Volume 4 — Demarest's Surrogate Reports

Oh September 3rd, 1885, upon the petition of the executors, citations, returnable the 30th day of the same month, were issued for a final accounting in this matter.

The testator, Daniel P. Bacon, died in December, 1879, leaving a will, whereby he disposed t>£ an estate amounting to about $250,000, of. which about $225,000 consisted of Government bonds, bonds and mortgages and stocks.

A paper, intended for a last will and testament, •was prepared and came into the hands of the decedent at some time in 1882. There were several blank spaces in the body of it, sufficiently large to permit the writing of disposing clauses without interlineations, and a space at the end. of the paper for the signature. Spaces were also left fo.r the insertion of the day, month and year, which remained unfilled.

It appeared, from the account filed in this matter, that the administrator included, among the assets for which he proposed to account, the amounts contained in several savings bank pass books, which were entered upon those pass books as follows : “ Bank book No. 449.056, Bowery Savings Bank in account with Elizabeth Collyer, in trust for Willie Beckwith. $819.09.” There were six other items of similar pass books of several savings banks, with different sums “ in account…

Theodore F. Baylis and Jacob B. Smith, as administrators of the estate of decedent, in April, 1884, instituted a special proceeding, for the judicial settlement of their account, as such. During the progress of the accounting, it appeared that one Nathaniel W. Husted, nearly twenty years ago, obtained a judgment against John B. Smith, one of the next of kin of decedent, for about $50.

The intestate was employed in the construction of the new Croton aqueduct, within the limits of Westchester county, and while so employed received an injury from which he soon died. A coroner’s inquest was held over the remains, and the coroner found among the effects of the deceased a watch and some other personal property, among which was a bank pass book, showing a deposit to the credit of the intestate in the Tarry town National Bank, amounting to upwards of $400.

The petition of Milbank Johnson showed that he was an infant, over fourteen years of age, residing at Elgin, in the state of Illinois; that he was entitled, under the will of Gail Borden, late of Westchester county in this State, deceased, to certain property situated in that county: that the petitioner’s father, Jahu W. Johnson, was appointed his general guardian in Harris county, in the state of Texas, on or about December 7th, 1880, and that ancillary letters of…

It appeared from the petition in this matter, that the decedent, by his will, gave an annuity of $5,000 to his wife for life, and that, after making several other pecuniary provisions for other persons, he gave the residue of his estate, to be held by Frances C. Hill, his widow, and Edward Petit, his son in law, who were named as executrix and executor, in trust, for the benefit of his two daughters, Isabella and Arabella, one moiety of the residue in remainder to go to the…

Charles Olmsted died intestate in February, 1882. Letters of administration on his estate were duly issued to his widow, Eachel Olmsted, in March following. On March 28th, 1884, she rendered her account, as such, all persons interested in the estate having been cited to attend the same. From the account, it appeared that there were no assets of the estate left unadministered. A decree was entered accordingly.

Elizabeth Collyer died in March, 1883, leaving, as alleged, about $70,000 of personal estate. After a fruitless search for a will of the decedent and on April 13th, of the same year, letters of administration on her estate were duly granted to her brother, Charles S. Collyer.

Construction of will, at the instance of executor, upon judicial settlement of his account, with a view to the proper disposition of the funds of the estate.

Dennis Kelley, an executor named in a paper propounded by him, purporting to be a will of the decedent, after proving the due execution thereof by one of the subscribing witnesses, and the handwriting of the only other subscribing witness, who was shown to be dead, asked to have the same admitted to probate. The testator’s name was written by the deceased witness, and the will was subscribed by Reynolds, by making a cross mark.

The testator left a daughter, Arabella, the wife of Henry W. Quin, Jr., who was a beneficiary under the will, and who died in January, 1885. The executors, Frances C. Hill and Edward Petit, rendered an account of their proceedings, which resulted in a decree, entered June 5th, 1885, whereby it was, among other things, adjudged that there was due to Arabella Quin the sum of $613.64, and directed that the executors pay the same to her legal representative.

