Volume 4 — Bradford's Surrogate Reports

<p>Although the owner of a pew in a church has no absolute interest in the soil on which the edifice is erected, his right to the use of the pew is a right springing out of the land, and, in this respect, has some of the qualities of realty.</p> <p>The property in a pew being indeterminate as to its duration, that is, not limited by any definite space of time, and also issuing out of realty, it is therefore an incorporeal hereditament.</p> <p>Incorporeal hereditaments descend to the heir-at-law, and not to the personal representatives—the executor or administrator cannot, therefore, be held to account for the proceeds of the sale of a pew belonging to the deceased person whom he represents.</p>

<p>It is not sufficient ground for refusing probate, that error as to matter of fact has been made by the testator, unless the mistake has been of such a character as to affect his testamentary intentions.</p> <p>A will cannot be reformed on the probate, when there is no proof that the instrument does not conform to the testator’s design and intention.</p>

<p>A renunciation may be retracted by executors at any time before the grant of administration. This is rather a matter of right, than a privilege within the discretion of the Surrogate. Renunciation of the right to administer is governed by the same rule.</p> <p>When at an early stage of the cause, the public administrator had renounced his priority in behalf of a creditor contesting the administration with the next of kin, and he subsequently withdrew the renunciation and claimed letters, held, that it was not in the discretion of the court to refuse permission.</p>

<p>In proceedings before the Surrogate for the admeasurement of dower, it is not competent for the parties interested in the land to contest the widow’s title. The admeasurement when completed is binding and conclusive only as to the location and extent of the dower-right, and does not preclude any person from controverting the title to dower, when the same shall be sought to be enforced at law.</p> <p>After admeasurement, the widow may bring ejectment, when the validity of her claim to any dower, the title of her husband, his seisin and her marriage, may all be controverted, and tried, notwithstanding the admeasurement.</p> <p>Where the premises consist of a single lot and building, there seems to be no objection, with the widow’s consent, to set apart particular rooms, with the use of the halls and passages so as to secure ingress and egress.</p> <p>If alienation of the lands be made by the husband, dower must be admeasured according to the value of the property at the time of alienation.</p>

<p>The executor or administrator of a deceased member of a partnership cannot be sued for a firm debt, unless insolvency of the surviving partners, or some other ground of special relief be shown.</p> <p>The obligation of a partnership debt is joint; the remedy at law continues against the surviving partner; and the creditor is bound to resort to his legal remedy against him, or show a necessity for coming into a court of equity for relief against the estate of the deceased partner.</p>

<p>The provisions of the statute requiring the Public Administrator to deposit all moneys collected by him, in a bank designated by the Common Council, to the joint credit of himself and the Comptroller of the City of New York, relate only to the safe deposit of the money; and they do not interfere with the jurisdiction of the Surrogate over the Administrator.</p> <p>In respect to the payment of moneys, the Public Administrator occupies the same position as other administrators, and is bound to obey all lawful orders of the Surrogate, notwithstanding the special directions of the statute as to the mode of keeping his deposits.</p> <p>Though an administrator is not bound to run the risk of making, temporary investments for the benefit of the estate, he may under the direction of the Surrogate, be required, in a proper case, to deposit the funds in the Trust Company, so as to be earning interest, while the estate is in process of settlement.</p>

<p>Where, during a contest on the probate of a will, a special collector had been appointed, with directions not to institute suits without the permission of the Surrogate, and the widow of the deceased claimed certain property as gifts made to her in the life-time of her husband ;—the collector having applied for leave to test the validity of the gifts by an action at law, it was Held, that the permission should be granted.</p> <p>In respect to the right to institute suits, a collector stands on the same footing as other administrators, and he is the judge of the propriety of his own course of action, subject only to his liability when the administration is terminated, and the accounts are settled before the Surrogate. If he fail to institute suits at the instance of parties in interest, upon the offer of sufficient indemnity against costs, he may be held accountable for the loss resulting from his refusal.</p>

