Volume 3 — Bradford's Surrogate Reports

This was a trial of the right of property under theStat. Jan. 21,1839, before Wm. Griffy, Justice of the Peace, in which Hclmich was claimant against Johnson. The jury in the Justice’s court found for the plaintiff', the Justice granted a new trial, and the case was brought up to the District Court by certiorari. In the District Court the cause was dismissed without a hearing, and was from that court removed to the Supreme Court by writ of error.

<p>The intestate was a feme covert, married before the passage of the act “ for the more effectual protection of the property of married women.” After that act took effect, she acquired leasehold premises, and executed a mortgage thereon to secure the payment of one thousand dollars. She died, and then her husband died also, and his administrators disputing the validity of the mortgage, it was held, valid.</p> <p>Marriage, though a civil contract, is also a civil institution under the regulation and control of the State. Tested rights in the property of the wife already acquired under the law regulating the marriage contract, cannot be disturbed by legislative authority, but it is competent for the legislature to modify the incidents of the marriage relation in respect to property to be acquired after the change of the law.</p> <p>Marriage is not in all respects and as to all incidents and regulations existing by law at the time of celebration, such a contract in the strict sense of the term as to embrace and continue for a law between the parties, all those incidents and regulations, notwithstanding subsequent legislative modification.</p> <p>By the laws and usage of this State, the wife can convey without her husband joining with her in the conveyance.</p> <p>If the wife acquire property in her own name with the assent and cognizance of her husband, her right and title will be upheld, unless the claims of creditors are in question.</p>

This was an action commenced before a Justice of the Peace, by Levi vs. McCraney, on a promissory note. On the trial before the Justice, a jury was summoned, and a verdict was rendered for the plaintiff for the amount of the note, interest and cost — and judgment accordingly. From this judgment the defendant appealed to the District Court.

This was an action of covenant brought in the District Court by Clark vs. Meldrum; the declaration being as follows: Iowa Territory, Des Moines County, ss. District Court, September Term, 1839, James Clark, plaintiff, by his attorneys, D. Rorer and W. Henry Starr, complains of John Meldrum, defendant, of a plea of covenant broken.

<p>Executors having sold land under a power, and the deed, reciting the lien of a previously existing mortgage, failed to say whether the amount of the mortgage was allowed as part of the consideration or was in addition thereto, held that the executors might prove by parol the value of the property, and the sum which had really been received by them.</p> <p>In adjusting the accounts of executors the Surrogate’s Court is governed by principles of equity, as well as of law, and it is at all times competent for the executor, unimpeded by technical rules, to show the fairness of his dealings, the real nature of his transactions, and the amount for which he should be held liable.</p>

Action of debt commenced by defendants in error vs. plaintiffs in error. Plea non est factum.

<p>The testator having determined to modify a previous will, and the instrument prepared conformably to his instructions having been placed before him for execution, in the presence of two witnesses attending at his request, he signed it at the foot, and was seized with death as he was in the act of signing in the margin,—Held that the provision of the statute requiring the attestation of the subscribing witnesses had not been complied with, and that the instrument was not valid as a last will and testament, not being complete at the testator’s decease.</p> <p>The testator being still occupied in authenticating the instrument at the moment of the attack, held, under the circumstances, there was no testamentary declaration or rogation of the witnesses.</p> <p>A will must be perfect at the testator's decease, and if not then a perfect instrument, it cannot take effect. There is no will until all the statutory ceremonies are completed. The mere intention to have them performed is not sufficient, but the intention must be effectuated in fact. The act of the witnesses is just as essential as the act of the testator. The request to the persons summoned as witnesses is revocatory till acted on. Death revokes it. At the time the witnesses sign, they must sign under a present existing request, and when death intervenes before their signature has been accomplished, they cannot sign after the testator’s decease so as to give effect to the instrument. Whether one dies intestate or testate, is immutably fixed at the instant of death.</p>

This was an action of assumpsit, containing several counts, one of which was on a promissory note, brought fey R. & O. Mathews vs. Hudson. There was judgment below for the plaintiffs, and thereupon Hudson brought the case to this court by writ of error, and assigned as errors therein— First.

This was an action of covenant broken brought on an agreement for ■the sale of a claim on the public lands of the United States.

This suit was brought by attachment against Wilkie and Tullar who Were non residents. The summons was issued and returned to the February Term, A. D. 1840, “not found” as to both defendants. Property was attached and publication made requiring the defendants to appear and plead at the next term or judgment would be entered up against them. Before the next regular term a special term was appointed and held in May .of the same spring.

Action of forcible detainer. The defendant pleads not guilty and justifies his detainer by a title of occupancy.

<p>A general clause of survivorship may be limited by the context so as to apply solely to the time of distribution. This construction prevails when the survivorship is attached to the “ shares” “ coming” on the division of the estate.</p> <p>Where the will gave a mere power of sale until the youngest child arrived at age, but after that event directed a sale—Held that until the power was executed, or until the contingency happened on which the direction to sell was dependent, the Surrogate had no jurisdiction as to the real estate.</p>

This was an action of assumpsit brought in the name and style of JE. A. Johnson Co., plaintiffs', for goods, wares and merchandize. General issue; and joined. In this stage of the feuit it was removed to this court by agreement of parties, for a determination of the following points: Are the plaintiffs entitled to maintain this suit in the name of their mercantile firm?

<p>A testamentary declaration may be proved, although the testatum clause does not recite one to have been made. The statute does not require an attestation clause, and the only question on the probate, as to the form of execution, is, whether in fact all the proper ceremonies were performed.</p> <p>It is sufficient that the testamentary declaration be made at the time, or on the occasion of signing the will, and as part of the ceremony. It is good, though made just before the testator subscribed.</p> <p>Where the decedent was 89 years old, and though of undoubted capacity, made a will at his son’s residence, the instrument was in the handwriting of the son, and was executed without the knowledge of his daughter, his only other child—Held, that the son having acted as his agent, and taking the largest share of the estate under the will, it was proper to call for further proof of a recognition of the will by the decedent; and such proof having been afforded, the will was pronounced for.</p> <p>The testator having desired to make a codicil to his will, in order to enlarge the provisions in favor of his daughter, and his son, who took the chief share under the will, and who had the custody of that instrument, having refused to produce the will at the request of the testator, for the purpose of alteration—Held, that the will was not thereby rendered invalid.</p> <p>The prevention of the execution of a codicil by improper means cannot operate to invalidate the will. A will can be revoked only in the manner and form prescribed by the Revised Statutes.</p>

This was an action of debt on bond executed by. Davis to John, and Raohel Morford, now Rachel Stephen, one of the defendants. The “judgment was “that the plaintiffs have and recover of the defendant “ the sum of one hundred and sixty-three dollars and twenty-five cents “ their damages aforesaid in form aforesaid.assessed, &c. Thereupon Davis brought the case up to this court on the following assignment of errors. First.

Action of assumpsit on promissory note brought by Wright in the District Court for Muscatine county. Judgment for the plaintiff. The errors assigned are First. That the writ in the above case is entitled of and summons the defendant therein to appear in the District Court for Muscatine county and answer unto the plaintiff there, whilst the only declaration in the same ease is entitled of Johnson county and is sued in and for said county of Johnson. Second.

This was assumpsit brought by Chamberlain against Hardman on a promissory note payable to Richard Ransford or order, and by him assigned to Chamberlain. The plaintiff on the trial offered to read to the jury the assignment endorsed on the note, to which the defendant by counsel objected, and the objection was overruled by the court, and the assignment was read to the jury.

Action of assumpsit brought by Brady et al. vs. Davis; plea, general issue; and afterward judgment was taken against Davis by default. The assignment of errors sets forth four causes, to wit: First. It appears by the record that the defendant in the court below made an appearance by plea of non assumpsit before default; and judgment is taken as by default without first disposing of the plea of non assumpsit. Second.

This was an action of covenant, brought by Lathrap against Chambers, to which there was a general demurrer and judgment thereon for the plaintiff. And the.case was brought up here on the following assignment of errors: First. That the court erred in not sustaining the demurrer. Second. That the court.entered judgment on the demurrer, and assessed the- damages without the intervention of a jury.

This was an action of debt on a promissory note. Judgment was rendered by default and it was referred to the clerk to assess the damages for the plaintiff. The case comes here on the following assignment of errors: First. The sheriff’s return does not show that the process was served ten days before the first day of the term at which judgment was given. Second.

