Volume 3 — Redfield's Surrogate Reports

<p>Four motions were made by the Irving National Bank to set aside orders, made by the former Surrogate Hutchings, in this matter, granting allowances, in lieu of costs, to Francis Kernan, Roscoe Conkling, Adams and Swan, and A. M. Beardsley, on the grounds among others, that said Surrogate had no power to make such orders; that they were made without notice to the executor or creditors or receiver; that counsel did not represent the prevailing parties; that said orders were made by mistake and inadvertence as to the solvency of the estate; and that in some of the cases the amounts allowed were in excess of five per cent, on the amounts involved.</p> <p>The petitions show that in the proceedings in the Supreme Court, Henry W. Bentley was duly appointed receiver of the estate, and that under an order, and the advice of a Judge of the Supreme Court, at Special Term, said receiver made application to this court to vacate the said several orders; that said motions were denied, and he has not appealed, though requested to do so; and that the time for appeal has expired.</p> <p>In answer, the affidavit of the receiver that he presented a petition to this Court for the purpose of setting aside said orders which were made substantially on the same grounds as the present motions; that said motions were denied; that he notified several of the counsel for creditors, including Gratz Nathan, counsel for the petitioner; that several creditors appéared by counsel before the Surrogate on said motions, and were heard, among others said Nathan, and that said motions were denied on the merits; that he has taken no appeals from said orders nor have any of the creditors requested him to appeal therefrom. As rejoinder, said Nathan filed his affidavit stating that the Irving National Bank was not a party to the motions made by the receiver; that he attended upon said motions; that he discovered on reading the petitions therefor, that certain facts deemed material were not stated therein, among others the insolvency of the estate, and asked leave to file an affidavit upon that subject, which on objection was denied; that he requested said receiver to appeal from said order, who stated he would take the instructions of the Supreme Court in respect to the priority of such appeal; and that the petition in this proceeding sets forth numerous facts material, which were not before the Court on the former motions.</p> <p>These affidavits were received as made in all the motions pending. It was urged as a preliminary defence to these motions, that the petitioners had no standing for the purpose of making them, in that the receiver in making his motion represented the creditors of the estate, as well as the estate, and that the decisions of these motions on his petition are res adjudicata, until reviewed by appeal; that even the receiver could not renew his motion on additional facts without leave of the Court, but must be put to his appeal, that if any of the creditors for whom he acted felt aggrieved by the result of these motions, they must take their review through the receiver, and not otherwise; and that these motions were an unlawful device to review the former orders, and if these can be made, then any other creditor, years hence, may seek to open said orders, and disturb the orderly administration of the estate.</p>

This was a final accounting by the administrators, the account, to. which objections were interposed, having been filed September 21, 1875. The facts appear in the opinion.

<p>The facts appear in the opinion.</p>

Mart Hughes, the widow, petitioned for the admeasurement of her dower in lands and premises described, in the petition, and for the appointment of freeholders for the purpose of making such admeasurement.

This was an application for the release and discharge of Israel J. Solomon as executor named in the will of the testator.

This was a proceeding for the final accounting of William F. Hibbard, executor, and Cornelia G. Hays, executrix, of the will of William Hibbard, deceased. Said executor and executrix, each being a residuary legatee under said will, filed separate accounts, to which objections were filed.

<p>Parol evidence is admissible to show that by the term “ my daughter Elizabeth” used in a will,—where the testator had no such daughter,— the testator intended to describe one whom he had adopted as his daughter, although he had not formally adopted her in accordance with the provisions of the statute (L. 1S73, ch. 830).</p>

<p>When surplus moneys on foreclosure are paid into the Surrogate’s Court, and the widow applies for an appointment of her dower right therein, sums due from her to the estate can not be affected or recouped or allowed by way of equitable counterclaim against her right to her dower therein.</p> <p>It seems that if the widow should elect to take a sum in gross, in lieu of her dower, such a counterclaim could be allowed against it by the surrogate. Under IB. S., 741, § 6 , providing for the dower of a widow in surplus moneys on foreclosure, the amount in which the widow is dowable is to be ascertained, after deducting the cost and expenses of the foreclosure proceedings, as well as the amount due on the mortgage.</p> <p>Taxes and assessments on the real estate however are not to be deducted in computing the amount in which she is dowable.</p>

John W. Lewis, one of the sureties of Margaret K. Watson, administratrix, petitioned to be released as such surety. The petition or application bears date January 18th, 1876.

