Volume 2 — Demarest's Surrogate Reports

Petition by Frances M. Hermanee, an infant over the age of fourteen years, for the appointment of a general guardian of her person and property. The facts appear sufficiently in the opinion.

Petition for the appointment of a general guardian of the person and property of Catherine B. Griffin, an infant of the age of three years, presented by Catherine Sarsfield, her maternal, aunt, who had been nominated as such guardian by the following clause of the will of the infant’s mother: i£I also nominate and appoint Mrs. Catherine Sarsfield (my sister) to be guardian of my three children Carrie L., Katie B., and Ormie M. Griffin, until they shall attain the age of…

Judicial settlement of executors’ account, upon the petition of Robert H. Jones, a beneficiary under decedent’s will. The facts appear sufficiently in the opinion.

Application, by the administrator with the will of decedent annexed, to compel the ancillary representative of the deceased executor of that will to account, etc. The facts appear sufficiently in the opinion.

Petition by Malcolm A Peters, assignee of a judgment recovered against the administratrix of estate of decedent, for leave to issue execution against her. The facts are stated in the opinion.

Application by James Cotter, an alleged creditor of decedent, to compel Bridget Quinlan, sole surviving administratrix. of the estate of decedent, to account and pay Ms claim. The facts appear sufficiently in the opinion.

Construction of decedent’s will, on the judicial settlement of the account of the executor thereof. An objection to the account was filed in behalf of Mark Harrison, one of the residuary legatees under the will. The facts appear sufficiently in the opinion.

Petition by Bridget Welch to compel the general guardian of her infant children’s property, to pay her alleged claim against said guardian in his official capacity, to wit, the sum of about $800 for the board, apparel, etc., of those infants.

<p>Petitions by Goldsborough Smith, a cousin, and Jennie A. Smith, an aunt, of Melita Williams and Laura C. Williams, infants aged, respectively, four and five years, for the appointment of a general guardian of the persons of those infants. The facts appear sufficiently in the opinion.</p>

Upon the judicial settlement of their account, the .executors of decedent’s will asked that the decree direct the deduction, from the share of the children of Hiram Tuttle, testator’s deceased son, of the amount of a debt owing from Ms estate to that of Ms father. Those children, by their guardian, opposed the application. The facts appear sufficiently in the opinion.

Hearing of objection, by executor and testamentary trustee, on the judicial settlement of Ms account, to the allowance of claim, presented by Louisa Frances Follett, who was a cousin of testatrix and mother of Louisa F. Follett, an infant of the age of thirteen years, for moneys paid and expenses incurred in respect of the support, maintenance and education of that infant.

Heuby Cbossmah died January 7th, 1881, leaving a will executed in duplicate November 29th, 1879, which was admitted to probate January 28th, 1881, and letters testamentary were issued thereunder to Henry C. Cross-man and others. The instrument produced and recorded was endorsed: “Last will and testament of Henry Crossman.

Construction of decedent’s will, upon an application for the probate thereof, made by Henry Hanselman, executor therein named; and opposed by Christian Hagenmeyer and others, only heirs at law and next of kin of decedent. The facts appear sufficiently in the opinion.

Lawrence Powers, Joseph S. Hookey and Alpheus Lawrence filed a petition, December 3rd, 1883, alleging that in decedent’s will, admitted to probate November 10th, 1883, they were appointed executors thereof and general guardians of decedent’s infant child; that petitioners’ names were omitted in said will, they being designated as “ Trustees of the Magnolia Lodge, Ho. 166, Independent Order of Odd Fellows;” that petitioners u are” the persons answering that description, and…

Motion to confirm report of referee, to whom was referred the petition of Lena Wilde, a beneficiary under decedent’s will, and the answer thereto, which petition prayed, upon grounds therein set forth, for a citation to Frank L. Smith, executor of the said will, to show cause why he should not make, file and return an inventory and an account of his proceedings as such executor, as by statute provided,—more than one year having expired since the issuing of letters to him;…

This was an application for a judicial construction of the second of two codicils to the will of Sally A. Bunker, who died November 26th, 1883, made upon the proceedings for probate of said will and codicils, dated, respectively, May, 1880, March, 1882, and September, 1883. The will of Thomas G. Bunker, her husband, was admitted to probate December 7th, 1852. It created a trust in favor of a son Thomas.

Hearing of objection, made by the special guardians of Addie D, Judd and another, infants interested in decedent’s estate, to confirmation of report of referee on judicial settlement of testamentary trustees’ account. The facts appear sufficiently in the opinion.