This was a bill in equity brought in the District Court for a new trial at law. The bill stated that Moffatt had brought his action of covenant in the court of law against the complainants in the-bill, who are the appellants in this court, and that the complainants not attending court and having no attorney present, the said Moffatt caused their default to be entered, in vacation, on the clerk’s docket, and recovered judgment thereon at the subsequent term.

<p>A bequest to a legatee “ and his legal representatives” contains only words of limitation, and not of succession or substitution, and accordingly vests the absolute interest in the donee, which, on his decease before coming into possession, passes to his executor or administrator.</p> <p>The term “ legal representatives” is sometimes construed as signifying “ next of kin,” when it is evident that substitution was contemplated; or where the first taker had only a life estate or qualified interest.</p> <p>In the interpretation of a will it is proper to adhere to the general intent, so far as possible.</p> <p>A bequest to the testator’s sons “ and the legal representatives of such of them as shall be living at the time when such distribution ought to be made, share and share alike—the legal representatives or children to receive such part only, as the parent would have been entitled to receive if living at the time when such distribution should have been made,”—Held, to intend a substitution in favor of children only, and not the next of kin—the words “ children” and “ parent” being correlative terms, and “ children” being used convertibly for “ legal representatives.” And one of the sons having died without issue, held, that his share had lapsed.</p>

Tins was an appeal from a justice’s court and was brought into this court by two bills of exceptions which are sufficiently referred to in the opinion of the court. The case was submitted without argument.

This was an action of trespass on the case for slander. The declaration alleged that the defendant had uttered the following scandalous and opprobrious words of and to the plaintiff, to wit: “ You are a dirty, trifling, thieving puppy; you will steal, and the whole set of you,” (meaning the said plaintiff and his family relations.) The second count charges the first part of the same words. The third charges the same as the first.

<p>Contracts outstanding at the death of the intestate, for the improvement of real estate by the erection of tenements, and only partially fulfilled, are a charge on the personal estate, in the first instance. The contractor has a right of action against the administrator of the deceased party; and although the law may give him a lien on the land, still, as between the heirs and the next of kin, the personal estate is the fund primarily to bo charged.</p>

<p>P. T. having purchased three lots of ground, and the deed being taken in the name of his brother, E. T., the latter subsequently sold two of the lots, deposited part of the proceeds in the Savings Bank, and invested the remainder on bond and mortgage. E. T. then left New York, and never having been heard from, his brother P. T. administered, and claimed the funds so invested and deposited, as his own .Although by our statute there is no resulting use or trust where a grant is made to one person upon a consideration paid by another, yet the payment forms a good moral consideration for a parol agreement to account for the proceeds; and when the grantee, after a sale, has made a parol declaration of trust as to the proceeds, the trust will be sustained in equity.</p>

<p>The testator left his children legacies of $5000 each, some absolutely and some in trust, and after directing the investment of one-third of the proceeds of his real and personal estate for the use of his wife during life, disposed of the residue as follows: “ I give, devise, and bequeath all the rest, residue and remainder of my estate to my children by my present wife Phebe, together with the share of my estate set apart for my said wife during her natural life, upon her decease, equally to be divided among them.” Held, that J. S., one of the said children, was equally entitled to share in the residue with the others, notwithstanding his legacy of $5000 was placed in trust during his life, and by a codicil was directed, on his desease without issue, to fall into the residue.</p> <p>A bequest for life in trust is not repugnant to another or further bequest absolutely. A gift in remainder to a life-tenant of a share in a fund in which he has a life interest, is not so contradictory and incongruous as to be incapable of being carried out. A certain and definite gift is not rendered nugatory by a subsequent provision of uncertain signification. It is a settled principle of construction not to disturb a prior gift any further than is absolutely necessary to give effect to a posterior qualifying disposition. A legacy may be made payable after the legatee’s death. Effect should be given fl to every part of a will, and no portion is to be disregarded, unless entirely ¡1 repugnant to another portion. The intention is to be gathered from the entire instrument, and if several clauses can be harmonized, none of them will be rejected. Where the terms of a will are not ambiguous, resort cannot be had to extrinsic evidence. Such evidence may be received to determine whether the words of the will, with reference to the facts, admit of their being construed in a primary sense; but that being determined, and no ambiguity existing, the court cannot speculate about the testator’s intention, in opposition to his will, as written.</p> <p>The construction of wills is not affected by punctuation. The gift of a remainder “ upon” the decease of the life tenant is not conditional but vested, and does not therefore lapse by the death of the legatee before the contingency has occurred.</p>

<p>The decedent being ill was asked by L. what he intended to do with bis money, and replied he would leave a certain sum to his sister. L. withdrew from the room, wrote a short will, signed the decedent’s name, and together with C., signed the paper as witness, returned and read it aloud to the decedent, who thereupon signed his name. The whole paper was read, inclusive of the names of the attesting witnesses, and both the reading and the signature by the decedent were in the presence of the witnesses—Held, that the instrument was validly executed as a last will and testament.</p> <p>The witnesses may he said to have signed at the decedent’s request, when their names having been read over to him and seen by him, he signed the document. The reading aloud followed by the act of signature, constituted a testamentary declaration.</p> <p>The particular order of the several requisites to the valid execution of a testament is not at all material, provided they be done at the same time and as part of the same transaction. What is the same time and the same transaction is the subject of judicial determination, in each particular case, depending upon the facts, and incapable of being governed by any general rule.</p> <p>Whether a paper is testamentary or not depends upon its provisions—if they are testamentary in their character and look to dispositions contingent on death, they determine the nature of the act to be testamentary. Where the paper “ bequeaths” after the testator’s “ death,” the words employed evince very clearly the animus testandi.</p>

<p>A question as to the distribution of the personal estate of a married woman, arising between her administrator and the administrator of her deceased husband, determined by the law of Connecticut, where the parties were married and were domiciled at the time of their death.</p> <p>By the law of Connecticut, the personal estate of a married woman dying intestate, is distributed among her next of kin, and does not pass to her husband.</p> <p>At common law, chases in action and stocks of the wife, whether acquired before or after coverture, survive to the wife, unless reduced into possession by the husband in his life-time. By the law of Connecticut, personal property accruing to the wife during coverture, including chases in action, vests immediately and absolutely in the husband, and if he dies without reducing the same into possession, his administrator is entitled.</p> <p>A receipt of dividends on stock standing in the name of the wife, only reduces the dividends into possession, and not the stock.</p> <p>The legal title to the assets of a testator is in his executor until distribution, and the title of stock transferred to a married woman after coverture, in satisfaction of a general legacy vested before coverture, accrues after coverture. The time of the transfer is the time the title accrues, although the consideration of the transfer was previously vested.</p> <p>The transfer of stock is governed by the lex loci as to the forms of the transfer, but not as to the rights of parties or as to the legal effect of a transfer when correctly made.</p> <p>Where a married woman, domiciled in Connecticut, having before marriage a vested right in the residuary estate of her deceased grandfather, after coverture received, in satisfaction of such portion, a transfer of bank stock in the city of New York, and her husband drew the dividends, but never reduced the stock into possession, nor administered on her estate, though he survived her—Held, that by the law of their domicil, the property vested in the husband at the time of the transfer, and that his administrator was entitled to the proceeds for distribution among his next of kin.</p>

<p>A testator, after duly executing his will, passed a pen through portions of a devise to his daughter, giving in a note at the foot of the page, bad treatment as a reason. Held, that there may be a partial revocation of a will by obliteration. In respect to revocations, it has become a settled rule, not to give effect to a part of the testator’s intention, when effect cannot be given to the whole of it; and where, in connection with an attempt to revoke devises to his daughter, the testator designed to give the same property over to his two sons, by altering the residuary clause, striking out the words “ my children,” and inserting “ my two sons,” the insertion being inoperative for want of re-execution and attestation, and the intent failing as to the substitution intended; Held, that the devises to the daughter were not .revoked, and that the will should be admitted to probate as it originally stood.</p>

<p>Where the executor, who was a surviving partner of the testator, had a valid claim against his deceased partner for profits as carried to his credit on the books of the firm at the testator’s decease, he is entitled to interest on the debt the same as any other creditor. If he has been in funds to pay himself and has used the money, that would extinguish the claim for interest.</p> <p>The period of the dissolution of the partnership is the proper time to make a rest and adjust the accounts, and the partner against whom the balance is found, is chargeable with interest thereon.</p>

