Volume 2 — Gibbons's Surrogate Reports

<p>1. Executors — Accounting—Attorney’s fees.</p> <p>An allowance may properly be made for reasonable expenditures for attorney’s fees for examining or defending large claims or those which have been rejected and foreclosure proceedings in which a judgment for deficiency might have been rendered against the éstate.</p> <p>■2. Same — Increase of bills.</p> <p>An administrator who has advised an increase of bills presented will not be allowed the amount of such increase.</p> <p>3. Same — Collecting testimony.</p> <p>An expenditure for collecting testimony in an action cannot be allowed.</p> <p>4. Same — Payment of debts.</p> <p>An administrator who has made a payment to a person not entitled thereto will be required to reimburse the estate.</p> <p>■S. Same — Absence of vouchers.</p> <p>Claims not accompanied by vouchers must be supported by the clearest and most convincing evidence.</p> <p>6. Same — Claim of administrator.</p> <p>A claim of the administrator which is not supported by any note or memorandum of the deceased must be proved by evidence in addition ■ to the administrator’s own testimony.</p>

<p>Probate of will.</p>

<p>Probate of will.</p>

<p>1. Executors — Accounting—Interest.</p> <p>Where the executor has kept the funds on deposit at interest in a bank which, three months before the accounting, refuses to continue to pay interest, his failure to invest the fund in the meantime does not make him chargeable with interest.</p> <p>2. Will — Bequests of securities.</p> <p>A bequest of “mortgages, including the notes and other obligations for which they are security,” includes interest accrued at testator’s death.</p> <p>3. Payment — Presumption of.</p> <p>Payment of a debt will not be presumed from a mere transfer of securities to the creditor without any statement, especially where payment of such debt. is expressly directed by a will subsequently made by the debtor.</p> <p>4. Gift — Bill of sale not delivered.</p> <p>A bill of sale which reserves the possession and use of the chattels to the maker for life and which is not delivered to the donee is insufficient to constitute a valid gift.</p>

<p>Proceeding for compulsory accounting.</p>

In September, 1892, Alonzo LangAorthy, as sole surviving-executor of the will of Iliram Lazelle, deceased, commenced an action of replevin in the Supreme Court against one Joshua Pickard to recover the possession of a quantity of timber, logs- and bark claimed to belong to the estate of his testator, which the defendant, as alleged, had wrongfully taken.

<p>Application to compel an accounting by an administrator who bad been removed.</p>

<p>Probate of will.</p>

<p>1. EXECUTION — Acknowledgment.</p> <p>The exhibition of a will with the signature in plain sight, with a request to witness “ my will,” constitutes a sufficient acknowledgment.</p> <p>2. Probate — Evidence.</p> <p>The fact that the witness saw the signature when the acknowledgment was made may be established, against his testimony to the contrary, by the surrounding circumstances and the appearance of the will.</p>

<p>1. Pkobate — When allowed.</p> <p>Failure of recollection of subscribing witnesses will not defeat probate, where the surrounding circumstances, with, the attestation clause, show due execution.</p> <p>2. Will — Knowledge or contents.</p> <p>Facts sufficient to show that testator knew the contents of the will ’ at the time of its execution. t</p> <p>3. Same — Construction—Omissions.</p> <p>Words, of bequest .inadvertently omitted.may .be supplied to effectuate testator’s intent.</p> <p>A. Same.</p> <p>A Surrogate’s Court has no jurisdiction to construe a testamentary provision relating exclusively to real esiate.</p>

<p>Probate of will.</p>

<p>1. Undue influence.</p> <p>To be undue, the influence must be irresistible and must have been exercised by coercion, imposition or -fraud, which must be proved, and cannot be inferred because of opportunity or interest.</p> <p>2. Same — Burden of proof.</p> <p>One who alleges undue influence has the burden of proving it by a fair preponderance of evidence.</p> <p>3. Same — Legacy to draughtsman.</p> <p>The mere fact a, legacy is given to an attorney employed to draw the will is not sufficient to raise an inference of undue influence.</p>

<p>Will — Signatuke.</p> <p>Where the testator’s • signature is followed by a clause appointing executors and the date, there is no signing at the end of the will, as required by law.</p>