<p>A contested case of legitimacy, arising upon an application for grant of administration, decided in favor of the party claiming to be the lawful son of the deceased.</p> <p>The presumption is always in favor of marriage. If the evidence merely show filiation, legitimacy will generally be presumed.</p> <p>The force of these presumptions becomes greatly increased by the remoteness of the affair, and by the circumstance that the parents are dead, and the children alone are interested.</p> <p>The essence of the marriage contract consist's in consent, and forms are not requisite to its validity, except so far as they have been prescribed by the civil authority.</p> <p>Before the adoption of the Code Civil, there was no statutory rule in France as to the extent and character of evidence to establish marriage and legitimacy, but the subject was reposed in the judgment of the tribunals.</p> <p>Under the law of 1792, regulating marriages in France before the adoption of the Code Civil, failure to publish the bans did not invalidate the ceremony.</p> <p>The consent of parents to the marriage of minors was not required by the Canon Law, as essential to the formation of the contract; and by the ancient jurisprudence of France, want of consent was only cause of relative nullity and not absolute.</p> <p>Enactments requiring the consent of parents are additions to the requirements of natural law, and are therefore construed strictly—and consent will be presumed until the contrary be shewn.</p> <p>Under the Code Civil, the status of the child is determined by name, reputation, and treatment.</p> <p>A simple declaration of filiation in the absence of other testimony is presumptive evidence of legitimacy.</p> <p>By the ancient French law, an acts of baptism, declaring the child to be the son or daughter of the parents named in the acts, occupied the first rank among the proofs of a legitimate status.</p>

<p>The testatrix having by will, and deeds of conveyance, contemporaneously executed, divided her property equally among her three children, the entire transaction amounting substantially to a gift to each of a lot of land in severalty, to take effect on the decease of the testatrix, Held, that a direction in the will to pay and discharge out of the personal estate all her debts “whether on bonds and mortgages or otherwise,” was applicable, as well to mortgages on the lots conveyed, as to mortgages on the land devised.</p> <p>Mortgages cannot be paid out of the personal estate, unless there be an express provision in the will to that effect—or a necessary implication.</p>

<p>The intestate having died at the Marine Hospital, on her way from Scotland, her domicil of origin, to Canada West, held that the distribution of her estate must be governed by the Scotch law.</p> <p>The test in respect to the succession to the personal estate of intestates, is the law of the domicil at the time of the death. This is the universal rule at this day.</p> <p>A domicil can be acquired only by residence with the intention of remaining at the new place of abode. Intention alone is not sufficient; the new domicil must be established animo et facto, by a union of the fact and the intention.</p> <p>It is a well settled principle, that for the purposes of succession, every person must have a domicil somewhere, and that the domicil of origin is not lost, until a new one is acquired.</p> <p>In Scotland succession is confined to agnati, or relations on the father’s side, to the exclusion of cognati, relations on the mother’s side. The mother is always excluded; brothers and sisters or their descendants take in preference to the father ; among collaterals kindred of the full blood exclude those of the half blood, in the same line of succession ; and the next of kin take the estate per capita, and never per stirpes,—there being no right of representation among descendants or collaterals.</p>

<p>Where the will contained a bequest to the testator’s sister of “ the interest upon fifteen hundred dollars, in case she should become a widow, during her widowhood, payable annually,” and the executors were authorized to invest the estate in such sums, and upon such terms as they might deem necessary for “ the due execution of the will,”—Held, that the legacy to the sister was not an annuity, but simply a gift of interest or income.</p> <p>An annuity is a stated sum per annum, payable annually unless otherwise directed. It becomes payable at the end of a year after the testator’s decease, because the will so provides,</p> <p>All bequests are due at the expiration of the year, in the absence of any special provisions to the contrary ; and the duty to pay an annuity arises contemporaneously with the efflux of the period the law has allowed for the settlement of the estate.</p> <p>The income or interest of a certain fund is not an annuity, but simply profits to be earned, and although directed to be paid annually, that relates only to the mode of payment, and does not change the character of the bequest. In such a case, it does not become the duty of the executors to invest the principal sum until the end of a year, and the interest will not become payable until the end of the second year.</p> <p>But when the testator has provided that the investment be made at an earlier period, the will must be followed. A bequest to a legatee, “ in case she shall become a widow,” falls due when the specified contingency occurs; and where the legatee became a widow within the year, it was held, that she was entitled to interest on her legacy from the commencement of her widowhood.</p> <p>Taxes and commissions on a trust fund must be deducted from the income due to the life-tenant, and are not a charge on the general estate.</p> <p>Where the income of a certain sum is given to a party for life or a shorter period, commissions on the interest, and taxes on the trust fund, must be deducted from the income, and are not a charge on the general estate.</p>

