Volume 2 — Connoly's New York Surrogate's Court Reports

<p>Under section 2852 of the Code of Civil Procedure, a person who is appointed guardian upon the happening of a future event, e. g. when he shall attain his majority, who does not qualify within thirty days, or if the Surrogate shall extend the time, within three months after the attainment of his majority, will be deemed to have renounced the appointment as guardian.</p>

<p>Motion on behalf of the husband to compel the appraisers to set apart for him certain personal property, pursuant to Laws 1887, ch. 630.</p> <p>The facts appear in the opinion.</p>

<p>Petition for the discovery of certain personal property belonging to the estate of John B. Nickerson, deceased, and claimed to have been withheld by E. B. Dusenbury, brought under sections 2706 et seq. of the Code of Civil Procedure.</p> <p>The facts appear in the opinion.</p>

In the matter of the personal claim of the administrator against the estate of Dan A. Strickland,, deceased. The facts sufficiently appear in the opinion.

<p>Counsel fees, and such other expenses as may he incurred by an administrator under section 2562 of the Code of Civil Procedure, are actual expenses within the meaning of section 2557 of that Code, and may be allowed to the administrator by the Surrogate, even though the estate out of which they are directed to be paid amounts to less than one thousand dollars.</p>

Petition of Bach Cunard, ancillary administrator of Edward Cunard, deceased, for the discovery of property under sections 2706, 2714 of the Code of Civil Procedure. The facts appear in the petition.

Accounting of Henry Huss as executor of the will or Sebastian Gehrig, deceased.

Motion to confirm the report of a referee and overrule exceptions filed thereto on the judicial settlement of the accounts of the administrator. The facts appear in the opinion.

<p>Accounting of Lydia W. Randell, as executrix of James Randell, deceased.</p> <p>The facts appear in the opinion.</p>

Application by the proponent of the will of Morris Keeler, deceased, for costs, and asking that costs be allowed as against the contestant personally.

<p>Accounting of Adrian Van Sinderen, executor and trustee of the will of William Lawrence, deceased, The facts appear in the opinion.</p>

<p>Application for leave to issue execution.</p>

<p>Accounting of the executors of William Crise, deceased.</p> <p>The facts appear in the opinion.</p>

<p>Where a will is, on its face, properly executed and attested, and one of the witnesses thereto testifies that she was not asked to sign the will as witness, the will should notwithstanding be admitted to probate, where the recollection of the witness is evidently defective or perverse, and where the other subscribing witness who had drawn the will, and also a third person present at the time of the execution, both testify that such witness was, in fact, requested to sign by testator.</p> <p>Where decedent willed one fourth part of his residuary estate to his executor “ to be devoted by him. to and for a certain purpose made known unto said executor by a certain letter dated,” etc., “written by me to my said executor, and bearing,” a specified date “said letter to form a part of this my will,” and no such letter has been found, it must be held that the decedent died intestate, as to that part of his estate.</p> <p>Further held, that the non-production of the letter does not invalidate the will as to the other three fourths of the residuary estate.</p>

Accounting of George H. Mead, executor of the will of Rebecca J. Fisher, deceased. The testatrix died March 15, 1887, and letters testamentary were issued to the executor October 10, 1887.

Motion to confirm the report of a referee upon the accounting of Aaron Healy, executor and trustee of the will of Nathaniel Gilman, deceased.

<p>Real estate of the testator subject to a mortgage held by one of the executors was sold, with the agreement that the purchaser thereof should assume the mortgage. The whole purchase money, however, was paid to the executors; and was retained by them uninvested. Held, upon the executor’s accounting that the mortgage should be treated as if paid to the time of the sale, and that the estate should not pay interest thereon after such time. -</p> <p>One of the executors held a note of testator for interest then overdue on a mortgage. The executor, without having this debt proved to or allowed by the Surrogate, as required by statute, 2 JR. S. 88 (8th ed., p. 2561), § 33, paid this note out of the funds of the estate, which, as it afterwards appeared, were, insufficient to pay all the debts. Held, that he had no right to do this, and Farther held, that having treated the note as payment of the interest, he could not afterwards ignore the note, and claim that it was merely evidence of the debt, and that the interest was therefore still due by the estate.</p> <p>An executor of an estate who.has deposited funds belonging thereto in a bank of which he was president and principal stockholder, and which funds have remained in said bank without drawing interest for over a year, will be charged with interest thereon at the rate paid by that bank on time deposits.</p>

The testatrix was a widow, and, as it appears, without children, and the executor was her brother. By her will, which was made in 1886, after the bequest of some trifling legacies, she devised a life estate in her real estate, which consisted of a house and lot in the city of Yonkers, to her brother, and bequeathed the use of her personal estate to him for life, with remainder, in both, over.

