Volume 5 — Demarest's Surrogate Reports

Pending a proceeding to sell the real estate of decedent for the payment of his debts, the administrator instituted this proceeding for the settlement of his account. Among other things, Joseph Brush and another, as executors of the will of Israel Peck deceased, presented a claim for the amount of a judgment recovered by them, for a debt of decedent, against the administrator, for about $2,400; in which were included costs of the action, amounting to about $200.

Motion made by Edward F. McCaskie to modify the decree entered pursuant to the opinion in this matter, reported in 4 Dem., 549, in regard to the transfer of the securities therein mentioned, and by striking out the fifty dollars costs allowed against him in the proceeding. The only ground on which the application was based was, that he had no notice to appear on the 21st day of July, 1886, fixed for the purpose of the hearing.

In February, 1882, a decree in regard to this estate was entered, pursuant to the decision reported in 5 Redf., 406.

Peter Davids, who was the husband of the decedent, and a legatee under her will, filed an application for a citation requiring Peter T. Davids and Charles W. Johnson, the executors, to show cause why they should not render an account of their proceedings.

The executors, Isaac R. Secor and Mary B. Jube, named in the will of the decedent, presented the same for probate. The will was prepared by the executor Secor, who was a physician, a blank form being used for that purpose, in which the usual formal parts were printed, as was also the attestation clause, with a blank space for the name of the testatrix to be inserted.

The administratrix filed an account of her proceedings, as such, together with vouchers for all sums paid out by her, amounting to twenty dollars and upAvards. On the hearing, it appeared that she had in her possession vouchers for all sums paid out by her under twenty dollars in amount, aggregating about $300. These last mentioned vouchers the objectors insisted should be produced and filed, which the administratrix declined to do.

On the probate of the will of the decedent, request was made that the court construe the same.

<p>Under L. 1885, ch. 483, entitled “an act to tax gifts, legacies and collateral inheritances in certain cases,” it is only necessary to appoint an appraiser where specific legacies, subject to tax, are given, or where taxable inheritances exist, or estates in fee are devised, or remainders, annuities, life estates, or terms of years are created.</p> <p>The phrase, “ lineal descendants,” in the exemption clause of § 1, includes only those of the decedent.</p> <p>The requirement of § 13, that an appraiser be appointed “ to fix the value of property of persons whose estates shall be subject to the payment of said tax,” has reference to the estates of persons talcing, as légateos or otherwise, and not to the estate of the decedent.</p> <p>Testator, who died leaving real and personal property, by his will directed the former to be sold, and disposed of the entire estate, in general legacies, without remainders, to descendants of deceased brothers and sisters, and to strangers in blood. The district attorney having applied (1) for the appointment of an appraiser to fix the value of the estate, and (2) for a citation, to all persons interested, to show cause why the tax imposed by L. 1885, ch. 483, should not be paid,—</p> <p>Held, (1) that no appraisal was required; (2) that the issue of the citation asked for was not provided for by the statute; and (3) that each application should be denied.</p> <p>It seems, that the only mode which the Surrogate can employ, to enforce the liability of an executor or administrator to pay the tax imposed by the act in question, is to refuse to allow him credit, on his accounting, for the amount of such liability, unless he produce the voucher therein mentioned.</p>

<p>Eliza Barker died in December, 1876, leaving a last will and testament, of which Joseph S. Barker, her husband, became the duly qualified and acting executor. He died in September, 1885, leaving a will, of which Morris D’ C. Crawford, David Reed and William A. Miller were the executors. On January 11th, 1887, Hanford Crawford, a residuary legatee named in the will of Eliza Barker, deceased, presented a petition praying that the executors of the will of the deceased executor be required to account for all his proceedings as such executor, and for the trust property belonging to the estate of Eliza Barker which came into his hands, or was under his control; and to deliver over the undistributed' balance, if any. The executors of the will of Joseph S. Barker, on the return day of the citation issued upon said petition, presented an application, praying that all of the persons interested in the estate of Eliza Barker, deceased, be cited to attend their accounting in regard to her estate.</p>

George Govers died in 1885, leaving what purported to be a last will and testament. Ann Govers, his second wife, was named an executrix thereof and was the chief beneficiary. She offered the will for probate, and the same was contested by his children by his first wife. He had no children by the second.

Accounting proceedings were commenced in this matter in 1873, and ended in 1877, by the entry of a decree. Jane E. Keleman, the administratrix, never rendered any account, nor was she a party to that proceeding, except as a next of kin, and distributee. The schedules of the account were signed by the administrator, John W. Mills, only, and he alone made the usual affidavit verifying the correctness of the account.

Samuel Burliug left a last will and testament, by which he bequeathed several general legacies, payable at the legal period, but gave to the executors, in trust, $3,500, with directions to invest and pay the income to Ann Sutton during her life, with remainder over. Letters testamentary were issued, in April, 1868, to Joshua Sutton and Mellis S. Tilton, the executors, who in due time settled the estate, except only as to the trust fund.