<p>When, on the probate of a will, an alleged codicil is brought in by parties interested, but not cited, the proper course is to direct an allegation propounding the paper for proof, as part of the pending proceeding.</p> <p>A paper expressing a wish to give certain sums, and that neither “ executors nor heirs will object to carrying out this my will,” is testamentary in its character ; and, having been properly executed, was admitted to probate.</p> <p>When the testator, in the presence of the subscribing witnesses, dictates the provisions of a testamentary paper, reads it aloud after it is drawn, signs it, and requests them to give it their attestation, the substance of what the statute requires, is performed. In such a case, there is a sufficient testamentary declaration; that is, the testator manifestly makes public and open the nature of the act.</p> <p>Whether a paper is a will or not in its character, does not depend upon the maker declaring it to be a will, but upon its contents.</p> <p>If the testator showed and declared by his acts and his language, that he designed to make provisions contingent on his death; if this was clearly communicated, and clearly understood by him and by the witnesses, through the medium of his own language in dictating the instrument, and by his reading it aloud, and if the paper itself on its face is testamentary, the statute as to a testamentary declaration is answered. '</p> <p>If the act be testamentary in its character, it is not necessary to its validity that the testator shall clearly and fully understand its legal effect, the manner in which it would operate, and its provisions be carried out.</p>

<p>A will contested on the ground of incapacity and undue influence pronounced for —the testator’s faculties being unimpaired, though he was in his 84th year, and enfeebled by disease—and the circumstances showing origination of the bequests with the decedent himself, mental activity, freedom and determination of volition.</p> <p>Action upon the suggestion of others is not sufficient to impeach the transaction, in the absence of every trace of improper dealing or undue influence. The omission of the name of a relative in a partial provision, by mistake or accident, would not seem to justify rejecting the entire instrument. The jurisdiction of the Surrogate, in respect to the correction of mistakes, is, by the necessary operation of the statute, merely negative, and limited to refusing probate to a will or part of a will. Nothing can be inserted in the instrument.</p>

<p>A residuary legatee will share in all portions of the estate which fall into the residue, notwithstanding a part of that residue consists of a sum directed to be invested for his use for life. The fact that the legatee of a partial interest is one of the residuary legatees, will not exclude him from taking the remaining interest in the latter character.</p> <p>Though the testator may not have foreseen all the consequences of his dispositions, the effect of his language cannot be varied, when plain and unambiguous, in order to suit a supposed intention unwarranted by the words of the will.</p> <p>Though the intention of the maker is the guide to the interpreter, the intent is to he sought from the writing, and from the known meaning and force of the words used, instead of resorting to conjecture.</p>

<p>The testator devised and bequeathed the residue of his estate to the children of his deceased brothers as tenants in common in certain shares, and then provided as follows: “And should either of the said seven children die before me, without leaving any child or other descendant, I hereby give, devise, and bequeath the residuary share or portion of the one so dying to her or his surviving brothers or sisters.” The nephews and nieces were also heirs and next of kin, with others. One of the residuary legatees having died before the testator, leaving children,—Held, That there was an implied gift to his children.</p> <p>A devise to the heir or residuary devisee after the death of A., raises an estate for life in A. by implication; but otherwise when the devise is to a stranger. Whether a devise to one of several co-heirs after the death of A. raises in the latter an estate for life by implication,—Quaere.</p> <p>Where there is an absolute gift of personal estate, and then a bequest over to several co-heirs and residuary legatees, in case the first legatee dies before the testator without leaving children, if the legatee dies leaving children, the legacy will survive to the children, as being within the testator’s intention.</p>

<p>Where an infant, a native citizen of the State of New York, and domiciled in the City of New York, and having a guardian duly appointed at the place of domicil, was clandestinely, and adversely to the wishes of the guardian, removed from his jurisdiction and taken to England—Held, That the guardian was justified in attempting to recover the custody of the ward, by invoking the aid of the English Courts, and that the expenses of such proceeding were a proper charge on the infant’s estate.</p> <p>And where the English Court of Chancery, when refusing to award the custody of the minor to the American guardian, decreed that the guardian should transmit the income of the minor’s property to England to be disposed of under the direction of that Court—Held, That under the circumstances, there was no good reason for deferring ex comitate to the decision of the foreign tribunal, and permission was therefore refused to the guardian to transmit the funds abroad.</p> <p>The Surrogate, in respect to minors residing in his county, has the same extent of authority as to the appointment of guardians, as was possessed by the late Court of Chancery of this State, whose jurisdiction was commensurate with that of the English Court of Chancery. The statute directing such notice to be given to the relatives residing in the county as the Surrogate shall think reasonable, does not exclude that officer from directing notice to any parties likely to be interested in the welfare of the minor, whether residing in the county or State, or even in a foreign country.</p> <p>In making the appointment of guardian, the Surrogate’s power and discretion are entirely unlimited, except by such known and established principles as govem the conscience of all Courts of Equity. Relatives, whether residing in another county or State, may be appointed to the guardianship, if they are proper persons, and give the requisite security. The consent of relatives is not requisite to the appointment. The authority of the Surrogate is not limited in this respect—the relatives have no control in the matter, and they have no interest as parties, but receive notice merely to inform the Court so as to make the best appointment for the welfare and interests of the child.</p> <p>The Surrogate possesses power to remove a guardian on proper cause being shown.</p> <p>The powers of a guardian appointed by the Surrogate are not restricted by locality, more than in the case of any other officer in this State. He is recognized as the lawful guardian throughout the bounds of the State. He cannot, in a strict sense, exercise authority out of this State, but he is no more a local officer than an executor, or administrator, or a guardian appointed by the Court of Chancery. Except as connected by the Constitution of the United States, which does not touch the civil domestic government, New York is as much a foreign State, relatively to the other States of the Union, as England is relatively to France.</p> <p>There is no reason why the same degree of comity should not be extended to the judicial action of the Surrogates’ Courts in the State of New York, that would be extended to any other tribunal of a foreign country in the exercise of its legitimate jurisdiction.</p> <p>From comity and considerations of mutual interest, foreign States recognize and give effect almost universally to those laws of the domicil which constitute the status, quality, or capacity of the person, and which place minors under the authority of guardians and tutors, respect being had to the sentence of the appropriate tribunal in the place of domicil.</p> <p>In the case of a minor bom in the City of New York. o£ a father there resident, a naturalized citizen, and a mother there resident a native citizen, the residence of the parents there continuing until their decease, the place of birth and the domicil of the parents made New York the place of the domicil of the child.</p> <p>The domicil of origin can be changed only by choice, and a domicil of choice cannot be acquired by the act of the minor, or of any other person except the parents or the guardian.</p> <p>By the common law an alien signifies one born in a foreign country, and it is the doctrine of the English law that natural born subjects cannot divest themselves of the duty of allegiance to the country of their nativity. The statutes giving to the children of natural bom subjects the rights of English natural bom subjects, though bom in a foreign country, are statutes of naturalization, giving certain privileges without the volition of the subject and without the condition of residence. If they determine imperatively the status of the natives of other countries, they conflict with the doctrine of natural allegiance, and also with the rights of the citizens of other States, and with the sovereignty of other governments.</p>

<p>The policy of our law in relation to Life Insurance, is in favor of allowing the wife, either in her own name or through the medium of a trustee, to insure her husband’s life free from the claims of his representatives or his creditors. An intestate having before his decease effected an insurance on his life for $4000, subsequently surrendered the policy, and took out two new policies for $2000 each, one of which he assigned in consideration of three hundred dollars, the assignee agreeing to pay the future premiums, and on the assignor’s decease to pay his widow fifteen hundred dollars, and the other of which he assigned for the benefit of his wife, the assignee obligating himself .to pay the premiums. The policies were of little, if any, pecuniary value at the time of the assignment, so far as related to the premiums that had been paid. The company with whom the insurance was effected were empowered by their charter to insure the life of a husband for the benefit of his wife,—Held, that the title being transferred, the legal representatives of the assignor could not recover on the policies. If the transaction is sought to be impeached as being fraudulent and void in respect to creditors, it seems to be unnecessary to compel the administratrix of the assignor to give security for the amount of the policies, until the rights of the creditors have been determined by a court of competent jurisdiction—the administratrix claiming in her own individual right, under a legal title outstanding at the intestate’s death.</p>

