Volume 2 — Mills's Surrogate Reports

<p>1. Legacy — Abatement of Trust Provision for Life Support of a Brother.</p> <p>Where the assets prove insufficient to pay in full general legacies made to volunteers, a trust provision for the life support of a brother, otherwise unprovided for by the will, but not dependent upon the testator in his lifetime, abates proportionately.with all the other general legacies, as the relationship of a brother is too remote to except the bequest for his benefit from the general rule.</p> <p>2. Same — Legacy to a Cemetery Does Not Abate.</p> <p>A legacy to a cémetery providing for the care of the testator’s lot does not abate.</p>

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

Motion to dismiss objections filed in proceedings for the judicial settlement of the accounts of executors and trustees.

<p>Will — Separate Sheets Need Not be Permanently Fastened Together at the Time oe Its Execution.</p> <p>A will, written upon three separate sheets of legal cap with the pages (written upon) numbered consecutively from one to eleven and following each other in regular order, executed by the testator at the physical end of the will and duly attested, will not be denied probate, upon the ground that it was not subscribed at the end thereof, merely because, at the time of it sexeeution, the separate sheets were held together by the attorney who drew it and were not permanently connected by any form of fastening. The Statute of Wills contains no requirement that the sheets composing a will should be-fastened together at the time of its execution.</p>

<p>Will — Undue Influence — Solicitation of Testatoe.</p> <p>Undue influence, controlling the execution of a will, is not made out by proof that a testator, whose mind was not impaired, gave to his sons alone a stable of horses in which he took an especial pride, and that he had consulted his sons in regard to his will.</p> <p>Reasonable solicitation of the testator, upon the part of children, is not evidence of undue influence.</p>

<p>1. Will — Devise—Upon Conditions Subsequent — Bequest oe Residuary Estate Upon a Condition Precedent — -Vesting—Security to RE-MAINDERMEN.</p> <p>Under a devise and bequest to S. H. and E. H. of the use for life of a house and its contents, provided they make it their residence, take care of certain family portraits therein and do not let or under-let the house, with power to them to appoint the remainder to their children if the above conditions are fulfilled, and, upon acceptance of such devise and bequest, they to have the residuary estate of the testatrix, consisting of personalty, S. H. and E. H. take immediately upon the death of the devisor, life estates in the house and its contents and a right to appoint the remainder, subject in each case to be defeated by their failure to perform the said conditions; but, upon their acceptance of the said devise and bequest as conditioned, they take an absolute estate in the residuary estate, and persons, to whom an identical devise and bequest was made in case 8. H. and E. H. should refuse to accept, take no interest therein.</p> <p>S. H. and E. H., as owners of the personalty, need give no security therefor, not even for the contents of the house.</p> <p>2. Legatee — Identity Provable by Parol.</p> <p>The identity of a legatee may be proved by parol.</p> <p>3. Corporation — Gift to Persons “Who, at the Time of My Death, Shall be Trustees ” of a Cemetery.</p> <p>A gift to “ the persons who, at the time of my death, shall be trustees of the Rural Cemetery at White Plains,” in trust, to keep a family plot in order, is a gift to the corporation maintaining the cemetery.</p> <p>4. Residuary Legatees — If They Do Not Object to a Gift as Invalid, Others Cannot.</p> <p>Contestants have no standing to attack the validity of such a gift, where persons, found to be the sole residuary legatees, do not object to it, as the gift, if declared invalid, will go to increase the residuary estate.</p>

Motion by an executor to vacate an order opening a decree, settling tbe accounts of tbe executor, and permitting tbe petitioner to file objections thereto.

<p>ALIENS — Right of Consul General of Italy to Administeb on Estate of Italian Subject — Secueity.</p> <p>Where an Italian subject dies intestate in and leaves property in the State of New York, and his only nest of kin are in Italy, the Consul General of Italy has, under treaties with the United States, exclusive right to administer upon his estate and may apply for letters in the court of the proper surrogate.</p> <p>He need give no security where there are no creditors of the decedent.</p>

<p>Proceedings on probate of will.</p>

Proceeding upon tbe petition of claimant for an order directing that tbe decree of settlement heretofore made be opened and that tbe administrators be directed to pay her claim.

Objections filed as to the credit for two certain notes of decedent, alleged to be paid by executors. Motion to confirm referee’s report, and to vacate order of reference on tbe ground of prejudice.

Tbe executor claims that the fund should be paid over to him to be distributed. That the W. H. Gedney claim was outlawed for the reason that seven and one-half years had elapsed before the commencement of the partition suit, and that the Durland mortgage could not be paid out of this fund and that the Stewart mortgage on annuity could be paid.

<p>Executor — Commissions—Transfer of Property in Specie — Land Bought in on Foreclosure — Beal Estate Not Sold, but Coupled with a Discretionary Power — Interest on Advance Commissions.</p> <p>Executors are entitled to commissions upon personalty, never converted by them into cash, where it is delivered to, and accepted by, the legatees in the form in which the executors received it.</p> <p>They are also entitled to commissions upon the value of the land which they bought in upon foreclosing a mortgage upon it held by their testator.</p> <p>They are not entitled to commissions on real estate which they never sold, although having a discretionary power to do so in order to perform their trust; and the fact that, in confirmation of a partition agreed upon among the residuary devisees, they released the land, does not entitle them to commissions upon its value.</p> <p>Executors who, by consent of adult residuary legatees, have taken commissions before they were duly allowed, should not be charged with interest upon the commissions.</p>

<p>1. Distribution or Surplus in Partition — Code C. P., § 1538 — Petition.</p> <p>An application to the Surrogate’s Court, for distribution under Code C. P., § 1538, of the share of a deceased person in premises partitioned in the Supreme Court, will not he granted unless the petitioner shows that the share has been, by the Supreme Court, directed to be deposited in the court of the surrogate.</p> <p>An allegation that the referee, in the action of partition, has paid the share to the chamberlain of the city of New York “ to the creditors of ” the said decedent, is insufficient.</p> <p>2. Same — Authority of Attorney to Appear, for Non-Eesident, in New York County.</p> <p>An, attorney who appears in the Surrogate’s Court of the county of New York for a non-resident creditor must file written proof of his authority.</p>

<p>Genbbai, Guardian. — Allowance, Nunc Pro Tunc, of Proper Expenditures Made for Ward — Approximation of Expenses, where Ward was a Memseb of the Eamilt — Interest—Ratification by Ward of Illegal Investment.</p> <p>Where the mother and general guardian of an infant has maintained her as one of the family, the mother should, on her final accounting as guardian, be allowed expenditures up to such a sum as she would have been allowed had she applied to the surrogate at the earliest possible date for an order fixing the sum which she might properly disburse from the estate of the infant for its support.</p> <p>An approximation to the proper share, in the family expenses, of thé infant is all that is possible under such circumstances.</p> <p>Where the fund was received by the guardian as a savings1 bank deposit at 4 per cent, she should be charged with interest on unex-pended balances of her account at only 4 per cent., with annual rests, except that interest received on loans must be charged.</p> <p>An infant may, by conduct after majority, ratify an illegal investment made by her general guardian.</p>

<p>Application for letters of administration.</p>

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

<p>Statute oe Limitations — Code C. P., § 1822, when a Bab to a Claim Against a Decedent’s Estate — Doubting Claim.</p> <p>Section 1822 of the Code of Civil Procedure, declaring that, unless a claim against the estate of a decedent is referred as prescribed by law, the claimant must sue within six months after.it is disputed or rejected, does not bar a claim, for failure to sue within six months, where the executors of the decedent did not dispute or reject it absolutely, but merely notified the claimant in writing that they doubted its justice and invited a reference of it.</p> <p>Such a notice is, however, sufficient to preclude the claimant from contending that the claim stands admitted.</p>

