Volume 2 — Bradford's Surrogate Reports

<p>In a question of legitimacy, it was adjudged by the Surrogate, that C. A. was “ not the lawful issue” of G. M., and “ was not entitled to any interest whatever in the estate of the said G. M., deceased.” On appeal, the Supreme Court decreed, “ that the said C. A. is the lawful issue of the said G. M., deceased, and that the said decree of the said Surrogate, be, and the same is hereby, in all things reversedand “ that the'said Surrogate resume and proceed with the accounting in reference to the estate of the said G. M., deceased.” This decree was affirmed by the Court of Appeals. On the resumption of the accounting before the Surrogate, an application by the executors of G. M., for leave to furnish additional proofs on the question of legitimacy, was denied.</p> <p>By the course of procedure prevailing in courts proceeding according to the practice and rules of the civil law, the effect of an appeal is to transfer the entire case, not merely for revieio, but also, if deemed proper, for trial; and it is competent for the appellate court to hear further testimony on the old, or on new allegations.</p> <p>The appellate court may not only affirm or reverse the judgment below, hut may modify it, or make an entirely new decree in accordance with its own views of justice; an,d in such case its adjudication is conclusive, and the Surrogate has no authority to hear farther proofs on the point so determined.</p> <p>An executor duly served with the original citation and neglecting to appear, though not made party to the appeal, has no right, on the cause being remitted, to litigate the question contested by his co-executors before the Surrogate, and determined by the court above on appeal.</p> <p>Executors having made partial distribution, after notice of a claim on the establishment of which the estate becomes insufficient to pay all the' debts of the deceased, must nevertheless respond to the creditors to , the full extent of all the assets.</p> <p>If, on taking the inventory, the property directed by statute to be set apart for minor children, was not so apportioned, the error may be corrected on the accounting.</p> <p>The advertisement for claims protects the executor, in case of distribution after the advertisement has expired.</p>

The petition in this case set forth that by an act of the Legislature of Wisconsin, (then including the present Territory of Iowa) approved 23d June, A. D. 1838, it was enacted that, for the purpose of permanently establishing the seat of justice of Scott County, a poll shall be opened at each precinct in said county at the general election, on the first Monday in August then next ensuing, for the purpose of deciding whether the town of Davenport or the town of Rockingham…

<p>The will of the testator stated that he was desirous of making “ a.general disposition ” of all his estate, real and personal; directed in the first place “ all his just debts to be paid; ” devised all his real estate to his “ executors ” on certain trusts, and among others in trust,—if his personal estate should be insufficient, “ after payment of his debts,” to pay legacies amounting to §400,000, to his children and their issue,—that his executors “ should sell such part of the real estate, as would enable them to make up and provide the said several sums.” He gave all the “ rest, residue and remainder ” of his estate to his executors, and also empowered them, “ whenever they should think it expedient,' to sell all or any part of his real estate,” provided that the change of the character of the funds should not change the disposition thereof.</p> <p>The executors having sold the real estate, were cited to account for the proceeds, by a creditor, the personal estate being insufficient for the payment of the debts. Held, That the Surrogate had power to call the executors to account for the proceeds of the sales, and to compel distribution in the same manner as if the proceeds had been originally personal property.</p> <p>The distinction as to legal and equitable assets, no longer prevails as to the proceeds of the sale of realty, but such proceeds, when the real estate is sold by order of the Surrogate, are distributed in the same manner to creditors as the personal estate. The only effective remedy provided by statute for the specific application of the realty to the discharge of debts, is vested in the Surrogate’s Court.</p> <p>Where the will directs a conversion of the real into personal estate, the money arising from the sale becomes legal assets in the hands of the executor, for which he is bound to account before the Surrogate. If • a mere authority to sell is given to the executor, he may bring the proceeds into the Surrogate’s office for distribution, as the proceeds of the sale of real estate.</p> <p>If the intention of the testator to charge the debts upon the real estate can be gathered from the will, and the executors have a power of sale under which they have acted, they may be cited to account and distribute,—the intention to charge the debts on the realty affecting the power so as to make it an imperative power in trust, tantamount to a peremptory order to sell in case of the personalty being insufficient to pay the debts.</p> <p>If the real estate is ordered to be sold for the payment of legacies, the Surregate has power to compel distribution at the instance of creditors or legatees.</p> <p>Several suits may proceed in the same court or in courts of concurrent jurisdiction, by plaintiffs seeking an account of executors and administrators, and payment of their respective claims; but when a decree for a general account and distribution is made in one suit, and the other creditors are authorized to come in under the decree and obtain satisfaction of their demands, the other suits will be stayed. But if provision is not made in the decree, for the payment of the claims of all creditors, or allowing them to apply for payment under the decree, such other creditors are not barred from proceeding in their own suits to a final decree.</p>

<p>Under the statute, Jan. 4, 1839, relating to promissory notes, it is sufficient to prove the existence ot a partnership, and its style, and not necessary to prove the indi, vidual names of the partners.</p> <p>In a suit commenced previous to that statute, the trial of which took place after-wards, the rules of decision in all the subsequent stages of the proceeding, so far as they relate merely to the remedy, will be regulated by that statute.</p>

This was air action of debt on note under seal, plea non est factum, verdict for defendant.

Action of debt on a judgment from Illinois. Plea nul tiel record, and issue to the court.

Tins was an action of debt brought by Smith et al. against Hill on a promissory bote. Plea non est factum. And afterwards the case was submitted to the eonrt on an agreed statement of facts, as follows. First. ' It is admitted in evidence that the writing obligatory in the plaintiffs’ said declaration mentioned, was executed and delivered to the said plaintiffs by- the said defendant according to the tenor thereof. Secondly.

<p>The direction of the statute, that administration with the will annexed shall he granted to the residuary, general, or specific legatees, or to the widow or next of kin, or to creditors “in the same manner and under the like regulations and restrictions, as letters of administration in case of intestacy,” makes it necessary to require a bond with sufficient sureties, in all cases—as well where the grant is made to a legatee as where it is made to the widow, next of kin, or creditors.</p> <p>The section requiring “ every person appointed administrator ” to execute a bond, includes an administrator with the will annexed. In general, the term “administrator,” in the statutes relative to the estates of deceased persons, includes “ administrators with the will annexedand the latter are subject to all the provisions applicable to administrators generally, except so far as the distribution of the estate is directed by the will.</p>

The application should be granted. I. The judgment of Dudley is' against, and payable out of the estate of Nathaniel L. Griswold, deceased. It is a debt due from the estate. The judgment which they seek to set off, has been purchased by the executors since the death of the testator. II. An executor cannot, either at law or equity, set off a demand purchased by him after the death of the testator against a debt due by the estate.

This case came into the C.ourt below by appeal from a J ustiee of the Peace.— The suit was brought by Payne for use of Clark vs Griffey on a note of hand for fifty dollars — verdict for plaintiff $55 70, and judgment thereon.

The court below erred m not instructing the jury that if they believe from the evidence that the note in controversy was given prior to October 1S36, in consideration of a valuable improvement on the public lands of the United States, that such improvement is not a good consideration for said note..

<p>A plea put in before an amendment to declaration cannot be considered as answering amended declaration. Where a declaration which is pleaded to is withdrawn for amendment, is amended arid refiled, it is viewed as anew declaration: and the withdrawal of it would seem to render any plea to it a nullity.</p>

<p>The appointment of an executor may be express or constructive, and though a person be not appointed executor by that name, yet if the testator commit to his charge duties which it is ordinarily the province of an executor to perform, the intention to invest him. with that character may be inferred.</p> <p>Where the testator by his will said, “After all my just debts being paid, I wish my brother E. M. D., to invest all my property, consisting of a farm, Ac., six hundred dollars, Ac., in the Greenwich Savings’ Bank, Ac., and chattle property when converted into cash; and the interest accruing thereupon to be transmitted to my father; and the capital, at my father’s death, to be divided among my three brothers,”—Held, that E. M. D. was designated to execute the will, and was executor according to the tenor.</p>

<p>This was an action of assumpsit on a promissory note, brought by Wilson,, endorsee, ’against Strang, the maker. Plea gen. issue, and notice that on the trial of the '•ase the defendant will offer evidence tp prove that the note on which suit is instituted was obtained from the defendant by fraudulent representations, and without' a valuable consideration. And also notice that the defendant will require the plaintiff to prove that the note was obtained for a valuable consideration. Judgment for the plaintiff, and exceptions thereto, for that the defendant having introduced testimony to show that said note was given for unimproved lands belonging to the Unitfed States, the plaintiff offered to prove by Smith, the payee and endorser of said note, that the same was endorsed to the plaintiff before maturity and for a good and valuable consideration, to which testimony the defendant objected, and the objection was overruled by the court.</p> <p>For the plaintiff it was contended that the contract was illegal and void in its inception, and could not acquire validity by being transferred even before due and for a valuable consideration. , Slat. Cong, in relation to lands, act 1807 p. 157. — Carson vs. Clarh, 2 Breese p. 19. — Blackford's R. 1, 19, Boston vs. Dodge. — Frew vs. Hardenbogh, 5 Johns. R. 272. The contract being illegal in its inception, the note could acquire no validity by transfer. Wiggins vs. Bush 12 Johns. R. 306,— Wilkie vs. Roosevelt 3 Johns. Cas. 66. Any contract founded on the performance of a prohibited act is void ah initio, though the statute contain, no express words to that effect. Wheeler vs. Russell 17 Mass. R. 258, and cases there cited. Wilkie vs. Roosevelt was decided under the usury statute, which at that time contained no saving clause for the benefit of bona fide holders of notes, but merely prohibited usury. The law is changed since 1st Jan. 1830.</p> <p>2. The endorser was improperly admitted as a witness without a release or without showing that he was not liable as endorser. 6 Cow. R. 471, Baskins vs. Wilson.— Talbot vs. Clark 8 Pick. R. 51. — Barnes vs. Ball 1 Mass. R. 73.— Rice vs. Stearns, 3 Mass. R. 225. — Emerton vs. Andrews, ib. 4, 653. — Mann vs. Swann, 14 Johns. R. 270. — Shave vs. Ehle, 16 Johns. R. 201. — Herrick vs. Whitney, 15 Johns. R. 240. — Owen vs. Mann, 2 Day R. 399.</p> <p>The indorser is directly interested. He is liable to the holder on his implied warranty as indorser, but not to the maker, because he is in pari delictu with the indorsee. Actio non oritur cx turpi causa it a maxim as old as the law itself. Wheeler vs. Russell 17 Mass. R. 258. — Blanchard vs. Preston, 8 T.R. 89.— Russell vs. Degrand, 15 Mass. R. 39. “And where any portion of an illegal contract remains to be executed the court will not assist either party.” Shifner vs. Gordon, 12 East. 304.</p> <p>In Holman vs. Johnson, Cowper 343 — Lord Mansfield said “ no court will lend its aid to a man who founds his cause of action upon an illegal or immoral act.”</p> <p>Browning, for the defendant. The only thing that appears in error is that the court allowed the endorser as a witness to show the consideration, not as to the legality of the consideration. 2. Star. Ev. p. 9. A party to an instrument is a competent witness to prove it void in its inception. Ib. 179 — 10 Johns R. 231 — 11 Johns. R. 128 — 15 Johns. R 270- 17 Johns. R. 176. 188.</p> <p>Smith could not recover of Wilson in any form of action. It is not his character of endorser hut his interest in the note that excludes a witness. 8 Pick. R. 51, Talbot vs. Clark. — 6 Cowen R. 471, 'Baskins vs. Wilson. — 3 Mass. R. 225 Rice vs. Stearns & at.</p>

<p>The intestate deposited with R. R. B. H. certain sums, taking a certificate that the same had been deposited by “ William and Ellen Harkin; ” Ellen Harkin, the wife of William, survived her husband. Held, that it was informa joint deposit; that having been made in this mode,, with the privity of the husband, it was prima facie a gift to her in case she survived; and that, net having been disturbed in the lifetime of the husband, it became, on his decease, the absolute, property of the wife.</p>

Action of debt on a promissory, note made by Wm. Long payable to Gabriel Long, and endorsed by him to Jerome B. Walling and by said endorsee to Jesse D. Walling.