On the return day of the citation in this matter, Smith & Randall, attorneys' at law, represented that they had acted as such for Barnard R. Guión and Mary T. Van Voorhis, legatees, on an accounting of the executor (since resigned) of the will of decedent, in which a decree was entered in 1882 (see 1 Dem.P 306); that, as such attorneys, they had a lien upon the amounts of the respective legacies of said Guión and Mrs. Van Voorhis, as determined by the decree, over and above…

Gilbert H. Dearing and Francis Childs were named as executors in the will of decedent, which was admitted to probate in January, 1878. Gilbert H. Dearing alone qualified, and took upon himself the burthen of its execution, and entered upon the-discharge of his duties.

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

The petition of Mary D. Horton and Abraham Hill, named as executors in a paper propounded as the will of decedent, bearing date November 7th, 1882, presented with a view to the proving of it, alleged, among other things, that, at the time of her death, she was a resident of Westchester county.

Jahu W. Johnson was appointed by the proper court in Houston in the state of Texas, where he and his minor children resided, general guardian of Emma 0. Johnson, Milbank Johnson, and Carrie B. Johnson, said minor children, in December, 1880.

<p>Decedent died October 1st, 1868, indebted to C., on simple contract, *in the sum of $300, which had become due and payable April 1st, 1868, and leaving a will nominating executors, to whom letters were issued on October 19th of the same year. In June, 1871, a judgment for the amount of the claim was recovered against the executors, who, fn July, 1880, voluntarily rendered their first account, showing an insufficiency of assets to pay alleged debts. On May, 17th, 1886, C. instituted a special proceeding for the disposition of the real property of decedent, for the payment of his debts. Upon objection by the devisees,—</p> <p>Held, that C.’s claim was barred by the statute of limitations, his remedy against the real property gone, and that the application should be denied.,</p> <p>Mead v. Jenkins, 95 N. Y., 31—criticised.</p> <p>It seems, that the. limitation, contained in Code Civ. Pro., § 2750, of the . time within which a creditor may present a petition for the disposition of a decedent’s real property for the payment of his debt, to three years after letters are granted,—and the suspension, by id., § 1844, of' the right of action therefor against the heirs and devisees during the same three years,—have no such connection as to justify a construction whereby the period of such suspension should be deemed to enlarge that of the limitation mentioned.</p> <p>Where a testator devises his real property to one for life, with a direction that, after the death of the latter, the same be sold, and the proceeds divided, such property does not constitute legal assets of the estate during the lifetime of the cestui que vie.</p>

Petition by Jonathan G-. Rugg, one of the executors of, and a legatee under the decedent’s will, for an order directing that Lemuel S. Jenks, his co-executor, be punished by fine or imprisonment, as for a contempt of the court. The facts appear sufficiently in the opinion.

Construction of will and codicil on application for revocation of probate. The facts appear sufficiently in the opinion.

Petition by Philander B. Case, a son of decedent, for the probate of the will of the latter. The facts appear sufficiently in the opinion.

Application by Henry Knickerbocker and Henry W. Perkins, partners, as creditors of decedent’s estate, for a decree directing the disposition of his real property for the payment of his debts ; opposed by Maria E. Decker, executrix of decedent’s will. The facts appear sufficiently in the opinion.

<p>Testator’s will, after bequeathing a life interest in the residue of his estate to his wife for her maintenance, and the maintenance and education of their children until they became self-supporting, directed that, after the widow’s death, all such property as then remained be disposed of, and the proceeds be divided “ equally among the children I may then have, or those who may be legally entitled thereto.” When the will was executed, testator had three children, of whom one died before him without issue, another before testator’s widow, leaving a widow and children, and the third, J., survived both his parents.—</p> <p>Held, that J., as the sole survivor of his mother, was entitled to the exclusive benefit of the ultimate disposition made by the will, the intent of the italicized words being that, in the event of the death of all the children in the widow’s lifetime, and only in such contingency, the property should eventually pass under the statute providing for distribution in cases of intestacy.</p> <p>The word, “children,” occurring in a will which furnished no evidence of a design to adopt a special and more extended meaning,—</p> <p>Held, to apply only to offspring in the first degree, and to exclude grandchildren, in accordance with the doctrine asserted in Kirk v. Cashman, 3 Hem., 242.</p>

The testator died in 1878, leaving some personal property, and real property of great value. He left, him surviving, a widow and ten children, and no child of living or deceased children.