<p>Accounting of Henry Millard, as executor of the will of Sylvanus S. Millard, deceased.</p> <p>The facts appear in the opinion.</p>

<p>Where part of the estate of testator consists of a tenement house, and it appears that a housekeeper and janitor are necessary to care for the property, and that it is customary to allow such housekeeper and janitor to occupy an apartment in the bouse free of rent, in addition to paying about thirty dollars a month wages, an agreement made by the executors with the widow of testator, who was also executrix, to perform the duties of housekeeper and janitor of said building, in consideration of receiving free of rent, the same apartments she occupied before the death of the testator, will not be disturbed.</p> <p>Testator by his will, bequeathed and devised his residuary estate in trust to his executors, to pay one third of the net income to his wife. The will directed further, “ On my eldest child attaining the age of twenty-five years, if my said wife shall not then be living and in case my said wife is living at that time, then upon her death, to sell and convert my said estate into cash, and to pay and divide the proceeds thereof to and among my children, share and sha're alike, the' issue of any deceased child to take the share the parent would have taken, if living. In case my son shall desire to go into business before attaining twenty-five years of age, my executrix and executors may, in their discretion, advance to him, upon his share in my estate, such sum as to them may seem meet and proper.” Subsequent to the death of the testator, one of his children, M., who had married during his lifetime, died leaving her surviving a child who thereafter died, leaving as his only heir.and next of kin, his father. Held, that each child or the issue of a deceased child took, on the testator’s death, a vested estate in an undivided one fourth part of his property, descendible on the death of any child to its heirs or next of kin, and that the husband of the deceased daughter, M., was not only entitled as the administrator of his wife, to receive whatever income became due and payable to her before her death, and also to whatever income became due and payable to his son before the latter’s death, but that he is entitled to future income, and to share in the residuary estate at the expiration of the trust.</p>

<p>Where a house is left by testator to his wife during her life and it becomes necessary to take out the old plumbing and replace it by a new and improved system of plumbing, which is of such a character that it is a permanent improvement, and calculated to be of benefit to the remaindermen, the expense of the change will be apportioned between the life tenant and the remaindermen pro rata, taking into consideration the present value of the life estate and the value of the reversionary interest.</p>

<p>The general guardian of an infant filed a petition praying for the judicial settlement of his accounts, and a decree revoking his letters of guardianship. The application was partly based upon allegations of the guardian that disputes and disagreements had arisen between the guardian and the trustee of the estate; that unfriendliness between himself and the trustee of the estate existed, and that the minor desired some other person than himself to be appointed her general guardian. Upon the presentation of the decree upon the accounting,-for settlement, it was held: that as, notwithstanding the discharge of the guardian in this proceeding, another settlement of his account might be compelled (Code Civ. Proc., § 2837), the decree should judicially settle and state the account as between the guardian and ward, showing the balance which existed in favor of the guardian without any direction whatever as to its payment.</p> <p>Further he.ld, that under the circumstances recited, the infant should bear all the allowance awarded to the special guardian upon the accounting, and that the general guardian should be disallowed all costs beyond the ordinary costs of an accounting without contest.</p>

<p>Testator left to his wife his personal property absolutely and the use of his real estate for life, and the real estate was directed to be sold at her death and the proceeds distributed to his descendants. There was a judicial settlement of the account of the executor, to which the widow alone was cited, and under the account as then presented a balance was found due from the estate to the executor. Upon a subsequent accounting, to which all the parties in interest were cited, it appeared that at the time of the prior accounting there was an amount in his hands sufficient to pay all the debts of the estate, including a claim of his own. Held, that the executor could not on the second accounting maintain a claim for his debt against the realty of the estate.</p> <p>Under section 2740 of the Code of Civil Procedure, which suspends the running of the Statate of Limitations upon a claim of an executor or administrator against a debt due from the decedent to the accounting party from tlie time of the death of the decedent to the first judicial settlement of the account of the executor or administrator, the Statute of Limitations begins to run against such a debt from the time of a judicial settlement of the account of the executor or administrator in proceedings wherein one interested party only, i. e., a legatee of the personalty and life tenant of the real estate, is cited.</p>

<p>Decedent executed a will, leaving all bis property to charities, to the exclusion of his relatives, except a sum to his executor “ large enough to be over and above any bribe that may be offered by my sisters, brothers and children for the redemption of this will, and their heirship to my estate.” The decedent had been many years before in an insane asylum, but had been discharged “improved.” He had numerous delusions for a long time prior to his death, believing that his relatives were trying to poison him, that he was threatened by devils, and numerous other delusions, chiefly relating to supposed attempts on his life. He displayed the usual intelligence of people of his condition of life in relation to his business transactions, which were all of a simple character. The subscribing witnesses to the will, who were but slightly acquainted with testator, believed him to be of sound mind at the time of its execution. Held, that the testator had not testamentary capacity, and that the probate of the will must be refused.</p>

<p>Final accounting of James Seymour, Jr., as executor of the will of William M. Gibson, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

Petition of Eliza Banks, a legatee under the will of Adam Miller, deceased, to compel Charles Q. Miller, the executor, to judicially settle his accounts, and pay her the legacy to which she is entitled under the will. During the proceedings brought by this legatee the question arose as to whether or not the executor had rejected a certain claim of one E. M. Spink, a creditor of testator. .