<p>Proceedings under the Transfer Tax Act.</p>

<p>Applications for possession of funds.</p>

<p>Executobs — Removal.</p> <p>Where an executor claims ownership of a large part of the assets under a contract made with the testator at a time when the mental capacity of the latter was doubtful, and insists on receiving all the benefits coming to him thereunder, he is guilty of misconduct authorizing his removal.</p>

<p>Appeal — Undertaking.</p> <p>On appeal from a surrogate’s decree by a person other than an executor, administrator, trustee, guardian or other person appointed by the Surrogate’s Court, no undertaking except the one for $250 required by section 2577 of the Code can be required, and the giving of such undertaking perfects the appeals and operates as a stay.</p>

<p>1. Will — Publication.</p> <p>Where testator signed in the presence of both witnesses and then handed the will to one of them with a,-a-,eques± that he read the attestation clause and- sign,, there is a sufficient publication and request to-both 'witnesses, although no direct declaration and request was made to the other.</p> <p>2. TESTAMENTARY CAPACITY-DRUNKENNESS.</p> <p>To show such a condition arising from drinking intoxicating liquors as will avoid a will, it must be proved that decedent was intoxicated, or that his understanding was clouded or his reason dethroned by actual intoxication at the exact time the will was executed.</p>

<p>Proceeding for the sale of a decedent’s real estate for the payment of debts.</p>

<p>Inteirmediate accounting by testamentary trustee.</p>

<p>Proceedings on judicial settlement of the accounts of executrix.</p>

<p>1. Payment'of debts — Marshaling assets.</p> <p>The order of marshaling assets for the payment of debts is as follows: First, the personal estate; second, assets especially devised for the payment of debts; third, assets descended, and last, assets devised, though generally charged with the payment of debts. .</p> <p>. 2. Same-t-Gharge of. debts on realty.</p> <p>The real estate is never to be held charged with the payment of debts, unless the intention of the testator so.to charge it is expressly declared' or can be fairly and satisfactorily inferred from the language, . and djsp.ositiona.of-.the.will:- ••■ ■ ■</p> <p>3. Will — Construction.</p> <p>In ascertaining the testator's intention, all the . language of the will -'must be' read together: '</p>

<p>1. Will — Execution.</p> <p>Where, by reason of the testator’s infirmities, his impaired capacity or of peculiar circumstances attending the transaction, the usual inferences cannot be drawn from the mere formal execution of the will, additional proof, direct or inferential, is necessary showing that he knew the contents of the will and approved thereof.</p> <p>2. Same — Testamentary capacity.</p> <p>A testator should possess sufficient capacity to comprehend perfectly the condition of his property, his relations to those who were or should be the objects of his bounty and the scope and bearings of the . provisions of his will.</p> <p>3. Same — Presumption.</p> <p>No presumption against the validity of a will exists because it was made by a man of advanced age, nor can incapacity be inferred from an enfeebled condition of mind or body.</p> <p>4. Same — Delusions.</p> <p>A belief by testator that a “ ring ” existed which was organized to ruin his business is not such a delusion as to incapacitate him from making a will, where it does not appear that the provisions of the will were influenced by such delusion.</p>

<p>Judicial settlement of accounts.</p>

<p>Executors — Execution.</p> <p>Leave to issue an execution -against an administrator or his representative on a judgment for costs rendered against him in an action to recover for the negligent killing of his intestate will not be granted, as the judgment was not recovered in an action relating to the decedent’s estate.</p>

<p>Decedent's estates — Services performed by relatives.</p> <p>Where a mother and adult children live together in a house belonging to her, there is no implied obligation on her part to reimburse one of the children for necessaries voluntarily purchased and furnished to the family by him.</p>

<p>Proceedings for the probate of the will of Joseph Lapham, deceased.</p>

<p>Probate — Residence.</p> <p>Proof of declarations of a testatrix to various persons of an intention to go to another city to live, followed by an actual change of abode to such city before her death; is sufficient to show that she was a resident of such city at the time of her death.</p>

<p>Assets — Ornaments of deceased wife.</p> <p>The clothing and ornaments of a deceased wifé cannot be set apart to the hnsband as exempt under section 2713 of the Code, but are assets of the estate.</p>

<p>Cabe or estate — Security may be required of life tenant.</p> <p>Where a will creates a life estate with remainder to the executors in trust, although it also gives the possession, management and control to the life tenant, yet'for the security of the remaindermen the court will require the life tenant to give security as a condition of the delivery of the principal of the fund to her.</p>