This was an action of assumpsit brought by the defendant in error against the plaintiff in error, on a promissory note made by said Creighton to one John Millard, and by said Millard assigned to said Gordon. The plaintiff’s declara-ion set forth the execution and assignment of said note, and also contained a count on an account stated between the parties.

I. The requisites of the statute have been complied with in the execution of this will. 1. It was subscribed by the testator at the end of the will. 2. Held: that when it is stated in the attestation clause, that the requirements of the statute have been complied with, specifying them, the mere want of recollection of the witnesses, is not evidence of non-compliance.

Action of trespass quare clausum brought before the District Court by appeal. Plea by part of the defendants only, Cane, Hamilton & A. Carmichael, general issue, no appearance as to other defendants. Subsequently ali the defendants came and moved to dismiss tbe suit, which motion the Court overruled, and the defendants pleaded not guilty.

Action of assumpsit on promissory note executed in State of Illinois brought to the District Court by appeal — plea infancy — and judgment for defendant.— The plaintiffs except to the opinion of the Court, for that on the trial the defendant proved by parol testimony that at the time of executing said note he was a minor, under the age of twenty-one years.

There was a motion to dismiss the writ of error in this case because it was not sued out within one year from the rendition of judgment. The case was brought up to this court from the District court for the County of Lee, on a writ of error. Fike had been indicted for an assault with intent to kill, on which indictment he was found guilty, and judgment thereon had beenrendered against him in said court at the term thereof held on the third Monday of April A. D. 1839.

This case came before the District Court on petition and summons under the statute of Iowa. Judgment for the plaintiffs below, who are the defendants here. The bond on which suit is brought had been assigned by tbe obligee to Fox & al. the plaintiffs, after partial payments made, and balance due thereon $150. Before the obligors were notified of the assignment they were summoned as'garnishees of the obligee.

Action of debt on note under seal brought by J. Cutler, administrator of the estate of George W. Cutler, against Sleeth — plea nil debet, and the plaintiff Cutler thereupon moved for 'judgment by default as for want of a plea: which motion was sustained by the Court, on the defendant’s refusal to plead a different plea, and the opinion excepted to by the defendant below, who brings this case here on a writ of error.

This was an action of debt by petition under the stat of Jan. 25,1839. The petition states that the plaintiff held a bond on the defendants A. W. Harlan and Wm. Duncan, alias Aaron W. Harlan and William Duncan, in substance as follows: “ On or before the first day of April next we or either of us promise to David Hanes the full sum of one hundred and four dollars twenty five cents, as witness our hands and seals this 20th Nov. 1838. A. Wr. Harlan.

Assumpsit on three promissory notes, plea action did not accrue within five years. General demurrer to the plea — overruled—and writ of error brought by plaintiff. The first sec. stat, of Iowa limits actions on the case, except for slander, &c., to five years. The fourth section limits actions of debt founded on promissory note, &c. to six years.

Indeb. Assumpsit by Agnew vs. Lorton on the money counts for money lent and advanced, and for money paid, &e., on a contract by which Lorton was to convey a claim to the public lands. Agnew was unable to pay the whole sum, and the contract was rescinded. By agreement submitted to arbitrators, who awarded that Lorton should pay Agnew $135. Plea geni, issue, and notice of set off. Verdict for plaintiff $139,40, and judgment thereon.

Chick brought his action of assumpsit and obtained a writ of attachment against the property of Carothers, and judgment was rendered generally against the defendant Carothers.

<p>The bond required by statute authorizing appeals must be fiied in Court.</p>

This was an action of assumpsit on an order for 5000 lbs. of lead drawn by one Manchester on Wm. Y. Decker Sc Co. in favor of A. E. Hough, accepted by Decker in his own name, and endorsed by Hough, the payee, to Birhap.— The declaration was in the common form of a declaration on a bill of exchange. Service was on McKnight only, one of the firm of Wm.

This was an action brought by Ralston vs. Smith in a plea of trespass on the case on promises. The declaration contained four counts upon three several promissory notes, and a general count for goods &c. sold. Plea geni, issue — verdict for plaintiff and judgment thereon.

<p>Where the whole estate, real and personal, was given for life to S. and G., with remainder in fee to the issue of G., and in case he died without issue, then over; and the executors were authorized to take charge of, and rent the real estate, invest the personal estate, and pay the whole income to the life tenants,—Held, that all ordinary taxes, assessments, interest on incumbrances, and charges for repairs, should be kept down and paid out of the income.</p> <p>Legacies ordinarily carry interest from the time they are payable, which is usually a year after the testator’s death. The bequest of a life-estate to a child, or to a widow in lieu of dower, are exceptions to the general rule; and in such cases the legatees take interest from the testator's decease.</p> <p>An executor is not bound to prosecute a claim of very doubtful character, at the request of parties having only a contingent interest in the estate, unless they indemnify the estate against the costs.</p> <p>Where there are life estates in personalty, and the will directs the fund to be invested, the investment should be made for the security of the parties who shall ultimately be entitled to the capital.</p> <p>Where real and personal estate are mingled together, and disposed of in the same way, the personalty may be applied to the payment of a mortgage on the realty, if that be a safe investment, and necessary for the preservation of the property. Interest accumulated before the testator’s decease should be paid out of the principal, and not out of the income accruing after his death.</p>

<p>The testator gave to his widow a legacy of one thousand dollars, out “ of money in the safe-keeping of R. S., at lawful interest.” This, with other gifts, was declared to he in lieu of dower. By a codicil, after reciting that by his will she was “ cut short of an interest” in his landed estate, he gave her the annual interest on two thousand dollars, loaned to B. C. Held, that all the legacies were intended as compensation for dower, and carried interest from the testator’s death, on the ground that they were given as an equivalent for the relinquishment of a right, and the legatee had no other means of support under the will. Held, also, that the legacies were in the nature of specific bequests, so that the accruing interest passed to the donee on the testator’s decease.</p> <p>The testator gave his wife the use, for three years, of his house, either to occupy or to let, and at the expiration of that time directed the premises to be sold by his executors, and the proceeds to be divided between his two sons. Held, that the widow was bound to keep down the ordinary taxes during the term.</p>

<p>A claim for the mesne profits of lands occupied by the intestate may be allowed out of the proceeds of his real estate, sold for the payment of his debts.</p> <p>It is competent on the sale of real estate, for the payment of the debts of the deceased, or on the distribution of the proceeds, to offer any equitable defence against the claims of a party alleging to be a creditor; and the heirs are not restricted to a legal defence.</p> <p>The common-law action of trespass for mesne profits was not abolished by the Revised Statutes. Trespass being an action for a tort, died with the party defendant, and did not survive against his executor or administrator.</p> <p>It is, however, provided by statute that for wrongs done to the property, rights, or interests, of another, for which an action might be maintained against the wrong-doer, an action may be brought after his death against his executors or administrators, in the same manner, and with the like effect, as actions upon contracts.</p> <p>An action for use and occupation lies only where the relation of landlord and tenant has existed, founded on some agreement, express or implied. The Revised Statutes have transformed the claim for mesne profits, consequent on a recovery in ejectment, into a proceeding in the nature of an action for use and occupation. Mesne profits can only be recovered for a period of six years previous to the commencement of the action. The term of eighteen months is not deemed any part of the time limited by law for the commencement of actions against an administrator or executor. In a proceeding for the sale of real estate for the payment of debts, the Surrogate may award a feigned issue.</p>

<p>When letters of collection are superseded, and the collector is cited to account, he may be compelled to deliver to the party succeeding to the administration of the estate, all the property of the deceased in his hands; and it is competent for the Surrogate, on the accounting, to pass upon any claim of the collector to property belonging to the deceased at the time of his death, of which the collector acquired title during the period of his colleetorship. But where the collector claims title to certain leasehold estate of the deceased, by virtue of a lease from the owner of the fee, made prior to his appointment as collector, the Surrogate has not jurisdiction on the accounting of the collector to try the validity of a title thus acquired, before the fiduciary relations of the collector with the estate commenced.</p>

<p>The probate of a will of personalty, is conclusive as to the validity of the will in every case, except in a proceeding instituted, for the purpose of revolting, or modifying the probate.</p> <p>The statute has made no express provision for revoking a probate where another and later will has been discovered: though the power to revoke seems to be implied in the section declaring the force of the probate as evidence, until reversed on appeal, revoked on allegations filed within the year, or “ declared void by a competent tribunal.'</p> <p>The power to revoke probate has been exercised by the ecclesiastical courts,. whether the will was proved in common or in solemn form. The Surrogate may open a decree of probate for the purpose of taking proof of a later will. This power is incidental to his jurisdiction of the proof of wills, and is essential to the administration of justice.</p> <p>The Surrogate’s Court proceeds in all matters relating to the probate of wills, and the administration of the estates of deceased persons, according to the course of the common and ecclesiastical law, as modified by statutory regulations. Where jurisdiction is given by statute, the mode of exercising it in cases not specially provided for, must be regulated by the court in the exercise of a sound discretion, according to circumstances.</p> <p>Although a will has been admitted to probate, a legatee under a later will may propound the latter for probate, and is not concluded by the probate of the previous will. If the last will revokes the former, the first decree will be recalled. If the two instruments are not entirely inconsistent with each other, the decree may be so modified as to declare that both instruments, taken together, constitute the last will and testament of the deceased.</p> <p>Whether it is a sufficient compliance with the statute regulating the manner of executing wills, for one witness to write the name of the other, or for a witness to attest by mark instead of subscribing his name, qumre.</p> <p>Where attestation was made, by one witness signing his own name, and holding and guiding the hand of a second witness while the name of the latter was signed,—Held, that the execution was valid.</p> <p>The testatrix requested her will to be altered in the presence of the witnesses; it was altered, read aloud, and executed,—Held, that there was sufficient evidence of testamentary declaration.</p>

<p>The statute directing judgments docketed, and decrees enrolled against the deceased, to be paid, according to their respective priorities, before bonds and other obligations, does not refer to foreign judgments, or to judgments recovered in the courts of other States.</p> <p>A judgment recovered in another State, has no greater force, in respect to the distribution of the assets of a deceased person, than a foreign judgment. Neither at common law, nor under the statutes of this State, have judgments recovered in another State any title to priority of payment over simple contract debts. Creditors claiming on such judgments, must come in with the creditors of the deceased, described in the fourth class of the section of the statute, which prescribes the order in which debts shall be paid.</p>

<p>In the case of a foreign will, it is the usage to grant administration with the will annexed to the attorney in fact of the foreign executor. If there be no one authorised to apply as such attorney, letters issue according to the statute, to the legatees, widow, and next of kin. The grant of administration is regulated by the law of the place where the assets are situated.</p>

