Volume 7 — Mills's Surrogate Reports

<p>Proceedings on judicial settlement of guardian’s accounts.</p>

<p>Surrogate’s Courts—Procedure and review—Orders and decrees— Operation as bar or as conclusive evidence—Removal of representatives—Adjudication conclusive in subsequent proceedings for accounting.</p> <p>Where, in a proceeding brought for the removal of an executor, upon the sole ground that he was unfaithful to his trust in respect to certain bonds alleged to belong to the estate, it is adjudged that the bondsi ', at the death of the decedent belonged to the executor individually by way of gift from the decedent, the decree entered in the proceeding is res adjudicata upon a motion to confirm the report of the referee by which the account of the executor, which did not include said bonds, was settled, as against the petitioner in the proceedings to remove the executor.</p> <p>Under the express provisions of the Code of Civil Procedure, it was i the duty of the surrogate to find whether the bonds formed part of ' the decedent’s estate, in order to determine whether the executor’s conduct merited the revocation of his letters; and the finding in that regard, so far as it was essential, was a bar to any re-examination of the question upon the motion to confirm the referee’s report.</p>

<p>Executors and administrators : Articles set apart and sustenance FOR SURVIVOR AND CHILDREN—SUSTENANCE—WHERE WIDOW ACCEPTS DEVISE OF ALL TESTATOR’S REAL ESTATE: DEBTS AND LIABILITIES OF THE estate—Exhibition, establishment, allowance and enforcement of claims—Evidence—Degree and sufficiency: Rights and liabilities BETWEEN REPRESENTATIVE AND ESTATE—ALLOWANCES—In GENERAL—Funeral expenses—Mourning attire: Headstone; Counsel fees.</p> <p>A testator who in his lifetime had never earned large wages devised all his real estate, worth four or five thousand dollars, to his widow absolutely and his personal property, amounting to about two thousand, consisting of money in savings bank. Upon the trial of' objections to the account of the executor, held (1) that funeral expenses, $381.50, contracted in good faith should be allowed; (2) $50 for headstone allowed, with permission that parties in interest unite in purchasing and erecting a monument according -to the proved intention of the deceased, a voucher and proof of which must be filed within three months; (3) attorney’s fees of $100 allowed; (4) $120 for widow’s mourning clothes disallowed, no voucher showing its payment by either the executor or the widow having been filed.</p> <p>The widow having accepted the devise of real estate had no claim) under the Real Property Law for forty days’ sustenance, and a charge of $180 therefor was disallowed.</p> <p>A claim of the testator’s daughter, who was given all the household furniture, for repairs to the real estate, gas and other expenses incurred by the testator and paid by the daughter with money which she had earned, was properly allowed.</p> <p>A claim of the daughter for money advanced to pay household expenses and money advanced to her mother for clothing disallowed, the evidence showing that the same was voluntarily contributed for family use and, therefore, not a proper charge against the estate.</p>

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

<p>Wills—Interpretation and construction—Disposal of the entire estate—Effect of death, uncertainty, etc.—Legacies dependent on decease of another.</p> <p>Where testator devised his residuary estate in trust for his wife during life, with power to use the principal, and directed that upon her death the remainder of the estate should be converted into money and, after a legacy to a niece of his wife and one to his nephew, the estate was given to testator’s six children, and the will declares that none of the legacies shall vest until after the decease of testator’s wife, the legacy to the niece, who predeceased her, lapsed and returned' to the general estate.</p>

<p>Wills—Interpretation and construction—Expenses of the estate—■ Charges, etc., a'nd legacies—Rules and implications—Implied CHARGES ON LAND.</p> <p>Money legacies are primarily payable from the personal estate and remain so unless the will .manifests an intention to charge them upon the real estate.</p> <p>Where, at the time of the execution of a will of one owning no real property, her personal estate amounted to about $14,000 and the legacies to $7,700, and ho intention to charge the payment thereof upon real estate of which testatrix died seized appears from the will, the personal estate should be applied toward the payment of the legacies ratably.</p>

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

<p>Matter of the judicial settlement of the account of an executor. The opinion states the case.</p>

<p>Wills—The testamentary instrument or act—Execution of will— Evidence of execution—Sufficiency of evidence—Publication.</p> <p>Where a will was read aloud to the testator in the presence of both witnesses and the will contained a statement that the testator declared “herewith in the presence of the two undersigned witnesses” that after his death a person named should “ inherit whatever estate ” he had; and where the testator thereupon signed the will and the witnesses thereupon signed their names thereto, there is sufficient evidence of publication and request by the testator that the witnesses subscribe the instrument.</p>

<p>Witnesses—Dis qualification bt season of confidential belation—Between ATTOBNET AND CLIENT—EXECUTION OF WILL—WAIVES OF PBIVI-LEQE.</p> <p>In the absence of proof that the nature of a will was referred to in the presence of others at the time of its execution, the testimony of the testator’s attorney, who drew the will but did not witness it, as to his remembrance of its contents is inadmissible, under section 83£> of the Code of Civil Procedure, as calling for knowledge derived from, a communication made by the client in the course of the attorney’s professional employment.</p> <p>The fact of publication of the will to the subscribing witnesses in the presence of the attorney does not constitute a waiver of the prohibition of said section 835.</p>

<p>Wills—Interpretation and construction—Terms defining the nature AND QUALITY OF ESTATES OR INTERESTS-FUTURE INTERESTS AND VESTING POSSESSION AND ENJOYMENT-GENERAL RULE AS TO VESTING; BEQUESTS AT A FUTURE TIME OR ON FUTURE EVENT.</p> <p>In the interpretation of wills the court should adopt the construction, whenever possible, which will avoid intestacy and which is most favorable to the vesting of the estate devised and which will avoid the disinheritance of the remainderman who dies before the termination of •the life estate, unless it appears from the context of the will that the testator had a different intention.</p> <p>Where a testator gives the residue of his estate to his wife during the term of her natural life, and on her death he gives the same to his children “ equally, share and share alike and to the survivor of them, the issue of any deceased child however to take the share of its parent would have taken if living at the time of my wife’s decease,” and it clearly appears from the context of the will that the time of the vesting of the remainder is after the death of the wife, unless both children of the testator and any issue they may have shall die before her, in which event the wife takes the whole estate absolutely; and, no matter in what order the parties interested may die, there is an absolute disposition of the entire estate and no intestacy arises.</p>

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

<p>Wins—Interpretation and construction : Terms fixing plurality or SEVERALTY OF OWNERSHIP OB RIGHT—PARTICULAR WORDS OF DOUBTFUL meaning—Gifts to one and children of another equally—Per STIRPES OR PER CAPITA: DISPOSAL OF THE ENTIRE ESTATE—EFFECT OF DEATH, UNCERTAINTY OR INVALIDITY OR INCAPACITY OF LEGATEES OB devisees—Effect of death of beneficiary in life of testator— Death of remaindermen or other persons to take in future.</p> <p>Under a will which gave to the testator’s deceased wife’s brother the use of a house and lot during life and after his death the house and lot were to be sold and the proceeds divided “ between ” 'the testator’s wife’s brother B, and the children and grandchildren of her deceased sister, C, the devisees take per capita and not per stirpes.</p> <p>Where the executors were directed to sell the house of testator as soon as convenient at private sale or public auction and divide the proceeds into three parts, one of which was bequeathed to testator’s brother, the second part to his sister and the third part to two children of a deceased brother, upon the death of the sister before the testator her legacy lapsed and as to 'her share the testator died intestate.</p>

<p>Executors and administrators—Rights and liabilities between representative AND ESTATE—ITEMS CHARGED OR CREDITED—COSTS IN ACTION BY SURVIVING PARTNERS.</p> <p>Wills—Interpretation and construction—Terms creating legacies AND GIFTS OF INCOME, INTEREST, SUPPORT AND RELEASES OF DEBTS— Rules and implications—Legacies for support.</p> <p>Trust provisions for maintenance when found in wills are usually construed to intend the application of the income from the time of the death of the testator.</p> <p>Where the residuary estate of a testatrix was devised and bequeathed to three daughters and two sons in equal shares, and by a codicil she directed that from the share of the sons and two daughters there should be equally deducted such a sum as would, if added to the share to be received under the residuary clause by the other daughter, make up the sum of $10,000 and that such sum so deducted in equal portions from the shares of the other four children should be held in trust by the executors during the life of said daughter or until she should marry, the income thereof to be paid to her quarterly until her death or marriage, the intent and purpose of the trust was to secure the maintenance of said daughter during her life unless she married and the trust fund should be computed upon the net principal of the estate as of the time of the death of the testatrix, and the executors should pay to themselves as trustees such part of the income as should bear to the whole income the same proportion as the trust fund bore to the entire net principal, and should pay the same over, as trustees, to the beneficiary.</p> <p>Where a judgment, in an action brought by the surviving partners of a firm pf which decedent was a member at her death, provided that costs be paid out of the partnership assets in the hands of the surviving partners after deducting therefrom the sums payable to decedent’s estate, the payment by her executors of a part of such costs will be disallowed upon the judicial settlement of their .accounts, as such costs were to be borne by the plaintiffs in the action as legal owners of the partnership assets to which the executors of decedent had no legal relation except the right to payment of such sums as, upon an accounting by the surviving partners, might appear to be due to decedent’s estate.</p>