<p>A. special proceeding in a Surrogate’s court, instituted to procure a decree directing a decedent’s real property to be mortgaged for the payment of his debts, cannot, after jurisdiction over the parties has been acquired, be abandoned or dismissed except by the entry of an order to that effect.</p> <p>Where such a special proceeding has been commenced by the administrator of a decedent’s estate, the Surrogate’s court may require him to proceed therein, on motion of a creditor.</p>

<p>While the term “personal representatives” is ordinarily synonymous "with executors or administrators, it is susceptible of a different interpretation ; exgr., as being equivalent to widow and next to kin:— the meaning being properly deducible from a view of the entire instrument wherein it occurs.</p> <p>Testator, by a codicil to his will, bequeathed to his mother the interest upon $10,000, which sum he ordered his executors to set apart, and assigned to them as trustees, directing them to pay the income to her during life, “ and upon her death the principal sum thereof to divide among my (his) personal representatives as personal property. ” Testator’s widow and children survived him and his mother. By other ■portions of the will, it appeared that he intended to make liberal provision for his widow, and it did not appear that he intended his executors should take any beneficial interest in his property.—</p> <p>'Meld, that the phrase “to divide among my personal representatives as personal property” meant—to divide the.fund among the testator’s next of kin, including his widow, in .the proportion prescribed by the statute of distributions.</p> <p>Authorities as to the definition of the term, personal representatives, or legal representatives, occurring in a will—collated.</p>

Walker, the executor therein named ; opposed by Sarah D. Conselyea, and ' others, heirs at law and next of kin of decedent. The facts appear sufficiently in the opinion.

This was a request for a construction of decedent’s will, upon judicial settlement of executors’ account. The facts appear sufficiently in the opinion.

<p>Decedent’s family physician, S., having presented to the administrator his hill for services, amounting to §1,098, the same was rejected, referred under the statute, and a judgment rendered, against the administrator, for §546.16, after a trial, in which the remainder of the claim was held to be barred by the statute of limitations, and a note of claimant, set up as a counterclaim, was held barred in like manner. Subsequently, S. wrote to the administrator that he expected to allow this note, if he could have a fair settlement of his account against decedent. The latter’s real property having been thereafter sold to pay his debts, etc., and S. applying for payment of his judgment from the proceeds of sale, it was contended that S. had, by his written admission, taken the note out of the statute of limitations, and that the same should be credited upon the judgment.—</p> <p>Held, that the promise was conditional, and, not having been accepted, did not operate as contended, and that S. should receive the amount ■ of his judgment exclusive of costs, with interest from the date of entry.</p> <p>The debts mentioned in Code Civ. Pro., § 3749, which permits a decedent’s real property to be disposed of “for the payment of his debts and funeral expenses,” do not include costs and allowances granted by a decree refusing probate to the decedent’s will.</p> <p>Code Civ. Pro., § 3798, subd. 5,—which provides that “out of the remainder of the money” arising from a sale, etc., of a decedent’s real property, for the payment of debts, etc'., “ must be paid the sum, if any, which has been found to be due to the executor or administrator, upon a judicial settlement of Ms account, after applying thereupon the proceeds of the personal property ”—refers to those debts of the decedent for wMch the court could order a sale of the realty, and not to expenses incurred in administration, such as costs and allowances on a contest over the probate of the will.</p> <p>Accordingly, where costs and allowances had been granted by a decree refusing probate of decedent’s will, it was—</p> <p>Held, that the same could not be paid out of the proceeds of a sale of his real property, had under Code Civ. Pro., § 2740, et seq., although the decree granting the costs directed the same to be paid by the administrator when appointed, as a part of the expenses of administration.</p>

<p>Under Code Civ. Pro., § 3718, requiring the dismissal of a petition for payment of a legacy, etc., presented under id., §3717, where the executor “flies a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality, absolutely or upon information and belief ”—it is not necessary that the answer should contain a formal denial. The allegation of facts inconsistent with petitioner’s right is sufficient to oust the court of jurisdiction.</p> <p>A Surrogate’s court may, under Code Civ. Pro., § 3735, of its own motion compel an executor to make and flle,his account bej^ro "oneyearhas expired since letters were issued to Mm ” (Code Civ. Pro., §2724), where successive letters testamentary have been granted upon testator’s estate (id., § 2593), a co-executor, since deceased, has received letters years previously, and the estate is ready for final distribution.</p>

Construction of decedent’s will, upon the judicial settlement of the account of the executor thereof and trustee thereunder. The facts appear sufficiently in the opinion.

Application by executors for commissions, and for a construction of decedent’s will, upon the judicial settlement of their account. The facts appear sufficiently in the opinion.

Motion to confirm report of referee upon judicial settlement of executor’s account. The facts appear sufficiently in the opinion.

Motion by executor of decedent’s will to set aside objections to his account, filed in behalf of Frank G. A. Thompson, decedent’s son, and others, and the order referring same. The facts appear sufficiently in the opinion.

Motion by Mary E. Hynes, administratrix of decedent’s estate, to dismiss an appeal, taken by Mary J. McCreery, her predecessor in office, from a decree rendered upon the former’s accounting. The facts appear sufficiently in the opinion.

Petition by Harriet Erving, one of decedent’s next of kin, for the admission to probate of memoranda claimed to constitute part of decedent’s will. The executors, Henry L. Dyer and Henry A. Oakley, appeared and by their answer prayed that such action might be taken as would protect them in the execution of their trust. Merced D. M. Greene and Emelia J. B. Greene, two of the next of kin, united in asking for the relief prayed for in the petition.

