Volume 5 — Redfield's Surrogate Reports

Application by one of the children of decedent and the administrator, to compel the latter to account as such administrator.

This was an application in behalf of the executrix, Mary C. Gardner, to send the matter on final accounting back to the auditor, to enable her to give further proof, and establish her claim against this estate for upwards of $9,000.

The instrument propounded bore date March 14, 1877, and was witnessed by John A. Smith and James C. H. White, and appointed Phillip W. Verlander, executor. It was drawn- upon a sheet of legal cap, commencing on the first page and covering that, passed over the second page, leaving it blank, and continued upon the third page, on the left hand corner of which was marked “page 3d,” and concluded on that page, which was subscribed by the decedent.

Application to require the administrator to pay a judgment entered against decedent, as a preferred debt.

This was an accounting of Peter Brunjes and Lawson L. Fuller, trustees under the will of decedent. The latter died in 1865.

Motion to confirm report of referee appointed, in creditor’s proceeding to sell decedent’s real estate for the payment of debts, to take proof of a certain judgment recovered in the name of John Kavanagh against the executors, and of the rights and interests of certain parties, in and to said judgment.

The.will propounded bore date August 17, 1876, and. purported to be witnessed by Peter Stephens and I. W. Canfield.

This was an application by an infant for the appointment of a guardian of her person and estate. The petition set forth that the petitioner' was nineteen years old, and entitled to property consisting of her wardrobe, books and plays ; that she had no testamentary or special guardian ; that it was necessary that some person should be appointed guardián of her person and estate, and asked that Mary C. Davis, who consented to act in that capacity, be appointed suck guardian.

Motion to confirm referee’s report on accounting of the executor of the will of decedent. Exceptions to the report were filed on behalf of the executor and of the contestant, as follows : The executor filed exceptions, among others, (1) to the disallowance of an item of $10, for services rendered in removing furniture for decedent in the year 1865.

<p>Application for letters testamentary upon the will of a citizen resident in China, proved before a United States consul there.</p>

This was a motion to confirm the report of a referee, to whom, upon objections,being filed to the accounts of Geoi’ge W. Riggs and Joseph K. Riggs, executors of and trustees under the will of decedent, they were referred, to examine ; opposed by them and also by Samuel W. Cragg, administrator of the estate of Mary A. Cragg, formerly Mary A. Riggs, decedent’s deceased daughter.

Objections were filed on behalf of Emeline Townsend, a sister of decedent, on the ground that it was not the last will of decedent; that the contents were never known to her; that she never declared it to be her last will; that she never requested the witnesses to subscribe; that she was not of sound mind ; that- it was procured by fraud, circumvention, misrepresentation and undue influence by John W. Bogart or Ellen Bogart; and that it was not freely or voluntarily executed.

This was an application for the settlement of a decree on an accounting by the executors, required by the Surrogate on the petition of a legatee. The petition also prayed that the executors show cause why they should not be removed, and counsel for both parties asked that their costs be fixed and allowed. The proceedings for removal were not pressed, but the account was filed, no objections thereto being interposed, nor was there any hearing on the merits.

This was an application by Charles Gr. Weed, a nephew of decedent, for letters of administration upon decedent’s estate, on the ground that decedent died in this city in November, 1880, being an inhabitant of this county, and leaving assets therein.

Application by Christiana Bolling, for the award, to her, of the guardianship of the infant’s person.

This was a hearing of objections, filed by Marcia O. R. Scovel and Frederick Roosevelt, children and beneficiaries under the will of decedent, to the account rendered by the surviving trustee under said will, on his second annual accounting.

The petitioner, the widow of testator, in addition to the probate of the will and two codicils, asked a construction thereof, particularly of the last codicil. By the will, decedent gave and bequeathed all of his property to his wife, but in case she did not survive hini, he gave $2,000 to Kate Bajot, and the residue to two nieces, Ellen and Charlotte Kicholl, equally, and appointed his brother, D. L. Jackson, a non-resident alien, executor. The will was dated May 11, 1878.

