Volume 8 — Mills's Surrogate Reports

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

<p>Trusts : Purposes for which Express Trusts are Valid—Passive-Trusts: Execution of Trusts as Powers—Trusts to be Executed as Powers.</p> <p>A devise to an executor in trust, which does not authorize him to collect the rents and profits but gives to the life beneficiary the-same right to occupy the lands devised that he would enjoy if he possessed the legal estate, is a dry and passive trust and not one of the permissible trusts under the laws of this State, but the title to the lands devised vests in the beneficiaries.</p> <p>A provision that in certain events the executor shall rent a part of the premises and apply the rents as directed does not divest the title of the life tenants, nor create a trust, but is valid as a power in trust.</p> <p>Such power is not invalid because in case of sale the share of each legatee is to be paid when he arrives at the age of twenty-three years, but upon conversion of the real estate each legatee will take a present right to his legacy with postponement of its payment.</p> <p>Nor is the power impaired because in case of the death of a legatee his share is to bé paid to his survivors, but in case of such death the legacy will become immediately payable and no suspension is possible beyond the life of the life tenant and that of the deceased legatee.</p>

<p>Taxes—Inheritance and Transfer Taxes—Property and Interest Subject to Tax—Estates of Nonresidents—Property Taxable and Rate.</p> <p>Only the personal property in this State of a non-resident decedent is subject to a transfer tax and the value of such property is to be determined as of the date of decedent’s death.</p> <p>Where it appears that an executor has used property out of the State belonging to a non-resident decedent in the full payment of the pecuniary legacies and that all of decedent’s property in this State passes to a residuary legatee who is in a class of persons taxable at one per cent., the transfer tax must be imposed at that rate.</p>

<p>Executors and Administrators—Bights and Liabilities Between Representatives and Estate: Dealings of Representative with Estate, Beneficiaries or Corepresentatives—Use of Property for Individual Profit—Liability for Interests or Profits : Interest on Funds or Property—Sums Deposited in Bank.</p> <p>Trusts—Following Trust Property—Recovery of Bank Deposits made by Trustees.</p> <p>Where an executor under a power of sale given by the will sells certain premises and deposits the proceeds of such sale to his own credit in two banks, and at the timq of his death the balance in each bank to his credit was a part of such deposit, his executors must pay to the legal representatives of the estate of which he was the executor the aggregate amount of such balances with interest at two per cent, beginning thirty days after the executors of the deceased executor had qualified as such.</p> <p>The amount of disbursements made by the deceased executor from such deposits for taxes and repairs on and to his individual real estate is chargeable against the proceeds of a sale thereof made by his executor since his decease; the payment for taxes with Interest at six per cent, from the time of payment to the date of said sale; the amount disbursed for repairs without interest.</p> <p>As to disbursements for coal and electric light -for the tenants and for fire insurance of the deceased executor’s real estate, they are chargeable to the income therefrom rather than to the proceeds of the sale thereof, and as to them the estate of which he was the executor stands only as an unsecured creditor.</p> <p>Where disbursements from such deposits for premiums on the life insurance of the deceased executor formed only a part of the premiums paid upon the policies, the estate of which he was executor may elect to share in the proceeds of the policies in the proportion that the payments from said estate bear to the value of the policies at the time such payments were made.</p> <p>Upon an amount for which the estate of the deceased executor was indebted to the other estate, as to which amount the latter estate was an unsecured creditor, it is entitled to interest at six per cent, from the time that the deceased executor received the money and deposited it to his own account, such interest to be computed semi-annually.</p>

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

<p>Executors and Administrators—Rights and Liabilities Between Representative and Estate : Items Charged or Credited—Rents and Proceeds of Land; Continued Business and Good Will and Name of Decedent’s Business; Loss from Failure to Sell: Allowances—Counsel Fees—Services fob Personal Benefit of Personal Representative.</p> <p>Where a will provides that the business formerly carried on by the testator might be continued by his executors and trustees, if profitable, for not exceeding two years after his decease, and, at the end of that time, or sooner if conducted at a loss, the business should be closed as soon as practicable by sale or otherwise, and for the first eighteen months after testator’s decease it was con-' ducted at a profit and for the next six months at a loss so small that there was a substantial profit for the entire two years shown, the executors upon accounting are not chargeable with the loss of the last six months, in the absence of proof that the business was not stopped as soon as practicable after the discovery of said loss.</p> <p>The executors will not be required to account for rents collected from the real estate of which the decedent died seized where the Supreme Court in a pending action for the partition of said real estate has held that the executors should account therein for such rents, and items affecting said real estate will be stricken from the account in the Surrogate’s Court.</p> <p>Where it appears that said business had been conducted by testator for about twenty years, and at the expiration of the two years immediately succeeding his death his executors formed a corporation which took over and carried on the business in the same premises occupied by their testator for years as his place of business and since his death have maintained without change over the premises the sign in the name of decedent and, having taken no means to ascertain whether the good will of the business had any existence, appropriated it to their own use, they must submit to such estimate of its worth as the circumstances permit and the law ordains, in this case three times the average profits for a single year during the three fiscal years immediately preceding the death of decedent.</p> <p>The executors will not be allowed credit for money paid by them to counsel for advice with respect to the restoration of money loaned by them to the corporation which took over the business of decedent.</p>

