Volume 9 — Mills's Surrogate Reports

<p>Executors and Administrators—Debts and Liabilities of the Estate—In General—Funeral Expenses Advanced or Paid; Reasonableness of Burial Charges.</p> <p>It is the present law of this State that a promise is implied on the part of personal representatives of a deceased person to repay the necessary expenses reasonably incurred for his burial by "a stranger.</p> <p>But where the expenses were unreasonable in amount, having regard to the decedent’s financial condition, and were incurred by his brother who declared to the widow his intention of burying her husband’s remains without her knowledge if possible, and her right to be consulted in respect to the arrangements for the funeral or to participate therein was scantily recognized by the brother Who- elected to consider himself and posed as chief mourner, the circumstances are not such as to indicate an expectation that she, as administratrix, would foot the bills, nor to call for the implication of a promise on her part to do so.</p> <p>A funeral in New York for one who dies in Texas possessed of a poor estate and leaving a widow in miserable financial condition, expensive transportation charges and a new casket purchased upon the arrival of the remains here may have been prompted by affection and respect but are not matters of such necessity as to afford a foundation upon which to imply a promise on the part of the widow, afterward the administratrix, to pay for them; nor should the extravagance of the decedent’s manner of living be permitted to impose a heavier expense upon his widow for his burial; and, the brother having already received a sum from Texas reasonably sufficient to cover the cost of the obsequies, a further claim against the reresentative of his estate should be disallowed.</p> <p>See 75 Mise. 8-84.</p>

<p>Application for a compulsory account of the proceedings of an administratrix.</p>

<p>Surrogates’ Courts—Nature and Extent of Jurisdiction—Guardian 4 and Ward—Estates and Persons of Infants—Dependent upon Residence or Location of Property.</p> <p>A surrogate’s power to nominate and appoint guardians for infants flows from sections 2472, 2821 and 2827 of the Code of Civil Procedure.</p> <p>Where, upon the application of a father to be appointed guardian of his five-year old daughter who is maintained and wholly supported by him in the city of New York where they both reside, it appears that petitioner while a naturalized citizen of the United States was married to the mother of said infant; that, by a decree of divorce granted by a court of competent jurisdiction in the German Empire for the mutual adultery of the parties, no formal award of the custody of said infant was made; and that the mother is now. the wife of an alien, the surrogate, in the exercise of the discretion vested in him to act for the best interests of the infant, will appoint the father alone as guardian, the order to provide for some access to the infant on the part of the mother.</p> <p>The contention of the mother that under section 81 of the Domestic Relations Law she is the joint guardian of the infant is untenable, as said section relates only to testamentary guardians.</p> <p>The infant having no real property, there was no guardian in socage and, therefore, section 80 of said law is not applicable.'</p>

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

<p>Wills—Probate, Establishment and Annulment—Lost Wills—The Testamentary Instrument or Act—Evidence—Wills not Pound— Presumption oe Eevooation by Destruction.</p> <p>A proceeding under section 2621 of the Code of Civil Procedure to probate a lost will is governed by the sections of said Code (§§ 1861, 1865) relative to actions in the Supreme Court to establish a will.</p> <p>Where the will of testatrix, which was last in her custody, was not found at her death, the presumption of law is that she destroyed the instrument ammo revocandi.</p> <p>The burden of overcoming such presumption is on those who seek the probate of said instrument and the proof must exclude every possibility of its destruction by the testatrix; evidence that interested persons had opportunity to destroy the will is insufficient.</p>

Proceedings to establish a claim in favor of Fannie Hood, against the estate of Eliza Alden, deceased, for care and board of John S. Alden. The claim was presented to the executor of' the will of Eliza Alden, deceased, and was by him disputed; and a stipulation was made for the hearing and determination of the claim on judical settlement of the account of the executor.

<p>Wills—Interpretation and Construction—Disposal of Lapsed or Void Devises or Bequests, or of Otherwise Undisposed Property— Expenses of the Estate, Charges, Advances and Payment of Debts, and Legacies—Holographic Wills.</p> <p>A bequest absolute in terms may be qualified by the context so as to pass a limited interest only if the intent of the testatrix so to do is reasonably clear and the will is holographic.</p> <p>Where an absolute bequest of a money legacy to a daughter in a holographic will is coupled with the provision that after her death the money is to revert to the sons of the testatrix in equal shares, the daughter simply takes a life estate and' the sons vested legal remainders.</p>

<p>Evidence—Presumptions—Birth, Death and Survivorship. Subrogates’ Courts—Nature and Extent of Jurisdiction—Accounting and Distribution in General—Determining Bights of Heirs and Legatees on Directing Distribution—Rights of Legatees or Distributees.</p> <p>A surrogate will not presume the death of any person other than the one whose estate is being administered.</p> <p>Upon the judicial settlement of the accounts of a public administrator it will not be presumed that a sister of the intestate, who had not been seen or heard from for seventeen years last past, is either alive or dead.</p> <p>Testimony to the effect that she had disappeared from her last known place of abode, that diligent search for her had been made by the public administrator, and that the intestate shortly before his death had declared that he had two sisters both of whom were dead, is insufficient to raise a conclusive presumption that the missing sister died before him.</p> <p>See 77 Mise. 436, 445.</p>

This is a proceeding for the settlement of the accounts of a guardian. The ward having died, the guardian filed his petition for the judicial settlement of his accounts.