<p>After a decree of a Surrogate’s court has been sustained on appeal by the Court of Appeals, a motion made in the former tribunal, to vacate such decree, on the ground of irregularity in its entry, e. g., because no findings of fact and conclusions of law were filed, will be denied. A motion of such a character must, at any rate, be made within the year specified in Code Civ. Pro., § 724.</p> <p>As to whether Code Civ. Pro., § 1282, relating to a motion to set aside a judgment for irregularity, is applicable to decrees of Surrogates’ courts —qimre.</p>

The will of Hiram Havens, deceased, was admitted to probate, and a decree to that effect duly entered, on December 15th, 1886. A copy of the decree, with this notice endorsed thereon : u Sir, Please to take notice that the within is a copy of an order this day duly made and entered and filed in the office of the Westchester county Surrogate Dated 15th Dec., 1886.

<p>Where the committee of the property of a lunatic employs an attorney to perform professional" services in a matter pertaining to his trust, the remedy of the latter, for his compensation, is against the committee, personally, and not against the fund which he represents.</p> <p>An order of the Supreme court, confirming the report of a referee appointed to take and state the account of the committee of the property of a lunatic, after the death of the latter, and fixing the amount of such committee’s claim, which it adjudges to be a “legal debt, claim and lien, in favor of the committee, against the estate of the lunatic, and against his legal representatives, in the same manner as if it had been a debt contracted by the lunatic in his lifetime,” is conclusive upon a Surrogate’s court, as to the character of the committee’s claim as a debt of such decedent, in a special proceeding instituted to procure the disposition of his real property for the payment of his debts.</p> <p>A Surrogate’s court has authority, under Code Civ. Pro., § 2481, subd. 11. where a special proceeding has been instituted for the disposition of the real property, late of a decedent, for the payment of his debts, to order a discontinuance thereof, at the instance of the owner, upon payment, by the latter, of the claims established and the costs incurred.</p>

<p>The testator, Joseph S. Barker, died without issue. He had had seven brothers and sisters, who were all dead at the date of his will, leaving issue. The names of the brothers and sisters were Isaac Barker, Nathaniel Barker, Thomas B. Barker, Elijah C. Barker, Jane Hart, Mary Crawford and Frederick Barker. By his will, among other bequests, he gave general legacies of $1,000 each to the two granddaughters of his brother Isaac; to a grandson of his deceased brother Nathaniel $2,000; to three children of Dorinda Edwards, who were grandchildren of his deceased brother, Thomas B. Barker, each $1,000 ; to a grandson of his deceased brother, Elijah C. Barker, $2,000; to two children of Joseph B. Crawford, being grandchildren of his deceased sister, Mary Crawford, $1,000 each; to two children of Mary Stevens, who were grandchildren of said Mary Crawford $1,000 each; to the children of Samuel Crawford, deceased, $2,000 ea.ch; to the son of Almira Mickel, a daughter of said Mary Crawford $1,000; and to the three daughters of his deceased brother, Frederick, $700 each. He also gave to the children of Mary Jane Gordon, grandchildren of his deceased brother Thomas B. Barker, who should be living at the time of his death, the sum of $1,000, to be equally divided between them. The seventh clause of the will is as follows:</p> <p>“ Seventh. All the rest, residue and remainder of my said estate I direct my executors to divide into equal shares; the number of said shares to be made one more than the number of legatees hereinafter mentioned in this clause of my will; and I give, devise and bequeath and I direct my executors to pay the amount of the said rest, residue and remainder of my said estate after being divided into equal shares, as follows : Two of such shares as provided for to Grace Place, the wife of Barker Place. One share to Marion, daughter of Barker and Grace Place. One share to Emeline Hayward, daughter of my deceased niece, Susan A. Place. One share to Isabel Sullivan, daughter of my deceased niece, Susan A. Place. One share to each of the children living at the time of my death of my deceased brother, Isaac Barker. One share to each of the children living at the time of my death of my deceased brother, Nathaniel Barker. One share to each of the children living at the time of my death of my deceased brother, Thomas B. Barker. One share to each of the children living at the time of my death of my deceased brother, Elijah C. Barker. One share to each of the children living at the time of my death of my deceased sister, Jane Hart. One share to each of the children living at the time of my death of my deceased sister, Mary Crawford, but in case any one or more of the children of either or any of my deceased brothers and sisters mentioned in this clause of my will shall die or have died before me leaving lawful issue surviving at the time of my death, then and in that case, such issue of my deceased nephew or niece shall receive the share which his or her ancestor would have received under this clause of my will had he or she been living at the time of my death, excepting in the case of the issue of Lemuel Crawford, deceased, to whom this clause shall not apply. The children of the said Lemuel Crawford, deceased, having been left a legacy in a former clause of this will.” Under one interpretation of this will the number of shares would be 17, and, under the other, 27.</p>