<p>Where the testator by his will gave his wife, “ free and clear of all incumbrances,” the use of a dwelling-house for life; and in case she requested it, directed, the property to be sold, the proceeds invested, and the interest, income, and dividends to be applied to her use for life.—Held, that the executors were not bound to pay the current taxes and assessments out of the testator’s general estate. The general rule is, that the life-tenant must keep down the accruing charges unless in case of assessments which constitute a permanent improvement, and to constitute an exception to the rule requires a clear provision. The words 11 free and clear of all incumbrances,” in the devise in question, refer to incumbrances which might exist at the testator’s death, and not to the mode of enjoyment by the life-tenant.</p> <p>It always requires an express provision to disturb the rule of law that separate funds must bear their respective charges.</p>

<p>The testatrix by her will gave to, the Roman Catholic Orphan Asylum in the City of New York, all future dividends of all her shares of the capital stock of “ the Mechanics’ Bank, so usually called in the City of New York.” At the time of making the will and at her decease, she had one thousand dollars in the stock of the City Bank, but none in the Mechanics.’ Bank, nor had she ever owned any in the last-named institution—fleZd, that the shares in the City Bank passed under the will to the legatees named.</p> <p>Evidence of material facts is in all cases admissible in aid of the application of a will, to determine whether the words with reference to the facts admit of a plain application, and if not, then to determine whether they can be applied in any other sense of which they are capable, so as to satisfy the intention.</p> <p>The present case is one of misdescription. A legacy will not be allowed to fail merely by a false description, if by rejecting the portion of the description that is false, there are words enough left in the testáment to effect the testator’s intention and convey the subject matter he intended to dispose of. Misdescription is fatal when total, but if only partial, the inaccurate portion may be disregarded. The word “ Mechanics,” in this bequest, being rejected as inapplicable to any property ever owned by the testatrix, the bequest is left to operate upon any bank stock possessed by her, which as appears by the evidence was in fact no more in amount than the sum described in the specified legacy.</p>

<p>Where administration is claimed by a party as the son of the deceased, and his legitimacy is denied by the Public Administrator, no kindred intervening, proofs must be taken, and the question of interest determined. If reasonable doubts exist on the evidence, and there is a probability that further investigation will remove them, it is the duty of the Court to suspend sentence on the administration until an opportunity has been afforded to complete the examination.</p> <p>Whether a decision on the administration would be conclusive on the distribution, provided new claimants should not appear,—Quare ?</p> <p>The alleged marriage of the intestate, and the birth of the person claiming as her son having occurred in France, and the proofs indicating a likelihood that more satisfactory evidence might be procured at the place of the domicil of the parties, at the date of the events in controversy, a commission was directed to issue for the purpose of instituting the proper inquiries relative to the relationship of the claimant and the intestate.</p> <p>The status of the child is determined by the law in existence at the time of his birth, in the place of his birth, and of the domicil of his parents. By the law of France in the year 1800, majority was placed at 21 years, and the act of marriage was a simple declaration in the presence of the public officer and witnesses, by the parties, that they took each other in marriage. Marriages by minors without the consent of their parents, relations or neighbors, were declared invalid. No restriction was imposed upon persons of full age, unless they were relatives or bound by a previous contract, and thus the mar-f riage of persons of full age depended upon the consent of the parties.</p> <p>Marriage, in its origin, is a contract of natural law, and in civil society is a civil contract requiring no form or ceremonial, unless imposed by the local law, and even when the local law directs the ceremony to be conducted in a prescribed manner, a failure to comply with such forms does not affect the validity of the contract, unless such effect be expressly directed by statute.</p> <p>Proof of the consent of the parties to the contract of marriage may be made in any way consonant with the ordinary course of justice.</p> <p>Under the Code Napoleon, where there has been no act of public celebration inscribed on the registry, the legitimacy of the issue of deceased persons who lived publicly as husband and wife, cannot be contested under' the single pretext of defect in the act of celebration, provided the legitimacy be proved by a possession of the status, and is not contradicted by the act of birth; and where the act of birth is wanting, reputation of legitimacy and of the parents’ living as husband and wife is sufficient.</p>

<p>A will made in favor of the professional advisers of the decedent and resisted on the ground of undue influence and incapacity, admitted to probate, there being no doubt as to the testamentary competency of the decedent, and no traces of fraud, circumvention, or the exercise of influence incident to the'confidential relation which existed between the parties.</p> <p>The mere knowledge on the part of beneficiaries occupying confidential or fiduciary relations that a favorable will was to be executed, is not sufficient of itself to invalidate the act, provided it be shown that the provisions of the instrument accorded with the intentions of the decedent otherwise expressed.</p> <p>A will by a client in favor of an attorney is not absolutely invalid. The existence of that fiduciary relation does not annul the act, but still the circumstances call for unusual circumspection and vigilance to see that it was in consonance with the views and wishes of the testator, and was ^iot the result of influence. There should be very clear evidence of mental capacity and satisfactory proof independently of the mere factum that the mind, free and unbiased, accompanied the act. This is a well-established rule of evidence, compelling the proponent, even after the formal execution is established, to show by other circumstances spontaneousness and volition.</p> <p>In cases of alleged undue influence, although the absence of the party to be benefited at the time of the execution, is an important portion of the proof, in support of the instrument, yet it is not conclusive. The probability of the will being the free act of the testator is sustained also by testimony as to his testamentary wishes orally expressed at other periods and to other parties. An opportunity to revoke the instrument, and the lapse of time since its execution without an attempt at revocation, are material circumstances tending to show it was not procured, but was truly the testator’s will.</p>

<p>The testator was appointed by deed, a trustee, to mortgage, lease or sell certain real estate, for the purpose of paying charges, to invest one third of the proceeds to meet a dower right, and to distribute the remainder, including the third on the decease of the widow, among the grantors. The lands were sold, two thirds of the proceeds, after payment of the charges, distributed, and the remaining third retained for the dower. The widow and trustee both having died, it was held that the executor of the trustee might be directed by the Surrogate to make distribution among the parties entitled. On the decease of the life-tenant of the one-third, the substance of the trust having terminated, except as to the payment to the remainder-men, the demand against the executor of the trustee was in the nature of an equitable debt. The . Surrogate has jurisdiction to order the payment of equitable as well as legal claims. The trust fund not having been invested, nor kept separately, and the active branch of the trust having ceased, the appointment of a new trustee was not requisite in order to make title to the fund.</p> <p>By the terms of the trust there was no positive direction to sell, but only a discretionary power—the instrument therefore did not of itself effect a conversion from real into personal estate. Till the power was exercised, the property remained and was to be considered as realty, but after it was exercised and the conversion had been effected, the property must be treated as personalty, and where parties interested died subsequent to the sale, the succession would pass to their next of kin and not to their heirs-at-law.</p> <p>Where there is an unqualified direction to convert money into land or land into money, the property will have the character so directed even in case of devolution, before such character has been in fact assumed.</p> <p>But where there is a mere power or discretion to change the quality of the estate, the succession will take effect according to the nature of the property at the time the succession attaches.</p>

<p>A legacy to the widow in lieu of dower, carries interest from the testator’s decease ; and where there has been a delay in the probate of the will and the grant of letters, and the legatee needs an advance for maintenance, the Surrogate, under the authority conferred on him by the statute, will order payment of such proportion of the legacy as may be necessary, even within a year from the issuing of letters, .provided there is one-third more assets than will be sufficient to pay the debts, and provided also a satisfactory bond of indemnity be given</p>

<p>The testator, who was engaged in business as a manufacturer, and owned a cotton .mill, after devising to his wife a life-interest in certain lands, gave the remainder of his property to his children, “ to be valued,” and “ to be divided” into a certain number of shares, and “ the several divisions” to take place as his sons “ severally” attained majority, and his daughters arrived at full age or .married. He also provided, that three of his children named should “ have the same advantages of education” as the others had enjoyed; and that liis cotton mill should be under the direction of his son, and J. D., the profits'to be appropriated to the use of the testator’s family.—Held, that the</p> <p>, devise >of the residue was vested in the children on the testator’s decease, subject first to the provision for the education of his children, and secondly, to the direction respecting the management of the mill. The children were to be educated at the charge of the estate, and the profits of the factory were to accrue to the benefit of the family, that is, his children, to whom the property had .been previously given—the widow having other provisions under the will.</p> <p>The clause as to the management of the factory is a mere direction how the estate was to be managed until a distribution should be made, and does not vary the interests of the devisees.</p> <p>Each one of the devisees, on attaining majority, or the daughters on marriage, can demand their shares, and in such case the estate must be closed.</p>

