Volume 6 — Mills's Surrogate Reports

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

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

Application under section 2707, of the Code of Civil Procedure to examine a person regarding personal estate alleged to have been in possession of decedent.

<p>Depositions—Depositions on commission—Order for commission—Open commission—When surrogate will vacate order granting.</p> <p>Where, in a proceeding for the probate of a will involving the interests of an infant contestant, an open commission has been granted upon the application of the proponent to take the testimony of a foreign witness and the special guardian applies for an allowance from the estate to defray his expenses in attending the execution of the commission or employing counsel to represent him and the proponent opposes such allowance, the court, being without power to order the allowance, will vacate the order for an open commission and make an order providing for a commission to take the testimony upon written interrogatories.</p>

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

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

<p>Motion to vacate and set aside a referee’s report.</p>

<p>Trust : Nature and elements in general—Gift to corporation for corporate purposes does not constitute a trust; the trustee, appointment, etc.—Beneficiary as trustee.</p> <p>Corporations—Incorporation and organization—Contents of articles.</p> <p>Where a testator gives to an incorporated hospital a sum of money, to be used, while said corporation maintains a hospital in Troy, for maintaining a room for the use of persons to be admitted in a certain manner, two churches of said city having respectively the first and second right to select those who shall occupy it, and with the provision that the corporation shall before receiving the fund execute an agreement to administer the fund as required by the will of the testator; and where the intention and purposes of" the testator are all within the corporate powers of the corporation, whose board of directors is competent to make rules and regulations-to carry out the details of the testator’s expressed wishes, held that it was the intention of the testator to make an absolute gift to the corporation for the purpose of its incorporation, not limited, to the period during which it might maintain a hospital in Troy, the income to be used for a certain length of time in a particular-manner.</p> <p>The certificate of incorporation of a hospital association is not invalidated by reason of a statement therein that the object of the-corporation shall be erecting, establishing and maintaining a hospital and dispensary nor because it specifies an intention to receive persons, who wish to pay for treatment.</p>

<p>Proceeding for an intermediate 'accounting.</p>

<p>Proceeding upon the judicial settlement of the accounts of' executors.</p>

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

<p>Objections to the report of a referee.</p>

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

<p>Accounting by an executor.</p>

<p>Construction of third clause of will.</p>

<p>Wills—Interpretation and construction—Terms defining quantum OR DURATION OF ESTATES OR INTERESTS-RULES AND IMPLICATIONS- “ Heirs ” or “ children ”—Words of inheritance or purchase.</p> <p>Where a testator appointed two trustees to hold- certain securities and re-invest the same when paid and pay the interest, one-fifth to his son and four-fifths to his grandson, the latter’s interest to be paid for his support and education until he was twenty-one and after that to him directly; and the interest to be paid to the son and grandson during their natural lives; at the death of the son the whole interest to be paid to the grandson and at the latter’s death the principal to be paid to his children if he should have any, and, if not, to the testator’s granddaughter “or her heirs”; upon the judicial settlement of the accounts of the trustees after the death of the grandson without children, held, that the testator’s granddaughter took a vested remainder in the fund upon the testator’s death, the payment thereof to her only being postponed, and that such remainder was not divested by the death of the grand-</p> <p>daughter prior to that of the grandson, the words “or her heirs” being equivalent to the words “and her heirs” and not denoting a limitation of the granddaughter’s estate nor being words of substitution, importing that her heirs should take as purchasers,, but that such remainder passed under the granddaughter’s will upon her death subject to the beneficial use for life of the son and grandson of the original testator and on the grandson’s death subject to the life use of the son; and, upon consent of the parties under such construction of the will, four-fifths of the principal will be paid over to the granddaughter’s executor and one-fifth retained and the interest thereon paid to the son annually during his life.</p>

<p>Wills—Interpretation and construction; designations and descriptions of persons, etc.—Rules and implications—Limitations upon death—Time referred to—Heirs; terms defining the nature and QUALITY OF ESTATES OR INTERESTS-FUTURE INTERESTS AND VESTING—■ Direction to convey, etc., at future time.</p> <p>Where a testator, after directing his executors to set apart and invest a specific sum in trust for the life use of a certain person and to pay the income to her annually after two years from his decease, directs the payment of the principal of the trust fund at her decease to the heirs of his body then surviving in equal shares, and he is survived by two daughters, the title to the trust fund does not vest Until the death of the cestui que trust. ‘</p> <p>Only one of testator’s daughters having survived the cestui que trust she is entitled to one-half of the trust fund; and the son and granddaughter of a daughter of the testator who died before the cestui que trust are entitled, as living heirs of the testator, to the remaining one-half of the trust fund and the accumulated interest thereon in equal shares.</p>

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

<p>Proceedings upon the judicial settlement of the account of an executor.</p> <p>Under the will of the testator all his residuary estate was left in trust, the income to go to his wife for life, with provision for the distribution of the principal after her death.</p> <p>The executor paid to 'the widow sums aggregating $850, as follows:</p> <p>Mourning apparel.............................. $200</p> <p>Widow’s sustenance............................ 200</p> <p>In lieu of articles mentioned in section 2713, subdivision 3, Code of Civil Procedure..................... 150</p> <p>Subdivision 4.................................. 150</p> <p>Subdivision 5.................................. 150</p> <p>These payments were objected to by the trustee and the special guardian, although it was admitted that, if any payments for these items were proper, the amounts were not excessive.</p> <p>At his death the testator was the owner of a seat in the New York Stock Exchange and was a member of a stock exchange firm. The decedent contributed no capital to the firm and had no capital account on the books of the firm. He was allowed interest on his seat at a fixed valuation. Under the articles of copartnership the firm was to continue for sixty days after the death of any partner. The firm so continued after the death of the testator and the profits of the firm during this period, to which decedent would have been entitled if living, amounted to $5,569.75, part of which the executor paid to the widow. The question was raised by objections to the account as to whether this sum should go to the widow as income or to the trustee as capital.</p>

<p>Application to record a will proved in another State.</p>

<p>Proceeding for the removal of an executrix and testamentary trustee and the judicial settlement of her accounts.</p>

<p>Case: -When authorized or required—On appeal from surrogate’s DECREE-On TRIAL OF ISSUES OF FACT: SCOPE AND CONTENTS; NECESSITY OF INCORPORATING EVIDENCE—To REVIEW SURROGATE’S DECREE ON TRIAL OF ISSUES OF FACT; CERTIFICATE BY SURROGATE.</p> <p>An appeal from a decree in a proceeding to prove a will, rendered upon the trial of an issue of fact, must be heard upon a case made and settled by the surrogate as provided by section 2576 of the Code of Civil Procedure.</p> <p>Where the exceptions to the decision of the surrogate in such case contain a specific exception to his findings as to the sanity of the decedent, and it is proposed to incorporate them in the record on appeal, there must be included in the case all the evidence which any party to the proceeding may claim to be material to the determination of the questions to be passed upon by the appellate court.</p> <p>Where the question whether the surrogate erred in receiving the testimony of witnesses over objection to their competency under sections 829 and 834 of the Code of Civil Procedure is raised, it cannot be intelligently determined whether the exCAptant was prejudiced by the ruling, if erroneous, unless there is included in the case on appeal all the material evidence.</p> <p>The statute requiring that the determination that the exceptant was not prejudiced by the rulings objected to must be reached by the appellate court, respondents’ request, that the surrogate certify that in his opinion the appellants were not prejudiced by his rulings so excepted to, must be denied.</p>