<p>Surrogate's Courts—The Court and its Officers—Nature an Extent of Jurisdiction—Administration of Decedents’ Estates.</p> <p>The surrogates have jurdisdiction to determine intestacy in the first instance in so far as the factum of a will of personalty is concerned.</p> <p>Where, no will being found, letters of administration were issued to the widow of a decedent who died seized of real property of considerable value, and thereafter his children by separate deeds conveyed all their right, title and interest in said real property to the widow, their mother, the judgment of the Supreme Court setting aside for fraud the conveyances made by one of said children is not res adjudicata in a proceeding to probate decedent’s will which was was found before the entry of said judgment because a finding of fact made by the trial that decedent died intestate was made a part of the judgment roll in the action in the Supreme Court at least so far as the will related to personalty, the Supreme Court having no jurisdiction to adjudicate intestacy in the case.</p>

<p>Taxes—Inheritance and Transfer Taxes—Property and Interest Subject to Tax—Exemptions—Meaning of the Exemption.</p> <p>A bequest to testator’s widow found by the transfer tax appraisers to be of the value of $67,074.87 is after exempting $5,000 subject to a transfer tax of one per cent, on $45,000 and two per cent, on the balance.</p>

<p>Taxes—Inheritance and Transfer Taxes—Property and Interest Subject to Tax.</p> <p>Where assignments of mortgages to a mother and a daughter provided in some instances that the survivor of them should become the absolute owner of said securities and that neither should have the power to affect the rights of the other, and in other instances that the securities should be held by the assignees and the survivor of them, the interest which the daughter took in one-half of the securities upon the death of her mother is subject to a transfer tax.</p>

<p>Wills—Disposal by Will—Evidence or Facts Establishing or Negativing Capacity—Burden of Proof—Terms Creating Legacies and Gifts of Income, Interest, Support and Releases of Debts.</p> <p>Where a testator who, at the making of his will containing no residuary clause, was the owner of two farms with sufficient personal property thereon to successfully operate them might reasonably have anticipated that his accumulations would be adequate at his death, which occurred within two years thereafter, to pay two legacies charged by the will upon his real estate, “ to the end that they be paid,” no intention is disclosed to exclusively charge the payment of said legacies upon the real estate in exoneration of the personal estate which, so far as properly applicable, must be applied in extinguishment of said legacies before the real estate can be used in payment thereof.</p> <p>The burden of proof is upon those claiming that said legacies are an exclusive charge upon the real estate to show affirmatively that the testator intended to absolutely exonerate the personal estate from payment of the legacies.</p>

<p>Wills—Disposal by Will—Interpretation and Construction—Expressions Calling for Construction—Ordinary and Special Limited or Technical Meanings of Words.</p> <p>It is a rule of construction that the words and phrases in a last will and testament are to be taken in their plain, usual and primary sense unless a clear intention to use them in another sense can be ascertained from the instrument.</p> <p>Where the son and one daughter of a testator of long business experience are his residuary legatees and devisees and the personal estate is insufficient to pay in full a pecuniary legacy to another daughter, a bequest to each of the residuary legatees of an equal undivided one-half of the testator’s share and interest in the stock and goods in a certain store and in the good-will of the business therein conducted by a firm of which he had been a member does not include the amount of the debts due the firm at the time of the testator’s death.</p> <p>That an absolute devise in equal shares of certain real estate to the residuary devisees is by a later clause of the will qualified by giving one of them, the daughter, the use of the premises for one year after testator’s death “ without charge ” does not relieve her from liability to pay current taxes.</p>

<p>Executors and Administrators—Accounting and Settlement—Distribution and Disposal of Personal Estate—Taxes, Interest and Repairs.</p> <p>An executor’s disbursements for taxes, insurance and such repairs as are not shown to be in the nature of permanent improvements, are chargeable solely upon income.</p>

<p>Wills—Executors and Administrators—Administration of Estate and Execution of Powers and Trusts and Compensation Therefor—Particular Terms of Doubtful Meaning—Power to “ Sell ” to Pay Legacies.</p> <p>Where a will giving the executor power to sell testator’s real estate contains legacies in excess of the gross personal estate, the surrogate is without jurisdiction to declare that the legacies were by the testator charged upon the real estate.</p> <p>Until the executor has brought the proceeds of a sale of the real estate into court for distribution, no adjudication can determine whether lands authorized to be sold by the executor under the will are to be resorted to for the payment of legacies.</p>

<p>Death—Proóf of Time of Death—Survivorship.</p> <p>Where, upon the judicial settlement of the accounts of a daughter as executrix of her mother, it appears that the testatrix and her husband were killed outright in an accident resulting from the collision of their automobile with a train running at a great rate of speed, and the sole issue of fact is whether the wife survived her husband, the testimony of the fireman on the locomotive, the only witness of the accident, that when, on his arrival at the scene before his engine came to a stop, he first saw the husband who was dead with a bolt through his head but that the wife whom he next saw was alive, is competent, he having been first interrogated as to the circumstances under which he arrived at his conclusion and which justify the inference that the witness believed he had seen that to which he had testified.</p> <p>The previous testimony of the witness at the coroner’s inquest, that at some time while he was at the scene of the accident the wife was dead, his attention not having been directed to the signs of life which he first detected in her, is not so inconsistent with his later testimony that she was alive as to be directly contradictory thereof and compel its rejection.</p> <p>See Note, III Mills, 392.</p>

