Volume 3 — Mills's Surrogate Reports

<p>"Testamentary Trustee—Petition for Payment of Income—Trust Income Not Assignable—Answer Under Code C. P. § 2805.</p> <p>A testamentary direction to executors as trustees to pay, pending the sale and distribution of the testator’s estate, a certain sum per month out of the income to each child, or if it dies to the issue, amounts to a trust interest and is not assignable by a beneficiary, and, therefore where one of them petitions the surrogate to compel the trustees to pay him income, their written answer, setting up an assignment made by him of his interest to a third party and denying that Ms own claim, is valid and legal, does not require a dismissal of the petition as, within Code C. P., § 2805, the answer does not set forth facts “ which show that it is doubtful whether the petitioner’s claim is valid and legal.”</p>

<p>'Administration With the Will Annexed—Revocation of Renunciation—Revocation of Letters fob Improvidence—Right of Beneficiary to Administer—Notice—Code C. P. §§ 2685, sued. 2, 2644.</p> <p>A renunciation of a right to administer with the will annexed may be withdrawn by permission of the court before it has been used and letters should not be revoked merely because prior to appointment such a reunciation had been executed by the appointee.</p> <p>The fact that a certain trust in real estate has, while in his hands, greatly diminished in value and income does not of itself show that he has a tendency to improvidence, within Code C. P., § 2685, subd. 2, relative to the acts and conduct which disqualify an administrator, and cannot alone justify revocation of his letters.</p> <p>Under a will devising a testator’s real estate equally to his seven children and to a trustee for the eighth for life, with remainder over to his issue, the beneficiary has the same right to appointment as ad-1 ministrator with the will annexed as has each of the other children, and as all are in the same class and no one of them is, as to the others, entitled to a preference in appointment as being residuary legatee, the surrogate may appoint the beneficiary administrator with the will i annexed without notice to the others.</p> <p>I Reversed, 77 App. Div. 155.</p>

<p>Evidence—Proof by Subscribing Witness—Administration—Revocation of Renunciation.</p> <p>Persons who saw certain instruments executed, but did not then subscribe them as witnesses are not in the contemplation of the law subscribing witnesses to them, and their subsequent proof of the papers, in the manner required of a subscribing witness to a deed, and their subsequently affixing their signatures to the papers cannot, without request of the parties, make the papers admissible in evidence as having been duly proved by subscribing witnesses.</p> <p>Semble, that the right to withdraw a renunciation of one’s right to administration with the will annexed is subject to the permission of the court; and where the sole legatee, under a will which failed to appoint an executor, and who was a stranger to the blood, renounced her right to administration with the will annexed and also for value assigned all her right, title and interest under the will, the surrogate considered that a case was presented for the exercise of discretion in determining whether he would subsequently permit the sole legatee to withdrajw her renunciation and apply for appointment—her assignee being a rival claimant to administration.</p>

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

<p>Application on behalf of all the infants, except William Doyle, for the removal of the trustee herein. . '</p>

<p>Accounting—Legatee’s Right to Compel—Code C. P. §§ 2727, 2728— Removal of Referee.</p> <p>A legatee under a will may compel an executor of it to account, but there can be no distribution of the fund until all the parties in interest have been cited and given an opportunity to be heard.</p> <p>It is only where it appears from the executor’s account, or otherwise, that there is a surplus distributable to creditors or persons interested, that they are to be cited, and in such case it is discretionary with the surrogate to cite them.</p> <p>If the executor apprehends that there may be a necessity for two trials of the same issues, contested in regard to his account, he may apply voluntarily to account and have the latter proceeding consolidated with the compulsory one.</p> <p>A referee appointed to pass upon the contested account of an executor will not be removed at his instance where no facts show that the referee was biased against the executor or his attorney.</p>

Appeal by Daniel A. Bullard, 2d; Charles E. Brisbin, individually and as- executor, etc., of Daniel A. Bullard, deceased; Harriet S'. Bullard and Helen F. Brishin, from the order of the surrogate of Saratoga county determining the value of the estate of said deceased, entered upon the report of Bartlett B. Grippin, county treasurer of Saratoga county as appraiser, dated February 20, 1902, under article 10 of the Tax Law, relating to taxable transfers of property.

Catherine Hawley, a resident of the town of Clifton Park, Saratoga county, died on the lYth day of June, 1901, intestate. On the 25th day of June, 1901, George H. Tuite, a grandnephew of the deceased, filed a petition in the Surrogate’s Court of said county praying that letters of administration be granted him upon the estate of the deceased.

Motion by Mary G. Craytor, Lona M. Craytor, Frances Eckor, Lucien Craytor and Edward Craytor, legatees under the will of said deceased to open, vacate, modify or set aside the decree made on the 8th day of March, 1902, settling the accounts of the said executor and trustee, and for a rehearing on account of clerical errors and mistakes alleged to have been made by the court on the settlement of said accounts.

<p>Remainder—Effect of Widow’s Election to Take Dower—Commissions of Executors as Trustees—On Dower Admeasured.</p> <p>Remainders, devised by a testator after the death of his widow, to persons not determinable until then, because of a provision to let in certain issue if existing at her death, are not accelerated by her election to claim dower rather than accept the life estate given her by the will.</p> <p>Where satisfaction of her dower has necessitated the application thereto of a part of the proceeds of real estate given by the will to others, the deficiency in the proceeds must be made good from the income thereof accruing during her lifetime, and thereafter said income must be applied, as long as it may be necessary, but not beyond her lifetime, to make good deficiencies in legacies depleted by her election to take dower.</p> <p>Where executors have set apart a trust fund, paid out its income, and the principal is presently distributable, they are entitled to commissions on the principal in both capacities; but where the beneficiary dies before they have set apart his fund they are entitled to commissions on the principal as executors only.</p> <p>Payment of dower, admeasured by a judgment of the Supreme Court, is not an executorial duty under the will and no commissions can be allowed on the payment.</p>

<p>Trust—Following a Fund Commingled With the Trustee’s Own Property.</p> <p>Executors of a deceased- trustee are chargeable with a trust fund where it is admitted that he had it nine years before his death, where it is not shown that he ever parted with it, and where he, and they, after his death, paid the interest or income of it to the beneficiary; and the fact that it cannot now be distinguished as such, having probably been commingled by the trustee with his own property, cannot defeat an application by the present trustees of the trust for delivery to them of the fund by the executors.</p>

Application under section 2703 of the Code of Civil Procedure for the recording of a copy of the will of Viola L. Rash, •deceased, which was probated in Rorfolk county, Massachusetts.