The question submitted was whether the trustees were entitled to full commissions as such, by having settled their accounts as executors, and received their commissions as such.

This was an application for the probate of the second codicil to the last will and testament of Otis Dyer, deceased. The will was admitted to probate, together with the codicils, in December, 1874. In November, 1875, the contestants, William H. Booth and others, infants, appearing by their father, Henry Booth, filed allegations against the probate, but on the day appointed they failed to appear, and the will and codicils were admitted.

This was a proceeding for the final accounting of Charles E. Carman, trustee under the last will and testament of Richard F. Carman, deceased. The trustee filed a supplemental account, pursuant to an order of the surrogate, setting forth the payment of certain assessments, together with the interest thereon, amounting to $1977.96.

This was a proceeding for the probate of the last will and testament of Anna M. Dennis, deceased. The testatrix executed her will, bearing date April 1, 1873, which was witnessed by J. W. Stronach and Annie Kirk. Under date of November 18, 1874, she executed a codicil witnessed by Dr. Stronach and William B. Crosby, Esq., and on the 6th day of July, 1875, she executed another codicil, by which she revoked the first, and which was witnessed by Mary Kirk and Ann J. Kirk.

The petition of Augusta Stinde, Conrad R. Stinde (her husband), William Whist, Adel Krone, Fritz Koch and Elsie Koch, as sole nextiof-kin of the decedent, who died May 8, 1875, intestate — about seven years old — stated that all the petitioners, except Conrad R. Stinde, are the brothers and sisters of Charles W. Walter, deceased (the father of the intestate), and that decedent left no near relative, nor any other of like degree; that letters of administration upon decedent’s…

On an application for letters of administration on the estate of Adolph Van Steinwehr, deceased, on the petition of Mark D. Hanover, it appeared that decedent died a resident of the State of Ohio, intestate, possessed of certain personal property in the County of New York, not exceeding $10,000. On the 81st .day of March, 1877, letters of administration were issued to William Van Steinwehr, next-of-kin of decedent, at the Probate Court of Hamilton County, in Ohio aforesaid.

On a petition for a sale of real estate for the purpose of paying debts, filed by the administrator, a referee was appointed to take proof of the claims' against the estate, which might be presented, and report thereon.

This was a motion to confirm the report of the auditor on final accounting by Christian H. Lillienthal and Edward B. Brown, executors.

The objections filed to the probate of the instrument offered as the last will and testament of the decedent, raised the customary questions as to mode of execution and publication, mental capacity of the testatrix, and undue influence; and stated particularly that the third paragraph of the alleged will attempted to create a trust not authorized by the laws of this State; that each and every of the bequests to the benevolent, charitable, and religious corporations,…

Upon the accounting of the administrator with the will annexed, the construction of the will was necessary in order to determine who was entitled to the estate, which consisted exclusively of personalty.

<p>The question determined came up on the accounting of a collector of a decedent’s estate, appointed by the surrogate.</p>

The report of the auditor, on the accounting of the executor, which account was contested by John W. Montgomery, and other legatees, contained findings, contested by the executor, that the latter was chargeable with the amount of a bond and mortgage executed by William A. Miller and wife, for $1,100, with interest from February 12, 1869, also with $873.30, the amount of two notes or due bills, of Reay and Pollock given to the decedent, payable on demand and bearing date…

Upon an order obtained by a creditor of the estate, to show cause why the collector, or special administrator, should not pay a claim for rent of premises, leased to the deceased in his life time, the moving papers showed that the collector had funds sufficient to pay.

The petition of William S. Sands stated that the will of the testator, dated January 27, 1859, admitted to probate September 1, in the same year, appointed his widow, his brother, Abraham B. Sands, William B. Thurston, Jr., and Alexander B. Blake, executors and trustees, and the petitioner, his son, to be co-executor and trustee, on his attaining the age of twenty-one years; that the widow and Blake alone-qualified, and assumed administration of the estate; that the decedent…

Upon an accounting by executors, it appeared that the will, after specific bequests, gave, devised, and bequeathed to the executors the residue of the testator’s estate, real and personal, in trust, to sell and dispose of the same at public or private sale, in their discretion, and, in the meantime, to receive the rents and profits, and, with the proceeds, to pay certain bequests set forth.

