Volume 4 — Redfield's Surrogate Reports

- By the fourth item of the testator’s will, among other specific legacies, he gave to Amelia A. Tyng twenty-five shares of the stock of the Manhattan Gas Company, or the proceeds of the same, should the same have, been .sold: to Annie B. Tyng, fifty shares of the same stock, ,or the proceeds, &c., as aforesaid: to George L. G§borne, fifty shares of the same, or the proceeds, &c. : to Francis M. Jennings, twenty-five shares: to Charles L. MfiAlpine, one hundred shares of the…

Motion to confirm auditor’s report, upon final accounting of executors.

Motion, among other things, to set aside an order granted herein, on the 4th day of May, 1876, authorizing the issuing of execution against said estate. The papers showed that such execution was issued, and certain property belonging to the estate was sold thereunder. The papers on this motion were served upon the attorney of the judgment creditor who obtained the order, the judgment creditor being a non-resident of the state.

Motion to confirm the report of auditor upon final accounting of executor. The facts appear sufficiently in the opinion.

; The petition of John L. Melcher and others, executors, &c., of Parán Stevens, deceased, stated that on the 25th of April, 1872, said Stevens died, leaving a last will and testament, which was thereafter duly admitted to probate, and the petitioners were appointed executors, and have qualified, and received letters, and that letters testamentary upon the estate of said Fisk were issued to Lucy D. Fisk, who qualified.

The will bears date 8th March, 1877, and contains the following provision: “All my estate, real and personal, of every nature and kind, of which I shall die seized or possessed, I give, devise, and bequeath to my nephews and nieces, and grand-nephews, and grand-nieces hereinafter named, in the following proportions, viz. : To Elizabeth Baldwin, John Meeker,.....Charles A. Meeker, .each one-sixteenth part thereof.” After giving other legacies the will proceeds : “ And in case…

Motion to confirm auditor’s report on final accounting of testamentary trustees. The accounts referred were those of Henry W. Ford, as trustee under the will of Augustus H. Ward, and of James W. Gr. Clements, as trustee under the same will. The accountings were consolidated.

The decedent left a widow and four children, and his will directed first, the payment of his debts, and then provided as follows : “Second, I give and bequeath to my beloved wife, Goldie Cohen, during her natural- life, all my real and personal property which I may die possessed of.

The will propounded bore date the 33d of August, 1877, and was witnessed by John H. Welsh, William E. Corey and James E. Carpenter, and after the payment of debts and funeral expenses, bequeathed $300 to John B..

Motion to confirm auditor’s report on final accounting of Jacob K. Lockman, as executor of and trustee under the last will and testament of Richard C. Sage.' Numerous objections had been filed to the account, which, by stipulation, were to be considered as exceptions to the report.

Motion by the Guarantee Trust and Safe Deposit Company of Philadelphia, as guardian of Flora Cohen de Leon, an infant legatee under the will of Solomon D. Cordova, to compel the executors to pay such guardian a portion of the infant’s legacy. The facts appear sufficiently in the opinion.

Motioh to confirm the report of an auditor, on final accounting by the executor of decedent’s will. ■ The facts appear sufficiently in the opinion.

Application by John R. Rapp for an execution against the person of Myer Hasten, general guardian of John H. Constantine, for the sum of $875, in the nature of an attachment, in the form used by the old Court of Chancery in analogous cases. The contents of the petition are fully stated in the opinion.

<p>The testator was born and resided at Smyrna, Chenango County, in this state, until within twelve years of his death, when he came,to Now York, and stopped at a restaurant which he declared to be his headquarters, and where he received his letters. During these twelve years he traveled from place to place in this state and in New Jersey, and often registered himself as coming from New Jersey, and sometimes rs from Smyrna. During the latter years of his life, his stay in New York did not average a month per annum, he had no permanent room ther,e, and his baggage consisted of a sachcl. Ho died in this state. In his wjjl, written by himself, he described himself as of Smyrna, Chenango County,—Reid, that the testator had not lost his domicile of origin an .Chenango County, and that the Surrogate of New York County had no jurisdiction to probate his will.</p> <p>Where the .evidence loaves the question of testator’s domicil in doubt, his deelara,tiQu in his will, written by himself, on the subject will bo concjusiye.</p>

<p>Upon an application for the payment of a judgment recovered against the decedent, the Surrogate has power to inquire whether any such judgment exists.</p> <p>A transcript of the judgment is no legal evidence of its existence in such a case. The only proper proof is the judgment-roll itself.</p> <p>The judgment-roll must show the jurisdiction of the court. Unless it contains proof of service of the summons, or of appearance by the de-' fendant, there is no proof of jurisdiction, and no proper evidence of the existence of the judgment.</p> <p>A judgment-roll of another court, from which proof of the jurisdictional facts has been omitted, cannot he cured by affidavits read in the Surrogate’s court.</p>

Motion to confirm report of auditor upon final accounting of the executor of decedent. The auditor reported that the amount chargeable against the executors, as per inventory, and increase, was $11,096.02, and that he was entitled to the credit of $8,330.44, leaving a balance .in his hands of $2,765.58, subject to the expenses of the accounting, and his commissions.