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

<p>Legacy — When Not Charged on Real Estate by Implication Nob by Extkinsic Evidence — Leasehold prom Seneca Nation is Real Estate — Duty op Residuary Devisees to Pay Mortgage Given by Devisor — 1 R. S., m. p. 749.</p> <p>A clause of a will reading “ I give, devise and bequeath my property as follows,” preceding general legacies and followed by a residuary clause reading “ I give, devise and bequeath all the rest, residue and remainder of my real and personal property as follows ” indicates no intention upon the part of the testator to blend his whole estate into one fund to pay the general legacies, charge them upon the real estate, and entitle them to payment before any payment to the residuary legatees and devisees.</p> <p>Extraneous circumstances considered and deemed insufficient to show such an intention upon the part of the testator.</p> <p>Land held under lease from the Seneca Nation of Indians is, for the purposes of administration, real property, and rent received therefrom by executors of the lessee cannot benefit his general legatees, but passes under the residuary clause directly to his residuary legatees and devisees.</p> <p>Land bought by a third party and to be held in trust by him for the testator and certain associates, accompanied by a mortgage given back by the trustee for a part of the purchase price, which price each associate agreed to pay proportionately, is an interest in real estate which passes to the residuary legatees and devisees; they, under 1 Revised Statutes, m. p. 749, must pay their share of the interest on the mortgage, and where the executors of the testator have paid it out of his personalty they are entitled to reimbursement from the residuary legatees and devisees.</p>

Application by one executor fox an order directing his co-executors to permit him, at all reasonable times, freely to inspect and take copies of all books, etc., kept by or under the direction of the' testator, in his lifetime, containing entries relating to his property, and for further relief.

<p>Proceedings upon probate of a will. Motion to overrule objections, etc.</p>

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

<p>Proceedings upon the judicial settlement of the accounts of an executor.</p>

Application on petition and notice of motion for an order substituting new attorneys for respondents, and directing said respondents to< deliver to them the papers belonging to their estate now in their possession, upon security approved by the court being given by petitioners to meet any claim of respondents for legal services, in the matter of the estate.

<p>Bife Tenant And Remaindermen — Capital and Income as Between Them — Payments of Capital as Income Peotected by a Decbee.</p> <p>Where the entire capital of a street railroad corporation in which a testator held stock is shown to have gone, up to the time of his death, into the building, equipment and real estate of the road, dividends, declared by it after it had permanently leased its road and ceased to be a going concern, paid out of real estate reserved from the operation of the lease and subsequently sold, and distributed by the corporation as proceeds of real estate, are capital as between life tenants and remaindermen of a testamentary trust of which the stock formed a part, by direction of the testator and apportionment by the trustees.</p> <p>An agreement of the lessee to spend one million a year on the plant and motive power is not an earnest of the lessor out of which profits can be paid.</p> <p>Where trustees have on several judicial accountings, without objection and in good faith, distributed capital as income, they are protected in their payments by the decrees made, irrespective of whatever rights may exist in the remaindermen to recover the said' payments of the life tenants.</p>

Application by the administrator of the deceased husband’s estate to vacate letters of administration issued to the next of kin of decedent.

<p>Executor — Not Compelled to Account Until One Yeas After Issue of Letters, Although Another Executor Had Then Served Seven Years and Until Death — Code C. P., § 2726.</p> <p>Although mo,re than seven years have elapsed since the issue of letters testamentary to the wife and executrix of a testator, yet where she dies before completing the administration and another executrix qualifies, the latter cannot be compelled to account until at least one year has elapsed since the issue of letters to her.</p>

<p>Equitable Conversion — Not Effected by a Discretionary Power of Sale —Infant’s Consent Void.</p> <p>A residuary devise of all the property of a testatrix to her three grandchildren for their own several use and benefit forever, accompanied by a proviso that if any grandchild be a minor at the death of the testatrix that share shall be held in trust by the executor during the minority and be paid over to the grandchild at majority, followed by a discretionary power of sale to the executor, does not work an equitable conversion of the realty into personalty as of the death of the testatrix, and, therefore, where the executor sells the real estate after the death of a married female grandchild, who was of full age when the testatrix died, her husband is not entitled to any share in the proceeds as personalty, and her father, her only heir-at-law, is entitled to it as real estate.</p> <p>Neither the consent of an infant beneficiary, nor that of the guardian, can protect an executor in paying a lapsed legacy.</p>

<p>Aliens — Consul-General op Italy Must Administer on the Estate op an Italian Subject Conformably with Our Laws — Security Required.</p> <p>Where a subject of Italy dies intestate in the State of New York, administration, upon his assets within the jurisdiction will be granted to the Consul-General of Italy, not by virtue of the law of nations or treaty rights, but only conformably with our laws.</p> <p>Where there were no resident next of kin, no creditors, and the public .administrator had refused to act, the surrogate appointed the Consul-General, but required him to give the usual bond.</p>

<p>Proceedings upon tbe judicial settlement of tbe accounts of executors. -Exceptions to report of referee.</p>

Applicatiou by Mr. David Keane, for leave to file objections in his own behalf, on the theory that the agreement made by •Mm ;with 'bis clients, under wbicb be appeared and acted, for them,. operated to transfer to and vest in bim an undivided interest in tbe estate wbicb would be destroyed if tbe will, alleged to be invalid, is admitted to probate.' ' ;

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

Appeal to the Surrogate’s Court of Suffolk county from a decree assessing and fixing tax on legacies given by will of said deceased. The facts so far as material appear in the opinion. Section 2 of chapter 382 of the Laws of 1900, reads as follows: “ § 2. Article ten of such chapter is hereby amended by adding a section to be section two hundred and forty-three, to read as follows: .“ § 243.

<p>Transfer Tax — Appraiser Must Take Proof that an “Adopted Daughter ” Was Such — Exemption to Her Not Extended to Her Issue.</p> <p>Where a testator gives a share in his property to “my niece and adopted daughter ” upon a trust to pay her the income for life, with remainder to her issue, a transfer tax appraiser cannot exempt the adopted daughter’s share from the transfer tax, unless the mutually acknowledged relation existing between her and the decedent has been established before him by proof.</p> <p>The exemption afforded an adopted child does not enure to its issue.</p>

Petition by tlie New York Botanical Garden for modification of decree heretofore entered, assessing and fixing a tax on the estate of said deceased. The material facts appear in the opinion.

<p>Trust in Personalty — Reservation of Remainder.</p> <p>A woman created a trust in personalty for lier own benefit, made it revocable by either party thereto after six months, made the corpus payable to herself after revocation, and it was stipulated that if she died during the trust, the corpus should be “ disposed of ” according to her last will. More than two years later she died without having revoked the trust and devised her residuary estate to her executor in trust to pay the income to her daughter for life, and thereafter to grandchildren until the youngest survivor of them had reached majority, when, if her daughter were dead, all the residuary estate was to be divided among them.</p> <p>Held, that she had absolutely reserved to herself the remainder in the trust which she created for her own benefit, and that title to the remainder passed by the will as her own property to her executor, as trustee, for at least the period of the life of her daughter.</p>

Proceedings upon the petition of the trustee in bankruptcy of Joseph Wood, the residuary legatee, under the will of Gilbert Wood, to compel the executor of the will of Jane H. Wood, who was the executrix of the will of Gilbert Wood, to account for assets of the estate of Gilbert Wood in his hands, received by him, with the assets of Jane H. Wood. Application to consolidate the two proceedings.

<p>Petition of George L. Reichert, a son of deceased, for letters of administration.</p>

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

<p>Will — A Mistake Which Will Impliedly Eevoke a Will Must Ap-peae on Its Face.</p> <p>A recital in a will to the effect that the testatrix was unmarried and had no “ direct heirs ” affords an alleged cousin, claiming to be a direct heir, but who had not seen the testatrix for more than forty years, no right to oppose the probate of the will on the mere contention that the testatrix had mistakenly supposed him to be dead and that therefore as against him she died intestate.</p> <p>If the doctrine of dependent relative revocation applies to a will, it must clearly appear from the will itself, not only that the testatrix had made a mistake, hut also what she would have done had she made no mistake.</p>

Proceedings under the act in relation to taxable transfers of property. Appeal from an order made upon the report of the appraiser.