<p>Where a will has been found in the safe of testatrix carefully preserved among her valuable papers, with the signature erased, and then carefully restored, this, in the absence of other proof, does not raise a presumption of an intention to revoke the will, and such will should be admitted to probate.</p>

Applications to remove a testamentary trustee. There were two proceedings brought against this trustee, one by Mrs. Drinker and others, and one by Hanford Smith and others. These proceedings were .argued together.

Application by Mark A. Nicholls as executor of a bondsman of Dorothy Lull, administratrix, to compel her to account as such administratrix. The administrators interposed an answer, setting up the Statute of Limitations as a bar to the right of petitioner to call the administratrix to account, and to this answer the petitioner demurred.

<p>The proceeds of the sale of part of the property of a corporation, apportioned by a resolution of the directors among the stockholders, are capital and not income, and therefore belong, not to a life tenant of an estate, but to the capital account thereof.</p>

<p>Accounting of McLean Blair, temporary administrator and executor of Chester L. Greene, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>A testator gave a specified sum to his executors in trust for his nephew to “ he so managed and used as will best promote the future welfare, comfort and happiness of the said” nephew, and for that purpose left “the disposition and management of the said sum, both interest and principal, should it be necessary, to the better judgment and discretion of ” his executor. Held: That the legacy vested in the nephew at the death of the testator, subject only to the control of the executor during the life of the nephew, and at his death passed to his legal representatives and not to the residuary legatees of testator.</p> <p>Legacies given in lieu of dower, even though they be many times the actual value of the dower right released, do not abate if the estate is insufficient to pay all legacies in full.</p>

<p>Accounting of Mary Leddy executrix of the last will of Ellen Conklin, deceased.</p> <p>The facts appear in the opinion of the Surrogate</p>

<p>A proceeding for an accounting commenced upon the Surrogate’s own motion is an intermediate account and when filed it should be in such shape that it may be settled in a proceeding to be instituted under § 2729 of the Code of Civil Procedure.</p> <p>Such intermediate account should state if an inventory has been filed, or if not, the account itself should.furnish the information usually thus supplied. It should likewise state fully all the matters as to advertisements for claims, what claims have been presented, allowed or rejected, and the time and manner thereof and the reason for allowance or rejection. The account should also contain the funeral charges and expenses of administration, moneys paid to creditors, legatees and next of kin. It should also state the age of the legatees and next of kin, and if any of them are minors; if so, the names and residences of their guardians. The accounting party is bound also to state any other fact which has occurred as part of his proceedings which may affect the estate, or the rights of any distributee, or his own rights. And he must produce vouchers for each payment, or if such payments were under twenty dollars, in lieu of a voucher his own oath as to the fact of payment, when made, and to whom.</p> <p>The order of the Surrogate made upon his own motion for an accounting may be answered by the representative of the decedent filing with the court the releases duly acknowledged of all the parties interested in the distribution of the fund either as legatees or next of kin. In the ease of the death of such legatees or next of kin similar releases should be obtained from their personal representatives.</p>

Proceedings for the collection of the collateral inneritance tax on certain property belonging to D. Lawrence Clark, deceased. The facts appear in the opinion.

Motion to confirm the report of a referee in proceedings to sell real estate belonging to the estate of Henry Foster Topping deceased, for the payment of debts. The facts appear in the opinion.

<p>Accounting by Jane E. Rolph as administratrix of Worthy M. Rolph, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>Proceedings for the collection of the collateral inheritance tax on the estate of John L. Rogers, deceased.</p>

The deceased, by her will, bequeathed $500 to the Board of Home Missions of the Presbyterian Church in the United States of America, and $500 to the Board of Foreign Missions of the same church, and the question has been' presented as to whether these legacies are subject to taxation, by reason of their amounts, under the Collateral Inheritance act. Other questions are also submitted.

<p>One who subsequent to the death of a testator has sold goods to a firm composed of the surviving partner of testator and the executor and executrix, as such, of testator, which business was continued under a provision of the will that the executor'could only devote to the purposes of the business so much of the estate as was already at testator’s death invested therein, is not a creditor of the estate, and cannot as such apply under section 2685 of the Code of Civil Procedure for revocation of letters testamentary issued to the executors of deceased. •</p> <p>Such creditor has only a remedy so far as the estate of decedent is concerned, against the assets embarked in the business which are simply an investment of the estate and has no claim against the executors and executrix as such.</p>

Petition by Howard Crosby, Margaret A. Gaynor, Louise Killett and the Association for Befriending Young Girls for a revocation of the probate of the will of Mary L. Stillman, deceased. The facts appear in the opinion of the Surrogate.

The deceased testatrix Sarah M. De Groot was engaged to be married to Mr. Hodgkinson who was much younger than herself. In June, 1881, while in good health she executed a holographic will leaving her entire property to Hodgkinson. On 26th July following, being very ill, she consulted her attorney and was advised by him that her will had not been executed as required by law. She then directed him to draw up a new will and incorporate in it the same provisions.