Petition by Rebecca Childs, the widow of decedent, for a grant, to her, of letters of temporary administration upon decedent’s estate; opposed by Henry W. Haas, a son of decedent by a former marriage. The facts appear sufficiently in the opinion.

Upon a contested application for letters of administration upon the decedent’s estate, the Surrogate decided that Maggie Elias was the widow of the decedent and entitled to the letters. The requisite official bond not being given by her, letters were subsequently issued to the public administrator, who procured a citation directing the widow to attend and be examined concerning decedent’s property. On the return day, she moved to dismiss the proceedings.

Petition by Thomas Norton, father and general guardian of Jane E. Norton, an infant cestui que trust under decedent’s will, for an order directing the application, by Valentine Sillcocks, executor therein named, of the income of the infant’s interest thereunder to her support and education. The facts appear sufficiently in the opinion.

<p>Whez'e the general gitaz-diazz of izzfazzt beneficiarles of a testaznentazy trast is in doubt whether, upozi a discovery of all the facts, it may not be for the best interests of his wards to ratify rather than to repudiate acts of the trustees, "who are accounting before the Surrogate’s court, he may properly apply, under Code Civ. Pz-o., § 2735, for an order l'equiz'ing the latter to attend azid be examined touching the matter, pz-eviously to filing objections to the account.</p> <p>Under Code Civ. Pro., § 2533, permitting the Surrogate “to require a party to file a written petition or answer containing a plain and concise statement of the facts constituting his claim, objection or defence,” etc., and Rule 9, which declares that a party desiring to test an account “ shall file specific objections thereto in writing,” and that “ the contest of such account shall be confined to the items or matters so objected to,” a statement, in a paper purporting to set forth objections to an account of trustees for infant cestuis que trustenb, that their gzzardian “asks an explanation of” an investment, “with liberty to approve the same if it shall be to the interests of the minors,” cannot be z-egarded as an “ objection ” to such" investment.</p> <p>Accordingly where, in proceedittgs for the judicial settlement of the account of such trustees, one of the accounting parties, on his examination before a z-eferee, to whotn the matter had been referred with full power, refused to answer questions addressed to him, in behalf of the infazits, for the purpose of showing the impropriety of an investment which had not been assailed except in the znazmer described,—</p> <p>Held, that he could not be punished for contempt, on account of such refusal, though he pez-sisted therein after being instructed to answer by the z-eferee.</p>

<p>Application for the removal of testamentary guardian. The facts .appear sufficiently in the opinion.</p>

Construction of will, upon judicial settlement of account of administratrix with said will annexed. The facts appear sufficiently in the opinion.

<p>Application by attorney of executor for allowance' of costs upon judicial' settlement of the latter’s account; objections whereto were interposed by Rose-Ann O’Reilly, decedent’s widow and sole legatee under his will.</p>

Petition by Margaretha Baier, an executrix of, and one of two acting trustees under decedent’s will, for leave to resign as such ; opposed by Edward Baier and others, cestuis que trustent.

Upon the judicial settlement of the account of Joseph Walker and William E. Barnes, executors of decedent’s will, the following provision of that instrument was submitted to the court for judicial construction : “ I give, devise and bequeath all the rest and residue of my estate, real and personal, to my executors hereinafter named and their successors in trust and for the uses and purposes following, namely: (1) Out of the income thereof, whether arising from rents,…

Application by Frances E. Quintard, a daughter of decedent, and a legatee under his will, for a grant of letters of administration, with the will annexed, to herself and others. William H. Morgan, a grandson of decedent, applied for his own appointment, as co-administrator with said petitioner. The facts appear sufficiently in the opinion.