<p>A direct gift to a minor is vested,"notwithstanding it is given over in case of his death under age, or “without heirs.” Though liable to be divested on a contingency, the substituted legatees will only take the corpus, from the time of the happening of the event on which it is limited over. The accruing interest before that time belongs to the minor, and may be appropriated for his support.</p> <p>Interest on legacies given by a parent to a child under age, when there is no provision for maintenance, will be applied by the Court to the support of the infant, although the bequests are conditional and not vested.</p>

<p>An intestate, engaged in business, having availed himself of the services of his children, under the expectation and mutual understanding that compensation would be made by way of legacy, but without any special agreement to that effect:—Held, that no special request or formal promise was necessary under the circumstances to establish his liability; and the execution of a will which had been drafted in favor of these children, having been prevented by death,—Held, that his estate was bound to make compensation.</p> <p>A stranger, performing services under similar assurances, would be entitled to recover, and the relation of the parties as parent and child, does not detract from the merit of the claim. The services were not gratuitous, nor exacted by means of parental influence, but having been performed under a mutual expectation of compensation in a particular way, there is enough to sustain a promise to pay, and the particular mode of payment intended having failed, the parties are left to their rights as in the case of an ordinary debt.</p> <p>This case is different from the performance of services gratuitously in the mere expectation of a legacy, the determination whether there should be any compensation or not, being left to the volition of the party benefited, in which case there is no legal liability.</p> <p>When work and labor are performed under promise of a legacy, if default be made, the right to recover exists, whether the remuneration in the mode contemplated is prevented by accident or design.</p> <p>An investment having been made by the intestate in certain rail road shares,— Held, that the fact of a fall in the market value of the stock was not enough of itself to charge the administrators with the loss occasioned by the depreciation; but the circumstances should show affirmatively that they acted unreasonably in retaining the stock, and that the failure to sell was unjustifiable.</p> <p>The intestate in his life-time made an advancement to one of his sons for the purpose of establishing him in business, the son died before his parent, and it was held that the advancement had been made with “ a view to a portion or ■ settlement in life,” as contemplated by the statute, and should be charged on the share to which the descendants of the deceased son succeeded.</p> <p>Those provisions of the Revised Statutes which refer to advancements, in case there be no real estate of the intestate, do not apply to real estate situated in another state or country, but only to lands in this State. The rule of descent is regulated as to lands, by the law of the place where the property is situated ; and it could not have been intended to introduce as an element into the adjustment of the estate of an inhabitant of New York, the various laws of other States where the intestate might have happened to hold realty. The statute is to be interpreted generally as applicable only to lands within the operation of our own laws, and to establish a different construction, special words must be used to show a special intent.</p>

<p>An assessment upon premises devised by the testatrix, which was confirmed at the time of her decease, though a lien on the lands, was also a personal debt of the testatrix, and should be paid out of her personal estate, though it is not entitled to any priority before other debts.</p> <p>At common law all debts, of whatever description, whether general or specific liens on lands, were chargeable first on the personal estate, and that rule has been varied by the statute, only in respect to mortgages and taxes, and as to the latter, only as regards priority.</p>

<p>The decedent, a short time after the execution of his will, was committed to the Lunatic Asylum, at the instance of his family, after an examination by a physician, who found him insane, and laboring under a delusion that some of his children were spurious. He was exceedingly cautious on the subject of the delusion, arid careful not to betray it to the examining physician, until the latter succeeded in gaining his confidence. He had been melancholy for a length of time, and his depression of spirits had been greatly increased by the recent decease of his wife. Within a few days of the date of the execution of the will, he had become suddenly violent at night, to such an extent as to require physical restraint, and about the same time he gave indications of the delusion in respect to his children.—Held, that a will, made very near the time of these developments, unequal in its provisions, and favoring the • only two members of the family privy to it, one of whom was present when the instructions were given, when the draft was submitted and when the instrument was signed, and both of whom had been the decedent’s agents, and had possession of his estate,—needed more than the formal proof of tho factum, and the evidence failing to show affirmatively the soundness of the decedent’s mind at the time of the transaction, probate was denied.</p>

<p>A person present at the performance of a testamentary act, and writing the name of another as witness to the proposed will, in the belief he could not write well, but failing to sign his own name, not supposing more than one witness necessary,—Held, that the paper was defectively executed, although the witness whose name had been signed, subsequently wrote his own name. The statute requires each of the witnesses to sign his own name with the intention of becoming an attesting witness.</p>

<p>The lapse of twenty-nine years since the administration of the estate commenced is sufficient to excuse a formal inventory and account.</p> <p>A decree against executors or administrators in the Supreme Court, cannot be questioned before the Surrogate in a proceeding relating to the personal estate. If the statute of limitations was a good bar to the claim in that court, it should have been interposed there. A judgment establishes a valid debt, entitled to be paid in due course of administration, if there are assets wherewith to pay it.</p> <p>Although a great lapse of time excuses from a formal inventory and account, yet if the creditor alleges assets recently realized or still existing uncollected, or real estate not disposed of, the executor should submit to a personal examination.</p>

<p>The testator placed his estate in trust during the lives of his brothers David and Richard, to pay them the income, share and share alike; and on the decease of Richard, he gave to Richard’s son, Joseph, one third in fee, and on the decease of David, he gave to David’s children the remaining two thirds, in fee. Richard having died, leaving his son Joseph surviving,—Held, that Joseph was entitled to one third of the estate in fee, and that the entire income of the remaining two thirds accrued to the benefit of the surviving brother.</p> <p>The usual acceptation of language may be restrained by provisions indicating a contrary intention. Words ordinarily construed as raising a tenancy in common, will be interpreted as establishing a joint tenancy, if the terms of a gift over show an intention to create a joint tenancy.</p> <p>The force of technical words is always controlled by provisions showing that a technical interpretation would militate against the design of the testator.</p>

<p>The administrator having taken out letters on the citation of the next of kin, and at their instance having been called to account, Held,, that a decree of the proper tribunal in the place of the intestate’s domicil and of the principal administration, was conclusive upon all parties thereto, in respect to assets then realized or claims against the administrator which might then have been adjudicated.</p> <p>The place of domicil is the place of the principal administration, and other administrations are merely ancillary. The law of the place of ancillary administration governs as to the payment of debts there, but the distribution among the next of kin or legatees is made according to the lex domicilii. A decree against the primary administrator at an intestate’s domicil is conclusive upon the subsidiary administrator.</p> <p>The proper time for presenting and determining a claim against the administrator for an alleged individual debt due by him to his intestate, is on the final accounting, and he may be charged for such debt wherever he has administered, notwithstanding he resides in another jurisdiction, unless the rights of creditors in the place of his residence require protection.</p>

<p>The probate of a will is a proceeding of a mixed character, being as to the subject matter, a proceeding in rem, and as to the persons interested, lis inter partes ; consequently none of the parties are competent witnesses.</p> <p>By the ecclesiastical law, an executor propounding a will is an incompetent witness to sustain it when contested; but by our statute the oath of the person propounding the will, as to the circumstances of the execution, the delivery and the possession thereof, may be required.</p> <p>It is the English practice to allow next of kin who have renounced opposition to the will, to be dismissed as parties, for the purpose of being examined as witnesses, subject to the question of their competency on the ground of interest. When the parties seeking to be dismissed have materially acted in the cause, it would appear to be in the discretion of the court whether to grant the application. But where an executor has propounded the will, he cannot become a witness except so far as the statute, authorizes.</p> <p>The declarations of a party to the record, may be taken as against himself, or as against another party having a joint interest, but if there are several parties having separate interests in the subject matter, the admissions of one cannot be taken against another.</p> <p>The declarations of one of the parties to a proceeding in probate cannot be received as evidence, unless the proof be directed to the rejection of particular clauses of the will, or there is ground for charging complicity or conspiracy, or the declarations are part of the res gesta.</p> <p>Declarations to become part of the res gesta must be made at the time of the act done; and in a conspiracy, combination must be shown by other proof, before the declarations of one person can be received against another. Upon questions of evidence, if would seem proper in a case of doubt for the Surrogate to lean to the common law rule, in preference to that of the ecclesiastical courts.</p> <p>It is competent to show declarations of a party charged with unduly procuring the execution of a will, so far as they tend to prove an existing intent and disposition.</p>

