Volume 4 — Mills's Surrogate Reports

<p>SURROGATE—POWEB OVEB REALTY—DISBURSEMENTS OF -ADMINISTRATION— Expenses of a Will Contest.</p> <p>Where the will of a testatrix, partially disposing of real and personal property worth $63,000, merely appointed another woman executrix, with power of sale, gave and devised to her one-half of all the property and gave her no control over the real estate, the surrogate refused to consider any questions relative to the expenses incurred by the executrix in managing the real estate and refused to allow any of them.</p> <p>He allowed $495 for the testatrix’s funeral expenses and, to the executrix’s husband, $300 for protecting the property of the testatrix for six months and until a temporary administrator of her estate was appointed during a contest of her will.</p> <p>He rejected the claim of the husband of the executrix for his services in caring for the real estate of the testatrix and for services, as to the personalty, which the executrix should have performed herself.</p> <p>He reduced the claim of a consulting physician of the testatrix, son of the executrix, for seventeen days’ attendance from $350 to $150.</p> <p>He allowed, in view among other things of the contest of the will, $4,000 each to the attorney and to the counsel of the executrix, who had prevailed.</p> <p>. He charged the expenses of the will contest and those of administration against the whole personal estate although half of it would, under the failure of the will to dispose of it, pass to the next of kin.</p>

Application by Emma Thompson Smith and others to intervene in the proceeding for the .judicial settlement of the accounts of the administrators of Frank Thompson, deceased.

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

<p>Transfer Tax—Order Cannot be Modified After Expiration of Time to Appeal,</p> <p>Where no appeal has been taken in time from an order fixing the transfer tax the surrogate has no power to modify his order and allow the executor a partial refund of the tax for a debt of the estate subsequently discovered.</p>

<p>Proceeding for settlement of accounts of administrator with the will annexed, and trustee.</p>

<p>Decedent’s Estate—Claims Against to be Scrutinized—Endorsement of a Payment by the Maker of a Note After it Had Outlawed.</p> <p>A claim against an alleged debtor, withheld during his lifetime, should not be allowed against his estate unless supported by clear and convincing evidence.</p> <p>An unsigned statement of a payment, endorsed on the back of a promissory note after it had become outlawed, is not evidence, admissible upon the part of the payee, to keep the note alive in his favor unless the endorsement was in the handwriting of the maker or is shown to have been made with his privity.</p> <p>Final settlement of the accounts of Philip A. Salisbury, as executor.</p>

<p>Administration—Delay—Expenses of Useless Litigations—Interest on Trust Funds Mingled and Used.</p> <p>The) I conduct of an executor who delays the settlement and distribution of an uncomplicated estate for nine years, and keeps no accounts of it, is to be condemned severely.</p> <p>An executor who as such engages in unnecessary and fruitless litigation cannot be allowed the expense.</p> <p>The court charged an executor, who had mingled the estate funds with his own, but had apparently been honest, with only four per cent, interest, with annual rests, upon small balances in his hands.</p>

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

<p>The thirty-first and thirty-second subdivisions of the will of the testatrix read as follows:</p> <p>“ I bequeath Fifteen Hundred Dollars to the First Methodist Episcopal Church of Hamilton in the Village of Earlville, in trust, to be kept invested and the income thereof to be applied in repairing its Church edifice and parsonage.</p> <p>“I bequeath Six Hundred Dollars to the First Baptist Church of Sherburne, commonly known as the Earlville Baptist Church, in trust, to be kept invested and the income thereof to be applied in keeping the Church edifice and grounds in repair.”</p> <p>The questions presented for the consideration of the court are: First, as to the validity of these bequests, and second, if valid, shall they be paid directly to the societies named, or must trustees be appointed to receive them?</p>

<p>Claim of administratrix of widow of decedent for an allowance in lieu of exempt articles on judicial accounting.</p>

<p>Guardian of Infant’s Person and Estate—Infant’s Choice—Widow’s Bight as to Her Daughters.</p> <p>Where an infant is of sufficient intelligence and capacity to make a proper choice as to a guardian of her person her choice is important and the surrogate may and should examine her privately as to her wishes.</p> <p>The law deems a widow the proper guardian for her infant daughters and except for sufficient reasons she cannot he denied the right to have the custody of their persons and the care of their estates.</p>

<p>Proceeding by petition of an attorney to enforce his lien as such attorney upon the estate in the hands of an executor.</p>

<p>Petition for removal of executrix. Motion to strike out objectionable matter.</p>

<p>Administration—Revocation of Letters.</p> <p>Where a creditor, without notice to a non-resident brother of an intestate, procured letters of administration upon the estate, the surrogate, upon the brother’s subsequent petition for letters, revoked those of the creditor upon the ground that within Code Civ. Pro., § 2685, subd. 1, he had, since their issue to him, become disqualified by the application of a non-resident having a prior right; and the surrogate directed that letters issue to the brother.</p>

<p>Will—Jurisdiction for Probate—Distribution of Personalty How Governed—Disposition of Realty—Provision as to Contest.</p> <p>Jurisdiction to admit to probate the will of a foreign testator exists where he left real and personal property in the county of the surrogate.</p> <p>Distribution of personalty whose situs at the time of his death was the State of New York, whether made to heirs, distributees or legatees, is governed by the law of his domicile and this principle is confirmed by Code Civ. Pro., § 2694.</p> <p>Real property within this State passes under the will, after it has been admitted to probate here, and is controlled by the law of this State.</p> <p>A provision in a will, defeating legacies of it if it is contested, is valid, but is not favored and should be construed strictly.</p>

<p>Surrogate's Court—Its Power Over Its Decrees—Voluntary Payment of Void Transfer Tax Not Remitted.</p> <p>A surrogate has power, without limitation as to time, to vacate or modify a decree in a proper case provided the power is exercised in a like case and in the same manner as in a court of record.</p> <p>The two years limitation of Code Civ. Pro., § 1290, does not apply to his court nor is he precluded from acting hy expiration of the time to appeal.</p> <p>Where an uncle conveyed real property to his nephew, by a deed which the nephew withheld from record, and thereafter devised him a life estate in the same property and upon the transfer tax appraisal the nephew falsely testified that his uncle died seized of the property and the nephew thereafter paid the transfer tax upon Ms life estate, the surrogate refused, eight years after the entry of the order fixing the tax generally, to modify it by deducting the tax the nephew paid, basing his refusal not upon a lack of power, but upon the ground that the nephew paid the tax voluntarily and with full knowledge of the facts.</p> <p>The surrogate modified a certain provision of the order which he deemed illegal and void.</p>

<p>Administration—Allowance foe Unavoidable Decbease of Estate—* Distribution in Kind.</p> <p>Where the bulk of a large estate consisted of stocks and fifty days after the appointment of administrators a general decline began in the stock market and it did not recover during the following year and the administrators did not sell because of the prospective loss, but applied as soon as possible for a judicial settlement of their accounts, the surrogate held that they were not chargeable with the stocks at their inventory value and made them an allowance to cover the decrease of the estate as having occurred without their fault.</p> <p>The surrogate also held that the exercise by the administrators, within reasonable limits, of their discretion as to the time and manner of converting the estate into money, was not to be controlled by the expressed wishes or directions of one of the next of kin even to the extent of the share of the estate which she expected to receivve upon its distribution.</p> <p>To avoid as far as possible loss to all the next of kin and with the consent of most of them he ordered that a distribution in kind be made of the securities.</p>