<p>I. The petitioner is entitled to an account, he having a demand against the personal estate of the deceased, as representing the shares of three sons, Nicholas, Alfred, and Henry, legatees. (2 R. S., 3d ed.,p. 155, § 55.)</p> <p>II. The real estate, by the power of sale contained in the will, was converted into personal estate, and must be treated as such. (Fletcher vs. Ashburner, 1 Bro. C. C., 497; S. C., 1 White & Tudor's Eq. Cases, Law Library, vol. 49, pp. 546, 555, 6, and American Cases, 563 to 566 ; 1 Jarman on Wills, 529, 531; Crary vs. Leslie, 3 Wheaton R., 564.)</p> <p>III. The bequest to the sons was vested immediately on the death of the testator (2 R. S., p. 9, § 13, 3d ed.; May vs. Wood, 3 Bro. C. C., 471; 1 Jarman on Wills, 756 ; 1 Roper on Legacies, 431; Tucker vs. Ball, 1 Barb. S. C. R., 94; Sweet vs. Chase, 2 Comst. R., 73, per Ruggles, J., p. 80.)</p> <p>IV. The power of sale was to be executed upon the termination of the widow’s estate. This is clearly the •intention of the testator.</p> <p>1. The estate of the widow was for life, determinable on her marriage, or upon the youngest son arriving at age.</p> <p>2. The age of the youngest son is a limitation of the widow’s estate, and not a period fixed for the sale.</p> <p>3. There is no provision for a continuance of the estate after the death of the widow, until the child becomes 21, if she dies previous to that time.</p> <p>4. There, is no provision for the accumulation of rents and profits, during any intermediate period.</p> <p>5. There is no provision for any interval between the termination of widow’s estate and age of son.</p> <p>6. It is the means provided by the testator for distributing his estate among the children.</p> <p>V. Upon the conversion of real into personal estate, the executor was entitled to receive the rents and profits for the benefit of the legatees of the residue upon such sale. (Allen vs. De Witt, 3 Comst., 285, per Pratt, J.; 2 Jarman on Wills, 85; Harris vs. Lloyd, 1 Turn, & Rus., 310; Bullock vs. Stones, 2 Ves. Sen., 521; Wyndham vs. Wyndham, 3 Bro, C. C., 58 ; 2 R. S., 3d ed.,p. 12, § 40.)</p> <p>I. The applicant is not entitled now to an account.</p> <p>1. He is not interested in the personal estate.</p> <p>2. His interest arises by conveyance or transfer from Nicholas, Henry, and Alfred A. McLaughlin, of their interests in the premises No. 115 Elizabeth Street.</p> <p>3. The power to sell contained in the will is a naked power in trust, to be exercised on a certain event, and for a special purpose, to wit., for the distribution of proceeds of sale. No estate vests in the executors, and they are not entitled to the rents intermediate the death of the widow and the actual sale. (1 R. S., 729, § 56; Vail vs Vail, 4 Paige, 317; Germond vs. Jones, 2 Hill, 569.)</p> <p>4. The power of sale cannot be exercised by the executors upon the death of the widow, nor until the majority of the youngest child.</p> <p>Such was the intention of the testator, as evident from the whole will.</p> <p>The testator contemplated the event of the majority of his youngest child, and that it might happen before the death or remarriage of his wife. He makes her an executrix, and gives her a legacy out of the proceeds ; and he gives it to her “ upon my said son arriving at full age.”</p> <p>If the fee did not pass, with, also, the intermediate rents, to the general residuary devisee, or to the residuary legatees of the proceeds of sale, it passed to the heirs at law of the testator, subject to the execution of the power of sale. (1 R. S., 729, § 56; Vail vs. Vail, 4 Paige R., 317; Wood vs. Keyes, 8 Paige, 365; Germond vs. Jones, 2 Hill 569; Sharpsteen, vs. Tillou, 3 Cow. R., 651.)</p> <p>In such, case, the heirs at law, had, at law, a right to enter upon the land and to receive the rents and profits, and might maintain ejectment for the same until a sale or division shall be made. (Lindenburger vs. Matlack, 4 Wash. C. C., 278; Jackson vs. Scanber, 7 Cow. R., 187.)</p> <p>If, as was suggested by the applicant’s counsel, it was the intention of the testator to provide for the widow, it is plain that it was equally his intention that the power of sale, to effectuate that intention, should have been exercised in her life-time, and if not so exercised, then it could not be exerted at all. (Jackson vs. Jansen, 6 John R., 73 ; Sharpsteen vs. Tillou, 3 Cow., R., 651.)</p> <p>The counsel .also suggests another seeming difficulty in the way of any construction of the power of sale, as to the time of its execution, other than that for which he contends, by the question,—Suppose the youngest child dies before attaining bis majority, when is the power to be executed, or what becomes of it ?</p> <p>"We answer: The power may be exerted at once upon the death of that child. (Hawley vs. James, 5 Paige, 463; S. C., 16 Wend, 60; Lang vs. Ropke, vol. 10, Legal Obs. No. 3, pp. 70, 74.)</p> <p>If this be not so, then the counsel suggests, that unless his construction be adopted, and the power could not be exerted upon the death of the widow, the testator’s intention would be defeated by the death of the youngest child before his majority. If this be so, it cannot affect the question here; for the same result might happen if the testator had, without reference to his wife, or any other contingency, in plain terms directed that the estate should not be sold until the youngest child arrived of age; because, if the latter should die within that time, the intention, so far as concerned the legatees, would equally be defeated.</p> <p>But in this case, the legacies are given to those who would be the heirs at law, and the only difference in result would be, that they would' take the land in lieu of the legacies.</p> <p>II. The land is not converted into personalty from the death of the widow.</p> <p>The criteria which the authorities on the subject of conversion furnish, are these: whether the will has prescribed a sale absolutely and at all events, for all the purposes of the will—irrespective of all contingencies, and independent of all discretion. If the sale is made for a special purpose, or the general purposes of the will, and these purposes fail, conversion does not take place, or, if to be made on a gimen event, it depends upon the occurrence of that event. (Wright vs. Methodist Church, 1 Hoff. C. R., pp. 202, 218, 219, and cases cited; 2 Kent's Com., 7th ed., in note at p. 230 ; Bunce vs. Vander Grift, 8 Paige, 37, 40.)</p> <p>The general rule is to date the conversion on death of testator, unless there is something special in the power of sale making its exercise or performance depend on the happening of some event or contingency to arise subsequently, or on the discretion of the executor or trustee to sell or not. (Arnold vs. Gilbert, 5 Barb. Sup. R,., 190.)</p> <p>III. The Surrogate has no jurisdiction to order an account of proceeds of land ordered by the will to be sold, until actually sold. (2 R. S., 110, § 56, 2d ed., p. 47, § 57.)</p> <p>The case of Clark vs. Clark, 8 Paige, 152, decides only that the Surrogate has authority to call executors to account for proceeds after sale made.</p> <p>So, also, Stagg vs. Jackson, 2 Barb. Chan. Rep., p. 86, affirmed in Court of Appeals, 1 Coms., 206, which says the Surrogate may call executors to account for the proceeds, and for rents and profits received by them previous to a sale thereof, under a power in the will of the testator. In that case the will authorised the executor expressly to receive the rents.</p> <p>IV. The Surrogate has no jurisdiction to order the executor to sell real estate under a power.</p> <p>The extent of the authorities is that a Court of Equity may make such order. (See Van Vechten vs. Van Veghten, 8 Paige, 123 ; Arnold vs. Gilbert, 5 Barb., S. C. R., p. 195, and 1 Hov. Supp., cited; 1 R. S., 734, §§ 94, 96.)</p>

<p>In an administration suit, it is not the exclusive right of the executor or administrator to plead the statute of limitations, but that may be done by any party interested in the fund.</p> <p>The claim of an executor or administrator against the deceased has no priority over the demands of other creditors.</p> <p>An executor or administrator cannot retain assets of the estate in payment of his own demand, until it has been proved to and allowed by the Surrogate, which allowance can be made on citing the parties in interest, or on the final accounting.</p> <p>The ¡statute of limitations may be set up in bar to a demand of the executor .or administrator when he proceeds to prove the same, as provided by statute.</p>

<p>The statute which directs the appraisers, on taking an inventory, to set apart for the use of the widow and minor children—in addition to certain specified articles—other personal property to the value of not exceeding one hundred and fifty dollars, does not vest an absolute discretion in the appraisers. They cannot set apart property exceeding one hundred and fifty dollars in value. The appraisers are officers appointed by the Surrogate to estimate anjl appraise; and their appraisement is not conclusive, but may be reviewed, examined, and corrected.</p> <p>If the appraisers neglect to set apart property for the widow and minor children, or make a valuation palpably erroneous, whether from fraud or mistake, the Surrogate may direct the error or mistake to be rectified.</p> <p>Where articles were set apart, valued at a sum exceeding one hundred and fifty dollars—held that the act was, on its face, a violation of the statute, and invalid.</p>

<p>Where necessaries are furnished to a person of weak or impaired capacity, and no fraud or imposition is practised, a debt is created which on his decease will be a charge against his estate; provided the articles furnished were suitable to his circumstances pecuniary and social, and to his ordinary mode and habit of living.</p> <p>Where a creditor has sued the executors, and on their offer to permit a recovery for a certain sum, has taken judgment for that amount, the claim is liquidated, and he cannot recover a larger sum in a proceeding to sell the real estate of the deceased for the payment of his debts.</p> <p>The personal estate is the primary fund for the payment of debts, and the measure of recovery against the realty cannot exceed that against the personalty, though it may be less.</p> <p>On application to sell the real estate of the deceased for the payment of his debts, the devisees or heirs may set up the statute of limitations against the claims of creditors.</p> <p>Whether, when a cause of action has accrued, and the statute commenced running, and the debtor dies within the six years, it is an answer to a plea of the statute, that by reason of litigation as to th e probate an executor was not appointed until the six years had expired, and that suit was brought within a reasonable time after probate granted, qumre ?</p> <p>An application for the sale of real estate for the payment of debts is not, in a strict sense, an action. The term of eighteen months after the death of a testator or intestate forms no part of the time limited by law for the commencement of an action against his executors or administrators; and an action for the debts of the deceased cannot be brought against his heirs or devisees within three years from the time of granting letters.</p> <p>Proceedings to compel the sale of the real estate for the payment of debts, cannot be instituted by a creditor until the executor or administrator has accounted; and an account cannot be compelled till the lapse of eighteen months after letters issued.</p> <p>Where on the decease of the testator the statute of limitations had commenced to run against certain simple contract debts, and in consequence of a contest as to the probate, letters testamentary were not granted until five years after, and the six years from the creation of the debt expired after letters were issued, but before the creditors could compel an account,—Held, that the claims were not barred by the statute of limitations.</p> <p>In proceedings to sell the real estate for the payment of debts, it is competent for the heirs or devisees to show that the personal estate has not been applied to the payment of the debts: but the sale may be ordered by the Surrogate, if he has satisfactory evidence that the executor or administrator has proceeded with reasonable diligence in making such application.</p> <p>Executors will not be required to sell leasehold premises, on which the testator has erected a private vault, in which he was interred, and in regard to which special directions were contained in the will,—before the real estate can be sold for the payment of debts.</p> <p>Whether specific legatees, whose legacies are encroached upon for the payment of debts, are entitled to have the assets marshaled against devisees, guare ?</p> <p>Where the personal estate that had come to the hands of the executors was insufficient for the payment of all the creditors, and there were controverted questions between,the legatees and devisees necessary to be determined before ascertaining whether the personal estate was sufficient to pay the debts, and the executors had in their hands rents of the real estate collected during the contest as to the probate,—Held, that the debts might be paid out of that fund; the legatees and devisees being left to the settlement of their respective rights and claims in a court of competent jurisdiction.</p>

I. The identity of the testator as the person who signed, sealed, published, and declared the instrument offered for probate as h is last will, is proved both by the subscribing witnesses to the will, as also by Hawkins, Mrs. Beckwith, and Mr. Shirley, witnesses for respondent, and by Mrs. Harsen and Anna B. Shrady, and other witnesses of contestant, who show collaterally where the testator was during this period, the room he occupied, and his death in and the removal of his…

<p>If, after letters testamentary granted to a feme sole executrix, she shall marry, her husband is liable for her acts before and after marriage, and they may be sued jointly. It is not necessary, in order to make the husband liable, that he should file a consent with the Surrogate; that is requisite only when the executrix is a feme covert at the time she receives letters. Marriage after letters granted is as effectual a consent as a written consent, under the statute after marriage, before letters granted; and in either ease, the husband and wife are jointly responsible, and liable to account in the Surrogate’s Court.</p> <p>The power of the husband of a married woman executrix is substantially that of an executor. His wife cannot act without his concurrence, and he has the power of disposition over the estate.</p> <p>In all proceedings relative to the estate, either the party moving or the executrix may set up the joint liability of the executrix and her husband; and the husband will then be cited jointly with his wife, to abide the orders of the Court in the due administration of the estate.</p>

I. The Surrogate, by 2 R. S., p. 100, § 8, is to decide whether there is real estate subject to his order; and the administrators are bound to set out the facts, that a decision may be had. 1st. Whether there is real estate that can be affected by the Surrogate’s decree. This question involves the whole merits, and should now be decided. 2d. The Surrogate cannot make an order affecting the property already sold under the- decree in the partition and foreclosure suits.