<p>Will — Trust—Construed as a Gift — Res Adjudicata.</p> <p>The will of a testatrix gave to her brother Edgar $1,000 to be held by her executrix in trust, to pay Edgar the interest or income and “ as much of the principal as at any time she may think best.” After the death of the executrix Edgar had a substituted trustee appointed for the trust and after the death of Edgar and without notice to his estate that trustee accounted in Surrogate’s Court and was directed to pay and did pay the corpus to the remaindermen, the trust being held valid. Thereafter the administrator of Edgar recovered in the Supreme 'Court against the trustee a judgment for the corpus and then asked the surrogate to direct the trustee, the decree of his accounting having been opened, to account and pay him the judgment.</p> <p>Reid, that the administrator was not entitled to any accounting by the trustee.</p> <p>That the judgment of the Supreme Court was not conclusive as the parties to it were not the same as those to the trustee’s accounting.</p> <p>That the appointment of the trustee was illegal, as there was no trust and only a gift to Edgar, which became absolute upon the death of the executrix, and that therefore the trustee was not answerable as such to anyone.</p>

Appeal by the comptroller of the city of New York from an order made on the report of an appraiser fixing, assessing and determining the transfer tax upon said estate.

<p>Discovery UNDER Code C. P., §§ 2707-2710 — Nor Defeated by an Answer of Possession — Information Must be Disclosed.</p> <p>Where a domestic temporary administrator of a resident decedent applies in the Surrogate’s Court for a discovery against one, claiming as a foreign temporary administrator of the same decedent, and alleges that the latter has much information in regard to the estate and possession of a large amount of its personalty, the proceeding cannot be wholly defeated by an answer of the foreign administrator that he has not' possession of the assets in the State of New York and that, as to the assets in the foreign State, he is entitled to possession of them by virtue of a special title therein as the duly appointed foreign administrator — without clearly stating the nature and extent of his special title or describing accurately the property as to which the proceeding might properly be dismissed.</p> <p>In any event, it appearing that he has information necessary to the domestic administrator to prepare Ms inventory'and assert his claims in other courts, the foreign administrator must disclose such information.</p>

<p>Will — Competency—Pbiob Inquisition Finding Incompetency.</p> <p>Where a testatrix aged eighty-two years had, one week before execution of her will, been duly found incompetent to manage herself or her affairs and the minutes of her testimony in the lunacy proceeding indicated to the surrogate that her memory was then greatly weakened by age, probate was refused, and particularly where her will released and forgave debts due her from two of her sons which debts, as the petition in the lunacy proceeding alleged, represented moneys the sons had previously obtained from her by undue influence.</p>

<p>Will — Execution—Expert Testimony as to Capacity Overruled.</p> <p>The statute as to wills (2 R. S., m. p. 63, §■ 40) does not require the witnesses attesting a will to sign their names in the presence of the testator.</p> <p>Evidence of experts, who never saw the testator alive, and took no personal part in the autopsy upon his body, to the effect that the testator must have been of unsound mind at the date of the will, rejected, where it was contradicted by the testimony of every witness testifying from actual observation of the testator.</p>

<p>Res Adjumcata — Payments Formerly Disallowed an Executor.</p> <p>Where the Appellate Division, upon modifying a surrogate’s decree made upon the accounting of one who had been an executor and was ousted from that office by the denial of probate to the will appointing him, has decided that he could not be allowed, as a payment, for moneys which he had merely promised, by his individual note, to pay his counsel for services rendered in the litigation concerning the will, the surrogate is bound by that decision and cannot, upon a subsequent accounting of the same person as an administrator of the same decedent, allow him said moneys as a payment, he having in the meantime paid his counsel the note.</p>

<p>Discovert of Property of a Decedent in the. Hands of a Bailee and Subject to Conflicting Claims' — Possession Awarded by Surrogate.</p> <p>Where a tin box of a decedent, in the custody of a bailee for hire, is claimed by her administrator and also by her sister, the court of the surrogate, while not having power to try a conflicting claim of title, may award possession; and, where the sister, although not an actual party to a proceeding by tbe administrator to require the bailee to deliver the box to him, has made claim therein, will direct delivery of possession to the administrator as representing the estate of the decedent, leaving the sister to assert in another court her rights as against the administrator.</p>

Mr. Huntington, a resident of this county, died April 20, 1900, unmarried and leaving only collateral relatives surviving him.

<p>Proceeding upon the judicial settlement of the accounts of an administratrix.</p>

<p>Trust — Merger in Remainder Under L. 1896, Ch. 547, § 83, and L. 1897, Ch. 417, § 3.</p> <p>The will of a testatrix bequeathed her residuary estate to her executors as trustees, directed them to convert it into cash, pay the net income of one-half of it to her sister Kate during her life, and on her death pay over the principal equally to her children. The children of Kate, of full age, transferred all their interests to her and she, having released to herself the income, claimed to he vested with and entitled to immediate payment of the remainder under L. 1896, ch. 547, § 83, and L. 1897, ch. 417, § 3.</p> <p>Held, that the children had not absolutely vested interests in the remainder, that after the death of their mother, and not until then, they would take it as a class — her children — and that therefore their deeds of it conveyed no title, the statutes in question having no application unless the beneficiary of the trust sought to be terminated was entitled to the remainder in his or her own right.</p>

<p>Proceeding to sell the real property of the decedent for the payment of his debts.</p>

<p>Tbansfeb Tax — Exemption Refused Corporation Exempt from General Taxation — L. 1900, eh. 382, § 2.</p> <p>Section 243, added in 1900 to the transfer tax article of the Tax Law of 1896, deprived corporations, exempt by sub-division 7 of section 4 of the Tax Law from taxation on their real and personal prop-perty, of the exemption from the transfer tax theretofore given them by section 220 of the transfer tax article.</p> <p>A corporation organized exclusively for an educational purpose is no longer exempt from the tax.</p>

Graves, deceased, to trustees for the purpose of founding and maintaining a charitable and benevolent institution to be known ¡as “ Graves’ Home for the Aged.”

<p>Transfer Tax — -When the Grantee of a Power of Disposition Has an Absolute Pee — L. 1896, oh. 547, § 131.</p> <p>Under a testator’s devise of all his real estate to Ms wife during life. “ to he retained or disposed of as she may think proper,” no remainder or trust being limited or created, she takes an absolute fee; and lienee it is erroneous to assess a transfer tax on the testator’s heirs-at-law on the theory that the real estate descended from him to them merely because the wife died without executing her power of disposition.</p>

<p>Petition for probate of will of Valentine Williams, deceased. Objections by widow and] certain nest of kin.</p>

<p>Application for tbe appointment of an appraiser under tbe law relating to tbe taxable transfers of property.</p>

<p>Proceedings upon the judicial settlement of the account of an executor.</p>

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

<p>Exemption — Realty Purchased with Pension Money Not Exempt prom the Pensioner’s Debts After His Death — Code C. P., § 1395— Services Rendered to a Decedent in the Family Relation.</p> <p>The exemption afforded real property, purchased with pension money, from levy and sale for payment of debts does not extend beyond the life of the pensioner; and therefore where he dips leaving such real property as the only fund for the payment of his debts and his will directs their payment, the real property may be sold to pay them.</p> <p>Claims against a decedent’s estate made by relatives for services rendered him in the family relation must be clearly established in order to be allowed payment.</p>

<p>1. Decedent’s Estate — Payment oe Claim Against, an Affirmative Defense — Code C. P., § 829 — Statute of Limitations.</p> <p>The rule that payment is an affirmative defense applies to a claim for rent of premises occupied by an intestate and, upon a contest in regard to the claim, the claimant need not show that no payments have been made him thereon.</p> <p>2. Same — Evidence—Payments by Intestate to Administrator.</p> <p>An administrator, claiming as a creditor of his intestate, cannot testify in regard to payments made him by the intestate upon the claim.</p> <p>3. Same — Statute of Limitations — Kent.</p> <p>The Statute of Limitations is not a defense to a claim for a balance of rent due under an agreement, covering over sixteen years’ occupation of premises at a fixed monthly rent, any balance due to be payable out of the tenant’s estate at her death (occurring in 1900), as the balance does not become due until her death.</p>