The will propounded bore date May 3, 1876, and was witnessed by Francis 0. Reed, E. A. Marcy, and Pile nix Babcock, and appointed James L. Phipps sole executor, and gave all, decedent’s estate, after the payment of his debts and funeral expenses, to Mary A. Phipps, wife of the executor.

Motion by creditors to compel the administratrix to file an inventory. It appeared, by the affidavit of the administratrix, in answer to the citation requiring her to file an inventory, that all the assets of the estate which came to her hands, and of which she had any knowledge, had been disposed of, and devoted to the payment of funeral expenses and claims against the estate, and that she had no such assets in hand, nor any proceeds thereof.

Motion by Edward F. Brown, as one of the sureties on ■ the bond of Joseph A. Kerrigan, as administrator of the estate of Margaret D. Kerrigan, to restrain the executor of the estate of James Kerrigan from paying a legacy under the will of said James, to the executrix of Joseph A. Kerrigan’s will, pursuant to a decree heretofore entered in James Kerrigan’s estate.

The personal assets amounted to about $92,000, but the account embraced rents of real estate received and paid out, amounting to over $250,000. The executors and trustees claimed an allowance of three full commissions, while the beneficiaries under the will disputed their right to such commissions, for the reason—first, that the executors are only accounted as such ; and second, because the rents do not constitute “personal estate,” under 3 S. 8., 101, § 71 (6 ed.).

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

Pinal accounting of the éxecutor of John Boyd, deceased. By the third clause of the will, the testator made certain cash bequests, then by several succeeding clauses he gave various legacies.

<p>Motion for leave to issue execution against the estate. The facts appear sufficiently in the opinion.</p>

<p>Where a collector of an estate deposited the funds of the estate, first with his firm and thereafter in his own name in bank, Held, that he should be charged with interest at the highest rate, for the time the funds were so deposited. Depositing trust funds in such a manner amounts to a misappropriation of the same, and renders an executor or collector chargeable with the legal rate of interest, as though he had borrowed the funds and used them, in his business.</p> <p>The remedy against a collector in such a case is not limited to the proceedings provided by chapter 71, Laws of 1864.</p>

<p>Objection to the probate of the will of Patrick Walsh.</p> <p>The will propounded was dated 36th November, 1878, witnessed by James J. Butler and John J. Pagan. The latter was an attorney, who died previous to the testator.</p> <p>The facts appear sufficiently in the opinion.</p>

<p>The bequest of the interest of a particular sum will not be construed as giving an annuity, though payable annually, but is simply the gift of the income or interest of the amount.</p> <p>In the case of a gift of the income of a fund, taxes imposed thereon and the expenses of the trust must be paid out of the income; but in the case of an annuity, no deduction can be made, but all taxes and expenses , must be paid out of the estate.</p> <p>It seems that where the testator disposed of the residue of his estate without providing for the payment of taxes, the bequest will be construed to bo rather a gift of the income, than an annuity.</p> <p>Where the testator bequeathed @10,009 to his wife in lieu of dower, to he invested in bond and mortgage, “she to receive the interest, of the same for the term of her natural life,” and then disposed of the residue of his estate, Held, that the bequest to the widow was a gift of the income, and was subject to deductions for taxes and commissions.</p> <p>An executor, having funds in his hands for that purpose, who fails to pay taxes when due, cannot claim the interest or penalty imposed because of his failure to pay the taxes when due.</p> <p>Where a testator bequeaths to his wife a sum of money, to be put on bond and mortgage, she to receive the interest during life, with a bequest over upon her death, and the executors invest the fund in bond and mortgage, Ileld, that the legacy vested in th" wife as trustee, and that she was entitled to the possession of the bond and mortgage, but that in view of her age (sixty-nine years) the decree should empower her l.o collect the interest, but not the principal, except on application to the court.</p>

<p>Application for the probate of a will.</p> <p>The facts appear sufficiently in the opinion.</p>