<p>An alleged settlement of accounts between executory trustees and a deceased cestui que trust, held not to exonerate the trustees from filing their accounts, so as to enable the representative of the cestui que trust to examine whether there had been errors or defects, or the settlement had been fairly made : although, if no unfairness be exhibited., the settlement may be sufficient to exonerate the trustees from vouching the account.</p>

<p>Where the testamentary declaration and the request to the subscribing witnesses to attest the instrument, were made by means of questions put by the-counsel attending the execution of the will, and the affirmative response of the testator,—Held, that the forms prescribed by the statute were satisfactorily complied with.</p> <p>When there is room for doubting the strength of the testator’s capacity, and for suspecting improper influences brought to bear on his volition, his previous declarations as to his testamentary intentions may be received in evidence ; but they diminish in importance as the grade of capacity increases, and have no value whatever where the mind is sound and vigorous.</p> <p>If the testator’s bequests exceed the amount of his estate, such a fact might aid in determining a case of doubtful capacity, but of itself it is not sufficient to impeach the testator’s soundness of mind.</p> <p>There is nothing unlawful in suggestion, provided it be not carried to the degree of importunity, and the testator be in the full possession of his faculties.</p> <p>A will contested on the ground of undue influence, admitted to probate.</p>

<p>The testator gave his wife an annuity of five hundred dollars per annum, to be paid semi-annually, out of his estate, and directed his executors to retain in their hands and keep invested a sum sufficient to pay the annuity. Held, that the annuity was a charge on the estate, and the executors were bound to invest a sum sufficient to pay the annuity, clear of any taxes and commissions.</p> <p>There is a distinction between income and an annuity. The former embraces only net profits, after deducting all necessary expenses and charges—the latter is a fixed amount directed to be paid absolutely and without contingency.</p> <p>Residuary estate is given on the condition, express or implied, of the previous satisfaction of other legacies, and this condition can be discharged only by the payment of the clear amount of the legacies, free from all charges.</p>

<p>Nuncupative wills at common law were as valid in respect to personal estate as written testaments; and, although originally not required to be made at any particular time, it eventually became settled doctrine that nuncupations were to be tolerated only when made in the last sickness.</p> <p>The provisions of the statute of frauds were not applied to nuncupations made by soldiers or seamen in actual service, and a similar exception was made in our own statute respecting wills, and in the act of 1 Victoria, ch. 26.</p> <p>This privilege was borrowed from the Roman law, which authorized military testaments to be made, without restriction as to forms and ceremonies. The rule was generally followed in those countries which adopted the civil law, and was ultimately extended to the testamentary dispositions of mariners.</p> <p>To enjoy the benefit of this immunity, the sailor or soldier must be in actual service—the sailor at sea, and the soldier in an expedition.</p> <p>The privilege extends to all ranks and grades, whatever be the special occupation of the party.</p> <p>Where the decedent was a cook on board of a steamship, and made a nuncupation in favor of his mother, while lying sick on board the vessel at her wharf in Bremen—Held, that the case came within the exception of the statute—that he was to be considered as a mariner at sea, and might bequeath his property by a parol testament.</p> <p>No particular number of witnesses is required to evidence the nuncupation, provided the proof be sufficient to satisfy the court as to the substance of the testamentary request or declaration.^</p>