<p>Hearing of objections interposed by Harris Salomon, a judgment creditor of decedent, to an inventory of the estate, filed by Josephine Heichel, the administratrix. The facts appear in the opinion.</p>

Petition by Hall & Blandy, attorneys and counsellors at law, to compel the administrator of decedent’s estate to pay to them two judgments for costs, recovered in favor of petitioners’ clients, against respondent in his official capacity. The facts appear sufficiently in the opinion.

Hearing of exceptions to report of referee to whom were referred the account, and objections thereto, filed by executor, in proceedings for judicial settlement. The facts appear sufficiently in the opinion.

Order, granted at the instance of Hugh N. Camp, temporary administrator of decedent’s estate, requiring Edwin and Charles Fraser, sons and surviving partners of decedent, to show cause why they should not be punished for a contempt in resisting and preventing the appraisement of the personal property belonging to that estate.

Petition by James B. McKewan, alleging that a proceeding instituted to procure a decree revoking the administrator’s letters had been referred at the instance of counsel for the administrator and others, and against petitioner’s protest; that the referee’s report was ready to be filed on payment of $253.75 fees; that petitioner was too poor to take up the same; that the estate was exclusively personal, and did not exceed $2,000; that the • administrator had $500 cash in…

Application by James S. Dickerson and others, for a decree directing payment to them, by Anson P. Stokes, temporary administrator of the estate of decedent, of a legacy bequeathed to them in a codicil to the will of the latter. The facts appear sufficiently in the opinion.

<p>Petition by Rosanna Gaffney and another, administratrix and administrator of decedent’s estate, for examination of public administrator, under Code Civ. Pro., § 2706, as to property withheld, etc. The facts are stated in the opinion.</p>

Construction of the will of decedent, upon an application made by Isaac Fernbacher, his son and one of the remaindermen under that will, for revocation of the letters issued to Regina Fernbacher and others, as executrix and executors thereof, on the ground of their having wasted and improperly applied the money and other assets of the estate which came into their hands, and improvidently managed and injured the property committed to their charge.

<p>Legacies bequeathed to infants, “to he paid to them as they shall severally attain the age of twenty-one years,” with gifts over in the event of earlier demise, vesting on testator’s death, are not within the purview of an Act taxing legacies, prospective in its character, passed after . such death, though before the legacies become payable.</p>

Applications for letters of administration, original and ancillary, of the estate of decedent. The facts are stated in the opinion.

Motion by Evan J. Henry, decedent’s father, for an order directing commissions to issue for the examination of certain non-resident witnesses, in proceedings instituted by him for the revocation of probate of decedent’s will; opposed by Sarah M. Henry, proponent of the will, and a beneficiary named therein.

Petition by Henry E. Billings, a judgment creditor of decedent, for a decree directing William D. Stewart, administrator of the estate of the latter, to pay the amount of his claim. The facts are stated in the opinion.

Construction of will of decedent, upon admission of same to probate, at the instance of Frederick Jones, his only son and heir at law, contestant.

Application by Andrew Schmidt, a son, and one of the next of kin of decedent, for an order directing Annie Heusner and another, administrators of the latter, to file an inventory.

<p>There is no such, rule, in this State, as that words or acts which satisfy the statutory requirements in regard to publication of an instrument as a will, and request to witnesses to attest the same, necessarily include a compliance with those relating to the testator’s signature, and his acknowledgment thereof.</p> <p>Upon an application for the probate of an instrument purporting to be the will of decedent, it appeared that the same was written upon one side of a piece of paper, eight by ten inches in size, decedent’s signature being in its proper place, at the end. Decedent did not subscribe his name in the presence of either witness, and did not expressly acknowledge his signature to either, nor was it shown that either of them saw such signature at the time of the attestation, though the entire paper was necessarily exposed to their view, and declared by decedent to be his will.—Held,</p> <p>1. That the court was authorized to infer, from internal evidence, which the paper afforded, that it bore decedent’s signature when presented to the witnesses.</p> <p>2. That the exposure to them of the entire contents of the paper, accom- ,, panied with a declaration of its testamentary character, and request to sign, constituted a sufficient acknowledgment by decedent of his signature within the requirement of the statute of wills (2 R. S., 63, § 40).</p>