<p>Executors and administrators—Eights and liabilities between representative AND ESTATE—INTEREST ON FUNDS OR PROPERTY—SUMS DEPOSITED IN BANK.</p> <p>Where it appears that funds of an estate deposited by an executor and testamentary trustee in a national bank of which he was chief owner had not brought any revenue to the bank nor produced any revenue to the executor and that .there never was a time when the funds were not on hand for payment to those entitled thereto under the will, the executor and trustee will not be charged with interest ■ upon the funds.</p>

<p>Taxes—Inheritance and transfer taxes—Property and interest subject to tax—In general—Estate by appointment by will pursuant TO WILL OF REMOTER ANCESTOR.</p> <p>Where a daughter by her father’s will had the benefit of a trust fund thereby created during life and the power to appoint the persons to receive it at her death, and his will further provided that, if she should fail to make such appointment, the fund should go to her issue; and where the daughter by her will appointed the same persons to receive the fund to whom it was given by the will of her father, she effected nothing by such appointment, since the appointees already • had a vested remainder under her father’s will; and their interests are not liable to taxation as if transferred to them by the will of the daughter.</p>

<p>Executors and administrators—Debts and liabilities of the estate: Enforcement of claims—Evidence—Claims by relatives and persons IN CONFIDENTIAL RELATIONS; NURSING AND BURIAL SERVICES; Board and lodging: Payment and satisfaction of debts and delivery OF PROPERTY OWNED BY OTHERS—PAYMENT BY LEGACY.</p> <p>Where a niece without any legal obligation on her part to do so received her aunt into her home and, in addition to providing her with a home and boarding her, rendered laborious services which during the last two years of the aunt’s life occupied most of the niece’s time and attention day and night, an agreement to pay a reasonable compensation therefor will be presumed.</p> <p>A legacy in the aunt’s will made before such services were rendered will not be deemed a satisfaction of the debt subsequently contracted for those services.</p>

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

<p>Appeal by an executor from an order fixing tax.</p>

<p>Appeal from an order assessing a tax upon a bequest.</p>

<p>Charities : Statutory restrictions as to gifts—Restriction as to proportion of donor’s estate; Interpretation and construction—Application OF CY PEES DOCTRINE.</p> <p>Wills—Validity, operation and legal effect—In general—Cy pees DOCTRINE.</p> <p>A bequest to one who is the treasurer of a hospital in trust to be used as she may deem best towards the interest of the hospital is valid under the provisions of chapter 701 of the Laws of 1893 as amended by chapter 291 of the Laws of 1901.</p> <p>Nor does such bequest contravene the provisions of section 6 of chapter 319 of the Laws of 1848 as amended by chapter 623 of the Laws of 1903 because the will was executed within two months preceding the death of the testatrix.</p>

Eelations between a man and woman, meretricious in their inception, may become matrimonial in character without the aid of a ceremonial marriage; and, in such a cáse, amid conflicting circumstances, continued cohabitation and the birth of a child recognized by the father and treated by him as legitimate during the remainder of his life compel the conclusion that the relation of husband and wife existed between the parties. Proceeding to revoke letters of administration.

<p>Proceeding under section 2722 of the Code of Civil Procedure to compel payment of a demand against the estate.</p>

<p>Proceedings on judicial settlement of executor’s account.</p>

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

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

<p>Subrogates’ Courts : Nature and extent of jurisdiction—Administration OF DECEDENTS’ ESTATES-SETTLEMENT OF CLAIMS ON ACCOUNTING BY REPRESENTATIVES-CLAIMS AGAINST REPRESENTATIVES: PROCEDURE AND REVIEW—HEARING, REHEARING AND DECISION-DECISION-SUSPENDING DECISION PENDING DECISION IN OTHER COURT.</p> <p>The Surrogate’s Court has no jurisdiction, upon the settlement of the accounts of a testamentary trustee who is also one of the beneficiaries of the trust, to pass upon a claim that he should account to the estate for the injury inflicted upon it by reason of his having joined with other beneficiaries in the purchase of a portion of the real estate for their own interest and profit.</p> <p>And the court will not examine such dealings of the trustee with the-estate in order to determine whether or not the trustee is entitled to commissions and thus make an adjudication conclusive upon the parties, but will reserve the question of commissions and leave the parties to settle the question of the trustee’s liability in the Supreme Court where complete relief may be given.</p>

<p>Surrogates’ Courts—The court and its officers—Powers of successor —Completion of proceedings.</p> <p>When the term of office of a surrogate, before whom a proceeding for the judicial settlement of an executor’s account has been heard, expires after he has made a decision but before the findings and decree are completed, his successor in office may sign the findings and make the decree.</p>

<p>Subrogates’ Courts—Procedure and review—Orders and decrees—Enforcement—Contempt—Discharge from imprisonment.</p> <p>The Surrogate’s Court will not discharge from, imprisonment a testamentary trustee who stands committed for contempt for failure to pay over moneys in accordance with a decree of said court, because of inability to pay the fine, where the only proof of Ms inability is Ms own mere general statements that he has no property and no means of earning money except Ms personal services.</p>

<p>Application for an order modifying an amendment order assessing a transfer tax.</p>

<p>Wills—Interpretation and construction—Nature and quality oe estates—Trusts or individual interests—Trusts implied—From precatory words.</p> <p>Where testator gave the residue of his estate to his executors for their use and benefit, with a request to them that a portion thereof be used' for masses for the repose of his soul and the balance to be given to some deserving charity, the prayer that the residue be devoted to the uses mentioned rests only upon the conscience of the legatees and does not impair the personal quality of their ownership.</p>

<p>Executors and administrators)—Actions and proceedings in general— Authority, right and duty—Compromising actions—Actions roa DEATH BY WRONGFUL ACT-EMPLOYMENT BY ADMINISTRATRIX OF DEFENDANT’S ATTORNEY; PROOF AS TO EXPEDIENCY OF PROPOSED SETTLEMENT.</p> <p>Where an administratrix, who has a right of action against a corporation for causing the decedent’s death, has arranged with the corporation for a compromise of the claim, the attorney for the corporation may represent her in an application to the Surrogate’s Court for an approval of the compromise; but upon such application there-should be presented to the court something beside the views of the attorney as to the expediency of the proposed settlement.</p>

<p>Infants—Disabilities in general—Capacity to institute legal proceedings.</p> <p>Surrogates’ Courts—Procedure and review—Petitions—Parties—Infant JOINED WITH ADULT.</p> <p>Where proceedings have been commenced, to revoke letters testamentary granted to an executor, by the joint petition of an infant legatee and her father who is also a legatee, but for a nominal amount, the petition will not be dismissed on the ground that one of the petitioners is, by reason of,infancy, incapable of maintaining the proceeding.</p>

<p>Executors and administrators : Eights and liabilities between representative AND ESTATE—ITEMS CHARGED OR CREDITED—PAYMENTS ON COMPROMISE OF CLAIM: ACTIONS AND PROCEEDINGS IN GENERAL—AUTHORITY, BIGHT AND DUTY—COMPROMISING ACTIONS.</p> <p>Executors should be credited with a sum paid by them in compromise of an action against them on a claim said to have accrued against their decedent, although the claim should afterward be shown to have had no foundation, if they made the settlement in good faith and from a reasonable fear that the litigation for the enforcement of the claim might go against them, or that their success might prove more costly to the estate than a partial surrender.</p>

<p>Life estates—Liabilities as between life tenants and remaindermen —Eight in general—Carrying unproductive property.</p> <p>The charges for carrying unimproved and unproductive property withheld by testamentary trustees from the market for the eventual benefit of the remainder, where the trustees have acted in the exercise of a sound discretion and the property has appreciated in value sufficiently to justify their management, should be charged upon the fund and not upon the income of the life tenant.</p>

