Volume 6 — Demarest's Surrogate Reports

Miss Hopkins was a spinster, leaving no father or mother her surviving, but leaving one brother.

<p>In order to render a bequeathed annuity a demonstrative legacy, and so not liable to abatement in case of a deficiency of assets, the will must specify certain property owned by the testator in kind, the income arising wherefrom is to produce the amount of the annual provision.</p> <p>Testator, who left an estate of the value of about $125,000, by his will directed the executors “to invest such sum of my (his) property as will net one thousand dollars.....per year.....and from such sum so invested to pay ” to his widow, A., “ the sum of one thousand dollars per year,” from his decease, during widowhood, in lieu of dower; made provision for other beneficiaries; and disposed of the remainder.</p> <p>Upon a judicial settlement of their accounts, it appeared (1) that one of the executors had, in hand, all that remained of the estate, viz.: $7,000, of which about $4,000 represented principal rescued from the wreck of an unauthorized investment, and the balance accumulated interest; and (2) that A.’s claim for arrears of annuity was sufficient to exhaust the entire fund.—</p> <p>Held, that the annuity was a general legacy; and that, of the fund in question, A. was entitled only to the accumulated interest in the executor’s hands, and such interest as might thereafter accrue upon the remaining corpus.</p>

The will in question was admitted to probate December 16th, 1886, and it is now sought to have the decree, admitting the same to probate, vacated. Among other provisions, the testatrix bequeathed a legacy as follows: “Fifth.

The deceased, by his will, among other things, bequeathed to his daughter, Eugenia Valentine, a Igeacy of $20,000. By a codicil, this sum was reduced to $10,000. She contested the codicil, which finally was admitted to probate. On appeal to the general term of the Supreme Court, the decision of the Surrogate was affirmed.

William R Hull was one of the residuary legatees of the deceased, whose legacy was to come into his possession at the death of the widow, who had a life interest in the estate. If he died before the widow, leaving issue, such issue were to take his share. He did so die, leaving issue. He was indebted to the testator at the time of the latter’s death, in the sum of about $2,000.

About twenty years ago, the testator, Joseph Rose, died at Stony Point, Rockland county, leaving, him surviving, his widow, Charlotte Rose, and two infant children, Wallace and Emma. The will was duly admitted to probate by the Surrogate of that county, the material substance of the instrument being stated in the opinion.

This was an application made by Wilhelmina Abel, widow of Charles Ruser, deceased, who had since remarried, to prove the will of the deceased, which was lost. The alleged testator died about 1876. The subscribing witnesses testified to its due execution, and the evidence showed that it was in existence at the time of his death, and was since lost.

This was a proceeding to prove a paper propounded for probate as the last will and testament of Mary Masterton, bearing date August 9, 1878. She had a sister, Caroline Masterton, both of whom were maiden ladies residing at Tarrytown together, and owning and enjoying more or less real and personal estate wholly, or in part, in common. The alleged will was executed by Mary at Albany while she was on a visit to her cousin, Robert F. Todd, and his family.

The petition of Henry W. Quin, Jr., the father of Frank H. W. Quin and Fanny G-.

A paper writing, of which the following is a copy, was propounded for probate by Mary Berwick, the executrix therein named: to wit: “After my mother’s death, my cousin, Sallie B. Williams, of 1501, North 10th St., Philadelphia, Penn., is my heir. This writing is instead of a formal will which I intend to make.

In January, 1887, the will of Isaac B. Smith, late of Yonkers, was admitted to probate.

The petition showed that, in February, 1886, no will of Mrs. Tyler having been found, letters of administration on her estate were duly granted to Monmouth Gr.

This was an application for an order for the appointment of a special guardian for an infant, in proceedings to prove a will, to be entered nunc pro tuno, as of May 25 th, 1881.

The testator, by his will dated August 11th, 1873, appointed three executors, Thomas Nelson, Coffin S. Brown and William S. Tompkins. On November 26th, 1877, letters testamentary thereon were grantéd to said Coffin S. Brown, he alone qualifying as executor. On July 2d, 1885, he died.

<p>Application for letters of administration.</p>

Pending a contest over an alleged will of decedent, which was finally refused probate, James H. Jenkins was appointed temporary administrator, giving a bond with the New York Bond & Indemnity Company as the surety. On his accounting, he claimed, as a charge against the estate, the sum of $45, which he paid said Company to become such surety. This item was objected to by George W. Shaffer, the surviving husband of the deceased.