<p>Executors and Administrators—Rights, Duties and Liabilities—Administrative Authority and Management of Estate—Rights and Liabilities between Representative and Estate—-Counsel Fees—Costs or Allowances to Counsel.</p> <p>Where the expenditure for permanent improvements made to an estate is for the best interests of the remaindermen as well as the life tenant and does not contravene the terms of the will, the cost should be paid out of the corpus of the estate or apportioned between the life tenant and the remaindermen according to the benefit accruing to each.</p> <p>Where part of an estate devised and bequeathed to testator’s wife for life, “ to be used and enjoyed by her without molestation or hindrance from any one,” consisted of a farm, and prior to the receipt of a letter, from the department of health of the city of New York to the tenant of the farm who shipped the milk therefrom to said city, stating that upon analysis the water in the well near the farm house was found to be contaminated “ and unfit for use in the washing of milk pails and utensils ” the life tenant, from funds in her hands as executrix, paid the cost of deepening and properly piping the well, which expense was absolutely necessary to insure an ample supply of good water for use on the farm, she will be allowed on the judicial settlement of the estate the cost of such expenditure out of the corpus of the estate as against the objection of one of the remaindermen and her husband, the co-executor.</p> <p>The estate cannot be charged with the expenses of the executor in the employment of counsel to oppose a motion by the executrix to compel him to deliver to her certain personal property of the estate then in his hands upon which he claimed commissions.</p> <p>See Note, I Mills Surr., 219.</p>

<p>Wills—Disposal by Will—Testamentary Capacity—Interpretation and Construction—Disposal op Lapsed or Void Devises or Bequests or op otherwise Undisposed Property—Lapsed Shares op Residue or Estates therein.</p> <p>The rule that where the shares of legatees named are fixed they take as tenants in common and not as a class does not apply where the will and surrounding circumstances show an intention inconsistent therewith.</p> <p>Where the parents of a testatrix were dead when she made her will and. of twelve deceased uncles and aunts on uncle and two aunts on her father’s side and one uncle on her mother’s side had living children, and, after the bequest of a bed to a nephew, she left one-fifth of her residuary estate to each of the four branches of the family in one of which there was a surviving cousin, in another two who predeceased testatrix, in another three and in another seven, and the remainder was given to the six children of two deceased cousins, in each instance the legatees being named and described as children of a certain person, it is clear that it was the intention of the testatrix to divide her residuary estate among classes of relatives and not to individuals, but, all the members of one class having predeceased her, that share lapsed .and passed to the next of kin of testatrix.</p> <p>See Note on Tesamentary Capacity , 1 Mills 161.</p>

<p>Wills—Interpretation and Construction—Fiduciary or Individual, Legal or Equitable, and other Qualified Interests—Terms Defining Quantum or Duration of Estates or Interests—Legal Estate of Trustee or Executor.</p> <p>Where testatrix bequeathed $500 to the church of which she had been a member, in trust for fifteen years, the income to be used for the expenses of the church as its financial officers and society might determine from time to time, and directed that, at the end of the trust period or prior disbandment of he church, the principal sum should be paid to the next of kin of her deceased sister, as if she had died intestate and was the absolute owner of said money as of the date when the right of the church to the income should cease, the bequest is void upon its face as in violation of section 2 of the Personal Property Law of 1897, and as to said bequest testatrix died intestate.</p>

<p>Taxes—Persons, Objects and Interests Taxable—Inheritance and Transfer Taxes—Exemptions—Educational Institutions.</p> <p>The bequest of testator’s residuary estate to the “Trustees of the Masonic Hall and Asylum Fund,” the income thereof to be used in the discretion of said trustees for the higher education of worthy and capable children who have been inmates of the-Masonic Home at Utica, N. Y., for the required length of time, is not subject to a transfer tax.</p>

<p>Surrogates’ Courts—the Court and its Officers—Nature and Extent of Jurisdiction—Administration of Decedents’ Estates— Appointment of Temporary Administrator.</p> <p>Where for any cause delay necessarily occurs in presenting a last will for probate, or in the grant of letters testamentary upon probate, or letters of administration upon, due application, the-surrogate has jurisdiction, in his discretion, to grant letters of temporary administration upon the petition of a creditor or a person interested in the estate and no one is entitled to notice-of the application.</p> <p>Where, by the petition of one of the heirs-at-law and next of kin of a decedent, acting in good faith, for letters of temporary administration, it appears that, by reason of the nonresidence of many of the heirs-at-law and next of kin, delay would necessarily occur in bringing them before the court upon the application for the probate of decedent’s will and that there were property interests which required immediate care and attention, in particular a proceeding in bankruptcy in which decedent was interested, the appointment of petitioner as temporary administrator without formal notice to any one is within the authority and jurisdiction of the surrogate; and a petition for the revocation of the letters of temporary administration on the ground of lack of jurisdiction will be denied.</p>