<p>The decedent acknowledged the subscription of his name to the instrument offered for probate,—the document was so covered by a piece of blank paper that no part was visible but the attestation clause, the signature, and a line or two of the will,—the witnesses might have read the attestation clause, but they did not, and were not requested to do so,—both witnesses concurred in stating that the decedent only acknowledged his signature, and, pointing to the attestation clause, requested them to sign as witnesses, but did not declare the instrument to be his will,—from extraneous circumstances they supposed it to be a will, and one of them expressed that opinion to the decedent, who neither assented to nor denied it,—Held that there was not a sufficient testamentary declaration, and that the will must be rejected as invalidly executed.</p> <p>A declaration is an open act or manifest signification, or assertion or assent by words or signs; and it must be made to appear by unequivocal circumstances, so that the testamentary character of the instrument is shown to have been communicated by the testator to the witnesses.</p>

<p>Upon an accounting, the affirmative of establishing more assets than are acknowledged. by the inventory and account, is with the party objecting; and it must be established with reasonable certainty, and not left to mere conjecture or suspicion.</p> <p>A creditor of the estate is not a competent witness to swell the fund out of which he is to be paid, when the estate is insufficient to pay the debts.</p> <p>The husband of a feme covert executrix is jointly liable with his wife in the Surrogate’s Court; and where the husband was the surviving partner of the testator, it was held that a statement of the partnership affairs was incidentally necessary to the settlement of the accounts of the estate, and that the husband of the executrix must render such copartnership .account.</p>

<p>A mutual or conjoint will, executed according to the Danish law, by husband and wife, then resident in a Danish colony, is valid, though not attested according to the laws of New York.</p> <p>Such an instrument may be admitted to probate here, on original proof of the handwriting of the parties, notwithstanding there are no subscribing witnesses.</p> <p>The law of the testator’s domicil at the time of his decease, governs in respect to his testamentary capacity—so far as relates to moveables. But in regard to the solemnities and forms requisite to the due execution of a will of personalty, if the method of execution conform both to the law of the domicil at the time of execution, and to the law of the the place where the act is performed, the will continues valid, though there be a subsequent change of domicil, and by the laws of the new domicil different forms are required.</p> <p>A provision in a mutual will, that the survivor shall remain in full possession of all the estate, without the interference of any court, has the effect of devolving upon the survivor the whole administration of the estate. It is a constructive executory appointment according to the the tenor.</p>

<p>The testator gave a moiety of the residue of his estate to his wife, “ her heirs and assigns,” and the other moiety to the “ children ” of his late brother and sister, “ their heirs and assigns; ” and he authorised his executors to sell his estate, and allow Ms “ wife to take the moiety thereof, and pay the other moiety thereof to the children of his said late brother and sister.” At the death of the testator as well as at the date of the will, several of the children of his brother and sister were dead,—Held that the term heirs was a word of limitation and not of purchase, and issue of the testator’s nephews and neices could not take.</p> <p>In case of a bequest to children, as a class, it is a general rule that only, those living at the date of the will can take, unless an intent to the contrary those can be deduced from other portions of the will.</p> <p>When a bequest is made to a class, the death of one before the testator does not cause a lapse, but all those answering the description of the class at the testator’s death take the whole.</p>

<p>If executors distribute assets, in kind, among the legatees, guaranteeing their collection, and subsequently proceed to a final settlement of their accounts and a distribution of the remainder of the estate, resort must be had, in case of loss, to their individual guaranty, after a decree has been entered on the final accounting.</p> <p>Service of citation mis et modis, i. e., by publication in the case of a nonresident, is a constructive service that concludes the party but not the court, and on sufficient grounds the decree may be opened, to obtain substantial justice.</p> <p>A decree on final accounting will not be opened, unless upon proof that no laches was committed, and on such a statement of the alleged error as shall indicate the nature and sufficiency of the grounds for appealing to the equity of the court.</p>

<p>The will gave the testator’s daughter E. the use of certain property for life, and on her decease, directed a sale and the distribution of the proceeds. Among the legacies was one to M., to be paid to her “in small sums from time to time,” at the discretion of the executors. The legatee survived the testator, but died before the life-tenant. Held, that the direction to convert into money was absolute; that the interest of the legatee in the remainder, after the termination of the life estate, was not contingent on her surviving the life-tenant, but she took a vested legacy on the testator’s death, which, in case of her decease before payment, passed to her legal representatives. Held, also, that the discretion of the executors, in respect to the legacy to If., related to the time and mode of payment, and did not prevent the vesting of the legacy.</p>

<p>On allegations filed within a year after'probate, the Surrogate confirmed the probate. An appeal was taken to the Circuit Judge, and he affirmed the Surrogate’s decision, and an appeal was taken to the Chancellor, which, under the new constitution, was heard and determined by the Supreme Court. The decisions of the Surrogate and the Circuit Judge were reversed upon questions of fact, and the Supreme Court directed a feigned issue, to try the validity of the will. Held, that until a final decision, the case remains with the appellate court; and that the decree reversing the orders of the Surrogate and the Circuit Judge, and awarding a feigned issue, was not a final decision.</p> <p>The Supreme Court having authority to reverse or affirm the judgment, or to retain the case for the purpose of making such further order as might be just, or remit it to the inferior tribunal for that purpose; and having in the present instance, after reversing the orders appealed from, directed a feigned issue, no order can be made by the Surrogate until a final decision of the case, upon the merits, by the appellate tribunal.</p>

<p>The testator was a man of intemperate habits, and at times his conduct indicated signs of mental aberration. A will was prepared for him when in a state of insensibility, without any previous direction or knowledge,—during a temporary revival to a state of consciousness, its execution was not attempted—but on a relapse, it was engrossed, presented to him and read, and he was asked if it was right, and he answered, Yes. It was then executed, the decedent making affirmative answers to the formal questions put to him touching the testamentary declaration, &c. Held that under the circumstances and in the absence of any clear and satisfactory proof of instructions and intentions, probate must be denied.</p>

<p>On the motion to confirm the report of sale, in proceedings for the sale of the real estate of a deceased person for the payment of his debts, if it appear that a sum exceeding ten per cent, on the bid, exclusive of expenses of a new sale, can be obtained, it is the duty of the Surrogate to vacate the sale, and direct another to be had., If such an advance cannot be obtained, and the sale has been legally made and fairly conducted, the Surrogate is imperatively required to confirm the sale.</p>

<p>After the expiration of a life estate, the will directed the sale of the property and the payment of several legacies, and then gave one half of all the residue of the estate to P. D. and her six children, “ and to the survivor and survivors of them.” P. D. survived the testator, hut died before the life-tenant; and.it was held that her legacy did not lapse.</p> <p>The general rule is, that all legacies vest on the testator’s decease, and to prevent the vesting the contrary intention must be clear. A clause of survivorship is ordinarily referable to the same period—the death of the testator—unless the distribution is postponed till the determination of a life estate, in which case the weight of authority seems to incline in favor of referring the survivorship to the period of distribution.</p> <p>The gift of a general residue, and not merely of the remainder in a particu- ■ lar portion after the death of a life-tenant, does not constitute an exception to the general rule; but in such case the bequest vests on the testator’s decease, although a portion of the subject matter is a remainder after a life estate.</p>

<p>The testatrix commenced her will in this way—“According to my present intention, should anything happen me before I reach my friends in Sfe Louis, I wish to make a correct disposal of the three hundred dollars now in the hands of H, &c. Of this, I leave to A. L., &c. &c.” After making the will, she proceeded safely to St. Louis, and subsequently returned to New York, where she died. Sold that the validity of the instrument must be tested by the proof of its original execution, and by’its contents, without the aid of parol evidence as to .the intention of the testatrix in respect to its subsequent ratification.</p> <p>Wills may be conditional, that is, dependent for their testamentary operation upon a specified contingency. The condition must appear upon the face of the will, and go to the root of the entire instrument, in order to affect the question of probate.</p> <p>If the conditions are of partial application, the will is admitted to proof, and the effect of the conditions upon particular legacies, becomes a matter of construction.</p> <p>If the words do not clearly express that the entire instrument is to take effect or to fail upon a particular event, the court is justified in a sentence of probate on the formal proof, so as to leave the determination of its conditional character for subsequent consideration. Held that the words “ according to my present intention,” dsc., in the introductory part of the present will, may have been designed to express the occasion of making the instrument, rather than a clear condition on which its validity was to depend, and the will was accordingly admitted to proof.</p>

<p>After administration granted, four unattested wills, three others apparently duly executed, and several papers of revocation were discovered. The last of the executed wills was proved, and it was held that it was not revoked by any of the other instruments which were only subscribed by the testator, but not attested by subscribing witnesses. A revocation, to be valid, must be executed with all the formalities requisite for the due execution of a will. This will is not affected by any written evidence of an intention to revoke, no matter how clearly proved or frequently expressed.</p>

<p>A judgment against a surety on a stipulation in admiralty, recovered after the death of the stipulator, is not entitled to priority of payment out of his assets. The provision of the statute authorising judgments, in certain cases, to be entered against the deceased after his death, and declaring that such judgments shall not bind the real estate, but be considered as debts payable in the usual course of administration,, relates to-judgments in our own courts.</p> <p>Whether judgments recovered in the life-time of the deceased, in the United States Courts of this District, are entitled, under the statute, to priority of payment—quwre.</p>

<p>The Surrogate has jurisdiction, to grant letters of guardianship only in case of minors residing in the county.</p> <p>Where the parents resided and were married in the State of Connecticut, and the child was born there, the father having previously removed to New York, where the mother, after the birth of her infant, joined him— Held, that the original domicil of the minor was that of his parents at the time of his birth.</p> <p>On the death of the father, the establishment in New York having been broken up, and the mother, with her child, removed to the residence of her parent in Connecticut—Held, that the domicil of the minor was changed to that State.</p> <p>The mother having married again, and left Hartford to reside at New York with her husband—Held, that although by marriage she adopted the domicil of her husband, the domicil of the child was not thereby changed.</p> <p>The mother, after the father’s death, may change the domicil of her children, | provided it be without fraudulent views to the succession of the estate. \ ' The domicil of the children does not necessarily follow that of the sur- i viving mother; for, although changing her own, she may, from wise ' motives, refuse to alter that of the child. The presumption, however, j is, that their domicil follows hers. But this rule does not obtain on the ' second marriage of the mother. By that act she acquires the domicil of her husband, and loses all power to control that of her children.</p> <p>Although the forum of the minor may follow that of the surviving mother, yet on -her decease the forum of the minor is restored to the place of his domicil.</p>

<p>The rule that the inventory cannot be impeached, relates only to proceedings in relation to the inventory itself. It may be shown on the accounting of the administrator or executor, that the assets were not correctly stated in the inventory.</p> <p>Where partnership property has come into the hands of an administrator, he is no further accountable than for the share of the deceased in the partnership assets, after payment of all the liabilities, and a full settlement of all the partnership accounts.</p>

<p>On an application for the payment of a debt, where the claim has been assigned and the proof depends chiefly on the evidence of the assignor, held that, inasmuch as in an action at law the assignor would not be a competent witness for the claimant, it was proper for the Surrogate to dismiss the petition, leaving the alleged creditor to his action.</p> <p>The code of procedure does not apply to proceedings in surrogates’ courts, further than has been expressly provided therein. In the first part, surrogates’courts are enumerated in the 9th class of courts'of justice; and the second part relates only to civil actions. The it 1st section declares that the second part shall not affect proceedings upon mandamus or prohibition, nor appeals from surrogates’ courts, nor any special statutory remedy not heretofore obtained by action. Proceedings in surrogates’ courts are not actions, but are special statutory proceedings.</p>

<p>Two wills bearing the same date, purporting to he attested by the same witnesses, and. both in the handwriting of the decedent—one recognised and proved by both witnesses, who denied any knowledge of the other —the latter was admitted to probate as the last will, notwithstanding the denial of the witnesses, upon evidence of handwriting, identification of the instrument as recognised by the decedent, memoranda in the handwriting of the deceased, and other circumstantial evidence.</p> <p>If the subscribing witnesses have lost all recollection of the execution, the Court, if satisfied from other evidence that they did in fact witness the will, may admit it to probate; the performance of the usual formalities being inferred from the recitals of the testatum clause.</p> <p>When the subscribing witnesses corruptly deny the execution, and, a fortiori, when they are mistaken, the proof of the will may be supplied from other sources.</p> <p>The proof of a will abides by the same rules of evidence as prevail in all other judicial investigations.</p> <p>The question for the Court is, the factum of the instrument, and that may be proved in the very teeth of the subscribing witnesses.</p> <p>As to the effect, nature and character of their testimony, the subscribing witnesses stand on the same ground as other witnesses, on the subject of contradiction; and if untruth, mistake, or want of recollection be alleged, it is not only competent to prove it, but, on its being proven, and the Judge being satisfied of the validity of the will, decree of probate should follow.</p> <p>The sections of the statute providing that, where the witnesses are dead, insane, out of the State, or incompetent to testify, proof of their signatures may be taken, are only directory, and do not forbid a resort to that class of testimony in other cases, when necessary for the ascertainment of truth.</p> <p>Having attained jurisdiction of the subject matter, the Surrogate, where the course of procedure is not prescribed by statute, must dispose of it according to the established rules of evidence.</p>