<p>The statute authorizes the Surrogate, when satisfied there are reasonable grounds for suspecting there are assets of a deceased person concealed or withheld, to issue at the instance of the Public Administrator, a subprena, to require the attendance and examination of witnesses; and if it then appear that any effects are concealed or withheld, a warrant may be issued for their search and seizure, and the officer executing the same may, if necessary, break open any house in the day time, and deliver the property to the Public Administrator.</p> <p>Such warrant will not be issued, if the person in possession of the assets shall execute a bond, with sufficient sureties, conditioned to account for and pay to the Public Administrator the value of the assets, when it shall be determined in any suit brought by him that they belong to the estate of any deceased person, which the administrator has authority to collect and preserve.</p> <p>Where at the testator’s death, his widow was possessed of certain coupon bonds which she subsequently sold, claiming that they were her own property, investments of the proceeds of her own labor, and in her own possession prior to her husband’s death,—Held, that it was not proper to issue a warrant under the statute.</p> <p>The statute applies to property belonging to the deceased or in his custody, and its primary object is the rescue or restoration of effects not satisfactorily accounted for by persons who were about him in his last illness, or in whoso hands the assets had fallen.</p> <p>If the deceased had not possession at the time of his death, nor twenty days previous, and where no advantage has been taken by attendants, but the claim was adverse to the decedent himself in his life time, it would seem the statute was not intended to apply.</p>

<p>The recent act of the Legislature of the State of New York authorizing “ illegitimate children, in default of lawful issue, to inherit real and personal property from their mother as if legitimate,” did not affect any right or title vested at the date of the passage of the act in the lawful heirs or next of kin of any person theretofore deceased. This act does not in terms disturb the usual course of a grant of administration; but if the descent of the illegitimate claimant in default of lawful issue, be proved satisfactorily, it may be proper in the exercise of a sound discretion to make the grant; while on the other hand, if the proofs are not clear, prudence may require the intervention of the Public Administrator, or some other disinterested person, to insure a just scrutiny and the protection of the rights of third parties.</p> <p>On the decease of an intestate, title to his goods can be made only through the medium of an administrator; and the next of kin have no legal title to the assets; but they have a vested interest in the surplus of the estate, after the payment of the debts, which cannot be taken away by legislative act. The statute of distributions may be changed prospectively, but not retrospectively without disturbing vested rights.</p> <p>Statutes must be construed prospectively, unless there are very express words giving them a retrospective application.</p> <p>The Court will not depart from the usual method of issuing commissions to take testimony in foreign countries, unless important advantages to be gained by some other mode are shown.</p> <p>The French Consul is entitled, both by treaty and comity, to be heard in this Court, not as a party, but informally as the national agent of parties supposed to be interested.</p>

<p>Upon an application to sell the real estate of a deceased person for the payment of his debts, if it appear that the title to the lands sought to be sold is controverted, and that by reason of such claim a sale will be made under disadvantageous circumstances, it is proper to stay further proceedings until the parties have had an opportunity of determining the title in a court of competent jurisdiction.</p> <p>The Surrogate has no authority in such a case to pass upon the question of title, when the lands were prima facie vested in the deceased ; and if the creditors insist upon selling all the interest of the deceased, after proper time allowed for instituting a suit to determine the title in another court, the sale will be ordered.</p>

<p>The intestate was bom in Connecticut, and after attaining full age, pursued the calling of a mariner, generally sailing from and returning to the port of New York, and then visiting his native place. Having married in this city, and become master and owner of a vessel, and, until his decease, making this his principal place of abode and business, when not at sea,—Held, notwithstanding he made occasional visits to his place of birth, that New York was his domicil at the time of his death, and that the distribution of his estate was governed by the laws of New York.</p> <p>A domicil can be gained only by residence animo manendi. When a domicil is once gained it is not lost until another is acquired. But little stress should be laid upon casual declarations as opposed to actions and course of conduct. The residence of the family is an important circumstance in determining the abode of the head of the family. The domicil of origin is not of much consequence except in determining the balance in a doubtful case.</p> <p>In questions of domicil the leading inquiry is as to the person’s general habit of life, the centre of his business interests his occupations and his home affections.</p> <p>After a cause has advanced to the examination of witnesses, a party litigant will not in general be permitted to renounce contestation, assign his interest, and become a witness.</p>

<p>Upon a question of assets the declarations of the deceased may be admissible as pertinent to the inquiry whether the administrator has made the proper efforts to administer the estate, but they are not binding as declarations to charge the representative with assets.</p> <p>An executor or administrator is not concluded by the statements of the deceased, but is only obligated to a faithful attempt to realize the largest amount from the assets which have come to his knowledge.</p> <p>The testimony of a witness in one suit, cannot be received as evidence in another suit although between the same parties.</p> <p>Where the wife of the intestate, after his decease, but before the news of his death had reached her, received debts due to him, acting as his agent to make collections during his absence for her support,—Held, that having appropriated the money to the purpose authorized, in good faith, she was not liable to the creditors of the deceased. Whether the debtor who had paid under such circumstances, could be compelled to pay a second time on an action being brought by the administrator,—Quczre ?</p> <p>A judgment against an administrator is no evidence of assets. The Revised Statutes have altered the rule of the common law in this respect. The judgment only establishes the amount due by the estate. The estate cannot be distributed without the action of the Surrogate or a court of equity, nor can execution issue without the permission of the Surrogate.</p>

<p>A legatee having received payment of the principal sum of a legacy in two sums, and given a receipt in full, and the executor having subsequently offered to pay the interest, admitting there was a balance of interest due,—Held, that this was a sufficient acknowledgment of the claim to remove any presumption to be drawn from the receipt. Whether the rule that where there is no contract to pay interest, if the principal is accepted in full satisfaction, interest cannot afterwards be recovered, applies to an executory trust,—Quaere ?</p> <p>It is the duty of an executory trustee to see that the legatee is paid, and to apprise him in reasonable time of the amount due, and to offer payment. He cannot take advantage of the mistake of the legatee, or bar his rights in equity by a receipt or even a release under seal, when error has been committed.</p>

<p>Thb testator directed the sale of certain real estate, and then gave one half of the proceeds to S. S., a nephew; one eighth to S. S., another nephew; one eighth to the executor, “ to be by him held in trust and invested, and the interest thereof paid to M. D. and his heirsanother eighth to the executor “ to be by him held in trust and invested, and the interest thereof paid to E. D., and his heirs,” and the remaining one eighth to the executor “ to be by him held in trust and invested, and the interest paid to W. B. and his heirs.”—Held, that it was the intention that the executor should hold the several shares in trust for the parties named, during life, with remainder to their children.</p> <p>The word “ heirs" will not be interpreted as a word of limitation, if the intention be apparent to use it in another sense. The appointment of a trustee and a direction to pay the interest and keep the principal invested, are such circumstances as in contrast with other dispositions of the will, operate to show that a bequest in favor of A. and his heirs, was not intended as an absolute legacy to A.</p> <p>There is no rigid technical rule governing the interpretation of wills The use of words, whether scientific or not, in their ordinary signification must be intended; but, if by the employment of interpretative language, or by the insertion of other provisions, it can be seen that those terms have been employed in a signification different from their ordinary sense, the purpose of the testator will be carried out.</p>

<p>Although there are more than two witnesses to a will, yet a compliance with the forms prescribed by the statute, in the presence of two, is all our law requires, notwithstanding a third witness attested.</p> <p>A will admitted to probate,—where the testator was very aged, and the powers of his mind somewhat impaired, but there were no traces of fraud, the will was holographic and its provisions were consonant with the state of his affections.</p> <p>The exertion of influence to the extent of destroying free agency will never be presumed merely from opportunity and interest, when there are indicia, of volition, spontaneousness, and consonance of the testamentary provisions with the state of the affections.</p> <p>To detract from the force of instructions, there must he some ground for inierring control or influence, or an effort to produce the instructions, or some cognizance of the testamentary act, or some trace of fraud, complicity or clandestinity.</p>