<p>Wh-ls—Interpretation and Construction—Administration of Estate, and Execution of Powers and Trusts—Management of Funds to be Paid in Future at Successive Times.</p> <p>Where the income of a trust fund for the care, maintenance and education of testator’s daughter is directed to be paid to her during her minority or so long as she remains under the control of the executrix and trustee in such sums as she may deem proper, and upon the daughter’s reaching majority the executrix and trustee is directed to account to the daughter for all of the estate :and thereafter to pay over to her, quarterly, the entire income,' the daughter is entitled to the income which accrued during her minority and had not been applied.</p>

<p>Wills—Interpretation and Construction—Validity, Operation and Legal Effect—Validity of Conditions and Contingencies— Against Contest or Opposition.</p> <p>Where a testator directs that the net income of a trust fund be paid to bis son during life with remainder over, a condition) that the gift should fail if the son contested the will is void.</p>

<p>Wills—Disposal by Will—Interpretation and Construction—Terms Defining the Nature and Quality of Estates or Interests— Gift of Remainder on Death of Life Tenant to Children and to Heirs of Deceased Child—General Bequest of Residue for Life with Remainder Over.</p> <p>Where a son to whom testator, who was a widower at.the time of his death, gave the income of his estate for life with remainder aver to the surviving children of said son, share and share alike, dies, without children him surviving, after the testator, a contingency not provided for, there- arises an intestacy as to the whole estate which is payable to the executor of the deceased son.</p>

<p>Descent and Distribution—Persons Entitled to Share or Inherit— Course of Descent and Distribution.</p> <p>An illegitimate child of a deceased sister of an intestate is not entitled to share in the personal estate.</p>

<p>Wills—Right of Disposal and Matters Disposable by Will—Bequest to Trustees Appointed by Will to be Applied to the use of Charitable and Benevolent Associations and Institutions.</p> <p>A bequest to trustees nominated by a will to be applied in their best judgment and discretion to such charitable and benevolent associations and institutions of learning as the trustees select is now valid as a charitable use.</p>

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

<p>Wills—The Testamentary Instrument or Act—Signature at End of Will—Attesting Signatures .“at End of Will”—Signature ry Mark.</p> <p>Words written in the body of a will, after testatrix had signed it, are not entitled to be probated unless she again subscribes the paper; that she subsequently acknowledged her subscription is insufficient to incorporate the words never in fact subscribed.</p> <p>Public policy dictates that the requirements cf the Statute of Wills' be carried out, and noncompliance therewith is fatal to the validity of the act attempted.</p> <p>The surrogate may admit to probate part of a will duly executed and refuse probate to a part thereof not duly executed if they are severally separable, independent and concrete.</p> <p>Where, after the will of testatrix had been read to her and she had affixed her mark thereto, but before she had declared it to he her last will and testament and before the subscribing witnesses had signed it at her request, one of them, a lawyer and draftsman of the will, wrote in blank spaces in the testimonium clause the street number of the testatrix’s residence, the date of the execution of the will and the names of the subscribing witnesses, and at the same time wrote about the signature of testatrix “ Annie F. Foley X her mark” and the paper was not again subscribed by the testatrix, the will is entitled to probate in so far as it was subscribed by her but no further.</p> <p>See Note. Attestation Clause VII Mills Surr. 454.</p>

<p>Wills—The Testamentary Instrument or Act—Execution of Will— Evidence of Execution—Testimony of Subscribing Witnesses— Probate, Establishment and Annulment.</p> <p>Under section 835 of the Code of Civil Procedure an attorney, the draftsman of a will, but not a subscribing witness thereto, is incompetent to testify as to what he heard the subscribing witnesses say to testatrix, or what he heard her say to them, or what he himself said to her at the time of the execution of the will in the presence of all the others, or as to the mental condition of said testatrix and of the influence under which she acted.</p> <p>Where testatrix was apparently able to conduct her ordinary affairs, testimony that she was not particularly intellectual considered, and held insufficient to rebut the presumption of mental capacity.</p> <p>Where the will was prepared and its execution supervised by a competent attorney, and one of the three subscribing witnesses testified to a memory of all the facts sufficient to constitute a due execution and publication, probate will be decreed though the other witnesses do not in all things remember, as matter of independent memory, all the circumstances Surrounding the testamentary act.</p>

<p>Adoption of Children—Right to Adopt—Mode and Sufficiency of Adoption—Jurisdiction of Surrogates’ Courts.</p> <p>Under section 2481 (6) of the Code of Civil Procedure, the surrogate may vacate and set aside an order of adoption made by him without jurisdiction.</p> <p>Jurisdiction of the surrogate to make an order confirming an agreement by grandparents for the adoption of their deceased daughter’s infant child, made without the consent of the father, who had no notice of the application for said order, and on proof that he had abandoned the infant, may properly be raised on the father’s application for the abrogation of such adoption upon allegations that he had made proper provision for the maintenance of the child and upon his denial of the charge of abandonment.</p>

<p>Taxes—Persons, Objects and Interests Taxable—Inheritance and Transfer Taxes—Construction of Statutes.</p> <p>Where there was a complete vesting of a residuary estate before the enactment of the transfer tax statute, it cannot be reached by that form of taxation.</p>

