Volume 3 — Demarest's Surrogate Reports

Petition of James T. Tracey, an administrator of the estate of decedent, for the examination of Cornelius El. Slingerland, under Code Civ. Pro., § 2706, respecting certain personal property belonging to that estate, alleged to be in the possession of the latter.

Construction of the will of the testator of decedent, upon the judicial settlement of the account of the executor of the will of the latter. The facts appear in the opinion.

<p>Application, by Adeline J. Wisner for ancillary letters of guardianship. The facts appear in the opinion.</p>

Application, under Code Civ. Pro., § 2527, for an order directing delivery of a copy of a citation, in behalf of one incompetent, to a person designated. The facts appear in the opinion.

<p>Construction of will upon executor’s accounting. The facts appear in the opinion.</p>

Petition . by the executor of decedent’s will for leave to mortgage, lease or sell his real property, to pay his debts. Maurice Turner and others, infant devisees, by their guardian, objected to the proof of the claims of Matilda Amsdell and others, alleged creditors, who appeared upon the return of the citation. Further facts appear in the opinion.

<p>Petition for the revocation of letters testamentary. The facts appear sufficiently in the opinion.</p>

Application to compel John H. Waydell and Andrew G. Collins, the executors of decedent’s will, to file an intermediate account. The facts appear sufficiently in the opinion.

<p>Testator, toy his will, directed his executors to complete the building of his house, if unfinished at the time of his death, at an expense not exceeding $50,000 in the aggregate; and, if the same should not toe furnished at that time, to pay to his wife as desired “not exceeding $15,000, as an additional specific legacy, to enable her to furnish the same.” He then devised the house to his wife, and her heirs and assigns forever. The devisee sold the house unfurnished, and received from the executors $15,000, as an absolute legacy. Upon objection to such payment,—</p> <p>Held, that the purpose mentioned in the legatory clause was not of the substance of the gift, which was an unconditional one; and that the payment toy the executors was proper.</p>

Hearing of objections upon an application, made by William A. Jones, an alleged creditor, for a decree directing the disposition of decedent’s real property for the payment of his debts. The facts appear sufficiently in the opinion.

Contest over the construction of decedent’s will upon the judicial settlement of the account of Stephen H. Bacon, the executor thereof. Objections were filed by Enoch Bolles, and others, decedent’s nephews and nieces. The facts are stated in the opinion.

<p>Contest over the application for probate of decedent’s Avill. The facts are stated in the opinion.</p>

Petition by Emeline T. Howard, testator’s widow, to compel J. P. J. Howard, the executor of his will, to file an account and pay certain income and an annuity provided by the will in her favor.

Petition by the South Brooklyn Saw-Mill Company for letters of temporary administration upon decedent’s estate. The facts are stated in the opinion.

Petition - by Teresa Lynch, a creditor of decedent, under Code Civ. Pro., § 2717, for a decree directing Samuel W. Patchen, executor, and Emily L. Grey, executrix of decedent’s will, to pay her claim. The facts appear in the opinion.

Construction, upon judicial settlement of executors’ account, of a clause in decedent’s will directing the division of his estate equally between his wife, afterwards Mary E. Morgan, and children Isabella Pettit and Thomas Lacey. The facts appear in the opinion.

<p>Code Civ. Pro., § 2645, enacted in 1880, requires an administrator, with the will annexed, before letters are issued to him, to qualify as prescribed Dy law with respect to an administrator in intestacy, and makes the provisions of the article containing § 2667 applicable to his official bond. Ahe latter section, which was enacted in the same year, and prescribes the requisites of the bond of an administrator in intestacy, was amended in 1882, by adding a provision that, “ in cases where all the next of kin to the intestate consent thereto,” the penalty of the bond may be limited in a manner specified.—</p> <p>Held, that the former section, and the latter as amended, are to be construed together, as if enacted simultaneously, and that an administrator with the will annexed may avail himself of the provisions contained in the amendment of 1882, upon obtaining the consent of the next of kin, although they may have no interest in the decedent’s estate.</p> <p>The existing statutory rule on this subject—criticised.</p> <p>The principal decedent, A., died in 1881, leaving a will, pursuant to which letters testamentary were granted to B.; who died in 1884, not having fully administered upon A.’s estate, and leaving a will, pursuant to which letters testamentary were granted to C. and others. Letters of administration, with the will of A. annexed, having been granted to D., upon her petition and the consent of the next of kin of A., and her filing a bond in the penalty of 810,000, and she having petitioned for an accounting by B.’s executors as to property of A. received by them, the respondents denied the legality of D.’s appointment on the ground of the inadequacy of the penalty of her official bond.—</p> <p>Held, that D. was duly appointed; that the grant of her letters could not be attacked collaterally in the proceeding at bar; that respondents must account as desired; and that, if the security already given should thereupon prove inadequate, petitioner should be required to file an additional bond, or deposit the excess of moneys and securities in a trust company, subject to the Surrogate’s order.</p>

Application by the Home Insurance company, upon the judicial settlement of executors’ account, for a preferred dividend out of assets of the estate; opposed by Samuel E. Lyon and others, executors of the will of D. H. Haight, a deceased creditor. -

Hearing of objections to the account of Margaret Eisemann, a superseded administratrix of the estate of decedent, interposed by Margaret Lyendecker, her successor. The facts are stated in the opinion.