Biggs, and another, executrices therein named, and opposed by Thomas H. Riley and others, decedent’s next of kin. The facts appear sufficiently in the opinion.

Contest over the substitution of an attorney in place of Levi S. Chatfield, attorney for Abraham Hewlett, proponent, in proceedings for the probate of decedent’s will. The facts appear sufficiently in the opinion.

Construction of decedent’s will upon judicial settlement of account of Rosa Imhof and others, trustees thereunder; to which objections were filed by Josephine Diebold, a legatee and cestui que trust. The facts appear sufficiently in the opinion.

Petition of Sheridan Shook, one of the sureties in the official bond of Charles W. Goddard, an executor of decedent’s will, for a release from responsibility for any further breach thereof. The facts appear sufficiently in the opinion.

Application by John S. Smith, executor of the will of Clara Allen, who was executrix of decedent’s will, for letters of administration, with the last mentioned will annexed. The facts appear sufficiently in the opinion.

Hearing of exceptions to referee’s report on administratrix’s accounting; filed in behalf of Daniel F. Hal-lock, and another, administrators of the estate of one of decedent’s next of kin. The facts appear sufficiently in the opinion.

Oír the application for probate of decedent’s will, made by Alexander H. Tiers, one of the executors therein named, Alice J. Tiers, one of the next of kin, objected that the instrument suspended the power of alienation for more than two lives in being at the time of its execution, and asked for a construction thereof. Decedent was a resident of the city of New York, and the will was executed in the State of Pennsylvania.

Upon the judicial settlement of the account of Charles L. Cammann, and another, as executors of, and trustees under decedent’s will, objections were filed in be-' half of Oswald Cammann, an infant legatee. Further facts appear in the opinion.

Hearing of objections to the account of Henry 0. MacDowall, as trustee under the will of decedent, filed by Delia Donovan, and others, beneficiaries therein named. The facts appear sufficiently in the opinion.

Application by Abraham C. Merritt, administrator of the estate of Jane Merritt, late a party respondent to the executor’s accounting, to be substituted as a party in the place of his decedent.

<p>An application for the probate of a will, one of two subscribing witnesses to which has not been produced, will be refused, where proponents neither take steps to examine such witness, orally or by commission, nor establish satisfactorily their inability so to do.</p>

Petition by Abraham Maze, administrator with the will of decedent’s testator annexed, to compel Edward F. Brown, and another, decedent’s executors, to account, etc.; the object being to compel payment to petitioner of a balance alleged to be due and unpaid to petitioner, as such administrator, upon a decree against decedent and another in their executorial capacities. Further facts appear in the opinion.

Application by Annie E. Sippel, a creditor of decedent, who had obtained a judgment at law against Ida E. Macklin, as administratrix with the will of decedent annexed, for leave to issue execution upon the judgment against the administratrix. Further facts are stated in the opinion.

Petitions by Dorothea Peyser and others, interested, under decedent’s will, to compel Frederick B. Wendt, sole acting executor thereof, to pay their legacies. The facts appear sufficiently in the opinion.

Upoy the application by Agnes Sarah Yates, decedent’s widow, and another, for probate of decedent’s will, written requests to the Surrogate to find certain matters of fact and of law, were filed in behalf of Lillian M. Dickel, and another, contestants.

Petition by William Neaves to compel George W. Neaves, administrator with the will of decedent annexed, to account and pay a legacy. The facts appear sufficiently in the opinion.

<p>The provision of Code Civ. Pro., § 2726, that “upon the presentation of such a petition” as is therein described, “a citation must be issued accordingly,” implies that the citation should follow the prayer of the petition, i. e., direct the party cited to show cause “why he should not render and settle his account,” or why he should not file his account for “judicial settlement.”</p> <p>Where an executor files an account in obedience to a citation, issued at the instance of a creditor, and requiring him to show cause why he should not “render an account of his proceedings,” the same is not in a condition to be judicially settled.</p> <p>A Surrogate may issue the “supplemental citation” specified in Code Civ. Pro., § 2727, only “upon the return of a citation issued as prescribed in” id., § 2726, i. e., one calling for a judicial settlement of an account.</p> <p>A judicial settlement of the account of an executor, etc., can be had in either of only two ways : (1) upon petition of a creditor or person interested, under Code Civ. Pro., § 2726, or (2) upon a petition by the accounting party, under id., § 2729.</p> <p>A formal order need not be entered granting a creditor’s petition for the judicial settlement of the account of an executor, etc., where, in response to the citation, the latter files his account.</p>

<p>Hearing of exceptions taken by Louis M. St. John, and others, residuary legatees under decedent’s will, to report of referee upon judicial settlement of account of the executors thereof. The facts appear sufficiently in the opinion.</p>

Application by Louise Joel for leave to issue execution upon a Surrogate’s decree in her favor directing respondent to pay her legacy; a transcript of which decree had been filed in the oflB.ce of the county clerk.

