Volume 5 — Mills's Surrogate Reports

<p>Appeal from an order determining that the above estate was-not subject to ;a transfer tax.</p>

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

<p>Proceeding for judicial settlement.</p>

Mortimer G. Ireland has presented to the ¡Surrogate’s Court of Saratoga county his petition alleging among other things, that David Ireland died at Greenfield, Saratoga county, on or about the 23d day of February, 1905, and was, at the time of his death, a .resident of the town of Greenfield, in that county, and left no last will and testament; that the petitioner is one of the grandchildren of the decedent; that letters of administration were issued on the decedent’s estate…

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

<p>Proceedings for an intermediate accounting of an executor.</p>

<p>Transfer tax — Remainder in realty in New Jersey — Transfer under POWER OF APPOINTMENT NOT TAXABLE.</p> <p>Where property which passed under the will of decedent’s mother, who died in 1874, a resident of this State, was an interest in the estate of her father which was at the time of her death, actually and physically real property in the State of New Jersey and she by her will, which contained no words justifying a conclusion of equitable conversion, leaves a share of her estate in trust, the income to be applied to the use of her son during his lifetime, with a power of appointment to him as to the remainder in such share, a transfer thereof which became operative by reason of the exercise of such power of appointment is not taxable under the Transfer Tax Law, although he died a resident of this State, and his last will was proved therein.</p>

<p>Surrogates’ Courts — Administration in cases or intestacy — Eight to letters — Objection to granting letters — Improvidence — Conviction oe crime—Code Crv. Pro., § 2661.</p> <p>An objection to granting letters of administration to a son, otherwise entitled to receive them, upon his father’s estate, on the ground that he had failed in a business conducted in his own name and involved his father somewhat and, then, the father having paid the son’s obligations and taken the business and permitted the son to use his name, other losses had occurred, though the father permitted the business to be continued in this way until his death, and that the son had, after his father’s death, drawn checks which were paid by the bank, does not present such a case of improvidence as comes within the provisions of section 2661 of the Code of Civil Procedure.</p> <p>Nor is the conviction of the son of a misdemeanor in the United States court, for which he was fined fifty dollars, the conviction of an infamous crime within same section.</p>

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

<p>Recording foreign wells — Proofs inadequate — Execution of well „ MUST BE ESTABLISHED AS REQUIRED IN . THIS STATE.</p> <p>Under the provisions of the Code of Civil Procedure for recording-foreign wills (§§ 2703, 2704) a will should not be ordered to be recorded in a surrogate’s office of this State where the proof rests on the testimony of one of two witnesses without any excuse for, or explanation of, the absence of the other. That the will has been executed in conformity with the laws of this State must be established in the manner pointed out by our law.</p>

Application under section 2685, subdivisions 2 and 5, Code of Oivil Procedure, for a decree revoking letters testamentary, heretofore issued to George M. Burr, as one of the executors of the estate of Henry A. Sheldon, deceased.

<p>Executors and administrators—Appointment and qualifications— Bight to administer—Banking corporation named as executor— Its right lost when, on merger with trust company, its corporate existence ceases.</p> <p>Where a testator named as Ms executor a strictly banking, corporation, a title guarantee and trust company, organized under a special -act of the legislature, in which no specific mention is made of power to act as executor or administrator, does not succeed to its rights to act as executor by virtue of a merger with the former corporation, made after the execution of the will, by which the former’s stock was retired and it went out of business as a separate corporation.</p>

<p>Executors and administrators—Articles set apart for survivor and children—Waiver op right by widow.</p> <p>Where a man having a family dies, leaving a widow or minor child or children, and not having, at the time of his death, the articles enumerated in subdivisions 1, 2, 3 and 4 of section 2713 of the Code of Civil Procedure, there can not be set off as exempt a sum of money equivalent to the value of such articles, or of such of them as the decedent was not possessed of at the time of his death.</p> <p>Under subdivision 5 of said section authorizing other necessary household furniture, provisions or other. personal property, in the discretion of the appraisers, to the value of not exceeding $150 to be set apart, it is the duty of the appraisers to set apart property to the amount of $150, and if they omit this duty the surrogate may require the representative of the estate to make good the deficiency.</p> <p>But where it appears that the widow was present at the appraisal and, when the question of exemptions was discussed, had stated that she was satisfied with what had been set off to her and preferred that the rest be used to pay the debts of the decedent so that no claims would come against the real estate which had been held by her and her husband jointly and the full -title to which had, therefore, become vested in her and the appraisers had acted upon her suggestion and the executor had disbursed the entire personal estate; held, that the widow had waived her right and is now estopped from asserting the same; and that, by the terms of said subdivision 5, the minor, children have no interest in the exemption for which that subdivision provides.</p>

<p>Wills—Interpretation and construction—Cy pees doctrine—Personal PROPERTY LAW-SUSPENSION OP OWNERSHIP.</p> <p>Where a testator, after certain specific bequests and annuities to his wife and son, left to his three daughters one hundred dollars per month for ten years and provided for the distribution between them of his residuary estate, consisting wholly of personal property, at the end of that period, and further provided, first, that, in the event of the death of either daughter before the distribution of his estate, leaving issue, the monthly payments to which the parent would have been entitled should be paid to such issue; and, second, in case of the death of any daughter without issue that her share should be divided equally among such of his daughters as should survive at the time of distribution, Held:</p> <p>The daughters took their shares and interests in severalty; each daughter took a vested future estate in one-third of the residuary estate, subject to be defeated by her death prior to the time of distribution; and, also, a future contingent estate, by way of cross-remainder, in the share given to each of her two sisters in the event of the death of such sisters, or either of them, without issue, within the ten-year period; but, as the vested future estate of each daughter was liable to be divested by her death before the period for distribution, she had not absolute ownership and could not absolutely alienate her share until the time for distribution arrived; and, by reason of the provisions for contingent estates to the issue of the daughters, it is impossible, presently, to ascertain who will take them in the event of the parent’s death, for the issue take as a class, uncertain in number and ascertainable only upon the happening of the event, that is, the death of the parent; but as these estates then vest, absolutely, and upon the death of each daughter, the power of alienation is by these provisions suspended, as to each share, but for the life of a daughter, or for one life in being.</p> <p>But, in respect to the future contingent estates created in the daughters by way of cross-remainders, in the event of the death of one or more of them without issue, a difficulty arises, for these cross-remainders are to such of the daughters as may survive at the time • fixed for distribution, at the end of the period of ten years from the death of the testator, a period not measured by lives in being; and it might be that, under the terms of the will, the ownership of the share of the daughter first dying and the power absolutely to alienate that share should be suspended during the lives of both the other daughters and a period of years in addition thereto.</p> <p>The scheme of the testator was, first, to make certain provision for his widow and son and to charge the payments to them upon his entire estate for the first ten years after his death, and, then, to provide for them by the purchase of annuities from an insurance company; and, second, to secure to his daughters the payments of one hundred dollars per month during the ten-year period and the division between them of the rest of his estate at the expiration of that period, if, as was probable, they should then be living; but, if either should have died, leaving issue, that such issue should take the parent’s share; and, finally, if either should have died without issue that her share should go to her surviving sisters. This testamentary scheme was carried out by the provisions of the will without contravention of the statutes, except as to the cross-remainders, upon the death of a daughter without issue and, as to those remainders; provided for in the eighth paragraph of the will, the statute is contravened only by so much thereof as provides that only such daughters should take as might survive “ at the time of such distribution or payments,” that is, at the expiration of the ten-year period; but these words which alone offend may be eliminated, while preserving the testamentary scheme substantially intact, and they should be so eliminated, as they may have been intended by .the testator to relate to the time of division, and not to create a conditional limitation respecting the persons who were to take, and although they constitute but part of a sentence, since they may be separated without doing violence to the other portions of the will.</p> <p>The surplus income and earnings of the estate belong to the three daughters, in equal shares, as the persons presumptively entitled to the next eventual estate.</p>

'This is an application by one of the heirs-at-law and next of kin of William Ashmore, deceased, for a decree, revoking the letters of temporary administration heretofore issued herein to John E. Richardson and Rachel Ashmore.