<p>Death—Absence as Raising Presumption op Death.</p> <p>Executors and Administrators—Appointment and Qualifications op Personal Representatives, Resignations and Removals—Procedure—Evidence or Showing.</p> <p>Where a woman thirty-four years old, so far as appears in good bodily and mental health, shortly after having left her husband also abandons her daughter, sixteen years of age, and disappears and does not thereafter communicate with her daughter, nor with her brother and sister with whom, at the time of her disappearance, she was on friendly terms; and, six years later, her sister hears that she has been seen in a city in an adjoining State, but except for such information her relatives have no other intelligence concerning her; in the absence of proof of any efforts by her husband or daughter to find her, the facts are not sufficient to establish her death so as to authorize the issuance of letters of administration upon her estate sixteen years after her disappearance.</p> <p>In such a case, where the daughter’s petition praying for such letters does not state that her mother’s departure was the result of domestic trouble, or assign any other reason for it, or state any circumstances of her mother’s death, or show that she was then a resident of the county in which application is made for letters, or produce any evidence that she left no will, or show that she has any personal estate within the county, the surrogate is without jurisdiction to grant letters of administration upon her estate.</p>

<p>Taxes—Inheritance and Transfer Taxes—Rate of Taxation.</p> <p>In the provisions of section 221 of the Transfer Tax Law establishing increasing rates of taxation for the transfer of increasing amounts of property, the words “ up to and including the sum of ” relate to the excess over the amount subject to the previous rate of taxation, and not to the entire amount of the transfer, and should be construed as if the statute read “ up to and including an excess equal to the sum of ”.</p>

<p>Executors and Administrators—Compensation—Particular Services and Rate and Computation of Amount of Commissions—Agreements as to Amount.</p> <p>It is competent for a sole legatee and devisee to contract with the executor with reference to his services and disbursements, and, having done so, the contract should be observed upon the judicial settlement of the executor’s accounts.</p>

<p>Proceedings upon the judical settlement of the account of an administrator.</p>

<p>Proceeding to show cause why executors should not pay claims and the legacy of the petitioner.</p>

<p>Charities—Requisites and Validity in General—What Uses are Charitable.</p> <p>Trusts—Nature and Elements in General—Essentials—Enforceability.</p> <p>A will which creates a trust during'a period of two lives in being and provides for the payment of income only in the discretion of the trustees is invalid since there is no one who can enforce payment by the trustees who are left with uncontrolled discretion and able to make or refuse payments at will.</p> <p>A trust, among other things, to provide education, general or specific, to such persons as the trustees shall select as being in need of the same, contemplates instruction along some special line as opposed to general school training and is not, therefore, necessarily a charitable use.</p> <p>And where the trustees are empowered to furnish other financial aid as may seem fitting and proper to them, but are not obliged to furnish financial aid to poor persons only, and there is no limitation upon the discretion of the trustees, the provision does not constitute a charitable use.</p>

<p>Taxes—Inheritance and Transfer Taxes—Exemptions—Corporations—Charitable Corporations.</p> <p>The statute under which a society is organized controls in determining whether a legacy to it is subjcet to a transfer tax.</p> <p>While the word “ charity ” has a broad meaning, a charitable corporation is one whose principal aim is to give material assistance to the needy and not simply to improve morals or bring its beneficiaries under the influence of the gospel.</p> <p>The word “ charitable ” has a broader meaning in the statutes empowering associations to receive bequests than in the statutes providing for exemption from taxation.</p> <p>The American Baptist Publication Society incorporated to promote evangelical religion by means of the Bible, the printing press, colportage, Sunday schools and other appropriate ways is not a “ charitable ” corporation within the meaning of the Transfer Tax Law, and a legacy to said society is subject to a transfer tax.</p>

<p>Proceedings on return of citation for executor to show cause why annuity to widow should not be paid.</p>

<p>Executors and Administrators—Debts and Liabilities of the Estate—Exhibition, Establishment, Allowance and Enforcement of Claims—Statutes of Non-claim or Short Statutes of Limitation of Claim's—Application of Statutes—Effect of Infancy.</p> <p>An infant who fails to offer to refer her duly presented claim against a decedent’s estate for services as a domestic or to bring an action thereon within six months after its rejection by the executor is not barred by the provisions of section 1822 of the Code of Civil Procedure from any further remedy to present or collect said claim.</p> <p>In such case, the infant, through her special guardian, when appointed, has a right to present her claim to the executor; and, in the event of its rejection, the special guardian is entitled to take any remedy in the Surrogate’s Court that an adult could take to establish the claim and enforce its collection.</p>

<p>Wills—The Testamentary Instrument or Act—Revocation and Alteration—Right and How Accomplished—Cancellation, or Obliteration—-Completeness Required.</p> <p>Where an instrument duly executed as the will of a deceased person had been in her possession for a long time before her death and was found among her effects afterward; and where the middle of the will containing all of one clause and part of another had been torn out and the cover that bound the parts together was gone, and a copy of the will which had also been in the possession of the deceased had her name torn off, an intention to revoke the entire will is inferable from the circumstances, and the mutilation is sufficient to render the intention effective.</p>

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

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

<p>Trusts—Execution and Administration op Trust—Discretion of Trustees and Judicial Control—Control of Court.</p> <p>Where a trustee is directed to apply incorue “ to the education of my said children,” discretion in making-the application is involved, and the trustee will not be required to pay over the income to be applied by the general guardian of the infant.</p>