<p>Wills—The Testamentary Instrument or Act—Revocation and Alteration—Cancellation or Obliteration—Interlineations and Erasures.</p> <p>Where, after due execution of an instrument in writing purporting to be the last will of one Daniel Heatley Barnes, every sentence containing any disposition of property was in some part intersected by the words: “ Null and Void. Daniel Heatley Barnes, Oct. 30th, 1910” written with a red pencil and in the testator’s handwriting, and there is no extrinsic evidence of the transaction except that the paper was in the custody of the testator at his death, probate will be denied on the ground of cancellation with intent to revoke.</p>

<p>Wills—Interpretation and Construction—Words of Disposal Controlling Mere Words of Description—Particular Terms of Doubtful Meaning—Gifts.</p> <p>Where in one part of a will an estate is given in clear and decisive terms it cannot be cut down or qualified by subsequent words which are not as clear and decisive.</p> <p>The gift of testator’s entire estate to his friend and partner,, whom he names as executor without bonds, “ as his absolute property without legal accounting to any one for or in respect to the same or in the disposition thereof,” is an absolute gift and is not affected by testator’s expression of confidence that the estate will be distributed in accordance with a certain memorandum attached to the will and bearing the unattested signature of testator. Such memorandum, admitted in evidence over objection, must be ignored in construing the will.</p>

<p>Decedent Estate Law—Wills—Devisees or Bequests to Charitable Corporations—Distribution Among Residuary Legatees.</p> <p>Where the money value of an estate at the death of testatrix was $20,842.14, the real estate being valued at $5,200, and her debts amounted to $96.18, and the will gave to each of two charitable corporations a legacy of $250 and certain real estate was devised to another like corporation, and the residue was devised to said three corporations share and share alike, the provisions in their favor are impaired by the provision of section 17 of the Decedent Estate Law, that no person shall devise or bequeath to any charitable corporation more than one-half of his estate after payment of debts.</p> <p>The legatees are entitled to the one-half of the estate remaining after the payment of decedent’s debts. The real estate passing by direct devise should not be considered in the calculation; the two general legacies should be paid and the remainder of one-half of the estate should be divided equally among said residuary legatees.</p>

<p>Wills—The Testamentary Instrument or Act—Forgery of Will or Fraudulent Attestation of Contents—Probate, Establishment and Annulment—Evidence—Burden of Proof.</p> <p>Where the genuineness of an instrument purporting to be a last will is disputed, the burden of proving to the satisfaction of the surrogate its genuineness and due execution rests on the proponent. In such a case the surrogate may inquire particularly into the circumstances surrounding the possession and custody of the testamentary paper propounded.</p> <p>Where a widow, who for over a year has been acting as administratrix of her husband’s estate, offers for probate a will, which gives all his estate to her, and upon a contest as to its genuineness all the circumstances relative to the custody thereof from its inception to its production are inconsistent with the testamentary character and make against rather than for its validity, and the testimony on every issuable fact is controverted, proponent has not sustained the burden of proof resting on her, and probate will be denied.</p> <p>Where the alleged signature of testator to the will was alternately sworn to be a forgery and genuine with equal freedom, the proponent is entitled to the benefit of the presumption of innocence, though the rule is not strictly applicable.</p>

<p>Petition to compel the production of alleged testamentary instruments.</p>

<p>Gifts—In General—Funds in Bank—Delivery and Acceptance— Evidence.</p> <p>Under a bequest of a savings bank deposit to a sister, with directions to expend the same for the benefit of a certain named friend of testatrix “ in such manner as will best supply her needs,” the friend takes an absolute interest in the whole deposit, and, upon her death, her administratrix is entitled to the unexpended balance of said deposit.</p>

<p>Wills—Interpretation and Construction—Disposal of Lapsed ob Void Devises ob Bequests, ob of Otherwise Undisposed Property— Lapsed, Void ob Ineffectual Gifts.</p> <p>Where, in the event of the death of a legatee before the testatrix, the legacy is given to such person or persons as the legatee may have appointed by will to receive the same, and in default of such appointment then to her next of kin, and the legatee died before testatrix, the intended gift lapsed as to her but passed to her next of kin as substituted legatees.</p> <p>The legatee, having died before the will of testatrix took effect, never received a power of appointment thereunder, and in no event could her will operate as a testamentary execution of such power.</p>

<p>Wills—The Testamentary Instrument or Act—Validity, Operation and Legal Effect.</p> <p>A bequest of $2,000 to executors, in trust, to pay the income annually to testator’s son until two years elapse from testator’s death when one-half of the principal was to be paid over to him, and as to the other half the trust was continued three years longer when the balance of the principal was to be paid over, is not void as a perpetuity, and the son is entitled thereto as provided.</p>

<p>Wills—Disposal by Will—Interpretation and Construction—Reference by Court to Meaning of same Terms Used in Other Parts of Will.</p> <p>Where two clauses or parts of a will are so irreconcilable that they cannot possibly stand together, the later clause will prevail as indicating testator’s subsequent intention.</p> <p>Where testator bequeathed to his wife all his personal estate and the life use of his real estate with remainder over to nephews and nieces, the personal estate must satisfy legacies given by later clauses of the will.</p>