<p>In the case of a bequest of the residue to legatees nominatim “ equally, share and share alike,” the legatees are tenants in common, and the share of any one happening to die before the testator, lapses for the benefit of the testator’s next of kin, as a portion of the estate found, under the circumstances, not to be validly bequeathed by the will.</p> <p>On the final accounting of the executors, it appeared that there was no person to answer the name of an annuitant described in his will, as the testator’s “ cousin, Paris Piccard ; but parol evidence was given, that his cousin Priscilla Piccard was usually named by him as described in the will.</p> <p>Parol proof may always be used to apply a will; that is, to ascertain the person intended by the testator, by a description, which, though not ambiguous on its face, cannot be applied precisely as expressed in the instrument. The plain terms of a testament cannot be altered, by showing the testator’s declarations. The writing must prevail, and be interpreted by its own language ; but it is competent to point out by proof the person who answers the description of a legatee ; and if there be no one who exactly meets the desc the person intended may be ascertained by means of extrinsio</p>

<p>After a contest as to the probate of a will, and the Surrogate’s decree admitting the instrument to proof, if an appeal be taken, a collector may be appointed on the application of the next of kin, although resisted by the party claiming under the will.</p> <p>The appointment of a collector is entirely within the discretion of the Surrogate, and is usually made whenever there is probability of long delay in the grant of administration in chief.</p> <p>Pending litigation of the probate, the estate should not be left without official care and supervision.</p> <p>It is not proper nor customary to appoint either of the parties litigating, collector; an indifferent person should be selected.</p>

<p>Judgments docketed and decrees enrolled against the decedent are entitled to be paid in the order of their priority, in the third class of debts, according to the rule prescribed in the Revised Statutes. The docketing contemplated in this provision of the statute is the docketing made by the clerk of the court in which the judgment is recovered.</p> <p>Where a judgment had been recovered against the intestate in the Superior Court of the City of New-York, and had been regularly docketed by the clerk of the court, but a transcript of the docket had not been filed with the county clerk of New-York,—Held, that the judgment was entitled to priority of payment in the third class of debts.</p> <p>The preference given by the Revised Statutes to judgments and decrees in the order of their respective dates, has no reference to the question whether or not they are liens on real estate, but the rule was derived from the common law and applied to all judgments, on the ground of their superior rank over specialty and simple contract debts.</p> <p>The executor or administrator may protect himself from danger of paying debts out of their order of priority, where the estate is insolvent, by refraining from distribution until the expiration of the legal advertisement for the presentation of claims.</p>

<p>Where the will provided for the payment of an annuity to the testator’s widow, in equal quarterly payments, on the first Mondays of January, April, July, and October, to commence immediately after the testator’s decease, and the testator died on the fourth of August,—Held, that there should be no apportionment, and that a full quarterly payment became due on the first Monday of October succeeding the testator’s death.</p> <p>It is the duty of a life-tenant to keep down annual charges arising from taxes.</p> <p>Taxes due at the death of the decedent should be paid from the personal estate, and taxes accruing subsequently are chargeable upon the land. There is no rateable apportionment, varying according to the period of the year the decedent died, but the whole tax becomes due and must be paid according to the rule just stated.</p> <p>The testator having provided that his wife should be left in the undisturbed possession of her individual property not identified with his estate,—Held, that she was entitled to a balance due her on his books, appearing in an account of her individual estate kept in her individual name.</p>

<p>The Surrogate has jurisdiction, on the application of a creditor for an account and for payment of his demand, to try the claim, although disputed; and this authority extends to equitable as well as to legal debts.</p> <p>The balance due from a deceased partner of a firm, to a surviving co-partner, on account of the partnership transactions, is an unliquidated demand of the fourth class of debts due from the estate of the decedent, according to the order prescribed by the Revised Statutes, which it is competent for the Surrogate to liquidate as an equitable demand, and order to be paid.</p>

<p>Where the Surrogate of New-York appointed a guardian for a minor, residing in his county, and thereafter the residence of the minor was changed to the county of Kings, and the minor having attained the age of fourteen, desired the appointment of a new guardian,—Held, that the Surrogate of the county of Kings had jurisdiction to make the appointment.</p> <p>A domicil of choice can only be acquired by a person who is sui juris, and a minor cannot therefore of his own motion make a change of his domicil.</p> <p>The guardian is an officer of the law, and he will not be allowed to employ his authority to the disadvantage of his ward. He ordinarily possesses the custody of the minor's person, and the right to select his habitation, but no greater effect will be given to his acts in these respects than the nature of the case reasonably requires; and although the act may be allowed and ratified, if judicious or necessary, its consequences should be limited so as not to affect the status, or the rights of the infant, or the succession to his property.</p> <p>There would, however, appear to he no ground for denying such a control on the part of the guardian over the residence of the ward as shall not withdraw him from the jurisdiction of his domicil of origin. A change of residence from one portion of the same sovereignty to another, as from one county to another, is completely within the scope of the guardian’s authority, as no rights are impaired or affected, but there is simply a substitution of one local authority in the place of another, all under the same laws and jurisdiction.</p>