<p>Before the Code of Civil Procedure, the only mode of enforcing a Surrogate’s decree for the payment of money was an attachment against the person, in form similar to that used by the court of chancery in analogous cases.</p> <p>Section 2555 of that Code, providing for the enforcement of such a decree by punishment for a contempt, applies only where the special proceeding, terminating in the decree, was commenced before September 1, 1880.</p> <p>Where the moving papers, on an application to punish for a contempt under that section, do not show previous service of a certified copy of the ' decree on the alleged delinquent, the motion should be denied.</p> <p>It seems, that it is not permissible, after procuring an order requiring an administrator to sell prdperty, upon allegations that it is inventoried at too low a price, and that the administrator should be charged with the actual value, as disclosed on a proper sale, which has been had, to claim that the inventory valuation shall he a measure of the charge against him.</p>

Application by a legatee against the executor, for an attachment, for the non-payment of the sum of $483.47, with interest from January 1, 1871, pursuant to a decree on final settlement of his account, entered February 26, 1880.

The petition of Maria de la Salud Oviedo, younger, set forth that the decedent, U. S. consul at Cadiz, Spain, died November 8, 1880, leaving a will, executed there, on file in the office of a notary, together with a codicil thereto; that decedent was a citizen of the United States, and was at, or immediately previously to his death, an inhabitant of the State of New York, temporarily resident at Cadiz, leaving assets in the city and county of New York, and prayed the probate…

The instrument- propounded bore date July 14, 1877, and was witnessed by .Henry Vignaud and Augustus Biesel. It recited that the testatrix was late of the city and State of New York, then residing in Paris, revoked all former wills, and appointed John J. Cisco, of New York, executor.

This was a hearing of an objection to the admission of testimony upon an application for probate of a codicil to a will.

This was a motion on the part of Charles B. Greenhough, an infant under fourteen years, by James Dawson, his general guardian, to compel Martha S. Greenhough, the widow and administratrix of the estate of decedent, to insert certain property in an inventory of the estate, filed by her.

This was a hearing of exceptions to the report of a referee appointed to examine the account of proceedings of Samuel M. Bixby, general guardian, in respect to the estate of .Eugenia J. Aldis (now Smith), lately an infant; the report having' been heretofore confirmed as to the estates of the other wards included in the accounting. The guardian was appointed June 22, 1864.

This was an npplication to compel the executors, etc., of decedent to pay to Louisa Y. Tattle, a daughter, a legacy of $6,000.

This was a petition by the U. S. Life Ins. Company, a creditor of the decedent, for the disposition of decedent’s real property, for the payment of- debts, opposed by Mary A. Jordan, the administratrix and an heir-at-law, and others ; the only question raised being whether the application was barred by section 2750 of the Code, letters testamentary having been issued in 1876, and the representative not having accounted before September 1, 1880.

Motion by executors to confirm the referee’s report, on their accounting; opposed by the residuary devisees and legatees, the two sons of decedent. Decedent died in March, 1879. In April, 1852, he married one Charlotte Koch, who in 1857 obtained in the supreme court a decree of divorce from him, on the ground of his adultery with one Maria Naumanu, dissolving the marriage, and forbidding his marrying again.

<p>The testator, hy his will, created a trust for his daughter, directing the . trustee to hold the share of the estate belonging to her; to pay to her, until her majority, rents and income sufficient for her support and education; all the rents and income thereafter, until she reached twenty-four years, and then the principal and accumulations. I-Ie further directed the trustee to deduct and retain “out of such rents, profits, interest, • and income,'’while he held the share, “ all proper and reasonable expenses and charges, in and for the care and keeping of the same, the renting, investing, and reinvesting thereof,” all taxes, etc., “ and the proper expenses and charges of collecting and applying such-income.” The trustee claimed that the words quoted were a provision "for com pensation in lien of commissions. Held,</p> <p>1. That the words “ expenses and charges,” etc., referred not to compensation of tiie trustee, but to necessary disbursements in administration, and imported an intent that the daughter was to be supported out of the net income of the trust fund.</p> <p>2. That the trustee was only entitled to commissions under the statute.</p> <p>The rule for computing trustee’s commissions, in such a case,—stated.</p>