An application having been made by an executor to compel two other co-executors to account, the account was filed, and an auditor appointed after objections to the account had been filed by the petitioner. One of the co-executors being called as a witness, the petitioner’s counsel undertook to examine him. Under the advice of his counsel, he refused to answer, on the ground that the petitioner had no right to appear by counsel, or to contest the account.

<p>When a will is contested on the ground that a subsequent will was executed by the testa:or, the burden is on the contestant to show the due execution of the subsequent will, in order to establish a revocation of the one propounded.</p> <p>Evidence that a daughter of the testator, who was the chief beneficiary under his will, had, upon several occasions prior to its execution, said to him that if he made a will, it would be a shame to leave his son. one of the members of the testator’s family omitted from its provisions, anything,— Held, no proof of undue influence, if it be assumed that the testator was of sound mind.</p> <p>Where there was an absence of proof showing the exercise of an active influence by any of the principal beneficiaries under a will, upon the testator, or any participation on their part in procuring the will to be made, and the testator survived three years after its execution, stated that he had made it, and delivered it in person to an executor for safe keeping.— Held, that proof that they occupied the same residence with the testator, and the fact that the will discriminated in their favor, and against other of his children and grandchildren, was insufficient to establish undue influence, assuming that he was of sound mind.</p> <p>Upon the question of the sufficient execution of the will, the attestation clause showed that the statutory requirements had been complied with, and the witnesses, upon their direct examination, testified to the requisite facts, but, upon cross-examination, omitted the facts that the testator declared the instrument to be his will, and requested them to sign as witnesses thereto, and the ink with which one of them signed, differed from that used in the other signatures. Held., that the whole evidence was to be taken together, and so taken made out a due execution.*</p> <p>In support of the claim that the testator was of unsound mind, the contestants showed that he had, in the will, mistaken the order in which two of his daughters were born, had mentioned two adopted children of a son and a daughter respectively, as his grandchildren, had stated his own age as 75 when it really was 77, had neglected to provide for certain grandchildren, one of whom was the son of the testator’s deceased’s child, and they also introduced evidence of the testator’s being afflicted with Bright’s disease of the kidneys, and other diseases, during the last years of his life, and two years after executing his will. Held, in the absence of direct proof of the testator’s mental unsoundness, to be counterbalanced by direct evidence of his vigor of mind before, at the time of, and after the execution of his will, together with the fact that he drew the instructions for, and corrected the draft of, his will, with his own hand.</p>

This was a petition for the revocation of letters of administration theretofore issued to Mary J. Odell upon the estate of the above-named intestate, and for the issue of letters of administration thereupon, to the petitioners.

The petition set forth the probate of the will, and stated that the petitioners, Thomas S. Townsend, John D. Townsend, and Joseph L. Townsend, are sons of the testator, and that they are each entitled under said will to the interest, income and dividends upon the sum of five thousand dollars, directed in and by said will to be invested on bond and mortgage, or in the stocks of the United States, or of this State, at the discretion of his executors; that the trustee, Samuel…

In a petition to' vacate an order, made on the application of the executor, for the sale of certain premises owned by the testatrix, and devised in her will, situated in Fourteenth street in the city of New York, the petitioner set forth that Robert B. Clark, one of the devisees, mortgaged to one Streeter, for $2,250, his one-third interest in said premises, which mortgage was assigned to the petitioner, and was afterwards foreclosed, and the one-third interest sold, and…

Gerard Janssen, executor, &c., of the estate of Francis Blancard, on the 21st day of February, 1877, filed a petition and obtained an order that Christopher Y. Wemple, as executor, &c., of Caroline E. Blancard, deceased, and as administrator, &c., of Louisa Buss, deceased, show cause why a certain order dated on the 26th day of February, 1873, should not be vacated and set aside, as having been granted under a mistake and misapprehension of the nature of the property left by…

after various bequests and 'devises, gave to the executors $10,000 in trust to invest, and apply the interest and income to the use of Theodore Keese during life, after his death the principal sum to go to the residuary legatee named in the will; and also bequeathed to the New York Society Library, $17,000; to the President and Fellows of Yale College, $2000, to be called the Keese Prize Fund, the income to be paid- to the member of the class graduating at the end of the…