<p>On the probate of a will, where the deceased leaves no known heirs or next of kin, the Public Administrator of the City of New York may intervene to contest the will in relation to the personal estate, and the Attorney General in relation to the real estate.</p> <p>The decedent being deaf, and communication with him being ordinarily performed by writing on a slate and receiving his answers orally,—Held, that it was competent to perform the ceremonies of executing his will, in that mode. Under the circumstances, the reading and signing of the will, the affirmative response of the decedent to the question whether it was his will, followed by the signature of the witnesses in his immediate presence, constituted a valid testamentary act, involving a substantial rogation of the witnesses.</p> <p>Where a disease, ultimately affecting the mind, was insidious and slow in its development, and there was ground for suspicion, that, previous to the factum, apprehensions were entertained of the possible approach of mental derangement, there should be a careful scrutiny of an act performed shortly before an accession of undoubted symptoms, in order to see whether it was a rational and natural act, conformable to the views and wishes of the party when in a state of health.</p> <p>A will, made in a lucid interval, may be valid; but the facts establishing intelligent action must be shown. The nature and character of the instrument, and of its dispositions, have great influence in determining the mind of the court as to the capacity of the decedent at the time; and it is important to ascertain whether the contents of the will harmonize with the state of the decedent’s affections and intentions otherwise expressed.</p> <p>Where the contest is between the State claiming an escheat, on the one hand, and on the other parties standing towards the decedent in relations of intimate intercourse, confidence, and affection, and in whose favor he had expressed his testamentary intentions at various times antecedent, no presumption will be indulged against the validity of the instrument, except such as facts clearly proven compel the court to entertain. Mere suspicion will not overturn the disposition, and if there be discrepancies in the evidence, or doubts as to the preponderance of the testimony, the law inclines to sustain a reasonable and probable act.</p>

<p>Where the testator gave all his property to his daughter Elizabeth, for life, and directed, on her decease, if there should be any failure or deficiency in a legacy of ten thousand dollars contained in her will, in favor of his adopted daughter Catharine, that a sufficient amount to make up such sum should be paid out of his estate to Catharine, her executors, administrators, and assigns ; and Catharine died before Elizabeth,—Held, that the legacy under the testator’s will became due on the decease of Catharine, and was transmissible to her legal representatives.</p> <p>When a legacy is given after the decease of a life-tenant, the general rule is that both interests vest on the testator’s death, and the bequest does not lapse by the decease of the legatee before the life-tenant.</p> <p>Conditions are either positive or negative, and involve either the occurrence or the non-occurrence of a future event. A condition precedent suspends the vesting of the legacy, and if the legatee die before the eventuation of the condition, the legacy falls.</p> <p>Negative conditions must necessarily be fulfilled, when it is certain that the thing cannot be done. If the condition is something not to be done by the legatee or to the legatee, the negative must be made certain when he dies, re non facta. A negative condition relating to the donee is accomplished by his decease, if not determined before.</p> <p>A bequest to a person, when he shall die, is not void for incongruity, but is ascertained on his decease, and is transmissible to his legal representatives.</p> <p>A bequest to C, in default of her receiving a bequest from E, is not equitably-satisfied by a legacy from E, to the issue of C.</p>

<p>The Public Administrator, in whose charge the personal property of the deceased has been placed, pending a contest on the grant of letters of administration, will be allowed to sell such portion of the assets, as may be necessary for the preservation and benefit of the estate.</p> <p>Although if there be a clear outstanding legal title adverse to the estate, the court might refuse an order for the sale; yet, if there be reasonable cause for doubt, the proper course is to permit the sale, and let the question be tested by the court having jurisdiction of the subject-matter. If the alleged adverse interest be well founded, the party has an adequate remedy in the courts of law.</p>