Motion on behalf of Cornelias Walke, that he bedecreed entitled, to commissions as executor, on the settlement of the accounts of the executors, etc., of decedent; opposed by executors Hitchcock and Titus. The testator died in June, 1854, leaving a will, nominating Julius ¡T Hitchcock, Richard A. Reading, George N. Titus, and said Cornelius Walke executors and trustees thereof.

The paper propounded as the will was dated May 2, 1871, witnessed by Cyrus W. Field and Benjamin Cartwright.

Charles Burmester, on July 10, petitioned for letters of guardianship of the person and estate of the infant, as his next friend, setting forth that he had resided with petitioner for the past three years; that his father was dead, and his nearest relative was his mother, Mina Orth ; that he was entitled to $1,000, personal property, and was of the age of ten years.

Motion to' confirm referee’s report on final accounting of executor ; opposed by Charles T. Roosevelt, a son of, testator, and a tenant for life under his will.

Motion to'confirm referee’s report on administrator’s final accounting ; opposed by Louisa Leidenthal, and others, children of decedent. The only questions submitted for determination were as to the disposition of the various sums received by the widow of decedent, from benevolent societies of which the decedent was a member. She received from the death aid fund of “Battery B,” $150; from Germania Lodge, No. 18, $100; from the Central Aid Association of I. O. Ó.

The document propounded was a coarse piece of brown paper, of irregular shape and jagged edges, about ten inches long and seven broad, written partly with a blue, and partly with a black, pencil, claimed to be in the handwriting of the decedent, and reading thus: “ I, Edw.

Moore, one of the executors. The first clause of the will directed the payment of debts and funeral expenses.

Van Vleck, a daughter and an executrix, etc., of decedent, who died in November, 1877, aged eighty-four years, and leaving an estate of over $800,000.

<p>Application for letters of administration, in intestacy. The facts appear sufficiently in the opinion.</p>

<p>Where an executrix and two executors qualified, and the executors took upon themselves the exclusive management of the estate, not even consulting with the executrix, who never had possession of the assets, hut allowed the executors to have entire control, reposing confidence in their integrity and capacity,—Held,</p> <p>1. That these circumstances relieved the executrix from liability for losses occasioned to the estate, by acts of the executors, committed without her acquiescence or consent, express or implied; hut</p> <p>2. That she was liable for the result of any improper action of her coexecuiors, to which she consented, or which she could have prevented.</p> <p>Accordingly, where the co-executors (1) lent $5,000, funds of the estate, without security, and (2) invested $4,400 of the funds in the capital stock of a corporation; and it appeared that the executrix knew nothing of the loan, until long after it was made, aud took steps to collect the amount lent, without success,—and that she was not consulted as to the stock investment, but was informed that the shares received were a stock dividend, upon stock already held by the estate, and did not discover that they had been .bought until after the accounting began,— Held, that, no liability attached to her, in the premises, although she had joined, with her co-executor in rendering an account, under oath, of all their proceedings, which account included the unauthorized investments. coupled with the statement that the investments of the funds of the estate were made by the executors.</p> <p>But where the executors subscribed for bonds to the amount of $10,000, to protect certain stock formerly owned by the testator, being assets of the estate, which they ought previously to have disposed of; and it appeared that the executrix knew, all along, that the estate held the stock, and made no effort to sell it, nor even asked the executors so to do; on the representatives’ accounting, Held,</p> <p>1. That the executrix, having acquiesced in keeping the stock on hand, was liable, with her co-executor, for the consequences of so doing.</p> <p>2. That the accounting parties were to he charged with the amount subscribed for the bonds, and, it appearing that the stock had risen, they were to be credited with any increase in the price of the stock, over and above'its value at' the time when it should have been sold, i. e., at the end of one year after the testator’s death.</p> <p>The authorities upon the subject of the liability of an executor or trustee, for the devastavit of his co-executor or co-trustee,—collated.</p>