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

<p>Executors and administrators—Eights and liabilities between representative and estate—Allowances—Counsel fees—Necessary ob proper items—Expenses of litigation—Beyond point fob reasonable TERMINATION.</p> <p>Credit' for expenses of litigation can be allowed an administrator where such expenses are necessary and for a reasonable amount, and litigation is to be treated as necessary when it has been prosecuted not only in good faith but also in the exercise of a reasonable judgment.</p> <p>Where an administrator brings an action against a savings bank to recover moneys deposited by his intestate and the bank defends upon the ground that the entire deposit has been paid to one acting under a power of attorney executed by the decedent in her lifetime, and that the attorney had a personal interest in the deposit of such a character as rendered the payment valid though made after the death of the decedent; and upon the trial the evidence of the attorney as to the transactions between himself and the decedent were excluded, on the ground that he was incompetent" as a \vitness under section 829 of the Code of Civil Procedure, and judgment was rendered in favor of the plaintiff, but on appeal to the Appellate Division it was held that ' the attorney was a competent witness, and the judgment was reversed j and a new trial ordered; and where upon a second trial the testimony ' of the witness was admitted and the jury found a verdict for the defendant but the judgment was reversed by the Appellate Division on an appeal therefrom because of the improbability of the testimony of the witness who was uncorroborated; and where on a third trial the jury again found for the defendant and the court denied a motion for a new trial, the administrator, in the exercise of a proper discretion, Should then have stopped the litigation; and where, if the administrator had then stopped, he might have paid the debts of the estate out ! of the assets in his hands, further appeals to the Appellate Division and to the Court of Appeals were not within the exercise of a reasonable discretion, where they resulted in depleting the assets which were originally $3,164, so that but $405.88 remained which was inadequate for the payment of the decedent’s debts.</p>

<p>Wills—Interpretation and construction—Terms defining the nature AND' QUALITY OF ESTATES OR INTERESTS-FUTURE INTERESTS AND VESTING, POSSESSION AND ENJOYMENT—DIRECTIONS FOR A DIVISION.</p> <p>Where a testator in different clauses of his will gives a life estate in his real and personal property, respectively, to the same persons-with remainder over in each case to the same persons, which remainders are to become vested in possession at the same instant, but; an application of strict rules of construction to each clause separately would determine that, while the remainders in the real estate-would vest in interest at the death of the testator, the remainders in the personal property would not vest in interest until the death of the primary legatees and would result in an intestacy as to one-third of the residue of the personal estate; and where the will further provides-that, in the event of the death of said remaindermen “ before the legacies hereinbefore bequeathed or devised to them become vested in them or before the time appointed for the distribution of the residue of my personal estate, the legacies or distributive shares or both of the one- or ones so dying shall not lapse but shall pass to their children them! surviving in equal shares,” the legacies and remainder of the personal estate vested upon the death of the testator, and, upon the death of one of said remaindermen, intestate, passed to his only surviving child as primary legatee under testator’s will and were subject to the transfer tax as part of Her estate.</p>

<p>Taxes—Inheritance and transfer taxes—Assessment—Appraisal—¡ Deduction oe value of estate by cíjrtesy.</p> <p>Where a wife dies intestate her husband’s right of curtesy in her real estate should be deducted from the amount of her estate before fixing the transfer tax thereon.</p>

<p>'Executors and administrators—Distribution and disposal op personal estate—Funds, assets and securities por distribution <and ,to pay legacies—Liability op realty—Rents collected by executor.</p> <p>Where, at the time of the making of a will devising and bequeathing to testator’s children in equal shares all the residue and remainder of his estate, his holdings of real and personal estate were such as to demonstrate an intention that the realty should be charged with the payment of specific legacies amounting to $100,000 in case of deficiency of personal assets, a subsequent clause of the will that, in such contingency, the children should take the residuary estate in certain other specified proportions must be disregarded.</p> <p>Rentals received by the executor under a provision giving him full power to lease or convey any or all the testator’s real -estate are applicable to the payment of the specific legacies.</p>

<p>Surrogates’ Courts—Procedure and review—Orders and decrees—■ Opening, vacating and correcting—Grounds—Errors op law ob PACT.</p> <p>Where by misconstruction of law part of the estate of an intestate survived only by cousins and descendants of deceased cousins was decreed to be paid to the descendants of the deceased cousins, the error should be reviewed by an appeal and not by a motion to open and modify the decree.</p>

Proceedings upon the judicial settlement of the account of an administrator subsequent to the account involved in the last proceeding, ante, page 163.

<p>Wills : Disposal by will—Mistake, fraud and undue influence—Evidence—Devise ob legacy to counsel or draftsman—Husband as DRAFTSMAN: THE TESTAMENTARY INSTRUMENT OR ACT—EXECUTION OF will—Evidence of execution—Attestation clause—Not evidence OF FACTS STATED; SUFFICIENCY OF EVIDENCE—CIRCUMSTANCES SUPPORTING PROOF BY HANDWRITING.</p> <p>Where the three subscribing witnesses to a will having no attestation ' clause are dead, but their handwriting and that of the testatrix is established, and it affirmatively appears that at the time of the transaction the decedent was competent to make a will and was under no restraint, the will, though in the handwriting of the testatrix’s husband to whom the whole estate was devised, will be admitted to probate.</p> <p>Semble, an attestation clause which recites the acts required for the due execution of a will is not evidence that such acts were in fact performed, but it shows that the witnesses knew what was required and, to that extent, affects the presumption that arises from the presence of the signatures of the testator and the witnesses that what they did was done with due ceremony and solemnity.</p>

<p>Wills—The testamentary instrument ob act—Execution of will— Sufficiency of attestation.</p> <p>Where at the time the signatures of the testator and witnesses were-subscribed to an instrument it was not properly executed and attested, as a will, but thereafter, as a new transaction, the testator acknowledged his signature, declared his will and requested the witnesses to. attest the same and the witnesses, thereupon, to the knowledge of the-testator, acceded to his request and adopted their previous signatures, as an attestation of the transaction, they may be held to have signed, them as subscribing witnesses within the requirements of the statute..</p>

<p>Executors and administrators—Rights and liabilities between representative AND ESTATE—ITEMS CHARGED OR CREDITED-RENTS AND PROCEEDS OF LAND.</p> <p>An administratrix with the will annexed who is also a tenant in common with another, of certain real estate devised by the will, cannot be called to account by the surrogate for rents collected.</p>

<p>Executors and administrators—Appointment and qualifications of PERSONAL REPRESENTATIVE, RESIGNATIONS AND REMOVALS-REMOVAL OK SUBSTITUTION AND REVOCATION OR MODIFICATION OF LETTERS-In GEN-</p> <p>ERAL—When Surrogate’s Court will not exercise jurisdiction. Subrogates’ Courts—Nature and extent of jurisdiction—In general— Incidental jurisdiction—When court will refuse to exercise JURISDICTION DURING PENDENCY OF ACTION IN SUPREME COURT.</p> <p>Where a doubtful question as to the construction of a will is involved in an action pending in the Supreme Court for the partition, of real property, the Surrogate’s Court will not pass upon the question on a summary application to revoke letters of administration cum testamento a/nnexo, though the question is also involved in the latter proceeding, but will dismiss the application without prejudice to a renewal thereof after the termination of the action.</p>

<p>^Principal and surety—Nature and creation of relation—Nature of contract.</p> <p>A person financially embarrassed, against whom a judgment had been recovered for a large amount andj an action had been begun upon another claim upon which judgment was afterward rendered, gave his wife a general power of attorney and then disappeared and was not seen for several months at the end of which period he was found ill and soon afterward died. During his absence his wife applied to the trustee of his father’s estate to furnish the money with which to purchase the judgments, and to secure this money she gave the trustee, as attorney for her husband and individually, a mortgage on their residence and the judgments ¡were purchased and the trustee took assignments of them. After the execution of the bond and- mortgage, the husband executed to his wife a quitclaim deed of the mortgaged premises. The trustee of the father’s estate carried the bond and mortgage as' an investment of the estate he represented; and, upon the settlement of that estate, assigned to the wife, who was then administratrix of her husband’s estate, he having died, as such administratrix, the bond and mortgage on account of his interest in his father’s estate and at the same time satisfied the judgments which had been .assigned. The administratrix, in thereafter rendering her account of her husband’s estate, claimed that the bond and mortgage were given .as collateral to the judgments and that by the satisfaction of the judgments the bond and mortgage were discharged. Held, that the bond and mortgage, and not the judgments, constituted the principal debt in the hands of the trustee of the father’s estate and were not discharged by the satisfaction of the judgments, but, upon assignment to the administratrix, became assets in her hands for which she should account.</p>

<p>Mabbiage—Evidence and questions of law and fact—Sufficiency— Common law mabbiage.</p> <p>Where a husband after the death of his wife, from whom he had been living separate and apart for several years, agreed with the woman who had been his mistress since the separation to live together as man and wife and they did so live until his death; and, though no ceremonial marriage took place, the testimony is clear that from the death of his wife he, by declarations verbal and written, conduct, repute and reception among neighbors, acknowledged her to be his-wife and her child by him born before the death of his wife to be his lawful son, the former mistress will be held to be the lawful wife of decedent and his widow and entitled to letters of administration upon his estate and said son legitimate.</p>