<p>Where an administrator, acting in good faith, has allowed the funds of the estate to remain idle he will be only charged with simple interest thereon. It is only in cases of gross negligence or bad faith that he can be charged with compound interest.</p>

<p>Application for the probate of a will.</p> <p>The facts appear in the opinion of the Surrogate.</p>

Accounting of executrices. The testator died at his home in Mount Kisco on the third of August, 1888, leaving him surviving as his widow, Hester M. Ryder, and his daughter, by a former wife, Sarah E. Hall, and the claimant, who is a daughter of his last wife. Mrs. Hall has been for many years residing away from home with her husband.

Motion to compel the correction of an inventory. Chapter 406 of the Laws of 1889 in section 1, amends the Revised Statutes, part 2, chapter 2, as amended by Laws of 1830, chapter 320, by adding thereto § 30, which provides that where an intestate leaves a widow and descendants, the widow in addition to any interest to which she may be entitled under the preceding sections of part two, chapter two, just cited, shall be entitled to the use during her life of an additional…

<p>Where land upon which a crop is growing is so devised by testator as to convey it to the devisee, unless a contrary intention plainly appears from the will the crop is on the footing of a chattel specifically bequeathed to the devisee.</p> <p>In such case the crop cannot be sold for the payment of general legacies, and can be applied to the payment of debts only after other assets not specifically bequeathed have been so applied.</p> <p>A clause in the will of testator which provides that after the payment of testator’s debts “if anything is left from the personal property it shall be equally divided between my children share and share alike” does not apply to growing crops on land specifically devised.</p>

<p>Where a will directs the investment of a specified sum; that the income thereof be paid to the life-tenant and that at his death the principal he divided among certain named persons in specified shares, the remaindermen in such case take a vested remainder at the death of the testator, and in case of the death of any one of the remaindermen prior to that of the life-tenant the personal representatives of such deceased remaindermen are entitled to his share upon the death of the lifeítenant.</p> <p>Where in such case the executor under testator’s will has died before the distribution of the remaindermen’s shares, such shares should be received and distributed by an administrator c. t. a. of the testator and not by the executor of the deceased executor.</p> <p>The statute, L. 1882, chap. 185, providing that in case of the death of the surviving trustee of an express trust, the trust shall devolve on the Supreme Court, does not apply in such case, as the statute relates solely to the case where one being a trustee, as contradistinguished from an executor merely, dies leaving the trust unexecuted.</p> <p>An action for an accounting may be maintained to obtain an administration of the estate of a testator, against the executor of a life-tenant to whom letters c. t. a. had been issued and the assets of the testator delivered less than six years before the commencement of the proceeding for the accounting. And this is not changed by the fact that the issuing of letters testamentary, to the executor since deceased, of the original testator took place eleven years before the institution of such proceedings.</p>

<p>One of the witnesses to the will of the decedent had drawn up the will in her presence. This instrument was spoken of by that witness in the hearing and presence of the other witness, and in the presence of the decedent immediately before the execution and attestation, as the will of decedent. She signed it with her mark. Upon the proceedings for the probate of the will the witness who had drawn up the will being dead, the other witness testified that he had signed the will as a witness before the testatrix had made her mark. Held, that the will must be admitted to probate, as there was proof of its due execution and attestation, as the testimony of the witness that he had signed before testatrix could be presumed to be erroneous, from the facts, which as appeared by the evidence, accompanied the execution of the will, showing that his recollection of the order in which it was signed was incorrect.</p> <p>The subscription of a will by the mark of the testator may be proved after evidence of the handwriting of a deceased witness, by the surviving witness, if his testimony convinces the court of its truthfulness.</p>

Appraisement of the estate of Edward B. Underhill, deceased, for the purpose of fixing the value of certain legacies claimed to be subject to the collateral inheritance tax.

<p>Where after the death of an intestate, one of the next of kin dies, and no administrator of such next of kin has been appointed, the administrator of the intestate must hold the share of the deceased next of kin until some one entitled to receive it shall appear and then it must be the subject of a further accounting by the administrator.</p>

A will and codicil of the deceased were duly admitted to probate on the 20th day of January last, and letters testamentary issued to the executors.

<p>The executor of a will, who is the chief beneficiary thereunder, whose relations with most of the testator’s heirs and next of kin are unfriendly; who has large unsettled transactions with the estate, and who is charged by the contestants, having exercised undue influence over the testator, should not be appointed temporary administrator, pending the contest of the will.</p>

<p>A petition to the Surrogate for leave to compromise a claim must contain all the facts and circumstances warranting an acceptance of a less sum than the face of the claim, Before the compromise will receive the sanction of the Surrogate. The same evidence should be before the Surrogate on this ex parte application that would be required to justify the same if attacked upon an accounting.</p>

<p>Where the Statute of Limitations has not barred the claim of an executor or administrator at the time of decedent’s death, its running will be suspended until the first judicial settlement of the account of the executor or administrator.</p> <p>The rule that the burden of proving payment is upon the party alleging it, applies to the litigation of a claim against the estate of a decedent upon a promissory note made by such decedent, to which the defence of payment is interposed.</p>

<p>A person who takes a legacy under the exercise of the power of appointing legatees given to a trustee by a will, takes as by the will when such power is exercised by the trustee, and if his legacy is subject to the collateral inheritance tax, it is taxable at the time of the exercise of such power.</p> <p>Where such appointment of a legatee is made more than eighteen months after the decedent’s death, interest on the tax will be at the rate of six per cent from the death of decedent to the time of the entry of the order confirming the appraisement. If such tax and interest is not then promptly paid, interest thereon will run thereafter at the rate of ten per cent.</p>