<p>Where executors, who are also testamentary trustees, pending their accounting as executors in the Surrogate’s court, have begun an action in the Supreme Court for an accounting as trustees, they will not be compelled to include, in their accounting in the Surrogate’s court, their proceedings as such, trustees.</p> <p>It seems, that executors who are charged with trust duties should, when finally accounting as executors, include all their proceedings in the administration of the esta.e, in whatever capacity they have assumed to act.</p> <p>It seems, that it is improper for testamentary trustees to begin an action in the Supreme Court for an accounting, pending their accounting as executors in the Surrogate’s court.</p> <p>Where the will authorizes the executors and trustees to appoint commissioners to partition the residuary estate, who shall convey the shares of .the beneficiaries in severalty to the trustees, and such partition is had, no title to the property vests in the commissioners, and the executors talco directly under the will, and not by virtue of the conveyance from the commissioners.</p> <p>Executors have no authority to appropriate the funds of the estate on account, of their commissions, without a settlement of their accounts, or allowance of such commissions, by the Surrogate. Upon the sums so withdrawn, simple interest at the current rate is chargeable down to the time of the settlement of their accoupts.</p> <p>Where a fund is directed to be invested, and the interest, dividends, and income are to be applied to the use of the beneficiary for life, the profit realized upon the sale of stock, in which a portion of such sum is invested, does not belong to the life-tenant as income, but must he added to the principal, of which he is entitled to the interest and income.</p> <p>Where the executors are authorized to submit to arbitration or reference any difference which may arise between them and any legatee or devisee, a submission to the counsel of the estate of a claim by a legatee to the profit of a fund, in hostility to the rights of the remaindermen, where one of the executors is the husband and agent of the claimant, is invalid ; first, because the counsel of the estate cannot act as arbiter, and second, because an executor, who represents all interests in the estate, cannot act in the double capacity of representative of all the beneficiaries and special agent for one.</p> <p>An executor, who, by his negligence, suffers his co-executors to receive and waste the estate, being able to prevent it, is liable to the beneficiaries for the waste.</p> <p>A the executors who are privy to the misapplication of the funds of the' estate, under the name of commissions, without remonstrating against it, arc liable for the sums so appropriated, with interest at the then statutory rate.</p> <p>It seems, that where a surviving executor is held liable for the misappropriation of funds to which his deceased co-execulor was a privy, he will bo entitled, upon the failure of the latter’s representatives to pay their share of the liability, to re-imburse himself out of the commissions due the estate of such deceased co-executor.</p>

<p>By chapter 488 of Laws of 1871, the Surrogate has the power to remove a, testamentary trustee in whom title to real estate is vested by the terms of the will.*</p>

This was a hearing on exceptions to an auditor’s report on a final accounting.

Motion to confirm auditor’s report on accounting of executors.

<p>Motion on the part of Mary E. Freeman, as general guardian of the infant daughter of decedent, Laura R. Freeman, and one of the residuary legatees under his will, to remove the persons appointed executors, David M. Kellogg, Edgar Williams, and Edward M. Freeman, on the ground that they have become incompetent by law to serve, and that their circumstances are so precarious as not to afford adequate security for their due administration.</p> <p>The petition set forth the proceedings of the executors as they appeared upon the accounting referred to in the preceding case (Freeman v. Freeman) ; it alleged the failure of the executors to collect the Kellogg note ; the insolvency of Kellogg and Williams ; the withdrawal of commissions by the executors, $2,231 by Freeman, $2,600 by Kellogg, $2,143 by Williams; the loan of §4,000 to Amy H. Kellogg on New Jersey property ; the practice of Williams to sign checks in blank to be used by the other executors; that the bank account of the estate was kept only in the name of Kellogg and Williams. The petition further set forth the report of the referee as to the amount chargeable against the executors, as follows :</p> <p>The executors are chargeable with the amount of the inventory, increase thereon, and interest, to amount of $674.53, on sums appropriated as commissions, .... $229,220.89</p> <p>And are to be credited with expenses, debts paid, legacies, investments, and certain dis-allowances, &c.,......219,016.92</p> <p>Balance of cash in their lands . . : $10,203.97</p> <p>To this petition the executors, Kellogg and Williams, answer: That they refer to the will and codicil; that the testator died on September 22,1875 ; that all his children then living, except the said two infant children, were adult children by a first wife ; that after his death, and upon the executors offering the will for probate, Susan A, Dixon, a daughter, and his widow, the said Mary E., contested the probate thereof ; that all the children and heirs appeared. Evidence was taken, and on July 15, 1876, all the parties appearing in such proceedings entered into an agreement, providing for the withdrawal of the objections to the probate, the issuing, of the letters testamentary, without requiring the executors to give bonds or other security; the occupancy by the widow and her said two minor children, of the house and premises 46 West One Hundred and Twenty-eighth street, for five years from May 1, 1876, in addition to the provisions of the will for their benefit; providing further for the payment to Mrs. Dixon of $8,000, in addition to her bequest of $10,000, in specified amounts, out of the shares of other legatees, who assigned their interests to secure their-respective quotas: Edward M. and Lorrain O.’s quotas to be taken out of their incomes from the estate, and that the costs and fees of contestants’ proctors and counsel be fixed at $2,000, to be paid out of the estate, and binding themselves each to the other for the faithful performance of the agreement.</p> <p>The answer further stated that thereafter, and on the 18th of July, 1876, a decree was entered, approving the said agreement, admitting the will and codicil to probate, ordering letters to be issued to said executors, and construing the will, particularly as to the said minor children. That in pursuance of said agreement, the said widow and children entered into possession of said house; that certain of the said legatees had since paid to Mrs. Dixon the amounts due by it; that the contest and other proceedings subjected the estate to large proctor and guardians’ counsel fees. That at the time of entering into said agreement, and the entry of the decree thereunder, all the parties to the agreement well knew that neither of said executors had any property, or pecuniary responsibility ; that the said accounting was a voluntary one, all of the persons interested being represented therein and the reference thereunder, and that a large amount of testimony had been taken. That in their account they had not credited themselves with any commissions, or charged any, and had not charged themselves with $4,500, borrowed by them for a temporary purpose for the benefit of the estate, and from which loan it did receive a direct benefit and profit, and which had been paid in since the date of said account.</p> <p>That they appropriated the commissions stated in the petition upon advice of counsel, and for other reasons.</p> <p>That executor Freeman was without means and practically insolvent. That Kellogg has had no property since the death of testator, and that nearly all his time has been absorbed in taking care of the estate, and in attending to numerous lawsuits in connection therewith. That after his marriage with decedent’s daughter he always had most intimate business and social relations with decedent, who well knew he had no property, except that gained from occasional business, and derived from decedent, who also loaned him the $1,000, knowing he was poor. That executor Williams was a large real-estate holder, and became embarrassed in 1874; that testator knew he was so embarrassed, knew he could not pay his debts, and yet frequently, before his death, expressed his high regard for and confidence in. him; that he (Williams) married a daughter of decedent in 1860, and up to 1873 attended to a large number of real-estate and other business transactions for him, and paid over to him large sums of money; that he frequently spoke to each of them about the other, and, knowing their circumstances, expressed great confidence in them ; that no testimony "was produced before said referee, that any money had been lost to the estate by any act of theirs; that the loan of $4,000 to Amy H.'Kellogg is on the same property devised by the will and appraised by the testator at $8,000; that there were several second mortgages on property which they purchased on foreclosures. That all such purchases have resulted without loss, and have yielded an income ; that without the utmost care and diligence and the confidence of the holders of first mortgages in their ability to manage such estates, some of the second mortgages might have been lost; that they have economized in every respect in expenses, and that the children, would, have been paid a continuing income if the infant children, by their guardians, had not prosecuted to appeal, a second time, a suit which required a reserve to be made to protect executors against the contingency of an adverse decision ; that executor Freeman resides in New Jersey, and came to their office only at irregular intervals ; that he is a man of feeble mind, and easily persuaded by others ; and assisted respondents only by writing up the accounts. That after uniting with them in' asking for an accounting he refused to sign the account as rendered, employed counsel, and assumed an antagonistic position ; that not one dollar belonging to said estate has been used for any other purpose than its legitimate business and disbursements, and they refer to the account, testimony, exhibits, &c., in confirmation of their answer. That it is untrue that Freeman ever signed any check in blank which was used for any other purpose than that for which it was signed ; that it was his constant practice to sign checks in blank for his own convenience, and to save himself expense and trouble.</p>