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

<p>Executor and administrators—Eights and liabilities between representative AND ESTATE: DEALINGS OF REPRESENTATIVE WITH ESTATE-Purchase of property; Items charged or credited—Debts of personal REPRESENTATIVE TO ESTATE—PAYMENT; ALLOWANCE-COUNSEL FEES-IN PROCEEDING TO REMOVE EXECUTOR.</p> <p>Where executors successfully resist a motion to remove them from office, a' reasonable counsel fee is a proper charge of expenditure against the estate.</p> <p>Where executors sell a steamboat belonging to the estate to themselves and turn it over to a corporation which they organize, the sale is void and they are chargeable with the inventory value of the boat.</p> <p>Where executors turn a business, conducted by them and in which their decedent had considerable money invested at the time of her death, into a corporation and issue stock therein to themselves as executors, in payment of the money due by them to the estate, they will be surcharged with the amount due decedent on the day of her death with interest.</p>

<p>Guardian and ward—Appointment, qualification and tenure of guardian—Eight to appointment—Nomination by infant—Right of FATHER.</p> <p>The natural right of a father to act as the guardian of his own children will be refused recognition, only where the father is not a fit person and the interests of the infants require the appointment of some one else.</p> <p>Evidence, upon the application of an infant over fourteen years for the appointment of a maternal aunt as the guardian of her person and property and for the appointment of a matérnal uncle as guardian of two other children under fourteen years, opposed by the father of the infants, considered, and the father appointed guardian of their persons and a trust company guardian of their property.</p>

<p>Proceeding upon the judicial settlement of the accounts of executors.</p>

<p>Proceeding upon the accounting of a testamentary trustee.</p>

<p>Executors and administrators—Eights and liabilities between representative AND ESTATE—CLAIMS BY PERSONAL REPRESENTATIVE—EVIDENCE.</p> <p>The payment by an executor of a mortgage upon a farm devised to him by his mother with the funds of the estate, before any effort to legally establish an agreement by testatrix to pay it, is unauthorized.</p> <p>Where the evidence in support of such alleged agreement by the mother to pay said mortgage is given by the executor’s son and his sister and is to the effect that testatrix had stated that, if her son, the executor, would buy the place and make repairs, she would pay five hundred dollars of the purchase price if he would pay the balance of fifty dollars; and where it is conceded that she paid three hundred dollars of the purchase price, and Ms attorney testifies that, at the time of the preparation of the will, nearly five years before, testatrix stated that she intended to pay off the mortgage from the money she expected to receive, but she did not wish to make a provision in her will for such payment, the agreement of the testatrix to pay said mortgage is not made out, and an item crediting the executor with the payment of the same will be disallowed.</p>

<p>Appeal by the comptroller of the State of ¡New York from a decree confirming appraiser’s report.</p>

Motion by Charles and Clara Williams to set aside former order of this court assessing tax, on the ground of want of jurisdiction.

<p>Wills—Disposal by will—Testamentary capacity—General principles AND DEGREES OF ABERRATION-DRUNKENNESS.</p> <p>Where, pending the trial of a proceeding instituted by testator’s wife to have him declared incompetent on account of being a habitual drunkard, he left his home and took up his residence with a woman who served him faithfully as a nurse up to within a short time of his death, during which time he executed two holographic wills by the terms of which his wife was given what she would be “ entitled to by law;” and where the last will is duly executed with all the formalities required by the statute about a year prior to his death, at the age of sixty-six, and about three months prior to the payment to his wife of $15,000 in cash and securities and the conveyance to her of certain real estate all in consideration of her agreement to release him and his estate from any further claim, such settlement being equivalent to more than one-third of his estate; and where the disposition of his estate under his last will which, after making provision for his mother, his nurse and several friends, gives the residue of his estate to his sister and nephew share and share alike, cannot be deemed otherwise than reasonable and natural; and where the only evidence of a serious nature to impeach the testator’s testamentary capacity. is the testimony of an alienist that the testator was suffering from chronic alcoholic insanity but, though the witness was of high reputation, h'is opinion was based upon a hypothetical question that failed to embrace many of the salient facts, the will should be admitted to probate.</p> <p>Where there is a conflict between expert testimony as to the testamentary capacity of testator and the testimony of the subscribing witnesses, one of whom is a practicing physician having unusual opportunity for diagnosis, examination and observation of the testator, the 'testimony of the subscribing witnesses should prevail.</p> <p>A drunkard may make a valid will if, at the time of its execution, he comprehends the nature, extent and disposition of his estate and his relations to those who have or may have a claim upon his bounty, and is free from fraud or coercion.</p>

<p>Wills—Disposal by will—Testamentary Capacity—General Principles and Degrees of Abberation-Drunkenness.</p> <p>Upon the question of the competency of a testator, where the objection thereto is based upon his use of intoxicating liquors, in order to warrant a refusal to probate the will it must appear that at the time of making it the testator was so much under the influence of the intoxicant as to be unable to bring to its execution the calm judgment which the law requires; and, where the will is shown to have been drafted and executed under the direction of a reputable attorney, who explains in minute detail the character of the testator and the nature of the instructions given, in all of which he is corroborated by other witnesses, the will should be admitted to probate.</p>

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

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

<p>Wills—Disposal by will—Mistake, fraud and undue influence, etc.— Evidence and facts establishing or disproving undue influence, etc.—Relation of parties.</p> <p>Surrogates’ Courts—Nature and extent of jurisdiction—Probate and construction of wills—Construction—On proceedings for revocation of probate.</p> <p>Where a will bequeaths the principal part of the estate of the testatrix to her nephew, whom she appoints the executor thereof, and she requests him to give such amounts as he may deem fit to her friends who were kind to her in her declining years; and it appears that for some time preceding the execution of the will the residuary legatee had been the attorney of the testatrix and that he drew the will and superintended the details of its execution, but it appears •that all the statutory formalities were observed in the execution of "the will, and the subscribing witnesses, who were intimately acquainted with the testatrix, spoke in unequivocal terms of her testamentary capacity and freedom from restraint at the time of the execution of the will; and the testatrix was a woman of fair intelligence and business ability, and at the time of the execution of the will she stated to the attesting witnesses that she was familiar with its contents, and the legatee was a nephew of the testatrix of whom she had previously spoken in commendatory terms, calling him her favorite nephew, and it does not appear that any other person possessed any stronger claims upon her bounty or was a more natural object of her testamentary benefactions than he, the probate of the will should mot be revoked.</p> <p>In a proceeding before the surrogate for the revocation of the probate of a will under the provisions of articles 2, of title 3, of chapter 18, of the Code of Civil Procedure, the surrogate has no jurisdiction to construe the provisions of the will.</p>

<p>Taxes—Inheritance and transfer taxes—Exemptions—Hospitals ; Iabbabies; Benevolent associations.</p> <p>A bequest to a corporation duly organized for the purpose of carrying on and maintaining a general city hospital is exempt from tax under the provisions of the law relating to taxable transfers.</p> <p>A bequest to a corporation duly organized for the purpose of maintaining and conducting a public library is exempt from tax under the provisions of the law relating to taxable transfers.</p> <p>A bequest to a corporation duly organized to establish and main-' tain within this State a home for friendless or destitute children, and to receive and take charge of such children under the age of sixteen years as may be voluntarily entrusted to them by their parents or guardians or committed to their charge by competent authority, and to provide for their support and afford them the means of moral, intellectual and industrial education; which was incorporated under the Act of 1848' for the incorporation of benevolent, charitable, scientific and missionary sicieties; whose work is charitable in its nature, and which is largely maintained by contributions, none of its officers receiving any compensation for their services; which receives and cares for homeless and dependent children, giving them educational advantages along industrial lines and affords them facilities for moral instruction and eventually secures proper and permanent homes for them, is exempt from .tax under the provisions of the law relating to taxable transfers.</p>