<p>I. The execution of this will took place not earlier than three o’clock of the afternoon of the third clay before her death.</p> <p>II. As the decedent was then advanced in years, weak, in the last stages of a violent typhus fever, generally in a state of stupor, insensible to occurrences around her, occasionally delirious with incoherent mutterings, and only capable of answering a question on being roused, “ her capacity was not so alive as to prevent her executing am, instrument of the contents of which she was not awa/reP (Billinghurst vs. Vickers, 1 Phil., 193; Harwood vs. Baker, 3 Mo. Pr. C. C., 285; Merrit vs. Johnson, 2 South, (N. J.) 455 ; Tomkins vs. Tomkins, 1 Bail (S. C.), 96.)</p> <p>III. The relation of the person who drew the will, to the decedent, and his interest in its provisions, raise the presumption of undue influence, not repelled by sufficient proof of spontaneity and understanding. (Huguenin vs. Baseley, 14 Ves., 287; Harwood vs. Baker, 3 Mo. Pr. C. C., 290 ; 1 Swinb. on Wills, 191; Marsh vs. Tyrrell & Harding, 2 Hag. Ec. R., 87; Billinghurst vs. Vickers, 1 Phil., 199 ; Ingram vs. Wyatt, 1 Hag. Ec. R., 449 ; Baker vs. Batt., 2 Mo. Pr. C. C., 321, pr. J. Parke.)</p> <p>IV. The conduct of the draughtsman- of the will is attended with circumstances of suspicion.</p> <p>1st. His denial of being the established spiritual director of the decedent.</p> <p>2d. His supervision even of letters to her daughter under pretence of literary correction. (Griffiths vs. Robins, 3 Madd. R., 191; Whelan vs. Whelan, 3 Cow., 583.)</p> <p>3d. His interference to procure her removal from the care of relatives in her own house, to a religious hospital, under the care of hired nurses.</p> <p>4th. His exclusion of all persons at the execution, except parties interested, and a strange witness summoned for the occasion. (Brydges vs. King, 1 Hag. Ec. R., 262, 310; Blewitt vs. Blewitt, 4 Hag. Ec. R., 419.)</p> <p>5th. His interference by taking possession of money belonging to her, and disposing of it, and demanding the keys of the house from Mrs. Norton.</p> <p>6th. His activity in getting up the will without the presence of counsel; his suggesting provisions in it, and inducing her to sign it, by representing it to be merely temporary.</p> <p>7th. His omission to have her read what she was to sign.</p> <p>8th. His testimony as to the decedent’s actual signing, and as to her name, and his eagerness to deny all improper influence in advance.</p> <p>V. The will or codicil was not in due form.</p> <p>1st. The signatures were not the decedent’s, and there is no proof she acknowledged them as such. Her assent to the instrument was before it was signed. (Best on Presumption, Law Lib., N. S., Vol. 31, p. 223 ; Ilott vs. Genge, 4 Mo. P. C. C., 266 ; Grant vs. Grant, 1 Sand. Ch., 237; Chaffee vs. Bapt. Miss. Con., 10 Paige, 85; Blake vs. Knight, 3 Curt., 547.)</p> <p>2d. If the will ended with the clause appointing executors, it was not signed by the decedent at the end. (2 Robertson, 140; 13 Jurist, 289; 6 Moore P. C. C., 404.)</p> <p>3d. If it ended before the clause appointing executors, or after that directing the payment of debts, it was not signed at the end by the witnesses. (5 Notes Cases, 428; 6 Notes Cases, 20; 4 Ib., 480, 253, 469, 260 ; 5, 375 ; 2, 350 ; 2 Curt., 342; 3,748 ; 1, 912 ; In Bonis Batten, 7 N. C., 289 ; In Bonis Shadwell, 7 N. C., 377; In Bonis Pain, 14 Lond. Ju., 1032; 1 Eng. L. and Eq. R., 635.)</p> <p>I. The testatrix, Catharine Kerr, at the time of making her will and codicil, was of sound mind and memory, and capable of disposing of her property by will. However weak her mind may have been—unless she was entirely deprived of her understanding—her will and codicil cannot, for that reason, be avoided.' (Stewart's Exr. vs. Lispenard and others, 26 Wend., 255; Blanchard vs. Nestle, 3 Denio, 37; Clarke vs. Sawyer, 3 Sandford Ch. Rep., 351.</p> <p>II. Both of the subscribing witnesses to the will and codicil testify that the testatrix signed the will and codicil. R. Kein swears positively that she made the three signatures. M. M. Smyth is only in doubt about the second signature. Their testimony is supported by Catharine M’Ginnis, the nurse, who states that she heard from the Sisters in the Hospital, on the same day that the will was executed, that a will had been drawn, and that she saw pen, ink and paper in the room. Also, by Honora Norton, who testifies that the testatrix told her, after the will was drawn and executed, that she (the testatrix) was “ after making her will,” meaning that she had already made it.</p> <p>III. The conveyances, &c., offered in evidence by the contestant, and alleged to have been executed by the testatrix in her life time, cannot be admitted in evidence, for the Court to compare the signatures thereto with those to the will, and thus by comparison form an opinion as to the genuineness of the signatures of the testatrix to the will.</p> <p>IV. The misspelling of the surname Kerr in the signatures is no evidence that the will and codicil were not signed by the testatrix. R. Kein, one of the subscribing witnesses, may have dictated to the testatrix, as she wrote her name, the letters composing her name, as he supposed "it was spelled.</p> <p>V. The testatrix signed the will and codicil in the presence of both of the subscribing witnesses.</p> <p>VI. The acknowledgment of the testatiix, that the instrument she signed was her last will and testament, is a sufficient compliance with the statute. It is immaterial whether the testatrix acknowledged the instrument prior or subsequent to signing, if the whole was done in one act. (Doe vs. Roe, 2 Barb., Sup. Ct. R., 200.)</p> <p>VII. Richard Kein swears positively that the testatrix requested him and Smyth to sign their names as witnesses to the will. The law presumes such to have been the case. (Butler vs. Benson, 1 Barb., Sup. Ct. R., 527; Doe vs. Roe, 2 Ibid., 200; Brinkerhoff, &c., vs. Remsen and Brinkerhoff, 8 Paige, 488 ; Chaffee, &c., vs. Bapt. Miss. Con., 10 Paige, 85.)</p> <p>8th. Where one of the subscribing witnesses to a will swears that all the formalities required by^the statute were complied with in the execution thereof, the will may be admitted to probate. (Nelson vs. M'Giffert, 3 Barb. Ch. Rep., 158; Jauncey vs. Thorne, 2 Ibid., 40.)</p> <p>9th. The will of the testatrix was executed substantially according to the provisions of the Revised Statutes, which is sufficient. (Nelson vs. M‘Giffert, 3 Barb. Ch. Rep., 158 ; Seguine vs. Seguine, 2 Barb. Sup. Ct. Rep., 385; Whitbeck vs. Paterson, 10 Ibid., 608; Ruddon vs. M'Donald, 1 Brad. Rep., 352.)</p>

<p>The provisions of the statute directing certain articles to be set aside in the inventory for the benefit of the widow and minor children of the deceased, are not limited to cases where the deceased was a resident of this State. These articles are not assets, do not belong to the executor or administrator, and are not the subject of administration and distribution.</p> <p>Where the intestate died on his way to this country, leaving a widow and minor children in Germany, and the assets left on board of the vessel came into the hands of the public administrator, nothing having been set apart in the inventory for the widow and children—Held, that the inventory should be reformed in that respect.</p>

<p>I. The testatrix, at the date of the execution of the will, was not of sound and disposing mind and memory.</p> <p>II. The will has not been proved to have been duly executed. (2 R. S., 63, § 40.)</p> <p>1st. It was not declared by Mrs. Moore to be her last will and testament, in the presence of two witnesses.</p> <p>2d. Neither of the witnesses, Mr. and Mrs. Searle, were requested by the testatrix to witness the same. The only request for them to do so was from Alfred Moore, the beneficiary legatee, and not in the presence of the testatrix. Both swore positively that the testatrix made no request to them of any kind, and made no remark in their presence except in reply to an inquiry, of Gen. Sandford, if it was satisfactory. Gen. Sandford’s recollection of the transaction is so indistinct as not to be relied upon.</p> <p>III. At the time of the execution of the will, the sole legatee who gave the instructions for drawing the will, was the trustee and sole managing agent of the testatrix. Under these circumstances, the law raises a presumption of fraud and undue influence which it requires the strongest evidence to overcome. ( Wharton vs. May, 5 Ves., 27; Gibson vs. Jeyes, 6 Ves., 279; Welles vs. Middleton, 1 Cox, 112; Marsh vs. Tyrrell, 2 Hagg, 110; Bridgeman vs. Green, Wilmot, 70; Ingram vs. Wyatt, 1 Hagg, E. 441; Baker vs. Batt, 1 Curteis, 125; Barry vs. Butlin, 1 Curteis, 638; Croft vs. Day, 1 Curteis, 839; Sears vs. Shafer, 1 Barb. S. C., 408; Crispell vs. Dubois, 4 Barb. S. C., 393; Brice vs. Brice, 5 Barb. S. C., 533.)</p> <p>This presumption is strengthened,'—•</p> <p>(a) By the feeble and helpless mental and bodily condition of the testatrix and her entire incapacity to transact business:</p> <p>(b) By the fact that the testatrix was taken, on the death of her husband, to the house of the legatee, and remained an inmate ofihis family, and under his exclusive control, to her death. She was never outside of the house but twice, during the whole time:</p> <p>(c) By the absolute secrecy preserved in regard to the whole transaction.</p> <p>It is not overcome by any proof that the testatrix ever spoke of making or having made a will.</p> <p>IV. The most that can be claimed from any view of the evidence is that testatrix intended to ad/ocmce to Alfred Moore, during her life, moneys to assist in building his house; and whether this should be treated as a gift or an advance will become a proper subject for inquiry on the final settlement of her estate.</p>

<p>Where a will was duly executed by the deceased and left in the possession, of his counsel, and, a few months after, the testator sent for it, avowing the purpose of destroying it, and a day or two subsequently stated that he had destroyed it; Held, that although the facts raised a presumption that the will had been destroyed by the deceased, it was proper to examine his papers for the purpose of ascertaining whether the instrument had in fact been cancelled.</p> <p>The fact that the decedent died intestate must be proved before letters of administration issue; and that is ordinarily shown by establishing that no will can be found.</p> <p>A lost or destroyed will cannot be proved in the Surrogate’s Court; but jurisdiction in such case belongs to the Supreme Court.</p> <p>The grant of letters of administration does not preclude any party in interest from instituting proceedings in the Supreme Court to establish a will lost, or destroyed by accident or design; and on the will being proved there, the letters of administration will be revoked.</p> <p>The Revised Statutes permit the revocation of a will by its “destruction.” by the testator, and do not require proof of the mode of destruction, when the instrument was last in the testator’s possession and cannot be found.</p> <p>Proof of the “ injury or destruction ” of the will) by two witnesses, is only required when the act has been performed by some other person, in the testator’s presence and by his direction and consent.</p> <p>When the will is last traced to the possession of the testator, and on his decease, after examination of his papers, and proper inquiry of the persons in his confidence and about his person during his last sickness, it cannot be found, the presumption is that it was destroyed by the testator, animo revocandi,</p> <p>A will cannot be proved as a lost or destroyed will, unless it is shown to have been in existence at the death of the testator, or to have been fraudulently (or accidentally) destroyed in his lifetime.</p>

<p>The intestate’s wife left his residence, taking their child with her, and for seven years resided with her parents, in Pennsylvania. After her death, the husband of the child’s maternal aunt brought her to New York and took her to reside with him, where she continued for five years, until the decease of her father, without any demand being made on the father to assume the care of his daughter, or to pay for her support. Held, that there was no legal obligation on the intestate to compensate the uncle for the support of the child during the period in question, and a claim against the estate of the deceased for necessaries furnished, was accordingly rejected.</p>