<p>Wills—Administration of Estate and Execution of Powers and Trusts—Wills Executed in Duplicate—Codicils—Trusts.</p> <p>A residuary estate was devised and bequeathed to V, in trust, with power to appoint a successor by will, to collect and receive the rents, issues, income, increase and profits thereof, and to pay to the son of testatrix for life the whole or such part thereof as V, in his discretion, might think best for the real advantage and due maintenance of said son, with direction upon his death to divide the estate among Ms natural heirs share and share alike per stirpes and not per capita. In the event of the death of said son without lawful issue him surviving, the trustee was directed to speedily convert the estate into money and divide the same into a certain number of shares and to pay same to certain named persons. The son of testatrix never married and died a few months after V, who failed to appoint a successor to execute the trust. Upon the judicial settlement of the accounts of the substituted trustees, it appeared that a portion of testatrix’s estate delivered to them by the administrator of V represented income which had accumulated during the continuance of the trust. Held:</p> <p>That the implied accumulation of income, which, presumably, resulted from the exercise of the discretion vested in V, was in contravention of the statute.</p> <p>That the will of testatrix containing no express bequest of the accumulated income, it passed, under section 63 of the Personal Property Daw, to the persons presumptively entitled to the next eventual estate, i. e. to those entitled to the estate at the end of the period of accumulation.</p> <p>The will of testatrix expressly declared that it was executed in duplicate. The first duplicate directed the trustee upon the death of the son to divide the estate into seven equal shares, to pay two of them to A and to each of five other persons, including B, one share. This duplicate and the codicil remained of record in the surrogate’s office after probate. By the second duplicate, which was found by the substituted trustees among the papers turned over to them by V’s administrator, of the seven shares into which the estate was to be divided only six were disposed of, the name of B being omitted as one of the legatees. The codicil directed that the estate be divided into six shares “ instead of seven, as wrongly stated in said will, the word ‘ seven ’ being a clerical error therein.” The second duplicate was admitted to probate during the pendency of the present proceeding. Held:</p> <p>That by the execution of the codicil testatrix intended to reaffirm and republish the second duplicate as her will, except in so far as it was changed by said codicil, and that the estate should be divided into six equal shares and paid to the residuary legatees named in the second duplicate and codicil except that the two shares bequeathed to A must be paid to her personal representative, now deceased, and that the surplus income should be divided and paid over to the same persons in the same proportionate amounts.</p>

<p>Wells—Probate, Establishment and Annulment—Bequest of Residuary Estate in Trust to Pound and Maintain a Trades School— Interpretation and Construction—Administration of Estate and Execution of Powers and Trusts and Compensation Therefor —Executors and Administrators.</p> <p>Taxes—Inheritance and Transfer Taxes—Property and Interest Subject to Tax—Exemptions.</p> <p>A bequest of a residuary estate to the city of Yonkers, in trust, to found and maintain a trades school under the direction of the board of education and as a part of the public school system, with provisions that all payments and investment of the fund are to be under direction of said board of education, is a bequest to; an educational corporation within the meaning of section 220 of the Tax Law and is not subject to a transfer tax.</p> <p>A bequest of money to the “ Yonkers Public Library ” is subject to a transfer tax.</p> <p>A bequest of money to the “ Westchester County Society for the Prevention of Cruelty to Children ” is subject to a transfer tax.</p> <p>Where the will of a testator, who had no immediate family but left an estate of over a million dollars, after directing that he be laid in the family cemetery plot owned by him and his two brothers, provides, with their consent, for changes being made in said plot and the erection of a granite block therein of such size and design as shall be selected by the brothers, at an expense of not to exceed $5,000, and it appears that it is their intention to substantially expend' said sum in making the improvement, each should pay his proportionate share, and the executors are entitled to an exemption of one-third of said sum, in fixing a transfer tax.</p> <p>The will having directed the conversion of the real estate into personalty, the commissions of the executors should be figured accordingly, and where the personal estate as found by the transfer tax appraiser is valued at $586,621.92 and the real estate at $487,-973.83 each executor is entitled to a full commission.</p> <p>The executors are also entitled to have allowed as necessarily incurred and to be incurred in disposing of the real estate a broker’s commission of two and one-half per cent, on its appraised value-after deducting the amount which would be the commission on a. sale on which no commission was paid.</p>

<p>Subrogates’ Courts—Nature and Extent of Jurisdiction—Proceedings for Payment of Claims—Sale of Beal Property for Payment of Debts.</p> <p>Where, after a sale of decedent’s real estate for payment of debts, the administrator refuses to convey, the surrogate has no jurisdiction to entertain a motion by the purchaser to be relieved from her purchase and that the administrator pay to her the amount paid upon the purchase price, with interest, the amount of the auctioneer’s fees paid by her, and the amounts incurred for counsel fee and for examining the title.</p>

<p>Trusts—The Trustee, Appointment, Qualification, Resignation and Removal—Testamentary Trustees—Executors and Administrators.</p> <p>The gift of testator’s estate to his executors in trust to sell the same and distribute the proceeds “to any institution conducted for the benefit of the poor and suffering my Executors may in their judgment give to any individual or person who in their judgment selected as poor and in need ” is valid as a trust for charitable uses.</p>