<p>Administration With the Will Annexed—Revocation of Renunciation, Subject to Discretion—When Refuse®—Assignment oe' Legacy Attacked fob Fraud—Code C. P., § 2643.</p> <p>Under a will, appointing no executor, the sole legatee, primarily entitled to administration with the will annexed, cannot withdraw a renunciation of that right without the permission of the surrogate.</p> <p>Where, besides executing the renunciation, the sole legatee had at the same time duly assigned all her interest in the estate for a substantial and not inadequate consideration, the surrogate refused to permit her to withdraw her renunciation and apply for letters.</p> <p>The surrogate has discretionary power to permit retraction of a renunciation procured by fraud.</p> <p>The surrogate cannot decide, as an independent proposition, whether ' the assignment was procured by fraud hut, under the circumstances, may determine as'a fact whether or not it was made.</p> <p>He appointed the assignee administrator with the will annexed upon the ground that he was the owner of the whole estate and > therefore most likely to administer it honestly and economically, ' the next of kin consenting.</p>

Proceeding by Lee Smith, as administrator with the will ‘annexed, of the goods, etc., of Emma A. Weeden, to compel Charles D. Gardner and James Waldron, as executors of the last will and testament of William 0. Weeden, the deceased executor of the last will and testament of the said Emma A. Weeden, to account.

<p>Objections by the New York Botanical Garden to payments made by executors under the War Revenue Law, involving similar payments made under Transfer Tax Law.</p>

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

<p>Testamentary Trustees—Removal for Cause.</p> <p>A testamentary trustee, compelled to account as executor, and then unable to show that he had in his possession the moneys with which he was chargeable, and who, in order to answer the charges made against Mm, hastily procures pieces of real estate, subject to taxes and incumbrances, to be conveyed to him by relatives, agents and employees, must be removed from the trusts as false to them, and so must a co-trustee, who consented to his acts, although not sharing in them, as he cannot be a mere figurehead.</p> <p>See 43 Mise. 569.</p>

<p>Motion to dismiss the petition for a compulsory accounting, and to strike out the objections to the voluntary account.</p>

<p>Services—In the Family Relation—Code C. P., § 829—Payments of Administratrix.</p> <p>It is to be presumed that services rendered by two daughters to their father, while living with him in the family relation, were gratuitous.</p> <p>Where they occupy the position of claimants against their father’s estate independent of each other, each may, in order to rebut the above presumption, testify for the other that she heard her father say that “if we stayed there and worked, we should have what he had left after his death.”</p> <p>An administratrix has no right to pay out of personalty taxes and mortgage interest which accrued after her intestate’s death.</p>

<p>Aplication for revocation of probate:</p>

Application by petitioner herein, that the respondent, the administratrix, with the will annexed of the decedent, be required by a decree of this court to execute to said petitioner an assignment of 'all the property and choses in action constituting the residuary estate of testator.

Application to vacate the docket of a decree of the Surrogate’s Cburt in the county clerk’s office and an execution issued upon the decree upon the ground that it was issued against the party as executor.

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

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

The decedent died intestate July 25, 1901. On November 24, 1899, the decedent made an anti-nuptial agreement with. Dora Johnston. It was in writing, and, after reciting their contemplated marriage, and that the party of the first part was desirous of making provision for a fit and proper settlement for the use and benefit of his said intended wife, provided, among other things: “ Third.

<p>Proceedings upon the accounting of an executor.</p>

<p>Proceedings upon the judicial settlement of the account of -executors. Objections to executors’ account.</p>

<p>Motion for the surrogate to order that the widow of Wilsons Perry be paid in cash from the money in the hands of the administrator, belonging to said estate, the value of certain articles^, enumerated in section- 2713, Code of Civil Procedure, and under subdivisions 1, 3, and 4 of said section, for the reason that at the death of Wilson Perry, some of the articles enumerated in said section, under said subdivisions, were not in existence, and for that reason she did not receive them.</p>

<p>The final settlement of the account of Edward K. Mersereau,, as executor of the estate of Jesse Woughter, deceased, was contested by Angeline Barney, and Emnina Olmsted.</p>

<p>Costs—On a Disputed Claim Refereed on a Judicial Settlement to the Subrogate—Code C. P., §§ 1822, 2561.</p> <p>In all cases where disputed claims are submitted to a surrogate for determination on a judicial settlement, pursuant to Code of Civil Procedure, section 1822, the allowance or disallowance of costs to the claimant is in the surrogate’s discretion, limited only by Code of Civil Procedure, section 2561.</p>

<p>Application to revoke letters of administration issued to Louis Pfarr.</p>

<p>Motion to modify the decree herein assessing and fixing the tax upon said estate. :</p>

<p>Gift.</p> <p>Proof by the third wife of a donor, that he, a few weeks before his death, gave her three bank' books and three checks signed in blank, instructed her in writing to go to the banks, fill out the cheeks for the balances due and transfer them to the credit of their infant daughter, when accompanied by the evidence of a holographic instrument executed within a few months of the transaction and which would have been good as a will if signed at its physical end, making the same disposition of the bank deposits, shows, as against children of a former marriage, a sufficient delivery to or for the donee and a valid gift to her of the deposits.</p> <p>Facts, showing a somewhat similar valid gift of a mortgage.</p> <p>Affirmed, 85 App. Div. 620.</p>

<p>Will—Undue Influence—Confirmatory Declarations of the Testator.</p> <p>The will of a testator, aged sixty years and long separated from his wife and married daughter, made during Ms last illness and about three months before his death, giving to his grandniece all Ms estate amounting to $6,400 as compensation to her for nursing him during his last illness—consumption which during the last five months of the disease assumed a serious form—sustained where he was a man of strong mind, conducted his business affairs until a month before Ms death and there was no evidence of undue influence, the proof showing merely an opportunity for the grandniece to exercise it.</p> <p>Statements which he made to others, in one case nearly two years before his death, that he intended to give his property to his grandniece, that Ms relatives did not care for Mm and that he did not propose to leave them anything, are strongly confirmatory of the will.</p>

<p>Will—Subscription bt an Illiterate.</p> <p>If a testator is illiterate his subscription of his will may be by a mark or symbol, but it cannot be dispensed with.</p> <p>An instrument, disposing of property, written in Italian by a New York notary public, an Italian speaking English so imperfectly as to require an interpreter, contained the clause: “The present will is not subscribed by the testator because he has stated that he is illiterate; ” and the subsequent clause: “It was read to the testator, and it is only signed by the witnesses and by me, the notary,” this course being in uniformity with the law of Italy in regard to wills of illiterates. The only thing which could be claimed as a signature, was a check-mark, such as people sometimes use to indicate that a document is correct, occurring on the line after the above word “illiterate:” The notary stated that it was -a mark made by the party to signify that he was in fact illiterate. There was no evidence that the party made the mark as and for his signature. .</p> <p>Held, that the paper was not so executed by the testator as to entitle it to be probated as a will.</p>