Hearing of exceptions to report of referee, to whom were referred the account, and objections thereto, of J. W. Van Siclen, sole surviving executor of decedent’s will, upon an application for judicial settlement.

Heartxg of objections interposed, in behalf of decedent’s children, to the account filed by the executrix of his will, in proceedings for judicial settlement. • The facts appear in the opinion.

<p>Construction of will upon executors’ accounting. The facts are stated in the opinion.</p>

Upoh the judicial settlement of the account of Mary Ann Knight, and others, as executrix and executors of decedent’s will, objections thereto were interposed in behalf of Grace A. Lidford and Frank H. Knight, infant beneficiaries in remainder. The facts are stated in the opinion.

<p>Decedent, who died in April, 1885, executed a will in 1875; and, in 1880, executed, as and for her will, three identical instruments, making a different disposition of her property, and containing a clause expressly revoking, in general terms, “all other or former wills” made by her. The three instruments of 1880 were severally entrusted by her to three different persons, one of whom was an attorney, P. Shortly before her death, she insisted on sending for the three last mentioned papers, declaring her intention to revoke them. Accordingly, P. attended upon decedent, and wrote at the end of one, and upon the back of another of these papers, a formal revocation, each of which was read to the testatrix, who declared that it was “ all right,” and subscribed it in the presence of P. and another witness, who thereafter subscribed their names to an attestation clause in the usual form. The third paper, which was in P.’s possession, he omitted to cancel. ' Upon an application for probate of the will of 1875, and a cross application for the probate of that of 1880, it was—</p> <p>Held, that both wills were effectually revoked, and that decedent died intestate.</p>

Petition for the probate of decedent’s will, presented by William G. Raines, one of the executors therein named; opposed by Celeste. M. Gardiner, a sister of decedent. The facts are stated in the .opinion.

Petition for the probate of the will, and codicils thereto, of decedent, presented by Byron D. McAlpine, one of the executors therein named; opposed by Charles B. Potter and others, decedent’s children. The facts appear in the opinion.

Application by certain creditors of decedent to compel Frederick F. Wendell, as executor, and Elizabeth Palmer, as executrix, of decedent’s will, to account and pay their claims. The facts appear in the opinion.

Application by Tunis B. Cooper and Allen B. Cooper, sons of decedent, for a decree revoking the probate of his will; opposed by Eliza Cooper, widow and executrix, and Eli Benedict, executor thereof. The facts are stated in the opinion. '

Hearing of exceptions to report of referee, upon judicial settlement of account of temporary general guardian of infant’s property. The facts appear sufficiently in the opinion.

Application by Morris M. Budlong, an attorney, and an alleged creditor of decedent’s estate, to compel Frank Clemens, the executor of the will of decedent to pay his claim. The facts appear in the opinion.

Petition by Joseph Koch to compel Henry Alker and another, administrators of decedent’s estate, to pay his claim. The facts appear sufficiently in the opinion.

•Upon the judicial settlement of the account of the executor of decedent’s will, Matilda Dustan, a legatee named in the will, having filed a claim to be paid interest on her legacy from a date specified, the executor applied to the Surrogate for instructions in the premises.

Hearing of exceptions to report of referee, to whom, the account of Thomas C. Powell and another, as executors of decedent’s will, and objections thereto filed by Caroline A. Alexander, decedent’s daughter, were referred, in proceedings for judicial settlement. The facts are stated in the opinion.

Applications by Daniel O’Brien, a son, and by Joseph W. Neubert, á grandson of decedent, for letters of administration upon her estate. The facts appear sufficiently in the opinion.