<p>Taxes—Inheritance and Transfer Taxes—Exemptions : Corporations : Libraries.</p> <p>A corporation to be formed, to establish an art collection to which the public shall have free access and a reference library to be accessible and free to all who may seek aid therefrom, and to which a testator gives real and personal property, is an educational corporation within the meaning of the law relating to taxable transfers, and the transfer to it is exempt.</p>

<p>Proceeding for the determination of the transfer tax upon the estate of a deceased person.</p>

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

<p>Executors and Administrators—Distribution of Estate—Computation and Adjustment of Interests and Discharge Thereof : Computation of Shares or Distributive Funds; Residuary Estate.</p> <p>Wills—Interpretation and Construction—Ademption, Revocation and Satisfaction—Use of Fund by Committee for Support of Testator.</p> <p>Where a person bequeaths a deposit which she has in a certain bank to a legatee, making no other testamentary disposition of any of her property, and subsequently becoming incompetent her committee expends the whole of such deposit for her support, the legatee is entitled to receive the entire amount of the deposit from the remainder of the estate of which no disposition was made by the testatrix.</p>

<p>Proceeding for the probate of a last will and testament,</p>

<p>Executors and Administrators—Subjection of Realty to Payment of Debts and Liabilities of Estate—Matters and Proceedings after Order, Sale and Conveyance—Confirmation—Not Required.</p> <p>There is no warrant for confirmation of a sale of decedent’s lands for the payment of his debts, notwithstanding the word " confirmation ” was inadvertently left in section 2774 of the Code of Civil Procedure, when former section 2776 of said Code, which required an order confirming the sale, was repealed in 1904.</p>

<p>Hearing of a claim for physician’s services, upon the judicial settlement of an administrator’s accounts.</p>

<p>Wills—the Testamentaty Instrument or Act—Revocation and Alteration—Evidence—Wills not Found—Presumption of Revocation by Destruction—Will Executed in Duplicate.</p> <p>In a proceeding for the probate of a will, where it appears that the will was executed and that the authentic or the example produced in court was left in the possession of the counsel who drafted it but the other example was kept by the testator in his safe, until a certain day when he took it out of his safe and put it in his pocket, after which it was never seen again, it must be inferred from the disappearance of the latter example that the will had been revoked by the testator in his lifetime, and probate of the authentic must be refused.</p>

<p>Executors and Administrators—Appointment and Qualifications of Personal Represenatives, Resignations and Removals—Right to Administer—Secondary, Special or Qualified Administration— Order of Priority of Right.</p> <p>Where letters of administration were issued upon the estate of á deceased person to her sons and next of kin, and the administrators began an action against a third person to recover chattels claimed to have been the property of the deceased, and the defendant then offers for probate a will of said deceased which named no executor but in which the defendant was named as legatee, upon the probate of the instrument propounded the defendant is entitled to letters of administration cum testamento annexe in preference to the sons and next of kin of the deceased.</p>

<p>Charities : Requisites and Validity in General—Certainty of Purpose: Capacity of Donee or Trustee—Unincorporated Donees.</p> <p>A bequest to an unincorporated benevolent or charitable association for its own use and not in trust for another is invalid.</p> <p>A bequest to an individual to be used “ in the Lord’s work" does not sufficiently indicate the charitable purpose to which the testator desired to apply the gift to enable the Supreme Court to administer the trust.</p>

<p>Appeal by the State Comptroller from an order fixing a transfer tax.</p>

<p>Executors and Administrators—Collection of Assets—Remedies and Procedure—Discovery and Surrender of Assets—Time to Institute ; Dismissal ; Decree.</p> <p>Where, in a proceeding for the discovery of a diamond ring and a gold watch and pin, alleged to have been owned by testatrix at her death in 1903, there is no proof that she had them at that time, but in 1905 or 1906 the mother of all the parties had said articles in her possession and claiming to be the owner gave the ring to a sister of testatrix and the watch and pin to that sister’s daughter, both of whom wore the articles openly and without question as to their right thereto up to within a short time of the institution of this proceeding in 1911, and it appears that the mother of all the parties died in 1910, the presumption in the absence of proof to the contrary is that she was the owner of said property, and the proceeding should be dismissed.</p> <p>Semble, that the Statute of Limitations had run against the remedy of the petitioner, the executor, to whom letters had been issued in 1903, and the proceeding should be dismissed for that reason.</p> <p>No consent having been filed that the surrogate might determine the ownership of the property, under section 2710 of the Code of Civil Procedure, the surrogate was without jurisdiction to determine the fact of ownership of the articles, so far as the facts were in dispute.</p>