<p>Upon an application for probate, the evidence showed that the draftsman, L., after preparing the will, being requested by decedent to summon two neighbors to attest its execution, asked the latter to visit decedent, in order to witness “ a paper,” or “ his will,” it did not appear which ; that they accordingly attended, and were directed by L. to affix their names to a paper and at a place indicated by him, which they did, decedent having first subscribed it, the paper being so folded, at the time, as to conceal its contents from view ; that the attestation clause, appended thereto, was not read to or by the witnesses, of whom one did not remember that-the character of the instrument was stated, while the other testified positively that the word “will” was not mentioned at the interview, although L. swore that he asked decedent, in the witnesses’ presence, whether he wished them to witness his “ last will and testament,” and received an affirmative answer, which conversation, however, was not shown to have been heard by the witnesses.—</p> <p>Held, that probate must be refused for want of due publication.</p> <p>As to whether probate should be accorded to a paper, propounded as a will, consisting of a printed form, with insertions in the handwriting of proponent, and presenting a blank space of one and a half pages between the last disposing clause and the commencement of a paragraph appointing executors—quaere.</p>

James Hall died previously to ¡1873, leaving a last will and testament. He left him surviving a widow, one daughter, Jane E. Kelemen, and four grandchildren, viz: James R Hall, Abigail Hall, Charles Hall and Agnes or Mary Agnes Hall.

The Court of Appeals reversed the decision of this ease, reported in 3 Dem., 589, on the ground that the Surrogate erroneously refused to allow the contestant to introduce evidence tending to show that the accounting party had been guilty of fraud in obtaining .some prior decrees in the same matter; and the same court set aside those decrees, on the ground that the Surrogate lacked jurisdiction to make them, for the reason that Mr. Hawley was simply guardian, and not…

<p>The word “ issue,” when used in a will, as designating substituted beneficiaries, with naught in the context to restrict its meaning, extends to remote descendants of the ancestors indicated, and is not confined to their children.</p>

Application by George B. Abbott, public administrator of Kings county, for the judicial settlement of hig account as administrator of the estate of John W. Smith, deceased.

Objection taken by Elizabeth A. Marshall, a stranger in blood to decedent, and a life beneficiary under his will, to the appraisal of her interest, made for the purpose of taxation under L. 1885, ch. 483.

The petition of James W. Ridgway, as district attorney of Kings county, set forth that, by order of the Surrogate of Kings county, dated March 26th, 1887, William Murray was appointed appraiser, to appraise the property within this State, of decedent, a resident of the State of Pennsylvania, who departed this life in the State of South Carolina, October 26th, 1886, and whose will was admitted to probate at a Surrogate’s court of Kings county, on November 4th, 1886; that said…

<p>Upon a distribution of the proceeds of a disposition of a decedent’s real property, made as prescribed in Code Civ. Pro., ch. IS, tit. 5, “debts not yet due” at the time of entry of the first decree are entitled, under id., § 2793, subd. 7, to equality in payment with those established by and recited in such decree.</p> <p>An executor or administrator cannot be allowed, out of such proceeds, his expenses, incurred in defending an action brought against him by a creditor of the decedent, the provisions of Code Civ. Pro., § 2793, subd. 5, being only intended to cover payments made by the executor or administrator on account of debts of the decedent and funeral expenses.</p>

<p>Decedent, at the time of his death, was a member of a firm, which was then insolvent, and indebted to L.. in the amount of a promissory note, whereon the latter brought action against the administrators and, having shown the insolvency of the surviving partners, recovered a judgment in the ordinary form, with a direction added, that the same “be paid and collected out of the property of the estate of” decedent. The judgment creditor, upon the settlement of the administrators’ account, claiming title to equality, in respect of payment, with the individual creditors,—</p> <p>Held, that the judgment did not purport to adjust the equities of the various creditors, but simply established the right of L. to payment out of decedent’s estate; and that the individual creditors should first be satisfied, and thereafter the balance of assets be distributed among the creditors of decedent’s firm, including L.</p>

<p>Decedent, who was one of the first settlers in the town of Sherman, Chautauqua county, with the aid of his twelve children by his first wife, cleared up and paid for a valuable farm of 359 acres. Two years after her death in 1866, and when of the age of 71 years, he married his second wife, by whom he had no children, and to whom, by his will executed in 1876, he gave all his property. He died in 1884, aged 87 years. Soon after his marriage to his second wife, he took great apparent dislike to his children, and, during several years before making his will and until his death, he habitually, without apparent cause, denounced them as robbers and thieves, and declared that not one of them should have any of his property; at such times manifesting great excitement and refusing to be reasoned with on the subject. 1-Ie was naturally of a nervous temperament, positive in his opinions and emphatic in his manner of expressing them; on other subjects than his children, his manner and conversation were usually mild and reasonable, and in matters not relating to them he was rational and transacted business with good judgment and discretion. Upon application for probate of his will,—</p> <p>Held, that the decedent, at the time of making the same was a monomaniac, acting under the insane delusion that his children were his enemies conspiring to rob him of his property, leading him to disown them as liis children, and to disinherit them from any share in his property which they had assisted him in accumulating ; and, such tendency and delusion having been aggravated by the undue influence of the beneficiary, that the application should be denied.</p>