<p>One who has become invested with the office of executor may resign, hut cannot renounce the appointment; still less can he retract a renunciation.</p> <p>Where a person, who has actually received letters testamentary, performed, for a time, the duties of the executorial office, and procured, upon his own application, the revocation o'f his letters, he becomes a stranger to the estate, as regards any right or privilege previously belonging to him, by reason of his nomination in the testator’s will.</p> <p>It is the manifest purpose of the provision of Code Civ. Pro., § 2639,— allowing the renunciation of an executorial appointment to be retracted in the cases and manner therein specified,—to sanction the doctrine of the courts, which permitted one, who had not only declined to undertake the duties of an executor, hut even solemnly declared his refusal to act as such, to withdraw his declinature at any time before the estate should he put into the charge of a representative, or thereafter, when it should cease to he in such charge.</p> <p>Testator having, by his will, nominated 11. and J. as its executors, and letters testamentary having been issued to M. in June, and to J. in. Sep>tember, 1878, the former, in October of the same year, filed a petition setting forth his wish “ to renounce the said appointment as executor and all right and claim to letters testamentary,” and embodied, in the account filed by him, a declaration that he had renounced the same; wherexipon a decree was entered, declaring the acceptance of M.’s renunciation and revoking his letters. J., who thereafter entered upon the execution of the duties of the trust, having died in 1884, leaving assets unadministered, IT. applied for letters testamentary, filing what purported to be a retraction of renunciation.—</p> <p>Meld, that the case was one for the grant of letters of administration with the will annexed, pursuant to the provision of Code Civ. Pro., § 2643, which requires such letters to be issued where the office of legal representative is vacant by reason of the revocation of letters; and that the petition of M. should be denied.</p>

<p>Proceedings ' instituted by Catharine P. White, as executrix of the will of a deceased creditor of decedent’s estate, to punish Samuel A. Lewis, administrator thereof, for contempt, for failure to file an inventory. The facts appear sufficiently in the opinion.</p>

<p>Settlement of decree, entered in jmoceedings for the judicial settlement of the account of James P. Kernochan and John J. Wysong, as executors of decedent’s will. The facts are stated in the opinion.</p>

• Hearing of exceptions to report of referee, to whom were referred the account, and objections thereto, of Jacob M. Patterson, Jr., as executor of the will of Jacob M. Patterson, deceased executor of decedent’s will. The facts .are stated in the opinion.

Contest as to the validity of the claims of certain alleged legatees under decedent’s will, upon the judicial settlement of the account of Thomas B. Tappen, the executor thereof. The facts appear sufficiently in the opinion.

<p>Upon an application, made more than thirty years after the date of its alleged execution, for the probate of decedent’s will, F., one of the subscribing witnesses, testified that he signed it as such, and saw it signed by the decedent and by the other witness, since deceased; that, according to his best recollection, which, however, he admitted was indistinct, decedent signed while seated at a stand in a room of her residence, thereafter yielding her seat to F., who, after signing, gave-place in like manner to the second witness. The only other evidence was that afforded by an attestation clause, which lacked the usual completeness of form, being to the following effect: “ Signed and acknowledged by said (decedent) as her last will and testament in our presence; and signed by us in her presence.”—</p> <p>Held, though with some hesitation, that there was sufficient evidence of a virtual acknowledgment, by decedent, of the testamentary character of the instrument, and request to the witnesses to sign as such; and that the petition for probate must be granted.</p>

Application by Maria Halsey, decedent’s widow, for entry of .decree revoking letters testamentary issued to William Halsey as executor of decedent’s will. The facts appear in the opinion.

Upon application, by John Powers, a brother of decedent, for the probate of the latter’s will, a question arose as to the necessity for citing Bridget Kilfoy and David Powers, decedent’s non-resident alien brother and sister.

Petition by Amalie Geissler, a beneficiary under decedent’s will, for an order compelling John F. Werner, executor thereof of and trustee thereunder, to pay over the income of trust moneys. The facts are stated in the opinion.

Petition by Michael Walsh, executor of decedent’s will, for the examination of John Downs and another, under Code Civ. Pro., § 2706, relating to proceedings to discover property of a decedent withheld from his representative. The facts appear sufficiently in the opinion.

TJpohrthe judicial settlement of the account of Alexander P. Irvin, as executor of, and trustee under, the will of decedent, a contest arose between Estelle B. Darden, and Edith Morgan and others, infant residuary legatees, over the disposition of a legacy. The facts appear in the opinion.

Hearing of exceptions taken by Mary E. Warner and another, testamentary guardians of Louise Warner, one of the infant next of kin of decedent, to report of referee, to whom were referred the account, and objections thereto, of Benjamin Knower as executor of decedent’s will, in proceedings for a judicial settlement. The facts appear sufficiently in the opinion.

<p>Application for appointment of guardian ad litem of infant next of kin of testator, upon accounting of executor of his will. The facts are stated in the opinion.</p>

Petition by Catharine A. Beekman, widow of decedent, for a decree directing John R. Vanderveer, and another, executors of decedent’s will, to pay to her “ a sum not exceeding the value of the unpaid balance of her dower in the real estate of her husband.” The facts are stated in the opinion.