<p>Administrator With the Will Annexed—Beneficiary as Such Administrator—Person Incompetent for “ Improvidence.”</p> <p>A person whose share in the residuum of an estate is directed by a will to be held in trust for him during his life is not entitled to a preference in administration of the estate with the will annexed as being a residuary legatee and this because he is only the beneficiary of a trust and such a beneficiary is not a “ legatee ” within the meaning of Code Civ. Pro., § 2643.</p> <p>A person should be refused administration for “ improvidence ” (Code Civ. Pro., § 2661), where he has not been able to accumulate any property or support his children and where by living beyond his means he has been compelled continually to borrow from others.</p>

<p>Transfer Tax—Exemption of Property Passing Under a Valid Contract Made by a Person Since Deceased and Adjudicated Valid After His Death.</p> <p>Property, passing to the natural daughter of an intestate, dying in 1900, under a judgment of the Supreme Court awarding her in 1901 specific performance of a contract her father made with her mother in 1862 by the terms of which upon surrender of the natural daughter to him his property remaining at his death should belong to her, is not subject to the transfer tax as the transfer was neither by will nor by the intestate laws, or by bargain and sale or gift made in contemplation of death or to take effect in use or enjoyment thereafter.</p>

<p>Parent and Child—When the Law Will Not Imply a Promise Against the Estate op a Father That He Agreed to Support His Infant Child.</p> <p>Where a father, who afterward remarried and established another home, surrenders, upon the death of the mother of an infant and within a week of its birth, the infant to its maternal grandparents to be cared for by them, and during the fourteen subsequent years of the father’s life nothing is ever said by or between the parties as to his paying or promising to pay for the infant’s care and support, the court will not imply such' a promise against his estate.</p>

<p>Conditional Devise—The Words “ Have Ant Child or Children ” Construed as Not Speaking as oe the Date oe the Will.</p> <p>A testatrix over seventy years old in 1901, when she made her will and died, bequeathed one-half of her estate to her adopted grandchild, Mary, and then provided that should her grandchild Florence (then aged thirteen) “ have any child or children ” the other half should be divided among it or them, but should go to Mary absolutely should Florence “ have no child or children.”</p> <p>Held, that the contention of Mary, that because Florence had no children when the testatrix died, Mary was presently entitled to the whole estate absolutely, was untenable.</p> <p>That Mary took one-half absolutely and the other half subject to its being divested by Florence having a child or children, in which case that half would go to it or them.</p>

<p>Legacy—When Specific—Disposition oe Damages, fob Injdbies to Deal Pbopebty Condemned, as Between the Owneb and Hbb Devisee.</p> <p>A bequest of eighty-two shares of stock followed by the words “whereof fifty (SO) shares, which are now pledged as collateral for a note, shall be released by executors (of the testatrix) from said pledge immediately upon my death if they shall not have been released before my death ” constitutes the legacy specific, as the testatrix evidently had in mind specific shares some of which were pledged; and this construction is confirmed where she in another part of her will directs her executors to pay the note so that the collateral may be given to the legatee.</p> <p>Semble, that damages, awarded by a final order entered under the Condemnation Law to a testatrix before her death for injuries done by an elevated railroad to her real property abutting on a street, but paid after her death, belong to her residuary estate and not to her devisee of the property.</p>

Motion requiring trustees to pay over to a legatee her legacy under a will and also accrued income of a trust created for her benefit by the same will.

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

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

<p>Administration—When a Decree Directs Distribution—Finauty and . Scope oe a Decree Under Code Civ. Pro., § 2743.</p> <p>A decree, passing the accounts of executors ordered by a will to invest and hold the assets of an estate, directs distribution where it requires them to pay over to themselves as trustees assets remaining in their hands as executors.</p> <p>In the absence of irregularity or fraud, such a decree is, under Code Civ. Pro., § 2743 “conclusive as a judgment upon each party to the special proceeding who was duly cited.”</p> <p>An adult, who was duly cited to the executors’ accounting, cannot, upon their subsequent accounting as trustees, question the propriety of sales of estate securities and investments of estate funds shown by the accounts, filed by the executors, as the decree entered on their accounting as executors is a bar.</p>

Application by the widow of a decedent asking that the appraisers be directed to. set aside for her an equivalent in cash for all specific property exempt under the provisions of section 2713 of the Code of Oivil Procedure, where such specific property does not exist and was not possessed by the decedent at the time of his death. Ho appearances.

<p>Subbogate’s Coubt—Contempt in Refusing to Answeb Questions—Issue of Ownebship Between an Üxecutob Claiming as an Individual AND Bus COEXEGUTOBS-JOINT CUSTODY OF ASSETS.</p> <p>Where, upon the application of an executor and testamentary trustee to account and resign, it appears that the testator had by a contract granted him, for royalties, exclusive unexpired rights to manufacture and sell a proprietary medicine compounded according to a secret formula of the testator, and the coexecutors and trustees, declaring themselves ignorant of the formula and entitled to use it in continuing the manufacture after expiration of the rights of the accounting executor, demand that he disclose the formula to them with any changes made in it by him and also assign to them all copyrights and registrations of marks and labels, and he refuses to do so and. denies their rights, he may properly refuse to answer, before a referee appointed only to hear and determine the questions arising upon the accounting, questions as to what the formula is, the changes he made in preparing the medicine and the formula he now actually uses, as to require him to answer these questions would be presently to grant the coexecutors the contested relief.</p> <p>It is not a contempt for a witness to refuse to make a promise as to what he will do in the future and in case of the happening of some contingency. The court further held that neither Code Civ. Pro., § 2602, as to joint custody or deposit of assets nor Code Civ. Pro., § 2472, relative to the general power to control executors authorized it to direct before the accounting had been concluded—on the thedry that there should be joint custody of assets—the accounting executor to communicate to the other executors the knowledge they sought and execute the assignments they wished.</p>

<p>Tax—When Executors of a Deceased Owner of Bealty and Personalty, in the City of New York, are Protected in Paying Taxes Thereon as Having Become Debts of the Deceased—Transfer Tax.</p> <p>Where a resident of the city and county of New York dies after completion, under the amended charter of the city (L. 1901, ch. 466), of the annual record of the assessed valuation of real and personal estate and after the time when application could be made to revise, cancel or correct an assessment, but before the board of taxes and assessments has delivered to the board of aldermen the assessment-rolls and before the amounts of the taxes have been extended thereon, the taxes imposed upon his realty and personalty are debts of his estate, and where his executors pay them in compliance with Code Civ. Pro., § 2719, subd. 2, they must be allowed a deduction for them upon a transfer tax appraisal of the estate.</p>

<p>Judicial settlement by the executors.</p>

<p>Proceedings upon an accounting by an administrator. Exceptions to the report of the referee.</p>