Proceeding under section 2750, Code of Civil Procedure, for the sale of real estate of deceased for the payment of a debt alleged to be due petitioners as executors.

<p>Motion to dismiss petition.</p>

<p>Executors and administrators—Aepointment and qualifications—■ Pardon removes disability of one convicted of crime.</p> <p>The pardon of one who has been convicted of an infamous crime removes his disability, under section 2612 of the Code of Civil Procedure, to act as an executor.</p>

<p>Proceeding upon the 'account of an administrator.</p>

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

<p>Proceeding for the appointment of an administrator with the will annexed of the goods, etc., of Jane Davis, deceased.</p>

<p>Descent and distribution—Persons entitled to share—Collateral KINDRED OF DIFFERENT DEGREES-CODE OF CIVIL PROCEDURE, § 2732,. Sub, 12.</p> <p>Where the only next of kin of a testator whose will contained no residuary clause, are nephews and nieces and children of deceased' nephews and nieces, the grandnephews and grandnieces take by representation the shares of the testator’s personal estate, undisposed of by his will, which their respective parents would take if living.</p> <p>Where the only next of kin of an intestate are first cousins, second cousins and third cousins, the second and third cousins share perstirpes in the personal estate.</p>

<p>Proceedings on judicial settlement of account of administrator' with will annexed.</p>

This is a proceeding under section 2707 of the Code of Civil' Procedure, authorizing proceedings to discover property of the estate withheld from the executor or administrator, founded upon a written petition, duly verified, setting forth that a sum of money amounting to about twelve) hundred dollars, which was in the possession of the deceased within two years prior to her death, is in the possession or under the control of one Frank Stumpf, who was about the person of the…

<p>Wills—Interpretation—Legacies and gifts of income—Legacies for support—Discretion of executor.</p> <p>Under a bequest of certain corporate shares in trust to receive the quarterly dividends thereon and pay over to the son of testatrix so much thereof as should be necessary, in the judgment of the trustee, for the support of the beneficiary during life, with, first, a provision that upon his death the trustee should pay from said stock and the accumulation of dividends, if any, not used for the support of the beneficiary, a cash legacy of $1,000 and, finally, a bequest of the remainder of the stock and accumulated dividends to two other sons in ■equal shares; held, that the testatrix did not intend to devote any part of the shares bequeathed to the support of the life beneficiary.</p> <p>It appearing that the life beneficiary was sick with grave diseases, -suffering from serious injuries received in the course of military service, a victim of epilepsy, unable to work or earn anything, having no income except a soldier’s pension which, together with all the income from the shares in question, would be inadequate for his support; held, that it would be an abuse of discretion for the trustee to withhold from him any part of the income arising from the trust fund, and a decree should be made directing the trustee to pay it over.</p>

<p>Wills—Interpretation—Description of persons—Particular terms of-DOUBTFUL MEANING-“ ABOVE SAID NIECES.”</p> <p>Where a testatrix directed that, upon the death of one to whom she gave the residue of her money for life, it should be divided between “ the above said nieces that has received no money,” held, that the testatrix intended such division to be made between all her nieces whom she had mentioned as a class, and not between those only whom she had mentioned by name.</p>

Proceeding upon a petition for the judicial settlement of the account of a testamentary trustee and for leave to resign.

<p>■Guardian and ward—Custody and support of ward—Custody and management of ward’s estate—Interest when chargeable to guardian.</p> <p>Where, in a proceeding to compel a brother to settle his account as general guardian of his sister, after the examination of bank records, it appears that he received from a former guardian seventy-five dollars more than he charged himself with and by a supplemental account that sum is included, but no proof is offered by him as to what investment or other disposition was made by him of said amount, his account may be surcharged with such an amount as said sum would have earned, if deposited in bank, from the time of his appointment to the judicial settlement of his accounts.</p> <p>Where the former general guardian paid to the accounting guardian out of the ward’s funds a sum of money as a loan, upon his express promise to repay the same, the money to be used to defray the funeral ■expenses of a deceased brother, and the fact of receiving the money is not controverted by the accounting guardian, the indebtedness to his ward, though incurred prior to his appointment, passed to him from the former guardian as a chose in action against himself individually and his account may be surcharged with such sum, together with interest thereon to the amount it would have earned had it been ■deposited in bank from the time of his appointment to the judicial settlement of his accounts.</p> <p>Such a credit for board and maintenance of the ward may be allowed upon the accounting by the guardian as would have been authorized if an application therefor had been made in advance.</p> <p>The facts and circumstances indicating a lack of fairness and suggesting a disposition on the part of the guardian to deplete the estate of his sister, commissions to him are denied, and costs awarded against him personally.</p>

<p>Wills—Interpretation—Terms creating legacies and gifts of income —Interest on legacy—On legacy in lieu of dower.</p> <p>A legacy in lieu of dower does not draw interest until one year-from the issuance of letters testamentary.</p> <p>Where a testator by an ante-nuptial agreement has agreed that his. executors should pay his wife within six months after his death four thousand dollars, with interest thereon from the date of his death,, to release her dower and to make no claim of any nature against his. estate, a direction to his executors to pay such sum is unnecessary except for their information as to the existence of said agreement; and, where, in addition thereto, he directs the payment of six thousand dollars, the words “ which sums aggregating ten thousand. (10,000) dollars are to be accepted by my wife in full satisfaction and in lieu of dower in my real estate, as agreed between us in said ante-nuptial agreement,” are surplusage and of no legal importance, and the six thousand dollars is a general legacy which draws interest from one year after letters testamentary are issued.</p> <p>Modified, 116 App. Div. 455.</p>

<p>Gifts—Forms in bank—Executors and administrators—Compensation —Particular services ; rights and liabilities between representative AND ESTATE—ALLOWANCE—COUNSEL FEES.</p> <p>Where a mother causes her savings bank account to be changed to herself and son “ payable to either or survivor ” and retains possession of the bank book until her death, and the evidence indicates nothing more than that if any of the deposit remained at her death then the son should do what was right with it towards all her children, there is no gift to the son and he is properly charged in his account, as administrator of his mother’s estate, with the amount of such deposit at the time of her death and accrued interest.</p> <p>The commissions of an administrator are full compensation for looking after the personal property of the estate and for loss of time from his usual occupation, and an item for such services will be disallowed.</p> <p>Neither the services rendered by counsel in aiding the administrator to establish his individual claim against the estate nor the disbursements incurred in the same effort may be paid for out of the assets; but costs payable out of the estate may be allowed to those who, in effect, represented the estate upon the questions litigated upon the accounting.</p>

<p>Proceedings for the judicial settlement of the account of a testamentary trustee.</p>

<p>Contracts—Interpretation—Mode of compensation—By will—Refusal TO MAKE STIPULATED COMPENSATION.</p> <p>Executors and administrators—Debts and liabilities of estate—Enforcement of claims—Claims by persons in confidential relations.</p> <p>Limitation of actions—Accrual of cause of action—Breach of agreement TO COMPENSATE BY WILL.</p> <p>Where a stranger, who had previously to her marriage lived with deceased and his wife, is induced to break up her own home and to go with her family and live with him after the death of his wife upon a general understanding as to the household expenses and upon hisi explicit promise that he would make her the sole beneficiary under his will; and, in consequence of friction between the parties caused by certain habits of deceased which were distasteful to her and her family and his ill temper, he terminated the contract and left a last, will which completely ignored her, she is entitled to recover the reasonable value of services rendered to him.</p> <p>The Statute of Limitations did not begin to run against her claim until the death of the deceased, although she left his house when he. terminated the contract.</p> <p>A contention that she could not recover upon the principle that services between parent and child are presumed to be rendered gratuitously, is untenable; as such a relationship did not exist between the-parties, and, irrespective thereof, the deceased had specifically promised to pay the claimant by making a testamentary provision-for her.</p>

<p>Proceeding for the judicial settlement of the accounts of an executor.</p>

<p>Proceeding for -the distribution of surplus moneys arising on foreclosure.</p>

Proceedings upon the judicial settlement of the accounts of Walter K. Trelease and Mary A. Trelease, as executors of the last will and testament of Francis A. Trelease, deceásed.