<p>Construction of decedent’s will upon application for the probate thereof, made by Frank Schreck, the executor therein named. The facts are stated in the opinion.</p>

Application by Margaret E. Whitehead, decedent’s widow, for the appointment of a successor to deceased testamentary trustees. The facts are stated in the opinion.

Construction of decedent’s will, upon the judicial settlement of the account of William D. Bruns, and another, executors thereof. The facts are stated in the opinion.

Application by Ella S. Herbert, and others, children of decedent, for the revival of a special proceeding, instituted for the judicial settlement of the account of the administrator of the decedent’s estate, again'st Anna L. Stevenson, the widow and administratrix of the estate of such representative. The facts appear sufficiently in the opinion.

Petition by Milano C. Tilden, in his own right, and Edward P. Kennard, as assignee, for a decree directing David Dows, and others, executors of decedent’s will, to pay a legacy. The petitioner alleged that, “by an assignment dated September 6th, 1884, he assigned to said E. P. Kennard his distributive share in the monies, securities and property in the hands of the executors and trustees under the will of his late father, and all his right, title and interest therein.”

<p>The word “children,” in a testamentary paper, must he taken, in its accustomed sense, and limited to offspring in the first degree, in the absence of indications that the testator intended to give it some other meaning.</p> <p>Prowitt v. Rodman, 37 N. U., 42; Beebe v. Estabrook, 79 id., 246—distin-guished.</p> <p>Testator, by his will, gave a share, in remainder, of his residuary estate, after the death or marriage of his widow, “to his sister it, if living, and if not living then to her children.” At the widow’s deatii, M. had died leaving, her surviving, sons and daughters and certain grandchildren—children'of a son who had died before his mother. Upon the judicial settlement of the executor’s account, the context furnishing no evidence favoring an exceptional construction,—</p> <p>Meld, that the surviving sons and daughters of M. took their parent’s legacy in equal shares, to the exclusion of the children of their deceased brother.</p>

Hearing of objections filed by Emily S. Andrews, a daughter of decedent, and a legatee named in his will, to the account of Ella D. Goodrich, sole surviving executrix of, and trustee under the will, in proceedings for judicial settlement. The facts are stated in the opinion.

Petition by Michael P. Breslin, an alleged creditor of decedent, for an order directing Thomas Smyth, late administrator with the will of decedent annexed, to deposit moneys with the court, and for payment of his claim, and for an accounting, and an injunction. The facts appear in the opinion.

Motion by Mary Cluff, decedent’s widow, to set aside an order referring issues presented in her petition for the removal of Edward E. Tower, executor of decedent’s will.

Petition of William F. Kidder, a creditor of decedent, for an order directing payment of his claim. The facts appear in the opinion.

Submission, by James Tilby, and another, decedent’s heirs at law, and contestants of his alleged will, of requests for findings, after decision rejecting the paper propounded as such will by Sara C. W. Tilby, as decedent’s widow.

<p>Application by George Pendle, to compel Mary G. Waite, executrix of decedent’s will, to file an inventory.</p>

<p>Old age and physical infirmity are not,- per se, disqualifications for the ofiice of administrator of the estate of an intestate.</p>

Petition by Delia A. Sayre, to compel Henry D. Sayre, executor of decedent’s will, to “make and render a judicial settlement of his accounts and proceedings,” as such executor.

<p>Decedent, during his lifetime, assigned a certain leasehold to Z., who, to secure a part of the consideration, gave back a bond, and mortgage thereof, conditioned for the payment of $3,700, in semiannual instalments “ until the whole principal sum is fully paid, and interest on the' amount from time to time remaining unpaid.....at the rate of seven per cent., per annum.” Z. assigned the lease, subject to the mortgage, which the assignee assumed and agreed to pay, to M., who assigned to another without mentioning the mortgage. Thereafter M., having been appointed executor of decedent’s will, which disposed of the estate for life, with remainder over, caused the mortgage to be satisfied of record, and filed an account charging himself with no indebtedness in the premises. Upon a judicial settlement of M.’s account, had after the death, of the life tenant, and to which the latter’s representative was not a party, no evidence was given of the payment of any part of the principal of the mortgage, or interest thereon.—</p> <p>Held, that M., by his assumption, became decedent’s debtor in the amount of the mortgage, and was chargeable therewith, in favor of the remaindermen, with interest at the rate of seven per cent., from the date of the instrument, save for the period between the death of the decedent and that of the life tenant.</p> <p>Warner v. Knower, ante, 208—compared.</p> <p>Where a will gave to testator’s widow the income of all his estate, “ after deducting taxes, assessments, interest on mortgages, if any, and other charges and expenses, for and during her natural life,”—</p> <p>Held, under the doctrine of ejusdem generis, that disbursements for funeral expenses, transportation of decedent’s remains, and services of his attending physician, were chargeable to the corpus of the estate, and not to income.</p>