<p>Pursuant to a decree to that effect, David Cromwell, a freeholder appointed for the purpose, duly sold one of several parcels of decedent’s real estate to Edward Lestrange Phipps, in February, 1888, for the sum of $1,380, of which sum the purchaser paid ten per cent., in compliance with the terms of sale. In March following, on notice to the proper parties, a decree was duly entered confirming the sales. Subsequently, on being tendered a proper deed of conveyance of the premises, the purchaser declined to pay the balance of the purchase money and accept the deed on the ground of an alleged defect in the title to the premises. Whereupon, on an affidavit alleging said facts and on motion to the purchaser, the freeholder moved for an order requiring him to take title thereto and to comply with the terms of sale.</p> <p>Affidavits in opposition were submitted, the most important facts shown thereby being, that the premises were, on November 1, 1851, conveyed to one Sarah S. Bogert of New York City, by deed which was duly recorded on June 3, 1852; and that Sarah S. Wood, formerly Bogert, of New York City, conveyed the same premises to Daniel B. Pierson of the same city, by deed dated March 28, 1861, and properly recorded May 30, 1862; the certificate of acknowledgment of the last mentioned deed being as follows:</p> <p>“ State of New York, | City & County of New York, J SS‘'</p> <p>On this twenty-eighth day of March, 1861, before me personally came Sarah S. Wood, to me personally known to be the same person mentioned and described in and who executed the foregoing conveyance, and acknowledged to me that she executed the same; and on a private examination by me made, separate and apart from her husband, acknowledged to me further, that she executed the same freely and without any fear or compulsion of her husband.</p> <p>James R. Cummings, Notary Public.”</p> <p>It further appeared that diligent search and inquiry were made for information, in regard to who the said Sarah S. Wood, formerly Bogert, and her husband were, and as to their marriage, without success, both in Mount Vernon, where the premises were situated, and in New York City, and that after exhausting all means of inquiry, no information on the subject had been obtained.</p>

<p>The testator, after directing the payment of his debts and funeral expenses, gave, by his will, five hundred dollars to his executors, to be expended by them in having masses said for the repose of his soul; three hundred dollars to his brother, Michael McEvoy; and devised and bequeathed the residue of his estate to his niece, Mary Ann Murphy. He gave his executors, William P. O’Connor and the Eev. Matthew" Dowling, or the survivor of them, power to sell his real estate, of which he had two parcels at White Plains.</p> <p>The testator died about April, 1883, and his will was admitted to probate in July, following. On November 30th, of the same year, Mary Ann Murphy conveyed said real estate to John A. Walsh, for the expressed consideration of $1,500. By the account of proceedings filed by said O’Connor June 1st, 1885, he stated the amount of the personal estate which came to his hand (the other executor named, not acting), at $1,444.32. This sum did not include two bonds of Jersey City, which were spoken of in Schedule G. of said account, as follows : “ There were two bonds of Jersey City, of the par value of $1,000 each, belonging to the deceased, which did not come into my hands. They were taken by the residuary legatee, Mary Ann Murphy, without my knowledge or consent, and sold by her. They were worth about $2,060, and I respectfully insist that I am entitled to commissions on said amount, as though said bonds, or the proceeds thereof, had come into my hands.” About the time of the filing of said account, Silas D. Gifford, as receiver, etc., of John M. Masterson, commenced by action the foreclosure of a mortgage, the payment of which had been guaranteed by the testator, in which action said executor was made a defendant, and which resulted in a deficiency judgment against the executor, to the amount of $6,679.14, which said Gifford now held, in the character of assignee of said Masterson. The account showed that the executor expended the $500 for masses. Other facts are sufficiently referred to in the opinion.</p>

This was a hearing had in a special proceeding instituted to procure a judicial settlement of the account of Jonathan G. Kittle, as administrator of the estate of the intestate decedent. The facts are stated in the opinion.

