trustee barred.</p> <p>Where thirty-four years have elapsed from the time of the purchase-by the trustee, as an individual, of real estate belonging to the trust, all rights of cestui que trusts to avoid the conveyance, are presumably outlawed.</p> <p>3. Same—Contract to purchase—Action to recover back deposit.</p> <p>A person contracting to purchase such property after such lapse of time, cannot maintain an action to recover back the deposit paid on signing the contract.</p>

The testator died at Stony Point, in Rockland county, leaving him surviving Charlotte Rose, his widow, and two infant children, named Wallace and Emma.

This proceeding was instituted before the surrogate of Westchester county for a settlement of the accounting of Joseph G. Jennings, the administrator, with a will annexed, of Samuel S. Barry, deceased, both of the executors named in the will being dead. By the last will and testament of Samuel S. Barry, deceased, he gave legacies to various persons, and among others to his grandson, William R. Hull, who was to be paid $1,000 upon the decease of the testator.

On proceedings for the probate of the paper alleged to be the last will and testament of Mary Masterton, which was dated in August, 1878, it appeared that she had a sister Caroline, both of whom resided in Tarrytown together, and owned and enjoyed real and personal property, wholly or in part, in common. That neither of them were married. The alleged will was executed at Albany while Mary was visiting her cousin, Eobert F. Todd, and his family.

The father of the infants set forth in his petition that an order was made -by this court in 1886, which .directed the Farmers’ Loan and Trust Company, guardian of the estate of said infants, to pay out of the money in its possession belonging to them to their father a certain sum of money for expenses which he had already incurred for their support, maintenance and education, and a certain sum quarterly thereof until the further order of the court.

The decedent died in 1887, leaving an estate valued at about $60,000, and a will dated in Jaly, 1881, with two codicils made in February, 1881, and September, 1886. By the last codicil a legacy in the will to the Presbyterian Church, in Chester, was revoked, and the amount that had been given to it, was by said codicil given to the American Bible Society.

<p>1. Cemeteries—Right to burial—Eligibility.</p> <p>When a party applies for a burial lot in a distinctively denominational cemetery, it is with the understanding that the person to be buried is a member .of that denomination, and that to be eligible for burial in that cemetery, he must die in communion with that denomination.</p> <p>2. Same—When question not a legal but religious one.</p> <p>Whether or not a person dies in the faith of a certain church, is not a fact to be legally proved, but at most, a conclusion, resulting from a specific religious belief, indicated, as far as may be, by actions conforming to the established tenets of that church.</p> <p>3. Same—When decision oe religious tribunal will not be reviewed BY THE COURTS.</p> <p>Such a question is not a legal, but a purely religious one, proper for discussion by the empowered authorities of the church, and the courts will not review any decision of a proper religious tribunal on matters of faith, discipline or doctrine.</p>

<p>1. Distribution of decedent’s estate—Payment of—Personal property MUST BE USED FOR PAYMENT.</p> <p>The general rule is that a deceased person’s estate is to be applied to the payment of his debts in the following manner: 1. The general personal estate. 2. An estate specifically devised for the payment of debts. 3. Estates descended. 4. Estates specifialijr devised, though charged generally with the payment of debts. It requires express words, or a clear intent of the testator, to disturb this order.</p> <p>2 Same—Effect of charging- real estate.</p> <p>The personal estate must be first resorted to, even when the real estate is charged by express words in the will, and where the testator gives his personal estate, he is supposed to give it subject to the payment of his debts. When he charges his real estate with the payment of debts, it is presumed to be such debts as remain after the personal estate is exhausted.</p> <p>3. Same—Meaning of the words “after all my debts are paid” in will.</p> <p>The will in which there are devises following the words, “ after all my debts are paid,” indicates an intention on the part of the testator to make the lands devised subject to the debts.</p>

<p>Temporary administrator—Will not be allowed sum paid a company to be ms bondsman.</p> <p>A temporary administrator cannot credit himself with the fee paid by him to an indemnity company for going bail for him.</p>

Appeal taken from a judgment of foreclosure and. sale entered on June 2, 1888, in favor of the plaintiff, at special term, held by Hon. Joseph F. Daly, Judge. The defendant, William H. Niebuhr, is the only appellant. He was the owner of three-fourths interest in the equity of redemption of the mortgaged premises, as appears by the evidence adduced upon the trial.