<p>A gift, by will, of “ all the money left in the W. S. Bank, after carrying out ” (certain prior directions contained in the will), is a specific legacy of a chose in action, which the legatee is entitled to receive in specie, together only with such increment as may have attached thereto. No claim will lie, under any circumstances, against the executors, for interest, eo nomine, thereon; nor are they bound to make the same productive.</p>

Upon the judicial settlement of the account of Dwis:ht H. Olmstead, as executor of the will of decedent, he asked the court for an interpretation of the will, in relation to the distribution of the residue. The facts appear in the opinion.

Petition by Mary C. Rank, decedent’s daughter, to compel Hugh N. .Camp, temporary administrator of decedent’s estate, to pay her a sum of money as legatee or distributee.

Settlement of decree upon judicial settlement of account of Frederick Woehr, as executor of decedent’s will. Christian Koch and others of decedent’s next of kin appeared in the proceedings.

Application by George G. Williams, temporary administrator of decedent’s estate, for an order permitting him to pay certain debts and expenses of administration; opposed by Henry Mason and others, contestants of the will

Settlement of decree upon • judicial settlement of account of Edwin D. Morgan and others, as executors of decedent’s will. William F. Rowland, an infant nephew of decedent, and others, appeared in the proceedings. The facts are stated in the opinion.

Application by Denis Shields, a creditor of decedent, for an order directing the payment to him of certain costs, and a dividend upon the principal of his claim. The facts are stated in the opinion.

TJpou the judicial settlement of the account of the administrator of decedent’s estate, Edward Visscher and others, creditors of decedent, objected to .the payment of a claim made by Edward Wesley, under a judgment recovered against decedent in his lifetime. The facts are stated in the opinion.*

Hearing of objections interposed by Hannah M. Solomons, claiming to be interested in decedent’s estate, to the account of the executor of the will of the latter, in proceedings for judicial settlement. The facts appear in the opinion.

<p>Application by Clara E. Pease to vacate decree enteréd in proceedings for judicial settlement of executrix’s account.</p>

Motion by Sarah M. Henry, executrix of decedent’s will, to strike out allegations contained in a petition of Evan J. Henry, sole next of kin of decedent, for the revocation of probate of the will, as irrelevant, redundant and scandalous,

<p>During the pendency of the controversy over the admission to probate of the alleged will of decedent, previous phases of which are reported in 2 Hem., 298, a question arose as to the competency of the testimony of a witness who had been examined under a commission.- The facts appear sufficiently in the opinion.</p>

<p>The presumption of the continuance of life shown to have once existed must yield, in case of conflict, to that of innocence of crime.</p> <p>Upon an application, made in 1885, for a decree granting to petitioner, as decedent’s widow, letters of administration on his estate, it appeared that petitioner had been married in 1874 to one D., with whom she afterwards lived as his wife, and whom she last saw in 1875. There was no evidence that D. had been seen by any one since 1878. In 1883, petitioner was married to decedent, who was cognizant of her prior marriage to and relations with D.—</p> <p>Held, that there was better warrant in the law and in the evidence, for holding that .D. was dead than for holding that decedent and petitioner were guilty of a bigamous marriage; and that the prayer of the petition should be granted.</p> <p>Rex v. Twyning, 2 Barn. & Aid., 386—followed.</p> <p>The provision contained in 2 R. S., 139, § 6, relating to the avoidance of a second marriage contracted by a person whose former husband or wife has been absent for five years, without being known to such person to be alive during that time, has application only in a case where the absentee has been discovered to be still alive.</p>

Application by the executors of the decedent’s will, for an order directing them to deposit certain moneys, etc., in the Surrogate’s court. A cross-motion for relief was made by Hugh K. Toler, as administrator of the estate of Laura M. Toler, a legatee..

<p>Application for the probate of decedent’s will, made by Victor Foucher, the executor therein named; opposed by decedent’s widow.</p>

Sarah Fenn, widow and sole executrix of the will of decedent, having instituted a special proceeding for the disposition of his real property, for the payment of his debts, James K. Price, and another, two of the purchasers at the sale had in the proceeding, declined to take title, upon grounds stated in the opinion.

<p>Determination of question as to interest on legacy, on executors’ accounting.</p>

Petition of Hester E. Vernet, legatee, for a decree directing Thomas H. Williams, executor, to pay her legacy. The facts are stated in the opinion.