<p>"Executors and administrators—Debts and liabilities of the estatf— Exhibition, establishment, etc., of claims—Statutes of nonclaim or short statutes of limitation of claims—Time of filing consent BY CLAIMANT TO HEARING OF CLAIM ON ACCOUNTING.</p> <p>Under the provisions of section 1822 of the Code of Civil Procedure, consents, signed by the executor and claimants, providing for the hearing and determination of claims by the surrogate upon the judicial settlement of the executor’s accounts, which were signed within six months after the rejection of the claims but not filed until about eleven months thereafter, are inoperative.</p>

<p>Executors and administrators: Rights and liabilities between representative AND ESTATE; ITEMS CHARGED OR CREDITED-RENTS AND-PROCEEDS OF RENT—RENTS OF REAL ESTATE SPECIFICALLY DEVISED; INTEREST ON FUNDS OB PROPERTY—LIABILITY FOB INTEREST ACCRUED BY-DELAY IN PAYING FUNERAL EXPENSES; ALLOWANCES-IN GENERAL-fees or expenses not actually paid: Compensation—Particular-services AND BATE AND COMPUTATION OF AMOUNT OF COMMISSIONS— Services additional to duty as representative—Personal labor op-representative—Repairing and painting real estate.</p> <p>An executor is chargeable on the judicial settlement of his account with rents of the decedent’s real estate which he has collected, including rents collected from real estate specifically devised.</p> <p>An executor is not entitled to be allowed for interest on the bill of the undertaker, forming part of the funeral expenses of the decedent, when he has received moneys and paid them out for other debts of the estate and legacies.</p> <p>An executor cannot be paid out of the estate for his personal labor and services in repairing and painting the real estate of the decedent.</p> <p>An executor cannot be allowed for counsel fees until they have been actually paid.</p>

March 14, 1907, a petition was filed by Mary P. Dater, as executrix, etc., of Urias Dater, alleging herself to he a creditor of the estate of Melbern Van Voorhees, deceased, and praying for a judicial settlemen of the account of said Wetsell and Bryer, -administrators, etc., of said Melbern, and that they he cited to- show cause why they should not settle their account and pay petitioner’s claim.

<p>'SURROGATES’ COURTS-PROCEDURE AND REVIEW—ORDERS AND DECREES-Opening, vacating and correcting—Grounds—What matter only REVIEW ABLE UPON APPEAL.</p> <p>Where letters of administration upon the estate of an Italian are issued to the undertaker who buried him, and, after decedent’s widow came to this country, an inventory of the estate was taken and filed, and, upon the judicial settlement of the accounts of the administrator, for which the widow has been served with a citation and appeared by attorney who was also appointed a special guardian of infant parties, the account showed the whole estate had been used up and paid out by the administrator and that neither in the inventory nor in the final account had anything been allowed for exemptions to the widow or minor children, although the matter was called to the attention of the court upon the day of the judicial settlement, the decree entered thereon cannot be reviewed upon a petition by the widow under section 2481 (6) of the Code of Civil Procedure for an order to show cause why said decree should not be set aside and the administrator directed to pay petitioner for widow’s exemptions; and, in the absence of fraud and collusion between her attorney and the administrator, said decree should be affirmed.</p>

Order to show cause why the appraisal of an. estate should not be set aside and a reappraisal made. Also an appeal from an order assessing a transfer tax.

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

<p>Executors and administrators—Rights and inabilities between representative AND ESTATE: DEALINGS OF REPRESENTATIVE WITH ESTATE,, etc.—Purchase of property; Extent of liability and amount charged—Property sold.</p> <p>Where testator owned forty-five shares of stock of a corporation, which, aided to other shares held by his executor and the latter’s partner, would give the executor absolute control of a majority of the stock, and the executor, desiring to obtain the stock belonging to the estate, sold it in circumstances- which exhibit a deliberate intention to prevent interested parties from bidding, and they having elected to treat the transaction as a consummated sale, which obviates the necessity of determining whether such stock was actually bought on behalf of the executor, he will be surcharged with the fair value of said stock; and, as it was not generally dealt in, the amount persons testified they were willing to pay for it will be-deemed its fair value.</p>

<p>Application by executors for leave to compromise certain claims.'</p>

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

<p>Poor—Duty of public authorities to give belief—Liability of pauper TO REPAY FUNDS EXPENDED FOB HIM.</p> <p>Evidence—Presumptions : Performance of official duty; Performance OF PRIVATE DUTY.</p> <p>A claim by a municipality to be reimbursed from the estate of a deceased person for its care of her in the county poor house during a period of sixteen years, upon a commitment that was only temporary, upon the ground that the claimant was deceived as' to her need of charity or that its officers united with her in perpetrating a fraud upon it, cannot be upheld without proof of some fraudulent conduct.</p> <p>It will not be presumed that municipal officers acted fraudulently.</p> <p>It will be presumed that a person when received into a public charitable institution made truthful answers to all questions asked of her touching her property, in the absence of proof to the contrary.</p>

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

<p>Proceeding upon the judicial settlement of the accounts of.' executors.</p>

<p>Wills—Interpretation and construction—Terms defining the nature AND QUALITY OF ESTATES OR INTERESTS-FUTURE INTERESTS AND VESTING, etc.—Direction to convey, deliver, etc., at future time— Where gift is positive and direct.</p> <p>Suspension of power of alienation—Conditions determining validity of suspension—Limitations suspending alienation for term of YEARS.</p> <p>Where it is necessary, as an incident to the judicial settlement of the accounts of an executor and distribution, a Surrogate’s Court has jurisdiction to construe the provisions of the will although they relate to both real and personal property.</p> <p>Where by words of present gift all the rest, residue and remainder of a testator’s property, real and personal, is devised and bequeathed in equal shares to certain residuary devisees and legatees, sons and daughters of the testator, all adults, their heirs and assigns forever, subject, however, to the following terms and conditions:</p> <p>“ That said estate and property shall not be divided in any way by the owners thereof within five years after my decease but shall during that period remain under the control and management of my executor hereinafter named, and if any of my sons or daughters before named shall be deceased within said five years leaving no child or children, then the share of such one as shall be deceased, shall belong to their surviving brother and sisters, their heirs and assigns forever.</p> <p>“Nothing herein contained shall abridge the rights of my said wife, hereinbefore given to her unless she shall forfeit the same by marrying again after my decease, in which case the bequests to her in the second and third items of this will shall cease and be of no effect and the property herein given shall thereafter pass into the hands of my executor and belong to the seven persons, named herein-before, subject to the same conditions as the other bequests made to them.</p> <p>“Their rights and interests in my real estate, shall be when divided and apportioned to them, subject to the rights of my said wife, as herein fixed and defined,” the title to one share of the residuary estate vested in each of the legatees and devisees named, immediately upon the probate of the will subject to be divested in case of his or her death durnig the five-year period, and such share thereupon to go to the surviving brothers and sisters.</p> <p>The limitation upon the vesting of the absolute fee to the effect that the title of any of the devisees who might die within five years should be divested created no invalidity, but the attempted provision on behalf of the child or children of either of the devisees who might die during the five years, being in contravention of the- statute against unlawful suspension of the power of alienation, was invalid.</p> <p>Under well settled rules of construction the invalid portion of the residuary clause would be eliminated and the valid portion preserved in order to effectuate the general testamentary scheme.</p> <p>The interest of one of testator’s sons who died after the probate of the will and within the five-year period leaving no issue passed to his surviving brothers and sisters.</p> <p>The direction for the accumulation of rents and profits of the real estate was invalid under section 50 of the Beal Property Law (L. 1896, ch. 547) and that for the accumulation of the income of the personal property was invalid under section 4 of the Personal Property Law (L. 1897, ch. 417.)</p> <p>The share of each devisee in the real estate was subject to the . payment of its proportionate share of the widows’s annuity.</p>