<p>The will of M. R. gave to trustees the residue of the estate,, to he divided into two equal parts for her two' grandchildren, the income of their several portions to be paid to them until they should attain the ago of thirty years, when one-half of the principal was to be paid.to them respectively, and the income of the balance should be paid to them until they should severally arrive at the age of thirty-five, when the balance of the principal was to become payable. In the event of the death of the grandchildren without issue, before such payment, then the amount unpaid, including income, was directed to be paid to pther residuary legatees named. Held, that the legal title to the estate vested in the trustees immediately upon the death of the testatrix, and that upon the death of the grandchildren without issue before the time limited for the distribution of the principal, the gifts were vested in those to whom they were upon such contingency limited. (Stmde t>. Ridgway, 55 How. Pr., 301, followed.)</p> <p>The will further bequeathed to M. W., one of the grandchildren, all the jewelry, silverware, and wearing apparel of the testatrix, and to both her grandchildren, J. W. and M.' W., all her paintings and pictures. Held, to be a vested legacy.</p> <p>The testatrix and her grandchildren, J. W. and M. W., together-with the father of the latter, perished in the steamer Schiller. They were all in the pavilion upon the deck, after the disaster to the ship. The testatrix was washed out of the pavilion, but the evidence did not disclose whether she was carried out into the sea or to some other part of the deck. The children, with their father, were seen alive in the pavilion some ten or 'fifteen minutes after the testatrix was swept away.. The dead body of testatrix was afterwards recovered, but the remains of the children were never found. Held, ‘that the evidence of survivor-ship of the grandchildren was insufficient.</p> <p>Where two persons are lost by the same calamity at sea, it does not follow that the one last seen alive is necessarily the survivor.</p>

The petition of Elliott F. Shepard, as trustee and administrator with the will annexed, of decedent, repre-'sents that decedent died on the 27th day of April, 1854,* leaving a will, and nominating Anna Saltus, his widow, ¡Theodore Saltus and Lansing Pruyn, his executors, who qualified.

This is a motion for leave to issue an execution. The petition of Sarah L. James, the widow of decedent, represents that one Mary J. Munson and others brought a suit in the Supreme Court, against Joseph Beesly and James D. Bird, as executors and trustees under the will of decedent, and all parties interested in his estate, for the foreclosure of a mortgage made by decedent; and on November 20, 1879, after a .trial upon the merits, recovered a judgment (for deficiency) for…

Petition by collector of decedent’s estate, for leave to sell certain personal property.