<p>Application for a compulsory accounting.</p>

<p>Executors and administrators—Distribution and- disposal of personal estate—Computation and adjustment of interests and discharge thereof: Computation and apportionment of income: Funds, assets and securities for distribution and to pay legacies—Whaf IS INCOME.</p> <p>Trusts—The beneficiary, his estate, rights and interest—Eights of BENEFICIARY OF INCOME—WHAT IS INCOME.</p> <p>Where by the will of a testator, who at the time of his decease was the owner of one hundred shares of the common stock of a corporation, his testamentary trustees were directed to pay to a certain person an annuity from the income of his estate and make immediate-payment of the entire surplus of the income to another person, and several years after the death of the testator, under a plan to increase the capital stock of the corporation, the holders of the outstanding common stock had the right to subscribe at par, for cash, an amount of the new increased common stock equal to forty per cent, of the outstanding stock held by them, respectively; and, under an agreement by which every stockholder signing the same covenanted and agreed, but only on payment of the extra cash dividend, to so subscribe and pay for the new stock, the cash dividend so paid to be applied in payment of such subscription; and where the testamentary trustee received, under such agreement, a certificate for forty shares of the new common stock, said shares are no part of the capital of the trust fund but profits in excess of the annuity and belong to the legatee of the balance of the income, as, no matter how said stock was designated on the books of the corporation, it represented actual profits and income from its business and it was from such fund that said dividend was paid; and the mere fact that the stockholders used the dividends so received, under an agreement with the corporation, in purchase of new stock in it, did not destroy its character as an actual bona fide dividend, payable from the profits and income of the corporation’s business.</p>

<p>Executors and administrators—The collection and reduction to possession OF PROPERTY OR CLAIMS OF ESTATE-REMEDIES AND PROCEDURE —Discovery and surrender of assets—Dismissal.</p> <p>Where, upon a proceeding taken by an administrator under section 2707 of the Code of Civil Procedure for the discovery of property alleged to belong to the estate, each witness upon the examination claims title to the property in his or her possession and disputes the administrator’s right thereto, the proceeding must be dismissed, unless claimants consent that the surrogate determine the rights of the parties.</p>

<p>Surrogate's Court—Pro cedure and review—Orders and decrees—Operation AS BAR OR AS CONCLUSIVE EVIDENCE—PROBATE AND REVOCATION OF PROBATE—NOT CONCLUSIVE ON APPLICATION FOR PROBATE OF ANOTHER: PAPER EXECUTED ABOUT SAME TIME.</p> <p>The adjudication that one of .two papers made within a few minutes of each other should' not be admitted, to probate as the will of the-person subscribing it does not constitute a former adjudication of the-question of admitting the other paper to probate.</p>

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

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

<p>Taxes—Inheritance and transfer taxes—Assessment—Appraisal—■ Deduction of administration expenses—Double commissions to EXECUTORS.</p> <p>Where an estate amounts to less than $100,000 at the death of a testator but more than that amount comes to the hands of the executors by the subsequent accrual of interest, each executor is entitled to full commissions, and separate commissions should be deducted in appraising the estate for the transfer tax.</p>

<p>Executors and administrators—Collection and reduction to possession OE PROPERTY 'OR CLAIMS OF ESTATE—PROPERTY CONSTITUTING assets—Estates in real property—Leases so long as rent is paid.</p> <p>Taxes—Inheritance and transfer taxes: Property and interest subject to tax—Property situated in another state: Assessment— Appraisal—Of particular property—Good will oe business.</p> <p>The good will of a business carried on by a decedent at the time of his death is a taxable asset of his estate; but, where the business is one that depends for its success upon the confidence which its patrons have in the personal skill and integrity of those who carry it on, it should not be estimated above the amount the decedent actually realized from it during the last year of his life with his capital and personal assistance.</p> <p>Leases of lands in Japan by the Japanese government at a fixed rent so long as the rent shall be paid are not assets and the interest of a decedent as tenant thereunder is not taxable under the laws relating to taxable transfers.</p>

<p>Taxes—Inheritance and transfer taxes—Property and interest subject to tax—Property situated in another state—Assets distributed THEREUNDER—CLAIM OF DOMICILIARY ADMINISTRATION.</p> <p>Where assets of a deceased person in California are distributed there under the intestate laws of that State pursuant to a decree which adjudges the decedent to have been a resident of that State and do nob come to the hands of the executor in New York, they will not be taxed here; though by a subsequent decree in New York it is adjudged that the decedent was at the time of his death a resident of this State.</p>

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

<p>Executors and administrators—Rights and liabilities between representative And estate—Claims by personal representatives—Evidence—Supeioien c y.</p> <p>Limitation op actions—Revival op obligation—Acknowledgment and-new promise—Form op promise—Presentation op claim and allowance BY EXECUTRIX.</p> <p>The presentation to an executrix by a creditor of the decedent of a claim against his estate and its allowance by the executrix is a liquidation of the claim and fixes a new date for the running of the Statute of Limitations. Such presentation and allowance, in the absence of fraud or collusion, establishes the validity of the claim as effectually as a judgment against the executrix.</p> <p>The claim of the executrix against the estate of the testator founded on her having made a promissory note for his accommodation which she afterward paid, being dependent upon the testimony of her son, the testator’s stepson, who testified to admissions by the testator which were not clear and precise and did not certainly identify the note in question, should not be allowed upon the settlement of her accounts.</p>

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

<p>Executors and admikistbatobs : Administration in general—Jurisdiction AND CONFLICT OF LAWS—FACTS CONFERRING JURISDICTION—WHAT ARE ASSETS—PROCEEDS OF SALE BY EXECUTRIX UNDER VOID POWER: ADMINISTRATIVE AUTHORITY AND MANAGEMENT OF ESTATE—MANAGEMENT AND DISPOSITION OF ESTATE-OF REALTY AND INTERESTS PERTAINING thereto—Testamentary powers—Unnecessary power.</p> <p>A direction to an executor in a will to sell the real estate of the testatrix (to be placed in and become part of her residuary estate, where the will makes no disposition of the residuary estate, is ineffectual as a power of sale; and a sale by the executor thereunder is void and does not divest the heirs at law of their title.</p> <p>The proceeds of such a sale in the hands of the executor are not assets, and he cannot be called upon to account therefor in the Surrogate’s Court.</p>

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

<p>Bankruptcy—Discharge of Bankrupt: Effect: Canceling judgment-AGAINST BANKRUPT—NECESSITY.</p> <p>Surrogate’s Courts—Nature and extent of jurisdiction—Administration of decedents’ estates—Settlement of claims on accounting, BY REPRESENTATIVES-CLAIMS BY AND AGAINST ESTATE IN GENERAL-Effect of discharge in bankruptcy.</p> <p>Where, prior to the death of an intestate, he had been granted a discharge in bankruptcy, the fact that neither he nor his administrator had complied with the provisions of section. 1268 of the Code-of Civil Procedure, whereby a public record might be made of the fact, that a judgment which was a provable debt in the bankruptcy proceedings had been released by the decedent’s discharge, does not entitle the judgment creditor to participate in the distribution of thefestate.</p> <p>Where, upon the judicial settlement of the accounts of the administrator, said judgment creditors filed proof of their respective claims- and asked that said judgments be paid from the estate, the burden is upon them to show that their claims were not released by the decedent’s discharge in bankruptcy.</p> <p>The Surrogate’s Court had jurisdiction and it was its duty to give-effect to the discharge in bankruptcy.</p>

<p>"Evidence—Presumptions: Validity of instruments—Instruments SHOWING ALTERATIONS: ABSENCE OF WITNESSES OR DOCUMENTARY EVIDENCE—Witnesses equally available to either party.</p> <p>.Executors and administrators : Debts and liabilities of the estate— ■In general—Recompensing surety for decedent : Account and SETTLEMENT—'CONTEST, • OBJECTIONS AND HEARING AND SETTLEMENT thereof—Presumptions and inferences—From acts of decedent in HYPOTHECATING ANOTHER’S STOCK.</p> <p>^Principal and surety—Rights and remedies of surety against principal—Recovery over.</p> <p>Where, after the death of a testator in 1908, a certificate of corporate stock, given to his wife in 1906 as a wedding present, was found to he in the possession of a bank claiming to hold it as collateral security for the payment of an indebtedness of decedent to it, and it appears that the assignment of the certificate had been changed by the cashier of the bank erasing the wife’s name as assignee and the original date and writing in pencil, in place thereof, a new date and the name of the bank which thereafter disposed of the stock under án alleged lien thereon and applied the avails thereof on the said indebtedness; and, the cashier not having been called as a witness, there is no evidence tending to show by whose authority or direction the erasures and interlineations in the assignment were made, or the circumstances under which the bank obtained possession thereof; and where it further appears that, shortly before his death, testator, in a conversation with one K., expressly recognized his wife’s title to said stock, the reasonable inference arising from the presumption of the continuance of the wife’s title, though to some extent overcome, is that she consented to the use of said stock as collateral security for decedent’s indebtedness at the bank; and upon the judicial settlement of the executor’s accounts she is entitled to be recompensed from the funds of the estate which had been benefited by the enforcement of the lien of the bank.</p> <p>No unfavorable presumption could be indulged in favor of one party as against the other because of failure to call the cashier as a witness, he being equally available to both parties.</p> <p>The principle that upon one seeking to maintain title under an instrument in writing showing on its face material alterations lies the burden of satisfactorily accounting therefor was inapplicable for the reason that a mere delivery of the certificate as collateral was effectual and no written assignment was necessary.</p>