<p>Application for probate of will. The facts are stated in the opinion.</p>

<p>Application for probate of will. The facts are stated in the opinion.</p>

<p>Application for probate of will. The facts are stated in the opinion.</p>

<p>A contingent remainder or future estate is authorized by the Revised Statutes, and is valid even although, by the terms of its creation, the first taker is permitted to dispose of the whole, during his lifetime, for purposes other than his maintenance, and thus by his volition defeat the expectant estate.</p> <p>The will of testatrix devised to her husband, J., all her real property, “ to do with as he shall think best ”; bequeathed to him all her personal property, without any terms of restriction, declaring that she wished her “ said husband to do with said property as he shall think best during his lifetime, without any let or hindrance from any source whatever”; gave to a daughter, F., $8,000, to be paid out of her real and personal estate, at and after J.’s death, “ provided there be that amount” in J.’s hands at his decease; and finally repeated that J. might use so much of her real and personal estate as he might wish, during his lifetime, and that, at his death, if $8,000 remained in his hands, that amount should be paid to F., or if the residuum proved to be less, that F. then have whatever so remained, “ to do with as she shall think best.”</p> <p>J. died shortly after his wife, never having taken possession of, or used any of the property, so devised and bequeathed to him, and leaving a will whereby he gave his entire estate in equal shares, to F. and another daughter.—Held,</p> <p>1. That the intention of testatrix was to give to J. a right to use her estate, not merely for his maintenance, but at pleasure, even to its utter exhaustion, during his lifetime, but no power to dispose thereof by will.</p> <p>2. That her will, accordingly, created a contingent remainder, in favor of F., which was valid under 1 R S., 725, §§ 32, 33, and id., 773, § 2; and, the defeating contingency having been rendered impossible by the death of the first taker, the remainderman had the right of immediate possession.</p>

Decedent died September 30th, 1886, leaving a will which was admitted to probate by the Surrogate of Orange county in October, 1886. On March 24th, 1887, her executors procured an order from the Surrogate affirming an appraisement and making an assessment of the collateral inheritance tax under L. 1885, ch. 483.

Decedent died, unmarried, May 9th, 1887, leaving an estate of about $60,000, a will dated July 7th, 1881, and two codicils thereto, the first dated February 15th, 1884, and the other September 28th, 1886.

Contest, as to disposition of pension, moneys, in executor’s hands, upon judicial settlement of his account. The facts are stated in opinion.

A petition was filed, March 25th, 1887, asking a revocation of the probate of the will of decedent, admitted to probate in this court June 28th, 1886. The grounds upon which revocation was demanded were fully specified in the petition. The names of the executors of the will, who had all duly qualified, and of the legatees named in the will, were all set forth.

In the proceedings for a judicial settlement of executors’ account, Frances W. McGarvey, infant legatee and devisee under the will, filed an objection, showing that the executors had paid a legacy of $10,000 to Edward McGarvey, widower of a deceased daughter of testator, without deduction of legacy tax, and contending that the executors should be personally charged with, and required to pay the tax with interest.

<p>Where a will makes a bequest to one for life, with remainder over, all the benficiaries being in the category of those whose interests are subject to the tax imposed by the “ collateral inheritance tax ” act, L. 1885, ch. 483, the tax on the life estate is to be taken out of the income, and that on the remainder to be deducted from the principal. The fact that the amount of the latter will thus be reduced is no objection, since such reduction is lawfully made.</p> <p>Where the interest of the life beneficiary is not taxable, the amount of the remainderman’s tax is nevertheless lawfully payable out of the principal.</p>

Upon a judicial settlement of the account of executors of decedent’s will, objections were filed by all the parties whose interests were adverse to the claims of the estate of Henry C. Crossman, a deceased son of the testator.

The petition for probate of the alleged decedent’s will, presented by William J. Prout, who was therein nominated executor, set forth, along with other jurisdictional facts, that Robert J. Prout died in London, England, May 29th, 1887, while on a visit there. Angelina Prout, wife of the alleged decedent, appeared as contestant, filing objections, and demanded the examination of petitioner, under Code Civ. Pro., § 2618.

Application of John W. Hunter and George Kissam, executors of decedent’s will, for an order assessing and fixing the amounts of tax due from beneficiaries, pursuant to L. 1885, ch. 483. The essential facts are stated in the opinion.