<p>Ajdministbation—Attorney’s Fees.</p> <p>An administratrix, of the next of kin hut not entitled to the whole estate, may be allowed as an expense of administration a reasonable sum for the services of an attorney rendered in discovering an asset of the estate which had existed for forty-three years without being known to the parties entitled and for subsequently having her appointed administratrix, but she can be allowed nothing as administratrix for the expenses of a litigation had by her personally with the attorney which resulted from her having, before her appointment as administratrix and when she supposed herself entitled to. the whole estate, entered into a personal improvident agreement with him as to his fees in case he collected the asset.</p>

<p>Subrogate—Jurisdiction of an Administrator's Payment Disputed on a Final Judicial Settlement.</p> <p>Upon the final judicial settlement of an administrator the surrogate has jurisdiction and must inquire into allegations of payments made by the administrator and hence all the material facts should be before the surrogate.</p> <p>Therefore where the administrator testifies that he has paid one of the next of kin a certain sum out of the estate and it appears that the administrator, proposes to set this payment off against the share of the said next of kin, the latter’s denial of the debt does not oust the surrogate of jurisdiction.</p> <p>The surrogate must determine whether or not the transaction was a payment and the administrator is entitled to present his evidence.</p>

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

<p>Bequest—Distribution Under a Bequest to “Lawful Heirs, to be Divided Equally Among Them.”</p> <p>Where a testator, leaving Mm surviving sisters and children of two deceased sisters, bequeaths the balance of his estate to his “ lawful heirs, to be divided equally among them,” the distribution, must be per capita and not per stirpes, as the “ lawful heirs ” are constituted by the will a single class whose members are to take equally.</p>

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

<p>Administration—Monet Allowance Refused a Surviving Husband Where Articles of His Wife’s Estate Exempt From Inventory Were Hot in Existence When She Died.</p> <p>Where the inventory and appraisal returned and filed by the surviving husband and executor of a testatrix show that none of the articles enumerated in Code Civ. Pro., § 2713, subd. 3, were in existence at the time of her death the husband cannot be allowed in money the value of said articles.</p>

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

<p>Annuity—Amount Necessary to Produce it—Oral Aoreement as to the Disposition of an Estate—Gift Inter Vivos—Code Civ. Pro., § 829.</p> <p>Under the will of a testator made in 1879 when the legal rate of interest was seven per cent, he bequeathed to his executors in trust “ a sufficient sum of money which when invested at the rate of six per cent, per annum will produce the annuities hereinafter given.” It became necessary in 1904 to determine what amount should be set aside by the executors to meet the annuities, no definite sum having been set aside for that purpose.</p> <p>Meld, that it was the sum which at six per cent, would produce them and that it was not the larger sum which at the lower rate of interest procurable in 1904 for trust funds would produce them.</p> <p>The children of the testator orally agreed with his widow, since deceased, to give her their shares in the estate of a son who died unmarried and intestate and left an estate which consisted of realty, personalty, an interest in the undivided estate of the testator and a proportion of the surplus income of the above trust.</p> <p>Held, that the agreement did not convey to the mother the realty of the son and that it passed to his heirs.</p> <p>That the personalty probably did not pass under the agreement but did pass under a gift inter vivos, consisting in an actual division of the personalty made by and between the brothers and sisters and the subsequent delivery by each of his or her share to the mother.</p> <p>That Code Civ. Pro., § 829 did not forbid the brothers and sisters, as interested in the event, from testifying, on the final accounting of the executor of the mother as administratrix of the son, as to the action of a deceased brother in joining in the gift to the mother.</p> <p>That the undivided share in the estate of the testator did not pass to the mother, but went to the heirs and next of kin 'of the son.</p> <p>That the surplus income, paid to the mother in each year of her life, did pass to her and need not he accounted for by her representative.</p> <p>See note on Gifts Inter Vivos, Vol. II, p. 247.</p>

<p>Proceedings upon the accounting of an executrix. Objections to account.</p>

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

<p>Administration—Payment and Distribution Under Code Grv. Pro., § 2743—Claims, Adverse to Legal Titles and Besting on Equitable Grounds, Not Considered.</p> <p>The true construction of Code Civ. Pro., § 2743, relative to a decree for payment and distribution, is that, in directing “ payment and distribution” creditors, legatees, next of kin, husband or wife of a decedent or their assigns as well as in determining to whom a debt, claim or distributive share “ is payable, the sum to be paid by reason thereof and all other questions concerning the same,” the court will not recognize claimants other than those having legal titles and will remit to other tribunals parties claiming adversely to such titles on grounds of equity—the court itself not having any power to nullify or set aside the deeds of the parties for fraud or on other equitable considerations.</p>

<p>Holographic Will—Execution.</p> <p>A holographic will, lacking an attestation clause, was admitted to probate on proof that the testator stated to the first witness that he had written out a paper so that his matters could be attended to in case of any thing happening to him, that he had written the entire paper, and that he requested the witness to sign the same as a witness—and further—that he declared to the other witness, not present with the first witness, that he had made a will, that he had writt'en out the same and he requested this witness to sign as a subscribing witness.</p> <p>See note on Holographic Wills, Yol. I, p. 138.</p>

<p>Savings Bank Deposit “in Trust”—When Irrevocable—Covers Money Deposited After the Death of tbe Beneficiary.</p> <p>A deposit made by Mary Ann Dugard in a savings bank in an account opened in the name of “Mary Ann Dugard, in trust for Lillie M. Lahey,” taken in connection with a statement of Mary Ann Dugard to a relative that “ The children had quite a sung little sum in the bank. It is in Lillie’s name in trust, but the children will eventually get it,” vests title to the fund in Lillie M. Lahey, and where, after her death and before the death of Mary Ann Dugard, she deposits further money in the account that money belongs to the estate of Lillie M. Lahey and not to the estate of Mary Ann Dugard.</p> <p>Reversed, 42 Misc. 512.</p>

<p>Proceedings upon assessing ‘and fixing the transfer tax.</p>

<p>Benefit Society—Effect of a Designation of the Beneficiary of a Death Benefit as “ Payable to Estate ”—Designation by Will Ineffectual.</p> <p>Where the constitution of a benefit order, incorporated under article 7 of the Insurance Law among other things to establish a fund for sick and death benefits, lawfully establishes the class to whom the death benefit may be made payable, consisting of members of the family, relatives by blood or dependents, and requires the certificate to designate as beneficiary a member of the class, a designation, in the certificate, of the beneficiary of the death benefit reading “ Payable to Estate ” is not a legal designation, and the death benefit does not become a part of the estate of the member, when deceased, so as to become liable for his debts or his bequests, but passes to the person who would take his personalty under the Statute of Distributions.</p> <p>A disposition of the death benefit made by the member by his will does not constitute a legal designation of a beneficiary.</p>

<p>Transfer Tax—A Legacy in Lieu of Dower is a Taxable Transfer.</p> <p>A dower right is not subject to the transfer tax because it is not a transfer by will or intestacy, but a legacy in lieu of dower, when accepted, is a taxable transfer because the widow elects to accept the provision of the will and takes under it.</p>