<p>Trustees created by a last will and testament, or appointed by any competent authority to execute a trust created by will, or executors, or administrators with the will annexed, authorized to execute such a trust, may, from time to time, render their accounts, and have the same finally settled before the Surrogate.</p> <p>Such final settlement may be made at their own instance, and though they have not been cited to account by parties interested.</p> <p>There may be final accounts from time to time, as occasion may require. Th & finality intended by the term final settlement refers to the conclusive character of the accounting, which being made on citation to all parties in interest, is a final and conclusive adjustment up to that period. If assets are afterwards realized, or there are continuing trusts, there may be subsequent accountings in respect to those matters.</p> <p>Executors may be allowed for their expenses in the management of the estate, but the charges must be reasonable. If necessary, an agent may be employed at the cost of the estate.</p>

<p>The instrument propounded was executed and attested according to the statute.</p> <p>1st. Both the attesting witnesses swear that she subscribed it in their presence, and that she acknowledged it, at that time, as her last will, and that they signed it as witnesses in her presence, and that of each other.</p> <p>2d. The other requisite, that the attestation of the witnesses should be made at the request of the testatrix, was substantially complied with.</p> <p>There is no particular form or manner in or by which it is requisite that the request of the testatrix should be made. The request may be verbal or by signs; it may come from the witness to the testatrix, and will he sufficient if assented to by her.</p> <p>In this case, Emma J. Cochrane knew the purpose for which the witnesses, William H. Sparks and George C. Barrett, were in attendance on her. Mr. Sparks states: “ I asked her if it was her last will and testament: she said, Tes. I signed it. The other witness was George C. Barrett. He was present when she declared it her will. Both signed as witnesses in her presence, and at the table where she was sitting. I think I told her after she opened the envelope that I wanted her to swear to a paper, and to witness her sign her will. I think I told her that it was necessary to ha/oe t/wo witnesses.”</p> <p>The testatrix had previously to this, at the same interview, read the will, as both the witnesses testify, to which there is the usual attestation clause, a fact well known to the witness, George C. Barrett, who had copied it.</p> <p>The circumstances amounted to a request, by the testatrix, for Sparks and Barrett to be witnesses. She was told the purpose for which they came, she read the formal attestation, she was told that two witnesses were necessary, she signed and published the instrument as her will, and they signed it as witnesses in her presence. Could a request be stronger, unless the Surrogate should be of opinion that a testatrix should convey her wish to the bystanders that they should attest, in the very phraseology of the statute, in hmc verba, and say, “ I request you to be witnesses to the signing and publishing of this my last will and testament.”</p> <p>In the case of Doe vs. Roe (2 Barbour’s Supreme Court Rep., 201), circumstances similar, and not perhaps so strong, were considered sufficient evidence of a request by the testator that the witnesses should sign.</p> <p>I would submit with confidence, to the consideration of the Surrogate, the proposition that if a testator subscribes a paper, and at the same time declares it to be his last will and testament, to two bystanders, who thereupon in his presence subscribe their names as witnesses, a request to such persons to become witnesses, is to be implied from the circumstances per se. In this case the circumstances implying a request are much stronger than in the case last stated.</p> <p>But even if the witnesses, Sparks and Barrett, had forgotten everything in relation to the accompanying circumstances, if they had not remembered that the testatrix signed the paper, and declared it to be her last will and testament, yet the fact of their subscription of the paper as witnesses to an attestation clause, as full as that in the present case, would have been sufficient to prove the proper execution and declaration of. the instrument as a will, unless testimony appeared showing, affirmatively, that the statutory provisions had not been complied with.</p> <p>This is the view taken by Chancellor Walworth, in the case of Brinckerhoof vs. Remsen, in 8 Paige's Rep., 488. He observes, “ Where the subscribing witnesses to a will ha/oe subscribed their names at the end of am attestation clause, showing that all the formalities requisite to a valid execution of the will were complied with, the mere inability of the witnesses to recollect that the testator published the instrument as his will, is not sufficient to invalidate the same, unless the witnesses recollect that he did not decla/re it to be his will, and that the attestation cla/use was not read and understood, at the time of the execution of the instrument.”</p> <p>In the same case on appeal (26 Wendell, 325), Chief Justice Nelson observes, “Ho form of words will be necessary. The legislature only meant that there should be some communication to the witnesses, indicating that the testator intended to give effect to the paper as his will. Any communication of this idea, or to this effect, will meet the object of the statute. I agree also that the mere want of recollection of the witnesses that the testator indicated the instrument to be his will, after signing the attestation clause, ought not to be evidence per s,e of non-compliance with the statute. After that there should be something like affirmative proof of the want of publication.”</p> <p>The Surrogate will remember that the controversies, in relation to the execution of wills under the statute of 1830, have arisen almost entirely in regard to the declaration required to be made to the witnesses that the paper subscribed or acknowledged is the testator’s last will and testament.</p> <p>The statute goes upon the idea that there should be no chance given to have a paper propounded, as a last will and testament, which the person executing it might have signed thinking it to be a paper of a different character. After subscription and a declaration by the testator to witnesses that the paper subscribed was his last will and testament, there could be no fraud or misconception in relation to the request to attest.</p> <p>3d. At the time of the execution of the paper propounded, the testatrix, Emma J. Cochrane, was of sound disposing memory and understanding. It is unnecessary to allude particularly to the testimony of the Rev. Dr. Knox, of William C. Barrett, and Dr. Hosack, persons better qualified to judge on this point than any one produced on the part of the contestants, excepting the Rev. Mr. MacDonald, who allows that he had not conversation enough with her to judge. The weight of testimony is that her intellect was of an order rather superior to that of persons of her condition. The witnesses impeaching it seem to ha/ve considered certain peculiarities of mam/ner, such as taciturnity and a cericti/n shyness, arising from bad health, as affecting the quality of her intellect.</p> <p>The Counsel for the contestants, however, gave up this point of alleged imbecility, by express admission to the contrary.</p> <p>4th. The testatrix was under no undue influence, either of Mrs. Thomson, the principal legatee, or any other person.</p> <p>She was displeased with her brothers and sisters, for reasons well or ill founded. If those reasons were ill founded, it is unfortunate for the next of kin, but they were not of such a nature as to show any mental hallucination. She had formed her resolution to make a disposition of her property out of her own family, and she adhered to it notwithstanding all remonstrances, even from those who testify to her entire sanity, and who are supposed by the contestants to be adverse to them. The schedules Hos. 1 and 2, signed by her, show at once her determination and the clearness of her views.</p> <p>As to the appointing a stranger, Mr. Hutchings, her executor, there is no argument in favor of the existence of undue influence to be deduced from that circumstance. He used to collect bills for medical attendance on her family, and she had probably heard of his character, and he was, besides, recommended by Dr. Hosack. • It required as executor a man of business habits to manage her estate properly, through the difficulties that probably would beset it, judging from her former experience with her relatives, which office her friend Dr. Hosack would naturally decline, and for which the residuary legatee was but ill fitted.</p> <p>As respects one of the contestants, Anna, whose peculiar situation would probably have most appealed to the feelings of the deceased, I would observe, that the instrument propounded gives to her what would probably be nearly equal to her distributive share of the property of the deceased, if there had been an intestacy, after the debts are paid.</p> <p>For the reasons above stated it is submitted that the instrument propounded should be admitted to probate.</p>

<p>The statute not only prescribes the order of preference between the next of tin, in relation to the grant of administration, but also declares the rule of competency. Indebtedness to the estate does not render a person incompetent to administer, nor impair his priority of right to administration.</p>

<p>Where the will contained the following clause, “Upon the death of either of my sons John or George, without lawful issue, the one-fourth part of the devises and bequests made to him in this my will shall go to his wife, if she shall then be living, and the other three fourths of the same shall be divided, share and share alike, among my surviving children and the legal heirs of those who may be deceased;” and the testator’s son John died without issue, before the testator, leaving his wife, “ then living;” and she survived the testator,—Held, that John’s widow was entitled to one fourth of all the devises and bequests made to John. The condition that the widow of John shall “then be living,” refers to the time of John’s death, and not to the time of distribution.</p> <p>A clause of substitution is generally referable to the death of the testator.</p> <p>Where the devise or bequest is to the donee by name, with a gift over in case of death, if the event happen in the testator’s life-time the ulterior gift takes effect immediately on the testator’s decease.</p>

<p>The testator having given his wife the clear income of certain real estate, and an assessment having been levied upon the premises, for a permanent improvement, Held that the life-tenant should pay the annual interest on the assessment, and that the principal should be charged against the remainder men.</p>

<p>Gifts, causa mortis, should be sustained by the most satisfactory testimony. Evidence of the donee, uncorroborated by circumstances, is insufficient to establish the donation. Delivery is essential to the validity of a donatio causa m.ortis, and is corroborative proof that the donation was made ; but possession does not prove delivery, when the claimant has had opportunities of obtaining possession wrongfully.</p> <p>Where the alleged donee was an attendant on the deceased during her last sickness, and both before and after her death denied any knowledge of the subject of the alleged gift, Held, that having assigned her rights to her son and become a witness, there was not, under the circumstances, such clear proof as the nature of the case required.</p>

<p>After probate and before issue of letters testamentary, a creditor or other party in interest may file an affidavit of intention to present objections against the grant of letters.</p> <p>Whether the objector is a creditor may be disputed, and is a subject of proof not regulated by the statute nor determined by the affidavit.</p> <p>The oath of the objector that he is a creditor, is enough in the first instance; but if the demand be denied, the objector will be compelled to set forth the particulars of his debt so as to indicate its nature and basis.</p> <p>In all cases the question of interest may be raised, and it must be determined by the Surrogate. Where it is a question of substance, adverse testimony will be received; but in applications for an inventory, account, or increased security, the applicant is required merely to state his interest positively under oath, and if the facts stated show an interest, the merits of the claim will not be tried.</p> <p>When an affidavit of intention to present objections has been filed, it is competent for the Surrogate, at the instance of the executor, to order the objections to be filed. The stay of the grant of letters thirty days does not stay proceedings on the objections within the thirty days.</p>

<p>H. A., one of the next of kin, having within a year after probate filed allegations against the validity of the will and the competency of its proof, and the Surrogate having confirmed the probate, and his decision having been affirmed, on appeal, by the Circuit Judge, an appeal was taken to the Court of Chancery, and was heard by the Supreme Court, as a proceeding pending in Chancery at the time of the adoption of the new constitution.</p> <p>By the decree of the Supreme Court, the will was declared not to have been sufficiently proved, the decisions of the Surrogate and the Circuit Judge were reversed upon a question of fact, and a feigned issue was ordered, to try the questions arising upon the application to prove the will on the allegations. The issue was tried, and the jury found that the instrument was not the last will and testament of the deceased. J. M., one of the next of kin, filed with the Surrogate a copy of the verdict, and a certificate of the County Clerk that it was a final determination of the issue by the jury; and he thereupon moved for a revocation of the probate. Held, that it was not proper to revoke the probate until the final decision of the issue should be certified by the Court.</p> <p>It seems that the statute has not conferred the right upon a party who has not filed allegations and who has not appealed, to contest the probate on allegations filed and appeal taken by another party. Whether, independently of the statute, such right exists by the course of the ecclesiastical practice,—Quare.</p> <p>When, upon allegations, it has been finally determined that the will is not sufficiently proved, any of the next of kin not a party to the contest, may avail himself of the decision though it was not obtained at his instance.</p> <p>Proceedings in respect to probate or administration, are not properly suits or actions, but are special proceedings of a mixed character, capable of being promoted by any one interested; and, when finally determined, the judgment partakes so far of the character of a judgment in rem, that any other party in interest can avail himself of it.</p> <p>The final decision as to testacy or intestacy, when regularly obtained, is conclusive as to all the world.</p> <p>The only case where the statute directs a feigned issue as to the validity of a will, on appeal, is where the Circuit Judge has reversed the decision of the Surrogate on a question of fact.</p> <p>In the present instance, the decree of the Supreme Court was not a final determination upon the merits, but contemplated further proceedings before deciding upon the validity of the will. If the trial of the issue took place under the provisions of the statute, the Supreme Court had power to order a new trial. If the issue was a feigned issue out of Chancery, for the purpose of informing the Court, the verdict may be set aside, or judgment be given without regard to the verdict.</p>

<p>Letters of administration, on the estate of the deceased, as an intestate, having been issued, and some of the next of kin having applied for a revocation thereof on the ground that the deceased.left a will; and it appearing that a will had been executed, but there being no proof that the will was in the possession of the deceased, or unrevoked, at the time of his death,—Held, that when administration has been granted, and an existing will, or a will lost or fraudulently destroyed, is alleged but not proved, it is generally improper to revoke the letters.</p> <p>If a will proved to have been executed, and to have been in the possession of the decedent, cannot be traced to the custody of another, or cannot be found, the presumption of law is, that it has been destroyed animo revocandi.</p>

<p>The brother of the intestate, nearly two years after his death, presented a claim for services and assistance in his business, for a period of five years before his decease. It appearing that the claimant was boarded and clothed by the intestate,—Held, under the circumstances, that no express contract having been proved, and no demand shown in the intestate’s lifetime, the law did not imply an agreement to compensate the claimant.</p> <p>Demands of this nature are not to be regarded with any favor; and the evidence should be clear, that the services were performed under a mutual expectation of compensation.</p>

I. A nwnciupatwe will, at common law, was a full right to will all personal property without writing. The statute law of England, and of many of the United States, has abridged and restricted the right. (4 Kent Com. 517. 1 R. L., 1813, p. 367, sec. 14.) The Revised Statutes, except in case of soldiers and seamen (2 R. S.,p. 60, sec. 22), make such a will void.