<p>One asserting-the right, under Code Civ. Pro., § 2614, as a creditor of a decedent, to present the latter’s will for probate, must, where his character as such is disputed, set forth facts showing, prima facie, that his claim is well founded.</p>

<p>Petition by Susan A. Derickson, grandmother of infants, for her appointment as their general guardian. The infants’ mother, Kitty B. Derickson, appeared and asked for relief.</p>

Petition by Emma Morrison, daughter of decedent, and guardian of her infant children, for letters of administration, with decedent’s will annexed; opposed by Elizabeth Blanck, decedent’s widow.

Judicial settlement of the account of John E. Lockwood, as general guardian of property of infant. The facts appear sufficiently in the opinion.

<p>A will admitted to probate upon the testimony of one of three subscribing witnesses, and against that of the others swearing positively that there was no publication.</p>

Hearing of exceptions to report of referee to whom were referred the account, and objections thereto, of the administratrix of decedent’s estate, in proceedings for judicial settlement.

<p>Construction of will upon its admission to probate. The facts appear in the opinion.</p>

Application by Mary Jane Brennan, administratrix of decedent’s estate, for an order restraining William Lane, her associate in the administration, from selling certain assets. The facts are stated in ■the opinion.

Cross applications for issuance of open commission, and commission upon written interrogatories, in a special proceeding instituted for the probate of decedent’s will.

<p>Hearing of objection to the account of Eliza Dayton, as executrix of the will'of decedent; interposed by Alice Raymond and another, "residuary legatees thereunder, in proceedings for judicial settlement.</p>

Settlement of decree, on judicial settlement of account of Janet Rudd and others, executrices of decedent’s will. The facts are stated in the opinion.

Upon the judicial settlement of the account of Charles L. Gunn and another, executors of decedent’s will, and trustees of a trust thereby created in favor of his infant daughter, William C. Banning, guardian of the latter, asked that certain instructions be given to.the referee to wkom the account had been referred ; the nature of which appears by the opinion.

<p>A Surrogate’s court will not revoke an executor’s letters at his own request, under Code Civ. Pro., §§ 2689, 2690, upon allegations that he has interests, as surviving partner of the decedent, antagonistic to his duties as executor, necessitating resort to another tribunal, where the estate should be represented by a disinterested person,—the former court having ample power to adjust the equities of the case.</p>

Hearing of objections interposed, in behalf of Louis B. Adams and others, infant cestuis que trustent, under decedent’s will, to the account filed by Emma D. Van Vleck and another, as trustees under the same. The facts appear sufficiently in the opinion.

Petition by Phillippíne Süsz, assignee of a legatee under decedent’s will, for certain relief against Charles Forst, executor thereof; the nature of which appears in the opinion.

Hearing of objections interposed by William R Bowne, an alleged creditor of decedent, to the account filed by Louise Lange, executrix of his will, in proceedings for judicial settlement.

Motion by Amalia A. Stolzel and another, claimants under an alleged codicil to decedent’s will, to stay issue of letters testamentary. The facts appear in the opinion.

<p>Trustees who employ, in their own business, the funds held by them in a fiduciary capacity, will at least be held accountable for the highest legal rate of interest thereon; and the stringency of this rule will not be relaxed in consideration of the fact that the fund has at all times been protected against loss by reason of the misappropriation.</p> <p>The rate of interest to be exacted from trustees, upon funds which they have failed to invest within a reasonable time, depends upon the circumstances of each case, and cannot be determined by an unvarying rule.</p> <p>Testamentary trustees do not necessarily forfeit commissions by irregularities through which the cestuis que trustent have suffered no detriment.</p>

.. Petition by Josiah N. Fiske, and others, nominated as executors of and trustees under decedent’s will, for leave to resign; opposed as to Mr. Fiske, by certain of the legatees. The facts appear sufficiently in the opinion.