<p>As to what is the proper judicial interpretation of the expression “ legal heirs of the estate,” occurring in a will, quaere.</p> <p>Testator, by his will, bequeathed to O. the sum of $5,000, gave to his wife a life interest in the residue of his estate, and established a scheme for the distribution of the remainder after her death. A codicil to the will contained the following clause: “In the second article of my will of the bequest to Rachel Oliver my wife’s sister the sum of $5,000 I revoke and instead bequeath unto her the sum of $300 to be paid to her annually in equal quarterly payments during her natural life at which time will cease and go to the legal heirs of the estate in equal sums to be paid by my acting executrix and executors.” The widow died after O., who had received her annuity of $300, though no fund to produce it had been specially set apart. The estate being about to be distributed, decedent’s next of kin claimed to be entitled to $5,000 by virtue of the clause .quoted.—</p> <p>Held, that so much of this clause as followed the word “ cease” was void for uncertainty, and that the estate should be distributed as if the codicil ended with that word.</p>

Application by Gottfried Loesche and others, residuary legatees under the decedent’s will, to compel Hobart E. Griffin, the executor, to file an inventory, etc.

Construction of decedent’s will upon an application for the probate thereof, made by Louisa Raberg, the executrix therein named; and opposed by George F. Pfaler and another, decedent’s next of kin. The facts are stated in the opinion. >

<p>The stenographer of a Surrogate’s court is not within the scope of Code Civ. Pro., § 90, which prohibits the appointment of a clerk, deputy-clerk, etc., of a court of record to act as referee, or in other specified capacities, except upon the consent of parties not in default; nor of id., § 2511, which contains a similar prohibition as to a clerk or other employe in a Surrogate’s office.</p> <p>Under the rule of construction established by § 3355 of that Code, §§ 90 and 2511 are to be read together, the prohibition of the last named section being subject to the exception contained in § 90.</p> <p>In a special proceeding instituted for the revocation of probate of a will, the citation was duly served upon all the necessary parties, including decedent’s infant son, a special guardian for whom was, however, neither applied for nor appointed. By the consent of all the parties who appeared and took part in the subsequent hearing, a referee was appointed to take testimony and report the same to the Surrogate; who decided, upon the testimony reported, to revoke the decree of probate. The executors, respondents, opposed the entry of a decree, contending that, because of a failure to appoint a special guardian for the infant party, the order of reference and all subsequent proceedings were unauthorized.—Held,</p> <p>1. That, by the service of the citation upon all the necessary parties, including the infant, the court had acquired jurisdiction of the proceeding and of all the parties thereto;</p> <p>2. That the testimony taken in pursuance of the consent of parties should not be tossed aside as worthless at the instance of those so consenting;</p> <p>3. That a special guardian should be appointed for the infant, to ascertain and report whether it would be for the best interests of the latter to set aside the order of reference and the proceedings subsequent thereto, or that the same should stand, and a decree be entered in conformity with the decision already made.</p>

<p>Where a non-resident of the State died without its limits, leaving personal property in New York county, which was taken into actual custody by a domiciliary executrix before the filing of a petition in the Surrogate’s court of that county, in pursuance whereof the will was admitted to probate here,—</p> <p>Held, that the court had no judisdiction in the premises, and that the decree must be set aside, and the letters issued to the petitioner revoked.</p>

<p>Determination of question as to payment of taxes upon real property devised by decedent’s will.</p>

Determination of question, arising upon judicial settlement of executor’s account, as to allowance and rate of interest on legacies bequeathed by decedent’s will to Allen T. Simpkins and others, infants. The facts are stated in the opinion.

Construction of will, and codicil thereto, of decedent, upon judicial settlement of executor’s account. The facts appear in the opinion.

Motion to compel witnesses to sign minutes of testimony given by them before referee, in proceedings for judicial settlement of administrator’s account.

Determination of question as to executors’ commissions, arising upon the judicial settlement of their account. The facts are stated in the opinion.

<p>Upon a petition for probate of a will executed in duplicate, one of the two originals being shown to have been destroyed by the maker, animo revocandi, and there being no proof that the other was in her possession at any time after its execution, though it did not appear but that it was still intact,—</p> <p>Held, that a decree might be entered denying the application.</p>

<p>Petition of William C. West, as the general guardian of the property of George H. Buckner, an infant eleven years of age, and legatee under decedent’s will, to compel Francis F. Gunther, executor thereof, to pay to petitioner the legacy bequeathed to the infant.</p>

Application by decedent’s daughter, Mary J. Hoyt, for the revocation of probate of decedent’s will; opposed by James W. Jackson and others, executors. A previous phase of the controversy was reported in 2 Dem., 443. During the progress of the case upon the part of the contestant, a subpoena duces tecum, was issued at the request of the contestant, and was served upon Mr. Conkling, former counsel for the contestant, to produce certain papers therein described.