<p>I. Henry Coles, as sole surviving parent of Henrietta Coles, deceased, is entitled to the whole of her share of her mother’s estate. (2 R. S.,p. 160, 3d ed. (marg. p. 97), § 79, sub. 7.</p> <p>1. A guardian has a right to appropriate the whole income of his ward towards her support, maintenance, education, &c., and this for past as well as present and future maintenance. (In the matter of Bostwick, 4 John., Ch. R., 100 ; Wilkes vs. Rogers, &c., 6 Johns. R., 566; DePeyster vs. Clarkson, 2 Wend., 77; Hopk., 424; In the matter of Davison, 6 Paige, 136; Bradley vs. Amidon, 10 Paige, 235, 240, 242, 243 ; In the matter of Ryder, 11 Paige, 185, 187, 188; In the matter of Kane, 2 Barbour, p. 375; Myers vs. Wade, 6 Randolph's R., 444 (Va.); Foreman vs. Murray, 7 Leigh., 412 (Va); Davis vs. Harkness, 1 Gilman, 173 (Ill); Anderson vs. Thompson, 11 Leigh., 439 (Va); Jackson vs. Jackson, 1 Grattan, 143 (Va.); Hooper vs. Royster, 1 Munford, 119 ( Va.); Long vs. Norcom, 2 Iredell's Ch. R., 354 (N. C); Whitledge vs. Callis, 2 J. J. Marshall, 403 (Ky) ; Chapline vs. Morse, 7 Monroe, 150 (Ky); Davis vs. Roberts, 1 Smedes & Marsh, Ch. R., 543 (Ky.)</p> <p>2. The principal may also be appropriated towards support and maintenance; but in general, application to the court is necessary for this purjmse, except under extraordinary circumstances, as will appear from the foregoing cases.</p> <p>In the present case, the guardian has not expended the principal, and does not claim it.</p> <p>3. A Court of Chancery has no power to order or compel a parent to support his child. (Matter of Ryder, 11 Paige, 185.)</p> <p>II. A common-law liability of a father to support his infant children, is recognized generally in the cases upon the subject; but this liability is usually limited or restricted to a necessary maintenance only; and in all cases an allowance out of the separate estate of the infant, is granted, unless the father has ample and unquestionable means for such support: such allowance is made, as a matter of course, out of the income of the infant’s estate, but not out of the principal without application to the court.</p> <p>The following cases will show the general rule of law upon the subject of a person who stands in the relationship of father and guardian to his infant children. (2 Kent's Com., 7th ed., p. 181, 182, marg. p. 190, 191, 2, notes d., &c. &c.; Newport vs. Cook, 2 Ashmead, 332.) The rule as to the father’s obligation to support his child, has become considerably relaxed. (2 Kent., 181, 190, 2 Ashmead, 332, 339, 340, as above), 2 Barb. Ch. R., 375, 377, 379, 380, In the matter of Kane. In this case, the father was of sufficient ability, worth $25,000, resided in the country; yearly income, $500, and besides this, allowed annually by his mother, $2,000,—amount $2,500 ; only 2 children, pages 375, 76; decided father entitled to some ailowame, &c., p. 381. (Addison vs. Bowie, 2 Bland's Md. Ch. R,., 606.) Wm. Bowie’s estate, worth $22,433.33, p. 613; had three or four children, pages 608-9, 613 ; principal decision, p. 627. (Cunningham vs. Cunningham, Virginia, 4 Grattan, 43.) This was the case of a mother. Allowance made, although accounts not regularly kept, &c. ¡Reasonable allowance.</p> <p>1. The guardian, H. Coles, expended $1,200, principal, of his own property, over and above all his income, for the maintenance of his wards. And he has contributed towards the maintenance of the said Sarah B. Coles, now Sarah B. Harring, out of his own estate and income, in the ratio of $71 14 to $53 86.</p> <p>2. There having been so many wards, in the relation also of children, namely six, and five living, is a fact to be taken into consideration before imposing upon one surviving parent, of very moderate and limited means, the whole maintenance.</p> <p>3. The deceased wife of ¡Henry Coles, never having enjoyed or derived any income from her father’s estate, it is but just and reasonable upon principles of equity, that the income therefrom, after her decease, should be appropriated towards the support, &c., of her minor children and heirs-at-law, of whom the said Sarah B. Earring is one.</p> <p>4. As to Commissions, see Rapalje vs. Norsworthy, 1 Sandf. Ch. R., 399 ; Vanderheyden vs. Vanderheyden, 2 Paige, 287.</p>

<p>I. The testatrix was not of sound and disposing mind and memory, at the time of the execution of the will. (Dean’s Med. Juris., p. 563.)</p> <p>II. The will is not entitled to any favor. It makes an unfair and unnatural distinction between her children, and entirely cuts off those who most need the small pittance that would come to each child upon an equal division of her property,—the youngest infants.</p> <p>III. The property devised was purchased by the testatrix when a widow. It did not come to her from her former husband.</p> <p>IV. Bridget Cullen was legally incompetent to make a will, she being a married woman, and having intermarried with Dominick Cullen, on the 24th April, 1847.</p> <p>By the laws in existence at the time of the marriage, a married woman could not make a will, and the absence of this power on her part, vested the husband with certain rights in case of survivorship ; that of administering upon her estate, &c.</p> <p>These rights Dominick Cullen acquired on the 24th of April, 1847, by his intermarriage with Bridget Cullen, then Bridget Briody.</p> <p>Could tlio Legislature by a law passed in 1849, divest him of those rights, by granting to his wife the right to make a will?</p> <p>We insist that the third section of the act of April 11th, 1849, is prospective in its operations :</p> <p>1st. It is a fundamental principle, that all statutes are so to be construed, if possible. They are never to have a retrospective operation, unless any other construction would violate their letter and spirit. (Danks vs. Quackenbush, 1, Denio, 128; and 3 Denio, 594, affirmed in Court of Errors.)</p> <p>2nd. Whenever it is intended that “ women now married ” shall be affected by the provisions of any section, it is expressly stated in such section.</p> <p>3rd. It cannot be construed otherwise than prospectively, without affecting existing rights. To construe the statute so as to give women then married the right to make a will, would be to affect rights which the husband acquired by the marriage contract, and thus make this section of the statute retrospective in its operation.</p> <p>If no other than a retrospective operation could be given to this section of the statute,, it would be unconstitutional and void, so far as it undertook to interfere with the existing rights of the husband.</p> <p>This view has been taken of the statute in question by several of our judges. We refer to the following cases:— (Snyder vs. Snyder, per Harris, J., 3 Barbour, 621, Holmes vs. Holmes, per Barculo, J., 4 Ibid, 296, White vs. White, per Mason, J., 4 Howard Pract. R., 103.)</p>