<p>1. Dower — Testamentary Provision Not a Bar.</p> <p>A testator’s direction to liis executors to set apart from and apply out of tlie income of his estate a fixed annual sum for the support of his wife for life does not, on the face of the will, har dower.</p> <p>2. Same — Consent to Take Gross Sum — Code C. P., § 2793, Sub. 3.</p> <p>Where the said fixed sum proved to exceed the entire income of the personal estate and of the real estate after its conversion into money in order to pay the testator’s debts, and the widow was an incompetent person, the court refused the application of her committee to be permitted to take a gross' sum in lieu of dower as not being proper nor in the best interest of the widow, and it directed that the balance, after payment of the moving creditor, be paid to the executrix of the testator in order to produce the widow’s provision.</p> <p>3. Same — Compersatioít or Attorneys eor Remaindermen.</p> <p>Where the will directed that, after the death of the widow, the estate should be divided among collaterals, the court held that the claims of their attorneys against them for services could not be considered, while the widow was living, in the proceeding to sell the' testator’s real estate.</p>

<p>Executor — Commissions Refused as Trustee.</p> <p>Where the provisions of a will manifestly contemplate the continued eo-existence and exercise of the duties of executor and those of trustee until the distribution of the fund, commissions will be awarded only in a single capacity, and where they have been awarded, upon his accounting, to one as executor only, an unauthorized direction of the decree that the balance be paid over to a trust company as “ executor and trustee ” cannot enlarge the company’s rights to commissions nor entitle it, upon the settlement of its accounts, to commissions in both capacities.</p>

<p>Proceedings upon tbe judicial settlement of tbe accounts of an .administratrix.</p>

<p>Proceedings upon tbe judicial settlement of the accounts of an administratrix.</p>

<p>Proceeding of Herman C. von Post for an order amending •an order erroneously .assessing a transfer tax upon the transfer ■of United States bonds owned by Jane S. von Post, deceased.</p> <p>The decedent died October 8, 1895, the owner of $61,000 United States bonds. They formed part of her residuary estate, which by the terms of the will was left in trust for the benefit of her husband, Herman C. von Post, during his life. Upon the basis of the value given by the State Insurance Superintendent to the life interest of the said H. O. von Post in the decedent’s residuary estate, the value of his life interest in the said bonds amounted to $20,724.81. Upon this sum it is claimed) that a tax of 1 per cent, was assessed erroneously and without the surrogate having any jurisdiction to assess or' impose the same.</p>

<p>Appeal by the Comptroller of the city of New York from an order assessing the transfer tax upon a fund.</p>

<p>Application against an executrix to compel an accounting</p>

<p>The proceeding was commenced on the 21st day of January, 1901, by the filing of a petition with the surrogate of Albany county, for the probate of an instrument bearing date July 6, 1897, and a codicil thereto bearing date December 7, 1900, as the last will and testament of said Ellen Campbell, all the heirs-at-law and next of kin of said deceased having waived the issuance and service of a citation therein.</p> <p>On the 1st day of February, 1901, an order was granted by the surrogate of Albaany county that a citation issue to the Albany Art & Historical Society and the Home for Aged men, beneficiaries, respectively, under the instrument already named, and another instrument bearing date July 19, 1899.</p> <p>On April 8, 1901, an order was granted by tbe Albany county surrogate admitting tbe instrument of July 6, 1897, and tbe codicil bearing date December 7, 1900, to probate as tbe last will and testament of tbe deceased.</p>

<p>Costs — ON Established Disputed Claim Refereed by Consent to the Subrogate — Code C. P., §§ 1822, 1835, 1836, 2561.</p> <p>Where a, disputed claim against a decedent’s estate is referred by consent to the surrogate and is heard by him upon the judicial settlement, costs to the successful claimant are discretionary, their amount must be within the limits prescribed by Code C. P., § 2561, and should be determined upon the principles which govern the allowance or disallowance of costs in actions at law against such estates.</p> <p>A claimant, not entitled to be cited as heir at law or next of kin, becomes a party to the proceeding by presenting his claim and filing a consent, but, nevertheless, should not be awarded costs against the estate or its administrator where the latter’s resistance of the claim results in the surrogate’s reducing it seventy-five per cent.</p>

<p>Undue Influence — Bequest to a Nurse — Free Access to a Testator by Objectors to the Bequest.</p> <p>Where the wife of an aged paralytic testator, having a very considerable estate, three days before his death notified bis attorney that the testator would like to see him at once, and, on his arrival, left the attorney in the sick room with a nurse whom the testator had long employed, none of the family being present, and the nurse woke the testator up and, he being unable to speak, interpreted for him that he wished to increase a legacy he had made in her favor from $1,000 to $8,000, and the testator assented and carefully read over a codicil, then and there made to that effect, before he signed it, and the attorney testified that he considered the testator of sound mind, the court considered that, in the absence of any other evidence of undue influence, the codicil should stand, as its terms Were not unjust and no-effort was shown to have been made to prevent the persons (the widow and children), who were alleged to have been discriminated against in - and by the codicil, from having free access to the testator.</p>

<p>Teaxsfer Tax — Exemption of a Transitory Deposit of a Non-Resident Decedent — L. 1896, Ch. 908, § 220, Subd. 3, Amd. L. 1897, Ch. 284, § 2.</p> <p>A non-resident of tlie State of New York, who had sold his interest in a foreign railroad company to a syndicate, for fourteen months before his death had on deposit, with a New York depositary of the syndicate stock, about $5,000,000 resulting from the sale of his own stock and this the depositary carried on its books merely as “ deposits in trust ” and was paying him certain interest ’■hereon subject to the proviso that he should not draw more than $100,000 except upon two days’ notice. In the meantime the depositor had been trying to invest the deposit but had failed to do so, both because of his continuous ill health and of the magnitude of the deposit.</p> <p>Held, that the deposit was not “ property within the State,” within the meaning of the Tax Law, as amended in 1897, and therefore was exempt from the transfer tax.</p>

<p>Tkust — Invalid Accumulation — Or Income Not Absolutely Payable to a Minor at Majority — To Pay Mortgages — L. 1896, Ch. 547, §§ 51, 76; 1897, Ch. 417, § 4.</p> <p>Accumulation of the income of a legacy to a minor, where the income is not directed to he paid him at majority, but is required in a certain contingency to be held in trust for him for life and thereafter to be distributed to other persons, is forbidden by statute and the illegal accumulation, when not otherwise disposed of, passes to the parties entitled to the next eventual interest or estate in the fund which produced it.</p> <p>Income of a trust cannot lawfully be directed to be applied to the payment of mortgages on the testator’s realty, as this constitutes an illegal accumulation, which also passes to the owner of the next eventual estate.</p>

<p>Transfer Tax — Fond in Litigation Not Taxable.</p> <p>Where a trust fund, alleged to form a part of the estate of a decedent, is claimed by her husband’s heirs, and proof is made that they intend to litigate their claim up to the court of last resort, no transfer tax can presently be imposed upon the fund nor hereafter unless the estate of the decedent shall succeed in the litigation.</p>

<p>Jurisdiction — Decree on Accounting Opened eor Newly-Discovered Evidence Explaining Why the Funeral Expenses or a Testator were so Large and Why Á Note Due Him Had Not Been Collected — Costs—Code C. P., § 2481, Subd. 6.</p> <p>The surrogate may, in his discretion, open a decree upon the ground of newly-diseovered evidence, but will do so only where the evidence is likely to change the result, is material, is not cumulative and could not have been obtained on the former trial or hearing by the moving party by the exercise of reasonable diligence.</p> <p>Where representatives of a deceased administrator, whose account had been surcharged with funeral expenses deemed excessive by the surrogate, and with the amount of a promissory note due the testator, maturing soon after his death and never enforced nor collected, subsequently offered to produce to the court legal evidence that the intestate himself had selected an elaborate and expensive casket for his burial, had had it reserved for him and was buried in it, and further offered to show by the endorser of the note that both he and the maker were insolvent at its maturity, that certain- other judgments against them, apparently paid by them, were not in fact so paid; and that the endorser had been out of the State of New York for most of the time since the maturity of the note, and the representatives further showed that knowledge of these matters had come to them since the decree and shortly before their application to have it opened, the surrogate opened the decree on payment by them of costs,</p>