<p>Construction of will in proceedings for judicial settlement of executors’ account.</p>

William L. Cole, claiming to be a creditor of this estate, filed his petition asking that the executors be required to account or pay his claim. On the return of the citation, objection was made to this application by the executors that the petitioner was not a creditor, and therefore could not compel an accounting.

Decedent died in 1869, leaving a will which was subsequently proved, and of which Alexander Wright, David C. Winfield, and Charles C. McQuoid were appointed and qualified as executors. Mr. Wright shortly thereafter, on his own application to the Supreme court, by consent resigned and wras discharged. Subsequently the other executors died.

<p>Assessment of collateral tax upon legacies bequeathed by decedent’s will. The facts appear sufficiently in the opinion.</p>

<p>Determination of claim of exemption of pension moneys, upon judicial settlement of administrator’s account.</p>

Decedent died September 9th, 1885, and his widow, Annie J. Young was duly appointed administratrix. At the time of his death, he was the owner of valuable real estate in New York city, Brooklyn and Orange county, one parcel being a tract of 30 acres in the last named county, known as the Thompson purchase. Even after the sale of the real estate, there would not be sufficient to pay the debts. The other facts appear sufficiently in the opinion.

Contest concerning alleged gifts inter vivos, upon judicial settlement of executors’ account; and determination of question whether executors were entitled to additional commissions as trustees. The facts are stated in the head note.

Decedent died in December, 1885, leaving a will dated November 3d, 1882, which was admitted to probate by the Surrogate of Orange county June 1st, 1886. This proceeding was to obtain a revocation of such probate on the petition of Amelia L. Quick, a niece. The application was resisted by the executor, John E. Haulstead, and Eliza Elston, executrix, who was also the widow and sole legatee of decedent.

<p>Code Civ. Pro., §§ 1832, 1833 and 1834, relating to the mode of impeaching or contradicting an inventory, were not intended to operate upon an accounting where a trustee’s management of his trust is on trial.</p> <p>A Surrogate’s court cannot determine the right of inheritance of heirs at law, in a contested proceeding ; nor is the division of real property or its avails within the compass of its jurisdiction, except where such property is sold pursuant to its decree under the statute.</p> <p>Proceeds of a sale of an infant’s land, made in his lifetime, are real property, and descend to his heirs, where he dies intestate during minority.</p> <p>Decedent died an infant, intestate, leaving, her surviving, a mother and three sisters. During her lifetime, certain land of which she was seized was sold in proceedings instituted for that purpose, and the proceeds of sale were paid to the county treasurer. After her death, her administrator, assuming the money to be personal property, obtained an order directing it to be paid to him, included the amount in his inventory, paid the bulk thereof to decedent’s mother, and, after the death of the latter, paid thereout $50 on account of her funeral expenses. Upon the judicial settlement of the administrator’s account, on objection by the surviving next of kin,—</p> <p>Held, that the money in question was real property, and retained its character as such notwithstanding the acts of the administrator in respect thereto, and that the court had no jurisdiction to determine the rights of inheritance thereof.</p>

Hearing of objections interposed by next of kin of decedent, to account filed by administratrix, in proceedings for judicial settlement.

Application by the district attorney of Albany county, to compel payment by the executors of, and legatees under the will of decedent, of the tax imposed by L. 1885, ch. 483.

Decedent died December 1st, 1884. By the first clause of his will, executed June 19th, 1882, he gave his homestead at Cobleskill to his wife, in lieu of dower, during her widowhood, and thereafter to his son Henry, and also gave, in the same way, the library furniture and property therein, with right to the wife to use up all household stores. By the second clause, he gave to his mother during life the use of a house and lot in Cobleskill where she resided.

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

The executors of decedent’s will having filed a petition for the appointment of an appraiser to ascertain the value of the property bequeathed, under L. 1885, ch. 483, and an appraiser having been appointed accordingly, and having made and filed his report, the legatees in remainder contended that their bequests were contingent and not then liable to assessment or taxation, and asked the opinion of the court upon the question.