<p>-Jurisdiction—Surrogate Cannot Settle a Controversy Arising Out of Acts of Administrators Concerning Property Not Rightfully in Their Hands—When Insurance Moneys Belong to the Heir— Only the Owner of Property Can Change its Legal Character.</p> <p>. Property that descends to the heirs of an intestate does not pass to his administrators, and if they assume possession of it and exercise dominion over it a surrogate has no jurisdiction to settle a controversy arising out of their acts.</p> <p>The father of an intestate infant dying without lawful descendants instantly inherits the infant’s share in lands which he held as tenant in common with his brothers and sister, and where insured buildings on the lands are burned later, the insurance moneys belong pro tanto to the father as heir and he, as heir, cannot be deprived of them by the fact that the policies ran in the infant’s name, among other tenants in common, and not in the father’s name.</p> <p>Where the infant left neither personalty nor any debts, his administrators, consisting of the father and another of his sons, appointed to settle the loss and to be deemed mere trustees for the ■father as heir in receiving payment from the insurers, take nothing as administrators.</p> <p>The fact that the insurance fund, deposited to the joint credit of all the tenants in common including the administrator who was the brother of the infant, but not including the father of the infant, was checked out and divided upon checks signed by the said administrator, with the other tenants in common, does not ch'ange the character of the part formerly belonging to the infant from realty to personalty and this because only the father as owner could effect the change.</p> <p>If, after division, the amount belonging to the father was paid out for his debts by the administrator as his trustee, the fund was then the father’s money and not that of the infant.</p> <p>Therefore the trustee in bankruptcy for the creditors of the father cannot, after his death insolvent, make the surviving administrator of the infant account to him in a Surrogate’s Court for the share which the father inherited, whatever rights his creditors or the trustee in bankruptcy may have in other courts against said administrator individually or as trustee for the father.</p>

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

<p>Trusts in Personalty—Form of Savings Bank Account Not Conclusive—Intent of Depositor Controlling.</p> <p>Although the opening of an account in a savings bank by a persons since deceased, in her own name, in trust for a third person, constitutes a declaration of trust it is not absolutely controlling because the intent of the depositor controls.</p> <p>Therefore no trust will be presumed if, from all the circumstances- or in any other way, it can be gathered that the depositor opened the account in this manner merely for convenience or for any other reason, without intending to transfer the beneficial interest in the fund to the party named in the account as beneficiary.</p> <p>The principle applied to a case where the depositor had eight or ten accounts in a single savings bank, together exceeding by several fold the amount which one person can lawfully deposit on interese in one such bank, and where, although these accounts were nominally in trust for several persons, she had at all times treated all of them as her own.</p> <p>Reversed, 89 App. Div. 368; reaffirmed, 179 N. Y. 112.</p>

<p>Legacy—A Gennebal Residuary Clause Controls a Lapsed Legacy.</p> <p>Under a will giving all a testator’s residuary estate to Ms executors and directing them to sell it and dispose of it to certain person* and also containing a final clause directing the executors to divide all the rest, residue and remainder of said proceeds equally among the children of Ms brother Oliver when they reached majority, legacies to another brother and two sisters of the testator, which lapsed because they died: before he did, do not go to the next of kin, but to the children of Oliver as the provision in their favor is to be deemed a general residuary clause.</p>

<p>Administration—Presumption of the Death of One Who Might be Entitled—Creditor’s Right.</p> <p>For the purpose of a contest relative to the right to administer upon the estate of an intestate, a person, who might be entitled, must be presumed to be dead where he, then a small boy, was sent in 1868 from an institution to the west and has never since been heard from despite efforts made by counsel in that behalf.</p> <p>A creditor has no right to administer if there are any next of kin.</p>

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

<p>Proceedings upon the final accounting of an executor.</p>

<p>Will—Precatory Words—Sole Devisee "Desired” to Make a Gift Out of His Devise.</p> <p>Hinder a devise and bequest by a testatrix of all her estate to her son, accompanied by the proviso, “ but out of this inheritance he is desired by his mother to pay as soon after as possible that it comes into his ownership five hundred dollars ($500) to her grandniece,” Ellie Clark, “ recognizing in this form the kindness bestowed upon your mother in her youth by her brother, the grandfather of said Ellie Clark,” the grandniece is entitled to the gift to her as the above provisions are precatory words showing an intention to make it.</p>

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

A petition was presented to the surrogate by Schuyler C.Brown who claimed to be a creditor of the deceased, stating among other things, that more than eighteen months had elapsed since letters of administration of the goods, etc., of said deceased were issued to Susannah T. Clapp, and praying for a citation requiring her to show cause why she should not render and settle her account of her proceedings as such administratrix.

<p>Property When Peat, and When Personal—“ Ancestor ” as Used in the Real Property Law.</p> <p>Proceeds of real estate, inherited by an incompetent and subsequently sold by his committee under the statute, are real estate in the hands of his administratrix and the Surrogate’s Court has no-jurisdiction over them, where the personal estate of the incompetent, is insufficient to pay his debts and funeral expenses, except to pay therefrom the balance of raid debts and funeral expenses and remand the remainder to his committee.</p> <p>Proceeds, of a sale in partition had among the heirs of the incompetent’s uncle, deposited with a county treasurer during the tenancy by the curtesy in them of his aunt’s husband and to which the incompetent became entitled by virtue of her death, but which became payable only upon the death of her husband, are to be deemed personalty and particularly where they were paid by order of the Supreme Court, to the incompetent’s administratrix as personalty.</p> <p>Semble, that the word- “ ancestor ” as used in the Real Property Law (L. 1896, chap. 547, § 290) declaring that where the inheritance came to the intestate from an ancestor, all who are not of his blood shall be excluded from inheriting, does not necessarily mean a progenitor, may mean other relatives, and particularly that relative from whom the intestate acquired his inheritance.</p>

<p>Alien Italian Intestate—Bight op His Consul to Administer and Thereafter Send the Surplus to the Next op Kin in Italt—Construction op Treaties.</p> <p>Í The provisions of the ninth article of the treaty between the Argentine Republic and the United States, made applicable by the “most ’ favored nation ” clause of the Commercial Treaty of 1871 to the Kingdom of Italy, entitle an Italian consul in this country to the posses- ' sion and administration of the property of all Italian subjects dying i intestate within his consular jurisdiction and after administration he Í may send the surplus to the next of kin in Italy.</p> <p>This right accrues to him under those words of the treaty giving him “ the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased” and is not cut ■down by the succeeding words “ conformably with the laws of the country for the benefit of the creditors and legal heirs,” as these latter words .provide merely for the procedure, j Treaties must if possible be liberally construed, having in view the legislation, in regard to them, and the executive acts, under them, of the high contracting parties.</p> <p>In a case of doubt they should be interpreted according to inter-i national law.</p> <p>I An attempt should be made to reconcile treaties with our Federal '' laws, but the fact that a treaty cannot be reconciled with State law</p> <p>affords no reason why the treaty should not be enforced by a State ¡ court.</p>

<p>Construction of a Decree Directing Payment of a Distributive Share • to the Court.</p> <p>A decree directing an administrator, if unable to pay a distributive ■ share to the distributee, to pay it “ to the surrogate’s court ” of the county must be taken tp mean payment' into court in the manner-prescribed by Code of Civil Procedure, section 2537, and therefore payment to the surrogate himself cannot discharge the administrator.</p>