<p>1. Sale of Real Estate — When a Petition Need Not Show the Value of Each Parcel.</p> <p>In a proceeding to sell the real estate of a decedent for the payment of his debts, the petition need not state separately the value of each parcel where the parcels lie together.</p> <p>2. Same — Service of Citation.</p> <p>Where parties named in the citation have been served with it, the omission of the Christian names of some of them and the failure to state the individual names of others, who were partners in firms cited, may be cured by amendment.</p> <p>3. Same.</p> <p>Service of the citation upon tenants of the decedent’s real estate, not named in the citation, does not confer jurisdiction of the tenants.</p> <p>■4. Same — Where Parties Die After Citation Issued.</p> <p>Where parties named in a citation die before service of it is made upon them, service of a citation in the same form upon their personal •representatives does not confer jurisdiction of the parties deceased.</p> <p>5. Same — Tehms op Payment.</p> <p>Where the real property of the decedent is subject to a mortgage also covering the property of other persons, a sale, upon the announced terms, that the holder of the mortgage has consented that the purchaser may pay it off and that such payment will be allowed pro tanto in the proceeding as a deduction from the bid, is legal, and a purchaser, who signed the agreement of sale, cannot avoid the sale for such an arrangement as to payment.</p>

<p>1. Transeer Tax — Penalty eor Delay Remitted eor the Time During Which the Fund Has Been in Litigation.</p> <p>A penalty for delay in paying the transfer tax should be remitted for so much of the delay as has been caused by the fact that the fund was in litigation.</p> <p>2. Same — Record Must Show People Have Due Notice.</p> <p>An appraisal is not regular where the record does not show that the proper officers representing the People have had due notice.</p> <p>3. Same — Report.</p> <p>The report of an appraiser must show the grounds of his findings.</p>

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

<p>1. Will — Presumption op Revocation, feom Cancellation op Signa-tube, When Rebutted.</p> <p>In a proceeding to prove the will of a testator, it appeared that two days after his funeral three persons carefully searched every drawer of and every paper and envelope in a roll-top desk, in the office of a corporation, which the testator, in common with other employees of the corporation, used at times, and which at other times was left open and found therein no will, and that three hours later one of these persons, who was also an employee, by accident found in a drawer of the same desk the will in an envelope endorsed with the testator’s initials, with its signature cancelled by vertical marks made by a hand which an expert testified was not that of the testator. The will was in favor of the persons and corporations whom he would have beeii likely to benefit by his will.</p> <p>Held, that the presumption of a revocation of the will, arising from the cancellation of the signature to it, was rebutted by the circumstances.</p> <p>2. Same.</p> <p>That the cancellation must be deemed to have been made by a stranger, and that as there was no proof of authority to him from the testator nor proof of revocation by two witnesses, the cancellation was ineffectual to revoke the will.</p> <p>3. Same — Testator’s Declarations as to His Belief that He Was Testate.</p> <p>Where a will is contested upon the ground that the testator has revoked it in this manner, his declarations, subsequent to its execution, tending to show that he believed himself to be testate down to the day of his death, are inadmissible.</p> <p>4. Same — Admission of Evidence Subject to Motion to Strike Out.</p> <p>In a Surrogate’s Court, the admission of evidence, subject to a motion to' strike it out, and which subsequently is stricken out, is m> more fatal to a defeated party than such a course would be upon an equity trial without a jury.</p>

<p>Judicial Settlement and Distribution — Executors Not Entitled to it Until One Year After Letters — Failure to Cite Necessary Parties — Code C. P., § 2728.</p> <p>Although proof is made that all the legatees under a will have been paid and that a notice to creditors has been duly published, the executors of the will, although one is sole residuary legatee, are not entitled to a voluntary judicial settlement of their accounts and to a decree of distribution where they have neither cited, nor procured waivers of citation, from any of the legatees, heirs at law and next of kin of the testator, shown by the petition for probate to be in existence, and where one year has not elapsed since the issue of letters to themselves.</p> <p>Distinction between executors and administrators, as to permissible time of distribution, considered.</p>

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

<p>1. Undue Influence — Wife’s Solicitations to Her Husband that he Pbovide fob Her by His Will.</p> <p>Ho rule of law precludes the wife of a childless, sick and helpless testator from requesting him to provide for her by his last will, even to the extent of his entire estate, nor from seeking to induce him to do so by argument and reasonable persuasion, and particularly where the testator had lately sustained large losses and in an amount not ascertained by him at the time when he made his last will.</p> <p>2. Same — Wife Preferred to Brother.</p> <p>Although a testator and his wife had had quarrels and once lived apart, yet, where they had become reconciled, the court considered that his leaving her his entire property, to the exclusion of his brother and. family,' for whom he had provided by a former will, did not indicate undue influence upon her part, it appearing that the brothers had seen but little of each other and had parted, some months before the making of the last will, under circumstances likely to cause coolness between them.</p>

<p>CONTRIBUTION-By PARTIES BENEFITED TO PARTIES DISAPPOINTED BY A Wife’s Election to Take Dower.</p> <p>Where a wife’s election to take dower, rather than the provision of a will, makes it necessary to appropriate to the satisfaction of her dower proceeds of the sale of real estate given by the testator to others, the parties benefited should contribute, in proportion to their benefits, to make up the losses of those who have been disappointed by the wife’s election.</p>

<p>Transfer Tax — Res Adjudicata, when Inapplicable — Void Accumulation.</p> <p>A tax appraiser’s omission to tax the life interest of an infant in a trust fund whose income was payable to him “ from the time he attains the age of thirty years during his life and after his death leaving lawful issue him surviving ” the said sum and all accumulations to go to his issue, put upon the ground that the value thereof could not then be ascertained and that the ultimate legatees were indefinite and uncertain, is not an adjudication that the interests of the infant are not taxable at all, but amounts to an express reservation of the matter of taxation; and therefore where he attains majority, has issue, and the, accumulation beyond his minority is declared illegal and he entitled, as the person entitled to the next eventual estate, to the income intermediate his majority and his arrival at the age of thirty years, his interest is taxable.</p>

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

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

Proceedings upon the judicial settlement of the accounts of executors. Catharine Y. S. Van Yleek, mentioned in the opinion, as a claimant, was a sister and legatee of the testatrix, Margaret Kirby, and her claim was mainly for the care and custody of Spencer Kirby, an incompetent, who was also a legatee of the testatrix, as well as a nephew of the claimant. Eran-cis E. Laimbeer made the claim as executor of said claimant. Exceptions to referee’s report.

<p>Trust — Merger in Remainder Under L. 1893, Cix. 452; 1897, Ch. 417, § 3 — Right op Beneficiary of Only One-Half of the Income of a Trust Bund to Have the Entire Corpus Kept Intact.</p> <p>The statutes which authorize a beneficiary of the income of personalty, upon coming into the remainder, to release the income and merge the trust estate in the remainder apply only to a person who is entitled to the income by virtue of the terms of the trust instrument itself and therefore are inapplicable to remaindermen, after a trust created for the equal benefit of two other persons and to last until the death of the survivor, where - the remaindermen have merely been declared entitled, during the life of the survivor, to the undisposed of income of the one who died.</p> <p>Semble, that if the said statutes could in any manner be deemed applicable to such case, the fact that the survivor was entitled to one-half of the income of the entire trust property and could compel execution of the trust, was a property right which could not be taken from the survivor in invitum and which therefore would prevent any release of the corpus without the consent of the survivor.</p>