<p>Wills—Interpretation and construction—Abatement—Obdeb of ABATEMENT.</p> <p>Where a testator’s estate is insufficient to "pay in full a legacy to Ms stepson, an incompetent, a legacy to one of three persons who might become his committee and guardian, and a legacy to a cemetery association in trust to apply the income to the repair and preservation of the family monument and burial lot, the estate will be applied proportionately in payment of these legacies.</p>

<p>Executors and administrators : Rights and liabilities between representative AND ESTATE-ITEMS CHARGED OR CREDITED-LOSS FROM IMPROPER INVESTMENTS OR FAILURE TO INVEST—LOSS ON FUNDS IN HANDS OF EXECUTRIX AS LIFE TENANT: ACCOUNTING AND SETTLEMENT; FORM, REQUISITES AND CONTENTS OF ACCOUNT , AND PETITION FOR ALLOWANCE-Separation of items for disbursements ; Contest, objections and HEARING AND SETTLEMENT THEREOF-BURDEN OF PROOF: DISTRIBUTION AND DISPOSAL OF PERSONAL ESTATE-INTEREST ON LEGACIES AND SHARES —Income, annuities and arrears thereof.</p> <p>Gifts—Delivery and acceptance: In general: Evidence—Inconsistent ACT OF DONEE.</p> <p>Wills—Interpretation and construction—Terms creating legacies AND GIFTS OF INCOME, ETC.-RULES AND IMPLICATIONS—ANNUITIES OR income—Definition and construction.</p> <p>By her husband’s will, of which the testatrix herein was executrix, she was given in lieu of all dower or claim thereto the residuary estate for life “to possess, use and occupy the same, or any portion thereof, and to receive to her own use and benefit all of the rents, profits'and income therefrom.” At his death the husband was a member of a partnership whose capital and accrued profits were in the hands of R. & Co., through which certain ventures of the partnership were conducted. Upon the judicial settlement of the accounts of the executors of the deceased executrix, one of her residuary legatees claimed that the provision of the testator’s will, that his wife should have the “rents, profits and income” of the residuary estate, gave to her the profits from the business conducted through R. & Co. which accrued between testator’s death and the time when the transactions were liquidated.</p> <p>Held, that upon the testator’s death the partnership was dissolved and the surviving partner became the legal owner of all the firm’s assets including the profits to accrue during the period of liquidation and that the sums received by the executrix in settlement of the partnership accounts were principal either for the purpose of administration or for the purpose of investment and enjoyment by her as life’ tenant.</p> <p>Where certain bonds which belonged to the partnership were given by the testator to his wife in his lifetime but she long treated them as part of the assets of that estate, the sum at which they came into her hands as executrix in settlement with the surviving partner and the firm of R. & Co. must be regarded as part of the sum received from, the surviving partner and she was chargeable therewith as executrix.</p> <p>Where testator’s wife, upon receiving the amount of a savings bank account standing in her testator’s name until his death, receipted therefor as executrix, a letter by testator to her written on the eve of a yachting trip indicating either an intention that the account should belong to her or an assurance that it did belong to her is insufficient, evidence of delivery which was essential to a gift either causa mortis* or inter vivos of the account.</p> <p>Where the executrix sold certain bonds belonging to her testator’s, estate, her statement in her account that the proceeds of such sale were embraced in the schedule of her general cash receipts must prevail in the absence of proof to the contrary and the burden is upon the objectant to show that she had not accounted for all moneys received by her.</p> <p>Where, upon the settlement with the firm of R. & Co., there was deducted from $15,610.70, the amount they owed to the testator’s estate,, the sum of $2,659.91 for their charges against said estate, an allowance therefor will be approved though displayed in the account of .the' executrix as a disbursement.</p> <p>By the testator’s will, in ease the net income of his'personal estate, aside from certain annuities, was less than $5,000 in any year during •the lifetime of his wife, she, as executrix, was authorized to sell and? dispose of such portion of the personal estate as might be necessary to' provide her with an annual income of $5,000 or so much thereof as-might be necessary for the payment of personal and living expenses in the style to which she had been accustomed. It appeared by the ac- ■ counts of her executors that there was paid to her for the four years-following her husband’s death $14,900 and that the net income from the personal estate for the same period was but $7,430.54. It further-appeared that the firm enterprises while in process of settlement made-more than four per cent, profit at which rate the income upon the-testator’s estate was more than the sum which his wife used for her support. Held, that, while the sums received by her in liquidation-were necessarily principal and she was, therefore, excluded from the enjoyment of any unusual commercial profit made during liquidation, she could properly apply to her own maintenance so much of the actual! profit thereof as was necessary for her sustenance during the period of liquidation. She was entitled to interest on, her legacy for maintenance, if it was earned; and as she did not exceed this allowance, the amount of $7,469.46, the difference between the net income and what she had received, charged in the account as principal, though disallowed in that form, is properly charged to the income which was included in the amounts received from the surviving partner.</p> <p>The surrogate has no power to charge to testator’s wife as his executrix the loss which she as life tenant alone may have incurred by the investment of funds in improper securities, and her account as executrix cannot be surcharged with such losses.</p>

<p>.Executors and administrators—Distribution and disposal of personal estate—Computation and adjustment of interests and discharge thereof—Computation of shares or distributive funds.</p> <p>By the sixteenth clause of a will disposing of an estate of nearly $900,000, it was provided that, in case the sum of the bequests to six charitable corporations, to each of which was given $30,000, should exceed in value .one-half of the personal estate of which the testator died seized and possessed, the executors should take such a proportionate sum from each of such bequests as would reduce the sum of all to one-half of the personal estate. By the next clause it was provided that, in case the sum of all such bequests should not equal in value one-half of the personal estate of which the testator died possessed, the executors should add such an equal sum to each of such bequests as would cause the sum of all such bequests to equal in value one-half of the personal estate. All the rest, residue and remainder of the property of which the testator died seized and possessed, or which might come to the estate after his death “ and not herein disposed of,” was directed to be divided by the executors into five equal parts. Upon the judicial settlement of the accounts of the executors, held, that the testator intended that his estate should be valued as of the time of his death and that one-half of its value should be used to pay the legacies to the charitable institutions.</p>

<p>Wills—Interpretation and construction—Terms fixing plurality ob SEVERALTY OF OWNERSHIP OR RIGHT—PARTICULAR WORDS OF DOUBTFUL meaning—Gifts to “ heirs,” etc.—Per stirpes or per capita.</p> <p>Where a testator leaves his residuary estate, one-third thereof to the heirs of his three sisters, adding the words “ to be divided among them per capita as well as per stirpes, equally, and in all respects, share and share alike,” a per capita division among the heirs of one of the sisters consisting of a daughter and seven children of a deceased daughter was not intended; but the surviving daughter will take one-half of her mother’s share and the other half will be divided per capita among the children of the deceased daughter.</p>

<p>Evidence—Pabol evidence—The genebal bule and its applications— Admissibility oe pabol evidence to vaby ob contbadict wbitten inSTBUMENTS IN GENEBAL—GENEBAL BULE-LEGIBILITY.</p> <p>Where'there is no illegibility about the word “ten” in a legacy of “ ten hundred dollar's,” parol evidence is inadmissible to change the word “ten” to “two;” although the executors who were present when the will was executed are prepared to testify positively that the scrivener was told to make the legacy two hundred dollars and claim that the word is illegibly written.</p>

<p>Executors and administrators : Articles set apart and sustenance FOR SURVIVOR AND CHILDREN—SUSTENANCE; MONEY FOR SUPPORT OF family: Debts and liabilities of the estate—Exhibition, establishment, ALLOWANCE AND ENFOBCBMENT OF CLAIMS—EVIDENCE—■ Claims by relatives and persons in confidential relations ; Services to decedent.</p> <p>Insane persons—Property and liabilities of incompetents—Liability OF ESTATE FOB DEBTS AND CLAIMS.</p> <p>Wills—Interpretation and construction—Expenses of the estate, CHARGES, ADVANCES AND PAYMENT OF DEBTS AND LEGACIES—RULES AND implications—Implied charges on land—Deficiency of personalty.</p> <p>Where a claim is made by a married woman against the estate of her sister’s deceased husband for the board of her sister during the incompetency of the décedent, and it appears that the board was furnished the sister under the latter’s agreement to pay therefor, the claim should he allowed; but an additional claim for the care of the - sister at another time where there was no agreement to pay therefor and under circumstances indicating that the services were intended at the time to be gratuitously performed should he disallowed.</p> <p>The husband of another sister who presents a claim for the hoard of decedent’s wife, being related to her only by affinity, is not to he presumed to have intended to furnish her board gratuitously; and, where it appears he had been paid for her board on a previous occasion, his claim should he allowed.</p> <p>Where a decedent was not possessed of fuel and provisions at the time of his death, an allowance in money cannot be made to his widow therefor under subdivision 3 of section 2713 of the Code of Civil Procedure.</p> <p>Where a decedent leaves real property in which his widow has dower, she is entitled to forty days’ sustenance, under section 204 of the Real Property Law, which, in the absence of other proof as to its value, may he allowed to her at the rate paid for her board during his lifetime.</p> <p>Where a testator in the first clause of his will gave to his wife the homestead which stood in the names of both as tenants by the entirety, and the household furniture most of which would have been set off to her as exempt, and, in the second clause! of his will, gave two pecuniary legacies “out of the rest, residue and remainder of my property,” and, in the third clause of his will, gave his remaining cash and personal property to his wife, and, in the fourth clause of his will, devised certain specific real property to his executor, in trust, to pay the net income to his wife for life and, at her death, to convert the same and distribute it to his heirs; and where, although it. does not appear how much personal estate the testator had when he made his will, it appears that less than two years thereafter, when he was adjudged a lunatic, he had enough money to pay the legacies, an intention to charge the legacies upon the specific real property left in trust for his wife will not be inferred.</p>