<p>Under L. 1871, eh. 335, creating the office of public administrator in Kings county (as amended by L. 1882, ch. 124), and giving to that officer prior right to administer an intestate’s estate, “whenever such person shall die leaving any assets or effects ” in the county, and there shall •be no widow, husband or next of kin, etc., the requirement of the existence of property in the county applies only to decedents who, at the time of their death, did not reside within the State of New York; —all the “ assets or effects ” of the estate of a decedent, who, at the •time of his death, was a resident of the State, being deemed to be located within the county of his latest residence.</p>

<p>Contest as to true reading of decedent’s will, on application for probate. The facts are stated in the opinion.</p>

<p>The act, L. 1887, ch. 713, amending the “collateral inheritance tax” act . (L. 1885, ch. 483) is not retroactive so as to govern, in the assessment and collection of a tax on interests passing under the will of a decedent dying before it took effect.</p>

Application, by Thomas Taafe, for probate of decedent’s will; opposed by Ellen Figueira and another, next of kin. The facts are stated in the opinion.

Construction of decedent’s will, upon application, by Joseph Bruder, therein nominated sole executor, for a decree admitting the same to probate. John Schwartz and another, next of kin of decedent, appeared as contestants.

The district attorney of Kings county, on February 15th, 1888, filed a petition setting forth that decedent died October 24th, 1886, leaving an estate exceeding $500 in value, and leaving, him surviving, no father, mother, wife, children, brother, sister, lineal descendants, wife or widow of a son, or husband of a daughter, having any interest under his will; and praying for a citation to Susan M. Kissam, the executrix, to show cause why the property passing by the will…

<p>Application for costs of proceedings on assessment of “ collateral inheritance ” tax. The facts appear from the brief and opinion.</p>

<p>In order that an infant legatee, to whom the testator stood in loco parentis, be deemed entitled to interest from the death of the latter, it is sufficient that no other provision nor any maintenance, in the meantime, is allotted by the will. That the infant has extraneous means of support is immaterial.</p>

Hearing of objections to account of Simon C. Vedder and Alonzo Sweet, executors of decedent’s will, filed in proceedings for judicial settlement. The facts appear sufficiently in the opinion.

<p>Construction of will on application for probate. ■ The facts appear sufficiently in the opinion.</p>

Contest over creditor’s claim, upon judicial settlement of account of William Glidden, as executor of decedent’s will. The facts appear sufficiently in the opinion.

Constktjction of will, on judicial settlement of account of administrator, with decedent’s will annexed. The facts are stated in the opinion.

Assessment of “ collateral inheritance tax,” under L. 1885, ch. 483, upon legacy to adopted child of decedent. The facts appear sufficiently in the opinion. The Parties in Interest appeared,, in person, and submitted their case to the court.

Hearing of objections to account of administrator of decedent’s estate. The facts are stated in the opinion. The Parties in Interest appeared, in person, and submitted their case to the court.

Construction of decedent’s will, in special proceeding instituted to procure a decree judicially settling the account of A. F. Southerland, as sole trustee thereunder, and directing a distribution of the fund.

Cohstbhotioh of decedent’s will, upon judicial settlement of account of executor thereof; whereto objections were filed by the residuary legatee.

<p>The paper propounded as decedent’s will, and which purported to have been executed by making a cross-mark, was accompanied by a full attestation clause, and was witnessed by the draftsman, since deceased, and another whose memory, as to the circumstances attending the publication, was a blank. No other evidence being adduced to show the making of the mark by decedent,—</p> <p>Held, that probate must be refused, for lack of proof.</p> <p>It seems, that proof of the making of such mark by decedent would have been “ proof of the handwriting of the testator,” within the meaning of Code Civ. Pro., § 2620.</p>

Motion to confirm referee’s report, on judicial settlement of account of Enos G. Laney, administrator of decedent’s estate. Decedent, the accounting party and one Barker, in February, 1883, executed an agreement of partnership providing that the same should continue for seven years, and not be dissolved by the death of any partner, but be carried on by the survivors, and the sum of f2,000, be annually deducted from the deceased partner’s share of the profits.

Decedent died at Rochester, N. Y., on January 17th, 1888, leaving two adult children surviving her, both of whom were insane. Her alleged will dated July 16th, 1883, presented for probate by Platt B. Viele and another, executors therein named, directed nearly the whole of her estate, amounting to over $100,000, to be expended in the erection of a tomb for herself and family.