Proceedings begun by tbe general guardian of Myrtle Fritts against the surviving executor and trustee of the last will and testament of Hiram Fritts, deceased, to compel the payment by said executor and trustee to said guardian of certain rents, income and profits and accumulations on the same, produced by some part of the estate devised and bequeathed by said decedent,

<p>Probate of will.</p> <p>The will was drawn by a layman, one George G. Newberry, who was also a subscribing witness.</p>

Proceedings on petition of legatees, for a decree requiring tibe'executor and testamentary trustee, to pay .to him .a. portion of the principal of the trust fund.

<p>Judicial settlement of accounts.</p>

<p>1. Trusts — Termination of.</p> <p>Where the beneficiary of a trust in personal property acquires the interests of the remaindermen, he may, under chapter 452, Laws of 1893, terminate the trust by a conveyance to himself of all his right, title and interest to the income.</p> <p>2. Same — Statutory-- construction.</p> <p>The provisions of chapter 452, Laws of 1893, so far as they relate to'personal'property, are not affected by the provisions of the Real Property Law.</p> <p>3. Same — Constitutional law..</p> <p>The provisions of chapter 452, Laws of 1893, so far as, they are retroactive and relate to trusts in existence, at the time of its passage, are not unconstitutional.</p>

Appeal to surrogate from order of surrogate fixing tax as of course on report by appraiser, who excluded claim for deduction of transfer tax and commissions paid at domicile of, decedent.

<p>1. Guardian and Ward — Power of Guardian to Invest in Realty.</p> <p>A guardian has no power, without authority from the Supreme Court, to invest personal property of his ward in real estate.</p> <p>-2. Same — Power of Surrogate.</p> <p>The Surrogate’s Court has no power, on an application of the guardian and his ward, to authorize the guardian to use personal property of the estate in the purchase of a home for her.</p> <p>3. Same — Election by Legatee.</p> <p>Where a guardian, by permission of the Surrogate’s Court, has purchased real estate with personal property of the ward, who dies under age, leaving a will giving all her property to her husband, the land purchased remains personal property and passes as such to the husband, who may elect whether to take it as land or require the amount to be made good; and where he elects to take the land, the surrogate may require the guardian to convey to him.</p>

<p>Proceedings for the sale of real.estate.</p>

<p>Accounting by representative® of George Barnard, deceased1,. for .assets in their hand® belonging to the estate of Samuel 0. Scudder, deceased.</p>

<p>Judicial settlement ¡of the account of a testamentary trustee.</p>

<p>1. Services — Relations.</p> <p>Services rendered to a father by a son who has a business of his-own and resides with him will be presumed to have been gratuitous, and proof that they were to be paid for or compensated by a testamentary provision must be clear and satisfactory.</p> <p>2. Same — Limitations.</p> <p>Where services were performed for several years without any express-agreement as to time, terms or measure of compensation, and no payments were made, the law, for the purpose of determining when the-statute of limitations began to run,’ will ■ regard the hiring as one from year to year and the wages as payable in the .same manner.</p> <p>3. Decedent’s Estates — Claims not Presented During- Decedent’s Life.</p> <p>Claims withheld during the lifetime of an alleged' debtor, and sought to be enforced against his estate, should be carefully scrutinized and allowed only upon clear and satisfactory proof.</p>

<p>Judicial settlement of accounts.</p>

<p>Legacies — Specific and general.</p> <p>After giving several legacies of “ shares of the capital stock ” of a certain corporation, worth less than par, the will gave to the executors in trust “ the sum of $50,000 of the capital stock ” of such corporation, “ or in ease I shall not hold that amount of such stock in addition to the amount mentioned in the foregoing clause of my will, I' direct them to take from my other personal property an amount sufficient to equal said sum.” Held, that such legacy was not a specific legacy of shares of stock, but a general legacy of money.</p>

George W. Waldron, on. the 29th day of February, 1892, executed, published and declared an instrument in writing to be his las.t will -and testament. •On or about the middle of July, 1893, in the presence of .a witness, he destroyed the alleged will by burning it.