<p>Where a legatee applies to the Surrogate’s court for payment of the legacy, an answer by the representative “that the petitioner’s legacy is not yet payable by the terms of the will,” does not raise such an issue as requires the petition to be dismissed under Code Civ. Pro., § 2718. It raises no issue of fact, but only a question of the construction of the will.</p> <p>The Surrogate’s court, although without general jurisdiction of the construction of wills, has the right to construe a will so far as necessary for the distribution of the estate.</p> <p>The testator, by his will, gave to his wife one-half of his property, real and personal, absolutely, and the other half to her for life, with power to sell. He then gave a legacy of $3,000 to an infant, to be paid to him at his majority; and, in case of his death during infancy, the same was given to the testator’s brothers and his sister, the petitioner. The infant legatee died before the testator. Upon an application by the sister, during the widow’s life-time, to compel payment of the legacy, Meld, that, upon testator’s death, the legacy vested in his brothers and sister; but that the intent of testator was that the legacy should not be paid until after the death of his widow; that the petition was, therefore, premature, and should be dismissed.</p> <p>It is a cardinal rule of construction that effect must be given, if possible, to every part of a will.</p>

Application, by Rose Gibbons, executrix, for the probate of a will; opposed by Mary Spaulding, a. sister of decedent, and others. The facts appear sufficiently in the opinion.

Application by R. C. White, executor, etc., for the probate of a will and codicil. The contestant, Josephine Miller, opposed the probate only of the latter instrument. One attesting witness to the codicil thought the testatrix of sound mind at the time of its execution ; but the other witness was of a contrary opinion.

This was an application to revive and continue proceedings for the probate of the will of decedent.

Application by executor, for the judicial settlement of his account, and for distribution of the surplus in his hands. Isabella Harward, an infant legatee, and others, were cited and appeared on return of the citation. The account contained a charge of $75 for expenses of final accounting and services rendered to the executor by his attorneys.

This was an application by Wm. H. Brokaw, for ancillary letters testamentary, under the will of decedent. The facts appear sufficiently in'the opinion.

Motion by Alexander McCue and another, executors, etc., of decedent, to strike from a decree on probate ah allowance to the special guardian of Mary C. O’Hara, an infant party, beyond the amount of taxable costs.

<p>Application by administrator for the judicial settlement of his account.</p> <p>The facts appear sufficiently in the opinion.</p>

Application, by Herman Stutzer, executor, etc., of decedent, for the judicial settlement of his account. The widow, Elizabeth P. Schütz, and the next of kin of the testator, were cited to appear on the settlement.

<p>The testator and his wife, after the former had made a will, giving all ills property to the latter, for life, remainder to his next of kin, adopted a little girl of tender years, and brought her up as their daughter. By a codicil to his will, testator substituted the adopted child as legatee, etc., in place of his collateral relatives, and died, leaving no widow or descendants. Probate of the codicil was contested, on the ground of undue influence exercised by testator’s wife; the evidence in support of which were statements made by her during her life-time, and, in particular, various significant remarks addressed by her to testator', to compel him to sign a paper, to which he at first demurred, hut at length suddenly consented, announcing himself ready to do “ anything for peace’ sake.” The evidence, however, did not render it certain that the paper in question was the codicil; nor did the latter alter the will for the wife’s benefit.</p> <p>Held, that a failure to provide for the daughter would more readily have given rise to a suspicion of undue influence, than the execution, of the disputed codicil; and that, upon the evidence, the latter must he admitted.</p> <p>The testimony of a witness, who assumes to recollect the exact day of a conversation had eighteen years previously, without giving any reason for her accurate memory, is to be received with caution.</p>

Application by executor for the judicial settlement of his account. John and Henry Schumaker, infant sons of testator, appeared by guardian. On the settlement, the executor sought to prove his claim against the estate on certain promissory notes held and owned by him, which were made by the testator’s son-in-law, and indorsed by the testator. The testator made his will appointing the holder of the notes his executor, and died before either of them became due.