<p>On the distribution of the proceeds of the real estate of a deceased person, sold for the payment of his debts, claims having been interposed by separate and by partnership creditors,—Held, that the legal priority of the former would not be disturbed in equity.</p> <p>In equity, partnership creditors will be decreed satisfaction of their debts as against the legal representatives of a deceased partner, where the firm and the surviving partner are insolvent.</p> <p>This remedy does not, however, extend to cases where the estate of the deceased partner is insufficient to pay his separate debts.</p> <p>By the English rule, where there is no joint estate and no surviving partner, the joint creditors are allowed to share rateably with the separate creditors in the separate assets ; this exception, however, to the general doctrine, has not been recognized, and does not prevail in this State.</p> <p>If, after the payment of the separate creditors, any surplus remain, it may be applied to the payment of partnership debts ; but, in such case, those who have received partial payment out of the partnership assets, must bring in their dividends and share rateably with those who have not received dividends, or else be excluded until the latter class have received sufficient to place them on terms of equality with the former.</p>

<p>On a decree upon final accounting, the claims of creditors having been liquidated, and the funds found in the executors’ hands directed to be paid rate-ably among the claimants,—Held, that the decree was no bar to a plea of the statute of limitations by parties interested in the testator’s real estate, against the portions of the debts not discharged by the dividend directed to be paid on the final accounting.</p> <p>Heirs and devisees may plead the statute against claims sought to be enforced against the real estate of the deceased.</p> <p>Where the will contained a direction to sell the testator’s real estate and distribute the proceeds among certain legatees, and the creditors failed to enforce this provision, or to take measures to have the lands sold by order of the Surrogate,—Held, that when the power had been exercised and the land converted into money, long after the debts had been barred by the statute, this fund did not constitute new assets in regard to which a remedy remained to the creditors.</p> <p>The statute of limitations may be interposed by the executors, or by either of them, or by any party interested in the fund.</p> <p>The statute begins to run against a demand when the cause of action accrues, either in the lifetime of the intestate or testator, or after his death.</p> <p>What is the effect of a Surrogate’s decree liquidating the debt, but not directing payment—Quære.</p> <p>Lands vested in the deceased debtor are assets at the time of his death, and as to them the statute begins to run from the time the compulsory remedy afforded by the statute for their sale, can first be invoked; that is, eighteen months after the grant of letters, or when an account of the personal estate has been rendered.</p> <p>The statute begins to run against legatees whose bequests are made payable out of the proceeds of real estate directed to be sold by the executors, from the time the executors execute the power. The act of the executors prevents their denial that the trust continues, and the duties consequent upon an exercise of the trust, will be enforced against the trustee, within the statutory period after the performance of the fiduciary act.</p>