<p>Executors and administrators—Administration in general—Jurisdiction TO COMPEL ACCOUNT BY FOREIGN REPRESENTATIVE: DISTRIBUTION OF ESTATE-COMPUTATION OF SHARE OF REPRESENTATIVE.</p> <p>Dormer adjudication—Who are concluded—Heirs and personal representatives: What matters are concluded—Receipt of assets by REPRESENTATIVE NOT LAWFULLY ADMINISTERED BY HIM.</p> <p>In the absence of an application by a foreign executor for ancillary letters in this State, or his consent to the appointment of any person by a Surrogate’s Court therein as ancillary administrator or administrator with the will annexed of the estate of his testator, to whom letters of administration had been granted in this State upon the estate of his deceased brother, the court is without power to appoint any person to represent the estate of said deceased brother or to procure or state any account of the deceased administrator.</p> <p>Where it is shown that an administrator has wrongfully converted $5,000 of the assets of the estate of his decedent, no presumption arises that he has not made away with more and, in every case before any inference may be indulged in his favor, an accounting must be rendered of his administration.</p> <p>The sole asset of an estate received by an administrator de bonis: non was the amount collected by action of the surety upon the bond of a brother of decedent as administrator of his estate to make good the default and conversion by the administrator of $5,000 of funds of the estate. The administrator died a resident of another State and neither he nor his executors accounted in this State for his acts as administrator and his executor refused to apply for ancillary letters in this State or to consent to the appointment of an ancillary administrator or administrator with the will annexed who could be compelled to render an account for the deceased unfaithful administrator. Upon the accounting of the administrator de bonis non there was no affirmative evidence that the deceased administrator did not collect other assets. It was thereupon held:</p> <p>There was no presumption that there were not further assets received by the deceased administrator than those for which the recovery was had.</p> <p>Upon the holder of a claim of one-fourth of the property in the hands of the administrator de bonis non, under an assignment .by the foreign executor of the share or interest of the deceased unfaithful administrator in the estate of the decedent, devolved the burden of proving that no property in excess of the $5,000 was received by the deceased administrator.</p> <p>The foreign executor having had notice of the action which resulted in the collection of the $5,000 and having also selected the counsel" representing the surety as defendant therein, the estate of the deceased administrator was bound by the judgment rendered in said action, the legal effect of which was to determine that he had received' assets of the estate which he had not lawfully administered to the-full amount of the bond given by the surety.</p> <p>Said judgment was a final and conclusive adjudication against theassignee of the foreign executor that the amount charged the surety-of the deceased administrator was not greater than the amount whicha the surrogate would properly require the estate of the deceased administrator to pay to persons other than himself, after a due accounting before the surrogate of his administration of his brother’s estate.</p>

<p>Wills—Interpretation—Description of property—Gift of property to WHICH TESTATOR HAS NO TITLE.</p> <p>Where the only insurance upon the life of a testator in force at his death was' a policy for two thousand dollars payable to his wife and three daughters, his bequests of specific amounts “to be paid out of my life insurance ” are void and of no effect.</p> <p>The language used by the testator merely indicated Ms desire as to how Ms life insurance, which was not subject to testamentary disposition, should be divided among the beneficiaries named in the policy and did not create valid legacies payable from the general estate.</p>

<p>Proceeding upon the final accounting of an executrix. '</p>

<p>Application to impose a tax under the Transfer Tax Act.. The opinion states the case.</p>

<p>Executors and administrators—Subjection of realty to debts—Proceedings therefor—Allegations of names of persons interested.</p> <p>In a proceeding for the sale of the real estate of a deceased person . for the payment of debts and funeral expenses, an allegation in the petition, that the names and number of the heirs at law of the deceased are unknown to the petitioner and she does not know of any person claiming to be such, is insufficient to enable the court to dispense with a citation to such heirs by name and to issue a citation to them as a class. Diligent inquiry to discover them should be shown.</p>

<p>Fraternal and mutual benefit associations—Designation and change. OF BENEFICIARIES AND EIGHT TO BENEFITS—DEATH OF BENEFICIARY BEFORE insured—Particular provisions interpreted.</p> <p>Where it is provided by the rules of a mutual benefit association- ' that, upon the death of a member, $1,000 would be paid to his beneficiary, and a member filed a designation requesting payment to his wife, Mary Sock, and the by-laws of the association provide that, in the event of any designation being made by a member of the association, upon his decease leaving a widow and child the money is payable to the widow, with an express provision following that a. member • may designate any person as beneficiary to whom such money shall be paid; and where the by-laws contain a further provision that in the event of the death of any designated beneficiary such /designation shall be void and new designation shall be required except in the case of a child leaving descendants and that if no such new designation be made the payment shall be made to the persons therein designated in. their order; and where the member’s wife named in his designation afterward died and he remarried, held, that his designation of his first wife was void and that the widow is entitled to the fund under the provision of the by-laws respecting distribution where there is. no sufficient designation.</p>

<p>Consideration—Past consideration and moral and legal obligations— Voluntary services—Note intended to perform functions of will.</p> <p>Negotiable instruments—Actions—Presumptions and burden of proof —Material alterations—Consideration.</p> <p>Where a claim is presented against the estate of a deceased person founded upon a promissory note in the handwriting of the claimant, signed by the decedent, and where the body of the note and the signature were written with a blunt, soft lead pencil, but the words “ value-received with interest ” were written below the signature with a hard, sharp-pointed pencil, these words constitute a material alteration if added after the execution and delivery and the burden rests on the-claimant of showing that they were placed on the note as a part of its execution and before its delivery.</p> <p>Where the claimant does not rest upon the presumption arising, from the giving of the note but gives other proof bearing upon the-question of consideration, she does not, thereby, waive the benefit of the presumption that the note was issued for a valuable consideration; but, if she offers proof showing that it was made and delivered' for a consideration legally insufficient to maintain the promise, the presumption is overcome and it will not be further presumed that some consideration other than that proved and legally sufficient existed.</p> <p>Voluntary services, however meritorious, rendered without expectation of pecuniary remuneration, are never the basis of a legal liability nor a sufficient consideration to support a note given therefor upon which claim is made against the estate of the maker after his death.</p> <p>Where frequent visits to decedent’s family and assistance-in doing the housework and taking care of decedent’s wife for about two months during her last illness and, occasionally, bringing her delicacies to eat and, after his wife’s death, furnishing occasional meals at her house to decedent from time to time, assisting him in correspondence, writing, perhaps, a dozen letters in all for Mm, and lending Mm at one time thirty dollars are proved as consideration for the note and where the circumstances, character and habits of the decedent were such as to render it probable that he would not have incurred a large-indebtedness to the claimant, and those of the claimant were such as to render it improbable that she could have sold him property or loaned him money to the amount of the note, it will be presumed that; the only consideration was the various acts of neighborly kindness thus proved, which did not form the basis of a legal liability on his part nor a legal consideration for the note, and that the note was :given from a desire on the part of the decedent to permit the claimant to participate to some extent in the ultimate disposition of his •éstate.</p>

<p>.Executors and administrators—Rights and labilities between representative AND ESTATE—DEALINGS OF REPRESENTATIVE WITH ESTATE-Purchase of property: Removal of executor—Grounds—Misconduct: Management of estate—Creation of fund to produce income—Fund improperly constituted.</p> <p>An executor, who had entered into an agreement to sell, at over $250 per share, 433 shares of certain corporate stock of which he, personally, owned 255 shares and the estate he represented owned 178 shares, afterwards purchased the 178 shares from one of his co-executors at $150 per share, without disclosing to him such agreement. He also purchased, about the same time, various blocks of the same stock from different holders at about $150 per share. He delivered his own stock and that of the estate, in pursuance of the agreement he had made, and received payment therefor and, having secured the consent of his co-executors to invest the funds of the estate thus realized in certain traction bonds, turned over enough of such bonds, of which he owned a large amount, to the estate to pay for the 178 shares of stock he had purchased. The agreement for the sale of the 433 shares contained a stipulation binding the executor to refrain from engaging in banking business within a certain distance of Buffalo for a given period and provided for some other matters among which was that the agreement might become void if the purchaser should fail to secure enough other shares to control the corporation. The executor claimed that the consideration paid by the purchaser over $150 per share was a “ personal bonus or consideration.” It was held "that the personal transaction and trust sale were so closely commingled that it was impossible to separate one from the other and "that the executor should be charged with the moneys received for the 178 shares under the agreement he had made and that he should be removed as executor upon the application of one of his co-executors.</p> <p>It was further held that, a trust of $10,000 having been created under the will for the benefit of an incompetent son of the testatrix, the deposit of $10,000 par value of the transaction bonds at a market value of 77 was not a proper compliance with the requirements of the will.</p>