<p>Motion for the issuance of a commission.</p>

<p>Evidence—Hearsay—When admissible—Pedigree.</p> <p>On a proceeding for the probate of a will proof of the declarations of the deceased, his wife and a deceased brother of the contestant to the effect that contestant was the son of a brother of decedent’s wife is competent upon the question of contestant’s relationship to the deceased and his consequent right to contest the will.</p>

<p>Wills—The testamentary instrument or act—Execution of will: In general—Sufficiency of acknowledgment ; Signature of witnesses—Attestation by mark: Evidence of execution—Sufficiency of evidence—Testimony of subscribing witnesses.</p> <p>An acknowledgment by the testatrix of his signature to a will is sufficient although he does not sign in the presence of the witnesses.</p> <p>It is not essential to the valid execution of a will that each witness sign in the presence of the other if the witnesses sign in the presence of the testator.</p> <p>Where a will, signed by the mark of the testatrix, is attested by two subscribing witnesses who sign at the end of an attestation clause that fully recites compliance with all the requisites of its valid execution, and it appears that the attestation clause was read aloud in the hearing and presence of the testatrix to one of the witnesses, and there is no proof that any one present dissented from any fact which it recited, the will should not be refused probate because such witness, after having testified that she saw testatrix make her mark, fails to remember on cross-examination that the testatrix made her mark to the will in her presence, but remembers she heard the testatrix say it was her will and although she testifies that she left before the other witness signed the will.</p>

<p>Executors and administrators—Debts and liabilities of the estate— Exhibition, establishment, allowance and enforcement of claims-. —Exhibition and allowance or rejection—What is allowance-AND ITS EFFECT.</p> <p>Limitation of actions : Renewal of obligation—Acknowledgment and» new promise—Acknowledgment of executor after presentation of-claim; Admission by executor in proceeding fob judicial settlement: Accrual of cause of action—Enforcement of trust.</p> <p>Where a claim against the estate of a deceased person has been presented to the personal representatives and, after reasonable opportunity has been given for its examination, they do not offer to-refer it on the ground they doubt its justice or dispute it, the claim, acquires the character of a liquidated and undisputed debt against-the estate.</p> <p>An admission by an executor in open court, upon the proceeding for the settlement of his accounts, that the executors do not take issue? with any creditor who has presented his claim as to the amount due upon it, the time when it accrued or its validity at that time, binds-, the estate and is an allowance of the claim.</p> <p>Where the will of a testator gave to the executors his whole estate, real and personal, in trust for the payment of his debts, .etc., with power of sale to be exercised when, in their judgment, it would be best for his estate, and, his real property being incumbered and unsalable, the executors make no sale thereof for ten years after his death, during which period they have no assets adequate to pay his debts, the executors are trustees for the creditors and the Statute of Limitations does not begin to run against the creditors until the executors have sold the real estate and received the money therefor.</p> <p>In such a case, where it appears that several creditors were told by one of the executors that their claims were all right and would be paid when the real estate was sold, the executors may not thereafter interpose the Statute of Limitations as a bar to such claims upon the settlement of their accounts after they have sold the real estate.</p>

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

<p>Wills—Interpretation and construction—Designations and descriptions OP PERSONS, ETC.-CORPORATIONS.</p> <p>Where a testator gives legacies to religious societies by names which are not their correct corporate names but which plainly describe the respective institutions the testator had in mind, and no other institution of similar name or character claims either of them, the legacies will be sustained in favor of the societies intended.</p> <p>And where a legacy is given in like manner to a Public Library of Phelps, N. Y., and two libraries exist which might have been in the mind of the testator, the character of the libraries, the situation and circumstances of the testator and his means of knowledge of the two libraries taken in connection with the names by which they were known will be considered in determining to which he intended to give the legacy.</p>

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

<p>Motion to dismiss appeal from an order determining the amount of a transfer tax.</p>

<p>Application for the revocation of letters of guardianship.</p>

<p>Marriage—In general—Validity of remarriage—After absence for five years.</p> <p>Wills—The testamentary instrument or act—Revocation and alteration—Revocation by operation of law—Marriage and birth OF CHILD.</p> <p>The marriage in good faith of a woman, whose husband disappeared five years before and who she had reason to believe was dead, is valid as to all the world, unless the first husband reappears and institutes an action to annul the same; and such marriage renders legitimate her child by the second husband, born before her second marriage.</p> <p>Such marriage and the birth of the child accomplish the revocation of the will of the second husband previously executed.</p>

<p>Proceeding upon the final settlement of the accounts of an -executor.</p>

Petition for the revocation of letters testamentary and for the grant of letters of administration. The opinion states the ease.

<p>Application for the sale of decedent’s real estate.</p>

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

<p>Proceeding for the judicial settlement of executors’ accounts.</p>

<p>Application for an accounting.</p>

<p>Application under section 2722 of Code of Civil Procedure for the payment of debts.</p>

<p>Proceedings to compel the payment of a legacy.</p>

<p>Judicial settlement of the accounts of an administrator.</p>

<p>Application for an accounting under section 2727 of the Code of Civil Procedure.</p>

Trial, by consent, upon judicial settlement of an executor’s account, of a disputed claim for services alleged to have been rendered to testator.

Asahel N. Fillmore died at the town of Dix, Schuyler county, N. Y., on the 23d day of August, 1880, leaving a last will and testament which reads as follows: “ Will. “ In the name of God, Amen.

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

<p>Trusts—The trustee, appointments, etc.—Appointment by court—On DEATH OF TRUSTEE: PROCEEDINGS FOR APPOINTMENT.</p> <p>Surrogates’ Courts : Nature and extent op jurisdiction—Trust estates—Appointment on death of trustee: Procedure and review; Notice and citation—Form op citation ; Appearance.</p> <p>The provision of the statute that, upon the death of a last surviving or sole surviving trustee of an express trust, the trust estate vests in the Supreme Court is to be read in connection with the provisons of section 2818 of the Code of Civil Procedure, authorizing the Surrogate’s Court to appoint a successor upon the death of such a trustee; and the trust vests in the Supreme Court only so far as may be consistent with the power to make such appointment.</p> <p>Where the sole surviving trustee of a testamentary trust dies and his executor applies to the Surrogate’s Court for the appointment of a successor and the parties beneficially interested in the trust appear, the Surrogate’s Court acquires jurisdiction to appoint a substituted trustee, although, after the filing of the petition, the Supreme Court makes an order appointing an agent or representative to carry out the provisions of the trusts.</p> <p>The omission of a citation issued upon such a petition to indicate’ that the appointment of a new trustee is sought does not affect the power of the court to make the appointment, where the parties cited have already appeared generally in the proceeding and the petition is sufficient for the purpose.</p> <p>Nor is the objection tenable that the petitioner, the executor of the deceased trustee, had no right or capacity to maintain the proceeding, where all the parties in interest were cited and appeared in the preceding, though no answer was interposed to the petition.</p>