Petition by Mary F. Moorhouse, a legatee and devisee under decedent’s will, praying for a citation directed to Mary Ann Hutchinson, who had been removed from office as executrix thereof and trustee thereunder, and to the Central Trust Company, her successor, and others, requiring them to show cause why petitioner should not have an advance of $20,000 out of the funds of the estate.

Motion by Mary L. Willoughby, executrix of decedent’s will, for the dismissal of objections to her account, filed by Garret I. Mead, executor thereof.

This was an application by a father and guardian on behalf of infants for the judicial settlement of the account of Letitia Duffy, the administratrix of their maternal grandfather’s estate; opposed by the administratrix on the ground that the infants were not “persons interested” in the estate, under Code Civ. Pro., § 2514, and therefore not entitled to an accounting under § 2726.

Hearing of objections to the accounts filed by Robert Willets and others, executors of and trustees under decedent’s will, in proceedings for judicial settlement. The facts appear sufficiently in the opinion.

Construction of decedent’s will, upon judicial settlement of account of William A. Butler, executor thereof. The facts are stated in the opinion.

<p>Motion for substitution of attorney of administrators. The facts are stated in the opinion,</p>

Testator died at Morristown, New Jersey, in November, 1883, having dwelt there for six years previous. His will was there proved, and letters testamentary issued to George W. Colles, in December of the same year. Testator left real property in New York county, where the will was again proved in August, 1884, and letters testamentary were issued by the Surrogate of that county to the same executor.

<p>Construction of decedent’s will, upon judicial settlement of account of Christian F. L. Muller, sole surviving executor thereof.</p>

<p>One asserting herself to be the widow of a decedent, and her title as such to intervene in proceedings instituted to procure probate of a paper propounded as his will, may show, in the Surrogate’s court, that a prior marriage did not disqualify her to become decedent’s wife, by reason of the same having been void ab initio.</p>

<p>In order to justify a revocation of letters of administration, or of general guardianship, upon the ground that the same were “ obtained by a false suggestion of a material fact” (Code Civ. Pro., § 26S5, subd. 4; id., § 2S32, subd. 4), it must be made to appear that the suggestion was made to the tribunal by which the letters were granted.</p> <p>Whether co-administrators can lawfully enter into an agreement, which the court is bound to recognize, whereby one of them is to have the exclusive care and custody of their decedent’s estate—quaere.</p>

Motion by Julia Vogel and others, next of kin of decedent, for an order directing George P. Arbogast and others, administrators of his estate, to produce papers on appraisal.

Hearing of exceptions to report of referee to whom, were referred .the account of the executors of decedent’s will, and objections thereto, filed in proceedings for judicial settlement.

Petition by Emma L. Stanley, claiming to be decedent’s widow, for the revocation of letters of administration issued to Eliza C. Stanley. The facts are stated in the opinion.

Request, by Sara P. Jones and others, who had been allowed to intervene in proceedings for the probate of decedent’s will, as representing the estate of Alfred R. Jones, a deceased partjp for the construction of certain provisions thereof, to the validity of which they had filed objections.

<p>The right of a creditor of a decedent, to priority in. payment of his claim out of the assets of the estate, is unimpaired by the recovery of a judgment against the personal representative.</p> <p>The claim of an executor or administrator to be reimbursed for the just and reasonable expenses of administration, as provided by 2 R. S., 93, § 58, is paramount to the demands of any creditors.</p> <p>Decedent died intestate and insolvent, domiciled in New Jersey, and leaving personal property in that state and also in the county of New York. No administration was granted in New Jersey, but the widow, soon after the death, collected the assets there, brought them into New York county, and procured here letters of administration of the estate. Two creditors, of whom one had recovered a judgment in this State against decedent in his lifetime, and the other was decedent’s medical attendant in his last illness, who had recovered a judgment here for the amount of his bill, against the administratrix, filed petitions for the payment of their respective claims. By the New Jersey statute, “ the physician’s bill during the last sickness ” is accorded priority over the claims of ordinary creditors.—</p> <p>Held, that the entire amount of the New Jersey assets, less their ratable contribution to the expenses of administration, should be applied to the discharge of the physician’s claim, in preference to that of the judgment creditor of decedent.</p>