<p>Proceeding upon the final accounting of executors.</p>

<p>Executors and administrators—Compensation—Commissions as executors AND TRUSTEES.</p> <p>Where a large portion of the assets of an estate consists of various kinds of property which have not been converted into cash, and the testator’s intention was that the estate was to be managed, in the first instance, by the executors, and then turned over to themselves, as trustees, for their management during the life of the trust, the executors are entitled to full commissions upon the value of the property to be turned over to them as such testamentary trustees.</p>

<p>Will—Interpretation and construction—Payment op debts and legacies—Funds pob payment op annuities—Exonerating personal ESTATE.</p> <p>Where a will, containing no power of sale, directs the division of the estate upon the death of the son of testatrix to whom is given the power to suspend such division, and the payment of annuities to strangers to the bloo,d is specifically charged upon real estate devised to the son, the income of which is sufficient to pay them many times over, the intent to exonerate the personalty is clear.</p>

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

<p>Executobs and administbatobs—Eights and inabilities between bepbeSENTATTVE AND ESTATE-ITEMS CHARGED OB CREDITED-DEBT OF CO-EEPBESENTATIVE.</p> <p>The largest debt due from an estate was to the husband of the-executrix and amounted to about one-half of the amount of the largest asset, which consisted of a joint indebtedness of the co-executor and. his brother, for money loaned, who gave therefor the joint demand notes of themselves and a third party, with interest, payable monthly,, one payable to the husband of the executrix for the amount due him, and one payable to the estate of decedent on the account of the share-of the brother of testatrix and delivered to the executrix for the reason that the language of the will left it in doubt whether one-quarter of the estate vested in the brother at once or was to be held in trust, for him for life, with remainder to his wife an,d issue. After the-brother’s death, it was adjudged that his share in decedent’s estate- - became the absolute property of his widow and infant son in equal shares. Pending the judicial settlement of the account of the executrix, in which her co-executor did not join and was not made a party he died. Held that, in the absence of any evidence of an express agreement to that effect, the giving of the several demand notes did not. operate as a complete discharge of the debt of the executor and his. brother to the estate; that the new notes were new promises to pay a conceded obligation and the provision therein for the payment of' interest and the fact that extensions as to payment were actually given required the inference that the contract of the parties was that, the payment of the principal was extended for a reasonable time, though not definitely stipulated for, and that such extension was a good consideration to hold the other joint maker of the notes; that, the note in question was an asset of the estate, properly placed in the custody of the executrix and, as it is not shown to have been uncollectible her account should be charged with one-half the amount, thereof with interest at six per cent, from the death of the brother of testatrix, payable to the guardian of the infant objectant, with costs. See 60 Mise. 49.</p>

<p>Application for leave to issue an execution upon a judgment recovered against the administrator for moneys paid for the funeral expenses of intestate.</p>

<p>:Executors and administrators—Distribution and disposal of personal estate—Interest—Legacies and shares : Compensation—To ancillary REPRESENTATIVE: COSTS AND DISBURSEMENTS-ON ACCOUNTING BY ANCILLARY REPRESENTATIVE: ACCOUNTING AND SETTLEMENT-Decree—Reservation of questions for further accounting."</p> <p>Upon the accounting of an ancillary administrator, the question of interest on legacies is governed by the law of the decedent’s last domicile.</p> <p>But questions of procedure in the proceeding are governed by the laws of this State and costs and commissions will be allowed.</p> <p>And where the question of the liability of the estate for a transfer tax is involved in a pending appeal, a fund will be reserved for the payment of the tax in case such liability is finally established.</p>

<p>Confession of judgment—General rules—Collateral attack—Judgment CONCLUSIVE ON SURROGATE’S COURT.</p> <p>Executors and administrators—Eights and liabilities between representative AND ESTATE—ITEMS CHARGED AND CREDITED—DEBT OF PERSONAL REPRESENTATIVE TO ESTATE-CONFESSED JUDGMENT: COLLECTION, ETC. OF PROPERTY—INVENTORY—CLAIM AGAINST ADMINISTRATRIX (Code Civ. Pro., § 2714): Articles set apart—Sustenance—Husband’s weabing appabel—Money in lieu of enumerated articles (Code Civ. Pro., § 2713).</p> <p>Upon the judicial settlement of the account of an administratrix of her husband’s estate, she must be charged with a judgment by confession entered against her in favor of her husband in the Supreme 'Court.</p> <p>The Surrogate’s Court cannot adjudicate upon the validity of suck judgment on the ground that it was confessed at the husband’s request and without consideration.</p> <p>Nor can the Surrogate’s Court omit to charge the administratrix with the judgment on the ground that she has no property with which, to pay it.</p> <p>The provision of section 2714 of the Code of Civil Procedure, requiring an executor to include in his inventory any just claim in favor of the deceased against him is equally applicable to the case-of an administrator.</p> <p>An allowance to the widow for necessary provisions for sixty days, after the death of her husband should be made and such allowance should not be limited to what she might consume personally, but. should include what might be consumed by the family of the deceased as constituted at the time of his death.</p> <p>No allowance should be made in lieu of articles enumerated in subdivision 4 of section 2713 of the Code of Civil Procedure where no-such articles belonged to the decedent and those in use in the household belong to the widow, though the contrary doctrine is not wholly unsupported by authorities.</p> <p>The widow is not entitled to have the wearing apparel and ornaments of her husband set off to her as exempt.</p> <p>See 64 Misc. 662.</p>

<p>.Executors and administrators—Eights and liabilities between representative AND ESTATE-ITEMS CHARGED AND CREDITED-DEBTS BARRED BY STATUTE: ALLOWANCE-FUNERAL EXPENSES-UNREASONABLE INI AMOUNT.</p> <p>A claim by an executor for services as undertaker in burying the husband of the testatrix eight years before her death is barred by the Statute of Limitations, and a payment of $400 on account of the claim which is not shown to have been made within six years before her death does not avail to take the claim out of the statute.</p> <p>An executor should not be allowed $329.50 for the funeral expenses of his testatrix whose whole estate did not exceed $500. In such a case, $150 is a reasonable allowance; if the executor desires greater ostentation and display than the estate can reasonably afford, he should pay for it himself.</p>

<p>Proceedings for the revocation of letters of administration.</p>

<p>Wells—Interpretation—Repugnant ob inconsistent provisions—Between WILL AND CODICIL.</p> <p>Where a wife, shortly before the departure of herself and husband" for Europe, executed a codicil, confirming a will by which she gave all' her estate to him, which codicil provided that, " In the event that my> said husband shall not survive me or that we shall die at or about the same time so that he shall not have taken or exercised possession of the property given to him by my said will,” certain legacies should' be paid and the residuary estate should go to brothers and a sister, her intent was to provide against a failure of survivorship and the • death of her husband within a brief interval after her own; and the i husban,d, at his death, five and one-half months after his wife and I' before her will was probated, was entitled to the estate—sixty thou- sand dollars in personalty—under the terms of the will; and the provision of the codicil was inoperative.</p>