<p>Proceedings on an accounting of executors and trustees.</p>

<p>Guardian and Ward—Appointment, Qualification and Tenure op Guardian—Appointment in General—Testamentary Appointment.</p> <p>Surrogates’ Courts—Nature and Extent of Jurisdiction—Probate and Construction of Wills—Construction—On Accounting by Representatives.</p> <p>Trusts—Creation and Declaration—Necessity of Particular Form.</p> <p>A surrogate has power to construe a will when necessary to a final accounting and settlement of an estate.</p> <p>While an attempt to appoint a person guardian of property given to an infant by the last will and testament of one not his parent is inoperative as an appointment of a guardian, it gives to such person the same power he would have possessed over the property had he been a duly appointed guardian or trustee of a power.</p> <p>A grandmother may not appoint a testamentary guardian of her infant grandchildren who are her devisees or legatees.</p> <p>Where a testator devised and bequeathed her residuary estate to her three grandchildren and appointed the person named as executor guardian of the estate under the will that may vest in each of said grandchildren during the minority of each, respectively, such attempt to constitute a guardianship is abortive, and the legal title to the property vested in the grandchildren of testatrix, as doubtless was her intention; but the provisions of the will were operative to carry out the manifest intention of testatrix to provide for the care and management of the property during the infants’ minorities, although the person she intended to vest with such care and management was designated as guardian and not as trustee, and such person so designated is entitled to possession of the property.</p>

<p>Executors and Administrators—Accounting and Settlement— Right to Require Accounting, Time fob Accounting and Grounds and Propriety Thereof—Defenses.</p> <p>Surrogates’ Courts—Nature and Extent of Jurisdiction—Probate and Construction of Wills—Construction—On Accounting by Representatives.</p> <p>The jurisdiction which Surrogates’ Courts possess over accountings of executors of executors is conferred by section 2606 of the Code of Civil Procedure, and in a proceeding under that section, unless it appears that such an accounting should be had, the incidental authority of the court to construe the will fails.</p> <p>Where by the last will and testament of a married woman her husband is made the life tenant of her entire estate with full power of disposal, the Surrogate’s Court upon the death of the husband is without jurisdiction to direct his executor to account as to such estate upon the petition of her administrators with the will annexed. The husband having discharged the debts and paid the funeral expenses of his wife his executorial functions were at an end, and he held the estate not as executor but as tenant for life.</p>

<p>Judicial settlement of the account of an executor and trustee.</p>

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

<p>Subrogates’ Courts—Nature and Extent of Jurisdiction—Probate and Construction of Wills—Construction—On Proceedings fob Probate—Extends Only to a Disposition of Property.</p> <p>Wills—Probate, Establishment and Annulment—Probate : Expunging Matter from Will: Admission of Parts or of Detached Writings—Refusal of Probate to Scandalous Matter.</p> <p>The surrogate’s power to construe a testamentary instrument in the course of a proceeding for its probate does not extend to a provision for the appointment of a testamentary guardian but is confined to a disposition of property and can be exercised only when probate is decreed.</p> <p>The surrogates of this State are without power to expunge matter from an original will.</p> <p>The power of a surrogate to refuse probate and record to matter that is scandalous, vituperative or scurrilous, if it exists, should be sparingly exercised and only where the matter complained of is grave enough to be harmful to the parties who invoke such power.</p>

<p>Wills—Interpretation and Construction—Designations and Descriptions of Property, Funds, etc.—Particular Terms of Doubtful Meaning—Residuary Clauses Referring to Specific Prop, erty.</p> <p>A bequest to a sister of testatrix of all of the remainder and residue of personal property of which she might die possessed consisting of clothing, jewelry and bric-a-brac, and in addition thereto ten shares of corporate stock standing in her name on . the books of the company, is to be construed as a general residuary bequest under which the legatee takes money on deposit in a savings bank to the credit of the testatrix who presumptively did not intend to die intestate.</p>

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

<p>Executors and Administrators—Appointment and Qualifications of Personal Representatives, Resignations and Removals—Removal or Substitution and Revocation or Modification of Letters—Revocation by Operation of Law—Judgment Establishing Invalidity of Probate; Order; Stay Pending Appeal; Right of Executor Pending Appeal.</p> <p>Where a copy of the judgment of the Supreme Court in an action brought under section 2653a of the code of Civil Procedure declaring the probate of a last will and testament to be invalid and the alleged will to be null and void is filed in the surrogate’s office, the surrogate should immediately on his own motion enter an order revoking the letters testamentary issued thereon and requiring the executor to render and settle an account of his proceedings.</p> <p>If an appeal from the judgment in the Supreme Court has been perfected and a prior will is offered for probate or letters of administration are applied for,' the surrogate in either case should suspend proceedings until the final determination of the appeal; and, in the meantime upon a proper application, he should appoint a temporary administrator of the estate to whom the former executor may account in a proper proceeding and to whom the estate may be turned over for management and preservation. Upon a final determination of the action in the Supreme Court sustaining the will upon the appeal the surrogate may issue new letters to the'executor named therein; in the event that the will is not sustained on the appeal the surrogate may take the probate of another will or grant letters of administration as the case may require.</p> <p>If the letters testamentary are revoked before the executor has made and perfected his appeal from the judgment of the Supreme Court in such an action, such revocation does not affect him adversely as he is a “ party aggrieved ” and entitled to appeal from the judgment denying probate of the will.</p> <p>Where a will has been denied probate or declared to be invalid the person named as executor therein has no right to have in his hands the lands of the estate for the purpose of prosecuting an appeal from such judgment or decree.</p>

<p>Suspension of Power of Alienation—Validity of Particular Future Estates—Suspension Under Power of Appointment—Effect on Other Provisions not Offending Statute.</p> <p>Where the beneficiary of a trust fund, having the power of -appointment by will as to the remainder upon the termination of his life estate, gave part of the fund in trust for his daughter for life and directed the remaining part to be paid to “ E ” in installments and; in case of her death before payment of the whole, the unpaid balance to revert to the trust fund for the daughter, the latter provision is void; but the taint of unlawful suspension of absolute ownership is not communicated to the other provisions of the will.</p>