<p>Decedent’s widow had originally been his servant with whom he had illicit intercourse; later on she lived as his mistress in an apartment which he secured for her, and finally she became by the consummation of a non-ceremonial marriage, as was decided by the Supreme Court, his wife. From the testimony it appeared that the will offered for probate was made while she was living with him, as his mistress: Held, that his subsequent marriage, and the birth of issue revoked the will.</p>

Application by the administrator of the estate of William Radde for an order striking out the name of Mary L. Tyler as a party to the proceeding for the settlement of his accounts as administrator and adjudging that she has no standing as a creditor. The facts appear in the opinion of the Surrogate.

<p>Application for the probate of the will of Jane Foley, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>Application for the probate of the will of Houseman DeBaun, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>Application for the assessment of taxes under the collateral inheritance tax act upon certain cash legacies given by the will of William H. Vanderbilt, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>Application for the probate of the will of Ann Bedell, deceased.</p>

<p>Proceedings to determine claims to certain personal property belonging to the estate of Sarah L. Warner, deceased.</p>

<p>In the matter of the accounting of the executors of the will of George H. Mapes, deceased.</p>

Application by the heirs of Dorothea Beck, deceased, for the distribution of surplus moneys derived from foreclosure of a mortgage upon real estate of decedent.

Special proceeding instituted against Philomene Chevalier, as administratrix with the will annexed of Lutgarde Blow, by Julia F. Buchanan, as next of kin, and devisee of decedent, consolidated under Code of Civil Procedure, § 2728, with a proceeding instituted by said administratrix for the judicial settlement of the accounts of said administratrix.

<p>L. 1874, ch. 446, provides for the confinement of the insane in the Buffalo State Asylum, and makes an insane person, or if the property of the insane person is insufficient, his parent, liable for .his maintenance therein. In the present case, the administratrix, who was the widow of decedent, advanced the money necessary to pay for the proceedings preliminary to the confinement of the insane adult daughter of herself and decedent in the said asylum, and also half the expense of her maintenance while therein. Held, that upon her accounting the administratrix would be allowed these advances, to be deducted from the distributive share of the insane daughter.</p>

<p>Appraisal under the Collateral Inheritance Tax Act (L. 1887, ch. 713).</p>

Application to compel payment by the New York Life Insurance and Trust Company, administrator, with the will annexed, of the interest on a legacy.

Application by Leander L. Purdy, Charles G. Dill, Gilbert Brown and Eífie A. Miller, for letters of ad-, ministration with the will annexed on the estate of Harriet Brown, deceased.

<p>By his will testator gave to his wife all his property, to have, hold, possess, use and control the same for her own personal benefit during her life, and at her death all that might then remain to seven specified children. The executors were given full power and authority to sell and convey any portion of the real estate, on condition that such sale be approved of and concurred in by testator’s wife. The will also provided that the appointment of appraisers at testator’s death should not be required, that the whole management of the property should, immediately vest in the wife, and be subject to her absolute control during her life "and that she should not be subject to any accounting therefor. Held, that the wife took only a life interest and use of the property of testator, to hold the same in trust for her necessary support and maintenance; that the provisions declaring the estate not subject to an accounting were nugatory and void, as contrary to law and to the whole text of the will.</p>

<p>Testator was at the time of the execution of his will about seventy-three years of age. He was very feeble in body and had been for several years so mentally weak as to be unfit to give testimony in a legal proceeding. He had. sixteen years before made a will in favor of his wife and her niece, with both of whom he continued on affectionate terms. To neither of them had he expressed any intention of changing his will, nor were there any circumstances which might naturally lead to such a change. The present will, which was drawn up under the direction of proponent, and whose execution was superintended by him, left everything to him, who was an entire stranger in blood. It stated that it was made to reward proponent for his services to testator, but there was no proof that he had rendered such services. At the time of the execution of the will, proponent, who had entire charge of the property of testator, had obtained complete dominion over him, and sustained to him the closest confidential relationship. Although opportunity was offered him, proponent did not explain the suspicious circumstances surrounding his conduct. Held, that in such case the law presumes undue influence, and that it was incumbent upon the proponent to satisfy the court that undue influence had not been exerted. Further held, that in the absence of such proof by proponent the will would not be admitted to probate.</p> <p>Legal advice given in casual conversations in the street for which compensation is neither asked for nor expected, is not a privileged communication.</p>