<p>Declarations of kinship, sought to be introduced in evidence, as a basis of a demand for the grant of letters of administration of a decedent’s estate, to the alleged relative, must come within the rules, which require the declarant to have been a relative, since deceased, who knew or professed to know the facts stated from connection or acquaintance with the family, and whose relationship appears from evidence aliunde.</p> <p>Though evidence of reputation is competent, the testimony, in this regard, of witnesses not acquainted with the facts, and whose information is not derived from those connected or acquainted with the family, is hearsay and incompetent.</p>

Amt Hitchcock, a legatee under decedent’s will, having filed a petition, under Code Civ. Pro., § 2717, for the payment of her legacy, a citation was issued, at the return whereof all parties interested appeared and the executors filed their account. The widow, who was also executrix, presented a personal claim against the estate of her husband and testator, the facts relating to which are sufficiently set forth in the opinion.

<p>Application for probate of decedent’s will, made by Russell Stevens, executor therein named; opposed by William Stevens and another, next of kin.</p>

Decedent died intestate March 14th, 1885, and letters of administration were issued to his widow and one Amos Dow on April 4th, following. On November 26th, 1887, Dow, the acting administrator, filed his account and petitioned for a judicial settlement thereof. The widow and Frank Walker, decedent’s son and next of kin, objected that the administrator had not charged himself with interest upon the estate funds, which had lain in his bank more than a year and a half.

<p>Assessment of tax upon interests of legatee and devisee under decedent’s will.</p>

<p>Motion for order vacating order transferring, special proceeding to Court of Common Pleas.</p>

<p>The existence of a trust provision, in a testator’s will, made to secure the dower right of one therein referred to as his wife, establishes the marital character, in the absence of opposing evidence, of one identified as the person intended, for the purpose of the protection of her rights in a Surrogate’s court.</p> <p>The rule whereby a testamentary direction for the payment of interest or income of a fund, to one to whom the principal is directed to be paid or is given at a future time, is held indicative of an intent to vest the legacy, applies exclusively to cases in which the entire interest or income is so devoted.</p> <p>Testator by his will, gave certain real property to a trustee, with directions to pay, out of the rents, an annuity and the do.wer right of his viSfe, and what remained, during the lifetime of the annuitant and wife, to his heirs at law, and, after the death of the life beneficiaries, to sell the property and pay the proceeds to his heirs at law. The trustee having died, the heir, before a successor was appointed, collected the rents, appropriated the same to his own use, omitted to pay the amounts due to the widow, and died. Upon the settlement of the account of the trustee’s successor,—</p> <p>Meld, that the widow’s claim, arising out of such appropriation was not against the trust estate, and, if disputed by the heir’s representatives, was enforceable only in another tribunal.</p>

<p>As to whether, under L. 1855, ch. 547, the illegitimate child of a mother, who has died leaving a will executed before the birth of the former, has the same rights, in respect of such parent’s property, as are accorded to lawful issue by 2 R. S., 64, § 43, and 2 R. S., 65, § 49,—quaere.</p> <p>The will of a testatrix so dying, is entitled to probate, although it contains no mention of, or provision for such child, and notwithstanding that the maker has failed to provide for the latter by settlement or otherwise.</p>

<p>In a special proceeding instituted to procure the admission to probate of the will of decedent, the right of his father to oppose was assailed by proponent, his widow, on the ground of want of interest, she contending that her infant daughter, H., was a lawful child of decedent, and as such entitled, in case intestacy should be established, to the entire estate, exclusive of proponent’s share.</p> <p>There was evidence that, in 1878, decedent had been married to A., from whom he separated after a cohabitation of several years, without issue; in 1882, decedent became a resident of Connecticut and cohabited with proponent, who, in 1884, in that State, gave birth to H.,—whom dece.dent recognized as his daughter; in the same year, A. procured a divorce from decedent, in New York, the judgment containing the usual prohibition to marry; soon thereafter decedent and proponent were duly married, though not domiciled, in Pennsylvania, whereupon they returned to and resided in Connecticut, until decedent’s death, in 1885.—Held,</p> <p>1. That the marriage in Pennsylvania, being valid there, must be recognized as valid in this State.</p> <p>2. That, the statutes of Pennsylvania and of Connecticut legitimizing a child, so horn and recognized, of parents afterwards intermarrying,— H. was decedent’s sole heir and next of kin, and contestant without standing in court, unless he could disprove the infant’s alleged paternity.</p>

<p>One applying for a new trial, on the ground of newly discovered evidence, must present the affidavits of the proposed witnesses, or explain his omission.</p>

<p>Under Code Civ. Pro., §§ 1312, 1351, the mere pendency of an appeal, taken by an executor from a judgment rendered against him in his representative capacity, is no bar to a motion, made by the creditor under id., § 1825, for leave to issue execution.</p>

<p>Construction of will, upon judicial settlement of account of Charles T. Harbeck and another as executor of decedent’s will.</p>

Assessment of “collateral inheritance tax ” upon the passing of interest under decedent’s will. The facts are stated in the opinion.