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

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

<p>Statutes—Interpretation—General Rules—Punctuation.</p> <p>Surrogates’ Courts : Nature and Extent of Jurisdiction—Administration of Decedents’ Estates—Determining Rights of Heirs and Legatees on Decreeing Distribution—Rights of Legatees ob Distributees—Subrogation of Executor: Trial by Jury—Righs to Jury Trial.</p> <p>Where, in a statute, words of specific and inevitable purport are followed by words of general purport, the application of the latter is generally to be confined to the subject-matter d&sclosed in the former and are thus limited in their effect by the words to which, they are joined.</p> <p>The specific grants of jurisdiction given by section 2472a of the Code of Civil Procedure, added in 1910, to a Surrogate’s Comt upon a judicial accounting or a proceeding for the payment of legacy, to ascertain the title to any legacy or distributive share, to set off a debt against the same and for that purpose ascertain whether the debt exists, and to affect the accounting party with a constructive trust, do not include the right to decree that a party not the accountant, or the accountant in a representative capacita foreign to that in which he is accounting, be subrogated to a demand against the trustee in the character in which he accounts, though the words by which jurisdiction is given for the several enumerated purposes are followed by the phrase “ and to exercise all other power, legal or equitable, necessary to the complete disposition of the matter.”</p> <p>A Surrogate’s Court, upon the petition of an accounting trustee of a decedent alleging that as trustee under the will of said decedents’ wife she paid from the funds of the wife’s estate certain sr-sif- in partial discharge of a mortgage upon lands belonging to the estate of the husband and containing further allegations tending to support the claim, is without Jarisaiction under section 2472a of the Code of Civil Procedure to decree that the petitioner, as trustee of the wife’s estate, be subrogated to the rights of the mortgagee to whom such payment was made.</p> <p>Issues framed in a proceeding for probate have not been found among those in which, before the adoption of any of the Constitutions of the State, “trial by jury has been heretofore used”; and the provision of section 2472a that the surrogate “ must order the trial of any controverted question of fact of which either party has constitutional right of trial by jury and seasonably demands the same,” is to be confined to such questions as were never triable before the surrogate, until made so by statute.</p>

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

<p>Constitutional Law—Nature, Adoption and Interpretation of Constitutions—Construction, Operation and Enforcement—Power and Duty to Declare Statute Unconstitutional.</p> <p>Surrogates’ Courts—Nature and Extent of Jurisdiction—Administration of Decedents’ Estates—Determining Rights of Heirs and Legatees on Decreeing Distribution—Rights of Legatees or Distributees—Of Assignee of Share.</p> <p>(Usury—Elements and Indicia—Agreements the Subject of or Affected with Usury—Discounts and Loans by Bankers.</p> <p>Under section 2472a of the Code of Civil Procedure, added by Chapter 576 of the Laws of 1910, a surrogate on the judicial settle.ment of the accounts of an executor has jurisdiction to ascertain the title to any legacy or distributive share and incidentally to try the validity of an assignment of a legacy.</p> <p>The constitutionality of said section will not be passed upon in the first instance by this court, but its constitutionality will be presumed.</p> <p>The statutes relating to usury do not apply to discounts or loans made by private bankers.</p>

<p>Executors and Administrators : Administrative Authority and Management of Estate—Authority and Powers in General—Source of Authority : Items Charged or Credited—Payments to Discharge Dower or Liens on Land: Accounting and Settlement— Form, Requisites and Contents of Account and Petition for Allowance—Contents.</p> <p>An administrator must look to the statute for his powers and, under section 117 of the Decedent Estate Law, he is limited so far as his initiative is concerned to the collection of debts due the estate and marshalling the personal effects of his intestate.</p> <p>In the absence of proof that mortgaged premises of which an intestate died seized did not descend to an heir, section 250 of the Real Property Law requires the heir to satisfy the mortgage of his intestate without resort to the administrator; and, in such a case, the administrator cannot be allowed credit in his accounts for payments of interest upon the mortgage.</p> <p>Payment of a sum of money, due upon a contract for the purchase of lands from the vendee at his death, by his administrator, can neither be allowed nor disallowed in the administrator’s account but must be stricken therefrom.</p>