<p>Proceeding for the sale of decedent’s real estate for the payment of debts and funeral expenses.</p>

<p>Appeal from an order assessing a transfer tax.</p>

<p>Suspension of power of alienation—Effect of separability of estates —Separate trusts fob more than two lives.</p> <p>Wills—Interpretation and construction—Disposal of the entire estate—Effect of death, uncertainty or invalidity or incapacity of LEGATEES OR DEVISEES—ACCELERATION OF SUBSTITUTIONAL OR SECONDARY ESTATES.</p> <p>A testator gave to each of three female relatives a pecuniary legacy to be held in trust for them by a trustee and directed that the income thereof should be paid only to the beneficiaries and without control of any person; that each of them so electing should have a portion of the trust funds with which to purchase and furnish a home to be held in her own right free from any control whatsoever and that the remainder of the principal should remain in trust as a protection in old age. The testator directed his residuary estate to be placed in trust for the sole benefit of his mother, the income to be all paid her without the control of any other person, his intention being to provide her with funds in her old age against all possible contingencies and, at her death, the principal and the accumulated income, if any, were to be divided pro rata among the aforementioned pecuniary legatees, respectively, upon the basis of their respective legacies, subject to the trust restrictions appertaining to their several legacies. By a codicil to the will he gave to each of two other persons, both of whom and Ms mother died before the testator, a pecumary legacy and made them, upon the death of his mother, pro rata residuary legatees under the same terms and conditions. Held:</p> <p>The estate, if any, of those named as beneficiaries to take upon, the death of testator’s mother, was accelerated by her death and the will was to be construed as if it contained no suspension during her life and as -if its direction were that the residue should be disposed of in the manner indicated with respect to the first three specific legacies subject to any modification derivable from the codicil.</p> <p>There was an attempted trust as to the residuary estate under which the principal was devised to the trustee in trust to apply the income to the benefit of the first three persons named as legatees and the persons named as legatees in the codicil but in such proportions as their so-called legacies should bear to the aggregate of their legacies.</p> <p>The persons named in the codicil as participants in the supposed trust having died before the testator, the specific legacies to them as well as their interests in the residuary lapsed; and, whether the specific legacies fell into the residuum or became the subject of intestacy, it resulted that the only beneficiaries who might take under the trust, if valid, were the first mentioned legatees.</p> <p>As to each of said first mentioned legatees there was a valid separate trust of one of the several fractions of the residue wMch was subject to no limitation or suspension for any period other than the life of the person for whom the specific fraction was to be held in trust.</p>

<p>Accumulation—What is accumulation—Omission to provide fob application of income.</p> <p>Trusts—Purposes fob which express trusts are" valid—Passive trusts.</p> <p>Wills—Interpretation and construction—Disposal of the entire estate—Disposal of lapsed or void devises or bequests or of otherwise UNDISPOSED PROPERTY—INCOME NOT DISPOSED OF.</p> <p>A residuary estate, after a devise thereof in trust to collect and pay the income thereof to testator’s daughter for life, was devised and bequeathed, in equal shares, to all his grandchildren who might survive him, with direction to the trustee to pay over the share of each grandchild upon its arriving at majority and, in the event of the prior death of any of them leaving lawful issue, such issue to receive the share the parent would have taken if living, and, in the event of the death of any grandchild before reaching full age without lawful issue, its share was directed to be distributed among testator’s surviving grandchildren, share and share alike. Testator was survived by his daughter and two grandchildren. At the institution of a proceeding for an accounting of the trustee, the daughter was dead and one of the grandchildren was of full age and the other an infant.</p> <p>Held, that during the life of the testator’s daughter the trustee held the legal title; that upon her .death one-half of the trust fund was liberated from the trust but the remaining one-half was to remain in the hands of the trustee until the infant grandchild should be entitled to receive the principal, or, upon bis earlier death, it be determined whether the payment should be made to his lawful issue or to the grandchild then surviving.</p> <p>The provisions of section 73 of the Real Property Law, that a disposition of property to one in trust for another is invalid if it be intended that the beneficiary -shall have the right both to possession and profits, is limited to a passive trust for a person intended to have the whole and the absolute use and has no application where the disposition of the property is to one grandchild in one event and to another in the alternative.</p> <p>There being no express requirement that the income should be accumulated, the mere fact that there was no disposition of the income by the will in terms could not impose upon testator’s scheme a feature which would result in its destruction; but in each case the income would be payable to the person presumptively entitled to the next eventual estate.</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—Intention SHOWN BY EXECUTION OF SECOND WILL.</p> <p>A will containing no revocation clause revokes all prior wills of the testator if it is inconsistent therewith and disposes of his entire estate.</p> <p>Where a testator who was a resident of this State, having duly executed his last will therein, afterward executed another will, while temporarily sojourning in another State where he had large real estate holdings, which disposes of his entire estate and clearly shows that his intention was to have it supersede and take the place of the former will, the former will he deemed impliedly revoked by the later will, though the later will contained no revocation clause and named no executor.</p>

<p>Jurisdiction—Nature and essentials in general—Presumptions-— Effect of recitals in judgment.</p> <p>Where, upon petition to remove an administratrix from office upon •the ground that at the time of her marriage to the intestate she was the wife of another, she answers that at the time of her marriage to decedent she had obtained a divorce from her former husband in a court of competent jurisdiction in Ohio, a recital in the judgment entered in that action that: “ The defendant having been legally summoned by publication and having failed to appear, the court find the defendant in default for answer or demurrer to said petition and find that the allegations thereof are confessed by him to be true,” is to be construed as equivalent to a statement that the defendant had at no time appeared in said action prior to the rendering of the judgment; and against such statement in the judgment a stipulation, made part of the record, subscribed by an attorney for the defendant, acknowledging service of a notice in said action, has no force as an appearance; and, the court having acquired no jurisdiction of the person, of the defendant, the letters of administration should be revoked.</p>

<p>Application to reopen a decree assessing a transfer tax. . f</p>

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

<p>Evidence—Presumptions—Birth, death and survivorship—Survivorship..</p> <p>Executors and administrators—Accounting and settlement—Procedure TO OBTAIN ACCOUNTING—FINAL ACCOUNTING BEFORE SURROGATE —Evidence and presumptions on application—Burden of proof.</p> <p>In a proceeding brought by executors for the judicial settlement of their account, the affirmative of the issue and the burden of proof belong to those who claim under a gift of decedent’s personal estate to his wife by his will, where both husband and wife perished upon the same occasion and directly or indirectly as a result of the same events and under the same circumstances that it is doubtful which died first.</p> <p>In such a case, as where both perished in the same casualty, no presumption arises of the survival of either so as to enable one to inherit or take by will from the other.</p>

<p>Gifts—In general—Particular instances—Bank deposits in joint NAMES OF DONOR AND DONEE.</p> <p>Husband and wife—Property" owned jointly or in common—Joint deposit IN BANK.</p> <p>The intention which the law imputes to husband and wife who deposit moneys to their joint credit, that the money shall belong to the survivor, is founded not upon the legality of their marriage relation but upon the impulses which it has been found ordinarily affect persons sustaining such a relation to each other.</p> <p>Such an intention is not repelled by the fact that their marriage was unlawful by reason of the husband having a prior wife living at the time of its solemnization.</p> <p>Nor is the arrangement that the woman sustaining to him the apparent relation of wife should receive portions of the money from time to time at the discretion of a third person, made by the supposed husband in preparation for Ms departure to a foreign country, inconsistent with the intention that in case of Ms death she should have it all.</p>

<p>Executors and administrators—Debts and liabilities of the estate— Exhibition, establishment, allowance and enforcement of claims —.Statutes of non-claim ob short statutes of limitations of claims—Application of statutes—Exceptions—Infancy.</p> <p>The rejection of a claim against the estate of a deceased person presented by a minor does not set in motion the short Statute of Limitations contained in section 1822 of the Code of Civil Procedure, but her special guardian, upon the judicial settlement of the estate, may present the claim and prosecute any remedies appropriate to its - enforcement and collection.</p>