Application by Louisa M. Sutton, a granddaughter of decedent, and a legatee under his will, to compel administrator, with the will annexed, of the goods, etc., of decedent remaining unadministered, to give additional security. John J. Merritt, the executor, etc., of decedent, having died, James Weeks and George Merritt were appointed administrators with the will annexed. Further facts sufficiently appear in the opinion.

Motion to confirm referee’s report, on the judicial settlement of executor’s account, had at the instance of Salome Ingrem, a legatee under the will. The facts appear sufficiently in the opinion.

Application to compel an administrator to render, ' and procure the judicial settlement of, Ms account. The facts appear sufficiently in the opinion.

Application by George W. Wise, a legatee under the will of decedent, to compel payment of his legacy. The facts appear sufficiently in the opinion.

Motion by contestant, to strike out testimony given on proceedings for probate of a will, by a legatee, as to conversations between him and testator. The facts appear sufficiently in the opinion.

Application by Robert Brown, a son of decedent, for the probate of a will claimed to have been lost or destroyed since the latter’s death; opposed by Emma McNally, a daughter of decedent, and another. The facts appear sufficiently in the opinion.

This was an application by Margaret Early, decedent’s widow, and sole legatee and devisee, for the probate of a will alleged to have been fraudulently destroyed in decedent’s life-time; opposed on behalf of William J. Early, decedent’s infant son. The facts appear sufficiently in the opinion.

Application by Adeline V. R. Wood, sole surviving administratrix, etc., of decedent, to compel Robert L. Crooke, executor of her deceased co-administrator, to account, and deliver over property of decedent. The facts appear sufficiently in the opinion.

This was an application by one styling herself Helen A. • Byrnes, and claiming to be the widow- of decedent, John W. Byrnes, late of Buffalo, for letters of administration of his goods, etc. ; opposed by decedent’s brothers and sisters, his only next of kin. The facts appear sufficiently in the opinion.

Fbanklim Sidway, the executor named in the will of decedent, in his petition for the probate of the will, asked for a judicial construction of the fourteenth clause thereof, which read as follows: “Fourteenth. The furniture, books and other articles in my house, of which I may be possessed at my decease, I desire Mr. Sidway and his wife to fix some valuation, and distribute ■ them among my relatives mentioned in my will, as they may deem discreet and proper.”

Annie C. Ludlow, an infant over fourteen, presented a petition for the appointment of a special guardian, etc., to take care of her interests in this matter ; and questions arose as to the necessity of such petition, and as to the necessity of giving notice of the appointment.

Application by a creditor, to mortgage, sell or lease decedent’s real property to pay his debts. On November 17, 1871, John Finagan executed a bond and mortgage to decedent, to secure the payment of $783.50, in three years, with interest.

Application to-revoke probate of a will. On January 31,1881, a verified petition was presented to the court, setting forth, among other things, that David Jones was, at the time of his death, a resident of-the county of Westchester ; that he died in the city of New York on January 17, 1881, and alleging that the Surrogate of Westchester had jurisdiction to take the proof of the will, etc. ; and praying for the issuing of a citation, in the usual form.

Petitioet for the appointment of. a successor to a deceased testamentary trustee. The will of Wright Horton was admitted to probate in Westchester county, in 1861. By its provisions, he bequeathed certain general legacies, after the payment of which, and of his debts, he gave the rest and residue of his estate to his children in certain shares. To his daughter, Martha Ann Tompkins, he gave, besides a legacy of $50, one-half of one-eighth of said residue.