<p>Application for ancillary letters upon a foreign will.</p>

<p>Evidence—Documentary Evidence—Official Books and Documents— Official Certificates.</p> <p>Wills—The Testamentary Instrument or Act—Requisites, Form and Validity—Codicil as Will : Revocation and Alteration ; Cancellation or Obliteration—Completeness Required ; Cancellation or Obliteration—Revocation of Will as Affecting Codicil.</p> <p>Witnesses—Disqualification by Reason of Confidential Relation— Between Attorney and Client—Execution of Will.</p> <p>An attorney and counselor at law who draws a codicil to a will and is in attendance at the formalities of its execution, but who is not himself one of the attesting witnesses, is forbidden to testify in relation thereto by section 835 of the Code of Civil Procedure.</p> <p>Where it appears that a paper offered for probate as the last will and testament of the person who subscribed it was last in the custody of the alleged testator, mutilation thereof sufficient to effect its revocation which appears when the paper is produced will be presumed, in the absence of proof to the contrary, to have been inflicted by the testator animo revooandi.</p> <p>The total excision of the signature of a will by the testator indicates an intention on his part to revoke the will.</p> <p>If a will and a codicil thereto are necessarily interdependent or so involved as to be incapable of separate existence, the revocation of the will, ipso facto, revokes the codicil.</p> <p>Semble, a copy of a certificate of death filed in the bureau of vital statistics of the State Department of Health, together with a certificate of the deputy commissioner that he has compared the copy of the certificate of death with the original certificate filed in the bureau of vital statistics of the State Department of Health and that the same is a true copy and a transcript therefrom and of the whole thereof, is evidence of the death of the person named in the certificate.</p> <p>A testamentary writing executed pursuant to the Statute of Wills ammo testandi is not rendered incapable of being proved as a will because it is termed a codicil, or is in fact a codicil, unless its provisions are so involved with those of the will as to render it incapable of separate existence.</p>

<p>Wills—The Testamentary Instrument or Act—Execution of Will —in General—Signature of Witnesses.</p> <p>Where one of the witnesses to a will, instead of signing his own name to the attestation clause, writes the name of the testator, and the error is not discovered and the act appears to have been one animo attestandi and without any fraud or intent to wrongfully personate another person, the will should be admitted to probate.</p>

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

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

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

<p>Wills—Interpretation and Construction—Administration of Estate and Execution of Powers and Trusts and Compensation Therefor—Rules and Implications—Time to Execute Power.</p> <p>Where a testator created a trust for the benefit of his son and the latter’s family and charged the trust fund with such advances made by him to his son as his executors in their discretion should determine and such debts or obligations of his son existing at the testator’s death as his executors should elect to pay, thereby reducing the amount of the trust fund, held, that the executors should exercise their discretion prior to their final accounting as executors and before the trust fund was constituted, and upon their final accounting should be required, the existence of any debts or liabilities of the son being denied, to state what debts and liabilities existed as to which.they claimed authority to .exercise such discretion.</p>

<p>Proceeding to compel an accounting by an executrix and trustee. «</p>

<p>Contracts—Validity of Contracts : Public Policy in General— Contracts Between Husband and Wife—Not to Object to Another Marriage—Contract Involving Violation of Positive Statute—Evasion of Domestic Relations Law.</p> <p>Husband and Wife—Separation and Separate Maintenance— Validity of Separation Agreements.</p> <p>Though a husband and wife living apart may lawfully agree thenceforth to live separate and apart each from the other and be free from all obligations, past or future, in regard to the property, effects or estate of each other, when, as part of the agreement, It is further agreed that neither shall thereafter have any claim upon the other for support, with the intention thereby to evade the provisions of section 51 of the Domestic Relations Law, and that they shall not ever interfere with or object to a marriage or sue each the other for remarrying, the latter provisions vitiate the whole contract.</p>

<p>Wills—Disposal by Will—Testamentary Capacity—Evidence of Facts Establishing or Negativing Capacity—Age, Illness, Decrepitude or Impairment of Facuuties.</p> <p>Where, within six months after having made a will which would seem, in view of the previous life of the testatrix, to have summed up the cherished affections and sentiments of her whole life and which was made at a time when her competency was free from ■doubt, she is alleged to have made a new will, exhibiting a ■complete and radical change of her former intention, and the later paper purports to have been executed after she had sustained a second attack of apoplexy from which she never rallied but died a week later; and where the condition of the testatrix at the time of the execution of the later instrument was such that she could not carry on the simplest conversation, lay motionless and took no solid food, and the lawyer who was called to draw the will said he could not understand her, in June previous, before she had sustained her second attack, and where the sole beneficiary and her husband were the only persons present, beside the lawyer, when the will was drawn, and the testatrix spoke only in monosyllables, and pointed with her arm to the beneficiary, and expressed her wishes only in answers to questions, and could not affix her mark to the instrument except as her hand was guided by the lawyer, which he did without so much as a request on the part of the testatrix, the evidence is insufficient to warrant the inference that the later instrument expressed the testamentary intention of the testatrix.</p>

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

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

<p>Trusts—the Trustee, Appointment, Qualification, Resignation and Removal—Beneficiary as Trustee.</p> <p>Wills—Disposal by Will—Testamentary Capacity—Evidence of Facts Establishing or Negativating Capacity—Mental Eccentricities and Absurdities—Opinions and Prejudices.</p> <p>Where a testator in his will, after having given an interest in his estate to the wife of a' brother, adds a codicil thereto "by which such a gift is revoked, it cannot be said that the testator was suffering from an insane delusion because he had for some time entertained a pronounced aversion toward his brother’s wife and believed that she dominated her husband and had already succeeded or was áttempting to secure title in her own name to her husband’s property, where the testator had an opportunity from personal intercourse with his brother’s wife to form an intelligent estimate of her inclinations and characteristics, though what particular things in her conduct which engendered his dislike are not detailed in the testimony.</p> <p>A devise in trust for the use of testator’s brother for life, with authority to the trustee to apply the principal to the use of the beneficiary if in the judgment of the trustee his brother requires it,- and with remainder to the trustee absolutely, is not void because the person selected as trustee is the same person to whom the remainder is given. But, in such a case, it is proper, after letters testamentary have been issued to the executor and the amount of the trust estate is established by a judicial settlement of his accounts, another trustee should be appointed to manage and control the trust estate during the life of the beneficiary</p>