<p>The authority possessed by a Surrogate’s court, to apportion commissions among co-executors, carries with it, incidentally, power to enforce payment of a sum awarded in such behalf, in like manner as any other moneys decreed to be paid.</p> <p>It seems that the responsibility of his position, alone, entitles one of two or more co-executors to a share of the commissions, independently of the services rendered by him in the administration of his decedent’s estate.</p> <p>One of the two co-executors of decedent’s will, who were also legatees thereunder, having filed a petition praying for a judicial settlement of the account of himself, and associate, and an apportionment of commissions, the latter set up and proved that petitioner and the other beneficiaries had executed an instrument acknowledging the receipt of their respective shares, and consenting to the entry without notice, of an order discharging respondent from office as executor. The sum due for commissions had also been agreed upon, and the entire amount thereof retained by respondent, though the evidence showed no intent, on the part of petitioner, to waive his right to a ratable proportion.—</p> <p>Held, that the instrument in question did not affect petitioner’s claim to a share of the commissions; that respondent could be compelled to account for the amount thereof, withheld by him, with interest, as for assets in his hands; and that the same should be apportioned between the executors according to the services rendered by them, respectively.</p>

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

Petition by Solomon Lichtenstadter, for decree directing payment to him, by executor, of legacies bequeathed to his children by the will of decedent.

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

<p>Motion to open decree admitting decedent’s will to probate.</p>

<p>A beneficiary under decedent’s will having, by his attorney, instituted a special proceeding to compel the executors to account, with a view to securing his interest in the estate, entered into an agreement in writing with such attorney to pay the latter, in consideration for his services, one half the amount for which the party’s interest might be compromised or settled, giving the attorney a lien on said sum, and stipulating not to compromise his claim without the attorney’s knowledge. The will conferred upon the executors a power to sell decedent’s real property.—Held,</p> <p>1. That such agreement was valid and binding upon the party.</p> <p>2. That none of the real property unsold by the executors, under the testamentary power, could be included in estimating the value of the party’s interest,—the executors not being bound to account therefor.</p>

<p>Hearing of objections to account of executor, filed in proceedings for judicial settlement.</p>

Order to show cause why executor should not be punished for contempt for refusing to pay to petitioner $106, awarded to him as stenographer’s fees by decree admitting will to probate.

<p>Petition for payment of legacy.</p>

<p>Motion for stay of proceedings, pending appeal from decree granting letters of administration with decedent’s will annexed.</p>

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

<p>Application, by proponent of decedent’s will, for leave to withdraw same from the files of the court.</p>

<p>Hearing of exceptions to report of referee, to whom were referred the account, and objections thereto, of the executor of decedent’s will, in proceedings for judicial settlement.</p>

<p>Petition by alleged creditor, for disposition of decedent’s real property for payment of debts.</p>

<p>Application for examination, de hene esse, of witness, in proceedings for probate of will.</p>

<p>Motion by William C. Brewster, to revoke and cancel letters of administration of decedent’s estate, granted to the public administrator.</p>

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

<p>Settlement of decree, in special proceeding instituted for the revocation of probate of decedent’s will.</p>

<p>Application for probate of decedent’s will, and for grant of letters of administration with the same annexed.</p>

<p>A Surrogate’s court will not pass upon proposed findings, in a controversy which has been before it, except upon the settlement of a case made for the purpose of an appeal from its determination.</p>

<p>Whether an undertaker, who has furnished a funeral for a decedent’s remains can, upon his own application, procure an order directing the. executor or administrator to pay the reasonable expenses of such funeral—qucere.</p>

<p>The rule that, so far as the formalities of execution are concerned, a will is sufficiently proved by proof of the due execution of a codicil unmistakably referring thereto—applied.</p>

<p>Under L. 1860, ch. 360, declaring that no person leaving a husband, wife, child or parent shall devise or bequeath to any benevolent, etc., society more than one half of his estate, after the payment of debts, the value of the whole estate owned by a testator at the time of his death is to be reckoned, including property of which the will expressly states that it omits to dispose.</p> <p>As to whether a Surrogate’s court has authority to direct an executor to expend funds of his decedent’s estate, to discover facts, the disclosure whereof is necessary to enable the court to construe the will as prescribed in Code Civ. Pro., § 2624—qucere.</p>

<p>Application for citation to public administrator and chamberlain of New York, to show cause why certain moneys should not be paid over to petitioner.</p>

<p>Applications for letters of administration of decedent’s estate.</p>

<p>Application for probate of will.</p>

<p>Application to punish administrator and his counsel for contempt.</p>

<p>Testator, by his will, gave “ the rents, interest and entire income,” of his estate to his wife during widowhood ; expressed a desire that she and their son should have a home together ; and authorized and directed the executors, in case the entire income proved insufficient to the comfortable support and maintenance of his wife, or of herself and son if residing together, to pay and advance out of the principal of his estate such sums as were requisite for the purpose mentioned.—</p> <p>Held, that the ordinary rule which requires a trustee to exert himself equally for the protection of life tenant and remainderman, and to see that, at the death of the former, the latter should come into possession of all the property from which the former had derived income was inapplicable ; and, the son having died, that the entire estate must be exhausted, if necessary for the comfortable support and maintenance of the widow.</p>

Petition by decedent’s widow, who was a beneficiary under his will, for a judicial settlement of the account of the deceased executor.