John Cocks died in 1868, seized and possessed of an estate valued at about §125,000. He left Mm surviving a widow, Adelia Cocks, and five cMldren, to wit, Mary, Phebe, Anna, David and Harrison, Mary being then the wife of George J. Barlow, and Phebe the wife of Daniel E. Haviland. He left a will, of which he appointed Ms widow and all of Ms children and their husbands executors.

Application to compel the administratrix, etc., of the executor of decedent’s estate, to account, etc., under Code Civ. Pro., § 2606.

Hearing of objections to an executor’s account. The testator’s will, which was proved in 1863, after bequeathing certain legacies, gave to his wife a life estate in the residue of his real and personal property. The eighth clause empowered his executors to sell any of his real estate, on obtaining the written consent thereto of his widow.

Petition of Lorraine Spencer, a legatee under the will of George L. Spencer, deceased, to compel Sarah H. Popham, executrix, etc., of William H. Popham, deceased executor, etc., of the first named decedent, to account, etc., under Code Civ. Pro., § 2606. The petitioner was a legatee under the will of George L. Spencer, deceased. Popham, the executor of Spencer, was dead, having left a will, of which Sarah H. Popham was executrix.

The will offered for probate was written upon a sheet of foolscap paper. All of the disposing parts were written upon a single page, by which decedent made his wife sole devisee and legatee. In it, he named no one as executor. The will was signed by the testator and two witnesses at the foot of the page.

This was a judicial settlement of the account of executors, initiated by petition of an infant interested in the estate. The will of the testator, admitted to probate in January, 1875, in substance directed the executors to pay his debts and funeral expenses ; also to sell and convey all his real and personal property as soon after his death as they should deem best, and out of the proceeds to pay the funeral expenses, debts and expenses of administration.

Motion to amend a decree rendered on the judicial settlement of administrator’s account. The decedent died intestate in 1878, leaving, among other next of kin, entitled to the personal estate, Isaac B. Guest. In 1880, he duly assigned his distributive share to Charlotte W. Guest, his wife.

Johh Mildeberger died in the year 1871, leaving a will. His only descendants were three grandsons, Seymour H. Spencer, Selden M. Spencer and William B. Kenyon. He died seized and possessed of both real and personal estate. After bequeathing certain legacies, the will proceeded as follows : “ Sixth.

The decedent, by his will, devised and bequeathed his entire estate, real and personal, to his executors in trust, to pay debts and certain legacies ; to fyuild a family vault; and to divide the residue into five equal shares, and receive the rents, income and profits of each share, and apply them to the use of his five children, severally,- for life, and at the death of each life beneficiary, to pay and distribute the principal of that share to and among grandchildren of…

Mart Clark, the testatrix, died in 1864, and her will was proved the same year.

This was a hearing of objections upon, the judicial settlement of the account of Edward M. ■ Tompkins, executor, etc., of decedent. The testator, in his lifetime, was engaged in the business of a tinsmith and stove-dealer, in the village of New Rochelle.

Hearing of objections on the judicial settlement of the account of Sumner Chalker, executor, etc., of decedent. The testatrix was seized with her last illness about March 1, 1879, made her will ou the 19th of the same month, and died on May 3rd, following. The bulk of her small estate consisted of §1,125, of which §1,000 was in a savings bank at Portchester, Westchester county, and §125 in a savings bank at Hartford, Conn.

This was a petition by Marguerite Becker, a daughter of decedent, praying for the revocation of probate of his will, and that Martin Bochus and Anton Schneler, the executors, and others, be cited to show canse, etc. The facts appear sufficiently in the opinion.