<p>Eliphalet Wheeler, the testator, died March 15, 1866, leaving a will and three codicils, which were proved in the county of New York. The first codicil contained the following provision:</p> <p>“Third. I direct my said executors to invest out of the proceeds of the sale of my real estate a sum- of money sufficient to produce an annual interest or income of five hundred dollars and apply said interest or income to the use of my daughter Emily A. Spencer so long as she shall remain sole and unmarried, and upon her marriage or decease to pay and divide the said principal sum equally to and among my said daughters that shall then be living, and the issue of such of my said daughters as may have then died leaving issue, such issue to take the share their parent ivould have taken if living.”</p> <p>A fund of $10,000 was set apart by the executors, and the $500 annuity paid to Emily A. Spencer, the beneficiary, until her death, March 22, 1900. She left no issue. On the 29th of March, 1901, the present trustee was appointed for the purpose of completing the administration of the trust and distributing, the trust fund. No' objections to the account were presented, and the only question to be determined is the meaning of the word “ issue ” in the above-quoted paragraph. At the time of the testator’s death, he had eight daughters. A ninth daughter, Mrs. Sullivant, had died before him, leaving two children, who still survive. Of the other seven daughters', only two survived Mrs. Spencer, namely, Mrs. Tost and Mrs. Wells. Eive daughters had died, and their stocks are represented by children, grandchildren and great-grandchildren. In addition, there are various grandchildren and great-grandchildren whose parents are living. In all, there are about seventy-six descendants of the testator’s nine daughters. The trustee’s contention was that the eight daughters! who survived the testator and their issue are the only persons entitled to share in the distribution, qnd that the word “ issue,” as used in the first codicil, is limited to children living at Mrs. Spencer’s death, of the five daughters who died before her, and that upon this theory the fund should be divided into sixths and distributed, one-sixth, to the assignee of Mrs. Yost; one-sixth to Mrs. Wells; one-sixth to the assignee of the children of Mrs. Sutton; one-sixth to the surviving children of Mrs. Carpenter; one-sixth to the surviving child, Mrs. Middleton. Clarence B. Caldwell, an infant, is the great-great-grandson of testator. He is the only child of his mother, Edith S. Caldwell, deceased, great-granddaughter of testator, who was one of the children of Caroline E. Sullivant, deceased (granddaughter of the testator), who was one of the children of Ann Louisa Sutton, deceased (a daughter of the testator), and the only surviving issue of the stock of his mother, who is deceased, and, by his special guardian, claims to be entitled to a distributive share of the fund, as “ issue ” of the testator.</p>

<p>Will — Specific Legacy — A Piano is “Household Furniture" Within Code C. P., § 2713, Subd. 4 — Implied Election of Widow as to Heb Legal Rights.</p> <p>A piano is “ household furniture ” within Code C. P., § 2713, subd. 4, relating to the exemption created for the widow and children of a decedent.</p> <p>Where a husband devises and bequeaths to his widow for life all his property except his piano, and specifically bequeaths it to his granddaughter, and the appraisers neglect to make any provision for the widow under Code C. P., § 2713, subd. 5, and there is no statement in the will that the provisions for her are in lieu of dower, and she accepts them without protest for many years, the granddaughter is entitled to the piano, and the widow must he deemed to have elected to have accepted the provisions of the will in lieu of all her statutory rights, and this because the effect of her now claiming the piano would he to disappoint the will in a particular material to the testator.</p>

<p>Judicial Settlement — Teust in Personalty — Merger in Remainder Under L. 1897, Ch. 417, § 3.</p> <p>A beneficiary of tbe income of a testamentary trust in personalty, enduring for his life or a shorter term in the discretion of the trustee, and entitled to the undisposed remainder as the only next of kin of the testator, has an absolute right under L. 1897, ch. 417, § 3, to determine the trust, and obtain possession of the corpus, by releasing his interest in the income, and the court has no discretion in the matter.</p>

<p>Proceedings upon tbe report of an appraiser.</p>

<p>SURROGATE — His Jurisdiction to Probate a Destroyed Will — Code C. P., §§ 1865, 2621.</p> <p>A surrogate cannot admit a destroyed will to probate unless the will was in existence at the testator’s death or was fraudulently destroyed in his lifetime, and, hence, an accidental destruction of the will without his knowledge or consent while he was living and the will was in the care of a custodian is not enough to confer jurisdiction.</p>

<p>Statute of Distributions — Construction of Code C. P., § 2732, Subd. 12, as Amd. in 1898.</p> <p>The only purpose of the amendment, made in 1898 to Code C. P., § 2732, subd. 12, admitting, in personalty, representations among col-laterals as in real estate, was to remove the former restriction for- . bidding representation after brothers anl sisters’ children; and it is still the law that, where the intestate leaves no- widow, child, descends ant, father, mother, brother or sister, the next of kin of equal degree and the legal representatives of the deceased next of kin of that degree, without the former limitation, take the entire personal estate.</p>

<p>1. Will — Testamentary Capacity — Proof op Foreign- Will op Personalty, Under Code C. P., § 2611.</p> <p>Where a foreign holographic will relating to personalty and without witnesses was attacked for lack of testamentary capacity in that the testator then had a progressive disease accompanied by paralysis of the speech and of the limbs, tremulousness of the hands and a gradual weakening of the powers, the surrogate considered it an important circumstance, in favor of the will, that it was intelligently constructed and that its handwriting did not exhibit much tremor or physical decay.</p> <p>2. Same — Residence Distinguished prom Citizenship.</p> <p>Evidence deemed sufficient to show that the testator was “not a resident of the State ” within Code C. P., § 2611, although a citizen thereof; that he was a resident of Fontainebleau, France; that his will was executed “ according to the laws of the testator’s residence,” and was therefore entitled to probate in the State of New York.</p> <p>3. Same — Bequest to Mistress.</p> <p>A will making his mistress of seven years’ standing “universal legatee,” reduced as to benefit by the Civil Code of France in view of his leaving three legitimate children to one-quarter of the estate, supported as a reasonable provision for the mistress.</p>

Dr. John P. Sharer of Little Ealls, died in that city on the 8th day of January, 1899, leaving a last will and testament by which after devising certain real estate situated in Illinois to a sister he disposed of his entire estate to Margaret Caldwell, the sister of his deceased wife, which will was made in 1894.

<p>Appeal from order assessing transfer tax.</p>

<p>Proceedings upon the judicial settlement of tbe accounts of an executor.</p>

<p>ADMINISTRATOR — APPOINTMENT OP A FRIEND, TO SUE UNDER CODE C. P., § 1902, Those Entitled Being in Italy.</p> <p>Where it was desired to bring an action under Code C. P., § 1902-, for causing the death of the decedent by negligence, and it appeared that his widow and his children, his next of kin, were all in Italy, and the latter minors, the court granted administration to a person described in the petition therefor as the nearest friend of the decedent.</p>

<p>Proceedings upon the judicial settlement of the accounts of an executor.</p>

<p>Appeal by the life tenant from the report of au appraiser.</p>

<p>Proceeding upon tbe probate of a will.</p>

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

<p>Contempt — Client, when Not Bound by Attorney’s — Decree Against Executor Personally por Costs, How Enforcible — Demand of Executor.</p> <p>The implied authority of an attorney is insufficient to permit him to bind his client, an executor, for his own criminal contempt in procuring a surrogate’s decree against the executor to be satisfied of record when the attorney knew that it remained unsatisfied in part, unless the client was actually privy to the contempt.</p> <p>So much of a surrogate’s decree against an executor as charges him personally with costs is a money judgment and enforcible by execution only.</p> <p>Foundation for a proceeding to punish an executor as for a contempt in willfully failing to pay the balance due upon the decree is, therefore, not laid by a single demand upon him for that sum and the costs also.</p>

<p>Transfer Tax — Valuation of Shakes in Kemainder where the Fixed INCOME OF THE LIFE BENEFICIARY HAS NECESSARILY ENCROACHED Upon the Corpus.</p> <p>Where a testator dies in 1889, wills his wife a fixed income for life, payable out of his residuary estate, gives the trustees thereof power to use the principal to make the income up to the amount fixed, and they necessarily invade the principal until her death eleven years later, the shares of the remaindermen, now for the first time vesting in enjoyment and fixed by a decree upon the trustee’s accounting, are to be appraised at their amounts as shown in the decree, and a computation of their value, reached by taking the value of the testator’s estate at the time of his death and deducting therefrom the theoretically probable, and not the actual, duration of the wife’s life estate, is erroneous and unjust.</p>

<p>Trust Legacy — To a Debtor of the Donor — Intention.</p> <p>Where a mother, whose son is indebted to her, creates a testamentary trust for him for life, which she thereby declares shall not be' subject in any degree to the intervention of any creditor of his and which she thereby states is intended to secure him the ineome of the principal for life and put it beyond the reach or control of all and every creditor of his, her executor cannot reach the income of the trust and have it applied to the debt, which the son owed the mother, as it was her evident intention that he should receive the whole income for life.</p>