<p>On the 6th day of July, 1886, letters testamentary on the last will and testament of Horace K. Chittenden, deceased, were granted and issued to William E. Johnson and Addison O. Hull, who thereafter acted as executors and trustees under said will.</p> <p>On July 30, 1903, a, petition was filed in the surrogate’s office of Greene county, by Hattie A. Sdirect, an interested party under said will, praying that the accounts of said executors and trustees be judicially settled, and that said executors show cause why the letters testamentary issued and granted to them should not be revoked, and a new executor or trustee be appointed by the court to complete the execution of the trust created by said last will and testament.</p> <p>On September 22, 1903, William F. Johnson, one of the executors and trustees, filed an account, and a petition praying for the judicial settlement of his said account. All parties interested in said proceeding were duly cited to appear on said accounting, together with the coexecutor, Addison 0. Hull, who in his own behalf filed an account of his proceeding as one of the executors and trustees under said will.</p> <p>From the account, filed in this proceeding by William F. Johnson, it appears that the total amount of assets coming into the hands of the executors and trustees under said will was $5,087.89, which amount has all been paid out or expended, excepting the sum of $775, which amount is in the hands of Addison 0. Hull, the coexecutor and trustee under said will; that said Hull always had the supervision and active management of the affairs of the estate of said deceased and kept the hook of accounts showing the assets of the estate and the expenditure of moneys which came into the hands of said executors and trustees belonging to said estate.</p> <p>Hattie A. Schreet, a beneficiary named in said will, objected to the account) so filed, so far as it sought to relieve the executor, Johnson, from liability to account for and pay over said balance, and said Hattie A. Schreet asked that the account of said Johnson be surcharged with said sum of $775, or that the said Johnson and Hull be held to be jointly and severally liable for said sum of $775.</p>

<p>Statute of Distributions — Relatives of an Illegitimate, Whose Mother is Dead, Take Through Her in Preference to the Next of Kin of the Father.</p> <p>Where an illegitimate dies intestate after his mother and leaves him surviving no father, widow, descendants or brother and leaves an illegitimate sister of the full blood, she takes, under Code Civ. Pro., § 2732, subd. 9, in right of her mother, the whole estate as well as the administration of it, to the exclusion of the next of kin of the father, and the fact that he had in Germany adopted the illegitimate son at an early age can make no difference in the distribution, assuming the adoption to have been legally .made.</p>

<p>Administration—The Executor of a Sole Legatee Has the First Eight to Letters With the Will Annexed.</p> <p>Code Civ. Pro., § 2643, relative to the issue of letters of administration with the will annexed in a case where there is no executor qualified to act, is based upon the principle that he who has the interest in the estate most needing protection from waste, extravagance and incompetency shall have the first right to administer.</p> <p>The provision, in the third subdivision of said section substantially -that where the residuary, principal or specified legatee, or the guardian of a minor entitled to letters, either do not exist or will not accept administration, letters shall issue “to one or more of the next of kin” must be limited to such of the next of kin as are entitled to share in the unbequeathed assets of the estate and who are therefore persons “ interested ” therein and a person having no such right is to be excluded.</p> <p>A sole legatee of an estate is entitled to take all that could be taken "by a residuary, a principal, or a specified legatee and his executor is entitled under Code Civ. Pro., § 2660, subd. 9, when read in connection with said section 2643 to letters of administration with the will annexed in preference to any other person.</p>

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

<p>Probate of a Will—Burden of Proof Where the Signature Thereto is Claimed to be a Forgery—Effect of the Body of the Will Being in the Decedent’s Handwriting—Coincidence of the Disputed Signature With a Genuine One—Probative Force of the Opinions of Experts and of the Narrative of a Conversation With the Decedent.</p> <p>Where the probate of a will is resisted on the ground that the alleged signature of the decedent thereto is a forgery, the contestants are not obliged to prove forgery to the exclusion of every other reasonable hypothesis before the surrogate can hold the forgery to have been established. The burden of proving the genuineness of the signature rests upon the proponent throughout the proceeding and if the surrogate is not satisfied that the signature is genuine, he should refuse to admit the will to probate.</p> <p>The circumstances that the body of the will is in the decedent’s handwriting affords no presumption that he signed the will.</p> <p>The fact that the disputed signature coincides with a concededly genuine signature at the beginning of the alleged will, when the two signatures are superimposed against the light, is strong proof that the disputed signature is a forgery made by tracing the genuine signature.</p> <p>The opinion of an expert witness sworn as to the genuineness of the disputed signature is valuable only in so far as it points out satisfactory reasons for the ultimate conclusion of the witness. If the witness gives no reason for his conclusion, his opinion is valueless and the court will not consider it. If he gives reasons for Ms opinion, it becomes the duty of the court to analyze such reasons and determine the correctness or incorrectness of the opinion, and not simply consider the correctness of the witness alone.</p> <p>The narrative of a witness of his conversation with a person since deceased is the weakest of all evidence.</p> <p>Reversed, 107 App. Div. 61.</p>

<p>Proceedings upon the final judicial settlement of the accounts •of trustees.</p>

<p>Executor and Administrator—When an Executor is Liable fob a Devastavit Committed by His Co-executor—Interest—Costs.</p> <p>In 1889, letters testamentary under a will were executed to Theodore M. Dougherty, Peter Forrester and Theodore M. Tuttle. The three executors deposited the securities of the estate in a safe deposit box hired in their joint names. The three executors-inspected the contents of the box, which could not be opened except in the presence of all of them, every six months, but the income of the securities was collected and disbursed by Forrester alone.</p> <p>In 1897, Forrester, with the approval of his co-executors, took the securities from the safe deposit box for the purpose of selling them and investing the proceeds in bond and mortgage. He sold the securities and invested a portion of the proceeds in certain mortgages and deposited, or claimed to have deposited, the balance in a bank account which he had opened as executor.</p> <p>Dougherty died shortly thereafter, and Forrester and Tuttle filed a joint account of their proceedings in which they jointly charged themselves with the full amount of the estate. The proceeding resulted in a decree charging Forrester and Tuttle jointly with the balance of the estate shown and admitted to be in their hands. After this accounting, Forrester stated to Tuttle that he desired to collect the mortgages in which the funds of the estate had been invested in order to invest the money in “better property.” Without making any further inquiry, Tuttle, from time to time, joined Forrester in satisfying or assigning the mortgages and endorsed the checks for the proceeds or otherwise permitted Forrester to obtain possession of them. It was subsequently discovered that Forrester had embezzled the entire assets of the estate.</p> <p>Reid, upon an accounting by Tuttle, that he had had possession jointly with Forrester of the assets of the estate, and that he was liable for the devastavit committed by Forrester, under the rule that when one executor or trustee receives the funds of the estate and either delivers them over to his associates or does any act by which the funds come under the sole possession and control of the latter, and but for which he would not have received them, the executor or trustee is liable for the loss sustained in consequence of such action.</p> <p>That it was proper for Tuttle to permit Forrester to collect and pay out income.</p> <p>That, as Tuttle had not been a party to Forrester’s misconduct, he should be charged with interest only from the date of the discovery of Forrester’s delinquency and then only at the rate of two per cent.</p> <p>That he should be allowed commissions and the cost of preparing the account, and that all costs should be payable from the estate.</p>