<p>Where a woman flees from her husband and enters immediately on illicit relations with another man, which she continues for five years, there is no presumption at the end of that time, in the absence of evidence to the contrary, that her husband is dead.</p> <p>The petitioner was married to 31. in 1855, and lived with him in New York city until 1861, when she suddenly left his house, and, going to premises provided by decedent, cohabited with him until his death, in 1881, never again seeing M., or concerning herself about him. The cohabitation with decedent was confessedly meretricious until 1865, during which year, according to petitioner’s testimony, a sort of ceremonial occurred, which she. deemed a marriage between them. On her application for letters of administration, as being decedent’s widow, on the ground that, although she and 31. had not been separated for five years when her alleged marriage with decedent occurred, their continued cohabitation after the lapse of that period, and the fact of their holding themselves out as husband and wife, raised the presumption of a mar- . riage which was valid until annulled, under 2 If. £., 189, § 6, making such a provision in a case where a ‘ ‘ person, whose husband or wife shall have absented himself or herself, for five years, shall marry,” etc.,—</p> <p>IDld, that 31., not having “ absented himself,” the statute did not apply, and that, there being no proof or presumption of his death, any marriage between petitioner and decedent was absolutely void under 2 5. S., 189, § 5, and the petition should he denied.</p>

Reargument of exceptions to report of referee (appointed, in creditor’s proceeding to sell decedent’s real estate for the payment of debts, to take proof of a claim for which John Kavanagh had recovered a judgment against one Wilson and others, executors, etc., ef decedent, and of the rights and interests of certain parties therein), so far as the same related to the respective rights of Augustus Schwerter and T. Gr.

Counter motions by Ellen Geoghegan and John Foley, to revoke letters of guardianship of infant children of decedent. The facts appear sufficiently in the opinion.

This was a motion to vacate an order directing the recall of a witness for further examination. The facts appear sufficiently in the opinion.

Petition by William A. Coleman, to require Julia A. Coleman, administratrix, etc., of decedent, to render and settle her account, and pay out of the assets taxes assessed upon any property of which decedent was seized or possessed, either for life or in fee. The facts appear sufficiently in the opinion.

<p>Application, by legatees, for a construction of decedent’s will, on the judicial settlement of executor’s account. The facts appear sufficiently in the opinion.</p>

<p>Evidence of an hereditary tendency to insanity, in a testator, does not establish that insanity manifested was probably congenital, or that it declared itself at any particular stage of his career.</p> <p>The opinion of a distinguished alienist, upon the probable mental condition of a patient, years before the latter had come under his observation, though entitled to rcsppct, should be carefully scrutinized before acceptance, in a case where it is contingent upon the correctness of hypotheses not established by the evidence.</p> <p>It seems, that, where one sustaining a fiducial relation to another is concerned in framing the latter’s will to his own advantage, the instrument ought to be closely scrutinized, and that there is a presumption against its validity, strong or weak, according to the circumstances.</p> <p>The testator, who died in 1880, by his will, executed in 1871, gave the bulk of his property, amounting to about $500,000, to an adopted daughter of his father, and to two of his aunts, K. and S. His.nearest relatives living at the time of the execution, were a father, a half-brother, and four aunts. The probate was contested by the half-brother, aged thirteen years, mainly on the grounds of undue influence exerted by the husband of S., and a want of testamentary capacity. Mr. S. had long occupied intimate confidential and fiducial relations with testator; but, although his wife was a principal beneficiary, it was not shown that he drafted the will, or advised as to its contents, or even knew of testator’s intending to make, or having made it. Testator was insane in the early part of 1873, when he became an inmate of an asylum in France; and he was of unsound mind at times thereafter, contestant insisting that the insanity was continuous after the date mentioned. A medical expert, who attended him at the asylum in 1873, would not undertake to state accurately his mental condition in 1871, but testified that, from his examination, and from what he then learned of his antecedents, from testator and from an aunt, B., he believed that the former was never in a condition of complete enjoyment of his intellectual faculties, or of balance in his nervous system. The information derived from B. was undisclosed by witness, and several of testator’s declarations to him were against the weight of testimony; which was that testator manifested no irrationality until after 1871. A portion of the testimony, taken on commission, of a witness acquainted with testator, tended to show original mental aberration, hut this portion was in response to the final general interrogatory, was vague as to dates, and in some particulars as to meaning, and was not followed by cross-examination. Certain collateral relatives of testator had been afflicted with mental disease, but there was no evidence of insanity in his lineal ancestry. Letters produced in evidence, written by testator before 1873, were in the main clever and amusing, often instructive, particularly on art subjects, and at times poetical and elegant. By a will executed in 1869, testator had made dispositions, also, in favor of B. and his other aunt, who were not mentioned in the will propounded, and which made' no bequest to contestant, or, with an insignificant exception, to testator’s father. Each of the two last named persons, however, hud ample means.</p> <p>Held, that the will was executed without undue influence on the part of Hr. S.; that its dispositions led to no inference of a disordered intellect on the part of the maker; that the latter was of sound mind at-the time of its execution; and that it should be admitted to probate.</p>