<p>Evidence—Presumptions—Death.</p> <p>Death—Absence as Raising Presumption op—Proof of Time of.</p> <p>The surrogate may presume the death of the person whose estate is to be administered, where it is established that such person being in ill health and of dissipated habits disappeared more than seventeen years ago, and has never since been heard of by those who would be likely to hear if the person were living, a diligent search and publication being also established.</p> <p>The presumption of death applies as to an unexplained and continued disappearance for more than seven years the same as to an established departure and absence unheard of by those, if any, likely to hear.</p> <p>The presumption of death does not necessarily fix the exact time of death.</p> <p>Where the person who disappears is unmarried and childless such conditions are presumed to continue in the absence of proof to the contrary.</p>

<p>Wills—Cestui Que Trust as Owner of Trust Fund—Next of Kin of ¡Remainderman Who Died Intestate—Decree on Distribution— Payment of Fund to Executor of Cestui Que Trust.</p> <p>A cestui que trust entitled to the income of a fund for life is not excluded as next of kin from the ultimate ownership of the trust fund, where there is no valid disposition thereof by the remainderman.</p> <p>Under A’s will admitted to probate in 1889, the income of a trust fund was to be paid to B for life with remainder over in equal shares to testator’s nephew and niece upon respectively at-taming the age of twenty-five years, and in ease of prior death his or her issue to take, and if no issue the survivor to take. The niece died in 1903, aged twenty-five years, survived by her husband and an infant child. The nephew is still living. A second trust fund, the income of which was to be paid to testator’s brother C for life, provided that should his wife predecease him the trustees were empowered to pay over said trust fund to him absolutely free and clear of any trust. The residuary estate-was given to testator’s mother, who died in 1890, and she bequeathed her residuary estate to O, in trust, to receive the income for life, the principal at his own election should his wife die. 0 died in 1911, leaving a last will and survived by his wife. Held:</p> <p>That the executor of O was entitled to have paid over to him the residuary estate which his mother was to receive under the will of A after the death of O, as to which she died intestate, having failed to make any testamentary disposition thereof, and accordingly O, her only heir at law and next of kin, became the absolute owner of said residuary estate subject to his own life estate.</p>

<p>Proceeding in relation to the payment over of a trust fund.</p>

<p>Usury—Negotiable Instruments—The Effect of Usury—Assign-ability of Instruments or Rights—Exchange, Discounts, Commissions, Bonuses, and other Deductions or Charges Incident to the Loan or Forbearance.</p> <p>Wills—Disposal by Will—Interpretation and Construction—Terms Creating Legacies and Gifts of Income, Interest, Support and Releases of Debts.</p> <p>Upon the assignment of a legacy of $2,000 the assignor gave his promissory note for $1,980, which contained no obligation to pay interest, and at the same time a check for $2,000 drawn to his order indorsed to the assignee was paid in cash from which a “discount” of $300 for the assignee was retained by his agent and subsequently paid to the assignee. The assignment was declared to be made as collateral security for the note which was described as payable on demand without interest at six per cent, and contained words of defeasance “upon payment of the said promissory note, with accrued interest,” and by said assignment the assignee was-given power to enforce payment of the legacy and to retain therefrom “a sufficient sum to pay the said promissory note, with the interest thereon.” The legatee received in exchange for the assignment, note and check $1,275. Held, that, the lender having testified to receiving notice that his bank account was credited with $300 two or three days after the charge of $2,000, the transaction must be held to constitute an usurious loan, and the legacy should be paid to the legatee.</p> <p>Section 376 of the General Business Law, which gives immunity from forfeiture only upon the repayment or return of the bonus exacted, requires actual and unconditional surrender of the usurious premium, and one who proposes restitution only in the event that the usurious contract shall be established can obtain no relief, and an offer by the assignee of the legacy without prejudice to adjust the matter by payment of a sum reached by subtracting from the usurious premium the amount of interest unpaid on the loan does not avoid the forfeiture under said section 376.</p> <p>A gift of “all money in any banks deposited in my name for my benefit ” does not include moneys deposited by the son of testatrix to his individual account, a part of which he had collected as her agent; and, where he as her executor accounts for the amount of certain checks drawn on said account to the order of testatrix which she held without presentation for payment, the assets represented by said checks should be distributed as part of the residue of her estate, not having been specifically bequeathed.</p>