<p>Trust, Created in Personal Property, oe a Remainder Less Than a Pee—When Void.</p> <p>A will attempted to create in a fund, (1), an estate in the residuary legatees as tenants in common for the life of one Cornelius Bogardus, who was not one of such residuary legatees, (2), an estate in a portion of the fund in the executor as trustee for Alida Bogardus, one of the daughters of Cornelius Bogardus, for her life, and an estate in another portion of the fund in the executor as trustee for Claribel B.ogardus, the other daughter of Cornelius Bogardus, for her life, and (3), an estate in the residuary legatees as tenants in common for the remainders.</p> <p>Held, that the bequests to the executors as trustee for Alida Bogardus and Claribel Bogardus were void under section 34 of the Real Property Law, which is applicable to personal property.</p>

<p>Sale of Decedent’s Real Estate fob the Payment of Debts—Appointment of Refebee to Take Testimony—Powers of Such Referee.</p> <p>In a proceeding for the sale of a decedent’s real estate for the payment of his debts, the surrogate has power, under section 2546 of the Code of Civil Procedure, to appoint a referee to take and report the evidence upon the facts with his opinion thereon.</p> <p>Such a referee has the same power to-pass upon questions of evidence as a referee appointed by the Supreme Court to try an issue of fact in an action.</p>

<p>Proceedings upon the' judicial settlement of the accounts of a trustee.</p>

<p>Will Providing for the Payment of Legacies and the Division of thet Estate After the Death or Eemarriage of the Testator’s Widow, —When Such Legacies and Kemaindebs Vest Ufon the Death of-the Testator—Nature of the Transfer Tax—An Interest Vesting. Prior to the Enactment of the Transfer Tax Acts is Not Taxable.</p> <p>A testator devised and bequeathed his entire estate to his executrix in trust for the support of his widow until her death or remarriage. He provided that after the death or remarriage of his widow, certain legacies should be paid to designated persons and that in the event. of the death of any of the legatees, the legacies “to go to the heirs of the person so dying,” or “to go to his heirs and assigns; ” that in ease the value of his estate at the time of his death should be less than $40,000, said legacies should be reduced proportionately; that after the death or remarriage of his wife and the payment of the legacies, one-third of the estate “ shall go to and belong to ” Ms niece, “ her heirs and assigns forever; ” that another third should go to his wife’s nephew “his heirs and assigns forever;” that the remaining one-third should be divided in five parts and be given or held in trust for certain designated persons. In disposing of such five parts, he used the expressions “ shall belong to ” and “ shall go and belong to.”</p> <p>In a codicil to the will, he used, with reference to the legacies passing under the will and codicil, the words, “ shall belong and be payable to,” “shall belong to and be paid to,” and other similar phrases.</p> <p>The will was made in 1868 and the codicil in 1871. The testator died in 1884, and his widow, who never remarried, in 1902.</p> <p>Held, that the legacies bequeathed by the will vested at the testator’s death and not at the death of his widow.</p> <p>That the words, “ go to and belong to,” as used in the will should not be construed to mean “ pay and divide ” and thus permit the application of the rule that where the only words of gift are found in the direction to divide and pay at a future time the gift is future, not immediate, contingent and not vested.</p> <p>That the creation of a trust in the executrix, if one was created, did not prevent the vesting of an estate in the legatees and remainder-men.</p> <p>That the transfer tax is upon the transfer of the property itself; that- “ transfer,” means the passing of property, or of any interests therein, in possession or enjoyment, present or future, without regard to whether the actual possession and enjoyment follow immediately or come at some future time.</p> <p>That where a vested though defeasible interest in remainder passes under a will to the remainderman on the testator’s death, though the possession does not pass until the death of the life tenant, the transfer or succession is referred to the time of the death of the testator, and if that occurred prior to the enactment of the act taxing transfers of property, the remainder is not taxable.</p>

<p>Chauncey Kilmer died on the 11th day of November, 1901, leaving a will dated June 14, 1900, which was thereafter duly admitted to probate by the surrogate of Saratoga county and which provided among other things as follows:</p> <p>“ Ninth. I give and bequeath to my niece, Carrie Shippey, daughter of Charles and Julia Kilmer; also to Jane Clute, wife of Jerome Clute and daughter of Harry and Lucy Ann Kilmer; also to Cordelia Kilmer, daughter of Harvey and Adaline Kilmer, each the sum of three thousand dollars, to be paid to each within eighteen months after my decease.</p> <p>“ Fourteenth. Whatever in the way of money or property of any kind by said legatees or either of them may receive or may have received from me in my life time, is hereby declared to be an absolute gift and in no sense an advancement and shall in no way be considered as reducing or affecting any of the legacies herein given.”</p> <p>The testator left him surviving a daughter, Ann Augusta Lake, and two grandchildren, Clarence B. Kilmer and Mary K. Butler, children of his deceased son Clarence B. Kilmer, to whom at different times during his life time he had given considerable amounts of money and property, without taking any acknowledgment or security therefor.</p> <p>'Some years prior to the date of his will the testator loaned to his niece, Carrie A. Shippey, the person named in his will, at various times sums of money amounting to $2,000, for which he took her two promissory notes of $1,000 each. These notes were subsequently taken up by a note dated January 11, 1900, payable six months after date, with interest, for $2,040, which was the balance due upon them at that date. When the note dated January 11, 1900, became due, Mrs. Shippey paid the testator $104, which reduced the indebtedness to $2,000, and gave him a new note dated July 11, 1900, for the latter amount. This last-mentioned note was renewed from time to time, until July 11, 1901, when Mrs. Shippey gave Mr. Kilmer a note of which the following is a copy:</p> <p>“ $2,000.00- July 11, 1901.</p> <p>“Six mouths after date I promise to pay to the order of Ohauneey Kilmer, two thousand dollars. For value received. With interest.</p> <p>“ Cabbie A. Shippey.”</p> <p>This note the testator held at the time of his death and it passed thereafter into the possession of his executors. It is now claimed by Mrs. Shippey that, from the provisions of the will above quoted it appears to have been the intention of the testator to relinquish his claim against her upon the note, and also to provide for the payment to her of a legacy of $3,000; that the moneys loaned to her and represented by the note which the testator held at the time of his death were declared by his will to have been a gift to her, and that the executors cannot maintain any claim against her upon the note.</p> <p>The executors, on the other hand, claim that no such intention can be found in the language employed by the testator, and that the provisions in the fourteenth clause of the will were not intended by him to apply to the moneys which had been loaned by him to Mrs. Shippey; that the note held by him was a valid claim against the maker, and constituted a part of the assets of the testator’s estate, and that it was the duty of the executors to collect the same, and they had a right to offset the amount due upon it against the legacy which they were directed by the terms of the will to pay to Mrs. Shippey.</p>