<p>.Executors and administrators—Rights and liabilities between representative and estate—Items charged or credited—Uncollected DEBTS DUE ESTATE.</p> <p>An executor is only required to bring to the discharge of his duties the intelligence which an ordinarily good business man would use in like matters.</p> <p>Where an executor, in the course of the administration of his trust, upon being confronted with a question involving intricate propositions of law, in good faith seeks the advice of a competent and reputable attorney and acts thereon, he is not to be held accountable for the consequences of following it.</p> <p>Where an executor upon accounting seeks credit for not collecting a promissory note, an asset of the estate, the burden of establishing the fact that such note is worthless is upon him) the presumption being that the maker is solvent.</p> <p>Where among the assets of an estate was a promissory note for $12,000, dated January 6, 1899, payable one year after date at the residence of the testator, upon which he had indorsed an agreement to give six months’ notice after maturity, if payment was required, and there were also two unindorsed certificates of stock, each for fifty shares of the par value of $100, in a corporation of which the maker of the note was president, as collateral to the note, each of which contained a proviso that the stock was redeemable at par January 1, 1900, and before that date the testator. died, and it appears upon the accounting of the executor that prior to said date he had in good faith consulted a competent and reputable attorney who advised that no proceedings could he taken to collect the note until the expiration of the six months provided for upon the back thereof and that in the meantime no proceeding could be taken to compel the maker to indorse the certificates of stock or have the same redeemed on January 1, 1900, held, that the executor by following such advice -discharged his duty to the estate and is absolved from blame.</p> <p>The fact that testator died before January 1, 1900, did not make it the duty of the executor to collect on that date the amount of the ■stock redeemable on that day and hold the same as collateral with which to meet the face of the note.</p> <p>The testimony on behalf of the execute showed not only that the ■business of the corporation had been declining for several years prior to January 1, 1900, on which day both the maker of the note and the corporation were practically insolvent, but the evidence as a whole Justified the conclusion that, even assuming that the executor was the owner of such stock and in a condition to present the same for redemption, it was extremely doubtful whether the company would have been able to pay any portion of the same, an,d in all probability would have gone into the hands of a receiver, as it did at a subsequent period. The executor, therefore, is not to blame for not collecting the amount of the collateral on January 1, 1900, nor for not •collecting the note on January 6, 1900.</p> <p>Where, after the commencement of an action to recover upon the note, as the result of an examination into the affairs of the maker, it became evident that, for a long period of time, both he and the corporation had been practically insolvent and, after a fruitless endeavor to effect a settlement, judgment is entered and, before supplementary proceedings instituted thereon are terminated, the judgment debtor dies, leaving an estate not exceeding in value $100, the plaintiff executor will be held to have exercised due diligence in an endeavor to collect the note and is entitled to credit for its non-collection.</p> <p>The facts in connection with two policies of insurance upon the life of the maker of the note, in which his wife was named as beneficiary with a proviso that, in the event of her death, the money realized therefrom should be paid to her children, the equitable title to which policies remained in the children notwithstanding that by order of the court the legal title may have been transferred to the father and by him to a loan company in order that the policies might be kept alive and something realized for the children’s benefit, the attorney for the accounting executor admitting that, upon the matter being submitted to him, it was in his judgment impossible fáí ®e executor to have collected such policies, held not to justify holgingfjthe executor responsible as for a devastavit on the note. qrarj89'iq</p>

<p>Evidence—Pbestjmptions—Subvivobship.</p> <p>Where a husband and his wife perish in a common disaster, the question of survivorship is to be disposed of as one of fact, and one claiming through a survivorship of the husband has the burden of proof of establishing that the wife predeceased her husband.</p> <p>Where, upon a contention that the testatrix, who with her husband perished in the disaster of the steamer “ General Slocum ” which caught fire in the vicinity of Sunken Meadow in the East river resulting in a terrible loss of life, predeceased her husband, the evidence ■conclusively established that he was alive up to the moment that the boat was grounded on South Brother island and no witness testifies to having seen the wife after the alarm of fire was given at which time persons commenced jumping into the water to escape the flames or were forced into the water in consequence of the crush and excitement, and from the Sunken Meadow to where the boat was grounded many bodies of those who had been drowned were picked out of the water, one of which is claimed to have been that of the deceased testatrix, but the weight of evidence shows that it was not, the evidence is insufficient to show that she died first; and it must be presumed that they both perished at the same time and her estate must be disposed of accordingly.</p> <p>Reversed, 119 App. Div. 440.</p>

<p>Executors and administrators—Eights and rtabirities between representative and estate—Items charged or credited—Payments toREGATEES.</p> <p>An intestate, survived by Ms widow and nine children, died seized-of real estate and the owner of a manufacturing business conducted under the firm name of himself and a son who continued the business until the property was destroyed by fire, paying in the meantime-to the widow, who was the administratrix, certain sums of money aggregating $4,000; and, after the fire, the son sold such personal property as was not destroyed to a corporation doing precisely the-same character of business and in which he was a stockholder and also acted as general manager. The account of the administratrix, who knew nothing of the condition of the estate or its management, conceded that the entire estate was managed in pursuance of a mutual agreement between her and all the children, but the most that the testimony showed was that the two children who contested the account agreed to permit the profits of the business, if any, to be used by their mother, and there was nothing to suggest that they consented to the entire personal estate being converted and delivered' for the benefit of their mother and the children who shared with her in what she received therefrom. Held, that the amount of personal-property ($7,391.66) which came into the hands of the administratrix and with which she charged herself upon the accounting should' he taken as the basis of the estate subject to credits for assets that proved uncollectible, legitimate loss on sales and sums fairly and" properly paid out.</p>

<p>Proceeding upon the judicial settlement of the accounts of -executors. The opinion states the case.</p>

<p>Trusts—Compensation—Salary fob conducting business : Accounting AND DISCHARGE-CHARGES IN GENERAL; RENTS AND PROFITS-Credits.</p> <p>Where a testator gives all the property pertaining to his business, part of which is a foundry, in trust to continue the business, but to stop the same when the trustees’ management fails to produce a certain profit, and all the residue of the estate is given to the trustees-to collect the rents and income thereof with directions to pay the same to certain designated beneficiaries, the substituted trustee, upon accounting, is under no obligation to charge himself with rent of the foundry and pay the amount so charged into the trust of the residuum of the estate, the net result to the beneficiaries under the trust remaining unaffected whichever course was pursued.</p> <p>Inasmuch as the rent of the foundry was not a running expense of the business, as contemplated by the testator, and as the limitation under which the business was to be conducted has not, therefore, been reached, the business should be continued by the substituted trustee:</p> <p>It appearing that the testator’s widow, one of the original trustees, instead of taking persona, control and management of the business employed a manager at a large salary an,d after a time resigned as trustee, and, with the commission of ten per cent, of the profits of the business which had been allowed to her as compensation, formed a new company of which her second husband was president, who-started a business in opposition to the business which he had managed for her when she was trustee, the substituted trustee is not chargeable with the loss of business during his administration, there being no direct proof of any loss occasioned by any lack of attention on Ms part.</p> <p>Though the substituted trustee, in carrying out the practice adopted by the former trustee, paid himself a salary, but at a reduced expense to the estate, he is not chargeable with the salary so paid; and, moreover, is entitled to Ms commissions.</p> <p>Expenditures, since the death of the testator, for the entertainment of buyers in order to secure their good will, having been approved in all previous accounts, and having been continued by the substituted! trustee and it not appearing that the amounts therefor were improper or incorrect, he should not be charged therewith, though unaccompanied by vouchers, as it will be assumed that the testator, who had adopted such practice, in directing his trustees to carry on the business, contemplated the necessity of their doing the same in order that the business might be managed with the same degree of profit attained during his lifetime.</p>

<p>Application to settle the case on appeal, or to pass upon the requests to find. The opinion states the case.</p>

<p>Proceeding upon the probate of -a will. The opinion states. the case.</p>

<p>Witnesses—Disqualification on ground of interest—Husband and AGENT OF PARTY DISQUALIFIED.</p> <p>Former adjudication—Who are concluded—Judgment against personal REPRESENTATIVES DOES NOT CONCLUDE HEIRS.</p> <p>The husband of the holder of a note, purporting to have been indorsed by a deceased person, who manages his wife’s business under a power of attorney as if it were his own, his wife paying no attention to it and knowing no more about it than if she had no interest in it, the title being in the name of the wife simply to enable the husband who had failed to evade payment of his creditors, is incompetent under section 829 of the Code of Civil Procedure to testify to the circumstances attending the alleged indorsement of the note in a proceeding for the sale of the decedent’s real estate for the payment of his debts including such note.</p> <p>A judgment recovered against the administratrix upon such note does not conclude the heirs at law, though such judgment was recovered after they had knowledge of the suit and an attorney, assuming to represent them but without any express authority and only such as he had by mere virtue of his retainer, joined in a stipulation for the entry of such judgment after the lapse of ninety days under the terms of which stipulation the judgment was entered.</p>

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

Motion to dismiss proceeding or else have same stayed until the disposition of -a case in New York county which covers the-same state of affairs.