Frederick Marz, the executor, filed his petition for a final accounting, and sought to make Thomas Suggett and Charles Henry Suggett, parties thereto, as the sole legatees under the will. On the return day, Charles B. Weller, of Desmoines County, Iowa, appeared by attorney, setting forth that Charles H. Suggett was a lunatic, and that he had been appointed his guardian, and demanded that his share of the estate be paid to him as such.

Thomas Duffy, the administrator of the estate of Fanny Jones, deceased, stated in his petition that the testator, Thomas Jones, by his will, duly proved in this court, bequeathed one-fifth of his personal property to Fanny, Ellen, and Annie Jones, children of his deceased son, Patrick; and that on the 20th March, 1873, the executor, on settlement of his accounts, deposited with the Surrogate of New York $1,233.82, as the portion belonging to said Fanny, Ellen, and Annie, and…

The deceased was a resident of this city, and left an infant, who is now six years old, and appointed by his will a brother and sister guardians of said infant, who are now non-resident aliens in Ireland. The testamentary guardians applied for letters testamentary, pursuant to chapter 206, section 4, of the Laws of 1877 (p. 224).

The contestant, Andreas H. Gouraud, claimed to be the legitimate son of the decedent by a former wife, which fact was disputed by the proponent, who denied his status as heir and next-of-kin.

Upon an application for an attachment against an administrator with the will annexed, for failure to pay-amounts directed by a decree of this court to be paid to the several legatees under the will, amounting to about $5,000, including interest, the administrator showed for cause that he had appealed from said decree, and given the usual bond to stay all proceedings. It appeared that the bond given on appeal was in the penalty of $100 approved by the Surrogate.

<p>Under the provisions of section 9 of chapter 359 of the Laws of 1870 (p. 426), allowances in lieu of costs may he made to all the counsel, upon the accounting of an executor or administrator, instead of to the parties.</p> <p>It seems that this provision extends even to a proceeding in which there is no contest.</p> <p>Where an infant is cited to appear on an accounting, the appointment of a special guardian to represent him there is necessary, although he have a general guardian, and an allowance to such special guardian upon • such accounting is proper.</p>

The petition of Mary N. Kircheis alleged that the testatrix died in June, 1877, leaving a last will and testament, which was duly probated, whereby she' devised and bequeathed all her property to Charles A. Kircheis, who died in January, 1878, leaving a will, whereby he devised and bequeathed all his real and personal estate, except certain specific bequests, to the petitioner, which will was. also probated; that Charles A. Kercheis left no personal property which had not…

The report of the auditor in the final accounting of Alexander M. Leslie, executor, found that the executor admitted an indebtedness to the estate upon certain promissory notes existing at the death of the testator, July 3, 1873, with interest to that date, amounting to $9,035.41, and that it appeared from the testimony that he was further indebted for sums of money loaned and advanced to him in the life time of the testator; of $300 loaned and advanced November 22, 1869,…

On the final accounting of the executor, a question arose in respect to the effect of certain provisions of the will of the deceased.

An application for the revocation of letters of administration granted to Mary Oram, as the widow of Stephen Oram, was made upon the ground that she was not the widow of the deceased. The facts are stated in the opinion.

Upon the construction of a will, it was claimed on the part of the contestants that the following bequest was void: “ I give and bequest to the trustees of the Presbyterian Church, at Richfield Springs, Otsego County, New York, the sum of five thousand dollars, in.trust, for the poor of the towns of Warren and Richfield, in the Counties of Herkimer and Otsego respectively, to be used and expended by said trustees in their best discretion for the best interests of the poor…

The testator died in 1855, leaving a will, by which he bequeathed to his daughter, Mary Bridger, $4,500, and all the rest and residue of his estate, real and personal, he devised and bequeathed to his five other children, viz: William, Washington, Joseph, Ann E., and Caroline, share and share alike. By a codicil he gave and devised to his daughter, Ann E. Agate, the share he had, in his will, given and devised to his son William, except ten dollars.