<p>Transfer Tax—Finality of Surrogate’s Determination — Appeal Therefrom.</p> <p>Where a, surrogate has determined the cash value of an estate for | the purpose of the transfer tax he has no power to modify his deter- | ruination in order to allow -the executor the amount of a judgment subsequently recovered against the estate by suit after he had ra- ; jected the claim, another claim presented against the estate after the | Appraisal and certain expenses of administration.</p>

<p>Will—Execution—Publication—Viewing Signature — Republication by Codicil.</p> <p>Where many circumstances attending the execution of a holographic will and a holographic codicil, both having holographic attestation clauses, indicated compliance with the statute of wills, the court admitted the papers to probate although the subscribing witnesses testified, seven years after the fact, that the testator neither subscribed the papers in their presence nor acknowledged to them subscriptions, therefore made, as made by him.</p> <p>lío particular form of publication of a will is necessary.</p> <p>If the witnesses could have seen the signature of the testator them legally they did see it.</p> <p>A codicil cannot aid. a will unless the will was duly executed.</p>

<p>Executor—Settlement of Partnership Affairs—Compensation of Continuing and Liquidating Partner.</p> <p>Where a father’s will authorizes his son, partner and executor, to continue the firm business, the son cannot as executor obtain, either for continuing the business if he elects to do so or for winding it up, any compensation beyond his commissions and his legal share of the profits.</p> <p>Where the executor is the sole surviving partner of the testator he must settle his account as executor and as partner in the- Surrogate’s Court; he cannot go into the Supreme Court as he cannot be both plaintiff and defendant in the same action.</p> <p>Distinguished, 39 Mise. 515</p>

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

<p>Collateral inheritance tax—On defeasible remainders.</p> <p>A decedent who died when chapter 399 of the Laws of 1892 was in in force gave the income, of his estate to his wife for life and directed that the estate should he divided at her death, which, occurred in March, 1901, among his children then surviving. In 1895 the tax on the life estate was fixed hut not that upon the remainders and this because they although vested were defeasible.</p> <p>Held, that in determining the collateral inheritance tax on the remainders as of the widow’s death section 230 of the Tax Law of 1896, as it stood in 1897, 1901 and 1902, applied and that under it the remainders were taxable at their full value without deduction for the life estate of the widow.</p> <p>Quaere whether said section 230 could be deemed unconstitutional as impairing the value of a vested estate.</p>

<p>Proceedings upon settlement of the account of executors. ■ :</p>

<p>Equitable Convebsion—Eight of Cbeditobs of a Testatob to Beach Peoceeds of a Sale of His Lands Lying in a Fobeign State.</p> <p>Where a testator directs Ms realty to be sold and converted into money to satisfy legacies given by Ms will and the sale has actually been made the proceeds are applicable to Ms debts, since the remedy of the creditors against the land has been cut off.</p> <p>Where executors of a testator, domiciled here and owning lands in a foreign State which he orders them to sell, take out letters in the probate court of the foreign State and sell those lands, they must .account in our courts to creditors of the testator for the proceeds. .</p>

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

<p>Executob—When Chabgeable With the Devastavit of His Coexecutob.</p> <p>In order to charge a surviving executor with the devastavit of a deceased sole acting coexecutor, it must be shown that the surviving executor was negligent and suffered his coexecutor to receive and waste the estate when he had the means of preventing it by proper care.</p> <p>Ordinarily an executor is responsible only for his own acts.</p>

<p>Proceedings upon the judicial settlement of the account of executors. Objections to account.</p>

It appeared from the proof submitted to the surrogate of Sara-toga county, upon the hearing in the above-entitled proceeding, that the decedent left a last will and testament, in which she made the following provisions: “ First.

<p>Proceeding upon the judicial settlement of a guardian’s- account. Objections filed by special guardian.</p>

<p>Judicial Settlement—Burden of Proof as to a Claim Allowed But Not Paid by an Administrator—Rule Where a Claim is Barred by Time—Promise to Pay When Able.</p> <p>One who, upon the judicial settlement of the account of an administrator, objects to a claim which the latter has allowed, but not paid has the burden of establishing it to be invalid.</p> <p>Semble, that where such a claim or items in it are barred by the Statute of Limitations the administrator must satisfy the objector and the court that the defense of the statute was considered before allowance made; but, that the claim may still be allowed by the administrator if the facts and circumstances surrounding it as disclosed upon the accounting show that the statute could not have been successfully interposed to it.</p> <p>An action does not accrue under a promise to pay when able until the promisor is pecuniarily able to pay.</p>

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

Application of executrix'to strike from the proceedings the names of an administratrix of a deceased legatee of another estate of which the widow’s decedent was executor, and the objections which one of them has interposed.

<p>.Will—Undue Influence.</p> <p>Where a testator was old, deaf, feeble and unable to read or write and his will, made a few days before his death, was dictated to the scrivener by one beneficiary and was executed in the presence of both, one son and a wife of one year’s standing, and it without apparent reason disinherited another son and a grandchild, the surrogate rejected the will, holding that whether or not the testator was upon the testimony of sound mind he had undoubtedly been subjected to undue influence in the matter.</p>

Proceedings upon the judicial settlement of the accounts of •an executor. There being no dispute as to the facts, the matter was submitted upon the issues raised by the agreed statement of facts and the answer of the trust company as trustee herein, as a question of law to be determined by the surrogate.

<p>Transfer Tax—When a Remainder is Not Taxable.</p> <p>A remainder is not presently subject to the transfer tax where it is limited to children of the life tenant, or her appointees by will, and she is not shown to have any children, as, in such case, no transfer, defeasible or otherwise, of the remainder has yet been made.</p>

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

<p>Motion to dismiss transfer tax proceedings after the usual reference for appraisal has been made.</p>

<p>Judicial Settlement of Account—Nature of an Executor’s Claim Against His Testator as Mortgagor—Not Subject to Collateral Attack—Costs When Denied Contestant.</p> <p>Mortgages given an executor by a testator on property of which he died seized are not claims which the executor must establish upon the judicial settlement of his account by proof, nor are such mortgages assailable therein by objectors to the account upon the ground of fraud—or otherwise than by a direct equitable action between the parties.</p> <p>Where the account as settled shows that the estate owes the executor more than he has been surcharged as a result of a contest, the contestants should not have costs as they have not rendered the estate any material benefit.</p>

<p>Judicial Settlement—Executors’ Expenditures fob Theib Account Not Limited by Code C. P., §§ 2561, 2562.</p> <p>The amount which executors may lawfully expend and be allowed for the services of counsel, upon the judicial settlement of their account, in preparing the same and for procuring it to be passed and settled is not limited by Code C. P., §§ 2561, 2562.</p>