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

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

<p>Taxes—Inheritance and transfer tax—Property and interest subject to tax—Federal bonds within the State belonging to non-resident DECEDENT.</p> <p>United States bonds belonging to a non-resident decadent actually within this State at the time of his death in 1891 were not “ property ” within the meaning of the Tax Law, and are not subject to a transfer tax.</p>

Application by the administrator with the will annexed of Michael Kinsella, deceased, asking that respondent, Michael Hogan, as executor, etc., be required to account for the personal estate of Michael Kinsella, deceased.

<p>Application by the surety on the bond of the administrator to open a decree made June 1, 1905, directing the administrator to pay to Jennie E. Murray, $7,088.76, the amount of her distributive share of her father’s estate.</p>

<p>Executors and administrators—Coelection and redution to possession of property—Remedies and procedure—Discovery and surrender OF ASSETS.</p> <p>In a proceeding by an administrator for the discovery and delivery of the personal property of a deceased person, under section 2707 of the Code of Civil Procedure, where it appears that the decedent had. received certain property under the will of her husband which gave to her his estate for life; that the person now in possession of the property had filed a claim against his estate and the claimant, the administratrix and the remainderman had agreed upon a settlement, whereby the administratrix was to have the whole estate for life and whatever remaind at her death should be divided between the claimant and the remainderman; that the claimant had bought out the interest of the remaindermen and that the administratrix had, during-her life, disposed of some of the property and turned over to the claimant, who is also the respondent in this proceeding and the brother of the administratrix with whom she lived, all the rest of the assets ’ she had. received from her husband’s estate including the money de posited in bank most of which he had subsequently applied to her support and expenses of her last sickness and funeral expenses; and it not appearing that there are any creditors to whom she was indebted for her support and maintenance, held, that the administrator has failed to establish any right to the possession of the property in respondent’s possession and his application therefor must be denied.</p>

<p>Upon application for probate of the last will 'and testament and codicils thereto. The opinion states the case.</p>

<p>Executors and administrators—Administrative authority and management OE ESTATE—AUTHORITY AND TOWERS OE SECONDARY, SPECIAL OR QUALIFIED REPRESENTATIVES—QUALIFIED OR LIMITED LETTERS.</p> <p>Limited letters of administration do not restrict the person to whom they are granted to the prosecution of any particular person for causing the death of the intestate, though the petition undertakes to specify the person through whose negligence it happened, but the administratrix may prosecute her action against any person liable.</p>

<p>JExeoutobs and administrators—Appointment and qualifications of PERSONAL REPRESENTATIVES—EIGHT TO ADMINISTER—SURVIVING HUSBAND or wife—Void marriage.</p> <p>Where letters of administration were granted to a woman who claimed to be the widow of an intestate but whose marriage to him was void for the reason that she had a husband living, and where it appears that the intestate, upon discovering that fact, refused to live any longer with her and subsequently married another woman, and the latter petitions to have such letters revoked and administration granted to her, such letters will be revoked.</p>

<p>Taxes—Inheritance and transfer taxes—Payment—Refunding. Surrogates’ Courts—Procedure and review—Orders and decrees— Opening, vacating and correcting.</p> <p>Where in assessing a transfer tax one of the debts of the decedent was inadvertently overlooked, the surrogate may modify his decree by-reducing the tax to the proper amount and may order the excess re-funded.</p>

<p>Appeal from an order of the surrogate of Monroe county "fixing and assessing the transfer tax in above estate.</p>

<p>Objections to the report of J ames J. Barren, referee.</p>

<p>'Wills—The testamentary instrument or act—Revocation—Right to REVOKE, HOW ACCOMPLISHED-CANCELLATION.</p> <p>Where a paper offered for probate as a will of a deceased person came directly from the safe of the decedent and there are no grounds to suspect that it has been tampered with and the signature is canceled by pen marks and below it in decedent’s handwriting are the words “Am going to make a new will;” and where several important changes in the family of decedent have occurred since the paper was drawn, it will be presumed the will was revoked and probate will be denied.</p>

<p>.Executors and administrators—Eights and t.tabtt.tties between representative and estate—Items charged or credited—Expenditures requested by next of kin or legatees.</p> <p>In a proceeding for the judicial settlement of an administrator’s account, where it appears that after the decedent’s death the parties to the proceeding, who were the decedent’s children, united in an arrangement whereby their unmarried sister continued to reside in the f amily home and use the household equipment, which constituted all the decedent’s estate except her jewelry and wearing apparel, and whereby the administrator paid her such moneys as she required for personal and household expenses and paid the interest, taxes and insurance upon the real estate, held, that such disbursements on account of the real estate should be allowed him on the settlement of his account.</p>

<p>Wiles—Teems defining the nature and quality of estates or interests—Future interests and testing—Estates limited on failure of issue.</p> <p>Where a bequest is made to a trustee to pay the income to a certain person for life and the fund is then bequeathed to another with the provision that, in case of the latter’s death “ without leaving issue after the demise of said” life beneficiary, the fund shall go to a third person, the first remainderman, upon the death of the life beneficiary, takes a vested remainder in fee, subject to be divested by his death without issue, in which event the fee will vest in the third person; and the trustee should continue to hold the fund, unless the first remainderman elects to take it upon giving security.</p> <p>Affirmed, 119 App. Div. 104.</p>

<p>Conversion (equitable)—How and ini what cases effected—By testamentary POWER TO SELL REALTY—DIRECTION NOT IMPERATIVE, Dower—¡In what dower may be had—Equitable conversion under will. OF ANCESTOR.</p> <p>Surogates’ Court—Mature and extent of jurisdiction—Probate and construction of wills—Construction-—On accounting.</p> <p>Wills—Interpretation and construction—General rules—Repugnant-provisions—General or primary intent controlling particular or. secondary intent.</p> <p>Where a testator gives both real and personal property to his-executors to be held in trust during the natural life of his wife and gives them power to sell his real estate, a large part of which is unimproved, an intent upon the part of the testator to work an equitable conversion is indicated.</p> <p>In such ease, where the testator provides that upon his wife’s death the estate shall be divided among his children and directs his executors, upon the happening of that event, to pay over to. each son his share, provided he shall have attained the age of' ■twenty-one years, during the lifetime of testator’s wife a son has, no estate or interest in the testator’s lands to which a right of’ dower could attach in favor of his wife but only a right to enforce the trust in equity, the whole estate in law and in equity-being vested in the trustees.</p> <p>Upon -a proceeding for the judicial settlement of the account of-the executors and trustees after the death of the testator’s wife and the distribution of the estate, the Surrogate’s Court has jurisdiction-, to determine Whether, upon a proper construction of testator’s will, there is found an intention to equitably convert the realty into personalty; and the determination of that question disposes of a claim, made by one who was the wife of one of testator’s sons, during the lifetime of testator’s wife and who procured a divorce from him before her death, to dower in the share of such son in, the testator’s real estate.</p> <p>A testamentary provision, in terms disposing of the testator’s-residuary estate without restriction or qualification, which follows carefully drawn provisions creating a trust of his residuary estate, and directing the disposition of both principal and income but omitting final disposition of certain portions thereof upon certain contingencies, will be construed in subordination to such prior provisions and restricted in its application to such portions of the residuary estate of which, under the prior provisions, final dispositions may not have been made.</p>

<p>Taxes—Inheritance and transfer taxes—Assessment—Power of surrogate-TO MODIFY DECREE.</p> <p>Surrogates’ courts—Procedure and review—Orders and decrees— Opening, vacating and correcting—Error of fact.</p> <p>Where, in fixing a transfer tax upon the estate of a decreased person, there is included an item for a tax upon property erroneously assumed to have passed to a son, such error may be corrected by the surrogate within two years from the entry of the order fixing the tax and the tax ordered refunded'.</p> <p>An error in assuming that the property taxed belonged to the decedent’s son was an error of fact although it arose from a misconstruction of the decedent’s will.</p> <p>Affirmed 119 A. D. 119.</p>