John Garvey, a creditor of the deceased, Catherine McCue, sought to enforce the payment of a judgment held by him against her estate from the administrator, her husband.

In November, 1865, Richard H. Teller was appointed collector, &c., of the intestate estate, pending a controversy as to his appointment as administrator, he being the general guardian of an infant next>of-kin. In June, 1867, he was duly appointed such administrator. There ivas litigation in regard to the estate, and various charges were incurred by the administrator for personal expenses and for counsel fees in the several controversies.

The decree, entered upon the final accounting in this matter, was appealed from by the administrator. The Supreme Court, in the main, affirmed the decree; an appeal was then taken to the Court of Appeals, where, it is understood, the judgments or decrees of the Supreme Court and of this court were reversed, except as to some of the items in dispute, and a further or re-hearing directed to be had in this court as to certain items.

This was an application for the probate of the last will and testament of Catherine Storms, deceased, together with the codicil thereto annexed. The facts are stated in the opinion.

Ah application was presented in this matter by Adelia M. Lockwood, widow of the deceased, on behalf of herself, and of Adelaide L. Lockwood, her stepdaughter, a minor, of the age of about seventeen years, of whose person she is testamentary guardian, for an order directing the executors to advance to her, as a legatee under the will of the deceased, for her own support and the support of said minor, also a legatee, a portion of their respective legacies.

On the 9th day of July, 1877, a petition was presented by a creditor of the deceased, praying for a sale of the real estate of which the deceased died seized,, or so much thereof as might be necessary for the payment of her debts.

This was an application by an executor to mortgage real estate of the testatrix for the payment of her debts. The facts are stated in the opinion.

Philena Disbrow died in New Rochelle, in March, 1865, seized of a house and lot there, and possessed of personal estate to the amount of $503.87.

This cause was determined in this court and a decree entered. An appeal was taken to the General Term of the Supreme Court, where the decree was affirmed in part and reversed in part. An appeal was then taken to the Court of Appeals, where the decree of the Surrogate and the judgment of the Supreme Court ere reversed on one point, and the whole case rented to this court for a rehearing. The facts appear in the opinion.

The testator died in 1862, seized of a farm, called the homestead, consisting of about 100 acres, and also of another parcel of land, containing about sixty acres, known as the quarry farm. He also left assets amounting, as shown by the inventory, to nearly $11,000.

It appeared from the petition in this matter that Mary Ann Igglesden was the daughter of John and Mary Igglesden ; that the latter died seized of certain real estate, which she devised. Mary Ann survived her mother, but died in 1875, leaving her father and several brothers surviving.

The deceased was the wife of Ben Holladay, and died in September, 1873, seized of a house and lot in 29th street, in the City of New York, and also of a tract of land consisting of some 700 acres in Westchester County, known as the “ Ophir farm.” At the time of her decease there were mortgages oh this property amounting to about $70,000. She left a will by which she devised it to her husband.

The will of Cornelius Vanderbilt, dated January 9th, 1875, and a codicil thereto, dated June 10th, 1875, were duly admitted to probate, and letters testamentary issued thereon, on the 13th day of March, 1877.

The testatrix, being unmarried, made and executed her will in due form, August 25th, 1873. On July 12th, 1875, she executed a codicil to the same. October 19th, 1876, she married. December 17th, 1876, she executed another codicil, and on the 1st day of October, 1877, died, leaving her surviving as her only heir-at-law and next-of-kin Warren E. Clarke, her brother, and. Truman A. Proctor, her husband.

An application having been made by the executors for a final accounting, Catharine M. Harris presented a petition showing that, in May, 1875, the testator leased from the rector, church wardens and vestrymen of Trinity Church, in New York, certain premises, known as Nos. 437, 439 and 441 Greenwich street, for the term of twelve years, with renewals, at the yearly rent of $2,400, payable semi-annually; that in October, 1877, the testator gave to her a bond, accompanied by a…

Application made by the father of the minor for the appointment of A. W. Hamilton as guardian, in order to enable him to obtain certain property of the minor within this county. On the papers submitted it appeared that the minor was a resident of the State of Kentucky, by the proper court of which state A. W. Hamilton, also a resident of that state, was appointed his guardian.