Coksteuctioh of decedent’s will upon judicial settlement of account of executors thereof and trustees thereunder. Frederica Gersen, late decedent’s widow, appeared individually and as administratrix of the estate of Caroline Gerhard, deceased. The facts appear sufficiently in the opinion.

Hearihg on return of order to show canse why the administrator, with decedent’s will annexed, should not pay to Francis H. Saltas, a legatee, the amount payable to him under the decree rendered upon the judicial settlement of the administrator’s account. It appeared that George W. Gibbons, and others, had 1 claims adverse to, and as assignees of said legatee.

Application by Carrie B. Evans, decedent’s widow, for ancillary letters of administration on Ms estate; opposed by Daniel W. Sckoonmaker, a creditor. The facts appear sufficiently in the opinion.

Petition by Henry Bick, one of the sureties in the official bond of Andrew Murphy, administrator of decedent’ s estate, to be relieved from further liability. Eliza Murphy, one of the next of kin also filed a petition as stated in the opinion.

Determihatioh, upon executor’s accounting, of a question as to the allowance of interest on a legacy to Ami Nahmens, testator’s grandchild. Thomas H. Copely, a legatee, and Susan Copely, decedent’s widow were cited to attend.

Application by testamentary trustees • for - commissions, upon a judicial settlement of their account. The facts appear sufficiently in the opinion.

Petitioy of Emily J. Atkinson, daughter of decedent, and a beneficiary under her will, for tike revocation of letters issued to Elsworth L. Striker, as administrator with the will of decedent annexed, after the death of the executor thereof, upon the ground of the non-receipt of income due petitioner, and of malice, misconduct .and irresponsibility of the said administrator. •

Application by Charles Silverbrandt, Jr., for an attachment against Henry Widmayer and another, administrators of decedent’s estate, for failure to file an inventory.

Pewdiwg- the contest of the will of decedent, application was made by Albert T. Kruse and another, executors therein named, proponents, for an order directing John H. Fricke, the temporary administrator of his estate to pay such sums as might be deemed proper to enable proponents to procure the attendance of expert witnesses, to testify upon the question of the insanity of decedent.

Upost an application by E. Tracy Helson, as executor, for probate of the will of decedent, a resident, at the time of his death, of the county of Essex in the state of New Jersey, it appeared that decedent died in 1874, after which, in 1879, the family removed to and resided in New York city and county, bringing with them a Japanese folding chair, belonging to decedent, the existence of which chattel in that county was the sole foundation for the claim of jurisdiction of the…

Petitioh of John Henry Escher for judicial settlement of his account as executor of, and trustee under the will of decedent, and for Ms discharge as trustee, and for revocation of Ms letters. Anna M. Brautigam, and others, parties interested in the estate, appeared on the return of the citation. The facts appear sufficiently in the opinion.

Detebmihatiou of questions arising upon judicial settlement of executor’s account. The facts appear sufficiently in the opinion.

Testator, by Ms will, after directing the payment of debts, funeral expenses, and numerous pecuniary and specific legacies, provided, by the twenty-ninth clause: “ All and singular the rest, residue and remainder of my estate .....

Application by L. W. Hamersley, decedent’s widow, for a grant of letters of temporary administration upon decedent’s estate to George G. Williams, nominated, in the will propounded, as an executor thereof; opposed by Alfred R. Jones, one of the next of kin, and others. The facts appear sufficiently in the opinion.

Upon the petition of Isabella R. Glaskin, widow of decedent, and one of the legatees named in his will, Edward C. Sheehy, trustee thereunder, filed an intermediate account, to which petitioner filed objections.

<p>Neither Code Civ. Pro., § 8736, nor any other statute, requires that two or more executors of an estate valued at §100,000, or upwards, though severally entitled to full commissions upon principal, are limited to the allowance of a single rate, as regards income. The double or triple rate, if awaxdable upon the principal fund, must be allowed also upon the income thereof.</p>

Accounting of Edward Schell, special administrator of the estate of decedent, at the instance of Robert H. Berdell, an alleged creditor thereof. The facts appear sufficiently in the opinion.

Application by Lawrence Mead and Patrick Brady, executors of decedent’s will, for an order to examine Caroline Sommers, under Code Civ. Pro., § 2706, relating to property of a decedent’s estate-alleged to be concealed or withheld.

<p>Petition for the probate of decedent’swill, presented by Gilbert Oakley, an executor therein named; opposed by M. Sanford Cadmus, and others, heirs at law of decedent. The facts appear sufficiently in the opinion.</p>

Upost the judicial settlement of the account of Samuel D. Babcock and Joel B. Wolfe, surviving executors of the will of decedent, a contest arose as to whether certain expenses should be charged to principal or income.

Petition for the probate of decedent’s will, presented by Kathleen E. Brown, one of the legatees therein named; opposed by Adele Barry, and another, decedent’s heirs at law and next of kin. The facts appear sufficiently in the opinion.