<p>Surrogates’ courts—Settlement of claims on accounting by representatives—Claims against representatives.</p> <p>Evidence—Weight and sufficiency—Admission of party—When unduly EXTENDED.</p> <p>Executors and administrators—Eights and liabilities between representative AND ESTATE—ALLOWANCES COUNSEL FEES SERVICES.</p> <p>WHICH REPRESENTATIVE MIGHT HAVE RENDERED.</p> <p>Upon an accounting by an executor the Surrogate’s Court may determine whether property transferred to him by the testatrix,his mother, shortly before her death belonged to the estate or to the-executor.</p> <p>Where, in addition to the fact of the transfer, there is the statement of the executor that Ms mother transferred the property to-him because she could not trust her other children and the further fact that he voluntarily applied a large part to the payment of a mortgage upon his mother’s -property, it may be inferred that the transfer to him was in trust to apply that part to such purpose for the common benefit of the family, but a finding that the balance-belongs to the estate is not justified.</p> <p>Payments to attorneys for services which should have been performed by the executor will not be allowed; nor will a bill for attorney’s- services in an unsuccessful endeavor to remove his co-executor.</p> <p>See 70 Mise. 467.</p>

<p>'Suspension of power of alienation—Conditions determining validity OF SUSPENSION-PROPERTY AND ESTATES AFFECTED BY STATUTES AGAINST SUSPENSION; NECESSITY THAT SUSPENSION PERIOD SHOULD BE MEASURED BY HUMAN LIVES-ESTATE IN TRUSTEES; VALIDITY OF PARTICULAR FUTURE ESTATES-CREATION OF MORE THAN TWO LIFE ESTATES.</p> <p>Surrogates’ courts—Procedure and review—Orders and decrees— OPERATION AS BAR OR AS CONCLUSIVE EVIDENCE—SUBJECTS AND MATTERS CONCLUDED.</p> <p>.Executors and administrators—Distribution and disposal of personal estate—Reimbursement of principal out of income.</p> <p>A trust for the lives of her two sons, created by a testatrix in ¡the remainder of her estate, limited upon a life estate to her husband, with an ultimate remainder to her grandchildren who should be living at the death of both sons, does not unlawfully suspend the power of alienation.</p> <p>Nor does the will offend the statute limiting successive life •estates to two persons in being, the estate in the trustees being but a single estate.</p> <p>A decree of a surrogate is not conclusive upon the parties in establishing a rule of law which will control in the later administration of the estate.</p> <p>Disbursements from capital in discharging taxes and defraying other expenses which should have been paid out of income, when the income on hand was insufficient, should be made good out of income subsequently collected.</p>

<p>Wills—The testmentary instrument or act—Revocation and alteration—Right to revoke and how accomplished—Revocation by OPERATION OP LAW—MARRIAGE.</p> <p>In this State, a will made by an unmarried woman in contemplation of marriage, although it makes provision for her intended husband, is deemed revoked by her subsequent marriage.</p> <p>A proceeding to revoke the probate of the will of an unmarried' woman which makes provision for her intended husband, whom she marries, is maintainable under section 2647 of the Code of Civil Procedure, although the will relates to both real and personal property.</p>

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

<p>Surrogates’ courts—Nature and extent of jurisdiction—In general— Controversy between surety of temporary administrator and THIRD PERSON.</p> <p>A surrogate has not jurisdiction over a controversy between the surety of a temporary administrator and a third person as to alleged improper dealings of the latter with assets of the estate alleged to have been fraudulently or collusively obtained by him from the temporary administrator; such controversy must be settled in a court of general jurisdiction.</p>

<p>Appearance—Authority ob right to appear—Authority of Danish CONSUL UNDER TREATIES.</p> <p>Consuls—Appearance in litigation affecting foreign interests. 'Surrogates’ Courts—Procedure and review—Notice and citation— WAIVER OF SERVICE AND DEFECTS.</p> <p>Under the most favored nation clause in the Treaty of April 26, 1826, between the United States of America and the kingdom of Denmark the' Danish consul cannot appear for an infant party to a proceeding for the probate of a last will and testament so as to confer upon a Surrogate’s Court in this State jurisdiction of such infant party without the issuing and service of a citation.</p>

<p>Appeal by the Comptroller of the State of Few York from the report of the transfer tax appraiser.</p>

<p>Trusts—Creation and declaration—Deposit in bank.</p> <p>Gifts: The intent to give—Title in donor’s name in trust fob donee; DELIVERY AND ACCEPTANCE—IN GENERAL—BANK DEPOSITS.</p> <p>Where a person deposits money in a bank in trust for another, and dies without having withdrawn the deposit, and there is evidence of the declarations of the depositor that she intended the moneys to be for the benefit of the person in trust for whom she deposited them and such intention is consistent with her relations to such person and with the scheme of her will, a trust is established in favor of such person.</p> <p>Under like circumstances a trust is also established in favor of one in whose name moneys are deposited with the addition, "subject also to the control of” the depositor.</p> <p>And a deposit in the name of the depositor with an entry in the book signed by her, “In case of my death pay to the order of (for her own use) E. H. only,” coupled with the admissions and declarations of the deceased depositor, may be sufficient to establish a trust.</p> <p>But where an indorsement on an envelope containing bonds indicates an intention to make a gift and not to constitute a trust, and the gift fails for want or delivery, the court cannot supply such a defect by construing the transaction as a trust.</p>

<p>Executobs and administrators—Distribution and disposal of personal. ESTATE—REMEDIES AND PROCEDURE-TÍME OF APPLICATION OR OF BRINGING SUIT.</p> <p>Guardian ad iitem and special guardians—Necessity for appointment—On accounting.</p> <p>The provision of section 1819 of the Code of Civil Procedure that, for the purpose of computing the time within which an action to recover a legacy must be commenced, “ the cause of action is deemed to accrue, when the executor’s or administrator’s account is judicially settled, and not before,” has no application to a proceeding, in the Surrogate’s Court to compel payment of the legacy.</p> <p>Where, upon the judicial settlement of the accounts of an executor, in 1882, no special guardian was appointed for an infant' legatee upon whom the citation had been served by publication,, her right to demand payment of her legacy did not begin until she had attained her majority; but a proceeding instituted by her in the Surrogate’s Court twenty years after she became of age to. enforce such right is barred by the Statute of Limitations.</p>

<p>Proceedings on judicial settlement of the accounts of Frances D. Wilcox, as testamentary trustee.</p>

Proceedings by beneficiary for accounting and to compel application of trust fund by testamentary trustees. Proceedings by executors and testamentary trustees for the ..judicial settlement of their accounts.

<p>Appeal from the report of an appraiser assessing and fixing the transfer tax.</p>

<p>Determination by the surrogate of a disputed claim.</p>

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

<p>Wills—Disposal by will—Testamentary capacity—Evidence ob facts-ESTABLISHING OB NEGATIVING CAPACITY—TESTIMONY OF SUBSCRIBING WITNESSES; FACTS IN GENERAL HELD INSUFFICIENT.</p> <p>Where all the circumstances surrounding the execution of an alleged last will and testament offered for probate thirty years after its alleged execution are suspicious and misleading and create in the mind of the surrogate the fixed belief that, despite the testimony of the two subscribing witnesses that it was properly executed, said instrument is not the will of decedent, probate will be refused, although one of the subscribing witnesses is a lawyer • and drew the will.</p> <p>Where it appears that at the time of the execution of said instrument the testator was in the last stages of senility, his sole occupation being to watch a flock of geese to prevent their wandering away; that one of the subscribing witnesses recalls nothing of the transaction involving the execution of the intrument except that he signed it and that “everybody seemed satisfied with what, was being done”; that the lawyer who drew the will and was the other subscribing witness described what took place at its execution with the same minuteness as if the transaction had occurred but a few days before and his testimony as to the desires of testator are in direct contradiction of the will; that testator’s, children during all the years since his death have acted upon the assumption that he died intestate, making transfers between themselves of their undivided interests in the real estate of which their father died seized and disposing of his personal estate, and the-will is only offered for probate When litigation ensues between proponent and the- representatives of her deceased brothers and sisters, probate will be refused.</p> <p>Testimony of the proponent who took the will shortly after its ex-execution and put it in a box that, from the time she received the will until a little while before it was offered for probate, she-never opened the document or looked to ascertain its contests held, not to be credible.</p> <p>Reversed 127 App. Div. 174.</p>