Upon the application for probate of decedent’s will, a question arose as to the interest thereunder of Frank E. Abbey, an infant grandson of Hannah Talmage, decedent’s niece. The facts are stated in the opinion.

<p>A residuum of a testator’s estate is nothing more nor less than what is left, after satisfaction of ali express or prior dispositions.</p> <p>Testator, by his will, gave all his property to his executors, in trust (1) to discharge his debts; (2) to pay to his widow, for life and in lien of dower, the interest or income from one third of all his property; (3) to pay to his mother $100,000; and (4) to dispose of the residue as directed. The condition of the estate was such as to leave a large residue, in excess of the mother’s legacy, and after setting apart one third of the entire estate for the widow.—</p> <p>Meld, that the widow was entitled to the interest or income of one third of all the property, after payment of debts, without a deduction of the amount of the mother’s legacy.</p> <p>As to whether, in case an assignment, to the life beneficiary, of one third of the estate, after payment of debts, left less than the specified amount of the mother’s legacy, the provisions contained in clauses (2) and (3) would abate equally—quaere.</p>

Application by William Wetmore, a legatee named in decedent’s will, to compel George C. Wetmore and Charles E. Carryl, executors thereof, to render and settle their account. The petition alleged that more than four years had elapsed since the executors’ appointment, and that they had not rendered any account since February, 1884, subsequent to which time they had collected at least thirty-nine thousand dollars.

Timoney, a legatee therein named; opposed by Joseph A. Booth, decedent’s husband. The paper propounded was an informal document written upon one page of a half sheet of note paper. Further facts appear in the opinion.

Petition for the revocation of probate of decedent’s will, presented by Mary Knapp, one of his next of kin, and a legatee under the will; opposed by James A. Reilly, the executor thereof. The facts appear sufficiently in the opinion.

<p>Testator, by bis will, after providing for the payment of his debts, funeral expenses, etc., gave to his adopted daughter, J., an adult married woman living with her husband, the farm on which testator resided, and the household furniture, absolutely, and further directed his executor to invest $4,000 in a specified manner, and to pay the interest, after deducting commissions, annually to said daughter ; the principal, at her death, to go to her children. The estate- was adequate for the payment of all debts and legacies ; more than $4,000 thereof being, at the time of testator’s death, and continuously thereafter remaining invested as specified, and drawing interest. The life legatee asked for interest on said sum from testator’s death; the residuary legatees, on the other hand, contending that interest did not begin to run upon the legacy until all decedent’s debts were paid.—</p> <p>Meld, that the life provision for J. was a general legacy, not falling within any of the exceptions to the general rule, whereby interest on such legacies begins to run only at the expiration of a year from the testator’s death.</p> <p>Authorities upon the subject of payment of interest on legacies—collated; and the rules governing the same—stated.</p>

Application by Mary J. Lyman and another, next of kin of decedent, for a decree revoking the probate of his will; opposed by Mary B. Phillips, executrix thereof. The facts appear sufficiently in the opinion.

Jesse S. Hulse died May 15th, 1884, leaving a will which was admitted to probate August 20th of the same year, and contained the following provisions : “ I give and bequeath unto my beloved wife, Sarah J. Hulse, all my personal property for her own benefit. .....

Petition for the probate of decedent’s will, presented by Rienzi A. Goldsmith, the executor therein named; opposed by Warren G. Rumsey, decedent’s son. The facts are stated in the opinion.

Application by Susan M. Woodruff, decedent’s widow, for the revocation of letters of administration issued upon the estate of decedent, who died October 26th, 1884, to William EL Woodruff, his brother, after citation to the widow to show cause why the appointment should not be made.

On January 14th, 1884, letters testamentary were issued to Thomas Welling, Sarah Welling and John IT. Butts. Butts died July 15th, 1884, after having acted up to that time. On the accounting, it was claimed that three full commissions should be allowed and apportioned, the manner of the apportionment being agreed upon between the two survivors and the executrix of the deceased.

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

Hearing of objections interposed by David Allen and others, decedent’s nephews, to the account filed by Harriet Allen, the administratrix of his estate, in proceedings for judicial settlement. The facts are stated in the opinion.

Petition by Sally Kelsey, decedent’s widow, for the opening and modification of a decree made December 21st, 1883, judicially settling the account of Benjamin F. Yan Camp, as executor of decedent’s will. The facts are stated in the opinion.

<p>Application, by the widow and daughter of decedent, for revocation of letters testamentary issued to George Simmons, as executor of decedent’s will. The facts are stated in the opinion.</p>

Jared V. Peck, .a brother o£ the intestate, Mary P. Peck, within a year past, had made application to be appointed administrator, etc., of the intestate, representing, in his application, that the personal property of which she died possessed did not exceed, in value, the sum of $250. On giving a bond, with two sureties, in a penalty of $500, and on taking the usual oath, letters of administration were issued to him.