<p>Foreclosure of mortgages on land—Foreclosure by action and sale— Distribution of proceeds and surplus—Distribution in general— Power of Surrogates’ Courts.</p> <p>Surrogates’ Courts—Nature and extent of jurisdiction—Administration of decedents’ estates—Accounting and distribution in general—Real property—Surplus on mortgage foreclosure.</p> <p>The Surrogates’ Court has power to entertain a creditor’s petition; for the distribution of surplus money, arising on the foreclosure of a mortgage, filed after the expiraton of three years from the time-of the granting of letters of administration, although the statute requires that the petition for the disposition of the real property of a decedent for the payment of debts and funeral expenses must be made within that period.</p> <p>An administrator, who pays out of his own funds interest on mortgages upon the real property of his intestate and installments of the principal of one of such mortgages and taxes on the mortgaged premises, is not entitled to be subrogated to the rights of the persons to> whom the payments are made, but stands in the position of one who-has voluntarily made such payments.</p>

<p>Taxes—Inheritance and transfer taxes—Assessment—Appraisal—Of particular property—Property of interstate railroad company-in this State.</p> <p>In appraising, for the purpose of the transfer tax, capital stock, of a railroad company formed by consolidating corporations of this, and other States, having its lines in this and adjoining States, belonging to the estate of a nonresident decedent, for the purpose of' ascertaining the proportion of the property of the railroad company within this State, the court will make an apportionment on the basis of total mileage in preference (1) to the mileage between terminal points or (2) a detailed inventory and valuation of all the pieces of property belonging to the corporation or (3) a computation upon figures drawn from the holes and balance sheets of the company.</p>

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

<p>Proceeding upon the intermediate accounting of a trustee.</p>

<p>Wills—Probate, establishment and annulment—Probate—Procedure. —Sufficiency of evidence.</p> <p>Where the will of one who died in 1907, which was executed in 1864, was found after his death under somewhat peculiar circumstances but in a place where it might reasonably be expected to have been found and the will appears to have been executed in the presence of three witnesses, two of whom are shown to be dead and the third to have wandered away from the city of New York about 1868 and his death to have been reported to have occurred in West Virginia in 1884; and where the handwriting of the witnesses, as well as that of the decedent, is satisfactorily proved to have been drawn in the usual manner by one of the witnesses, with whom the decedent had other relations than those which were limited to the preparation of the will and who was a careful and exact lawyer of the old school; and where declarations of the testator himself not long before his death are proved to the effect that he had made a will forty years ago, and there is sufficient testimony to satisfy the surrogate that the decedent was of sound mind and not unduly influenced, and there is a full and satisfactory attestation clause, the paper will be admitted to probate.</p>

<p>Motion for an advance on account of petitioner’s distributive share.</p>

<p>Proceeding upon the account of a trustee.</p>

<p>Executors and administrators—Eights and liabilities between representative AND ESTATE—CLAIMS BY PERSONAL REPRESENTATIVE—EVIDENCE—SUEETOIENCY.</p> <p>Where a claim is made by an executor for compensation for personal services to the testatrix, his aunt, during the last six years of her life, and the services were not of the sort he was accustomed to perform in the course of his regular business and did not requirespeeial skill or experience, a promise to pay for them will not be implied where none is proved and no payment appears to have been made by the testatrix on account of them during that period.</p> <p>Declarations by the testatrix of her intention to remember her nephew in her will are insufficient to establish a contract on her part to compensate the executor for such services by testamentary provision.</p>

The above case came on before me as surrogate on the 28th day of January, 1908, upon the return of a citation for the judicial settlement of the account of the administrator. The facts before the surrogate are as follows: May 8, 1907, the claimant, O. P. Elliott, presented to the administrator an account against deceased for $551.33, duly verified.

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

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

<p>Wills—Probate, establishment and annulment—Probate—Procedure —Evidence—Sufficiency.</p> <p>Where a paper propounded for probate as a will recites in its testimonial clause that a seal is affixed, though there is no seal on the instrument, and where a blank space of a page and a half occurs between the paragraph disposing of the estate and that appointing the executor, those facts will not authorize the inference that the decedent paused in the testamentary act and left it incomplete, where the testimony of both witnesses leaves no doubt of its execution.</p>

<p>Wills—Interpretation and construction—Actions and proceedings to JUDICIALLY CONSTRUE WILL—STATUTES-CONSTRUCTION INCIDENTAL TO probate—Code of Civil Procedure, § 2624—Authorizes construction as to application of oh. 360, L. 1860.</p> <p>The surrogate has power, and it is Ms duty, under section 2624 of the Code of Civil Procedure, when the issue is raised, to construe a will as to the question of the application of chapter 360 of the Laws of 1860, limiting devises and bequests to charitable and other corporations; but, where the decedent has no husband, wife, child or parent, the statute may not be invoked for the benefit of relatives more remote.</p>

<p>Evidence—Documentary evidence—Judgments—The entire adjudication MUST BE ACCEPTED.</p> <p>A person claiming to be a creditor of a deceased person cannot avail herself of an adjudication establishing the existence of her claim, contained in a former decree settling the account of the administratrix, without accepting the further adjudication, also contained in the decree, that the claim has been paid.</p>

<p>Application by one of the next of kin for the payment to her ■of a part of her distributive share.</p>

<p>Proceeding upon the judicial settlement of the accounts of executors and trustees.</p>

<p>Wills—Interpretation and construction : Terms defining quantum or duration of estates or interests—Rules and implications— Gift of income not implied from gift of corpus to executors to CONTINUE TESTATOR’S BUSINESS: ADMINISTRATION OF ESTATE AND EXECUTION of powers, etc.—Rules and implications—Powers of sale, or disposal implied.</p> <p>Subrogates’ Courts—Procedure and review—Orders and decrees— Operation as bar oh as conclusive evidence—Construction of will conclusive only as to transactions involved.</p> <p>Where a testator gave the residue of his estate to his executors in trust to continue his pawnbroking business until his son reached the age of twenty-five years and until that time provided that the net profits should be paid to his children in the manner directed but that his son’s income should be invested by his executors for his son’s benefit, until he reached said age, when the trust estate should terminate and all the property should go to his son and two daughters or their heirs in the manner directed, held that the provision for the accumulation of the son’s income was valid during his. minority but not thereafter, and that, upon attaining his majority, the son was entitled to have all accumulations of income on bis share paid to him and the future income of his share paid to him thereafter annually during the continuance of the trust.</p> <p>Upon the death of one of the daughters before the death of the father, he made a codicil providing for the division of the property between his son and the surviving daughter and, the latter having died before her brother attained his majority, held that the accrued income upon her share at the time of her death was payable to her personal representatives and the subsequent accumulations of income on her share at the time the son attained his majority were payable to him at that time and the income thereafter, .during the continuance of the trust, annually.</p> <p>The paragraph containing a devise of the testator’s estate, for the purpose of carrying on his business, does not mention the income of the estate, while the following paragraph, directing the application of the income, contains an express disposition of the rents, issues and profits arising from the whole estate. From these and other considerations it was held that it was not the testator’s intention that the income of any part of his estate, not invested in his business, should be applied to its continuance.</p> <p>The devise in trust of all of the testator’s estate for the purpose of continuing his business necessarily involved the conversion and application of the real and personal property not already invested in the business, to make it available as business capital, at the discretion of the executors, and the power to sell the testator’s real estate is therefore necessarily to be implied; and such an implication does not contravene the adjudication in O’Reilly v. Platt, 80 App. Div. 348, that, under the power of sale thus implied, a contract for the conveyance of a certain piece of property was not enforceable.</p> <p>The theory of the construction of the testator’s will upon which a preceding account was settled, though conclusive upon the past transactions and payments embraced in the account, is not a bar to the proper construction of the will as to property thereafter coming into the hands of the trustee.</p>