The probate thereof was contested by the father of decedent, Samuel Ward.

This was a petition of Alfred M. Barras and William Barras, two of the next-of-kin of decedent, for an order vacating the decree in this matter, for want of jurisdiction of the Surrogate to decree the validity and payment of claims and demands in favor of Hiram I). Barras, the administrator, and to require him, 'said administrator, to account to the next-of-kin for the sum so allowed by the Surrogate.

Motioií to confirm auditor’s report on final accounting of administratrices. Exceptions were filed thereto in behalf of the next-of-kin of decedent.

This was a motion to confirm the report of the auditor on the final accounting of the executor and executrix of decedent’s will.

Fihal accounting of executors of the will of Henry Lawrence, deceased, which was admitted to probate April 1, 1873, by the Surrogate of Kings County. The will contained the following provisions, viz. : “ Third. I give and bequeath to my daughter Eliza, wife of David Lindsay, if living at my death, the sum of ten thousand dollars. “ Fourth. I give and bequeath to my son Samuel, if living at my death, the sum of fifteen thousand dollars. “Fifth.

<p>The Surrogate has the power to take up the probate of a will at the point where it was left by his predecessor in office, complete the proofs, and then decide the question at issue upon the whole evidence, including that taken before his predecessor.</p> <p>The provisions of the Revised Statutes (2 B. 8., § 11, 228), that “upon the office of any Surrogate becoming vacant, his successor shall have-power and authority to complete any business that may have been begun or that was ponding before such Surrogate,” apply to all cases where the actual incumbent vacates the office for any cause.</p> <p>People v. Shaw, 3 Hun, 279; S. 0., 63 H. Y., 36, distinguished.</p>

The administrator’s account was referred to an auditor, and the matter came up on exceptions taken by both parties to the auditor’s report. Further facts appear in the opinion.

Final accounting by the executors of John McConville, who was one of the executors of, and the residuary legatee under, the will of his brother, William McConville.

Application on the part oí the administratrix for a final accounting, and also to prove a claim which she makes against the estate of the intestate. The petition showed that the next-of-kin of the intestate are her sister, the petitioner, and a nephew a-nd a niece, both of full age, whose residences are unknown to the petitioner, and have been for over fourteen years.

<p>In a contest between the stepmother and the aunt of an infant for letters of guardianship, where the infant has no property and the stepmother has nothing except what she can earn, but the aunt has an income for life of $1,300, the-guardianship will be awarded to the stepmother to avoid the separation of the infant from a brother in the charge of the stepmother, and to carry out the wish of the infant's deceased father.</p>

Application by a creditor, fco compel the administrator, Henry J. Cullen, Jr., to account and pay the creditor’s claim. The administrator instituted certain proceediugs against the creditor to collect an alleged claim against him', which proceedings resulted in an order in favor of the administrator. An appeal from that-order was taken by the creditor to the General Term and the judgment was reversed, with costs to be paid out of the estate.

Application, on the part of the devisee under the will of John Calyer, deceased, for an order requiring the administrator with the will annexed of the said John Calyer, to pay over to her certain rents from real estate, which she claimed were devised to her for life by said will, and also restraining the administrator from further collecting the rents from said real estate.

<p>Where application for the guardianship of infants is made by their maternal grandmother, and the petition does not disclose the fact that the paternal grandfather is, at the time, living and residing in the county, and letters are issued to the petitioner without notice to the grandfather, such letters will he revoked upon the application of the latter, and an opportunity be afforded him to be heard in the matter.</p> <p>While the Revised Statutes (2 B. 8., 151, § 5) leave it to the discretion of the Surrogate to decide which relatives of the infant shall be notified of the application for letters of guardianship, this is not an arbitrary discretion. I£ the nearest relative applies or consents to the application, the Surrogate may dispense with further notice to the other relatives. Where the nearest relatives do not join in the application or consent thereto, or where there are other relatives of the same degree as the applicant, residing in the county, the Surrogate should direct reasonable notice of the hearing to be given to such of the relatives as • he may deem proper.</p> <p>The petition for the appointment of a guardian should show which of the relatives reside in the county. The Surrogate has the power to revoke the appointment of a guardian, based on a x>etition which omits these particulars.</p>