<p>Taxes—Inheritance and transfer tax—Property and interest subject to tax—Property passing under power of appointment.</p> <p>The transfer of such property as is located in this State, only, is-taxable where such transfer is effected by the exercise by a resident of the State of New Jersey of a power of appointment created under the will of a resident of this State who died in 1886.</p>

<p>Appeal from an order entered upon the report of an appraiser fixing the transfer tax upon the estate of a deceased person.</p>

<p>Estoppel—Equitable estoppel and estoppel in pais—Facts creating estoppels—Acquiescence—Consents and permissions.</p> <p>Trusts: The trustee, appointment, qualification, resignation and removal—Bonds and obligations—Bond of testamentary trustee— When to be required : Execution and administration of trust— Investments—Assent of beneficiary.</p> <p>Where, pending a hearing upon a proceeding for the judicial settlement of the accounts of an executor and trustee, it was agreed by the parties in interest that the executor and trustee who was a non-resident might continue investing in foreign real estate and that he might hold certain bank stock for five years from the date of the agreement, the beneficiary of the trust fund who at that time received an advancement is bound by the agreement and is thereby estopped from urging objections to the account that the investments in the foreign real estate were improper and illegal and that the executor and trustee should be charged with the market value of the bank stock instead of its par.</p> <p>Where a will contains no express provision that said executor and trustee may act without security, but no objection was made to the granting of letters testamentary on the ground of his non-residence, he may, under sections 2638 and 2815 of the Code of Civil Procedure, as testamentary trustee, be required to file security in a case where as executor he could not be removed for failure to give it.</p> <p>But where the executor as trustee has not possession of the share of the estate bequeathed to him as trustee until after the death of the life tenant, he should not be required to give security until the trust fund comes to him as trustee after the entry of a decree settling his accounts as executor and directing payment of legacies.</p>

<p>Taxes—Inheritance and transfer taxes—Exemptions—Hospitals ; Benevolent associations.</p> <p>■ Although the services of patients at the Craig Colony for Epileptics are utilized upon its lands to grow foods, or to make products which may be sold by the State and the proceeds used to purchase necessities for the support of the colony, it is, nevertheless, within the meaning of section 221 of the Tax Law, conducted “ exclusively ” for the charitable and other purposes specified in the section; and a legacy to it is exempt from transfer tax.</p> <p>The Woman’s Christian Temperance Union of Ballston Spa, H. Y.; is also within the language of said section, and a legacy to it is likewise exempt.</p>

<p>Proceedings upon intermediate account of an administrator cum, testamento annexo.</p>

<p>Proceedings on intermediate accounting ef executor and testamentary trustee.</p>

<p>Application for letters of administration upon the estate of an intestate.</p>

Proceedings on appeal by the 'Comptroller, pursuant to the provisions of section 232 of the Tax Law, from the assessment of the tax to which the said estate is liable under the provisions of the Taxable Transfer Act.

<p>■<Jikts—Delivery and acceptance—Evidence—Sueeiciency.</p> <p>Where an executor, upon the judicial settlement of his account, claims that a bond and mortgage formerly belonging to the testatrix, his sister, were given to him by her in her lifetime; and his wife testifies that while the testatrix was living with them she wrote upon the bond and mortgage the words “ Jany 31 I have given this have given to Peter ” and signed her name and tendered the papers to her brother Peter in the presence of the witness, saying, “ I give you this Mallory mortgage,” and he, having his arms full of wood and being unable to take it, asked his sister to hand it to the witness, which she did, and the witness afterward put it back with other papers in a box which was used in common by the family, a gift of the bond and mortgage is sufficiently established.</p>

<p>Wills—Interpretation and construction—Designations and descriptions OP PERSONS, OBJECTS AND PURPOSES—RULES AND IMPLICATIONS— Words descriptive op a class.</p> <p>Where a testatrix gives her property “to each of my nephews and nieces named as follows” and names eight persons, seven of whom were nephews and nieces by blood and the eighth either a niece by blood or a niece by marriage, both of whom bore the same name, it will be presumed that testatrix intended the niece by blood, unless it can be clearly determined from the will and surrounding circumstances that she intended a stranger to the blood to be her legatee.</p>

<p>Proceeding upon the final judicial settlement of the ac,counts of executors.</p>

<p>Husband and wife—Property owned jointly ob in common—Nature or estate—Personal estate—Bond and mortgage.</p> <p>Where a purchase money mortgage is given to a husband and wife, the wife having joined in a deed of the mortgaged premises for the-purpose of conveying her dower, upon the husband’s death she takes the mortgage absolutely.</p>

<p>Proceeding for the judicial settlement of the accounts of testamentary trustees.</p>

<p>Consuls—Appearance in litigation affecting foreign interests—Subjects of Austria-Hungary.</p> <p>The Austria-Hungarian consul is not entitled to appear for minors, subjects of Austria-Hungary and legatees under a will duly admitted to probate in this State, in á proceeding for the judicial settlement of the executor’s account, without citation having been served upon them.</p>

<p>Guardian and ward—Aepointment, qualification and tenure of guardian—Eight to appointment—Nomination by infant; Mother.</p> <p>Where, upon an application by a male infant, nineteen years of age, for the appointment of a guardian of his property,,he nominates another person than his mother, and the mother opposes the appoiniment of the ^nominee and prays that letters be issued to her, and it appears that the infant’s motive is to humiliate his mother and indicate his independence in business affairs, and the mother’s motive is to demonstrate to her son her maternal rights and enforce complete obedience to her during minority, the court will appoint neither, but will select a trust company.</p>

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

<p>Proceedings on the contested probate of a will.</p>

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

<p>Recording written instruments and notice of title: Sufficiency of RECORD TO CONSTITUTE NOTICE—RECORD AS DEED OF ABSOLUTE DEED INTENDED AS MORTGAGE: RECORD OF INSTRUMENTS AS AFFECTING PRIORITY —Bona fide purchaser in general—Who is a “subsequent pur-. CHASER ” IN GENERAL.</p> <p>One who takes a conveyance of the interest of a devisee in real property in satisfaction of an antecedent debt is not a bona fide purchaser for value, nor protected by the recording act against pridr mortgages of the same interest which were improperly recorded in the deed books.</p>

<p>Trusts—Compensation—Half commissions—Upon intermediate accounting; Property forming basis of allowance.</p> <p>One appointed by the surrogate to execute the unexecuted trust upon the death of a testamentary trustee is entitled, upon the first intermediate accounting, to one-half commissions upon the principal of the estate.</p>

<p>Executors and administrators—Distribution and disposal op personal estate—Interest on legacies and shares—Delay in payment.</p> <p>Legacies payable out of a trust estate upon the death of the life tenant begin to draw interest at the termination of the life estate, although some time may be required to convert the trust estate into cash.</p>

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

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

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

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

<p>'Wills—Interpretation and construction—Designations and descriptions OF PERSONS, OBJECTS, AND PURPOSES-RULES AND IMPLICATIONS-Words descriptive of a class.</p> <p>Where a testator, in disposing of the remainder of his estate upon the death of the life tenant, provides that it shall he divided pro rata between his legatees named in certain articles of his will; and where, if it be taken to have been his intention by the use of the word “ legatees ” to indicate the five persons named in his will as such, the result will follow that his bequest will be ineffectual to dispose of his entire estate; and where if he had so intended he could easily have called them by name; and where in another clause providing for abatement of legacies a certain process of proportion was ordained necessarily ' applicable only to the beneficiaries who survived him, it ought rather to be inferred he intended by “ legatees ” only those who survived him and thus became legatees in the proper import of the term.</p>

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

<p>Executors and administrators : Collection and reduction to posses- ■ sion of property or claims of estate—Property constituting assets—Property set apart to husband: Articles set apart and SUSTENANCE FOR SURVIVOR AND CHILDREN—ARTICLES SET APART TO HUSBAND.</p> <p>The exemptions from the estate of a married woman upon her death in favor of her husband provided for by section 2713 of the Code of Civil Procedure are no part of her estate coming to the hands of her administrator applicable to the payment of her funeral expenses.</p>

<p>Executors and administrators—Debts and liabilities of the estate— Exhibition, establishment, allowance and enforcement of claims —Services to decedent—Payment by legacy.</p> <p>Payment—Mode and sufficiency of payment—Legacy.</p> <p>Where a niece who has lived with her aunt and has been brought .up by her after reaching mature years leaves her and engages in different pursuits; but later when her aunt after absence in another State returns to her former home in feeble health the niece goes to live with her and does the work of the household until the aunt’s death, for which the aunt told her she should he well paid, and it appears that ■ the niece expected such compensation to be made by the aunt’s will, and the aunt makes provision for the niece in her will to an amount in excess of the fair value of her services, the legacy is to be regarded, as having been intended as compensation for her services, and a claim in addition thereto should be disallowed.</p>