Oliver Charlick, by Ms will, appointed his widow, Jane M., executrix, and respondents executors thereof, and set apart one third of Ms estate for the use of his said widow for life, with power to her to dispose of the principal by her will. She, dying, exercised this power by giving such principal to her executrices, Jane A, Murray and another, the petitioners in this proceeding, in trust.

<p>Code Civ. Pro., § 2517, first sentence, reads : “The presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of this act which limits the time for the commencement thereof.” The requirement of the remainder of that section, that, “in order to entitle the petitioner to the benefit of this section, a citation, issued upon the presentation of the petition, must within sixty days thereafter be served.....upon the adverse party, or upon one of two or more adverse parties who are jointly liable or otherwise united in interest,” means that, if there are two or more adverse parties, service upon one of them alone, will never be sufficient, save in cases where the rest are jointly liable with him, or are otherwise united in interest.</p> <p>The term “ united in interest,” in said section, implies identity of interest or joint interest, as distinguished from similarity or community thereof.</p> <p>A petition to revoke the probate of decedent’s will having been presented by certain of the next of kin within the year specified in Code Civ. Pro., § 2648, the citation issued thereupon was duly served, within sixty days, upon the executor, but was not served within that time upon the residuary legatee or any other person entitled to he made a party, nor was publication commenced within that time. Upon motion of the executor and the residuary legatee to dismiss the proceeding,—</p> <p>Held, that the executor was not “ united in interest,” with any of the other parties; that, therefore, service upon the former did not avail, under § 2617, to save petitioners’ remedy; and that the motion should be granted.</p> <p>Held, further, that this conclusion was not affected by the circumstance that, within the sixty days, the Surrogate had, upon the application of petitioners, granted orders extending the time for the return of the citation, and giving direction for service by publication upon certain parties, as those orders did not attempt to enlarge the time within which the citation should be served, orto grant delay in the-first publication.</p>

Hearing of exceptions taken by Aline Joumault,, formerly Aline Ferris, decedent’s widow, and another, to report of referee, to whom was referred the account of Oscar C. Ferris, and another, trustees under dece.dent’s will.- The facts appear sufficiently in the. opinion.

Application by Jennie V. Bunnell, administratrix with the will of Alfred A. Ranney, deceased, annexed, to dismiss proceedings instituted by Catharine H. Ranney, executrix, and another as executor, to procure a judicial settlement of the account of their testator, Lafayette Ranney, as the executor of the first mentioned decedent. The facts appear sufficiently in the opinion.

Order to show cause, at instance of Erastus Brainerd, a person interested in decedent’s estate, why Wallace P. Birdsall, executor of her will should not file an inventory in said will provided for. The facts appear sufficiently in the opinion.

Petition by Anna S. Poster, residuary legatee under decedent’s will, .to compel Charles H. Town, surviving executor thereof, to account. The facts appear sufficiently in the opinion.

<p>To present a prima fade case, justifying the removal of a testamentary trustee from office, for lending trust funds upon defective security, in violation of the terms of the will, petitioner should make either (1) a direct allegation that he intentionally disobeyed the injunction of the will, and made a loan or loans upon security which he knew or ought to have known to be less than was demanded by the terms of that instrument; or (3) some' statement both of the amount lent, and of the value of the corresponding security, whereby, upon mere comparison, it would presumptively appear that the respondent had purposely exceeded the authority given him by the will.</p> <p>Testator’s will directed his trustee to invest the principal of a fund in bonds secured by mortgage upon real estate, “ such real estate to exceed in value by fifty per cent, the amount loaned thereon.” Beneficiaries of the trust filed a petition for the removal of the trustee, alleging among other things, upon information and belief, that he had lent the “trust funds mentioned..... upon property exceeding fifty per cent, of its value, in violation of the terms of said will,”and that petitioners were “unable to specify the particular instances in which this was done,” but claimed “to take advantage of the same when they are (were) able to specifically prove it.” Respondent asked to have this, among other allegations, stricken out as too indefinite and uncertain.—</p> <p>Held, that the application should be granted for the reasons (1) that any acquisition of information and formation of belief by petitioners implied the ability to present their charges with less vagueness than characterized the same; (3) that there was no allegation of a wrongful intent or purpose; and (3) that the will allowed the trustees to make loans to the extent of sixty-six and two thirds per cent, of the value of the security.</p>

Heaeihg of exception taken by Henry C. Abernetiiy to report of referee to whom was referred the account of Julius Catlin, Jr., and another, executor and executrix of decedent’s will. The facts appear sufficiently in the opinion.

Petition of Thomas J. Creamer, an alleged creditor of decedent’s estate, why MaryH. Waller, executrix of decedent’s will should not file an inventory, etc. The facts appear sufficiently in the opinion.

Petition for the probate of decedent’swill presented by Samuel Riker, named therein as executor; opposed by John H. Cornwell and others, heirs at law and next of kin. The facts appear sufficiently in the opinion.

Petition by Pierre B. Mauran, one of the executors of decedent’s will, under Code Civ. Pro., § 2706, for an inquiry respecting certain personal property belonging to decedent’s estate, alleged to be in the possession of E. J. Hawley, and for a citation to the latter, requiring him to attend and be examined. The facts appear sufficiently in the opinion.