<p>Application on behalf of the ward, after coming of age, to compel his general guardian to account and to pay over the balance which may be found due to Mm.</p> <p>The guardian filed his account, showing that on the 11th day of March, 1878, the estate of the ward in his hands should have been $17,143.</p> <p>He claimed that on that day, and shortly after the ward had become of age, he had a settlement with his ward, and assigned to him a mortgage (without any bond) for §18,000 on certain lands in New Jersey, which the ward accepted as an equivalent for the said amount due to him, and which mortgage was credited to the guardian in his account, so that it appeared by said account that nothing was due from the guardian.</p> <p>In support of this claim the guardian produced a receipt signed by the ward, and dated March 11, 1878, in which it is stated that the ward has received on that day, as equivalent to §17,143, an assignment of the said mortgage.</p> <p>The ward filed objections to the account, in which he denied that the said mortgage was assigned to him with his knowledge or consent, and claims that the mortgaged premises are of no value whatever.</p> <p>The guardian insisted that the limit of the inquiry in this court must be whether or not the said mortgage ' was accepted by the ward ; that the receipt cannot, as respects the purpose or object for which the mortgage was received, be contradicted by parol evidence or impeached for fraud, imposition or inadequate considera- . tion. He claimed, further, that more than a year having elapsed since the said settlement, the ward is now precluded from seeking to open it.</p>

<p>■ .Where it appears from the husband’s own memoranda that he received his wife’s separate property, and invested and re-invested the same, and - - deposited the securities, together with his own, in the joint names of himself and wi f e, and he subsequently converted the securi ties to his own use, and upon the death of the husband the wife presents a claim for the same against the estate, Held, that in the absence of any direct evidence as to the nature of the agreement under which the husband received the securities, these facts would warrant the presumption that the husband held the securities for safe-keeping, and that the statute ■ of limitations did not begin to run until a demand and refusal, or until after the conversion of the securities.</p> <p>The interest on securities left with a person for safe-keeping being payable as soon as collected, without demand, the statute of limitation as to such interest, collected and not paid over runs from the time of the receipt of the interest by the bailee.</p> <p>It seems that where the husband, living together with his wife, has the management of her property without compensation, and the wife has reason to expect that it is yielding an income, but allows her husband for several years to keep the interest, never objecting or taking any steps to compel payment of such interest to her, it will be. presumed, in proceedings instituted after his death to recover such interest, that it was part of the original agreement for the management of her property, that he might keep the income.</p>

Application to enforce, in the manner provided by section 2555 of the Code, a decree of this court which was rendered before September 1, 1880. The application is opposed on the ground that the provisions of that section do not apply to a decree obtained before that time.

<p>A creditor, who desires to obtain a proportional part of his debt, where the estate of decedent is insolvent, must compel a judicial settlement of the account of the executor or administrator, under the provisions of article 2, title 4 of chapter 18 of the Code of Civil Procedure, in which proceeding all the parties interested will be brought before the court.</p>

Motion to confirm the report of the auditor to whom the accounts of the executors were referred. The facts appear sufficiently in the opinion.

<p>Motion for settlement of decree in final accounting. The facts appear sufficiently in the opinion.</p>

<p>Application for the probate of the will of Elizabeth Stark. . The facts appear sufficiently in the opinion. ^</p>

<p>Under a decree or bequest to heirs or next-of-kin, followed by words providing for an equal division, such as “in equal shares,” or “share and share alike,” or “to be divided equally between them,” the heirs or next of kin will take per capita, and not per stirpes by classes.</p> <p>Where the other provisions of the will afford even a slight indication that it was the intention of the testator that the devisees should take by classes, such a construction will prevail.</p> <p>But where the terms of the will, directing a division of the property, clearly and unmistakably express the intention of the testator, as to the mode of division, no reference to other provisions of the will need be had.</p> <p>The testator bequeathed to his wife §0,000 ; to his son, §5,000 ; to each of his daughters, naming them, §3,000 ; to his grandson, §3,000, and to each of' his- granddaughters, naming them, $1,000. The residue he bequeathed to his wife and the persons answering the description of .his heirs-at-law, “ to be divided between them equally, in such manner that his said wife and each of his said heirs-at-law shall take equal shares.” Held, that the residuary clause clearly expressed the intention of the testator that the division of the residue should be per capita ; that the use of the term “ each” was controlling without reference to the prior provisions of the will, and that there was nothing in these prior provisions to indicate that the testator intended to leave to his grandchildren only as a class a share equal to that which he gave to each of his children.</p>

<p>The administrator, upon his accounting, claimed to be joint owner of a steamer with the intestate, his father, and that the latter was indebted to him in a large sum for half her net earnings. The evidence showed that the deceased proposed to buy the ship on joint account, and afterwards, by written and oral declarations made from time to time, admitted that his son, the administrator, was a part owner of the vessel. For nearly two years prior to his death a silence on the subject prevailed. The son at no lime, either before or after his father’s death, claimed any part of the earnings as his own, until he filed his verified accounts as administrator. He frequently admitted, both orally and in writing, that the whole of these earnings belonged to the estate, and strengthened this admission by making payments, as administrator, to the next-of-kin, in accord therewith. Held, that the claim of the administrator must be rejected.</p> <p>While oral admissions constitute á dangerous species of evidence, still, when clearly and unmistakably established, they become most satisfactory.</p> <p>While ownership of property in a person is presumed to continue until a change of title shall be proven, such a change may be established as well by an admission by the owner, as by a contract.</p> <p>An admission or declaration, having reference to a precedent condition of things, is also an admission of all intervening facts essential to the truth of such admission.</p>

George W. Mead, a creditor of the deceased, filed a petition in this matter, praying that the administrators of the intestate, Mary B. Jenkins and Stephen M. Sherwood, be directed to show cause why they should not be required to sell the real estate of which he died seized, for the payment of his debts.