<p>Surrogate’s Courts—Procedure and review—Orders and decrees—Operation AS BAR OR AS CONCLUSIVE EVIDENCE—ESTABLISHES PRINCIPLE ONLY AS TO TRANSACTIONS INVOLVED.</p> <p>Trusts—Execution and administration of trust—Investments—Must CONFORM TO DIRECTIONS OF THE CREATOR OF THE TRUST.</p> <p>The direction given by a testator in creating a trust, as to the ' securities in which the fund should be invested, establishes for the trustees a positive rule which it is not in their power to disregard without committing a breach of 'trust; but a decree settling the accounts of the trustees is a protection to them as to unauthorized investments shown in the account settled and not objected to.</p> <p>Such a decree, however, though conclusive as to the past transactions which it involves, does not establish any principle or rule controlling future investments, so as to justify a continued disregard of the plain directions of the will or to preclude the remaindermen from objecting to unauthorized investments of the same class thereafter made.</p>

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

<p>Surrogates’ Courts—-Nature and extent of jurisdiction—Probate an» CONSTRUCTION OF WILLS-On PROCEEDINGS FOR PROBATE.</p> <p>Wills—Interpretation and construction—Terms defining quantum or DURATION OF ESTATES OR INTERESTS-RULES AND IMPLICATIONS-LlFE ESTATES WITH POWER TO USE PRINCIPAL.</p> <p>Where a will relates to both real and personal estate, and the disposition of both is inseparably connected, a surrogate, upon application for probate, has jurisdiction, under section 2624 of the Code of Civil Procedure, to construe the provisions of the will so far as. they relate to the personal estate and no further.</p> <p>Where a testator devised and bequeathed to his wife for life the entire use and control of all his estate, real and personal, with full power to use for her own use and benefit and the support of any or all of testator’s children so much of the corpus of the estate as she should elect so to use “ in all respects the same as though said estate and property were her own individual estate,” and also gave her as executrix for the purpose of managing his estate full power to sell the real estate and personal property, and at her death the testator devised and bequeathed any and all of his property not used or expended by her under the powers conferred to his children then living, share and share alike, the widow simply tajees a life estate with power to use the principal.</p>

<p>Domicile—Wife’s domicile as determined by that of the husband. Descent and distribution—In general—Conflict of domestic and foreign laws.</p> <p>A married, woman who had lived for many years with her husband, who had a weakness for drink, in Pennsylvania, cannot acquire a separate legal residence in this State without at least having grounds for legal separation or divorce.</p> <p>Where the wife, in such case, having no grounds for a separation or a divorce, leaves her husband and removes to this State, where she died about a month after, .the distribution of her estate must be made on the basis that she was a resident of Pennsylvania at the time of her death.</p>

<p>Partnership—Firm capital and property: What constitutes partnership property; Sale of share by one partner.</p> <p>Where a partnership agreement between a father and son provided that, in event of the death of either, his wife should “ assume all the privileges and benefits from profits or otherwise as belonged to her husband,” and upon the father’s death the son, in the exercise of an option secured to Mm by his father’s will, purchases all the right, title and interest of the testator in the partnership business except testator’s real estate which was used in said business, the son takes title to all moneys of the firm and its accounts receivable undivided at the date of the decedent’s death.</p>

<p>Subrogates’ Courts—Nature and extent of jurisdiction—In general —Incidental jurisdiction—Attorney’s liens.</p> <p>Attorney and client: The vocation—Admission and nature and tenure of office—Subjection to authority of court: The relation WITH THE CLIENT-SUMMARY REMEDIES OF CLIENT—-NATURE AND FORM OF REMEDY-JURISDICTION OF PARTICULAR COURTS-SURROGATES’ Courts.</p> <p>A surrogate has no jurisdiction to ascertain or to enforce the common-law lien of former attorneys of a testamentary trustee upon books and papers alleged by the trustee to belong to him as trustee and to be necessary to the preparation and settlement of his account.</p> <p>A decree of the surrogate in such a case that the attorneys deliver to the trustee the book’s and papers upon which the lien was asserted would be a deprivation of property without due process of law, whether the decree was absolute or conditioned upon the surrogate’s determination of the lien.</p>

<p>Wills—Interpretation and construction—Designations and descriptions OF PERSONS, OBJECTS AND PURPOSES-RULES AND IMPLICATIONS-Words descriptive of a class—Whether inclusive of members of A CLASS for whom special provision is made.</p> <p>Where a testator gave two legacies of money to nieces, by name, in separate paragraphs of his will, and in the latter clause gave the residue of his estate to be divided equally among his nieces and nephews, the fact that he added in the paragraph in which one of the legacies was given to a niece the words, “ which sum is to be paid to her in addition to her distributive share in my residuary estate as hereinafter set forth,” but omitted these words in the paragraph in which the money legacy to the other niece was given, is not sufficient to warrant a construction by which the niece, the provision for whose legacy did not contain the words quoted, should not share in the residue but should be limited to her specific gift.</p>

<p>Adoption of children—Mode and sufficiency of adoption—Sufficiency OF PROCEEDINGS-COLLATERAL ATTACK.</p> <p>In a proceeding for the judicial settlement of administrators’ accounts, the Surrogate’s Court cannot review an order of adoption made by a county judge which recites all the jurisdictional facts required by the Domestic Delations Law.</p>

<p>Guardian and ward—Appointment, qualification and tenure of guardian—Right to appointment—Questions controlling right—Religion OF PARENTS.</p> <p>Where a stepfather was appointed guardian of the- persons of his stepchildren, after their mother’s death, with the consent of their nearest relatives (sisters of their deceased father), and after his appointment it appears that he is a zealous Protestant; that the father of the infants was a Catholic and one of them expresses the desire to continue in his father’s church; the letters will be revoked and guardianship will be granted to a paternal aunt of the infants who adheres to the Catholic faith.</p>

<p>Taxes—Inheritance and transfer tax—Construction of statutes— Gifts causa mortis—Trusts—Creation and declaration—Deposits IN BANK-In NAME OF DEPOSITOR IN TRUST FOR CHILD.</p> <p>Where a father deposits his own money in a savings bank in his own name as trustee for his son and afterwards makes declaration-affirming the trust, gives notice thereof to the beneficiary, tells him the funds are his but that he desires them kept in the banks where they are deposited so that he may give them his personal supervision, and allows the son possession of the pass-book to have the accrued interest credited upon it, but the possession and enjoyment of the funds do not accrue to the beneficiary until the father’s death, it will be held to have been the intention that the gift should not take effect until the death of the donor; and it is, therefore, taxable under the Taxable Transfer Act.</p>

<p>Application for withholding letters testamentary.</p>

<p>Objections filed to probate of a will.</p>

<p>Wills—Probate, establishment and annulment—Probate—Procedure —Chemical test when ordered.</p> <p>Permission to apply a chemical test in open court to writings upon the face of a paper propounded as a last will and testament to test the quality, chemical composition, etc., of the ink, against the objection of the proponent and without some preliminary preparation for safeguarding the present actual condition of the propounded paper, should not be granted.</p>