<p>Services—Presumed to be Gratuitous Where the Mutually Acknowledged Relation oe Parent and Child Existed Between the Parties—Rebuttal of the Presumption by Declarations of the Party, Since Deceased, Who Received the Services—When a Devise to a Creditor is Not to be Deemed a Satisfaction of His Debt—A Married Woman May Recover in Her Own Right for Her Services Where the Husband Foregoes His Right to Them—Estoppel in Such Case of the Husband.</p> <p>The law presumes that services, rendered in the family relation to a testatrix by a person who from infancy had stood to her in the mutually acknowledged relation of child and parent, were rendered gratuitously.</p> <p>The presumption may, however, be rebutted andi the person who rendered the services may recover of the estate of the testatrix their reasonable value where the claimant proves that the testatrix intended to pay her for them and that she expected to be paid for them.</p> <p>Declarations of the testatrix of her intention to pay the claimant for the services are sufficient, in themselves, to overcome the presumption that the services were gratuitous where the declarations are numerous, clearly established and made in part in presence of the claimant.</p> <p>A devise, made by the testatrix, a woman having no husband or relatives and in a will by which she directed all her debts to be paid, to the claimant will not be construed as made as a payment for the services, but rather as a gift to a person who was the natural object of the bounty of the testatrix.</p> <p>Prior to the amendment, made in 1902, to the Domestic Relations Law, giving a married woman a cause of action in her own and separate right for all wages for which she might render work, a husband could, where no rights of creditors were involved, forego his legal right to her earnings by expressly agreeing with her that they should belong to her and not to him, and when such an agreement is established she alone is entitled to recover for the services and he is estopped from making any claim to them.</p>

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

<p>Proceedings upon the account of trustees.</p>

<p>Testamentary Capacity—Senile Dementia—Importance of the Testimony of Lay Witnesses.</p> <p>Where a will is contested upon the ground that the testatrix when she made it was suffering from senile dementia—a progressive disease evidenced by a complete breaking down of the brain tissues—the evidence of persons surrounding her, although not experts, is of great importance as there must in such ease be many visible symptoms of the disease. ■ "*</p> <p>Where their evidence, that the testatrix was competent to and did attend to her affairs, was seriously confuted only by the evidence of the attending phsician as to the existence of senile dementia, the court admitted the will to probate.</p>

<p>Proceedings upon the final judicial settlement of the account -of the public administrator of Kings county.</p>

<p>Statute of Distributions—Construction of Code C. P., § 2732, sued. 12, as amd. in 1898—Eight of Grand-Nephews to Take by Eepbesentation.</p> <p>Under the amendment made in 1898 to Code Civ. Pro., § 2732, subd. 12, changing its provision that no representation shall be admitted among collaterals after brothers’ and sisters’ children so as to make the subdivision read: “ Eepresentation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate,” where an intestate is suriwed by nephews and nieces and by grandnephews who are the children of a deceased nephew and niece, all of such persons having sprung from the intestate’s deceased brother, the grandnephews are entitled to receive their parents’ share of the personal estate.</p>

<p>Proceedings on an accounting.</p>

<p>Statute of Distributions—Construction of Code C. P., § 2732, subd. 12, as amd. in 1898—Right of a Grandnephew and Grandniece to Take by Representation.</p> <p>An intestate died leaving two nephews, five nieces, one grandniece, the only surviving representative of a deceased brother of the intestate, and one grandnephew, the only surviving representative of a deceased sister.</p> <p>Reid, that under Code Civ. Pro., § 2732, subd. 12, as amd. in 1898, the grandnephew and grandniece were entitled to take by representation their parents’ share.</p>

' On the 8th day of January, 1902, Henry Hill presented to the Surrogate’s Court of Saratoga county his petition praying for his appointment as temporary administrator of the goods, etc., of William N. Hill, deceased.

<p>Transfer Tax—On Life and Remainder Interests Left in Trust Payable Out of Capital—Federal Tax Similarly Payable—Interest Chargeable Against a Trustee.</p> <p>Under the amendments to section 230 of the Tax Law made in 1899 and 1900 the transfer taxes on life interests and remainder interests, in a fund left in trust, are equally payable forthwith out of the capital and this although the remainders are contingent.</p> <p>The Federal taxes under the War Revenue Law of 1898 are similarly payable out of capital.</p> <p>Where securities have not been actually set apart to constitute a particular trust, but the trustee pays the life beneficiary hereof interest on the amount at the same rate as that actually earned by the whole assets of the testator in the hands of the trustee, he cannot be charged with any higher rate of interest.</p>

<p>■ Proceedings upon the judicial settlement of the accounts of a trustee. Objections to accounts.</p>

<p>Proceedings upon final judicial settlement of the accounts of a trustee.</p>

<p>Will—Undue Influence—Opportunity and Motive to Exert it—How Ear it Must Control—Feebleness of Mind and Body as Affecting Testamentary Capacity.</p> <p>Opportunity tcv exercise undue influence upon a testator, with motive to exert it, is insufficient co establish its exercise as it must further appear that the undue influence was sufficient to overcome his will.</p> <p>To avoid a will on this ground, the conclusion must be inevitable that the testator’s mentality was reduced to helplessness and that he succumbed to an influence making his will another’s.</p> <p>Feebleness of mind and body raises no presumption of a lack of testamentary capacity.</p>

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

<p>Executor—Debt due His Testator at His Death—Punishment fob Disobediance of a Decree.</p> <p>It is the duty of an executor, indebted to his testator when he died, if solvent at any time before his final accounting, to pay, as an individual, the debt to himself as executor.</p> <p>Where a decree has charged him with the debt his failure to comply with the decree is punishable with fine and imprisonment and these the surrogate may inflict.</p>

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

<p>Statute of Distributions, Code Civil Procedure, § 2732—Effect of Subdivision 12, on Subdivision 3.</p> <p>The provisions of subdivision 3 of the Code of Civil Procedure, § 2732—that, failing descendants of an intestate, parent, brother or sister, nephew or 'niece, the surviving widow is entitled to the whole surplus—have not been affected or impaired by the provisions of subdivision 12 of the section, declaring that representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate.</p>

<p>-A Trust in Favob of a Child Hot Living at the Testator’s Death is Void—When a' Trust, Void as to One of Several Beneficiaries, Will be Enforced in Respect to The Others—When the Property Bequeathed Upon a Void Trust Does Hot Pass Under the Residuary Clause.</p> <p>A will directed the payment of the income of a trust fund to one of the testatrix’s sons during his life and provided that upon his death the principal thereof should be divided into as many shares as he might leave children him surviving. It created trusts in -each of such shares for the benefit of each of the children so surviving during their respective lives. The life beneficiary died after the testatrix, leaving him surviving two children, one of whom was born during the lifetime of the testatrix and one of whom was born after her death.</p> <p>Held, that the trust for the life of the child born after the death of the testatrix was void because it would effect a suspension of the power of alienation for a life not in existence at the time of the death of the testatrix;</p> <p>That, as it was apparent from an inspection of the will, that the testatrix did not intend to make an equal division of her estate among the beneficiaries, the invalidity of the trust did not disturb the general scheme of distribution to such an extent as to require that the whole or any part of the legacies to children or other grandchildren of the testatrix should fall;</p> <p>That, as the testatrix, when describing the residuary estate in the residuary clause of the will, expressly excluded the trust fund, the invalid trust fund would not pass under the residuary clause, but that the testatrix died intestate in respect thereto.</p>