This was a proceeding to punish an administrator for contempt in disobeying a decree of the Surrogate, entered nunc pro tune as of the 8th of October, 1873. The decree was entered upon a final accounting, and directed Stephen S. Marshall, the administrator, to pay to George Hitchcock, one of the next-of-kin of the intestate, $671.47. Subsequently, a demand was properly made on the administrator for the amount and interest, which was not paid.

I$r the matter oí the accounting of Sophia B. Lockwood, administratrix, etc., of George Lockwood, deceased, it appeared that the intestate died in 1870, a resident of New Rochelle, leaving real and personal estate amounting to over $200,000, and leaving a widow (the administratrix) and several children by her and hy a former wife. Among the latter was Margaret Fowler, wife of John Fowler, Jr., who was, until recently, a lawyer, practising in the City of New York.

In March, 1875, Edward Strong, the executor, rendered his account, and a decree was entered thereon, based in part upon the release, under seal, of Hannah Strong, a legatee, releasing and discharging the executor from all further liability on account of her legacy. The consideration for this release was the individual promissory note of said Edward Strong for $5,000, payable one year after date, made and delivered to said Hannah a few days prior to the entry of the decree.

The creditor, after an account was rendered by the executors, applied for an order requiring the executors, etc., of the deceased to show cause why an order should not be made directing them to mortgage, lease or sell the real estate of the testator for the payment of his debts, to enable the creditor to recover the amount of his alleged claim.

Henry J. Meyer died November 4th, 1877, seized of certain real estate in Westchester county, where he resided, and also of several parcels of real estate in the city of New York, all of which had previously been mortgaged by him to different persons. He left a will, which was duly proven, and the executors thereafter applied for a settlement of their accounts as such. The estate was insolvent.

The testatrix by her will, after having made some specific legacies and disposed of certain small sums, by the 6th paragraph thereof gave the net income of the residue of her estate as follows: One-half to her son Jacob for life, payable annually, and on his decease (if her daughter Maria should be living), to the three children of Jacob equally and to their survivors during the life of Maria; and the other half, in like manner, she gave to her said daughter for life, and,…

Objections were filed to the accounting of the executrix of this estate, and an auditor having been appointed, found the account correct. In schedule “D,” a bond and mortgage of S. C. Williams for $2,500 was inserted. The amount of assets appeared to be $2,113.19, though in schedule “B ” a large number of valueless claims were inserted.

Marietta E. Stevens, by petition, alleged that she was one of the sureties upon the bond of Charles G. Stevens, residing in Massachusetts, executor of the last will and testament of Paran Stevens, deceased, and that she desired to be released from responsibility for his future acts or defaults as executor.

This was an application by the brother of the decedent, for letters of administration with the will annexed, as residuary legatee, on the death.of the sole executor appointed by the will. The widow appeared, and as such, claimed letters.

Upon a final accounting by the executors, objections were filed on behalf of Harvard College to the account as rendered by John Quinn, one of the executors, in that it appeared .therefrom that a legacy to the Sister Gertrude Paul, had been paid in full, while the will gave her no preference over the legacy to the objector, and that a legacy to the Holy Cross had been paid in full, while it was not entitled to a preference over that of the objector.

This was a proceeding to compel Henry Grass, the executor, to pay to the auditor appointed herein, his fees as such, and to take up the auditor’s report, file the same in this court, and take proceedings for its confirmation or rejection, it appearing that the report had been drawn, and was in favor of said executor.

This was an application for the appointment of a collector pending the contest of the will and codicil. It appeared that the will appointed one Barclay and James Watson as executors; that Barclay died, and a codicil was made appointing Frederick S. Howard as executor.

This was a proceeding on a petition of a creditor of the estate for an accounting by the executors. An account was filed, objections were interposed, and a reference of such account was moved by contestant, and on submitting the order of reference it was objected: 1st, that as the petition asked no relief except the accounting, there was no authority to appoint a referee, under the authority of Westervelt v. Gregg, (1 Barb.