<p>1. PROBATE-ALLOWANCE TO WIDOW ON CONTEST — CITATION.</p> <p>The only person entitled to notice of an application for an allowance for support made by a widow who ia contesting her husband’s will is the temporary administrator.</p> <p>2. Citation — Waiver oe Defects.</p> <p>An appearance by the temporary administrator without objection is a waiver of all defects in the citation.</p> <p>3. Allowance — Amount.</p> <p>Where the provision in the will for the widow is a life estate, the amount of the allowance for her support should be limited to the amount which the principal of the fund has earned up to the time of the application.</p>

Proceedings under section 2750, Code of Civil Procedure, for the sale of decedent’s real estate for the payment of his debts.

<p>Proceedings under tbe Transfer Tax Act.</p>

<p>Proceedings to sell decedent’s real estate for- the payment of his debts.</p>

<p>Transfer Tax — Jurisdiction—Executors or Non-Kesident.</p> <p>The fact that the exeeutors of a non-resident decedent, who owned personal property in this State subject to transfer tax, have accounted and been discharged in the State of his domicile does not deprive the surrogate of the county in which such property was situated of power to appoint an appraiser and fix the tax.</p>

<p>ADMINISTRATION-LETTERS MAY BE REFUSED A WIDOW WHO CANNOT READ, Write or Count Money.</p> <p>It is a reasonable exercise of discretion for the surrogate to refuse to grant letters of administration to a widow who cannot read or write English or count money.</p>

<p>Proceedings to determine and fix the transfer tax upon the estate of Sarah J. Birdsall, deceased.</p>

Proceedings to compel administrators to render and settle their accounts and pay to the petitioner his distributive share of the estate of the decedent.

<p>1. Will — Bequests to Benevolent Institutions Made Within Two Months op Testator’s Death.</p> <p>The provisions of section 6 of chapter 319, Laws of 1848, invalidating devises and bequests to benevolent or. charitable institutions, when made within two months of testator’s death, do not apply to a bequest or devise to Yale College.</p> <p>2. Statutory Construction — Repeal op Act Except One Section.</p> <p>The fact that all of chapter 319, Laws of 1848, except section G were repealed by the Membership Corporations Law (Laws 1895, chapter 559) does not make such section a part of the Membership Corpora-' tions Law.</p> <p>3. Same.</p> <p>For the purpose of determining the meaning of a portion of a statute excepted from a repeal, resort may be had to the statute itself as it stood at the time of the repeal. i</p> <p>4. Same — Devises to Corporations.</p> <p>The provisions of the General Corporation Law (Laws 1890, chapter 5G3, section 11), declaring that each corporation may take by devise or bequest, “ subject to such limitations as may be prescribed by law,” means only that each class of corporations shall be subject to such limitations as pertain to that class.</p> <p>5. Same — Public Policy.</p> <p>There is no general public policy against devises and bequests to benevolent or charitable institutions made within two months of testator’s death.</p> <p>6.. SURROGATE’S Court — Jurisdiction.</p> <p>A surrogate has jurisdiction to determine the validity of bequests in a will, although the validity of a devise depends on the same questions.</p>

<p>TRANSFER Tax — Appraisal—Mortgages Not to be Deducted.</p> <p>A direction in a will that the executors shall pay the mortgages upon real estate devised does not authorize the appraiser to deduct the amount of such mortgages in fixing the value of the personal property.</p>

<p>TRUSTEES-DIRECTION AS TO APPLICATION OF INCOME.</p> <p>A direction in a will that the trustees apply the net income to the support and education of an infant until majority does not require them to thus apply the entire net income without regard to its amount or the needs of the infant and the circumstances under which she is being maintained; but they may exercise a reasonable discretion under all the circumstances of the case as to the amount which shall be so expended.</p>

<p>Legacy — Bequest for Masses — Validity.</p> <p>A bequest to the priest of a certain church for masses to be said for the repose of the soul of testator and others named in the bequest is not void for indefiniteness of the beneficiary; nor is it a bequest to the church; nor does it create a trust; but it is a conditional legacy to the person who was exercising the functions of priest in the designated church at the time the will took effect, to which he, as an individual, will become entitled on showing that he said the masses.</p>