<p>Testator, by his will, directed the executors to cause his seat in the Xew York Stock Exchange to be sold as soon after his decease as possible, and also to collect and receive “ the amount of insurance upon my ” (his) life ” from that exchange, and out of the proceeds of his estate, to pay the sum of $20,000 to C., who proved to he his sole surviving next of kin, and to whom, by the constitution of such exchange, the gratuity referred to in the clause quoted was payable. C. collected from the exchange $10,000, on account of the gratuity, less a discount made in consideration of advanced payment. Upon the settlement of the executors’ account,—Held,</p> <p>1. That, in collecting the gratuity fund for her own use, C. must he deemed to have received $10,000, on account of her legacy.</p> <p>2. That C. was entitled to legal interest upon the remaining $10,000 from the expiration of one year from testator’s death; and that the executors were entitled to interest on payments already made by them on account of the legacy, at the like rate from the times of the respective advances.</p>

<p>Construction of will, on judicial settlement of account of administrators with the same annexed.</p>

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

<p>Application to compel a judicial settlement of administrator’s account.</p>

<p>Petition for leave to sue temporary administrator of decedent’s estate.</p>

<p>An executor or administrator cannot get the judgment of the Surrogate upon a question of paying the bill of counsel for services rendered in the administration of the decedent’s estate, but must rely upon his own convictions of propriety and legality, and await a reckoning upon the settlement of his account.</p>

Hearing of exceptions to report of referee to whom were referred the account of general guardian, and objections thereto, filed in proceedings for judicial settlement.

Hearing of objection to account of executors of, and trustees under, decedent’s will, interposed in proceedings for judicial settlement.

Application of William Wood for an accounting by the executors of and trustees under decedent’s will. Application, for the like relief, made by Mary A. Wood, as administratrix, etc., and in behalf of her infant children.

Application by Anna R. Tietjen, decedent’s widow, to compel payment to her of moneys alleged to be due and payable to her under decedent’s will.

<p>Application for revocation of letters of surviving executor of decedent’s will.</p>

<p>The residuary estate of decedent was given by his will to the executors, in trust to pay, out of the income, an annuity to his widow during her life or widowhood, and, during the same period, to distribute the excess of income, beyond the annuity, as follows: one third to his sister A., or, if she should die before the death or remarriage of the widow, to her children; one third to his sister B., with a like contingent substitution; and the remaining third “ to the children of my (his) sister C., equally.” One of the children of C. having died, her husband, as administrator of her estate, applied for a decree directing payment to him of his intestate’s share of surplus income, which had accumulated during her lifetime and that of the widow, who was still living and unmarried. A referee, to whom the matter was referred, having found in favor of the application,—</p> <p>Meld. that, unless clearly expressed or implied in the will, an intention should not be attributed to testator, that the share of the deceased child of 0. should pass to her legal representative rather than to the survivors; but that the question should not be finally determined until all tlie children of 0. had been made parties.</p>

<p>A decree, refusing probate to an alleged will, directed the temporary administrator of decedent’s estate to make certain payments, as costs, out of such estate.—</p> <p>Held, that this decree made the administrator a party to the special proceeding of which it was the determination, and gave him a standing which justified a motion on his part for its modification.</p> <p>A Surrogate’s court is without authority to direct a temporary administrator of a decedent’s estate to pay thereout any sum as costs of a special proceeding instituted to procure probate of the will.</p> <p>Costs, when allowed, must be awarded to parties and not to their counsel.</p> <p>A per diem allowance, for time occupied in preparing for trial, is permissible only in respect of accounting proceedings, as specified in Code Civ.</p> <p>Pro., § 2502.</p>

<p>One claiming to be decedent’s widow and, as such, entitled to letters of administration of his estate, having moved for the revocation of such letters previously issued to others, and supported her application by her affidavit of personal transactions and communications between herself and decedent, respondents objected to the evidence as incompetent under Code Civ. Pro., § 829.—</p> <p>Meld, that respondents had relieved petitioner from the disqualification contended for, by putting in evidence declarations of decedent denying the relationship upon which the application was based.</p>

<p>Special proceeding instituted for the discovery of assets of decedent’s estate.</p>

<p>Application for probate of will.</p>

<p>Application by judgment creditor for decree directing payment of his claim.</p>

<p>A policy of insurance upon the life of a decedent, who at the time of his death was not a resident of the State, issued by a domestic corporation having its principal office in New York county, is an asset which, under Code Civ. Pro., § 2478, confers jurisdiction upon the Surrogate’s court of that county to grant letters of administration of the estate, though the instrument is without the State at the time of the application.</p>