Upon the judicial settlement of the account of Frederick F. Nugent, ancillary executor of decedent’s will, Anne Farquharson and another, infant specific legatees, objected to the charge of $3,046.32, being amount of “ collateral inheritance ” tax, with interest, assessed and paid by the executor to the city comptroller, on June 9th, 1887, so far as the same was a charge upon two fifths of the specific legacy bequeathed to Mrs. Lydia D. Farquharson and her four children, on…

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

<p>Application for probate of decedent’s will. The facts are stated in the opinion.</p>

<p>Contest over distribution of trust funds, upon judicial settlement of account of executor of, and trustee under, decedent’s will.</p>

Construction of will upon judicial settlement of accounts of executors of decedent’s will. The facts are stated in the opinion.

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

<p>In fixing the penalty of the bond of an administrator, c. t. a., about to succeed an administrator appointed as in case of intestacy, regard must be had to the amount of an unpaid legacy, although the assets, wherewith to satisfy it may have been distributed among the next of kin.</p> <p>A legacy of “one thousand.” without further words of description, will, for the same purpose,.be deemed to mean $1,000, in view of the circumstance that the beneficiary’s rights might be so adjudicated, iu a proper proceeding, by a competent tribunal.</p>

<p>Where the will of a resident of this State is sufficient in form, and not repugnant in its dispositions to the lex domicilii, it will be sustained by our courts; and the capacity of a non-resident beneficiary, whether a natural or an artificial person, to take a bequest or devise therein contained, will he determined by'the law of the State of his residence.</p> <p>The will of testator, who died domiciled in this State, bequeathed $5,000 to “the congregational church in the town of S., in the county of W., and the commonwealth of Massachusetts/’ adding words further tending to identify the intended legatee. It appeared that there was a religious body, answering to the description, which, however, was not incorporated. But a local statute, in force when the will was executed, and still unrepealed, provided that certain designated officers of religious societies, which this church possessed, should be deemed bodies corporate, for the purpose of taking donations made to them or their respective churches.—</p> <p>Held, that the capacity of the church described to take the legacy was to be tested by the law of Massachusetts, and that the disposition in its favor was in all respects valid and eSectual.</p>

<p>Application for order compelling testamentary trustee to file official bond.</p>

<p>A witness cannot be punished for a contempt, for refusing to answer a question immaterial and irrelevant to the issue upon the trial whereof he is examined.</p>

<p>Petition for order requiring respondent to attend and submit to examination.</p>

<p>Upon an application for the probate of the alleged will of decedent, it appeared, from the depositions of B. and C., the subscribing witnesses, that they severally wrote their names as such, on the paper propounded, and that decedent, in their presence, declared the same to be her will. The deposition of one, S., further disclosed the facts that decedent had acquainted him with her purpose '• to settle” some money she had in America, and, on being informed that two witnesses would be necessary, had asked deponent to find “ two responsible working men,” to act in that capacity; that deponent had waited upon B. and C., obtained their consent to witness the execution, and promised to notify them when to attend, afterward reporting the result to decedent, who said “ all right.” There was no attestation clause.—</p> <p>Held, in the absence of evidence that B. and 0. had been actually summoned,—that their subscription was personally observed or requested by decedent,—or that the latter took charge of, or ever saw, the paper after execution,—probate must be refused for want of proof of the request required by 2 R. S., 63, § 40, subd. 4.</p> <p>The paper propounded as decedent’s will purported to have been executed by cross-mark, was unaccompanied with an attestation clause, and presented, at its end, the names and residences of the subscribing witnesses and the name and mark of decedent, in a confused jumble, which afforded no clue as to the order of time in which the several signatures had been affixed. In the absence of explanatory evidence,—</p> <p>Held, that probate must be refused for want of proof that the subscription by decedent preceded, in time, the acts of the attesting witnesses.</p>