<p>The will of "testator was executed June 16, 1887. It complied with the statutory requirements as to execution and the witnesses testified to the essential facts, and that testator was at the time of such execution perfectly sober and rational. At various times prior to the execution of the instrument, extending over a period of about four years, testator was much addicted to drink. In July, 1885, a jury found him to be a habitual drunkard, and that he had been such for two years. He was committed to a State Asylum for the Insane where he remained about eleven months, being then released on trial, but was re-committed to the asylum until the further order of the court. Being released finally, his bad habits continued in 1887. He was twice committed for drunkenness to the Penitentiary on Blackwell’s Island in the first part of May, 1887, and had only been discharged from the island the day ' before the execution of the will. The will bequeathed and devised his entire property to a nephew from whom, and from whose family, he had received kindness. After the execution of the will his bad habits returned, and in 1889 he was several times admitted to hospitals suffering from alcoholism. He died December 29, 1889. There was nothing to show undue influence except the fact that the present will, as well as a previous one, was written under the direction of the sole legatee. During the two years and a half intervening between the execution of the will and his death, testator made several declarations that the will conformed to his wishes. Reid, that these facts furnished no proof of mental incompetency or undue influence, and that the will should be admitted to probate.</p> <p>A drunkard may make a valid will even if at the time of its execution he is under the influence of liquor, provided he comprehends the nature, extent and disposition of his estate, his relations to those who have, or who might have, a claim upon his bounty, and is free from undue influence, fraud or coercion.</p>

<p>Testator bequeathed to his wife the use interest and income during life of the residue of his estate, with the remainder over as to principal. A part of the personal estate consisted of bank stock. After testator’s death, the bank reduced its capital stock by returning to its stockholders one half thereof, and declared a dividend derived from earnings of forty per cent on the one half returned of the capital stock. Regular semi-annual dividends were declared and paid upon the stock both before and after the reduction. Held, that the forty per cent dividend was income which was payable to the widow.</p>

The deceased left a will of which his widow, Sarah Watts, and Edward F. Gaylor, his son-in-law, were the executors. Gaylor took sole charge of the management of the estate. He was cited to render an account of his proceedings as such, and the proceeding resulted in a decree in July, 1890, which adjudged that he had in his hands a balance belonging to the said estate amounting to $20,853.50.

<p>An accounting party is not confined to sections 2561 and 2562 of the Code of Civil Procedure in remunerating his counsel, but may expend such sums as he deems proper in that behalf, to be included in his accounts, and the correctness and propriety of which may be contested by the persons interested.</p> <p>But to justify such items in an account it must appear that services beyond the ordinary preparation of the account, or for trial, were rendered and were necessary.</p>

<p>Application for the probate of the will of Benjamin E. Birdsall, deceased.</p>

Upon the probate of the will where the mental capacity of the testator was questioned, it appeared that the testator had been confined in the Bloomingdale Asylum for the insane on the certificate of commitment of two physicians and that he was afflicted with a disease known as general paresis, in November, 1886, and that the testator remained there till October, 1887, when he was taken out by his relatives; and that subsequently and on the 4th of March, 1888, he intermarried…

Proceeding for the construction of the eighth clause of the will of Almira Ingersoll, deceased. The clause of which the construction was sought in this proceeding appears in the opinion of the Surrogate, ;

<p>Accounting of the executrices of the will of Isaac F. Blauvelt, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

Upon the application for the probate of the will of this testator, it became necessary to determine whether or not Eva L. Steele, a woman who appeared upon that proceeding and claimed the right to contest the probate of the will, was in fact the widow of deceased. Upon this question voluminous evidence was taken and the Surrogate decided the matter by an oral opinion delivered at the close of the testimony and arguments of counsel on this question.

<p>Accounting of Gottlob F. Krotel, Ernest Harvier and Johann George Schlinghoff executors of the will of Caroline L. Langlois, deceased, executors of the will of Margaret Langlois.</p>

The deceased left a will, which was duly admitted to probate in 1871. His son, John B. Baity, and son-in-law, Isaac Gott, were the executors named therein. Baity, the son, alone qualified, and acted until his letters were revoked in 1875 on the ground that his circumstances had become so precarious as not to afford adequate security for the proper discharge of his duties.