<p>Appelal from an order of an appraiser, fixing and assessing the transfer tax.</p>

<p>Executors and administrators—Distribution and disposal of personal estate—Computation and adjustment of interests and discharge thereof—Computation and shares of distributive funds—Advancements—What constitutes.</p> <p>Wills—Interpretation and construction—Ademption, revocation and satisfaction—Surrendering evidence of legatee’s debt as satisfaction.</p> <p>Where the son of a testator had of his father money for which interest bearing promissory notes were given upon which the son paid interest from time to time for several years down to the time when the notes were surrendered to him by his father, the transaction must be interpreted as a loan.</p> <p>And if nothing appears indicating an intention to convert the loan into an advancement, the amount may not be set off against a legacy left to the son by the father in his will.</p> <p>Even if the original loan was intended to be an advancement, the father’s subsequent conduct in delivering to his son the notes he had taken, accompanied by declarations only consistent with his intention to treat the notes as no longer a part of his estate or an indebtedness against his son, would prevent their being treated as an advancement.</p>

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

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

<p>Executors and administrators—Appointment and qualifications of PERSONAL REPRESENTATIVES, RESIGNATIONS AND REMOVALS—REMOVAL OB SUBSTITUTION AND REVOCATION OB MODIFICATION OF LETTERS—GROUNDS —Misconduct, neglect or non-performance of duty.</p> <p>Where the executrices of their mother’s will, through the agency of the son of one of them, acquired the right of the son of a deceased brother in property of the estate by fraud, for a grossly inadequate price,' recognizing him in the transaction as a legitimate child, they cannot afterward justify their conduct by alleging their belief in his illegitimacy, but should, on his petition, be removed from their office.</p>

<p>Trusts—Accounting and discharge—Relief granted.</p> <p>The decree to be entered upon the accounting of a deposed trustee must require the estate to be turned over to his successor in money, in the absence of special convention to the contrary.</p> <p>In such case the removed trustee is entitled to a clear title to doubtful assets either before or at the time of the decree requiring the payment of the fund in cash.</p>

<p>Proceeding upon the account of administrators.</p>

<p>Application to open decree made upon judicial settlement of administrator’s account.</p>

<p>Proceedings on judicial settlement of administratrix’s account and proof of personal claims.</p>

<p>Charities—Requisites and validity in general—Validity of purpose.</p> <p>Wills: Disposal by will—Right of disposal and matters disposable by will—Corporations 'and legal entities : Interpretation and CONSTRUCTION-TERMS DEFINING THE NATURE AND QUALITY OF ESTATES OR INTERESTS—FIDUCIARY OR INDIVIDUAL, LEGAL OR EQUITABLE AND OTHER QUALIFIED INTERESTS—TRUSTS IMPLIED—FROM PRECATORY WORDS.</p> <p>A provision of a will for the perpetual care of the testator’s cemetery lot outside the State of New York and the lettering of the monument standing upon it is valid as a trust of the testator’s personal estate.</p> <p>The further provision that the remainder of his personal estate be disposed of by two persons named therein “ as they think best, we having advised with them thereof, and left the disposal of any residue of our estate to their judgment as may seem best to them at that time,” without any further directions to the legatees as to the disposition to be made of the estate by them, either secretly or by the terms of the instrument, suffices to pass the remainder and residue of the personal property to the legatees absolutely.</p>

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

<p>'Taxes—Inheritance and transfer taxes—Assessment—Appraisal— Deduction of administrative expenses; Deduction of doweb.</p> <p>Wills—-Interpretation and construction—Conditions, contingencies AND ALTERNATIVES—RULES AND IMPLICATIONS—-INTENTION TO OUT OFF DOWEB.</p> <p>The devise by a testator of his real estate to Ms executors, in trust to receive and apply the income to the use of persons other than Ms widow, and a power of sale incidental thereto, are not inconsistent with a. claim of dower on the part of Ms widow; and the gift to the widow of all his personal estate is not enough from which, to infer an intention that it was to he in lieu of dower.</p> <p>In such a case, in appraising the testator’s real estate for the purposes of the transfer tax, the value of the widow’s dower should be deducted.</p> <p>If an expenditure for broker’s commissions should appear to be reasonably required upon the sale of the real estate by the executors, it should be deducted as well as the commissions of the executors as trustees under the will.</p>

<p>Limitation of actions—Accrual of cause of action—Action against COTENANT FOB CONTRIBUTION.</p> <p>Taxes—Inheritance and transfer taxes—Assessment—Appraisal—Deduction OF AMOUNT OF CONTRIBUTION DUE COTBNANT FOB IMPROVEMENTS.</p> <p>The liability of a tenant in common to contribute to the cost of improvements made by his cotenants is1 not barred by .the Statute of Limitations as long as the cotenancy exists.</p> <p>In appraising the interest of one of several cotenants of real prop- . erty for the purposes of the transfer tax, allowance should be made for contribution for improvements made by cotenants, though not within the statutory period.</p>

<p>Proceeding to sell real estate to pay debts.</p>

<p>Executors and administrators—Distribution and disposal of personal estate—Computation and adjustment of interests and pisoharbb thereof—Charges binding on income ob principal ; Commissions.-</p> <p>The commissions of executors should be charged against the corpus of the estate and no part thereof against a trust fund formed out of the same, the income from which is- to be paid to a designated beneficiary, in the absence of any direction in, the will to the contrary.</p> <p>Where executors, who- are also testamentary trustees, have agreed with all the persons interested in the estate to accept a gross sum annually in lieu of their fees and commissions in both capacities, and the accounts submitted do not afford ground for an accurate computation, the agreed compensation should be apportioned equally between principal -and income.</p> <p>The expenses of an intermediate accounting will be charged to income.</p> <p>The expenses incidental to the conversion of. real property should be charged to the principal.</p>

<p>Executors and administrators—Distribution and disposal of personal estate—Interest on legacies and shares—Legacies to widow, children or dependent persons.</p> <p>Where a trust is created by a testator for the benefit of his widow for and during her natural life, the income therefrom should be paid to her from the time of his death.</p>

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

<p>Surrogates’ Court—Procedure and review—Hearing, rehearing and decision—Submission of requests by parties ; Settlement of findings.</p> <p>A Surrogate’s Court may make findings of fact or rule upon questions of law, pursuant to requests therefor upon the settlement of a case on appeal, at any time before the case in its final form is certified as settled by the judge’s signature.</p>

Application, for costs and allowances made by Addison E. Kreidler, executor, etc.; George Willey and Edward Willey, as ■executors, etc., of Philura Willey, deceased; .Kelson Swink and Amanda Swink and Edna S. Kame, and Edward A. Kreidler -and Sophia S. Kreidler.

<p>Proceedings upon contested probate.</p>

<p>This is an appeal from an assessment of the estate of Jennie E. Whitney, late of Stamford, deceased, made by the county treasurer of D'elaware county. In assessing the estate the county treasurer found as follows: “ I do further report that the Hew Work State Comptroller asks to have included in this estate the net amount of the real and personal estate of William Whitney, deceased, namely, $48,424.42, claiming that, under the will of William Whitney, deceased, this decedent (Jennie E. Whitney) took absolute title to his entire estate. - On the contrary, the attorney for Winifred B. Whitney, sole heir of Jennie E. Whitney, contends that the said will to Mrs. Whitney conveyed a life estate only, and that the estate of William Whitney descended to his daughter Winifred direct by the terms of his. will and not through the mother’s estate. I am of the opinion that the latter construction is correct and have not included same in my report.”</p> <p>The report of the county treasurer was confirmed by the surrogate and an appeal was thereafter taken by the Comptroller.</p>

<p>Executors and administrators—Debts and liabilities of the estate— Exhibition, establishment, allowance and enforcement of claims —Evidence—Claims by .relatives and persons in confidential RELATIONS.</p> <p>Where a daughter, haying a residence of her own and being engaged in the practice of medicine, upon the happening of an accident to her mother (who did not live with her but, though possessed of sufficient means to care for’herself and pay any reasonable expenses incurred for that purpose, was supported by the contributions of said dáughter and her sister), went to her mother’s residence and rendered her surgical assistance and afterwards took her home with her, where she remained for several months, receiving such medical attention from the daughter as she required; and where, later, the mother again went to the daughter’s residence, to visit, and was taken there with her last illness, during which, for five weeks before her death, the daughter, with the help of a nurse, gave her constant care, attention and nursing, the circumstances are not such as to raise a presumption that the daughter’s services were intended to be rendered gratuitously, in the absence of any express agreement relating thereto.</p>

<p>Motion to open and modify a decree.</p>

<p>Application by Carrie Oasazza, an alleged sister, for the revocation of letters of administration de bonis non on the estate of Paul J. Briasco, deceased, to Thomas B. McKee.</p>

<p>Proceedings to fix amount of transfer tax.</p>

<p>Application for letters of administration upon the estate of an intestate.</p>