<p>The testator was domiciled in the State of Connecticut, at the time of his decease, the will was proved and letters testamentary were issued there, and subsequently probate was granted and letters were issued in the county of New-York,—Held, that the law of the situs of the assets regulates the grant of administration, and the liability and accounting of the executor or administrator.</p> <p>An executor or administrator, by virtue of his appointment in one State or country, derives no authority over the goods of the deceased, in another country or State, unless he obtain new powers in the jurisdiction where such goods are situated.</p> <p>A foreign executor having collected assets in this State, before letters testamentary issued, and having subsequently qualified, is bound to account as executor for such collections, to the court by which he was appointed ; the letters relating hack, for that purpose, to the time of the testator’s death.</p> <p>Though the account of a foreign executor must be settled according to the lex rei sites, yet the distribution of the estate, and the interpretation of the will are regulated by the lex domicilii. Where the testator, who was domiciled at the time of his decease, in the State of Connecticut, left assets in the State of New-York, and the executor after collecting the estate in New-York, applied to the Surrogate by whom he had been appointed, for a final accounting,— Held, that the proceeding would not be postponed, after the legatees had appeared and claimed a final settlement, in order to enable the executor to procure an interpretation of the will at the place of domicil, by means of a suit instituted there subsequent to the application for a final accounting in New-York.</p> <p>Upon a final accounting, it is the duty of the Surrogate to look into the will, interpret its language, and direct a distribution according to the tenor and effect of its provisions.</p> <p>The decree of the Court, at the place of the situs of the assets, will protect the executor or administrator at the place of domicil.</p> <p>In closing what is sometimes termed an ancillary administration, the rights of the creditors, legatees, and distributees, resident within the country where it was granted, are protected and enforced, and the residuum will not, generally, be transmitted to the representatives abroad, until the final account has been settled with a due regard to the claims of parties intervening for the retention and distribution of their own shares.</p> <p>The testator, after providing an annuity for his wife, payable out of his estate, gave the residue to executors in trust “ for the sole use and benefit” of his children in certain “ shares,” and directed maintenance out of their respective portions, and payment of the “ shares,” after majority, in biennial sums; with a gift over to issue in case of death before “ payment” of the shares, or in default of issue, to the survivors,—Held, that the legatees took on the testator’s decease, an absolute vested interest in their respective portions as tenants in common; that the provision in regard to payment, and the executory bequests over, related only to the corpus or principal of the estate, and not to the income; and that the legatees were entitled absolutely to the profits and income of their shares from the time of the testator’s death.</p> <p>Vested estates can be divested only upon the happening of the precise contingency, and to the precise extent, for that purpose specified in the will. The primary gift of the testator’s whole estate or interest remains in the beneficiaries in every event upon which it is not divested. A clear absolute gift will not be divested upon reasoning merely conjectural.</p> <p>Implication in order to affect or vary vested rights, must be necessary, and not merely probable.</p> <p>A prior devise will not be disturbed further than is absolutely necessary to give effect to the posterior qualifying dispositions.</p> <p>The rules in regard to the vesting of testamentary bequests are not varied by reason of the intervention of a trust, unless it be, that there is a stronger implication in favor of vesting where there is a trust, than where there is not.</p> <p>Where there is uncertainty as to the vesting of a legacy, a provision for maintenance and support helps the vesting.</p> <p>If legacies of a residue be vested, income is due as a matter of right to the owners of the shares.—Residuary dispositions are particularly favored, not only in regard to vesting, but also in respect to the title of the legatee to the profits or fruit of the fund accruing before the time of payment.</p> <p>In the construction of a will, it is a general canon of interpretation, that the term share is limited to the original portion, unless particular expressions extend this meaning.</p>

<p>A bequest to W and F of a share of the residue, followed by a direction that such share be “ paid them, when they come of age,” constitutes a joint tenancy, and if one of the legatees die before a severance, the survivor will be entitled to the whole gift.</p> <p>The right of survivorship is a characteristic of a joint tenancy. On the death of one joint tenant, either before the decease of the testator, or after his decease and before a severance of the joint tenancy, his right will survive to the other joint tenants.</p> <p>The provisions of the Revised Statutes relative to joint tenancy in real estate, do not apply to personalty.</p>

<p>A will contested on the ground of alleged habits of intemperance, and allegations of undue influence, admitted to probate. .</p> <p>Where there are circumstances to excite suspicion as to the procuration of the instrument, it is proper to enquire how far the will was conformable to the views and motives of the decedent. Undue influence may be inferred from circumstantial evidence; and where the testamentary dispositions are unnatural, unreasonable, and not easily accounted for, unless upon the hypothesis of persuasion and improper influences, the court will require clearer proof to sustain the transaction than would otherwise be demanded.</p> <p>Statements of testamentary intentions to casual acquaintances, are by no means safe indications of what is seriously designed; but where they agree with the terms of the will, and appear to have been made repeatedly, to a number of persons, and through a considerable space of time, and where they are not controverted by evidence of alienation from the legatee, or greater affection for other parties, their weight is largely increased, so as to render them an important element in the support of the will.</p>