The claim of the petitioner was rejected by this court in an earlier stage of the matter (4 Redf., 369), as being barred by the statute of limitations. That decision was finally reversed (95 N. Y. 31), and the matter remitted to this court.

. The administrator, with the will annexed, became such in 1878.

A petition was presented by Jane Valentine, from which it appeared that, by the will of Abraham Valentine, deceased, certain trusts were created; that Samuel M. Valentine, who was sole trustee named in said will, had died leaving certain of said trusts unexecuted ; and praying for the appointment of a trustee in his place, as to one of the trusts. Only the persons interested in that trust were thereupon cited.

<p>This was an application made by Julia C. Smith, the wife of John B. Smith, to open a decree made in July, 1884, settling the accounts of Theodore Baylis as administrator of the intestate, who died in March, 1874, and directing distribution of the fund. On that accounting, it appeared that a judgment had been obtained against said John B. Smith, who was a son of the intestate, and that proceedings supplemental to execution had been taken and were pending. The distributive share of said John B. was, by the decree, fixed at $212.27, and the administrator was directed to retain the same until the further order of some court having jurisdiction in the premises should lawfully direct the disposition thereof. The petitioner stated that, on December 23rd, 1863, her husband conveyed to the said intestate all his right, title and interest of, in and to all his real and personal property then owned or possessed by him, or to come to him from the estate of Martin Smith (his father) or Anne Smith (his said mother), or from any other source whatsoever; and that, on the next day, said Anne Smith conveyed the same to the petitioner; and she, therefore, alleged that she was the owner of and entitled to said distributive share, and asked that the decree be altered and amended accordingly.</p>

David Hawley, the testamentary guardian and trustee of Adam M. Singer, recently cited the ward and cestui que trust, who had attained lawful age, to attend a settlement of his accounts as such guardian, etc. Pending this proceeding, and before the filing of the account, Mr. Singer made an application, praying that a decree, made on the accounting of said Hawley as executor of the will of the deceased, and entered in 1877, and that two decrees on accounting by him as trustee…

Catharine S. Morell left a will, by which, among other things, she gave to her husband, General George W. Morell, the use of a mortgage of §25,000, and the use of the proceeds, if paid in, during his life.' At his death, §5,000 of the sum was given to St. Mary’s church, at Beechwood, Westchester county.

Application by Edward B. Long, a creditor of decedent, for a decree directing the disposition of decedent’s real property for the payment of his debts. The facts appear sufficiently in the opinion.

After bequeathing certain legacies, and making some other provisions, Isaac M. Singer, deceased, by his will, directed the residue of his estate to be divided into sixty parts, ten of which were given to his son, Adam Mortimer Singer, then a minor, but who recently attained his majority. The will contained this clause': ‘ Eighth.

Abraham Valentine died leaving a will of which Samuel M. Valentine, his son, became sole executor. Among other things, the will devised a life estate in a dwelling house in the city of New York to Jane Valentine, the widow of a deceased son, which the executor was directed, out of certain funds, to keep in repair, and to pay the taxes and insurance premiums thereon.

The testator, by his will, provided as follows : And I also reserve five hundred dollars for an arbor vitce hedge around the plot in burying ground, and for other things necessary about the plot, and what is remaining of the above (500) five hundred to be given to some Sunday School, Rye Presbyterian or charitable institution.” Only twenty-five dollars was expended for the hedge, and in doing other necessary things about the plot, a,nd there remains four hundred and…

The testator died in the fall of 1869, leaving a last will and testament, which was admitted to probate in December of the same year. He left a widow and five children, two sons and three daughters, the youngest of whom is Martin McCormick. All of the property left by him consisted of real estate.

On the accounting in this matter, it appeared that the assets of the intestate were insufficient to pay her debts. Some of the creditors objected that the administrator had omitted, from the inventory and from the .account, the amount of a promissory note for $222.50, which the deceased held against the administrator, together with interest thereon. The latter alleged that the note had been paid by him to the deceased, during her life time.

Petition of Matthew Morgan, an infant beneficiary under decedent’s will, by James N. Platt, his guardian ad litem, for the removal of Henry Morgan and another, from office as testamentary trustees under said will. The facts appear sufficiently in the opinion.

<p>The widow of a decedent, who has accepted under her husband’s will a legacy bequeathed to her in lieu of dower, is not entitled, as against creditors, even to the extent of the value of her dower interest, to priority of payment. Her claims are superior to those of voluntary legatees, but her husband’s debts must be satisfied before any property of his estate can be lawfully applied to the discharge of her legacy.</p>