<p>Executors and administrarors—Debts and liabilities of the estate— Exhibition, establishment, allowance and enforcement of claims —Exhibition and allowance or rejection—Allowance or admission OF VALIDITY—WHAT CONSTITUTES PERIOD.</p> <p>Money paid—In general—Money paid without bequest of assured for premium on policy payable to person making payment; Money paid for taxes on lands of incompetent; Money paid fob support OF FAMILY ON ASSURANCE OF DECEDENT THAT IT WOULD BE REPAID FROM HIS ESTATE.</p> <p>Surrogates’ Courts—Nature and extent of jurisdiction—Settlement of claims on accounting by representatives—Claims by and against estate in general.</p> <p>Upon the question of the allowance by an executor or administrator of a claim against the estate of a decedent so as to authorize the Surrogate’s Court to decree its payment, a presentation to the representative of a written statement of the demand, showing the amount and what it is for, is not supplied by the personal acquaintance of the representative with the fact of its existence; and a statement of the claim which has never been so presented in the account filed, in a schedule devoted to a statement of all claims presented to the representative against the estate, together with the names of the claimants, the general nature of the claims and the amounts of each, does not amount to an allowance of the claim.</p> <p>And where a claim has been presented to the representative, the widow of decedent, an allowance of the claim is not to be inferred from mere silence but only from some affirmative act of recognition.</p> <p>Where a claim has not been allowed by the representative and is objected to upon the settlement of his accounts, the Surrogate’s Court is without power to pass upon its validity in the absence of the consents provided for by statute.</p> <p>Where it appears that the representative, during the lifetime of the decedent, paid premiums upon a policy on his life payable to her upon his death and that she received after his death the full amount of the policy, in the absence of proof of any request on the part of the deceased to the representatives to pay such premiums, a claim by her therefor should not be allowed.</p> <p>But a claim by the representative for moneys paid for taxes upon the lands of the decedent before his death and while he was incompetent should be allowed, though no request on the part of the decedent is shown; and a like claim for moneys expended for the support of the decedent and his family should also be allowed where the decedent is shown to have told her to keep an account of it and that it would all be paid back out of his estate.</p>

<p>Executors and administrators: Eights and inabilities between representative AND ESTATE—ALLOWANCES COUNSEL FEES—DEFENSE OF REPRESENTATIVE-In RELATION TO ESTATE OF WHICH DECEDENT WAS trustee: Compensation—Right to compensation and persons entitled—Executor of deceased trustee.</p> <p>An executor of a deceased, testamentary trustee is not entitled to commissions upon the trust estate in the hands of his testator at the time of his death, nor even upon sums of money which have since been collected by him for rents and interest on mortgages belonging to the trust estate.</p> <p>But where he is subjected to inconsistent demands by two successors of the original trustee, one a substituted trustee appointed by the surrogate, and the other an agent and representative of the Supreme Court to fulfill the same trust, he will not be required to turn over the trust estate without compensation for his services and the proper expenses which he has incurred in the payment of his counsel.</p>

<p>Wills—Interpretation and construction : Terms fixing plurality or SEVERALTY OF OWNERSHIP OR RIGHT-PARTICULAR TERMS OF DOUBTFUL meaning—Gifts to several—As a class or as individuals : Expenses OF THE ESTATE, CHARGES, ADVANCES AND PAYMENTS OF DEBTS AND LEGACIES-RULES AND IMPLICATIONS-LIABILITY OF INCOME AND PRINCIPAL.</p> <p>Where a trust fund has been constituted by a will whose language imports the testator’s intention that the trust fund shall remain intact, expenses for attorneys’ fees, incurred in the management of the trust estate, should be paid out of the income.</p> <p>Where the testator directed the trust estate to be divided equally among his brother G. and his sister K. and his sister E. and the children of his deceased brother J., share and share alike, and provided that, if any of them should be dead at the time of the decease of the life beneficiary leaving issue, the share or shares of those so-deceased should go to their issues, respectively, and, in case either of his said sisters or his brothers should not then be living but should have heirs of their bodies, the share or shares of those so deceased, should go to their heirs, respectively, it is to be presumed that the testator intended that the estate should be divided into four equal parts, one of which should go to his brother, if living, and to the issue if his brother should be dead; one to each of his sisters, if living, and to the issue of either, if dead, and the remaining share to the children of testator’s deceased brother then living; and, if any of said children should then be dead, that the issue of the dead child should take the parent’s share.</p>

<p>Proceedings upon the judicial settlement of the account of an executrix.</p>

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

<p>Motion to vacate an order.</p>

<p>Suspension of power of alienation : Conditions determining validity of suspension—Computation of period within which alienation may be suspended : Validity of particular future estates—Creation OF more than two life estates.</p> <p>Where the residue of his estate is devised to testator’s wife in trust to collect and receive all rents, issues, income and profits thereof and to apply the same to the support and maintenance of testator’s wife and three children “ until the youngest of my children shall have attained the age of twenty-one years,” a provision that, on the arrival at the age of twenty-one years of testator’s youngest child, the property be sold and converted into cash and the same divided into seven equal parts, one to go to each of his six children and the remainder to his wife, is valid, as the suspension is for a period of not more than one life in being.</p> <p>The term “ the youngest of my children ” was intended to indicate the youngest of the entire class which survived the testator.</p>

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

<p>Wills—The testamentary instrument or act—Revocation and alteration—Right to revoke or alter and how accomplished—Interlineations AND ERASURES.</p> <p>Where, nearly two years after the execution of a last will, certain alterations, interlineations and erasures were made therein at the request of the testatrix by her physician who drew the will, and he, at the time of making such alterations, indicating her signature upon the will, said: “Here is your signature, is that all right? ” to which she replied “ Yes,” and then the witnesses signed their names under a marginal note written in a blank space to the left of the writing of the body of the will, and where the language of the original will can be ascertained, it will be admitted to probate and its provisions carried out in disregard of the erasures, alterations and marginal note.</p>

<p>Proceedings upon the judicial settlement of the accounts of executors in which a construction of the will was asked in order that a decree might be made directing distribution.</p>

<p>Surrogate’s Courts—Nature and extent of jurisdiction—Probate and CONSTRUCTION OP WILLS-CONSTRUCTION-ON PROCEEDINGS FOR PROBATE.</p> <p>Suspension of power of alienation—Effect of separability of estates —Life estates to several with remainder over—Application of INCOME TO THE USE OF MORE THAN TWO PERSONS FOR LIFE.</p> <p>Trusts—Construction of express trusts—Partial validity—Postponing decision.</p> <p>After a last will has been admitted to probate the surrogate has no power to construe it except in so far as an interpretation thereof is a necessary incident to the exercise of some power expressly imposed upon the court.</p> <p>Where several trusts are created and those which render the entire disposition illegal can be separated and the legal upheld without doing injustice or defeating the presumed wishes of the testator, that which is illegal, or which added to others renders the whole illegal, may be cut off and the intention of the testator given effect so far as the statute will permit.</p> <p>Where by the last will of a testator who left him surviving four children and three grandchildren, children of a deceased son, and another grandchild, child of a deceased daughter, the estate was divided into six equal parts to correspond with these six stocks, and the executor was directed to divide one of said parts into three equal parts and to hold each in trust to invest and reinvest the same and to pay over the net income for the maintenance and education of each of three children of the deceased son, and to pay over to them the principal of such equal part, with all accumulations thereon, as they respectively arrive at the age of. twenty-one years, and, in case of the death of either of said grandchildren before arriving at the age of twenty-one years, the executor was directed to divide the share so held in trust for said grandchild equally between the survivor or survivors at their majority, in case of their previous death the same to be added to and form part of the fund held in trust for said survivors, the disposition of each one-third of one-sixth covered by said provision will be sustained, at least in so far as it pertains to the life of each grandchild, and consideration of the validity of any disposition intended to come into play beyond the first life will be postponed until the happening of the event; and the decree entered upon the judicial settlement of the executor, as such, should provide for payment of the fund to himself as trustee.</p>