Motion by John Y. Reynolds to punish Henry Wehle and Michael Qilmartin for contempt of court, by reason of certain acts, set forth in the opinion, committed by them in a proceeding by Reynolds to compel Charles Parkes, executor of decedent’s will, to deposit certain moneys.

Application by Ellen Ladd, as administratrix with the will of decedent annexed, for leave to mortgage, lease or sell decedent’s real property under title 5 of chapter 18 of the Code of Civil Procedure ; a sale having been had, certain of the purchasers, including Albert W. Hendrickson, objected to the*title upon grounds which appear in the opinion.

Application by Sebastian Renk, executor of decedent’ s will, under Code Civ. Pro., § 2706, to discover property alleged to be withheld by the officers of Herr-man Lodge. The facts appear sufficiently in the opinion.

Petition by Anne Tuohay, a sister of decedent, to be substituted, in the place and stead of the public administrator, Algernon S. Sullivan, as administratrix of decedent’s estate.

<p>Application by Elizabeth Y. R. Grubb, a legatee under testator’s will, for the revocation of letters issued thereunder to E. Luther Hamilton, and for other relief. The facts appear sufficiently in the opinion.</p>

<p>Upon the j udicial settlement of the account of Samuel Stewart and another, as executors of decedent’s will, a question arose in respect to the rights of Ellen Gilles, widow and legatee, as to the payment of her legacy. The facts appear sufficiently in the opinion.</p>

Application, made by Eliza McKernan, decedent’s sister, for the probate of his will; opposed by Bernard Colligan and others, decedent’s brothers. The facts appear sufficiently in the opinion.

Petition by Mary P. Moorhonse, daughter of the testator, and legatee and devisee under his will, for the revocation of letters testamentary issued thereunder to Mary Ann Hutchinson, testator’s widow. The facts appear sufficiently in the opinion.

Hearing of exceptions taken by Elizabeth R. Bela-field, one of the daughters of decedent, and others, to referee’s report upon judicial settlement of account of Frederick Schuchardt and another, executors of and trustees under the will of decedent. The facts appear sufficiently in the opinion.

Petition by Joseph M. Ledwith, an infant, praying that the Union Trust Company of New York be removed from office as guardian of his estate, etc. The facts appear sufficiently in the opinion. .

Application by decedent’s daughter, Mary I. Hoyt, under Code Civ. Pro., § 2647, to revoke the probate of his will; opposed by James W. Jackson, and others, the executors. Upon the hearing of the application, proponents having rested, contestant asked the court to decide whether after her proofs should have been submitted, proponents would be limited, in the production of further evidence, to matters strictly in rebuttal. On May 2nd, 1884, the following opinion was filed :

Petition of Henry S. Day, name'd as executor in a paper produced as decedent’s will, asking that a commission issue in proceedings for petitioner’s accounting; opposed by Samuel Webb, and others,, decedent’s next of kin. The facts appear sufficiently in the opinion.

Hearing of exceptions taken, in behalf of Edgar Will-son and others, infant children of decedent, to report of referee upon judicial settlement of the account of Susan L. Willson, as administratrix of the estate of decedent. The facts appear sufficiently in the opinion.

Order, granted at the instance of Samuel L. Eisner, one of the three executors of decedent’s will, directing Geo. P. Avery to show cause why an execution issued, upon a Surrogate’s decree, against all the executors, should hot be set aside, etc. The facts appear sufficiently in the opinion.

Petition by Marietta R. Stevens, widow of decedent, to compel Charles G. Stevens, one of the executors of his will, to file a bond with new sureties. The facts appear sufficiently in the opinion.

Reid and another, executor and executrix therein named ; opposed in behalf of Adele R. Troup and another, infant daughters of decedent’s deceased daughter, and his only next of kin. The facts appear sufficiently in the opinion.

<p>Code Civ. Pro., § 2620, which provides that, “ if all the subscribing witnesses to a written will are dead.......or if a subscribing witness has forgotten the occurrence.......the will may, nevertheless, be established upon proof of the handwriting of the testator and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action ”— does not differ materially from the statutes which it replaces. Accordingly, the decisions construing the latter are applicable to the former.</p> <p>Upon an application for the probate of a will, it appeared that there was appended to the instrument an attestation clause substantially reciting the facts essential to due execution. Of one subscribing witness, who was dead, the signature, together with that of the decedent, was satisfactorily proved. The other witness, while identifying his signature, testified that he had no recollection, whatever, of the circumstances under which it was written, but, was positive that he would not have subscribed it to the clause in question, unless he had, at the time, known each recital thereof to be true.—</p> <p>Held, in the absence of circumstances throwing doubt or suspicion upon the instrument propounded, that the same was entitled to be admitted to probate.</p>

Petition Tby Jesse Scofield, administrator de bonis non of decedent, to compel Margaret E. Adriance, administratrix of the estate of Catharine A. Scofield, petitioner’s predecessor, to account for, and deliver to petitioner, certain property. The facts appear sufficiently in the opinion.