<p>A Surrogate’s court has the same authority to determine a disputed claim by or against the accounting party, upon the settlement oí the account of a temporary administrator, as upon that of an executor or administrator in chief.</p> <p>This includes the competency to adjudicate upon a claim of a debt alleged to be due to the estate of the decedent, from the temporary administrator, and others jointly.</p> <p>A temporary administrator appointed, trader Code Civ. Pro., § 266S, subd. 1, “where delay necessarily occurs in the granting of letters testamentary,” etc., goes out of office, of course, upon the issuance of permanent letters, but his official bond is not ipso facto functus officio.</p>

<p>The possibility that an event, upon which a testamentary limitation, suspending the absolute ownership of personal property, is to determine, may occur later thaii at the expiration of two lives in being at the death of the testator, avoids the disposition.</p> <p>Testator, by his will, gave the residue of his estate to his executor, intrust, to sell the same, invest the proceeds, and pay out of the income a life annuity to A. and B., respectively, and the balance to his daughter C., for life; providing that, as A. and B. should severally die, their annuities should fall into the income payable to O.; and upon C.’s death, the principal, “ as the same is relieved from the payment of the life interest” mentioned, be divided among specified persons.—</p> <p>Held, that, inasmuch as, if C. survived neither or both of the annuitants, no distribution could be effected until the termination of the third life; while no intimation was given as to what portion of the principal should be “ relieved ” upon the death of C. and one annuitant, the scheme was wholly invalid, as being in contravention of the statute (1 B. S., 773, § 1).</p>

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

<p>Application for probate of codicil to decedent’s will.</p>

Application by Talbot W. Chambers, one of the executors of decedent’s will, for an order directing a deposit of money and property to the joint credit, and in the joint custody, of himself and his co-executor.

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

<p>Application for order requiring proponents of decedent’s will to produce and examine witness on trial.</p>

Motion by Arthur Terry, an alleged creditor of decedent to compel Lucy E. Musgrave, to whom ancillary letters testamentary had been issued, under decedent’s will, to give an official bond.

<p>Determination of question arising upon judicial settlement of account of personal representatives of decedent.</p>

Determination of contest as to attorney’s lien for services, upon share of next of kin of decedent and beneficiary under his will; and of an application by the latter for an allowance out of the estate.

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

<p>Order to show cause why administratrix should not be punished for contempt in disobeying decree directing the payment of money.</p>

<p>Petition by Agnes E. Tracy, an alleged creditor of decedent, for a decree directing payment bf her claim.</p>

<p>One otherwise entitled to letters of administration will not be rejected under 2 R. S., 75, § 32, on the ground of improvidence, unless it is shown that he is so destitute of care and foresight in the management of property that the estate and effects of the decedent would be likely to be unsafe and liable to be lost and diminished, in case administration thereof were committed to him.</p>

<p>Executors to -whom their testator has given his estate in trust to apply the income to the use of an infant daughter for life, with authority “in their discretion to apply, if necessary for her support, such part of the principal as they may think necessary,” etc., will be directed by the court to make suitable payments out of the principal, where it appears that they have not honestly and in good faith exercised the power with which they were clothed.</p>

<p>Hearing of objections, interposed by legatee, to account of executor of decedent’s will, in proceedings for judicial settlement.</p>

<p>Construction of decedent’s will, upon judicial settlement of account of executor thereof.</p>

<p>The time of the passage of an act of the legislature, approved by the executive, is the day when it receives such approval, as certified by the secretary of State.</p> <p>As to whether the statute, L. 1885, eh. 483, entitled “an act to tax gifts, legacies and collateral inheritances in certain cases,” commenced and took effect on the day of its passage, or on the twentieth day thereafter—qumre.</p> <p>Words of a statute should not be treated as surplusage, if, upon any fair and reasonable construction, they are found to serve an intelligible purpose.</p> <p>The opening clause of the first section of the act cited, viz. : “after the passage of this act,” is grammatically related to the word “ pass ” or “die,” in that section occurring ; and is operative to subject to taxation property passing, in the manner specified, to one not exempt, from an owner dying after June 10th, 1885.</p>

<p>Rights of inheritance, and of testamentary and intestate succession, being creatures of the municipal law, are entirely subject to its control and may be regulated, restricted and, it seems, even abrogated by statute. L. 1885, eh. 483, entitled “ An act to tax gifts, legacies and collateral inheritances in certain cases,” is to be properly regarded as imposing a tax upon the devolution of and succession to a decedent’s property, and not upon the property itself.</p> <p>The will of testatrix directed the executors thereof, as soon as convenient after death, to sell for cash all bonds which she should own at the time of her death, collect all moneys due, and divide and pay, out of the proceeds of sale and other funds, certain pecuniary legacies. No allusion was made to the possession of United States bonds, although a portion of the estate consisted of such securities. The executors, upon their accounting, having asked credit for a payment of moneys made to the comptroller under L. 1885, eh. 483, certain legatees objected and asked to be relieved from the burden imposed upon them so far as concerned the value of the bonds in question, upon the ground that the same were exempt from taxation.—</p> <p>Held, that the tax imposed and paid was not upon property but upon the passing thereof ; that the fact that a portion thereof consisted of government securities was immaterial; and that the objection must be overruled.</p>