<p>The provisions of 2 R. S., 65, § 49, as amended in 1869, respecting the rights of an “ after-born” child of a “testator,” must be deemed to apply where the will is that of the mother of the one invoking the protection of the statute.</p> <p>Where an alleged will of a decedent is contested by a child born after its execution, the Surrogate’s court has jurisdiction to determine whether the latter is “ unprovided for by any settlement,” within the meaning of 2 R. S., 65, § 49. Only in case such issue is determined in the negative, has contestant any status, as au opponent of probate.</p>

<p>Settlement of decree admitting will to probate.</p>

<p>The only dispositive provision of testator’s will directed the “ executors and executrix to distribute and apportion to my (his) wife and children my (his) estate, in such manner,” and at such time as they judged to be for the best interests of his wife and children, with power to sell, and distribute the proceeds as they should deem best for the interests of all. The widow and three of the children were nominated executrix and executors. The remaining three children were infants.—</p> <p>Held, that the beneficiaries were entitled to equal shares of the estate.</p>

<p>Application to punish parties for contempt, in disobeying order directing the «payment of money.</p>

<p>Petition, under Code Civ. Pro., § 1865, for probate of a will of decedent, alleged to have been lost or destroyed.</p>

Hearing of objections interposed by a creditor, to account of administratrix of decedent’s estate, in proceedings filed for judicial settlement. The facts are stated in the opinion.

Hearing of exceptions taken by executrix to report of referee, to whom, were referred her account, and creditors’ objections thereto, filed in proceedings for judicial settlement.

<p>Construction of will, on judicial settlement of executors’ account.</p>

<p>Assessment of tax, pursuant to L. 1885, ch., 483, and L. 1887, ch. 713, upon estates passing under decedent’s will.</p>

<p>In a special proceeding, instituted by executrix, under Code Civ. Pro., § 2706, to discover certain personal property alleged to belong to decedent, and to be in the possession of respondent, the latter filed an answer, setting forth “that the only chattels or property of any kind in the possession of this respondent were and are such ornaments which were, preceding the death of said” decedent, “given to this respondent by said decedent ”.....“ and that the same is her own property; and that the said ” executrix “ has no title or interest therein ; and that she has no books or papers or property of any kind belonging to said estate.”—</p> <p>Held, insufficient to justify a dismissal of the proceedings.</p>

<p>Settlement of decree admitting decedent’s will to probate.</p>

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

<p>Construction of will, upon judicial settlement of executors’ account. The facts are stated in the opinion.</p>

<p>Construction of will on application for probate.</p>

<p>Application for re-taxation of costs in proceedings for the judicial settlement of trustees’ account.</p>

<p>Assessment of “ collateral inheritance tax.”</p>

<p>Taxation of costs, upon entry of decree admitting will to probate pursuant to verdict certified from Common Pleas.</p>

Motion to dismiss petition for revocation of probate of decedent’s will, on the ground of failure to make a legatee, named in the will, a party to the special proceeding.

Hearing of objections to regularity of proceedings instituted to dispose of real property of decedent. The facts appear in the opinion.

<p>Construction of testamentary disposition of personal property, pursuant to Code Civ. Pro., § 2624.</p>

A petition was presented on behalf of Robert F. Todd, executor of decedent’s will, alleging, among other things, that John A. Todd has in his possession certain savings-bank pass-books of the deceased, and of which she was the owner and holder at the time of her death, and which he withholds from the petitioner; and praying an inquiry concerning the same, and that said John A. Todd might be cited to attend and be examined on the subject.

On the occasion of the probate of the decedent’s will, the court was asked to construe certain provisions of the same, in so far as they purport to dispose of personal property, and to determine the validity of such provisions. They were embraced in the fifteenth and sixteenth clauses.

<p>On the judicial settlement of the accounts of the executors, a question involving the construction of the will of the testatrix, was submitted to the court, which is sufficiently stated in the opinion.</p>

Application, by Bersbeba Chipman, a creditor, for decree directing the disposition of decedent’s real property, for payment of debt.

Citation to show cause why decree admitting decedent’s will to probate should not stand, and why respondent should not be bound thereby, as if he had been cited upon the application for probate. The facts are stated in the opinion.