<p>Executors and administrators—Compensation—Eight to compensation AND PERSONS ENTITLED-EIGHT AS EXECUTORS OR TRUSTEES.</p> <p>Trusts—Compensation—Commissions in two capacities.</p> <p>The same person is entitled to commissions both as executor and trustee when, apart from his executorial duty, there is a devise to him of the subject-matter of the trust, either express or implied; but, in such a case he is not entitled to commissions as executor upon moneys received for .the sale of real estate devised to the trustees and never sold by them as such.</p>

<p>Executors and administrators—Compensation—Particular services AND RATE AND COMPUTATION OF AMOUNT OF COMMISSIONS-WHEN NOT ALLOWED UPON MORTGAGE TAKEN BY EXECUTORS ON SALE BY TESTATOR.</p> <p>Upon an accounting by the executors of a deceased executrix, they are not to be credited with commissions upon a mortgage taken, by the deceased executrix upon a conveyance by her of real estate pursuant to a judgment for the specific performance of a contract made by the testator in his lifetime; where she neither received nor paid out any of the moneys secured by the mortgage in her lifetime, and where the mortgage was not taken by any one from her in place of cash, nor was any one in a position to elect that it should be treated as money.</p>

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

<p>Wills—Probate, establishment and annulment—Probate—Costs— Allowance to unsuccessful contestant—To committee of lunatic.</p> <p>The committee of a lunatic who unsuccessfully contests the probate of a will is not a special guardian appointed by the court to whom costs may be awarded under section 2558 of the Code of Civil Procedure.</p>

<p>Costs—Costs on appeal—Amount and items—Special proceedings— Surrogate’s decree op distribution.</p> <p>Where the Appellate Division reverses a decree of distribution of a Surrogate’s Court with costs to the appellant, costs of the appeal in the appellate court only may be taxed, without disbursements.</p>

<p>Proceeding for the judicial settlement of an administrator’s account.</p>

<p>Wills'—Interpretation and construction: Designations and descriptions OF PERSONS, OBJECTS AND'PURPOSES-RULES AND IMPLICATIONS-Gift to a class—When ascertained : Disposal of the entire estate—Rules and implications—Construction to avoid intestacy— “ Heirs ” as word of substitution and not of limitation.</p> <p>Where a testator gave the income of all his estate to his wife for life and directed his executor at her death to divide his remaining estate between his sisters and brothers or their heirs, share and share alike, and empowered his executor to sell and convey any real estate, necessary to carry out such provision, and where, at the time of making his will and at his death, testator had one brother and two sisters, the intention of the testator was to include within his bounty such persons as answered his description of the beneficiaries at his death, and it should be assumed that the word “ heirs ” was used by him as. a word of substitution and not of limitation.</p> <p>The vesting of the residuary estate occurred after the death of the life tenant and in such persons as were included or answered to the beneficiaries at the death of testator, and, in case of decease during the interim of any such, then in decedent’s heirs.</p>

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

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

<p>Witnesses—Disqualification on death or incompetency of party to COMMUNICATION OB TRANSACTION—PARTIES DISQUALIFIED—EXECUTORS AND ADMINISTRATORS—ADMINISTRATOR TESTIFYING IN SUPPORT OF HIS CLAIM.</p> <p>Where in an administrator’s account the claim in his favor against the estate is fully set out and no objections to the account are filed, he is not disqualified from testifying in support of his claim, nor required to object to his own testimony, by the provisions of section 829 of the Code of Civil Procedure.</p>

<p>Application to remit the report of the appraiser to him for further consideration and report.</p>

<p>Appeal from an order fixing the transfer tax.</p>

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

<p>Executors and administrators—Appointments, resignations and removals—Right to administer—Secondary, special or qualified administration—With will annexed.</p> <p>The half-sister of a decedent, who would be entitled to a distributive share in her estate in the absence of a will, is a person interested in her estate within the meaning of section 2643 of the Code of Civil Procedure, relating to letters of administration with the will annexed, although she takes nothing under the terms of the will.</p>

<p>Proceedings by an administrator under section 2707 of the Code of Civil Procedure to discover property withheld. Motion to dismiss proceeding.</p>

<p>Wills—Interpretation and construction—Terms defining the nature AND QUALITY OF ESTATES OR INTERESTS-FUTURE INTERESTS AND VESTING POSSESSION AND ENJOYMENT-GIFT TO TAKE EFFECT ON DEFEASANCE OF PRECEDING ESTATE.</p> <p>Where a will, after the gift of certain real and personal property to testator’s wife for life, with remainder to his daughter, provided, in case of his daughter’s death before the death of himself or wife, that said property should go to his six grandchildren, absolutely, where the mother dies first and the daughter survives her mother and father the daughter takes the entire personal estate.</p> <p>The daughter, in case of the death of the wife before the testator, takes either as substitutionary legatee or as a remainderman whose interest ripens into possession upon the failure of the particular interest; and under either alternative there is no intestacy.</p>

<p>Taxes—Inheritance and transfer taxes—Exemptions—Benevolent-associations.</p> <p>Money legacies to the Young Men’s Christian Association of Brooklyn, the Brooklyn Society for the Prevention of Cruelty to Children;, and the Young Women’s Christian Association of Brooklyn, given by the will of a testatrix who died after chapter 368 of the Laws of 1905, amending section 221 of the Transfer Tax Law, took effect, are not, taxable thereunder.</p>

<p>Taxes—Inheritance and transfer taxes—Property and interest subject to tax—Estate by appointment by will pursuant to will of remoter ancestor.</p> <p>Where the will of decedent’s father provided that upon her death his executors should transfer the share held in trust for her to her issue as she should hy will appoint,, and, in case of failure to make such appointment, then to such issue absolutely, and she by will exercised the power, the beneficiaries derive their title to the property through the exercise of the power of appointment by decedent, and such property should be included in the taxable assets of her estate.</p> <p>Where by reason of the filing with the appraiser by the children of an instrument in writing by which they elected to take the property under the will of their grandfather, instead of under the appointment exercised by their mother, such property was not included in the taxable assets of her estate, the matter will be remitted to the appraiser for correction.</p>

<p>Taxes—Inheritance and transfer taxes—Property and interest subject to tax—Estates of. nonresidents—Policies of insurance; Notes; Bonds.</p> <p>Where policies of insurance upon the life of a nonresident decedent are enforceable in the State where the companies are incorporated, they are not taxable under the Transfer Tax Law of this State, although they were in this State at the time of decedent’s death.</p> <p>An obligation, whether it is in the form of a negotiable promissory note or in the shape of a bond secured by real estate in the State of which decedent was a resident at the time of his death, if located here, is in either event taxable.</p>

<p>Executors and administrators—Distribution of proceeds of land and OF MONEYS PAID INTO SURROGATE’S COURT ON JUDICIAL SALE—EIGHTS AND LIABILITIES IN GENERAL AS TO PROCEEDS-EXPENSES OF ADMINISTRATION.</p> <p>The proper and necessary expenses of administration, in the absence of personal assets, are payable from the proceeds of the sale of decedent’s land for the payment of debts and funeral expenses.</p>