<p>When the decedent failed to declare to the subscribing witnesses that the paper which they were called to attest was his last will and testament, but simply acknowledged his signature, and requested them to sign at a particular place pointed out by him.—Held,, that this was nót a valid testamentary declaration.</p> <p>The knowledge of the character of the instrument gained by the subscribing witnesses from looking at the attestation clause, does not constitute a testamentary declaration by the decedent, unless it was clearly obtained by his request or direction, or at the least, his consent and privity.</p> <p>If anything is to be taken as substitution for an express declaration, it must be such an act as is clear and unequivocal, and as gives the basis of a necessary inference that the testator conveyed, intended to convey, and knew he had conveyed to the minds of the witnesses, that he executed thepaper as his last . will and testament.</p> <p>There must be mutuality as to the knowledge of all the parties, testator and witnesses, in respect to the nature of the transaction, and this must be evinced with reasonable definiteness by the facts.</p> <p>The declaration must be made to each of the witnesses, at the time of subscribing or acknowledging, and as part of the transaction: it must be made in the presence of the parties, and must point to the particular instrument in process of execution.</p> <p>Wills of real estate are governed, so far as relates to the forms of execution, by the law of the place where the land is situated.</p> <p>Where the decedent made his will at Charleston, in South Carolina, where he then had his domicil, according to the forms prescribed by the laws of that State, and subsequently removed to the city of New York, where he died,— Held, that the will so made was valid as to personalty, though not solemnized in conformity to the laws of this State.</p> <p>In the continental jurisprudence, the rule that the act is valid if performed according to the lex loci, is universal in respect to a testamentary disposition of movables.</p> <p>Where the lex loci actus, and the lex loci domicilii are both conformed to, so far as relates to the forms of the testament, a subsequent change of domicil to a place where other forms are required, will not invalidate the instrument.</p> <p>The statutes of this State recognize the validity of foreign wills of personalty-made according to the lex loci actus, and do not admit of a revocation to be effected by a change of domicil.</p>

<p>Ip the testamentary declaration be made at the time of subscribing the will, as part of the transaction, the requisition of the statute is answered, notwithstanding it was made before the subscription.</p> <p>To hold a party seeking to execute a will, to a strict order in the performance of the statutory requisites, does not seem to have been contemplated by the statute. When it is directed that the declaration shall be made at the time of the subscription, time is used in the sense of occasion, season, and not in its extreme strictness as indicative of a precise instant.</p> <p>The statute of wills is not to be construed strictly, except as to the evils it was designed to prevent; in all other respects it is to be construed liberally, and when the essential requisites are satisfactorily proved, the objects of the law are answered.</p> <p>The testamentary declaration may be incorporate with the request to the witnesses to attest. Simple performance of any one of the statutory requisites, will not be taken for performance of any other; but performance of two or more uno tempore is not void because there is a joint or connected performance.</p>

<p>A. devisee for life of the income of real estate leased for a term of years by the testator, is entitled only to the rents falling due in his life-time; and where the devisee died intermediately between two quarter days,—Held, that the rent could not be apportioned. The statute on this subject providing for an apportionment of rent, relates only to leases made by the life-tenant, and not to those made by the testator.</p>

<p>Generally, when no time of payment is named in a will, legacies are not due until the lapse of a year ftom the death of the testator, and they do not begin to earn interest until they are due. The provisions of the Revised Statutes as to the payment of debts and legacies have not altered this rule, and a delay in the probate does not deprive the legatees of interest on their legacies after the expiration of a year from the testator’s decease.</p> <p>Annuities are considered as commencing to run at the testator’s death, and the first payment as due at the end of the year. A bequest of the interest, dividends, or other income of a certain sum to be invested by the executors, does not begin to carry interest until the end of the year, at which time the investment ought to be made.</p> <p>Where there is a gift for life of the income of the residue, without any direction to invest, the tenant for life is entitled to the income from the testator’s death on such investments as were then made, or as were subsequently made within the year, together with interest on the amount not invested, valued as at the time of the testator’s decease.</p>

<p>A will containing a single bequest, subject to the condition that the legatee should produce from the officers of the ship in which the testator should serve on his next cruize, satisfactory evidence of his decease “ during the same,” was admitted to probate, although the testator did not die on that voyage.</p> <p>The will was not made expressly dependent upon the testator’s death during the voyage in question, but the condition referred to satisfactory proof of death in case he should die upon that voyage. To make a testament strictly depend upon a condition, so as to affect the question of probate, the intention ought to appear very clearly that the will should not take effect except upon the prescribed contingency.</p> <p>If the condition is not annexed to the substance of the gift, but only to some collateral matter, such as payment on proof of death, then the gift will be absolute, and the condition will be left to operate on the occurrence of the contingency contemplated by its terms.</p>

<p>In a matrimonial case there is no need of proving a ceremonial marriage; and although formal nuptials in facie ecclesim may he falsely claimed, the disproval of the claim does not disprove the existence of the marital relation, provided the contract can be shewn from cohabitation, reputation, and other circumstances.</p> <p>Where a man and woman under claim of being married at a particular time and place, kept house and cohabited publicly as husband and wife for ten years, two children having been born during the connection,—Held, that the circumstances were sufficient to raise the presumption of marriage, notwithstanding the ceremonial nuptials claimed to have taken place, might be disproved.</p>

<p>The intestate and the party claiming to be his widow, lived together as man and wife for four years, and had three children; there was open profession of the marital relation, general reputation and reception amongst their associates, intimates and relatives, as husband and wife—Held, that, notwithstanding the claimant, who voluntarily submitted to an examination under oath, on being called by the opposing party, admitted there had been no ceremonial marriage, there were facts sufficient to raise a presumption of a marriage-in fact.</p>

<p>The intestate having owned a lease for years without covenant of renewal, but with a stipulation that the right of the lessee to take away the building on the premises, should not be impaired, and the administratrix having taken a renewal in her own name,—Held, that the new lease enured to the benefit of the estate, and that the administratrix was hound to account to the next of kin for its value, and for the rents which had accrued, less the current charges, repairs, and ground rent.</p> <p>There is always a beneficial interest connected with a'tenancy, as an inducement towards a renewal, which in equity is regarded as valuable, and a trustee cannot avail himself of his position and use the good-will, for a renewal in his own right, in exclusion of the parties for whom he is trustee.</p> <p>Assets cannot be taken by the administrator at the inventory price, if it be shown that they are of greater value than stated by the appraisers in the inventory.</p>

<p>The testator and his wife made an ante-nuptial contract, whereby they stipulated for a community of acquisitions, and that in case of the death of either, leaving children issue of the marriage, “ the disposable part” of the half of the acquisitions belonging to the one dying should go to the survivor as “ absolute and irrevocable property.” The testator bequeathed his wife one-third of his estate, and it was held that the rights of the parties were to be determined by the law of Prussia, the place of their domicil at the time of the testator’s death, notwithstanding the will was made in the City of New York.</p> <p>The lex domicilii governs as to the testamentary capacity, in which are included not only the general capacity to make a will, but also the disposable power over the estate.</p> <p>By the Code Civil, a testator who leaves three children can dispose of only one-fourth of his estate absolutely, and an additional fourth in usufruct in favor of his wife—and it was therefore held, that if the disposable part exceeded the one-third given by the will, the widow should be limited to the provisions of the will, but if it did not equal the one-third, the widow should be limited to the disposable part.</p>

<p>The testator gave his residuary estate to “ the two nearest female relatives or connections” of his deceased mother, provided they furnished satisfactory proof of their identity and right of inheritance within two years after his executors had given public notice by advertisement, and in default of application for the bequest, the residue was given over to the Astor Library, in the City of New York: Held, that the legacy vested on his decease, and that the provisions relative to advertisement did not suspend the vesting, but related only to the time and manner of proving the claim of the legatees.</p> <p>As between two nieces of his deceased mother, the wife of a grand nephew, and three great grand nieces, Held, that the two nieces answering the description were entitled to take, notwithstanding one of them, though surviving the testator, died before the time for distribution had arrived.</p> <p>A provision that if any legatee shall die before the executors shall have forwarded in good faith the legacy, the legacy shall be void, is valid in law. Such a provision will not be applied to a residuary bequest, unless the intention be very plainly and explicitly expressed.</p> <p>The term “ relatives” applies ordinarily to persons in the line of consanguinity, and not to those connected by marriage. Where the gift is to relatives, resort must be had to the statute of distributions to determine who are entitled; but when the testator specifies a certain number of the “ nearest” relatives, the description will be applied independently of the statute.</p> <p>Where the gift is to “ relatives or connections,” substitution may be intended, but connections by affinity will not take, until the class of relatives by blood is first exhausted.</p>

<p>The intestate having voluntarily made a deposit of his own moneys in a savings hank, in his own name, “ in trust” for his sister, and at the time of his decease, there being a portion of the fund still remaining deposited in that manner, Held, that there was sufficient proof of a valid gift or trust, which it was the duty of the administrator who had collected the funds, to carry out in favor of the cestui que trust.</p> <p>A trust may be created by a mere declaration, without the knowledge of the cestui que trust, and notwithstanding a power to revoke is impliedly retained, provided the power be not exercised.</p>