<p>A temporary administrator of a decedent’s estate has not an absolute right to demand the judicial settlement of his account. As to whether he is an “ administrator,” within the purview of Code Civ. Pro , § 2689, relating to an application for discharge from office—quasre.</p> <p>The pendency of a special proceeding for the revocation of probate of a will, is not a bar to the grant of letters testamentary; but an executor appointed while such a controversy is in progress has only such limited powers as are possessed, under Code Civ. Pro., § 2582, where an appeal has been taken from a decree admitting a will or granting letters.</p> <p>A controversy over the probate of decedent’s will, during which the court appointed a temporary administrator of the estate, having terminated in a decree admitting the same, the administrator submitted his account for settlement.—</p> <p>Held, that the account should not be judicially passed upon, until letters testamentary had been issued, and the executors brought in as parties.</p>

<p>Hearing of objections, interposed by Maria A? Young and another, executrices of the will of Maria Valentine, a deceased beneficiary under the will of decedent, to an account filed by the acting trustee of a trust created by the latter will. The facts appear sufficiently in the opinion.</p>

Contest among Benjamin Russak and three others, the four executors of decedent’s will, as to the quantum of their respective shares of commissions, to be awarded for executorial service, by the decree to be entered upon the judicial settlement of their account. The facts appear sufficiently in the opinion.

Petition, by George Lane, an infant beneficiary under decedent’s will, for the removal of George Henry Lewis from office as trustee thereunder, and the appointment of a successor. The facts appear sufficiently in the opinion.

<p>Determination as to validity of will, upon application for probate. Objections were interposed in behalf of John F. Wardlow, heir at law and ne'xt of kin of decedent, and others. The facts appear in the opinion.</p>

Application by James K. Place, decedent’s husband, for letters of administration with her will annexed ; opposed by Emeline P. Hayward, her daughter. The facts are stated in the opinion.

<p>Contest among co-executors; the facts respecting which are sufficiently stated in the opinion.</p>

Petition for the probate of decedent’s will, presented by John L. Hart, therein nominated sole executor thereof; opposed by Angelina Stebbins and others, decedent’s next of kin. The facts appear in the opinion and note.

Petition for the probate of decedent’s will, presented by James Scott, therein nominated executor thereof; opposed by Sarah D. Morse and others, decedent’s heirs at law.

Decedent, previously to the year 1876, was a co-partner with one, Lo.ckwood, during the continuance of which relation the firm borrowed $2,000, giving therefor a joint and several note, signed by each partner in his individual name, and by the mother of Lockwood, as makers. This note the latter was subsequently obliged to pay, for which payment she was never reimbursed by the firm.

The will of decedent, which was admitted to probate November 4th, 1881, gave to testator’s wife, during her natural life, the use of his house and lot and the income of $3,000. It also gave her his furniture. These legacies were in lieu of dower and any other interest given her by law in his estate. Testator also gave the income of $4,000 to his daughter, Frances E. Brink, during her life.