<p>Appeal from an order fixing the transfer tax.</p>

<p>1. Will — Undue Infloencje.</p> <p>Undue influence cannot be presumed, but must be proved.</p> <p>2. Same.</p> <p>To prove undue influence, there must be evidence of some act of persuasion, solicitation or controlling power of mind, will or judgment by which the testator .was forced or induced to make a disposition of property different from that which he would have done had he been a free agent.</p> <p>3. Same — Confidential Relations.</p> <p>The existence of confidential relations, not fiduciary in the ordinary sense, does not raise any presumption of undue influence.</p> <p>4. Same — Testamentaky Capacity.</p> <p>The mere fact that testator believed in spiritualism does not make the will void, nor is it evidence of mental unsoundness; to have that effect it must be shown that the will was the result of such belief.</p> <p>5. Same — Knowledge of Contents.</p> <p>Where a draft prepared by attorneys was submitted to the testator and the will prepared therefrom was retained by him until the time of his death, it will be presumed that he had knowledge of its contents.</p>

<p>1. Limitation — Claims Against Estate.</p> <p>A special proceeding to enforce the payment of a judgment is art a'ction within the meaning of subdivision 7 of section 382 of the Code of Civil Procedure, and is barred where the judgment was rendered by a justice of the peace more than six years before the commencement of the proceeding.</p> <p>2. Same.</p> <p>The amendment of 1894- to said subdivision by excepting cases where transcripts should be filed applies only to judgments rendered after the passage of such amendment.</p>

<p>1. Distribution — Bab.</p> <p>A decree made on an intermediate settlement of the accounts of an executor, made at a time when there were no moneys for distribution, is not a bar to the claim of an assignee of a legatee or distributee to-participate in the final distribution. ■</p> <p>.2. Same — Failure to Present Claim.</p> <p>Failure of a claimant to present' his claim at one accounting does not preclude him from presenting it at another accounting and sharing in the assets then ready for distribution.</p>

<p>Judicial settlement of the accounts of an administratrix.</p>

<p>Judicial settlement of the accounts of a trustee.</p>

<p>Ü. Accounting — Credit for Necessary Repairs to Railroad.</p> <p>Payments made by executors for necessary repairs to a railroad which was controlled and practically owned by their testator and another person should be allowed to them on their accounting.</p> <p>S. Same — Salary of Officer of Company.</p> <p>Where one of the executors is a trust company, they are not chargeable with sums paid to one of the officers of such company for services as vice-president of a railroad in which the estate is interested, although such sums have been voluntarily paid over to the trust company.</p> <p>S. Same — Sale of Stocks Which Subsequently Increased in Value.</p> <p>Where executors sell securities in good faith for the payment of debts, they are not chargeable with mismanagement because such stocks afterward increase in value.</p> <p>4. Same — Liability on Doubtful Venture Not Determined on Intermediate Accounting.</p> <p>Upon an intermediate accounting the court will not determine the question whether the executors were justified in expending money on an irrigation scheme, undertaken by testator in a foreign State, the result of which is yet undetermined.</p>

<p>1. Set Oef — Joint Obligation.</p> <p>A joint note made by two persons cannot be made the subject of set off or counterclaim against the individual claim of one of the makers against an estate.</p> <p>2. Same — Liability as Indorsee.</p> <p>Liability of a decedent as indorser of a note may be set off against a claim of the maker against the estate.</p>

<p>¡1. RevocaitoN — Wra Nor be Implied fbom Fact that Will is Cot in Two.</p> <p>The mere fact that the will, when found, was cut in two parts will not, in the absence of proof that the cutting was done by testatrix, or by the draughtsman in her presence and .that of two witnesses, authorize a presumption of revocation.</p> <p>E. Pbobate — Subsequent Disposition of Property Will Not Prevent.</p> <p>The disposition by testatrix after the making of the will of all her property will not prevent probate of the will.</p>

<p>Judicial settlement of the accounts of an Executor.</p>

<p>Proceedings upon probate of a will.</p>

<p>Transfer Tax — Foreign Corporations.</p> <p>A foreign corporation, although authorized by chapter 557, Laws of 1893, to take and hold property in this State subject to the restrictions and limitations of existing laws, is, in the absence of, any statutory exemption, liable to taxation on a legacy to it.</p>

Exceptions filed to report of a. referee appointed to pass upon the accounts of a guardian, and objections filed to the same.