<p>Transfer Tax—Deductions foe Expenses of Administbation and fob Taxes.</p> <p>In proceedings taken to determine the value of an estate for the purposes of the transfer tax, the reasonable cost of a burial plot, proper for the decedent, as well as the cost of fencing and sodding it, must first be deducted as an expense of administration or of the funeral.</p> <p>There must also be deducted taxes upon his real estate when the same were due and payable before he died and this because it is the absolute duty of executors to pay such taxes and they would be censurable if they did not pay them.</p>

<p>Life Estate—With Power to Life Tenant to Use the Principal “ fob His Comfort.”</p> <p>Under a gift and bequest, made by a wife to her husband, of the use of all the property of which she may die possessed, subject to any bequests she may name, and under the further provision that he is@,, to have the use and income of all said property during his life and', any part of the principal that may be needed “ for his comfort,” he.is the sole judge of the amount of principal he needs for his comfort, and support, and dying, next of kin of the testatrix cannot restrict-, the bequest by seeking to compel his executors to show what his individual income was or what sum was actually sufficient and necessary for his support and comfort.</p>

<p>Transfer Tax—Refunded When Paid Under a Statute Declared Void After Payment.</p> <p>After the Court of Appeals has declared unconstitutional a statute [L. 1899, chap. 76) imposing a transfer tax upon certain remainders, and reversions, persons who paid that tax, but did not appeal within the time fixed by law from the decree imposing it may move to vacate the decree and may have their payments refunded, as the court of the surrogate has power to vacate its decree when void because rendered under a statute subsequently declared unconstitutional.</p> <p>Affd., 80 App. Div. 388; 175 N. Y. 507.</p>

<p>Application to fix the tax on the respective shares,- on the basis ■of their valuations, as of the death of the testatrix, ascertained in 1891, and without any new appraisal. ■</p>

<p>Transfer Tax—Debt on Open Account Due a Non-Resident Decedent From a Domestic Joint Stock Association Not Taxable—Domestic Life Insurance Policies Payable to the Estate of Such a Decedent Not Taxable.</p> <p>A debt on open account due by a domestic joint stock association to the estate of a non-resident decedent, at his death its president and the owner of a majority of its stock, is not subject to the transfer tax for the reason that it is a mere chose in action whose situs is the domicile of the decedent.</p> <p>Policies by which domestic corporations insured the life of such a decedent for the benefit of his estate, kept by him in the State of New York and which were here when he died, are not subject to said tax as they cannot be deemed property capable of having a situs apart from the person of the payee.</p> <p>Distinguished, 40 Misc. 432.</p>

<p>Transfer Tax—A Power of Appointment Given a Domestic Testatrix by a Foreign Will Over Foreign Property and Exercised by Her Under Foreign Law Is Not Taxable.</p> <p>Where a non-resident testator, whose property was and remained wholly in the State of his domicile, after creating by his will, in trustees resident there, a trust for his daughter for life, gave her power to appoint the remainder after the trust, the surrogate considered that the exercise by her, at her death a resident of the State of New York, of this power by a will executed and proved here, did not, under L. 1896, ch. 908, § 220, subd. 5, as amended in 1897, subject the shares of her appointees to the transfer tax, and this because the property had been wholly without this jurisdiction, the laws of the foreign State had controlled the whole matter, there had been no transfer under our laws and none whatever beyond the fact shown < that the foreign trustees, when so ordered by the foreign court acting under the daughter’s will which had been probated therein and followed thereby, paid her appointees their shares.</p>

<p>Trustees, Several—Entitled to Only One Commission on Annual Income Unless it Amounts to $100,000.</p> <p>Unless a trust estate’s annual income amounts to $100,000, the trustees, however numerous, are together entitled to only one commission on the income.</p>

<p>Appeal by the administrators from the order of the surrogate of Clinton county, confirming the report of the county treasurer, determining the value of the estate of decedent, and assessing the tax thereon.</p>

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

<p>Jurisdiction—Not Conferred on a Subrogate by a Waiver of the Issue of a Citation, Executed Before Any Proceeding Had Been Taken.</p> <p>Where a proposed judicial settlement of the accounts of executors had not been commenced either actually or constructively at the time when a person who would be a necessary party to such a proceeding duly executed a waiver of the issue and service of a citation therein and also consented to a decree of settlement, the surrogate held that no jurisdiction over the said party was thereby acquired or conferred.</p>

<p>Proceedings upon the final accounting of an executrix.</p>

<p>Legacy—When Demonstrative—Abatement—Services in the Family Delation—Consent and Short Statute as to a Disputed Claim Against an Estate—Executors’ Dight of Detainer.</p> <p>Legacies of thirds, after payment of the expense of a monument to the husband of the testatrix, in “the four thousand dollars advance (profit) which I made from the sale of my property to J. W. Collins,” are demonstrative, but, where no identified fund for their payment existed at the death of the testatrix, the legacies must share and abate fro rata with the general legacies of the will.</p> <p>A claim of an executrix, the sister of a testatrix, for nursing her during the last four years of her life must be closely scrutinized and clearly supported, and especially where the testatrix who had money in hand had never made the claimant any payment whatever on account of the alleged services.</p> <p>While the surrogate may upon a judicial settlement hear the disputed claim of an executrix against her testatrix’s estate, he cannot then hear an ordinary disputed claim unless a consent is filed.</p> <p>A claim against an estate is barred where executors reject it and the claimant waits two years without suing upon it or having it referred.</p> <p>Were, upon a balance struck, an executor, and legatee, of an estate is found a debtor to it, the amount due him by it should be credited upon the debt in full satisfaction of his legacies and commissions.</p>

<p>Surrogate’s Court—Who May Compel an Inventory—Lack of Jurisdiction as to a Disputed Claim.</p> <p>Only a creditor of, or a person interested in, the estate of a decedent, can compel his executors to file an inventory.</p> <p>A person who alleges that he is a stockholder in a corporation out of which the testator as officer and' director improperly made large profits—for which the applicant has sued in its behalf because the . corporation would not sue—is not a creditor of the estate nor interested in it and therefore cannot compel the executors of it to file an inventory.</p> <p>Semble, that there is no general power, apart from the statute, in the surrogate to order an inventory to be. filed and that if he has any discretion in the matter it should not be exercised to order one where the claim upon which the application rests is disputed and unproved.</p> <p>The surrog'ate cannot try and determine a disputed claim.</p>

<p>Proceedings by the district attorney of the county of Mew York to enforce the payment of a transfer tax.</p>

<p>Application for an order requiring the administratrix to pay a judgment recovered against the decedent in the Seventh Judicial District Court of the city of New York.</p>