<p>Wills—The Testamentary Instrument or Act—Execution of Will— Wills by Persons Residing Outside the State.*</p> <p>Where a resident of the State of Louisiana makes a holographic will without witnesses in the State of New York while sojourning there, such will properly executed according to the laws of Louisiana is valid for the bestowal of the testator’s personal estate here and is entitled to probate in any county of this State where he leaves personal property.</p>

<p>Proceeding on the part of administrators to discover and obtain property claimed to be withheld from them.</p>

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

<p>Marriage : In General—Requisites and Validity—As Affected by Domestic Relations : Evidence and Questions of Law and Fact—Sufficiency.</p> <p>While the provision of section 19 of the Domestic Relations Law added by Laws of 1901, chapter 339, that “no marriage claimed to have been contracted on or after the first day of January, 1902, within this state, otherwise than in this article provided, shall be valid for any purpose whatever,” was in force a common law marriage by oral contract was impossible, but in the absence of such a provision such a marriage was valid notwithstanding the particular directions for the solemnization of marriage contained in the Domestic Relations Law.</p> <p>Upon the repeal of said section 19 by chapter 742 of the Laws of 1907, in effect January 1, 1908, there was no statutory declaration of the invalidity of a marriage contracted otherwise than as prescribed, the legislative intent being to remove the absolute inhibition of common law marriages.</p> <p>Where upon the hearing of a proceeding instituted by one claiming to be the widow of an intestate, for the revocation of letters of administration granted to his father, it appears that their relations being meretricious began while section 19 of the Domestic Relations Law was in force and continued until the time of decedent’s death in 1909; that they wished to be considered husband and wife, kept house in a respectable neighborhood and had children, but that there was no actual contract of marriage between them and that their statements to the contrary to third persons were made merely to deceive, the petition must be dismissed.</p>

<p>Proceeding to probate a last will and testament.</p>

<p>Charities—Statutory Restrictions as to Gifts—Restriction against Gifts within Statutory Period Before Death—Computing Period.</p> <p>Time—Excluding First or Last Day.</p> <p>Where a testator made his will on the sixth day of February and died on the sixth day of April following, the will was" not made “ at least two months before the death of the testator ” and a bequest to a benevolent corporation contained therein is invalid.</p>

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

<p>Executors and Administrators—Appointment—And Qualifications of Personal Representatives, Resignations and Removals—Removal or Substitution and Revocation or Modification of Letters—Grounds—Misconduct, Negligence or Nonperformance of Duty.</p> <p>It is within the discretion of the surrogate whether he will remove an executor for a violation of duty, or even a breach of trust, specified in section 2685 of the Code of Civil Procedure; and he should not do so where there has been no loss to the estate and there is no peril to the fund.</p>

<p>Wills—Probate, Establishment and Annulment—Probate—Costs— Allowance to Unsuccessful Contestant.</p> <p>The executor named in an instrument that has been admitted to probate as a last will and testament may be allowed his costs and necessary disbursements and expenses in an unsuccessful contest of the probate of a later will, but can only be allowed the amounts he has actually expended.</p>

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

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

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

<p>Judicial settlement of the accounts of executors.</p>

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

<p>Contempt : What Constitutes—Disobedience—Order to Pay Money—Inability to Comply as Excusing Disobedience: Punishment—Imprisonment—Discharge.</p> <p>Where a testamentary trustee has been removed and is charged in the final decree with a sum of money which he is directed to pay to his successor, his financial inability is no answer to a motion to punish him for contempt for his failure to obey the decree; but the question of his financial inability to comply with the decree must be determined upon a motion for discharge from imprisonment, under section 775 of the Judiciary Law.</p> <p>Semble, where a trustee in such case seeks to be discharged from imprisonment on the ground of his inability to pay the amount directed by the decree, he must show that he has done whatever he could to obey it; and it is not enough to urge that it would do no good if he should try to obey.</p>

<p>Executors and Administrators—Accounting and Settlement—Procedure to Obtain Accounting—Final- Accounting before Surrogate—On Application by Personal Representative—Petition— Necessity for Petition.</p> <p>The Surrogate’s Court obtains jurisdiction to settle an account filed by the executors of a deceased executor only by the filing of a petition for the settlement thereof, and the Surrogate’s Court should not proceed with the settlement of such an account until all persons interested in the estate have been duly cited.</p>

<p>Executors and Administrators—Debts and Liabilities of the Estate—Enforcement of Claims—Evidence—Claims by Relatives and Persons in Confidential Relations.</p> <p>A sister’s services in keeping house for her brother and nursing him in illness are presumed to have been gratuitously rendered, and proof of statements made by the brother in his lifetime, indicating that he valued her services and that he intended to give her a house and wanted to build, her a bungalow, are not sufficient to overcome such presumption and enable her to maintain a claim for her services against his estate after his death.</p> <p>In such a case, where it appears the sister had received from her brother four dollars per week regularly until his death, it is to be presumed that the payment of such sum was intended as her compensation for the services she rendered.</p>