George Benedict Davis, one of the heirs-at-law of the deceased, was entitled to a share of the surplus proceeds of the sale of decedent’s real estate, remaining after the payment of the expenses of the proceeding and the debts. His share of such surplus amounted to $129.22.

<p>A., B. and 0. were appointed executors of a will, and A. and B. were also appointed, therein, trustees of a fund, to pay the interest thereof to D. for life, with power to make advances to him out of the principal. A. alone qualified as executor. D. objected to A.’s acting as trustee, and the fund was, at D.’s request, held and managed by B., who paid D. the interest and part of the principal. Upon B.’s death, A. advanced, out of his own funds, money for the support of D. Upon a motion to compel A. to pay the interest of the fund to D., and to account, Reid, that A., by accepting the office of executor, had not, under the circumstances of this case, assumed the duties of trustee; and having never received or intermeddled with the trust fund, he was not liable therefor to the beneficiary; that the payment by A., out of his own pocket, of money to D. for his support was immaterial.</p> <p>The presumption of an acceptance of a trust, arising from the acceptance of the office of executor, may be overcome by proof that the trust was declined.</p> <p>One may disclaim a trust as effectually by words or acts without deed, as by deed.</p> <p>A trustee in a testamentary power may execute it, though he has not qualified as executor.</p>

Ignatius Voéssing died in November, 1870, leaving Ms widow, Clementina, and the minor, born in October, 1869, surviving, and also leaving an alleged last will and testament, in which said widow, Anthony J. Brandlaeht, and John E. Benning, were named as executors. On the will being admitted to probate, Brandlaeht qualified, and the widow was refused letters, on opposition made, for the reason that she could not. read and write the English language.

Application by creditor of decedent for sale of latter’s real estate. On February 11, 1871, John P. Jenkins, the intestate, obtained a loan of 81,000 from the petitioner, for which he gave his promissory note, payable on demand ; he died within two months thereafter, and letters of administration on his estate were issued on April 14, 1871.

In 1877 Norman K. Freeman obtained a judgment against Samuel Nelson, in the Supreme Court. Shortly thereafter, and in the same year, Nelson died intestate,seized of some real estate, and in ÍS79 letters of administration were granted to his widow. Application is now made to this court for a decree, granting leave to the plaintiff, to issue execution to collect the amount of his judgment.

<p>The testator, hy the third clause of his will, gave to his executorts, in trust, §5,000, to invest on bond and mortgage, the income thereof to be equally divided, and paid annually to his brother, A., and his sister, B., during tlieir natural lives, and upon their death, the testator bequeathed §8,000 of the fund to his grandchildren. By the fourth clause he gave to his executors, in trust, $8,000, to invest on bond and mortgage, the income thereof to be paid to his wife, 0., and if she outlived A. and B., then after their death the executors were directed to pay to O. the income of the $2,000 remaining from the $5,000 of the third clause. By the fifth clause C. is constituted general residuary legatee. By the sixth clause testator gives to D., after C.’s death, the use of the §10,000 mentioned in the fourth clause, for life, with remainder to her heirs and assigns. B. died on the day the testator was buried. Upon an application .for the construction of the will under section 2624 of the Code of Civil Procedure, Held,</p> <p>1. That as the income of the $5,000 was to be equally divided between A. . and B., they were tenants in common thereof, and as the subsequent . bequests of the $5,000 were dependent upon the death of both A. and B., there was no valid disposition of one-half of the income, in case of the death of either A. or B. alone, except by the residuary clause, and that under this clause the one-half of the income must be paid to D., the widow, during the life of A.</p> <p>2. That the bequest to D., after tliedeath of C., of the use of the $10,000 for life, was void as to the $2,000 thereof .directed to be taken from the $5,000 of the third clause, after the death of A. and B., as being an illegal suspension of the absolute ownership of personal property. < There being no valid disposition of these $2,000 after the first two successive life estates, they fall into the residuum and go to C. . ■</p>

On August 16, 1871, letters of administration on the estate of the intestate were issued to Silas B. Busco, on his petition, which set forth among other things, that he was a half-brother of the intestate, that he left him surviving no widow or child, but left a mother, whose renunciation of her right to administer, was produced and filed. The administrator filed an inventory of the personal estate on the 28th day of the same month, amounting to $655.71.

On September 25, 1880, the deceased executed the instrument propounded as his last will and testament, and died on October 1, following, at the age of about' seventy-two years. He had no children or descendants, and his lieirs-at-law were first and second cousins, and his next-of-kin first cousins. His real and personal property of which he died seized and possessed amounted to about $15,000.

Application by a legatee for an. order directing the payment of her legacy. The facts appear sufficiently in the opinion.