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

<p>Will—A Provision Authorizing Monet to be Left in the Decedent’s Firm at a Specified Interest Construed to Mean the Legal Interest at the Time it Takes Effect.</p> <p>A will executed at a time when the legal rate of interest was seven per cent per annum containing a provision that the testator’s interest in a partnership business might be allowed to remain therein if interest was paid thereon at the rate of seven per cent per annum, should be construed as simply indicative of the testator’s purpose to secure the maximum rate of interest at the time of the inception of the loan and not of an intention by the testator to make the payment of interest at seven per cent a condition of the acceptance or consummation of the loan.</p>

<p>Trust—The Costs of Suits by the Beneficiary Against the Trustees M'ay Not be Taken From the Trust Fund.</p> <p>Where a will directs the testator’s executors to retain one-fourth of the testator’s residuary estate in trust and to pay the net income therefrom to the testator’s son as long as the latter should live, and such income is not sufficient for the son’s support, the fact that, as a result of unsuccessful litigation, conducted by the son, the executors have obtained two judgments for costs against him, does not entitle the executors, upon their accounting, to a decree directing them, as executors, to retain, or directing them, as trustees, to pay any sums for the principal or income of the trust fund on account of the judgments for costs.</p>

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

<p>Will Simply Appointing an Executor—It is Entitled to Probate—A Public Administrator of Another State May Oppose the Probate.</p> <p>A will which makes no disposition of the teestator’s estate, but simply appoints an executor thereof, is entitled to probate.</p> <p>A public administrator, appointed in Fresno county, California, administrator of the assets of the deceased located in that county, is entitled to oppose the probate of such a will.</p>

<p>Foreign Trust Company Not Entitled to Letters Testamentary— Power oe Foreign Corporations to do Business in This State, Discussed—Unauthorized Investments as Grounds for Revocation oe Letters Testamentary.</p> <p>The right to dispose of property by will, or to name executors, is not a vested right but is regulated and controlled by statute. An executor is an officer of the court subject to its control and is without right to act until letters granted.</p> <p>The provisions of the Code of Civil Procedure, as to the qualifications of executors, apply wholly to natural persons. A foreign corporation, though a person under section 5 of the Statutory Construction Law, is not a “ citizen ” within the meaning of the United States Constitution providing that citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several states. Hence such foreign corporation is within the meaning of section 2612 of the Code of Civil Procedure which prohibits the granting of letters testamentary to “An alien not an inhabitant of this State.”</p> <p>The Banking Law, article IV, which authorizes trust companies to accept appointments as executors, administrators, etc., applies only to domestic corporations.</p> <p>A foreign corporation must rest its right to do business in this State upon permission; it is not entitled to do business merely because the same is not prohibited. A prohibition to do business may arise by implication; and as it is the policy of our law not to allow trust funds to be taken beyond the jurisdiction there is an implied prohibition against a foreign corporation acting as executor.</p> <p>The mere fact that the court may require a bond does not imply that a foreign corporation is entitled to letters testamentary on giving such bond.</p> <p>The fact that beneficiaries under a will did not oppose the appointment of a foreign corporation as executor is no answer to an application to revoke such letters, for the defect in the appointment is jurisdictional and consent cannot give such jurisdiction.</p> <p>Where a foreign corporation, acting as executor, invests the estate in securities not authorized by the laws of this State, its letters testamentary should be revoked.</p>

<p>Offsetting Debts Against Distributive Share—Intention to Make a Gift Not Presumed.</p> <p>An administrator, in settling an estate, may offset against any share due the next of kin a debt due from such person contracted during the decedent’s lifetime.</p> <p>It will not be presumed that advancements, made by the decedent in his lifetime, were intended as gifts in the absence of clear proof that they were intended as such.</p>

<p>Certain of the heirs-at-law and next of kin of the above-named decedent have propounded for probate, as her last will and testament, an instrument bearing date the 19th day of March, 1885, to which objections have been filed on the ground, among others, that the sole legatee and devisee and executrix named in the instrument predeceased the testatrix, so that the instrument propounded neither passes any property whatever, either real or personal, nor does it appoint an executor, and, therefore, is not entitled to probate. The counsel have united in requesting the surrogate to dispose of this objection before entering upon the consideration of other objections which will require the taking of testimony.</p>

<p>Appeal by the executor from a decree entered upon the report of the official appraiser.</p>

<p>Power of Surrogate on an Accounting—When Improvements on Beal Estate Chargeable to Life Tenant, When to Bemaindermen.</p> <p>It seems that a special guardian should make formal objections to questionable items in the accounts of testamentary trustees; but the matter being brought to the attention of the surrogate he may act independently, as an auditing officer, in behalf of infants. The court will protect an infant remainderman and do for him what he is unable to do for himself.</p> <p>Testamentary trustees, required by order of the building department of a city to repair foundation walls and put in fire escapes, may, as the same are compulsory, properly charge the expenses thereof to the corpus of the trust estate.</p> <p>But alterations and improvements to real estate, not compulsory, but made to enhance the rental value of the property, should be charged to the life tenants who receive the benefit, and not to the corpus of the estate. “Those who receive the benefit must pay the cost.”</p>

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

<p>Will—Bequest of Deposit in Savings Bank Which Goes Into Liquidation—Bights of Legatee—Contract for Annuity to Wife Confirmed by Will—Bequest for Construction—Decree That Amount Stated in Contract Controls, Conclusive.</p> <p>Where a savings bank goes into liquidation and the temporary receiver, a trust company, upon closing up its affairs credits a depositor upon its books with a specific sum, the amount of his share of the dividend declared, and issues to him a pass-book, showing such credit, which is drawn against, the balance remaining on deposit at his death passes to a legatee of all his money on deposit in the specified bank, although the testator died without altering his will and in a codicil thereto makes no reference to the deposit with the trust company.</p> <p>Where prior to the execution of his will the testator and' his wife agree to live apart upon the payment of an annuity of $300 a year for twelve years from the date of the contract and $150’a year thereafter, until her death or remarriage, and the widow upon the probate proceedings files a request in writing for the construction of a certain clause of the will, the determination of the surrogate incorporated in the decree for probate, that testator intended by said clause to ratify and in all things make valid said contract, and that the reference thereto in relation to a $100 annuity, as long as the widow remained single, specified in said clause, should have been $150 in accordance with said contract, is, if not appealed from, conclusive of the rights of the parties upon intermediate accounting and judicial settlement of the executor’s accounts. •</p>