<p>Executors and Administbatobs—Distribution and Disposal of Personal Estate—Funds, Assets and Securities fob Distribution and to Pat Legacies—What is Income.</p> <p>Life Estates—Rights of Life Tenants as Distinct From Those of Remaindermen—Distinction Between Capital and Income in General.</p> <p>A dividend, upon corporate stock forming part of a trust estate, paid in bonds and scrip from the accumulated earnings of the corporation and not representing increased value of investments of any kind, should be treated as income and distributed to the life tenants, and does not belong to the remaindermen.</p>

<p>Wills—Probate, Establishment and' Annulment—Probate—Procedure—Production and Examination op Witnesses—Surrogate’s Witnesses in Supreme Court.</p> <p>The provisions of section 2618 of the Code of Civil Procedure, providing for the designation by the surrogate of witnesses whose testimony he is satisfied may be material upon the probate of a will, are not applicable to a trial in the Supreme Court before a jury of certain specific questions embracing the matters essential to probate; and the surrogate has no power to designate witnesses who must be sworn and examined on such a trial.</p>

<p>.Wills : Disposal by Will—Testamentary Capacity—Evidence ob Facts Establishing ob Negativing Capacity—Evidence, Presumptions and Inferences : The Testamentary Instrument or Act— Execution of Will—Evidence of Execution—Sufficiency of Evidence—Testimony of Subscribing Witnesses.</p> <p>Where the testimony of two of the three witnesses to a will is precise and sufficient to prove that the execution of the paper propounded conformed with all the requirements of statute, no presumption against the sufficiency of the execution arises from the fact that the third witness has forgotten nearly all the essentials to a due execution.</p> <p>The "omission of a grandchild from a will is not, in itself, sufficient to cast, in the first instance, an additional burden on the proponents of a will.</p>

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

<p>Wills—Interpretation—Disposal of the Entire Estate: Rules and Implications—Construction to Avoid Intestacy : Particular</p> <p>Residuary Provisions op Doubtful Meaning—“ Surplus ” to be Distributed.</p> <p>One who makes a will is presumed, in the absence of anything indicating the contrary, to have intended to dispose of his entire estate.</p> <p>Where a testator at the beginning of his will gives all his property to certain relatives and then provides that, “if after paying these bequests there should be a surplus left over it shall be paid to the above named beneficiaries pro rata,” he will be deemed to have intended to include in the word “ surplus ” the shares of any of the beneficiaries who failed to take by reason of their having died during the lifetime of the testator.</p>

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

<p>Taxes—Inheritance and Transfer Taxes—Stock Transfer Taxes— Time eob Payment—Consequences of Nonpayment.</p> <p>The donee of corporate stock claiming title by gift causa mortis or inter vivos can prove such gift only in a case where the donor affixed the proper stamps to the certificates at the time of the gift and delivery thereof.</p>

<p>Appeal from an order fixing the tax upon the estate of decedent.</p>

<p>Appeal from the order affixing the tax upon the estate of d,ecedent.</p>

<p>Executors and Administrators—Debts and Liabilities of the Estate—Enforcement of Claims—Evidence—Claims bt Relatives and Persons in Confidential Relations; Nursing and Burial Services—Value.</p> <p>The presumption that board or services furnished or rendered by one member of a family to another member of the same family are intended to be gratuitous is not applicable to board and services, furnished by sisters to each other, where the sisters have long since ceased to live together, have no homes of their own, are dependent upon their labor for their livelihood and are brought together by the stress of the illness of one of them that ends in her death.</p> <p>And where the services of one of the surviving sisters to the decedent were rendered in nursing her during her illness, a service for which she had no previous training, such services will not, in the absence of any satisfactory evidence of their value, be estimated above the wages which she usually receives in her customary vocation of a cook.</p>

<p>Proceeding to compel administrators to account.</p>

<p>Proceeding to compel the immediate payment to beneficiaries of their share of accrued income in the hands of executors.</p>

<p>Executors and Administrators—Debts and Liabilities of the Estate: In General—Funeral Expenses Advanced or Paid—Reasonableness of Burial Charges : Rights and Remedies of</p> <p>Creditors and Claimants and Defenses—to Enforce Payment of Funeral Expenses.</p> <p>Section 2729 of the Code of Civil Procedure, to avoid circuity of action, provides a method by which an undertaker may proceed directly against the personal representatives of a deceased person, for whose burial he has furnished materials and services, for the recovery of their value.</p> <p>But the undertaker can only recover in such a proceeding where there exists a contract express or implied and a direct or ultimate liability of the personal representative according to some established legal theory.</p> <p>The provisions of said section do not sanction a devastavit or authorize the recovery of more than reasonable funeral expenses, though the personal representatives may have bound themselves by contract to pay for a funeral of unreasonable cost.</p>

<p>Executors and Adminstrators—Debts and Liabilities oe the Estate : Oe Estate or of Representative—Funeral Expenses : Rights and Remedies of Creditors and Claimants and Defenses— To Enforce Payment of Funeral Expenses. .</p> <p>It is the duty of the personal representative in the first instance to bury the dead and the expenses thereof are preferential claims. If another bury the dead he may recover the reasonable costs thereof.</p> <p>Payment of funeral expenses may now be enforced under section 2729 of the Code of Civil Procedure if six months have not elapsed since the rejection of the claim by the personal representatives, and the claimant by such rejection is not put to his action within that period.</p>

<p>Proceeding to compel the payment by the administratrix of the funeral expenses of decedent.</p>