<p>1. Life Tenant — Savings from Income.</p> <p>Where the residue is given to one for life, subject to her control, any savings by the life tenant from income belong to her absolutely and become part of her personal estate.</p> <p>■2. Distribution — Increases by Reinvestment.</p> <p>Where the residuary estate was composed entirely of ehoses in action and the life tenant has had charge of them and made changes in the investments, an increase in the fund will not) in the absence of proof as to the cause of the increase, be presumed to have arisen from accumulations of income, but will be held to be gains from sales and investments and to be part of the capital.</p>

<p>^Payment or Debts — Set Off.</p> <p>The mere fact that a joint note of two persons sought to be set off by the administratrix against a liability of the intestate to one of them, was adfnitted in evidence without objection, does not establish the counterclaim; but it is the duty of the court to consider the evidence and determine the-question according to the laws declaring that such a set off is not permissible.</p>

<p>Equitable Conversion — Executors’ Commissions.</p> <p>A will gave the residuary estate to the executors in trust to sell the same “ at such time and for such consideration as they may deem proper,” and until such sale to let or mortgage the same, provided for a trust in a specific sum, and directed the trustees to invest the balance and apply the rents and income of a part thereof to- the widow for life or until remarriage, and in the latter event to pay said share or proceeds to certain children; permitted the trustees to retain any securities or property belonging to the estate as an investment of the principal of any trust and authorized them to sell, lease or mortgage any part of the real estate. Held, that the will contained no mandatory power of sale, and as a sale was not necessary to carry out the provisions of the will, there was no equitable conversion, and that the real estate was not to be considered in determining whether the estate exceeds $100,000 on the question of the executors’ commissions.</p>

<p>Proceedings upon the final judicial settlement of the accounts of executors.</p>

<p>Proceedings for the sale of decedent’s real estate for the payment of debts.</p>

<p>Judicial settlement of the Accounts of an administratrix with the will annexed.</p>

<p>Legacies — Savings Bank Deposits Not Included in Bequest oe Money “ In My Business Bank.”</p> <p>Testator’s will, after giving the stock, fixtures and good will of his business to his brother, and legacies to his brother and daughter, gave to his widow “ all money that may be due me at the time of my decease from my undertaking business, or from any other' source whatever; also whatever money I may have in my business bank.” It further directed the brother to collect all money that might be due to the testator at the time of his death and pay the same to the widow. Held, that the bequest to the widow did not include moneys on deposit in savings banks.</p>

Proceedings by claimant to establish an agreement upon the part of testatrix to devise ber farm to him and his brother in consideration of their making improvements thereon and paying a certain debt owed by testatrix.

<p>’CONSTRUCTION Off WILL — REPUGNANCY-INTEREST OF MINOR CONTINGENT on His Reaching Majority.</p> <p>After giving all testator’s property, consisting of personalty, to five children and a grandchild, an infant, share and share alike, the will directed the executors to hold the share of the minor, invest it, apply as much as was necessary to his use and pay the principal and accumulations to him at majority; and provided that if he died before majority without leaving lawful issue the share should be divided between the children. Held, that these clauses were not repugnant; that absolute ownership was not vested in the grandchild until he reached majority, and that until that time his share should be held in trust.</p>

<p>Final judicial settlement of tbe accounts of a substituted trustee.</p>

<p>Proceedings, upon the final judicial settlement of the accounts of an administrator with the will annexed.</p>

<p>l. Executors — Funeral Expenses of Wife.</p> <p>A husband who is the executor of his wife is entitled to credit for her funeral expenses; but not for her medicine and medical expenses, as these are necessaries which he is bound to furnish her.</p> <p>■2. Life Tenant — Taxes and Other Charges — Permanent Improvements. '</p> <p>An executor who is the life tenant cannot be allowed for insurance, taxes and repairs; nor for permanent improvements made by him, as these are voluntary acts which give him no claim.</p> <p>3. Same — Interest on Incumbrances.</p> <p>A life tenant is bound to pay interest on the incumbrances, and is not entitled to reimbursement therefor from the estate.</p> <p>4. Sale of Real Estate — Misapplication of Funds.</p> <p>Where a decedent left sufficient personal property to pay debts and funeral expenses, the fact that it was misapplied by the executor does not entitle the creditors to resort to the real estate for the payment of their demands.</p>