<p>Testator at the time of Ms death was a member of a partnership composed of testator and one N. The partnership articles provided that in case of the death of testator and the continuation of the business, the executors of testator should pay to N. such annual amount as should be agreed in lieu of the services of testator. The will of testator provided that the executors might employ so much of testator’s capital in the business as in their opinion might be advantageously so employed, and upon such terms as to profits and losses as they might deem just and proper. For several years testator had taken no active part in the business. Held, that under the will the executors had power to enter into a partnership with the surviving partner, and that an agreement by them to allow'the surviving partner $2,500 a year, chargeable against the estate, in lieu of the services of testator, was authorized.</p> <p>One of the executors, B., had been in actual charge of the business for some time before the death of testator and it appears that his services were very necessary to the business. After testator’s death B. continued to perform in the new firm, composed of the executors and the surviving partner, the same duties as he had performed in the old firm. The surviving partner, N., who never interfered in any way with the business, paid the executor B. a salary for conducting the business. Held, that such an agreement was not improper.</p> <p>For the purpose of settling the estate and realizing on the assets, the plant and good-will of the business were sold at auction by the executors and the surviving partner. At this sale the surviving partner became the purchaser of such plant and good-will for a sum only about one ninth what the good-will alone was worth. One item of plant alone was worth twice the whole price paid upon the sale. Afterwards the surviving partner sold to one of the executors, a half interest in such plant and good-will, for half the amount so paid by him, and then they formed a new partnership for conducting the same kind of business. Held, that this transaction was within the prohibition of the law of even an indirect purchase by an executor of the assets of the estate.</p> <p>Where the assets of the estate have been purchased by an executor in violation of law, and by reason of the circumstances it is inexpedient or very difficult to obtain a fair value of such assets upon a resale, the Surrogate will not set aside the sale, but will surcharge the executor’s account with the difference between the amount realized on the sale and the value of the property sold as shown by the executors’ inventory.</p> <p>Two pictures belonging to the estate were sold at auction very much below their value, to a daughter of one of the executors, through instructions conveyed from the daughter to the auctioneer through that executor. Each executor purchased from this daughter one of the pictures at a sum immensely below their inventoried value. Held, that a resale of the pictures should be ordered.</p> <p>After the formation of the firm composed of the surviving partner of the former firm and one of the executors, the executors issued a circular to the persons interested in the estate, alleging that they had an offer from the new firm of a certain price for the outstanding accounts, and further stating that they had no interest but that of the heirs, concealing the fact that one of the executors signing the circular was one of the members of the firm which wished to purchase the outstandings. The sale of a portion of the outstandings was made by the consents obtained from the heirs by this circular, in ignorance of the fact that the executor was an interested party to the transaction. Held, that the sale should be set aside, that the executors should account to the estate for the amounts received from such portion of the outstandings as have been realized on, that there should be a sale of the interest of the estate in the accounts unsold, that if, upon resale, they did not produce a larger sum than that realized by the executors, then the former purchase was to stand.</p>

<p>Application for a construction of the will of Sephronia H. Sherman, deceased, upon the judicial settlement of the account of the executrix thereof, as to a certain fund bequeathed by said will..</p>

Application by Ann M. Tipple, widow of Peter J. Tipple, to have certain personal property set apart to her from the estate of her deceased husband.

<p>The words in a will “ After my lawful debts are paid, I give,” etc., constitute such an express charge upon testator’s real estate as will defeat an application for the disposition of such real estate for the payment of debts. Code Civ. Pro., § 2759, subd. i.</p> <p>Where a will, after directing that testator’s lawful debts be paid, and giving certain legacies, provides that “ the real and personal estate whenever found shall be disposed of as deemed best by my executor ”—this latter provision gives to the executor a valid power of sale for the purpose, among others, of the payment of the debts of testator.</p> <p>In such case the words “ shall be disposed of” are equivalent to “ shall be sold,” that being evidently under the terms of the will, the disposition contemplated by the testator.</p> <p>The existence of an implied power of sale is, under section 2759, subd. 4, of the Code of Civil Procedure, as effectual as an express power, to prevent a decree for the disposition of real estate for the payment of debts.</p>

Application by Matthew Byrnes, a legatee under the will of Matthew Byrnes, deceased, to compel a payment to him, on account of the income payable to me under the will of decedent.

<p>Application for letters of administration upon the estate of Otis A. House, deceased.</p>

Proceedings for the distribution of the personal estate of Mary P. Witter, deceased. . Decedent, a married woman, had resided with her husband in Allegany county in this state, and there executed her last will and testament. Thereafter and while still a resident of Allegany, county, she had two children, and having removed with her husband and children to the state of Rhode Island she there had another child, and thereafter died while a resident of that state.

Proceedings by Charles H. Hitchcock as administrator of Ella V. Hitchcock, deceased, to compel an accounting by Maria V. Perry, as executrix of Aaron Perry, deceased. Petitioner alleged that his intestate was at the time of her death entitled to a distributive share in the estate of her father, Aaron Perry, deceased.

• Application by Job E. Hedges, a receiver appointed in proceedings supplementary to execution, of the property of George K. Sistare, a judgment ¡debtor, to compel an accounting by William H. M. Sistare, trustee under the will of George K. Sistare^ deceased. The judgment debtor was a beneficiary under this will. The facts appear in the opinion of the Surrogate.

Judicial settlement of the account of Daniel D. Bucklin and Otis G. Clark, executors of and trustees under the will of Nicholas N. Vedder, deceased. Nicholas S. Vedder died in 1879, leaving a will, which was duly admitted to probate. He left him surviving a widow, Nancy A. Vedder, but no child-, ren or descendants. Ida Angelí, a child of about nine years of age, was a member of his family at the time of his decease, and had been such for about six years.