Motion by the executors of decedent’s will, to strike out exceptions taken by Beverly B. Tilden, legatee and devisee thereunder, to report of referee upon judicial settlement of said executor’s account, and for the substitution of exceptant’s successor in interest as o a party to the proceedings. The facts appear sufficiently in the opinion.

Motion to confirm report of referee upon judicial settlement of administrators’ account. The facts appear sufficiently in the opinion.

Petition for the probate of decedent’s will, presented by Ellen Lañan, a legatee therein named; opposed by Robert C. Walsh and others, decedent’s next of kin. The facts appear sufficiently in the opinion.

Petition for the probate of decedent’s will, presented by Sara O. W. Tilby, as widow, legatee and devisee; opposed by James Tilby and another, decedent’s sons. The facts appear sufficiently in the opinion.

Application by J. Hooker Hamersley to be allowed to intervene in proceedings instituted, for the probate of a paper propounded, as decedent’s will, by Jacob K. Lockman and another, the persons therein named as executors.

Petition by Albert Carpenter and others, adult. children, and next of kin of decedent, to compel Phebe H. Carpenter, his widow and the executrix of his will, to account. The facts appear sufficiently in the opinion.

Petition by Mary E. Wright, an alleged creditor of decedent’s estate, to compel Edward C. Beirne, the administrator thereof, to render and settle his account. The special proceeding was instituted under Code Civ. Pro., § 2726. The facts appear sufficiently in the opinion.

Contest over the admission to probate of a paper propounded as a codicil to decedent’s will. The facts appear sufficiently in the opinion.

This was a special proceeding, instituted by the administrators of decedent’s estate, to procure a decree directing his real property to be disposed of for the payment of Ms debts. Newell N. Talbot and other creditors proved debts recited in the first decree. Further facts are stated in the opinion.

Petition by AdcHe Hodge, a creditor of decedent’s estate, under Code Civ. Pro., § 2717, to compel payment of her debt; opposed by John K. Leaning, the executor. The facts appear sufficiently in the opinion.

Petition by Isaac H. Corbin, surety in the official bond of John Lyon, as general guardian, to open the decree rendered upon the judicial settlement of the latter’s account. The facts appear sufficiently in the opinion.

Contest, upon the judicial settlement of administrator’ s account, with respect to the rights of Abram V. N. Eltinge, as assignee of Jacob Roberts, in the latter’s distributive share of decedent’s estate. The facts appear sufficiently in the opinion.

Hearing of objection by Noah Lefever, legatee, upon the judicial settlement of the account of executor of decedent’s will. The facts appear sufficiently in the opinion.

Construction of decedent’s will upon judicial settlement of the account of executor thereof. The facts appear sufficiently in the opinion.

Application by the Historical Society of the county of Westchester to be allowed to intervene and become a party to the proceedings for the probate of decedent’s will, and of a codicil thereto, propounded by Francis M. Carpenter, the executor therein named. The facts are stated in 1 Bern., Surr. Rep., 606.

After the accounting in the above matter, which was litigated, had reached an advanced stage, it was announced by Hoes & Morgan, the attorneys for the executrix, that she desired to substitute another attorney in their place ; that they had no objection to such substitution being made, provided their charges against her were first paid. ' Affidavits were submitted on their behalf tending to show that they had rendered, before the commencement of this proceeding, many and…

An application was heretofore made by Bertram D. Hood, one of the legatees under the will of Andrew Hood deceased, praying for several distinct forms of relief, among which was embraced that of the revocation of the letters testamentary issued to Frederick Hood. On objection made, the petitioner was permitted to elect any one which he desired to pursue, and he elected that having in view the revocation of the letters (1 Dem., '392).

Johe A. Ricard, administrator of Maria M. Ricard, who was a daughter, and legatee under the will, of William Laytin, deceased, asked for a new hearing of three accountings made by the executors, in which decrees were entered, respectively, in 1877, 1879, and 1882, on an account filed in October, 1881. Mrs. Ricard was a party to the accountings of 1877 and 1879, and died in July, 1881. The applicant, as her administrator, was a party to the last accounting.

Decedekt’s will having been admitted to probate without contest, his widow applied for revocation of the probate, on allegations, coupled with a request for a construction of the will, if refused, so far as to determine whether she was entitled to the possession of the personal estate. The will provided as follows: ££Igive, devise and bequeath my estate, both real and personal, as follows ; that is to say: 3rd.

This was an application b y M. H. Smith, surety in the general guardian’s bond, to open the decrees entered on the judicial settlement of the accounts with the wards, who had become of age, and for a supplemental and fuller account of his proceedings as such guardian.

Cohstetjctioh' of decedent’s will, upon an application for the disposition of surplus proceeds of a sale of Ms real estate for the payment of debts. The deceased left a will, by wMch he gave to Ms widow for life a house and lot at Mount Vernon. The second clause of the will was as follows: “ Second.