Petition by Alethea R. Wetmore, a legatee, to rectify the record of the will of decedent, which was admitted to probate February 16, 1881; opposed by Charles E. Carryl and George C. Wetmore, executors. Further facts appear sufficiently in the opinion.

, Upott proceedings for the probate of decedent’s will, Marie Emelie Oelestine Effray, an infant daughter of decedent, by her special guardian, expressly put in issue the validity of certain bequests, pursuant to Code Civ. Pro., § 2624. The facts appear sufficiently in the opinion.

Application ior the probate of a paper propounded as decedent’s will, by Francis F. Taylor, named as executor therein ; opposed in behalf of Walker Dennett and Alexander Taylor, infant legatees. The facts appear sufficiently in the opinion.

Application, by executors, for commissions upon-the judicial settlement of their account. Leonora Secor and others, infant legatees, appeared on the settlement. The facts appear sufficiently in the opinion.

Upon the accounting of the executor, etc., of decedent. her son, Frank Gr. A. Thompson, objected to the account, and asked for an order to compel the executor to produce certain papers in his possession. The facts appear sufficiently in the opinion.

Application by testamentary trustees, for commissions, upon the judicial settlement of their account. The facts appear sufficiently in the opinion.

<p>Under Code Civ. Pro., § 2735, authorizing the Surrogate to require an accounting executor or administrator “ to attend and he examined under oath,” that officer has power, in his discretion, to S-irect such an examination, upon application therefor, "whether formal objections to the account have been filed or not.</p>

This was a petition by Giles F. Bushnell, a grandson of decedent, to compel John Drinker, and another, trustees under decedent’s will, to pay a legacy.

This was an application by Dora S. Dale, who was contesting the probate of the will of decedent, to compel the temporary administrator to produce certain documents., The facts appear sufficiently in the opinion.

This was a hearing of objections to the issue of letters testamentary, made by Henrietta Martin, a daughter of testator. The facts appear sufficiently in the,opinion.

<p>Application for allowance of commissions to testar mentary trustees, upon a judicial settlement of their account. The facts appear sufficiently in the opinion.</p>

<p>. Application, by Andrew Brodhead, executor, etc., of decedent, for the probate of his will; opposed by Mary Taylor, Ms daughter. The facts appear sufficiently in the opinion.</p>

.Application, by Francis Myer, executor, etc., of decedent, for the probate of his will and codicils.thereto ; opposed by Rachel J. Legg, his daughter. A will and two codicils were offered for probate ; the will dated February 5, 1869, the first codicil dated August 16, 1872, and the second and last codicil dated January 25, 1878. No contest was made with reference to the will and first codicil, and they were admitted to probate without objection.

Application by decedent’s widow, to amend an inventory ; opposed by Friend Hoar, his . father. The facts appear sufficiently in the opinion.

The decedent died May 12, 1880, leaving him surviving a sister and several nephews and nieces, none of whom ever resided in the city of Kingston. -After his death, Marius D., and Sarah A. Perrine, with whom he had boarded for a number of years, presented for probate as the last will and testament of deceased, a paper purporting to give, devise and bequeath all of his property to them. Further facts appear sufficiently in the opinion.