<p>Objections to account by the general guardian of an infant.</p>

<p>Transfer Tax—Remainder When Taxable Since L. 1899, ch. 76.</p> <p>For the purposes of L. 1899, ch. 76, a constitutional enactment, a transfer is the passing of the title of a valuable interest out of and from the estate of a decedent, although the transferee is not now ascertainable, and is presently taxable however obscure and contingent ultimate vesting may be.</p> <p>Accordingly held, that remainders, after a trust for a surviving daughter of a testator, appointable by her out of the corpus “to and among such persons and corporations who may be living or in existence at her death” and to any of his descendants “who may be living at her death ” were presently taxable and this notwithstanding L. 1896, ch. 908, § 220, as amended by L. 1897, ch. 284, § 2.</p>

<p>Surrogate’s Court—Decree to be Entered on the Release oe a Surety Under Code C. P., §§ 2600, 2601.</p> <p>Where the surety for an administratrix cites her to show cause why he should not be released, and she files a new bond and an account of her proceedings, and he does not object to the latter nor make any affirmative application in the matter, a decree “ settling" the account as filed should be entered and the parties interested in the estate need not be brought in by a supplementary citation and be heard.</p> <p>Such a decree would not bind those not made parties to the proceeding, but may be useful as placing on record the sworn declaration of the administratrix as to the condition of the estate when the. surety declined to be further bound.</p>

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

Application, under section 2722 of the Code of Civil Procedure, by numerous creditors, for the payment of a pro rata share of their respective debts.

<p>Tbanseek Tax—Good Will Not Taxable.</p> <p>A transfer of the good will of a business is not subject to the transfer tax as in no view is good will real estate, and it is not “ personal estate ” or “ personal property ” within L. 1896, ch. 908, § 2, subd. 4.</p>

<p>Will—Testamentary Capacity—Delusion in Regard to a Wife’s Infidelity.</p> <p>A will that is the offspring of a delusion should he set aside.</p> <p>A person is under a delusion where he, without cause or evidence, firmly and persistently believes in, and acts upon, certain premises as existing facts when no such facts really exist.</p> <p>Where a testator gave his dependent wife, of thirty years’ standing, only the income for life on $1,000, and gave the rest of his property, amounting to $6,000 to bis next of kin and charities, and it appeared that he, during nearly all of their married life had believed her to be, and had talked of her as, unfaithful to him—although there was no ground for the charge—the surrogate set the will aside at the wife’s instance as produced by the - testator’s delusion in regard to her infidelity to him.</p>

<p>Interest—When the Estate of a Testator and His Legatees Stand to Each Other as Creditors and Debtors—Executor’s Eight of Detainer—Loans of Estate Moneys Made by an Executor to Himself as an Individual.</p> <p>The third clause of the will of a testator gave his residuary estate to his children and grandchildren. The fourth clause directed that, if within ten years of his death, any of them died without issue living then the survivors should take the share or shares. The fifth clause directed that “ all moneys with interest due me at my decease ” from the (his) residuary legatees should be included as a part of his personalty, whether or not the debt were outlawed, and that each and every debt which the said legatees “may owe me at my decease with interest shall be treated and reckoned in as so much had and received on account of the provision I had made herein for them and each of them.”-</p> <p>Sold, that a grandson who had lived for more than ten years after the death of the testator and, who at the latter’s death owed him money secured by notes, must pay thereon simple interest from the dates of the notes to that of the testator’s death, and that the executors, in settling with the grandson, might retain and set off against his share so much of the principal and simple interest as remained unpaid at the time of the settlement.</p> <p>An executor of an estate, who borrows its moneys and repays them, is chargeable on the loans with five, and not with six, per cent, interest.</p>

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

Proceeding for the settlement of the accounts of Fanny A. Bullock, formerly Fanny A. Walker, as surviving executrix of the will of John Walker, late of the town of Maryland, Otsego county, N. Y., deceased.

Proceedings upon the final judicial settlement of the account» of Julia A. Moore, as administratrix with the annexed of said Clarissa Wilmot, deceased.

Application by one of the administrators of decedent’s estate to be released from imprisonment, under an order of this court, on October 23, 1902.

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

<p>Proceedings upon an accounting by testamentary trustees. Application by two trustees who seek to resign.</p>

<p>Administration—Surrogate’s Lack of Jurisdiction to Confirm a Contract of Administrators foe Turning Their Intestate’s Business Over to a Foreign Corporation and Taking Stock in it foe His Interest—Code C. P., § 2719.</p> <p>That part of Code C. P., § 2719, which declares that a surrogate may authorize an executor or administrator to compromise a claim gives the surrogate no jurisdiction to permit and approve a contract, made between administrators and one who claims to have been an equal partner with their intestate in a business, by the terms of which the administrators are to assign all their intestate’s interest in the business to a corporation to he created under the laws of another State, accept in payment a part of that stock, and permit the alleged surviving partner to take the rest of it.</p> <p>Administrators sell on their own responsibility and if they sell for anything except cash ordinarily they take the risk.</p> <p>Reversed, 82 App. Div. 186.</p>

<p>Wm—Execution.</p> <p>The Statute of Wills (2 E. S. m. p. 61-63, I 40) does not require that a testator’s declaration to the witnesses, that the instrument subscribed by him is his last will and testament, be made to both witnesses at the same time nor does it require them to sign as witnesses in the presence of each other.</p>

<p>Executor—Refused Commissions as Trustee—Beneficiary as Sole</p> <p>Trustee.</p> <p>Where the will of a testator, giving his wife the income from all his estate until she remarries or dies as well as the right to use the principal if she needs it, declares that she is to hold the property in trust, but imposes no duty upon her as trustee which is not hers as executrix, her executors are not, after she has received full commissions upon the estate as sole executrix upon an intermediate accounting, entitled to claim in her right commissions upon the estate as trustee.</p> <p>No person can be trustee for herself and where a will makes the •sole beneficiary sole trustee she cannot act and is not trustee.</p>

<p>Transfer Tax—Estate Less Than $10,000.</p> <p>An estate less than $10,000 in value is subject to the transfer tax as fixed by the tax law of 1896, only when that part of it passing to persons not specifically exempted by statute equals or exceeds $500 in value.</p>

<p>Proceedings upon the appraisal of the property of decedent.</p>

<p>Proceeding to compel executors to render their accounts for judicial settlement.</p>

<p>Administration—Assets in the Hands of One, Named Executor, Before the Death of His Testatrix—Interest and Commissions.</p> <p>Money, which a person received from a woman upon the day before her death when she made her will and nominated him her executor, remains, where he claims no gift, her money and is, in his hands, assets to be distributed according to the will.</p> <p>Where he, upon the day of her death, deposited the money in his own bank account and spent it before her will was proved, the surrogate charged him with the fund, less disbursements, and legal interest, but did not refuse him commissions because of Such deposit.</p>