<p>Will—Bequest to Creditor also a Residuary Legatee—Proceeds or Disposition or Accident Insurance by Will—Insurance Law, §■ 212.</p> <p>Where a will, after a recital of testator’s assets consisting almost entirely of life and accident insurance, contains an acknowledgment of an indebtedness to a Mrs. B. of about the sum of $3,000 a provision that “-T want her (Mrs. B.) to have $3,000,” does not modify to any extent the liability of testator’s estate for the debt to her.</p> <p>A further provision, “ then I want her (Mrs. B.) to have an equal share with my brothers and sisters, after all my debts are paid ” makes her one of the residuary legatees with the brothers and sisters to the exclusion of a nephew.</p> <p>The proceeds of accident or casualty insurance payable to the estate of the testator are as much the subject of testamentary disposition as the proceeds of regular life insurance likewise payable and the provisions of section 212 of the Insurance Law, that money paid by any life or casualty insurance corporation, association or society upon the co-operative or assessment plan “ shall not be liable to be seized, taken or appropriated by any legal or equitable process, to pay any debt, etc.,” have no application to such proceeds.</p>

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

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

<p>Guardian—Testamentary—Domestic Relations Law, § 51.</p> <p>By provision, of the statute (Domestic Relations Law, § 51) it is “the surviving parent” only who may appoint a testamentary guardian, except that each may, in the lifetime of both, by will appoint the other such guardian.</p> <p>Where the father is living, letters of testamentary guardianship will be denied to a guardian appointed by the will of a married woman to whom was awarded in her action for divorce, the care and custody of her infant children.</p>

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

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

<p>Motion as to disposition of funds of an estate. The opinion states the ease.</p>

<p>Motion by legatee’s representative to compel the executors ■to pay over a legacy given under a clause of the will.</p>

<p>Infant—Mother not “Guardian” Within Code Civ. Pro., § 2746— Payment of Distributive Share.</p> <p>The mother of an infant is not its “guardian” within the meaning of section 2746 of the Code of Civil Procedure and is not a person authorized to receive payment of the distributive share to which it is entitled upon the accounting of its father’s estate.</p>

<p>Proceedings upon the probate of an alleged will. The opinion states the case.</p>

<p>Executors and Administrators—Commissions Where One Executor Dies Before Judicial Settlement—Code, § 2730—Allowance to Representative of Deceased Co-executor Discretionary—Residuary Estate in Trust—Rights of Infants and Trustee.</p> <p>The number of executors or administrators to whom commissions can be allowed under section 2730 of the Code, is measured by the number in office at the time for awarding such commissions and not-by the number who from first to last may have qualified and acted and for one reason or another have ceased to be executors or administrators at the time of the judicial settlement of the accounts.</p> <p>Upon the judicial settlement of the accounts of a sole surviving executor, the executor of his .deceased co-executor is not before the surrogate in his official capacity and whatever allowance may be made to the executor of the deceased co-executor is measured not by section 2730 of the Code, but rests in the sound legal discretion of the surrogate.</p> <p>Where but two of three persons named as executors in a last will qualify and one of them dies after serving for nine months and bet-fore the judicial settlement of the surviving executor’s accounts, the estate exceeding $100,000 personal over all debts, and no separate accounting has been made by the executor of the deceased co-executor for Ms acts and doings, but one full commission may be allowed and that to the accounting executor for receiving the principal of the estate and for turning it over to himself in the form of the investments in which he received it.</p> <p>In computing the compensation to he allowed to the executor of the deceased co-executor whatever portion of the estate which came into the hands of the deceased co-executor which has been turad over to legatees or is upon the judicial settlement of the accounts of the sole surviving executor turned over in kind to the truste named in and authorized to receive it under the will, ought to be included with the amount actually realized in cash, up to the time of the death of the co-executor as a basis for computing commission's at one-half rate for receiving, where the terms of the will and consent of the parties to the accounting render unnecessary the conversion of such property into cash and in addition commission should be computed upon cash paid out during the lifetime of the deceased co-executor.</p> <p>Where a residuary estate is given to executors in trust to divide the principal into as many separate equal parts as the testator shall leave grandchildren him surviving and to pay over to each of them one of said parts as they respectively become of age, infant residuary legatees and the trustee are entitled upon the judicial settlement of the accounts of the sole surviving executor to have the terms of the trust carried out by a division of the residuary estate into four parts by the trustee selected by the testator and the executor will be directed to turn over the whole of their residuary estate for the purposes of the trust, the shares of adult grandchildren being payable to them when the division is made.</p>

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

<p>Legitimacy—Presumption—Burden of Proof—Revocation of Letters of Administration.</p> <p>The presumption of legitimacy is one of the strongest known to the law and the burden rests upon him who alleges illegitimacy.</p> <p>Upon an application to revoke letters of administration it was admitted that the intestate’s mother had two daughters by P., whose names were Bridget and Mary, and that intestate’s father was named 0., and that she was known as Ellen C. until her marriage with K. The deposition of witnesses, taken in Ireland, as to the question of the legitimacy of the above-named children of intestate’s mother, imputed their paternity to one P., who never married her and that there was a difference of opinion among the intestate’s acquaintances as' to whether she was married to C., the father of intestate. As against this, Bridget, who with a son of her sister Mary, deceased, are the petitioners herein, testified that she remembered her father, that he lived with her mother and her sister and herself and died and was buried from their house while she was a child; that subsequent to his death her mother married 0., her sister Ellen, the intestate herein, was born, and the father died. That the petitioners were respectively the sister and nephew of the intestate was shown by her oral and written declaration. Held, that the application should be granted.</p>

<p>"Will—Particular Intention Exception to General Intention—Disposition oe Annuity Fund.</p> <p>Where a general intention is expressed in a will, and also a particular intention incompatible therewith, the particular intention may be considered in the nature of an exception.</p> <p>Where, taken as a whole, a clause of a will discloses two intents, one general, as to the residue to be held in trust for two lives for the purposes set forth in the third and fourth paragraphs of said clause, and the other a special and particular intent as to the sum to be set aside and separately invested to produce a $12,000 annuity for testator’s widow, the annuity fund to be held in trust and the income paid to the widow during her life and upon her death to be disposed of “ as is hereinafter directed in respect to the principal of my residuary estate,” the testator’s intention as to the annuity fund will be regarded as an exception to his general intention in reference to the general residuary estate, and the trust in respect of the annuity fund will be held to be measured by the widow’s life alone.</p> <p>The sum required to produce the annuity fund of $12,000 had not been set aside and invested by the executors prior to the death of the annuitant, three months after the death of the testator. Held, that $300,000, the sum determined hereon as the proper sum to be set aside for the purpose of producing the annuity, together with the income thereof from the date of the widow’s death, should be distributed to the children of testator in equal shares.</p>

<p>Proceedings for the judicial settlement of the account of trustees. The material facts appear in the opinion.</p>

Proceeding by a creditor for the mortgage, sale or lease of the real property of decedent for the payment of his debts and funeral expenses.

'Claim presented upon the following instrument contained in a patent medicine almanac: “Onondaga Hill, .Sept. 16th, 1899. “ Unique Charity. “ I promise Maggie Mattice five thousand dollars, when I -die for all my trouble and all her kindness to me I also killed her canary bird to-day for which she must have her pay for this account must be payed after my death from my estate.

<p>Proceeding upon the judicial accounting of a sole surviving trustee.</p>

<p>Proceedings upon the contested prohate of a will.</p>