<p>Proceedings to compel the executor of a deceased guardian of property to render an account of the acts and doings of the decedent.</p>

<p>Savings Bank Deposit — Gift—Joint Tenancy — Pkesuhption op Trust Rebutted.</p> <p>Where a mother has given her only daughter, and subsequent ad-ministratrix, an order directing a savings bank to pay the daughter the mother’s deposit, the fact that after the mother’s death the daughter drew the deposit out of the hank as administratrix, without producing the order or mentioning the gift, does not make her chargeable with the moneys as belonging to the estate of the mother, and particularly where the mother stated, on her death bed, to disinterested witnesses, that she had no property, but had given everything to her daughter.</p> <p>Where a daughter deposits her own money in a savings bank in the joint names of herself and her mother, she is, after the death of her mother, entitled to the deposit as survivor of a joint tenancy.</p> <p>The deposit of money in a savings bank in trust for another raises a presumption that the depositor has vested the title in the beneficiary, bu't where the proof shows that the depositor deposited her own money, retained the bank books, did not intend to give the apparent beneficiary the fund, and deposited the money in this manner for her own convenience, the presumption of a trust is rebutted,</p>

<p>Proceedings upon the judicial settlement of the accounts of an executor.</p>

<p>Tbtjst — Must be Measuked by Lives — Void Legacy.</p> <p>A trust requiring executors to continue tlieir testator’s manufacturing business until a sale of his real estate, located at a certain place, has been “ effected satisfactorily ” to them is void as being for a period not measured by lives but by the discretion of persons who cannot be coerced to act within any period measured by lives.</p> <p>Legacies out of the corpus, to vest only when the sale has been made, are also void as their vesting is to be determined by a contingency which may not happen within any two designated lives.</p>

<p>Transfer Tax — Deduction or Debts when Precluded by Failure to Appeal prom the Order Fixing the Tax — Jurisdiction or the Surrogate.</p> <p>Where, at a transfer tax appraisal, alleged deductible debts of a decedent have not been urged before the appraiser nor reserved for future action, as they may be in a proper case, and the time for an appeal from the order fixing the tax has expired, the surrogate is without jurisdiction to grant any relief in regard to said debts.</p>

<p>Appeal by tbe comptroller from an order assessing tbe transfer tax.</p>

<p>Proceedings upon the judicial settlement of the accounts of an executor. Motion to confirm referee’s report made upon a hearing of objections to final accounts.</p>

<p>Will — Execution.</p> <p>Where parts oí a will are written on the first and third pages of a printed blank of four pages, while the signature of the testator and the attestation clause are on the second page, and the scrivener has made no attempt to make the third page a part of the will, there has been no compliance with the statute (2 E. S., m. p. 61, 63, § 40, suhd. 1) requiring a will to "he subscribed by the testator at the end of the will.”</p>

Proceeding upon the judicial settlement of the accounts of an administrator. Motion to confirm the report of a referee on a hearing had on objections to the account of the administrator.

<p>Trust — Accumulation of rents and profits during minorities — Support OF INFANT BENEFICIARIES NOT PROVIDED FOR-SUSPENSION OF POWER OF ALIENATION — 'VESTING-PROVISION AS TO SURVIVORSHIP ON FAILURE TO REACH MAJORITY.</p> <p>By the fifth clause of his will a testator bequeathed all his residuary estate to trustees with directions to them to manage, invest and reinvest it for the use and benefit of his grandchildren until they severally became twenty-one, directed that the whole fund he equally divided and paid over to them as they severally became twenty-one, and further provided that if either died before that age the whole fund should go to and belong to those who attained that age. Three infant grandchildren survived the testator.</p> <p>Upon a construction of his will by the Surrogate,</p> <p>Held, that the testator intended an accumulation of rents and profits for only such of his grandchildren as were in being at his decease and did not contemplate an invalid accumulation — for after-born grandchildren, beginning at his decease and before their birth.</p> <p>That the fact, that the trust did not authorize the trustees to apply any part of the income or of the corpus to the support of the infants, was not material as a court of equity could make them a proper allowance and the statutes provided for such an emergency.</p> <p>That the power of alienation was not improperly suspended as the whole estate vested at the testator’s death in the three grandchildren as tenants in common, the .trustees taking no title except such as was necessary to control, management, investment and reinvestment.</p> <p>That the will contained a present gift to the grandchildren and not a mere direction to- divide and distribute at a future time.</p> <p>That the validity of -the provision as to survivorship need not be passed upon, the contingency not having occurred, but that the fifth clause was not invalidated thereby as the share of a grandchild dying before the age of twenty-one would go to the person presumptively entitled to the next eventual estate.</p>

<p>Legacy — Vesting Fails Where Futurity is Annexed to the Gift— The Blood Preferred to Strangers, in Construing a Will.</p> <p>The fifth clause of the will of a testator, after creating a trust for his son, who died, after him without ever having had issue and whose wife died before the husband, gave $2,000 to “ the wife of my said son ” in case he died without issue or descendants. The eighth clause directed that, if the son died without issue or descendants, the residuary estate, “ after payment therefrom of said legacy to his wife, if then living,” should go to collaterals. The will nowhere mentioned the wife’s name.</p> <p>Held, that the legacy never vested in the son’s wife and therefore her administrator was not entitled to it as against the remaindermen.</p> <p>That where a clause in a well was susceptible of two interpretations that one should be adopted which preferred persons of the blood to strangers.</p>

<p>JURISDICTION AS TO RIVAL CLAIMS TO A LEGACY.</p> <p>The Surrogate’s Court has no power or jurisdiction to decide, upon a judicial settlement, in regard to rival claims to a legacy, made respectively by the legatee, by virtue of the will, and parties claiming under an assignment of the legacy made to them by the legatee and apparently valid on its face.</p>

<p>ApplioatioN to issue an execution as a foundation for a creditor’s suit, to reach property alleged to bave been fraudulently transferred, and it is not alleged that there are assets now in tbe bands of the administrator.</p>

ApplicatioN by an executor for the issuance of a citation requiring the parties interested to attend! the final judicial settlement of his accounts within one year from the date of letters, basing his application upon subdivision 2 of section 2728, Code of Civil Procedure, proof being made of hie compliance with the requirements of that subdivision, as to publication of notice to present claims.

<p>MotioN to vacate an order of this court, dated October 21, 1901, to set aside the report of a referee and refer the accounts to another referee.</p>

<p>Executor — Removae.</p> <p>A Surrogate will remove an executor where his constant dissensions with his co-executor as well as his failure to do his part in the management of the estate indicate that his continuance in office will prejudice the best interests of the trust.</p>

<p>PROCEEDINGS upon the probate of a will.</p>

<p>Objections -by; creditor to tbe settlement of the account of executors.</p>

<p>Transfer Tax — Bonds of Non-Resident When Exempt.</p> <p>Bonds, securing mortgages on real property in Kings county in' the State of New York, which a resident of New Jersey kept at her residence until her death there, are not subject to the transfer tax as not only the legal situs of the indebtedness, but also the actual situs of the bonds was in New Jersey when she died.</p>

<p>Motion to set aside an order made by a referee herein, adjudging that a witness was guilty of contempt, and punishing him accordingly.</p>

MotioN to punish for contempt an executor for refusing to obey an order of tbis court, dated December 4, 1901, requiring him to file an account of bis proceedings as such executor.

<p>Proceedings upon tbe judicial settlement of the- account of an executrix. Construction of a will.</p>

Application of administrator for an order requiring and commanding a tenant to forthwith quit certain premises of the estate and to deliver possession to the administrator.

Proceedings on judicial settlement of the accounts of an administrator. Stephen W. Davis died intestate, March 23, 1901. His next of kin were William W. Davis and Nathan E. Davis, sons, and Sarah E. Hotchkiss, a daughter. The sons were appointed administrators April 12, 1901. Nathan E. Davis was indebted to the decedent on two bonds secured by mortgages, the principal of which aggregated $1,800, together with certain interest. Both bonds were past due.