<p>Will—A Power of Sale Exercised of Necessity Does Not Convert Realty Into Personalty—Priority of Payment of a Bequest in Lieu of Dower and Distribution—Interest Chargeable to an Executor—Unnecessary Burial Lot and Monument—Transaction With a Deceased Person—Code C. P., § 829.</p> <p>Where a lawyer, who drew his own will and thereby gave his executors a discretionary power of sale, devised to one of them, his widow, by the first item, certain real estate absolutely, by the third item gave her in lieu of dower and distribution one-half of his personalty absolutely and the use of the other half for life, except such as was not otherwise disposed of by the will, and then made to others legacies out of the proceeds of the sale of his real estate amounting to nearly the full value thereof, the court considered it unreasonable to hold that the widow was under the third item entitled to any share in the proceeds of the real estate as personalty simply because the real estate had necessarily been converted into personalty in order to pay the legacies charged upon the land.</p> <p>Under such a devise and bequest to a widow, in lieu of dower and distribution, she is to be deemed a purchaser; and, although her legacy exceeds in value the rights she relinquished, she is entitled, as against the general and residuary legatees, to one-half of the personalty after deducting the d,ebts and expenses of administration.</p> <p>Where an executor has closed his estate with reasonable diligence and has accounted for all the interest he has received on the fund, he cannot, in the absence of proof of fraud or that he used the moneys for his own purposes to his own profit, be charged with any more interest where there is no affirmative proof that he could have invested the moneys to better advantage.</p> <p>Where a testator has in his lifetime provided for himself a burial lot and monument, his executrix cannot be allowed the expense of procuring new ones.</p> <p>Where the surviving executor of the estate of the testator calls and examines an alleged debtor of the testator in order to show the liability and surcharge the account of the administrator of the widow, his former coexecutor, with the amount of the debt, the witness, although incompetent to testify to a personal transaction with the testator which would relieve the witness from liability, is entitled to give the whole transaction with the testator and show that he was not indebted to him.</p>

<p>Transfer Tax—Law Phrases Unnecessary to Create a Bequest— Notice to Grantee of the Proposed Taxation of His Grant Because Conveyed to Him in Contemplation of His Grantor’s Death.</p> <p>A statement in the will of a decedent directing his executor to-“withdraw” one-half of the claims the decedent has presented to his brother’s executrix, and further declaring that he “ forgives ” that half, amounts to a bequest of that half, does not relieve any part of the whole sum from taxation, but has the effect of making the tax on that half assessable to the executrix as such and not to her as an individual.</p> <p>A claim by the State that real property, alleged to have been conveyed by a decedent “in contemplation of death,” has escaped taxation cannot be heard unless and until the grantee has had notice of the proceeding to tax it.</p>

<p>Proceeding for judicial settlement of the accounts of executors.</p>

<p>Trust—Savings Bank Deposit—When Additional to a Debt Due the Beneficiary Prom the Depositor—In New York City Land Taxes Accruing Before a Testator’s Death are Not a “ Debt ” Payable Out of His Personalty.</p> <p>Where a person, since deceased, opens an account “ in trust ” for one who is then his creditor, a trust, additional to the debt to the creditor, is created for the latter where it appears that the decedent intended to create a trust and did not intend it as a payment of the debt.</p> <p>Taxes in New York city being a lien upon the particular property and not a personal charge against the owner thereof, an executor there cannot, although taxes on land of his testator have accrued before his death, pay them out of the personalty as “ taxes assessed on the property of the deceased previous to his death ” (Code Civ. Pro., § 2719, subd. 2), and particularly where the executor is devisee of the land.</p>

<p>Motion to compel an accounting under section 2727 of the Code of Civil Procedure.</p>

<p>Proceeding for the sale of decedent’s real estate. Motion to dismiss proceedings.</p>

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

<p>Trust—Savings Bank Deposit—Intent oe Living Donee—Consolidation in Surrogate’s Court—Code C. P., § 2727.</p> <p>Where a woman deposits her own money “ in trust ” for her husband, always retains the savings bank book, never informs him of the matter, testifies that she never intended he should have the money unless he survived her, and draws it all out after his death, there is no trust, for the husband in the money, which his administrator can enforce against her.</p> <p>There should be no separate accountings of two administrators of one estate.</p> <p>Where the parties have stipulated that one administrator shall account in a proceeding brought for that purpose by the other, the surrogate will carry out the stipulation, consolidate the proceedings, and direct distribution to be made by both administrators.</p>

<p>Application by an assignee for the removal of an executor.</p>

Proceedings by a beneficiary and legatee, requiring the acting executor to show cause why her legacy should not be paid.

<p>Tbansfeb Tax—Taxability of Loans, Made by a Partner to His Pibm, Constituting Working Capital—Profits Left on Deposit With the Pirm.</p> <p>Except as between the partners themselves, money which one of them loaned to the firm, which it used, and upon which he received ratably such profits as were earned by the firm, is invested capital and as such is subject to the transfer tax upon his death.</p> <p>Profits which he permitted to remain on deposit with the firm are to be deemed taxable assets of his estate.</p>

<p>Administration—Stobage or Goods Befobe Pbobate—Uhnecessaby Legal Sebvices.</p> <p>The account of the executor of a contested will should not be surcharged with the difference between the rent of the apartment, in-which his testatrix died and in which, pending the contest, he allowed her goods to remain, although he might have terminated the lease at once, and the smaller sum it would have cost him to store them in a warehouse, where it appears that the contestant alleged that the main provision of the will was void and the executor unfit to-administer the estate.</p> <p>An executor cannot employ counsel to perform trust duties which, the executor can do without such assistance.</p>

<p>Administration—Presumption in Pavor of Executor’s Account—Mat Employ His Son as Agent to Collect Bents—Compromise of Claim.</p> <p>In attacking an executor’s account and administration the burden of proof is upon the contestant and where he fails to produce any direct proof of careless or imprudent conduct upon the part of the executor full faith and credence should he given to the acts of the latter.</p> <p>An executor, having five houses to rent, or sell when the market justifies it, may employ his own son to collect the rents provided the son’s compensation does not exceed the customary rates for such services.</p> <p>An executor should be allowed what he paid a tona fide claimant against, and legatee of, the estate, in settlement of her claim, where the money he paid her made a saving to the estate.</p>

<p>Appeal from a decree assessing the interests of the next of' kin, under the Transfer Tax Acts.</p>

<p>Administration—Administrator’s Failure to Enter Deficiency Judgments—Errors of His Attorney—Confusion of Estate Moneys— Commissions, Etc., Refused.</p> <p>The failure of an administrator to enter deficiency judgments in actions of foreclosure instituted by liim does not create a personal •liability upon his part where it appears that the judgment, if entered, would have been worthless.</p> <p>An administrator is liable to the estate for errors in foreclosing made by his attorney, at least to the extent of the estate moneys which the administrator paid to rectify the errors.</p> <p>Where the administrator confuses money of the estate with other moneys, cannot presently separate them, and has permitted the widow of the intestate to draw from a joint account running to her and him moneys which belonged to his estate, the administrator is liable for the loss.</p> <p>The court refused him commissions, costs and referee’s fees.</p>