<p>There are two questions in this case.</p> <p>I. Whether the deceased, at the time of the execution of the will, had a disposing mind, and memory sufficient to know her property, her kindred, and their claims on her bounty? (Swinburne, p.72, 77. 6 Co., 23, in Marquins of . Winchester's Case. Rambler vs. Tryon, 7 Serg. & R., 95. 1 Peter's R., 164.)</p> <p>II. Was any undue influence brought to operate on decedent, to produce this will in favor of one set of her grandchildren to the exclusion of others ?</p> <p>1. As to capacity. There is a great mass of- evidence, ¡pro and con.</p> <p>(a) The contestants produce Mrs. Townsend, Mrs. Osborn, Catherine Braman, Angelica Maverick, Dr. Pratt, Mrs. Johnson, Mr. and Mrs. Warner.</p> <p>(1.) These prove, during a period between 1847 and 1850, loss of memory, childishness, and incapacity to attend to her business affairs, although at times she may have spoken and conversed rationally.</p> <p>(2.) Three of these, Mrs. Osborn, Catherine Braman and Angelica Maverick, prove her statement to the effect that she would provide by her property for her other grand or great-grandchildren.</p> <p>(b) Die executor has examined Dr. Berrian, Dr. Maxwell, James Stokes, Mr. Wykoff, Mr. Dugan, Mr. Nexsen, Maria and Margaret Johnson, James T. Griswold, Ann Maria Griswold, and Mrs. Torboss.</p> <p>(1.) Diese prove the character of the decedent’s mind and memory up to 1848, when she left Liberty Street; but know nothing of it since, except Mrs. Torboss, who swears to two instances, one in 1848, and the other in 1850.</p> <p>(2.) The witnesses who speak of her since 1847, or February, 1848, are Joel M. Johnson and Ellen Conklin, who met her at Godwinville, Hew Jersey, one for about ten days, and the other for about five or six days; Dr. and Mrs. Hilton, Mr. and Mrs. Burke, Mrs. Everett, Mrs. Wheeler, Thomas Townsend, Mrs. Nellis,—and Mr. Dewey, and Miss Phillips, the witnesses to the will.</p> <p>While the opinion of witnesses on facts stated is competent evidence, still their force and value depend on the general intelligence of the witness,—the grounds upon which the opinion is based,—the opportunities for accurate or full observation,'—and on his entire freedom from interest or bias, or prejudiced state of mind. (Clark vs. Fisher, 1 Paige, 171, 173, Culver vs. Haslam, 7 Barb. S. C. R., 314, 325, per Willard, J. De Witt vs. Barley, 6 Law Reporter, U. S.,p. 33, May No., 1853.)</p> <p>We desire that the evidence of the witnesses shall be thus tested :</p> <p>1st. Dr. and Mrs. Hilton, Mr. and Mrs. Burke, Mrs. Everett, Mrs. Wheeler, and Mrs. Phillips, are all near relatives and connections of Mr. Reynolds, the executor, and of the devisees under the will,—biased and prejudiced to shield the one and assist the others.</p> <p>Mr. Dewey is a law associateThomas Townsend, operated upon by some interest—the hope of favor from the executor’s position in other matters.</p> <p>2d. The opportunities for accurate and full observation.</p> <p>Where were there better, than of those with whom the testatrix lived, and who were in daily intercourse and association with her ? How much greater the opportunity, than of those who saw her but occasionally—at long intervals— and then but for a short period of time !</p> <p>Take, for instance, the testimony of Mrs. Torboss, Mr. Nexsen, Mr. Dugan—how is their evidence as to capacity after February, 1848, to be viewed in comparison with that of Dr. Pratt, Mrs. Townsend, and Miss Maverick ?</p> <p>(c) While old age may not in itself incapacitate the testatrix, still, when taken in connection with severe sickness just previous, and the other facts in the case, it strengthens the testimony of the contestants. (Turner vs. Turner, 1 Littell R., 102.)</p> <p>{d) There are other facts which, as evidence produced by the executor, prove that there was want of capacity of deceased to attend to her own affairs, to contract for her own board, to pay her own bills, or even to receive her own money.</p> <p>Where a person is under guardianship as non compos, the presumption is that he is incapable of making a will. (Breed vs. Pratt, 18 Pick., 115.)</p> <p>(1.) The power of attorney executed March, 1848, is in effect letters of guardianship to Mr. Reynolds, of the estate of the deceased.</p> <p>(2.) The receipts show that Mr. Reynolds paid her bills, managed her affair’s, and held her estate in his hands.</p> <p>(3.) The testimony of executor’s witnesses shows that she would make no change in her boarding-place, or control her own person, without Mr. Reynolds’ consent.</p> <p>(e) The reason given by some of the executor’s witnesses, as coming from deceased, why she intended to exclude the children of Samuel’s first wife, is inconsistent with the idea that this same intention was held by deceased in 1842, before any provision was made by Mr. Aaron Howell.</p> <p>That will was more reasonable than the one now offered for probate, because her son was then living; yet even that may show the hand of the executor, Philip Reynolds, and may have been produced by the same influence as this.</p> <p>(f) The statements of executor’s witnesses as to declarations of deceased in regard to the disposition of her property, are in many respects conflicting. In one or two instances, it is said that she intended to equalize the property among the children. Mr. and Mrs. Burke contradict each other; one says it was in the summer of 1849, the other sometime in November.</p> <p>(g) The children of Samuel’s first wife received about $1,000 each; this was all their children had,—many of the contestants are great grandchildren of deceased.</p> <p>The children of Clara received their mother’s property.</p> <p>II. As to the influence in producing the will.</p> <p>(a) Tire will was drawn by Mr. Reynolds.</p> <p>(b) He was her legal adviser, and in effect the guardian of her person and estate; and she trusted and confided entirely in him.</p> <p>The law looks with great jealousy upon devises obtained in this way, and will not sustain them without the clearest evidence of free will in the disposition that is made. (Crispell vs. Dubois, 4 Barb. S. C. R., 393, Barry vs. Butlin, 1 Curteis Ecc. R., 637; 2 Phill., 323.)</p> <p>(c) The will was executed in the presence of the sister of the executor’s wife, and his law-clerk. The presence of other persons in an adjoining room cannot add strength to the will, as at the time of execution decedent was excluded from them, and only in the presence of her guardian, his relative, and his associate.</p> <p>(d) Hie person who drew the will had control of her property, is the executor under it, and the devisees are his nephews.</p> <p>(e) There is no evidence of instructions to draw this will.</p> <p>(f) The evidence that the deceased understood the will when read to her is doubtful; at least her asking questions at the time is evidence that she did not understand it.</p> <p>There is a conflict between the attesting witnesses, as ' to how often the will was read, and what the deceased said at the time. Miss Phillips says, that she asked Mr. Reynolds if it was right.</p> <p>(g) Hiis is sustained, by the evidence that she after-wards declared her ignorance as to what was in the paper she had signed.</p> <p>III. If the contestants shall have failed to prove either sufficient want of capacity or sufficient undue influence, when standing alone, yet the combination, in a less degree, may be sufficient to invalidate the will, and induce this court to pronounce against it. (Butler vs. Benson, 1 Barb. S. C. R., 588. Sears vs. Shafer, Ib.,p. 412, 413, per Barculo, J.)</p> <p>I. The paper offered for probate was executed as required by the statute.</p> <p>II. The decedent, at the time of executing the will, was of sound and disposing mind and memory, and in all respects legally capable of making a will.</p> <p>The law presumes, that the testatrix at the time of executing the will was sane. Insanity must be proved. (Peters, C. C. R., 162.)</p> <p>Old age raises no presumption against the capacity of the testatrix. Incapacity must, be proved. (Swinburne, Part 2d, § 5, Van Alst vs. Hunter, 5 John. Ch. R., 148; Bleeker vs. Lynch, 1 Bradford, 458; lessee of Hoge vs. Fisher, Peters, C. C. R., 163.)</p> <p>The testimony on the part of the executor, shows capacity before, and at the time, and after making fhe will; and the contestants have failed to destroy or weaken this testimony. The mere fact of being unlearned or illiterate does not incapacitate a person from making a will. (5 John. C. R., 148 ; 26 Wend., 255.)</p> <p>Physical suffering of itself is no evidence of incapacity; unsoundness of mind and memory must be connected with it, to create a legal incapacity. ( Voets’ Com. on Pandects, lib. 28, title 1, § 36.)</p> <p>Imbecility of mind, apart from idiocy or lunacy, is no evidence of incapacity. (3 Denio, 37: 21 Wend., 142; 24 Ib., 85.)</p> <p>Defect of memory, unless total, or it appertains to things essential, will not establish incapacity. (Bleecker vs. lynch, 1 Brad., 458 ; Martin Silber's Will, 2 Ib., 133; Stevens and Wife vs. Vancleve, 4 Wash. C. C. R., 262.)</p> <p>III. The testimony does not show that undue influence or clandestinity was used to procure the making or execu"tion of the will. Facts and circumstances must be proved, showing undue influence, to raise or warrant a presumption of unfairness in the transaction. (1 Brad., 458; 3 Denio, 37; 22 Wend., 526.)</p> <p>IV. The provisions of the will are consistent with natural affection, and in conformity with the intentions of the decedent.</p>

<p>I. The will is improperly attested. Witnesses must “ sign their names! Stat. 29, Ch. II., requires testator to sign, and witnesses to “ attest and subscribe.” In Harrison vs. Harrison, 8 Vesey, 185, and referred to in 8 Adolphus & Ellis, 94, the Chancellor decided a mark a good attestation, because the “ the word sign did not apply to witness! The case in 5 Johnson, p. 144, was attested by initials. Jarman regards it, even under the English statute, at least improper, in the advanced state of education. (1 Jarman, 73.)</p> <p>II. The language of the Statute 29, Ch. II., has been adopted in many States verbatim, as it has been on some points in this State; but on the attestation of wills, it directly departs. If the intention of the framers of the law must govern, when the law is not explicit, what are we to infer from the variance ?</p> <p>III. A mark cannot be proven. (4 Randolph, 325. 4 Yates, 346. 1 Haywood, 19. Cowen's Notes on Ph. Ev., 1306.). Therefore, if both were marksmen, and no witnesses to prove the fact of a mark being made, the death or absence of the witnesses would leave the will with; out attestation.</p> <p>IV. The mark, or the fact of its having been made, cannot be proven by the associate witness; because it would subvert the intent of the statute, which provides two witnesses, to guard from, fraud, and the whole execution would depend on the proof of one witness.</p> <p>Y. If the witness can prove the attestation of his associate by mark, other circumstances should afford incontestable proof, and the witness should beyond suspicion; vide conflict of testimony, and antedate and interlineation of will in handwriting of Duggan.</p> <p>VI. It is not proven according to statute, that the decedent requested the witnesses to sign or attest. The publication of a will must be wnegui/oocal. (Rutherford vs. Rutherford, Ist Denio, 33.)</p> <p>VII. The absence of Eliza Green is not proven, nor are proper efforts to procure her shown. All the cases cited in Cowen's Notes, Ph. Ev., 1294, require more diligence than is here shown-; and he says, “If the absence appears to be the result of collusion, secondary proof will not be admitted.” The evident fraud in this case proves collusion.</p> <p>VIII. The statute requiring that he who writes the testator’s name, shall sign his own as a witness argues that it is contemplated the witnesses’ names shall be written, and is simply declaratory as to the fact as to who shall be a witness.</p> <p>IX. The evident torpidity of the mental faculties requires a lucid relapse to be clearly shown by undoubted evidence ( Vid. Opinion, Case of Catherine Kerr—Bradford, Surrogate.) “The evidence to establish the fact should be of the clearest character.”</p> <p>X. Typhus fever in the stages preceding death, incapacitates the mind. (1 Beck's Med. Jur., 10th ed., p. 821.)</p>

l. The sale had on the 8th day of January, 1851, by order of the Surrogate, divests the lien of any judgment creditor of Robt. J. Renwick. II. The sale was had under the Surrogate’s order, within the existence of the lien of the Mack judgments. m. If a sale had been made under these judgments, of the lots sold by the' Surrogate’s order prior to such last sale, no valid title could have been made, and the purchaser would have been without remedy. IV.

<p>The testator directed his executors to take possession of his estate, real and personal, and to pay to M. V. V. the net income to be derived from his store in Cedar Street. The premises in question were sold and conveyed by the testator, in his lifetime,- and a bond and mortgage taken for the consideration money,—Held, that the devise was revoked by the conveyance.</p> <p>In case of a devise to brothers and sisters surviving at the testator’s decease and the descendants of' such as should then be dead, such descendants to take the share or portion which would have otherwise belonged “to such deceased parent,”—at the testator’s death there were four surviving sisters,—and descendants, children and grand-children, of six deceased brothers and sisters,—Held that the four sisters each took one tenth, and the descendants of each deceased brother and sister took one tenth.</p> <p>The term descendants properly includes every person descended from the stock referred to. A devise to descendants equally to be divided between them, embraces all the descendants of every degree, per capita.</p> <p>Whether descendants are to take per capita or per stirpes is, however, a question of intention, to be judged of by the will. A devise to descendants of the share of their deceased parent, in connection with other portions of the will tending to show that the testator looked to the principle of representation, may restrain the import of the term descendants to children and the descendants of children, so that they take per stirpes, and not per capita.</p>

<p>The testator, by bis will, gave a legacy of five hundred dollars “ to his nephew, James Hornby, son of his brother Frederick." It appearing that Frederick had no son named James, and that James had a son named Frederick; and the draughtsman of the will having testified that the testator directed the legacy to ‘‘James’ son Frederick;” and other satisfactory evidence having been given of the intention of the testator at the time of making the will, showing the legacy was designed for Frederick the son of James,—Held, that the words of the clause in question might be transposed, and the mistake corrected so that the will might be read in conformity to the fact.</p> <p>Generally, parol proof cannot be received to vary a will, where its meaning is plain and its provisions are susceptible of application. But evidence of all material facts is admissible, in aid of the exposition of a will; and it is competent, by means of extrinsic evidence, to place the court in the situation of the testator, so as to facilitate and ensure the ascertainment of his intention.</p> <p>It is competent to give evidence of the testator’s declarations at the time of making the will, where, as the will is written, there is no one^o answer the precise description in the instrument.</p> <p>In construing a will, words may be transposed, to effectuate the testator's intention as gathered from the will and from extrinsic proof, when, as the clause stands, it is inapplicable to an existing state of facts, but if transposed, it will be consistent and applicable</p>

<p>According to the canon law, a promise of marriage, per verba de futuro, i. e. to become husband and wife at some future time, if the promise was followed by consummation, constituted a valid marriage. Whether that is the rule of law existing in this State,—Quaere?</p> <p>. Where no promise of any kind was proved, except that the claimant declared after the decedent’s death, that she was not married to him, but he had said that he had some trouble on his mind, and when that was settled would marry her; and where the parties, though having connection and children, did not live together, hut their relation was clandestine, and there was no open acknowledgment or common reputation, and both parties denied marriage,—Held, that there was not sufficient in the circumstances, from which to infer a marriage.</p> <p>When parties are living in a meretricious state, a promise to marry on a future condition, does not effect a marriage by a mere continuation of that connection.</p>

<p>"Where there has been such a lapse of time between the execution of the will and the examination of the subscribing witnesses, as to justify the inference that their recollection may be imperfect, due celebration of the necessary forms may be presumed, unless there be evidence repugnant to such a presumption. There must be enough in the remote date of the transaction and in the circumstances, to lay the defect of the proof upon the infirmity of the human memory.</p> <p>Not more than three months intervening between the execution of the will and the probate, and the witnesses agreeing substantially in their statements, and seeming to remember the circumstances with essential accuracy,—Held that due execution could not be presumed, and there being no evidence of a testamentary declaration, that the will was not validly executed.</p> <p>The testamentary declaration is essential to due execution. It must be made at the time, be open and manifest. The testator must declare the instrument to be his will; and it is not sufficient, for the witnesses to conjecture the character of the instrument.</p>

I. The Surrogate has no right hy the revised statutes to try this case, as it involves the trial of a disputed claim» (Magee vs. Vedder, 6 Bar., p. 352; Opinion of D.… Held: that because the donee did not “ regard and take care of the gift,” and thus suffered it to return to donor, the gift was revoked. V. Possession must be resumed by donor with the knowledge and consent of donee; otherwise, donee has not parted with his right to dominion over the subject of the gift. VI.

The following is a copy of the will propounded. “I, Abraham G-.