<p>A will contested as having been procured by undue influence, was admitted to probate, on proof of the origination of the testamentary act by the decedent, its subsequent recognition, and the conformity of its provisions to her intentions and declarations indicated to disinterested parties.</p> <p>A mistake in an unessential part of a will is unimportant, if the proof otherwise be satisfactory. Where the mind is debilitated and there is no evidence of instructions, it is proper to inquire for some recognition of the act, and either for declarations of testamentary intentions, or such circumstances as tend to show that the bequests were probable and consonant with the the state of the wishes and affections. In such a case it is not necessary the will should be read to the decedent, but knowledge of the contents may be proved by facts and circumstances.</p>

<p>The father of a minor having failed to exercise his right of appointing a guardian by deed or will, the court, upon which it devolves to determine the guardianship, will pronounce upon the question, in accordance with what appears to be for the best interests of the infant, taking into view not merely his or her temporary welfare, but the state of the affections, attachments, training, education, and morals.</p> <p>Though great respect should be paid to the wishes of the deceased parents, even where they have not been expressed in a definite or" legal form, still it is the duty of the court to see whether the conclusions of the parents are well founded, and such as command approval. If there is no reasonable objection to the gratification of their wishes, they will be controlling.</p> <p>Where the father of an infant promised the mother on her death-bed, that the child should remain under the charge of her grand-parents, with whom she had been living since her birth, and the grand-parents had retained the custody under this engagement for seven years, notwithstanding the father, who had married again, expressed a desire to have his brother appointed the guardian, it was held, that the father being dead, letters should issue to the grandfather, no good reason being shown for disturbing the arrangement originally made by the father at the decease of the child’s mother.</p>

<p>The intestate having left surviving her neither father, nor mother, nor brother, sister, nor descendants,—Held, that her next of kin of equal degree were entitled to share in the distribution of her estate per capita.</p> <p>The method of determining the propinquity of kindred is regulated by the civil law, which counts from the intestate as persona proposita. The only exception to this rule is one which prefers brothers and sisters to grand-parents, but the exception is limited to that precise case; and does not reach to the next degree so as to prefer brothers’ and sisters’ children to grand-parents’ children.</p> <p>Uncles and aunts are in the same degree with nephews and nieces, and in default of nearer kindred, share equally on the distribution.</p> <p>Representation never changes or advances the degree, though where the degrees are unequal it operates, when declared by the statute, to give the representatives of a deceased person the share he would have taken if living.</p>

<p>A decree for payment, on the final accounting of the administrator, having been entered, and the administrator and the next of kin both residing in the State of Connecticut, where creditors of the next of kin factorized and trusteed the administrator on account of the sum directed by the decree to be paid by him to the next of kin,—Held, on a motion for an attachment against the administrator for not complying with the mandate of the decree, that, he was excused from payment until the determination of the suit in which the trustee process had been issued.</p> <p>By the law of Connecticut, executors and administrators may be factorized by the creditors of legatees and distributees.</p> <p>As a general rule, the laws of a foreign State, where the parties interested are domiciled, will be regarded and respected in another jurisdiction, unless they are in conflict with the rights of its citizens, or from reasons of inconvenience or public policy it would seem unwise to recognize them.</p> <p>The decree of a Surrogate for the payment of money has the force of a judgment, and on filing a transcript with the county clerk, it can be enforced by execution against the property of the administrator, in the same manner as a judgment at law. The debt may also be collected by process of attachment, but that is only an additional remedy.</p> <p>Debts follow the person of the debtor, and wherever the debtor may be, a judicial remedy for the recovery of the debt follows him.</p>

<p>If the executor has made advances for the benefit of the estate out of his own funds, he will be allowed interest when the sums expended were paid for taxes, necessary expenses and repairs, and debts which carried interest.</p> <p>When the executor kept his accounts in books which were exhibited to the parties interested, the accounts were kept in a plain and intelligible manner, quarterly settlements were made and receipts given for ten years and upwards, it was held that under such circumstances the accounts would not be disturbed unless very satisfactory reasons were shown.</p> <p>An executor who is also named as trustee in the will, though not entitled to commissions in each capacity, shall have his full commissions both for receiving and paying out. on the final settlement of his account as executor.</p>

<p>The wife of the intestate, during his lifetime, carried on a millinery store, but not as her own separate establishment; and the stock in trade not having been included in the inventory, it was Held that she should be charged with its value on the final accounting.</p> <p>One of the sureties of the administratrix having bought up claims against the intestate, at three shillings on the dollar, and there being no proof of connivance between him and the administratrix, or that the moneys of the estate had been used in buying the claims, the purchases were Held to be valid.</p> <p>A surety on an administration bond, does not, before an accounting is had, stand in a fiduciary relation to the creditors of the intestate, and is not chargeable with any primary responsibility as to the management of the estate.</p> <p>The administratrix, having converted the assets into money shortly after taking out letters, and placed the money in the hands of a relative who used it, she was charged with interest after the lapse of six months from the date of the administration.</p>

<p>On being cited to account, a person standing in the relation of executor, administrator and guardian, alleged that the petitioner had assigned and sold all his right, title, and interest in the subject matter of the several trusts, to a third party not before the court,—Held, that it was beyond the jurisdiction of the Surrogate to determine whether or not the assignment was valid, if the assignee claimed under it, unless he was a party to the proceeding; and therefore that it was the duty of the court to direct the respondent to render his accounts in his several trust capacities.</p>

<p>On the final accounting of the executor, a legatee named in the will as “ Elizabeth Parker,” claimed to be entitled to the residue of the estate not bequeathed by the will, on the ground that she was the testator’s widow. There was no allegation or proof of a ceremonial marriage; the claimant had attended the probate of the will and interested herself in support of the will against the mother and sisters of the decedent, who were cited as the next of kin, and who contested the probate in that character; no claim of marriage was shown until two years after the probate;—Held, upon the state of the proofs as to cohabitation, reputation, and the acts and declarations of the parties, that a marriage in fact was not established.</p> <p>Marriage may be inferred from the acts and declarations of the parties, and though proof of this kind is an inferior kind of testimony, yet cohabitation as husband and wife may be so open, public, and continued, as to afford evidence of the most convincing character, in favor of the existence of the contract.</p> <p>Where the person claiming as a party to the alleged contract is living, and the transaction is recent, defects in the proof, or in the explanation of suspicious circumstances, are taken more adversely than when the events involved are remote, and both of the parties are deceased.</p> <p>Evidence affecting the character of the claimant is competent in a matrimonial question dependent upon circumstantial proof; but where the lapse from virtue is remote, stands alone, and is followed by amendment and propriety of living, it will not deserve much attention.</p> <p>To constitute a marriage, there must be an agreement animo et facto, to live together, as husband and wife; and in the absence of direct proof, the contract may be inferred from circumstances; but the degree of evidence as to cohabitation, reputation, and other facts, which will be required by the court, depends greatly upon the means existing, or fairly to be presumed to exist, for showing the actual character of the connection.</p>

<p>Where the testator was competent to perform a testamentary act, though in a state of weak bodily health, and mental inactivity,—Held, that a will executed the day before his decease, was entitled to probate, although its provisions were unequal; there being no proof of undue influence, and the leading features of the instrument being conformable to those of two prior wills, one made eighteen months, and the other five years previously.</p>

<p>A codicil rejected, notwithstanding proof of instructions, when it appeared that the testator xyas in a weak condition of mind and body, and had varied testamentary dispositions in behalf of his wife, expressed in a will made shortly before, in favor of a party with whom he was living, who had great influence over him, and had expressed an intention to obtain his property.</p>

<p>The intestate, previous to the death of his wife, had an unlawful connection with another woman, by whom he had several children. His wife having died, he sometime after introduced the person with whom he had been living, as his wife, and made her known as such to his friends and acquaintance. In addition, a witness testified to the solemnization by a clergyman of a private marriage : and it was held, under the circumstances, that a contract of marriage was established. Where the intercourse has been meretricious in its inception, there must be evidence to show that its character was subsequently r changed, but it is not indispensable to prove a ceremonial marriage. If there / is enough to satisfy the court that the parties recognized new relations, and held themselves out to the world, and to their associates, as man and wife ; if j, they by their conduct and declarations professed to be bound by marital ties, I and thus exhibited the continuation of their cohabitation upon a different foot- ! ing from what it had formerly been, the conclusion may be in favor of a 1 marriage, notwithstanding there was no formal solemnization.</p>