<p>Testator, by his will bequeathed to Lizzie 0. Williams “all the furniture, bedding, ornaments and paraphernalia ” of which he died possessed.— Held, that a watch and a few articles of clothing and jewelry, which the inventory disclosed, were the paraphernalia, to which the legatee was entitled.</p>

<p>Where the circumstances of one of two testamentary trustees are such as not to afford adequate security for the proper discharge of his duties, he cannot be relieved from furnishing a bond by establishing the solvency and responsibility of his associate.</p>

<p>Hearing of exceptions to report of referee.</p>

Petition by John C. Minturn, a beneficiary under decedent’s will, praying for a decree requiring the executors to pay to him certain income alleged to be due and payable to him by the terms of that instrument.

During the progress of a reference of the account and objections thereto, of the executors of decedent’s will, certain questions arose for the determination of the court, the nature of which appears from the opinion.

<p>Where a testator’s residuary estate is held in trust, and occasion arises for the appointment of an administrator with the will annexed, the beneficiary of the trust is entitled to letters in preference to the trustee. Matter of Thompson, 28 How. Pr., 581—followed.</p>

<p>Construction of will upon application for its admission to probate.</p>

<p>The decedent left a last will and testament, in and by which he gave his estate, real and personal, to his wife, Antoinette, and to Gould J. Jennings, his executors, in trust, for the purposes therein specified. They were directed to convert the personal estate into money, and sell and convey all of his real estate, except the house and lot in Yonkers where he resided, which, with the furniture therein, he gave to his wife for life. He then proceeded to make a disposition of the remainder of his property, thus: he ordered and directed to be paid five legacies, of ¡$1,000 each, to certain persons and classes named. Then followed the sixth clause:</p> <p>u Sixth; I order and direct my said executrix and executor to invest, upon bond and mortgage, at the largest rate of interest practicable, all the rest, residue and remainder of the avails of my said estate, and pay to my wife, Antoinette, the net increase and income arising therefrom, semiannually, during her natural life, for her use and support, which, together with the bequest to her heretofore made, is to be received and accepted by her in lieu of all dower and right of dowTer. After the demise of my wife, I order and direct that the said premises, known as No. ninety-nine Warburton avenue, together with the said household furniture, be sold, and the proceeds of such sale, together with the principal of the fund for her benefit invested, shall be equally divided, and one portion thereof paid to my son Robert Alexander Barry; one portion thereof to be paid to my daughter Rebecca Shinn Ireland, wife of Henry Ireland, deceased ; one portion thereof to my daughter, Elizabeth Ann Jennings, wife of Joseph H. Jennings, for her sole and separate use during the term of her natural life, and from and immediately after her decease to be equally divided among the children of her, the said Elizabeth Ann Jennings, her surviving, share and share alike; one portion thereof to the children of my deceased daughter, Priscilla Chandler Bowne, in equal portions; and the remaining portion to my grandson, William Robert Hull. In case of the death of any or either of my said children, Robert Alexander Barry, Rebecca Shinn Ireland, Elizabeth Ann Jennings or my grandson William Robert Hull, before having received the portion above devised to them, and leaving issue him, her or them surviving, I order and direct that the same be divided among the children of the deceased, equally, share and share alike. In the event of any or either of my said children, or my grandson, thus dying without leaving issue them surviving, I order and direct that the portion, to which he or she would have been entitled, be divided equally among the survivors'of them, share and share alike.” Robert A. Barry, William R. Hull and Mrs. Ireland died before the widow; all leaving issue except Mrs. Ireland. The testator had a claim of $2,000 against the grandson, Hull. The executors subsequently recovered a judgment against him for the same, which was now presented as an off-set against the share of the estate belonging to his children. The amount of the estate, including the debt against the grandson, and exclusive of the house devised to the widow for life, was about $22,000. That house, since her death, had been sold for $7,000. The executors were both dead, and Joseph G. Jennings was noAV the administrator, with the will annexed.</p>

The petition, presented with a view to obtain a citation requiring the proper persons to attend the probate of the will of decedent, stated the jurisdictional facts, and also the names and places of residence of the heirs at law and next of kin. One of these was a minor, under fourteen years of age, residing with its father at Greenwich, in the state of Connecticut. The others were of full age, residing in Westchester county.