<p>One claiming to be named as executor in an alleged will of decedent contained in a receptacle of a safe deposit company, to which access could be had only by the combined agency of an officer of the company and of decedent’s clerk, asked for an order directing the company, which had refused, to surrender the document to applicant’s counsel, with a view to its production in court.—</p> <p>Held, that the court had no power to make or enforce such an order; that the proper remedy was a subpoena, duces tecum, to the custodians, to which the court could compel obedience.</p>

David Jokes died in January, 1881, leaving a last will and testament, which was duly admitted to probate.

<p>The limitations imposed upon a Surrogate’s court by the circumstance that it is a creature of statute and not a court of general jurisdiction —declared.</p> <p>The purchaser at'a sale of a decedent’s real property, made, pursuant to a Surrogate’s decree, for the payment of his debts, is not recognized, by Code Civ. Pro., ch. 18, tit. 5, as a party to the proceedings, at any stage thereof, nor under any circumstances.</p> <p>An executor cannot be prosecuted in a Surrogate’s court, by a stranger to the testator’s estate, for the recovery of damagesarising out of transactions, relating to the estate, between the executor and the claim ant.</p> <p>Petitioner alleged that, at a sale of real property of decedent for the payment of his debts, made pursuant to a decree of the Surrogate’s court, he bought the same and paid ten per cent, of the purchase money, and auctioneer’s fees, as required by the terms of sale ; that a search of the title disclosed the fact, previously unknown to him, . that, at the time of sale, there was in force an order of the Fire Department of New York city requiring the removal of tire buildings on the premises, which greatly diminished the value of the latter. He also alleged defects in the proceedings, and prayed for an order relieving him from the purchase, and directing the executor to return to him the percentage and fees paid, and to reimburse him for Ms expenses for searches. The answer alleged a tender of a proper conveyance, and knowledge, on petitioner’s part, of the existence of the order at the time of sale; and denied the allegations of irregularity.—</p> <p>Held, that (1) the Surrogate’s court was powerless in the premises ; (2) the order sought could not be granted against the executor under Code Civ. Pro., §2481, subd. 5, because the duty to refund the money, etc., was not “imposed upon Mm by statute or by the Surrogate’s court under authority of a statute; nor under id. subd. 11, because the matter was not made “subject to'the cognizance of ” the court; (3) the application was equivalent to a request to the court to try, as between one over whom it had no control, and another whose official acts were mainly subject to its jurisdiction, a question of fact in the nature of a fraud ; (4) the petition must be dismissed.</p>

Hr December, 1883, a decree on the judicial settlement of the account of the administratrix of decedent’s estate was made and entered, by which, among other things, it was directed that the distributive share of Louise Moody, a minor having no general guardian, amounting to $5,413.15, should be paid to the county treasurer of Westchester county, to the. credit of this proceeding, to be invested pursuant to the provisions of the statute.

The testatrix gave her property in trust to her executor, and, by the sixth clause of her will, - directed him as follows : “ To pay over all the rest and residue of my estate to my beloved sister, Elizabeth Deubel, now living at Kirchheim-Bolanden, in Bavaria, for her use during her natural life, and, after her death, , to be and become the property of her son, Conrad Deubel.”

The citation in this matter was served on the 12th and was returnable on the 20th day of the same month, on which last day the will was proven and admitted to probate. The question arose whether the Surrogate obtained jurisdiction of the persons so cited ; it being suggested that the citation was not served at least eight days before the return day thereof, and that, therefore, a new proceeding should be instituted, with a view to-a proper probate.

The executor presented a verified claim in Ms own favor, on the accounting, amounting to $2,825.29 and interest. Objection was interposed by Sarah E. D. Kydd and James Kydd, her husband, respectively administratrix and administrator of the estate of a sister of decedent, and legatee under her will, and who died subsequently to decedent.

The testatrix, by tílq first clause of her will, gave her piano to two young ladies; by the second clause she gave to one of those young ladies her best bureau, bed and bedding, wash stand and commode; by the third clause, to Elizabeth Maria Tighe the portrait of Mrs. Tighe’s grandfather, and a picture of Richmond; by the fourth clause she gave and devised to Lavinia Nichols Pinckney her house and lot wherein she resided, “and also the following personal property and…

<p>Application for the probate of decedent’s will, made by Gertrude Beekman, one of his next of kin.; opposed by Georgiana, his widow. The facts appear sufficiently in the opinion.</p>

It appeared, from the petition presented, that the petitioner was nineteen years of age; that she was a resident of* the state of Vermont, and the wife of Alfred S. Watson (who joined in the petition with her); that she was the daughter, only surviving child, heir at law and next of kin of Mary S. Carr, who was a daughter and one of the heirs at law and next of. kin of John Anderson, late of Mount Pleasant, Westchester, County, deceased, and that her said mother died January…

This was a contest over the disposition of the unexpended residue, arising upon the judicial settlement of' the account of David Cromwell, ■ as administrator of decedent’s estate. Patrick Tymon and others, next of kin o£ decedent, contended that the amount should be distributed among them. Further facts are stated in the opinion.