<p>An inventory and account, filed by co-executors, though evidence of a, joint possession of securities and receipt of moneys by them, is not conclusive so as to preclude proof that the same were in fact held and received exclusively by one of their number.</p> <p>Glaucus v. Fogle, 88 N. Y., 434—explained.</p> <p>The law does not make an executor a guarantor of the acts of an associate, in matters pertaining to their common trust, e. g., in respect to making proper provision for the payment of legacies, but only requires of him reasonable diligence in .seeing to it that duties imposed have been discharged.</p> <p>Remington v. Walker, 99 N. Y., 626—distinguished.</p> <p>Upon the hearing of a special proceeding instituted to compel an accounting, by the administrators of S. and T., two deceased executors, in respect of the proceedings of the latter, it appeared that the principal decedent, who died in 1873, by his will, had bequeathed $11,000 to said executors, in trust for the benefit of a legatee for life; with remainder over; that T., who was an attorney in good standing, and extensively engaged in the business of lending money, had had the active management of the trust, and died insolvent, having misappropriated the bulk of the funds,—this being rendered possible by the circumstance that S., who was a farmer, had naturally been led to repose confidence in his co-executor and left the transaction of the business mainly to him. But the evidence failed to disclose any conduct, on the part of S., whereby T. was enabled to exercise greater rights, as to the custody of the property or receipt of money, than each of several representatives possesses by law. The account of the executors had been settled in 1880, when a decree was rendered determining that the funds of the trust had been invested by T., and were held by him, and in effect discharging S. from further liability.—</p> <p>Held, under all the circumstances, that the estate of S. was not liable for the devastavit of T., but that the total deficit should be charged to the estate of the latter.</p>

<p>Hearing of objection to account of administrator of decedent’s estate, in proceedings for judicial settlement.</p>

<p>Upon the judicial settlement of the account of the administrator of the estate of decedent, it appeared that the latter during her lifetime had taken from her daughter, K., a written agreement to pay annual interest upon §800, moneys received hy K. from decedent, and that this agreement had been surrendered to the daughter hy decedent before her death. K. contended that this was done with an intent, expressed at the time, to cancel the debt.—</p> <p>Held, that the issue thus raised was one which the court had no jurisdiction to try.</p> <p>A construction of the English statute of hotchpot, grounded upon the ancient custom of London, is inapplicable to our law of “ advancements.”</p> <p>Holt v. Frederick, 2 P. TUrns., 356—disregarded.</p> <p>An advancement is the giving by the intestate in his lifetime, by anticipation, of the whole or a part of what it is supposed the donee will be entitled to on the death of the party making it.</p> <p>The provisions of 2 R. S., 96, §§ 75-78, relating to the mode of distribution of the personal property of intestates, and including the subject of advancements made by them to their children during their lifetime, though, in terms, applying to male decedents, govern as to the disposition of the estates of unmarried women and widows. Therefore, where a child of a deceased widow has “been advanced by the deceased, by settlement or portion of.....personal estate, the value thereof ” must be “reckoned with that part of the surplus of the personal estate which shall remain to be distributed among the children,” as prescribed by id., § 76.</p>

Letters of administration on the estate of decedent were granted to Peter Shute on July 27th, 1883. On March 23rd, 1885, David Mead and another, as executors of the will of Israel Peck, deceased, by Close & Robertson, their attorneys, obtained a judgment against the administrator, after a trial upon the merits, in the Supreme court, for $2,207.50 damages, and $201.63 costs.

<p>The deceased left a last will and testament which was duly admitted to probate, and of which Mary P. De Lamater was the executrix. On a petition presented by her, alleging that one Edward P. McCaskie had in his possession certain personal property belonging to the estate of the decedent at the time of his death, and of the estimated value of upwards of $10,000, a citation was issued requiring said Mc-Caskie to appear before the Surrogate, to be examined concerning the same. On the return day of the citation the parties appeared, and McCaskie filed a duly verified answer to such petition, in which he stated “ that he is a counsellor at law, that he performed certain work for the said Mary P. De Lamater as executrix of said last will and testament, and claims an attorney’s lien on the papers and securities named in said petition for such services “ that he stated to Mary P. De Lamater the terms on which he would undertake the probate of said last will and testament; that the amount so stated was $5,000 and disbursements; that said Mary P. De Lamater made no objection to said terms, and allowed deponent to, and he actually did, conduct said probate ; that a demand was made for said amount on Mary P. De Lamater, and refused.” Whereupon he asked that said proceedings be dismissed.</p>