<p>Legacies — Abatement.</p> <p>Legacies for the support of testator’s son and his wife and the support and education of their children are not to be considered specific or preferred legacies which do not abate in case the assets are insufficient to pay all general legacies in full, where other clauses of the will make liberal provision. for the same beneficiaries or they are otherwise not dependent on the legacies for support or maintenance.</p>

<p>Appeal from a decree assessing the taxes upon legacies under the Transfer Tax Law.</p>

<p>Proceedings upon probate of a will.</p>

<p>Tkansfer Tax — Apportionment of Debts.</p> <p>Where the personal estate consists, in part, of exempt government bonds, the appraiser should, in estimating the taxable value of the-estate, apportion the debts, expenses of administration and commissions ratably between the government bonds and the other taxable personal pi’operty. ♦</p>

<p>FORECLOSURE — SURPLUS MONEYS.</p> <p>Where a mortgage on real property of a decedent which is subject to a valid, imperative power of sale for the payment of debts and funeral expenses is foreclosed, the surplus moneys should be retained in the Supreme Court, and not paid into the Surrogate’s Court, as the latter court has no power in such a case to distribute the moneys.</p>

<p>1. Trustees — May be Compelled to Apply Accrued Income to Support op Inpant Beneficiary.</p> <p>Testamentary trustees who have not applied the income to the support of an infant, as required by the will, may be required, on application of its guardian under sections 2804, 2805 of the Code, to apply a certain sum per week from the accrued income for the support, maintenance and education of such infant.</p> <p>2. Same — Guardian Cannot Recover por Past Maintenance.</p> <p>The guardian cannot, in a proceeding under said sections, be reimbursed for past maintenance of the infant.</p>

<p>Appeal from the report of an appraiser under the Transfer Tax Act.</p>

<p>Executors — Estoppel—Release.</p> <p>Until an agreement and releases given to executors are set aside Ly the judgment of a court of' competent jurisdiction the releasors are estopped from questioning their validity on the executor’s accounting; especially where a decree has been- entered confirming the agreement and an assignment given in pursuance thereof.</p>

Application filed January 26, 1898, for letters of administration by William P. Sullivan, a nephew, alleging that decedent was a resident of this county and died in Oneida county while temporarily sojourning there, and further alleging that decedent’s brothers were aged, infirm, illiterate and incompetent to administer his estate. Decedent left no widow or issue. Two brothers, nephews, his only next of kin.

<p>Application for letters of administration with the will annexed.</p>

<p>1. Will — Revocation.</p> <p>The surrogate’s court has no power to entertain a proceeding to revoke probate of a will which has been entered upon a direction of the Supreme Court made after a trial by jury and affirmance on appeal.</p> <p>2. Same — Construction.</p> <p>A construction of a will cannot be procured in a proceeding to revoke probate.</p>

<p>Application by an executor for distribution of the proceeds ■of the sale of real estate.</p>

Proceedings under Code Civ. Pro., section 2606, to determine the liability of the estate of an executor for misconduct-in his trust.

<p>1. Will — Execution.</p> <p>There is no statutory or legal requirement that a will shall be drawn on a particular kind of paper, nor with the same ink, nor exclusively in ink, nor all at one time.</p> <p>2. Same — Presumption—Alterations.</p> <p>There is no presumption that blank spaces left for the insertion oí names or amounts in a will were filled in after execution.</p> <p>3. Probate — Alterations in Pencil and Ink.</p> <p>A will, as originally drawn, left blanks for the insertion of the amounts to be given to the legatees, which were afterward filled in by testator in lead pencil, over some of which marks he wrote in ink and over others with a pencil. Held, that the will should be admitted to probate and recorded with blanks where lead penciling occurs; that such marks were to be regarded as merely tentative and the ink marks as the final determination of testator.</p>

Benjamin F. Wheelwright died October 7, 1875, leaving a will, the provisions of which are sufficiently set forth in the opinion. He left him. surviving, his widow, Elizabeth G. Wheelwright, and five children, namely, Washington S. Wheelwright, Anne G. Rhoades, Caroline M. Child, Elizabeth G. Wheelwright and Benjamin F. Wheelwright. His will was dated June 25, 1873, and was probated in this court October 21, 1875.