<p>Application for the removal of a trustee for misconduct.</p>

<p>Application to revoke letters of guardianship.</p>

<p>Wills—Interpretation and construction—Terms creating legacies AND GIFTS OF INCOME-INTEREST ON LEGACIES-To MINOR CHILD WHERE PAYMENT OF LEGACY IS DEFERRED.</p> <p>Executors and administrators—Compensation—Eights as executors OR TRUSTEES.</p> <p>Where a testator tiirects his executor to keep Ms estate invested and divides it into equal shares, one of which he gives to his widow to be paid to her within two years after his death, and one of the others to each of his three sons to be paid to them in annual payments after each has reached the age of twenty-one years; and where the provision for the widow is less than she would receive if there were no will, and there is nothing in the will importing an intention on the part of the testator that a minor son shall be dependent upon her for support, nor any provision made in the will for his support until he attains his majority and the payments to him of his share in the estate begin . under the terms of the will, he is entitled to have the income from his share of -the estate paid to him in the meantime.</p> <p>The executor having presented for settlement his final account as such, after the entry of the decree settling the same he will no longer act in the capacity of executor but thereafter as trustee. He is, therefore, entitled now to full commissions as executor, and the amount of his commissions as trustee will be determined upon his settlement in that capacity.</p>

<p>Proceeding upon the final accounting of executors.</p>

<p>Proceeding for the judicial settlement of the account of a testamentary trustee.</p>

<p>Wills—Interpretation and construction—Designation and descriptions op persons, etc.—Rules and implications—Gifts to a class. —When ascertained.</p> <p>Where the testator made a will by which he constituted two-trust funds, the income from one of which he directed to be paid to the beneficiary of that fund and both the principal and interest of the other, at the discretion of the trustee, to the beneficiary of' the latter fund, contemplating, as to the latter fund, the possibility of an .accumulation of interest which, however, was in contravention of law; and where he directed in one ease that, at. the death of the beneficiary, the principal with the accrued interest, if any, should be paid to the testator’s heirs; and in the-other that any portion of the trust fund remaining at the death of the beneficiary and the interest accrued thereon, if any, should be paid to the testator’s heirs, held, that the testator intended the funds to be paid to those who, at the time of the distribution of each, respectively, answered the description of his heirs.</p>

<p>Proceeding for the probate of a will.</p>

<p>Wills—Disposal by will—Mistake, ebaud and undue ineluence—Evidence AND EACTS ESTABLISHING UNDUE INELUENCE-RELATION OE PASTIES—Attorney and client.</p> <p>Where a will is made by a testatrix in favor of one who stands in a close confidential relation to her, like that of a lawyer to his client, the law presumes that undue influence has been exerted upon the testatrix; and where the will excludes the natural objects of the testatrix’s bounty it will not be sustained without proof that negatives such presumption.</p> <p>And where a testatrix by her will makes one, who has long been her lawyer and acted in a fiduciary capacity for her, her executor and also trustee of a fund for the benefit of one of her friends, and gives to his grandchildren, who are dependent upon him for support, the residuum of her estate; and where the will was drawn by the executor in pursuance of secret instructions and he supervised the witnessing of it and his wife and son were two of the three subscribing witnesses, and no provision was made for the husband and son of the testatrix, for whom she had provided in previous wills, and the will was executed while the testatrix was at the executor's house, where she had gone to dine, and the third witness was the executor’s near neighbor, hurriedly called in to witness the will, which was signed and witnessed without having been read over or explained to the testatrix; and the only reason shown why the testatrix excluded her son and husband from participation in her estate was her statement, testified to by the wife of the executor, that her son had'broken her heart; and the will contained provisions excusing the executor from giving a bond and giving him power to sell real estate which the executor admits were creations of his own, inserted without any suggestion from or consultation with the testatrix, and were never shown or explained to her, and the testimony of the executor as to these provisions is disingenuous, unsatisfactory and confusing, held, that the burden of proving affirmatively the absence of undue influence rested upon the proponent and upon mere proof of the factum of the execution of the will probate thereof should be denied.</p> <p>Reversed 121 App. Div. 398.</p>

<p>Proceeding for the judicial settlement of the account of an executor.</p>

<p>Motion to vacate approval of bond on appeal.</p>

<p>Wills—The testamentary instrument or act—Revocation and alteration—Evidence—Cancellation or obliteration; interlineations ob-ERASURES.</p> <p>Where a testator, who was a lawyer by education, left in a box which contained his private papers and was under lock and key a. holographic will, written in ink, upon the face of which were-erasures of letters, words and signatures and interlineations, all lightly made with a lead pencil and which appeared to have been made for the purposie of indicating changes which the testator intended to make in the preparation of a new will, it will not be-presumed that the testator intended a revocation of the existing-will before the new testamentary act was fully accomplished.</p>

<p>Wills : Disposal by will—Testamentary capacity—General principles AND DEGREES OF ABERRATION—AGEDNESS AND DECREPITUDE OR IMPAIRMENT OF FACULTIES; THE TESTAMENTARY INSTRUMENT OR ACT-Execution of will—In general—Signature—By another person.</p> <p>Where a testator does not sign his last will in the presence of the subscribing witnesses, it is necessary, in addition to the declaration that the instrument is his last will, that there be a further declaration that he signed it and that the mark thereon is his signature; and, while a substantial compliance with the requirements of the statute is sufficient, an absolute noncompliance with any essential provision thereof cannot be overlooked.</p> <p>Where the last will of an aged and childless man, who had for several years supported an aged and somewhat helpless brother and two sisters, was prepared by one not an attorney, claiming to act under instructions from the alleged testator, and the will in terms gave everything to his wife, whom he had married late in life, she having property of her own and a grown up son, an apparently prosperous business man; and where it appears that, on the day of the pretended execution of the will, the draftsman, in the presence of the alleged testator who was unable then to write, wrote the latter’s name at the foot of the will, which was thereupon acknowledged before a notary public as a deed, and the draftsman testifies that the testator made his mark in the presence of the three subscribing witnesses, but the witnesses testify that none of them saw the testator make his mark or heard him declare in any way that the signature was his, and their testimony is corroborated by the notary public, who testifies that the testator made his mark and that the draftsman signed the testator’s name and his own as a witness before the acknowledgment was taken; and where the physician of the testator testifies that on the day of his death, the day ■ after he is alleged to have executed the will, the testator was in a eomatose condition, suffering from cerebral hemorrhage, and that he saw marked evidence of senility two days before and gave it as his impression that, on the day of the attempted execution of the will, the testator was only capable of doing perfunctory acts and could not bring to the execution of said will intelligent action, probate thereof will be refused on the ground that the alIeged testator was actually incompetent at the time of the pretended execution of the will and that the same was not executed in substantial compliance with the requirements of the statute.</p>

<p>Indians—Pbobate of wills—State coubt without jurisdiction. SUBBOGATES’ COUBTS—NaTUBE AND EXTENT OF JURISDICTION—ÜN GENEBAL—• Estates of Indians.</p> <p>The Surrogate’s Court of Niagara county is without jurisdiction, to admit to probate the will of a Tuscarora Indian residing upon* the Tuscarora reservation in that county.</p> <p>See 52 Mise. 619.</p>

<p>Proceeding upon the judicial settlement of the account of an administratrix.</p>

<p>Wills—Interpretation and construction—Designations and descriptions OF PERSONS, ETC.: CORPORATIONS; PARTICULAR TERMS OF' DOUBTFUL MEANING-EXTRINSIC EVIDENCE—DISCREPANCY BETWEEN. NAME AND DESCRIPTION.</p> <p>Where a testatrix made a bequest to a benevolent organization, by a name descriptive of its objects, adding the words “by whatever name said society may be known” and there is more than one-society coming within the description, the court will take proof of the objects of the different societies, the names by which they have been known, the testatrix’s knowledge of them and her previous gifts and declarations for the purpose of determining which society the -testatrix intended.</p>