George L. Spencer died in 1868, leaving a last will and testament, which was admitted to probate by the Surrogate of Westchester county in June of that year. By his will he gave his household furniture, and horses and carriages to his wife, Lorraine Spencer. He appointed .William H. Popham his executor, and gave him power to sell and convey his real estate, to collect what might be due to him and to pay his debts.

<p>Motioa to confirm auditor’s report-. The facts appear in the opinion.</p>

<p>Application for the probate of a will. The facts appear sufficiently in the opinion.</p>

Motion to confirm auditor’s report. To the account of proceedings of the executors and trustees, objections were filed, whereupon it was referred to an auditor and referee. . To his report exceptions were filed on behalf of the three children of decedent, legatees under his will, the executors and special guardian of the infants not excepting.

The instrument propounded was dated March 19, 1880, signed by decedent by her mark, and witnessed by Ellis Morris and George S. Dubois. It gives to Caroline Wilzinski all her estate, except $100 to Clara Coppenheim, and one feather bed and pillow, and appointed said Caroline executrix, and directed payment of her debts and the erection of a suitable monument over her remains.

Motion :to require Roswell H. Rochester, as executor of and trustee under the last will and testament of decedent, to account and pay oyer to the petitioner, as administratrix of two deceased children of decedent, the legacies bequeathed to them. Decedent died in July, 1875, leaving the petitioner, his widow (since re-marriecl), and four children, viz.: Annie J., aged seven ; George D., aged four; Muriel G., aged two, and Gfurdon S. Mumford, aged one year, respectively.

Proceeding for probate of the last will and testament of Mary Caroline Marx, deceased. : The paper propounded, dated May 23,1878, bequeathed to Catharine H. Marx, testator’s only next-of-kin, $1,000 a year during her life, together with her clothing, and her interest in'premises No. 123 East-Fortieth street, and her share of. the- “family silver ” during the life of said Catharine; after her death, the share of the house and silver to go to the Rev. Aloysius J. D. Bradley;…

Application to require the administrator of this estate to file a further inventory. The answer of the administrator, verified by him, alleged that he had included in his inventory all the property that belonged to the estate of decedent.

Application pending a contest over the probate of .decedent’s will, to allow the widow to retain one-third of the rents and profits of the estate, real and personal, .of decedent, and of the future income( thereof, and that the receiver and collector be directed to pay her the same, and that she be authorized to receive for her two infant children one-sixth each of the residue of said rents and profits, and of future rents and income, and that she be allowed *out of the…

The decedent died June 23, 1880, leaving a son, Peter, a daughter, Agnes S., wife of William West, and Kate L. S. Mapes, a widow. Peter, the son, executed and filed, July 10, 1880, a renunciation of his right to administration. Mrs. West attained her majority July 19, 1880, and Mrs. Mapes is about twenty-nine years of age.

Motion to confirm the three reports of the referee, to whom the accounts of the administrator (with the will annexed) of decedent, were referred to examine.

Petition by the assignee of certain judgments recovered against the decedent, for the distribution of certain surplus funds on foreclosure of a mortgage executed by decedent. . A citation was issued to the parties entitled to share in such distribution, dated November 18, 1880, returnable 1) ecember 9. Most of the persons so. cited accepted service, and stated that such service should be deemed sufficient and valid, except Messrs.

<p>Application for the sale of decedent’s real estate, for the payment of debts.</p> <p>The facts appear sufficiently in the opinion.</p>

On the final accounting of the executors, the Evangelical Lutheran Reformed Church of Rush, 1ST. Y., claimed, to be entitled to receive a bequest of $1,000, given by the will to it under that designation. Objection was made by the next-of-kin that the said church was not a duly incorporated society at the date of the death of the testator, and was not therefore capable of taking a legacy. ■'.The legacy -was in the following words: Seventh.

Application by a judgment creditor for leave to issue execution, &c. The testator died in 1873, seized of certain real estate, which he had previously mortgaged to George C. Glacius to secure the payment to him of several thousands of dollars. The mortgage became due and payable in: January, 1874, when the mortgaged property was worth about §7,000, which was more than sufficient to pay the amount due and the expense of foreclosure.

The testator, in and by his last will and testament, among other things, appointed Jacob S. Rogers, Columbus B. Rogers, Theodore Rogers and Thomas Rogers trustees of certain trusts, and provided as follows for the tilling of vacancies: “ And I hereby declare that if said trustees, or any of them, or any person or persons to be appointed under this clause, shall die, or be unwilling or incompetent to execute the trusts of my will, it shall be lawful for my said wife, during…

Chables Cubby died in 1871, leaving him surviving a minor child, Ella Curry, and also leaving a last will and testament, disposing of real and personal estate estimated at between nine and ten thousand dollars. By the will Peter Staats was appointed executor, and was requested thereby to provide the said minor with a suitable home, see to her education, and pay for the same out of said estate. Subsequently one Hobart R. Griffin was duly appointed the guardian of said minor.