<p>Transfer Tax—Taxation of National Bank Stock of a Non-Resident —Such a Corporation is Domestic.</p> <p>Stock in a National bank, doing business in the State of New York, belonging to the estate of a non-resident decedent is subject to the transfer tax, although the certificate of the stock was without this State when he died.</p> <p>Such a corporation organized under a federal law is not a foreign corporation as to the State of New York, but is a domestic corporation in each State in which it transacts business.</p>

<p>Appeal from the report of an appraiser fixing and assessing the transfer tax.</p>

<p>Transfer Tax—Good-Will Taxable.</p> <p>The Court of Appeals having held that the definition applicable to “ property,” as that word is used in the tax law (L. 1896, ch. 908, art. X), is contained in section 242 thereof and there declared to “ induce all property or interest therein,” and the Statutory Construction Law (L. 1892, ch. 677, § 4) having defined “ personal property ” as including “ everything, except real property, which may be the subject of ownership,” the good-will of the business of a firm is taxable for the transfer tax where the decedent was the sole owner of the firm and his will transferred the business.</p>

<p>Application to revoke letters of administration.</p>

<p>Trust—Commissions—Principal and Income as Between Life Tenant and Remaindermen.</p> <p>Where a testamentary trust requires the payment of income semi- ■ annually, the trustee is entitled to and should take his commissions semi-annually.</p> <p>As between the life tenant and remaindermen of a trust “ to collect and receive the income and profits ” of a fund, money realized by the trustee from the sale of rights and options) enabling him, or his testatrix, to purchase additional stock in a corporation, is principal.</p> <p>Money, received by him from the sale of dividend shares representing corporate earnings, is “ income and profits.”</p> <p>Money, representing the increase for which stocks of the testatrix were sold above their inventory value, is principal.</p>

<p>Disputed claims against an estate heard before the surrogate by stipulation.</p>

<p>Administrator—Liability tor Money Received in Another Capacity— Code O. R., § 2596.</p> <p>Where a man dies intestate and leaves a daughter, Hattie, his sole next of kin, and she dies intestate and leaves only a son and the administrators of the man, there being no interfering rights of creditors or any other rights, pay Hattie’s interest in her father’s estate, without appointment of an administrator for her estate, directly to the general guardian of her son, Ms father, upon the ground that the son is her sole next of kin, the payment is valid and the general guardian thereafter holds the money as the property of the son; and therefore where the general guardian is subsequently appointed one of Hattie’s administrators, he cannot be compelled to account under Code Civ. Pro., § 2596, for the money, as it never was a part of Hattie’s estate and never came into his hands as her administrator.</p>

<p>Appeal from an order fixing and assessing fhe transfer tax.</p>

<p>Proceeding upon, the prohate of a will.</p>

<p>Guardian of the Person—Notice to Father—Refusal to Appoint Him —Religious Training of Infants.</p> <p>Where, upon petition and without notice to the father of the infants, their aunt was appointed guardian of their persons, the surrogate vacated the order because the father had not had notice, although entitled to it.</p> <p>The surrogate appointed the grandmother temporary guardian and would not appoint the father because he had been guilty of petit larceny and intoxication, nor the mother because she had become an incompetent.</p> <p>The surrogate held that the children must be brought up as Catholics, the religion of their father and also of their mother, although when the aunt was appointed guardian the children were in a Protestant institution by consent of the mother.</p>

<p>Transfer Tax.</p> <p>A testator left personalty, worth $500, and a farm, worth $6,200, to his widow and children, but gave an uncle a life use, in the farm, worth $337.</p> <p>Held, that the life use of the uncle was not taxable because the property passing to the widow and children was specifically exempt from the transfer tax and, therefore, property of the testator of the value of $500 had not been transferred to any person.</p> <p>Reversed, 88 App. Div. 380.</p>

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

<p>Administbation—Executoe Cannot Speculate in Claims Against His Estate—Expenses of Collecting Agent—Commissions, Etc., Refused.</p> <p>An executor cannot be permitted to retain a profit which he made by speculating in claims against the estate of which he was executor.</p> <p>Where he used estate moneys to prosecute his speculations, procured assignments of the claims to be made, for less than their face value, to his dummy and afterwards charged them in his account as paid in full, he was deemed guilty of actual fraud and his account was surcharged with the profit he made.</p> <p>While an executor may employ another, even his own son, to collect claims against the estate the burden is on the executor to prove that the services and disbursements of the collector were rendered and made and both must be reasonable.</p> <p>The surrogate refused this executor commissions and costs and charged him personally with the costs of the proceeding for an accounting.</p>

<p>Application to the surrogate of Saratoga county to appoint a successor to a sole testamentary trustee who has died.</p>

<p>Application to remove an executor.</p>

<p>Administration—What Property is Real Estate.</p> <p>Money received by executors from an elevated railroad company for damages, resulting from its construction and operation, to real estate of their decedent is the proceeds of real estate and is not income.</p> <p>Affirmed 97 App. Div. 630.</p>

<p>Will—Effect Upon Probate of Changes and Interlineations Made in a Will After Execution—Words Creating a Life Estate in Personalty.</p> <p>Changes and interlineations made in a will after its execution do not destroy the will as a whole, but an express declaration should accompany probate enumerating each provision of the will annulled by such change or interlineation.</p> <p>Under a testamentary provision for a wife in the words: “One third of my personal estate I hereby charge and request her at her^ death to leave all that portion thereof that she shall not have used to our two children above-named or their descendants if they or either of them has died leaving descendants,” the wife takes a life estate in the principal with power to use it and the remainder not used by her passes to the children upon her death.</p>

<p>Proceedings upon an accounting by trustees. Motion to confirm the report of the referee.</p>

<p>Administration—When Payment of Some of His Shake Will be Ordered Made a Legatee Uudeb a Will Although He is Suing to Revoke Probate.</p> <p>Where the effect of an action, brought in the Supreme Court by the son of a decedent to revoke probate of his father’s will, would, if the son succeeds, be to increase, as next of kin, the interest which he presently has under the will in the income of the estate as legatee or as beneficiary of a trust, the pendency of the action does not bar the surrogate from presently directing payment, or the executor from paying, to the son, for his support, a balance of income confessedly due him under the will.</p>

<p>Administration—Surrogate’s - Jurisdiction as to a Disputed Claim.</p> <p>Where a person, demanding an accounting of an executrix, alleges that he is a creditor of the decedent, that he filed his claim with the executrix, that she never rejected it hut asked him to wait for payment, and she, upon her part, denies receipt of the claim and its validity, rejects it and claims he has admitted to her that he is debtor to the estate, the surrogate has no power to decide the issue raised merely by the claim and its rejection, but can try the issue whether she received a written statement of the claim and by her acts accepted, approved and promised to pay it—thereby establishing it as valid.</p>

<p>Motion to confirm the report of an appraiser.</p>

<p>Proceeding upon the probate of a will. Motion to vacate certain orders of this court.</p>

<p>Application to resettle decree as to commissions of executors- and trustees on the ground that they are excessive.</p>