<p>Adelaide L. Butler, the widow of testator, objected to a voucher for $3,566.87 for a counsel fee paid to S. F. Kneeland upon the ground that the evidence .showed that of this amount only $650 had been paid by the executors.</p>

<p>Where one witness to a will, at the request of the other witness who is prevented from signing by physical disability, signs the name of that witness to the will, this is a sufficient signature to comply with the statute. (4R. S., 8th. ed., p. 2547, § 40, subd. 4.)</p>

<p>Before subscribing her will testatrix declared in the presence of the witnesses that it was her last will and testament and requested them to sign the same as witnesses. Testatrix immediately thereupon signed her name to the will, and the witnesses, as soon as she had subscribed her name, signed the will in her presence, as witnesses. Held, that this was a compliance with the statutory requirements as regards the ' execution of a will. 2 R. S., p. 63, § 40.</p> <p>On a contested application for the probate of a will the question was raised as to the genuineness of the signature of testatrix. The name of testatrix at the commencement of the will, in the attestation clause and signature, was written “ Roxy Lany Williams.” The contestants introduced in evidence papers, executed by testatrix at about the time of the exe'cution of the will, to which testatrix signed her name as “ Eoxalana Williams,” and there was evidence also that since the execution of the will testatrix had denied that she had made a will. The name was usually written in one word “ Eoxalana,” but it appeared that she had on one or more oecasionssigned her name “ Eoxa L. Williams,” and her silver spoons and pillow cases were marked “ E. L. W.” and “E. L. H.” In her will she gave ■ certain spoons marked “E. L. H.” to one of the legatees.</p> <p>Proponents also produced several papers signed by testatrix many years before her death to which her Christian name was signed, “ Eoxa Lany,” and “Eoxa L.,” and also a deed from her brother in 'which she was named as grantee as “ Eoxa L. Williams.” A number of experts were called on both sides, but the greater number testified that the signature of the will was genuine. The positive testimony also of the two witnesses to the will showed that they saw testatrix affix her signature to the will. Held, that the will should be admitted to probate as the signature was shown t.o be genuine.</p> <p>It was shown that testatrix was about eighty-two years of age, was quite deaf and somewhat feeble in health. The memorandum for the will was prepared by the principal beneficiary without the presence or knowledge of any other person, so far as appears. There had existed between testatrix and the beneficiary the most tender relations, existing for years, amounting almost to those between mother and daughter, and growing closer as time progressed. The said beneficiary was not a relative either by blood or affinity. The blood relatives, heirs at law and next of kin of the deceased were not mentioned in the will, although deceased had frequently said she expected a portion of the property to go to them. These circumstances, it was claimed by contestants, established that the alleged will was the result of moral coercion amounting to fraud. Held, that there was not sufficient proof of undue influence.</p> <p>Undue influence must be an influence exercised by coercion, imposition or fraud, and not such as arises from gratitude, affection or esteem, and its exertion upon the very act charged to have been effected by it must be proved. It will not be inferred from interest and opportunity, and if on the other hand there is adduced proof of capacity, mature deliberation, settled purpose and absence of fraud and imposition, the will must be deemed to be the exercise of personal right and be respected accordingly.</p> <p>If an aged and infirm testatrix was at the time of the execution of a will, of sound mind and memory, was able to know and retain in her mind the value and extent of her property, and those who were or might be the proper objects of her bounty, and to choose intelligently between them, and uninfluenced by fraud did so choose, then whatever her age or infirmities or however completely she excluded her blood relatives from participation in her bounty, or however intimate her relations may have been with the principal beneficiary, or however great may have been the influence of that beneficiary as the result of kind offices and considerate treatment of deceased, the will made by her must stand.</p>

Proceedings by the district attorney of New York comity to compel payment by legatees under the will of Catharine L. Wolfe, deceased, of the collateral inheritance tax, and to impose a personal liability for such payment, under the statute, upon the executors of the will of testatrix. The facts appear in the opinion of the referee, James W. Perry, Esq., and which was adopted by the Surrogate.

<p>Accounting by George B. Smith, Jesse B. Anthony and Theodore E. Haslehurst, under the will of Gorton P. Cozzens, deceased.</p> <p>The facts appear in the opinion of the Surrogate.</p>

<p>Proceedings for the appraisement of the estate of Edwin P. Tuigg, under the Collateral Inheritance Tax Act.</p>

Petition of the Rogers Locomotive & Machine Works against Thomas Rogers (in the matter of the estate of Jason Rogers, deceased) for an accounting of dealings with a trust, and. for payment of shares of the benefit assigned.

<p>The fundamental test of the right to tax the devolution of property either by will or in case of intestacy, is to ascertain the sovereign power through whose favor the property is permitted to pass. The power to tax this privilege is commensurate with its dominion over the property.</p> <p>Where by testator’s will real estate situated without the state is directed to be converted into personalty, the proceeds thereof are not taxable under the collateral-inheritance tax, although such proceeds are brought within the state for distribution.</p> <p>Personal property located without the state remitted to this jurisdiction for distribution is not subject to the collateral inheritance tax.</p> <p>By the will of deceased it was directed that all legacies and devises therein made should be free of succession or other tax, and that such tax should be paid by the executors as part of the expenses of the administration. Held: That the amount of the collateral inheritance tax should not be deducted from either the specific or residuary legacies in ascertaining the value thereof as subject to the tax.</p> <p>Wheré, by the will of deceased, testator gives certain'paintings, pictures, . plate and other articles to certain persons, but three of whom are tqx- ' able under the collateral inheritance tax, it is error to impose the tax upon the aggregate value of the property thus bequeathed. To the extent that this aggregate valuation represents property bequeathed to persons exempt by reason of their relationship to the deceased or by reason of their receiving, under all the provisions of the will, beneficial interests less than five hundred dollars in value, it is not taxable.</p>