<p>The testator by his will bequeathed the sum of twenty thousand dollars in trust for bis niece, and afterwards by a codicil devised to her a house and lot in lieu of a portion of the legacy. The premises devised were subject to a bond and mortgage at the time of his death, and the will contained only the usual direction to pay debts—Held, that the devisee took the land cum onere, and was bound to pay the mortgage, and interest accrued.</p> <p>The rule of the Revised Statutes, that mortgages on land are not to be paid out of the general estate, will not be disturbed except by some clear and express provision of the will.</p> <p>Where the testator gave one half of the residue of his estate to his niece for life, and on her death to her two children, share and share alike, with survivor-ship in case either of the children died before the mother, without issue, and the mother and one child died before the testator,—Held, that the share of the surviving child in the residue took effect instantly on the testator’s death; and the deceased child having died without issue, after and not before his mother,—Held, that the survivorship did not take effect.</p> <p>The general rule, that by the death of a legatee before the testator, his interest under the will lapses, relates only to the interest of the party so dying, and where there are other interests grafted or limited upon that of the deceased legatee, they do not necessarily fall.</p> <p>Where a life tenant dies before the testator, but the party entitled in remainder survives him, the death of the life tenant only extinguishes the life estate, and the remainder-man is let in to the immediate right to the gift, the moment the will takes effect.</p> <p>A will, clearly expressed, must receive the interpretation the words compel, and cases or events not contemplated cannot be aided by judicial interposition.</p> <p>Conditional limitations contingent upon some specified event, take effect only upon the occurrence of the precise event designated.</p>

<p>The appointment of a guardian for the person or the property of an infant is an act of jurisdiction dependent upon the situation of the person or the property within the territory of the State. This authority is not limited to cases of subjects or citizens.</p> <p>Foreign guardians have no extra-territorial authority, and letters of foreign guardianship afford no title within this State.</p> <p>The laws of the domicil in relation to the power of the guardian are sometimes recognized, but this is a matter of comity, and rests in the discretion of the court.</p> <p>In all cases where legacies are due to minors, the Surrogate must direct the money to be paid into court, to be invested for the minor’s benefit, and the income applied for maintenance, unless there be a general guardian who has given adequate security.</p> <p>Where executors have withdrawn productive funds, in order to pay legacies before they became due,—Held, that they were chargeable with the loss thus occasioned to the residuary legatees.</p> <p>The testator bequeathed six thousand dollars to each of his sisters, to be invested, and not “ transferable during their life one of the legatees having died before the testator,—Held,, that the bequest lapsed.—Held, also, that it was not the intention to limit the donees to a life estate, but to restrain the mode of enjoyment through the medium of a trustee, so that the principal fund could not be alienated until death.</p> <p>A subsequent will not executed with the forms requisite to pass real estate, is not a revocation of a previous will duly executed, and both instruments may be admitted to probate, the one as a will of personalty, and the other as a will of realty.</p>

<p>By the law of this State, marriage is treated merely as a civil contract, not requiring legal forms, religious solemnities, or any special mode of proof. Marriage is honorable; and where its duties are voluntarily assumed by parties occupying an independent position, there must be some strong and controlling motive to induce a suppression of the relation.</p> <p>The policy of the law is opposed to concealment of the marriage contract; and when there has been no cohabitation, or acknowledgment, or mark of the relationship, but the parties lived as single persons, and the alleged contract was first announced after the alleged husband’s death,—Reid, that there was no presumption in favor of marriage, but against it In such case, the allegation should be viewed with jealousy, and strict proof be demanded.</p> <p>In a question of identification, where there is no recognition, it is unsafe to rely upon mere resemblance; especially where the comparison is between a dead body and a living person, the powers of perception in the observer were not unusual, the opportunities for observation were slight, and a considerable interval had elapsed between the dates of comparison.</p> <p>Where direct evidence of marriage is insufficient, it may be supplied by indirect and collateral proof of the conduct, treatment, and declarations of the.parties.</p> <p>Sentence given against an alleged marriage, on the ground that the ceremony was clandestine, and accompanied by suspicious circumstances; there was no proof of cohabitation, of private or public acknowledgment, no sufficient evidence identifying the alleged husband, the marriage was first disclosed after the husband’s death, and the declarations and acts of the parties were entirely repugnant to the marital relation.</p>