<p>Proceeding to prove a will.</p>

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

<p>Will — Testamentary Capacity — Bequest to Paramour, to the Exclusion op Relatives.</p> <p>Although a testatrix had been confined in insane asylums at various times between 1888 and 1890 and from 1898 to her death in 1900, and had led a dissipated life from 1890 to 1898, the court admitted to probate a will made by her in 1897 upon proof being made that she was then competent to execute it and that there had been considerable intervals when she was competent to manage her own business.</p> <p>The court refused to reject the will merely because the principal beneficiary was her paramour, it appearing that the testatrix had upon her own application been judicially separated from her husband in 1892 and that her will gave her reasons for excluding her relatives from benefit.</p>

Appeal by William E. Brown, individually and as executor of the last will and testament of Amelia N. Babcock, deceased, from the assessment made and filed herein, and also from the order and decree of the surrogate of the county of Delaware, confirming the appraisement and fixing a transfer tax upon the property bequeathed and devised by the testatrix contingently to strangers or collateral relatives of the husband of the deceased.

<p>Tísanseer Tax — Trust Instrument Held to Amount to a Gift in Contemplation of Death — Instruments When Read Together.</p> <p>Where a testator eight years before his death transferred in writing to a woman, whom he subsequently married, certain stock nominally as a provision for her benefit and she on the next day by an agreement, executed by both upon the consideration of intended intermarriage, transferred the same stock to him upon the trust, that he migiit invest and reinvest it subject to her approval, that both should enjoy the income during their joint lives, that the trust should end upon the death of either and that the survivor should take absolutely, the court considered that both instruments must be read together as executed practically in the same transaction, that together they constituted a gift made in contemplation of the death of the testator, that the stock was taxable on its transfer to his widow, and that the fact that he had recited in his will that he held the stock in trust for her, that he reaffirmed the original transfer to her and gave her any interest he might have in the stock, or in the money as. invested, could not affect the ruling.</p>

<p>Proceedings upon the judicial settlement of the account of an executor.</p>

<p>EVIDENCE — PRESUMPTION OE DEATH WHERE ABSENCE IS UNEXPLAINED.</p> <p>Where a public administrator presents his accounts as administrator of a deceased person who disappeared in 1873 in a manner unexplained there is no presumption that he died until seven years after his disappearance and therefore the representatives of a married sister, who died in 1876 without issue and whose husband subsequently died, can take no interest in the estate of the person who disappeared as against a sole surviving brother and next of kin.</p>

Proceedings upon the settlement of the accounts of executors. Motion by one of the next of kin for the appointment of an administrator of the unbequeathed residuum.

<p>Administrator — Liability ox Sale of a Business — Profits—Burden of Proof — Vouchers—Admissions of One Since Deceased as Res Gestae.</p> <p>Where an administratrix (since deceased) permits the saloon of her intestate, its good will and fixtures to pass into the control of her husband, she, or her estate, is chargeable as against the next of kin with its value and interest, and with the profits of the saloon if it was thereafter conducted in her interest.</p> <p>She is not chargeable with proceeds of the Saloon which she never received or controlled nor with the gross receipts, as she must be allowed the necessary expense of conducting it.</p> <p>The actual or probable expense must be shown by those objecting to her account, as the burden is upon them to prove what the profits were.</p> <p>The rule requiring an administratrix to produce vouchers has no application to moneys which were never moneys of the estate of her intestate.</p> <p>Her declarations that she had sold the saloon to her husband are admissible after her death as res gestae characterizing the possession of her husband, in so far as they are against her own interest and do not refer to any act of her intestate.</p>

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

<p>Proceedings upon the judicial settlement of the account of an executor.</p>

<p>Appeal bj the State Comptroller from the report of the transfer tax appraiser and order entered thereon.</p>

<p>ADMINISTRATION-PREFERENCE OF A JUDGMENT FOE COSTS RECOVERED Against a Pi.atntiff-Administbatbix — Leave to Issue Execution.</p> <p>A judgment for costs, recovered against an administratrix in an unsuccessful action brought by her in her representative capacity against a person to recover of him a debt which she believed to have been due her intestate in his lifetime, is entitled to a preference over debts due general creditors of the intestate as it is to be regarded as an expense of administration.</p> <p>The surrogate therefore granted the judgment creditor leave to issue execution against the administratrix in her representative cacapity for his pro rata share of the assets applicable to preferred claims and found to be or to have been in her hands.</p> <p>Such a judgment is not a “ debt ” of the intestate nor is tlie judgment creditor a “ creditor ” of the estate, within Code C. P. §§ 2719 and 2722.</p>

<p>Guardian and Waed — Prohibited Investments — Commissions—Legal. Expenses — Costs Against Guardian.</p> <p>A general guardian cannot invest his ward’s personalty in realty without first obtaining authority to do so from the Supreme Court nor can he invest in bank stock or in a bond of a foreign corporation.</p> <p>Annual rests cannot be taken in his account for the purpose of allowing him commissions at full rates upon the balance then found, nor can he have commissions on the principal of reinvestments.</p> <p>He cannot charge the fund with legal expenses incurred in his attempt to get himself discharged as guardian before his ward had' reached majority.</p> <p>He may employ an attorney to prepare his final account.</p> <p>He will be charged with costs personally where his account embodied improper items and the ward was obliged to file objections to it in order to protect his rights.</p>

<p>ThaNsfer Tax — Brooklyn Y. M. 0. A. Not Exempt as a Religious CorPORATION.</p> <p>The Brooklyn Y. M. 0. A., incorporated under a special act primarily “ for the improvement of the moral and spiritual condition of the young men of Brooklyn by means always appropriate to and in unison with the spirit of the Gospel; and secondarily, the improvement of their intellectual, physical and social condition by the same means,” is not a religious corporation within the meaning of the Transfer Tax Law (L. 1896, eh. 908, § 221), as the primary purpose of its organization was not to exercise ecclesiastical control over its members under some distinct forms of worship and discipline.</p> <p>The mere fact that a corporation has been formed for a worthy object, incidentally involving some religious exercises, cannot secure it exemption from the transfer tax as being a religious corporation.</p>

<p>Proceedings upon the judicial settlement of the account of an executrix.</p>

<p>Application by a general guardian for letters of administration.</p>

<p>TraNseeb Tax — Rehearing, When Refused the State Comptroller.</p> <p>A rehearing of an appraisal for the transfer tax will not be granted the State Comptroller upon his contention that stocks, of the estate, having no market or quoted value have been appraised too low unless he produces some definite evidence tending to show that the proof on a rehearing will increase the valuation shown upon the first hearing.</p>

Application by a brother of deceased, residing in this country, praying that letters issued to the public administrator herein be revoked, and that letters of administration be issued to him as a blood relative of deceased.

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

<p>Benefit Society — Action of Member, Making the Benefit Applicable to Her Own Debts After Her Death.</p> <p>Where the Supreme Court had decided, in an action between the administrators with the will annexed of a member and a fraternal benefit order whose primary purpose was to aid members, that the member had in her lifetime and after the death of her husband, the original beneficiary, effectually directed her benefit certificate to be paid to her “estate,” where her will directed that her debts be paid out of this fund, and where she died insolvent and without descendants or any persons dependent upon her for support, the surrogate considered, upon a distribution of the fund by her administrators, that it should be applied to her debts, and held that certain provisions of the by-laws of the order entitling heirs to take the fund in case the member, after the death of a beneficiary, made no further disposition of the fund, before her own death, were inapplicable.</p>

<p>Sale of Decedent’s Real Estate to Pat Debts — Fund Applicable to What Debts — Code O. P. §§ 2756, 2757, 2793, subd. 6.</p> <p>Upon a, distribution of tbe proceeds of the sale of an intestate decedent’s real estate made to pay his debts a creditor of his, who recovered judgment against the administrator after a trial before a referee, but without costs, is entitled to be paid the face of his judgment, but not referee’s fees or disbursements which he has paid or incurred.</p> <p>Where there is no personalty the administrator is not entitled to be paid, under Code C. P., § 2793, subd. 6, out of the fund resulting from a sale of the real estate, legal expenses which he himself contracted in regard to the estate' as the fund is applicable only to the amount found due the administrator for his payments for the debts and funeral expenses of the decedent.</p>