<p>Application, for examination of respondents as to certain assets in their possession belonging to' the estate.</p>

<p>Appeal from report of appraisers in proceedings under the Collateral Inheritance T'ax Law. Pacts appear in. memorandum.</p>

<p>Exceptions to referee’s report.</p>

<p>1. TESTAMENTARY CAPACITY.</p> <p>Probate should be refused where it appears that testatrix had been in a weak mental condition for years; that she had once been taken to an insane asylum at her request; that she had attempted to commit suicide; that she believed that she had an electric nerve which went through her body; that the will was executed five days before she died from creeping palsy; that she gave no instructions to ' the scrivener, apparently took no interest in the contents of the will or its execution, and that by it she disposed of her property in a manner contrary to her intention as stated by her to a subscribing witness.</p> <p>2. Bequest — Suspension op Power op Alienation.</p> <p>A bequest or devise, through a trustee, to an unincorporated institution to be conveyed as soon as it is incorporated, is invalid, as the power of alienation may, thereby, be suspended for a period of time, not measured by lives in being.</p> <p>3. Charitable Corporations — Bequests to.</p> <p>Section 6 of chapter 319, Laws of 1848, invalidating bequests to benevolent and charitable corporations unless made at least two months-before testator’s death, applies to a corporation which, if organized at all, must be incorporated under the Membership Corporations Law.</p>

Application by The Lawyers’ Surety Company, of New York, to be relieved from further liability on the bond of an administratrix, given under an order entered December 15, 1897, directing the real estate of decedent to be sold for the payment of debts.

<p>Application of Ferdinand Roseher, an alien resident of Bavaria, Germany, for letters of testamentary guardianship under section 2852 of the Code of Civil Procedure.</p>

<p>Motion by executor founded upon petition and due notice to the county treasurer and comptrpller for a refunding of $191.88 of the transfer tax on said estate.</p>

<p>Application by petitioner for a distribution of surplus, moneys in the action of Sutton v. Knapp.</p>

<p>Proceedings upon, judicial settlement of the accounts of executors.</p>

<p>1. Accounting — Expenses oe Commission to Take Testimony oe Subscribing Witnesses Not Expenses of Temporary Administration.</p> <p>The expenses incurred in procuring the testimony of subscribing witnesses by commission in a contest over the will are not expenses of temporary administration; such expenses should be paid by the parties to the controversy and allowance made therefor in the proceeding.</p> <p>2. Same — Payments to Counsel.</p> <p>Application for payments to the counsel for a temporary administrator must be made by the administrator personally upon a petition verified by him showing the character of the services and their necessity, and on notice to the attorneys for the proponent and all other parties who have appeared.</p>

<p>Proceedings upon probate of a will.</p>

<p>.Accounting — Limitation.</p> <p>A proceeding by next of kin to compel an administratrix to account for moneys which she received, but which she alleges that she duly and properly expended, is barred by the six years’ statute of limitations.</p>

<p>Question submitted arising under tbe fifth clause of the will. The executors’ contention was that, under the will, the gift to St. Vincent’s Retreat was either a conditional legacy or.a trust, for the benefit of Mary A., Kennedy during her life, with remainder over to St. Vincent’s Retreat; that it should be judicially determined that St. Vincent’s Retreat is not entitled to the same or any portion thereof.</p>

Proceeding to compel administrators to render an account of their proceedings, including an account of the disposition of moneys received from the proceeds of certain real estate sold by them for the payment of debts of decedent.

Motion to confirm referee’s report to whom the question was referred to take proof as to whether or not the claim in question bad been presented to tbe executor, tbis being tbe only objection to tbe account.

<p>Costs — Allowances on Contest op Will.</p> <p>A surrogate cannot award to any party to the contest of a will a larger compensation than $10 a day in addition to $70, and the only disbursements which can be allowed are such as might be taxed in the.. Supreme Court.</p>

<p>ACCOUNTING-LIMITATION — EXECUTRIX Off ADMINISTRATRIX.</p> <p>An application by next of kin, under section 2606 of the Code, to compel the executrix of an administrator to account, instituted fifteen years after letters testamentary rvere issued upon the estate of the administrator, is a special proceeding and is barred by the six years statute of. limitations.</p>

<p>Infants — Costs.</p> <p>A hearing upon a reference of a claim against an infant’s éstate to take evidence and report, where no answer is filed by the guardian or special guardian of the infant, is not a contest within the meaning of that term as used in section 2561 of the Code, and the petitioner can only be allowed $25 and disbursements.</p>