<p>Subrogates’ Courts—Nature and Extent of Jurisdiction—Jurisdicdiction of Subject-matter.</p> <p>Executors and Administrators—Rights and Liabilities Between Representative and Estate—Investment by, of Personal Property in the Purchase of Real Estate—Accounting—Compensation—Services in Renting Real Property.</p> <p>That a Surrogate’s Court does not possess general equitable jurisdiction does not imply that where it has jurisdiction of the subject-matter, as between parties properly before it, it cannot apply equitable principles.</p> <p>Where executors had personal property in their hands, being net profits of business conducted by them without authority under the will and for which net profits it was their duty to account, and they invested the same in real estate, the title to which was taken in the individual name of one of the executors and held by him for the benefit of the estate, the Surrogate’s Court has jurisdiction to determine whether, as between the beneficiaries under the will, or those claiming under them, said personal property remains such, as the duties of the executors in reference thereto were the same as if they had received it directly as a part of the estate.</p> <p>An executor who, without authority, continues the business of his testator, or without authority uses the property of the estate in a new business and continues the same, in contemplation of law renders no service to the estate and is not entitled to compensation therefor independent of his right to statutory commissions, in the absence of evidence of an agreement between the beneficiaries of testator and the executor that he was to be paid for services rendered in said business.</p> <p>That the beneficiaries under the will from time to time were paid by the executors and accepted parts of the net profits of said business is no proof of an agreement by them to pay the executors compensation for the services rendered in that respect, as in paying them such net profits the executors only performed a duty which was obligatory on them, and in accepting the same the beneficiaries received no more than was their lawful right.</p> <p>The executors are not entitled to extra compensation, in addition to commissions, for services rendered by them in renting, collecting the rents of, and superintending the real property, in so far as the same was done in accordance with the provisions of the will.</p>

<p>Wills—Interpretation and Construction—Child Born After Making Will.</p> <p>Where a child born to testator after he made his will was not provided for or mentioned therein, the proceeds of a sale of testator’s lands in Wyoming by his executor under a power of sale in the will, when brought to this state, must be disposed of as directed by the will, which, as to the lands sold, was valid.</p>

<p>Surrogates’ Courts—Executors and Administrators—Public Administrator of Kings County-AIode Civ. Pro. § 2669.</p> <p>Under the provision of section 2669 of the Code of Civil Procedure, that the public administrator of Kings county shall be entitled to administration whenever a person dying intestate leaves assets or effects in said county and there is no widow, husband or next of kin resident in the state, a sister of an intestate, otherwise competent and willing, who, though a nonresident at the time of the intestate’s death, has since established a residence in Kings county, which still continues, is entitled to letters of administration.</p>

<p>Subrogates’ Courts—Jurisdiction—Domicile of Testatrix—Wills.</p> <p>Where the domicile of a married woman a.t the time of her death in California was in this state, county of New York, which was her domicile of origin and matrimonial domicile, the surrogate of said county has jurisdiction of an application to probate her last will.</p>

<p>Wills—Disposal by—Life Tenant and Remainderman—Income on corporate Stock—Corporations.</p> <p>What is income on corporate stock and what is principal, as between life tenant and remainderman, depends to some extent on the intent of the testator who bequeathed the stock. What is income as to the testator is presumably income as to the life tenant under the will, and e converso.</p> <p>The grant' by the Great Northern Railway Company of corporate assets and the subsequent issue of participation certificates by the trustees is not a “ dividend ” which accrues to a life tenant, under the circumstances and the peculiar contracts referred to herein.</p> <p>Profits which arise by a realization on shares in a corporation do not ordinarily accrue to a life tenant under the will.</p>

<p>Guardians—Testamentary Guardians—Appointment of by Wills— Infants—Wills—Revocation of Letters of Guardianship.</p> <p>Where upon the probate of the will of a widower leaving him surviving as his sole heir at law and next of tin an infant daughter, letters of testamentary guardianship were duly issued to testator’s brother and sister, and it is not shown that the child is not being well and properly cared for in her present relations, the petition of her maternal grandmother, in which her husband joins, for the revocation of said letters, on the ground that the infant had not been provided with any permanent home, will be denied in the absence of any sufficient reason.</p>

<p>Wills—Disposal by—Power of Sale—Executors and Administrators —Accounting—Trusts—Equitable Conversion.</p> <p>A will authorized and directed the executors or survivors of them, for any or all of its purposes and objects, to sell and dispose of, so soon as practicable after testator’s decease, all or any part of his estate, real or personal, at public or private sale, at the best prices obtainable and upon such terms as they should deem expedient, taking into consideration, however, the direction of the will for a continuance of decedent’s copartnership business. After a legacy to his wife, testator devised and bequeathed the residue of his estate, in equal shares, to his three children but directed the shares of two, who were infants, to be safely invested “ as soon after my decease as practicable ” in United States bonds or bonds of the city or state of New York and held in trust for them until they respectively became of age, the interest to be used for their support, maintenance and education during minority. Upon the judicial settlement of the executors’ accounts it appeared that the real estate had not been sold and that since testator’s death one of said infants had become of age. Held, that the power of sale given by the will was imperative, and an equitable conversion of testator’s real estate arose upon his death with all the qualities of personalty.</p> <p>That one-third of the lands passed to the eldest child unimpaired by any language of the will subject only to the executors’ power of sale whose conduct in respect to which was not within the jurisdiction of the surrogate’s control.</p> <p>That as to the remaining two-thirds of said real estate there was an implied devise in trust to invest and collect income and to apply the same as directed by the will, and that as said two-thirds vested in the trustee and was a part of the fund for which, as such, she must account, she should be charged upon her accounting with the land at the sum fixed by her as its value, in a former account.</p>

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

<p>Partnership—Good-Will of Business—Executors and Administrators—Accounting—Contracts.</p> <p>The rule that in estimating the value of the good-will of the business of a decedent the average annual profits for the last three years before his death are taken is subject to the qualification that, where the profits of any one of said years are abnormal and produced by exceptional conditions, they should, so far as they exceed the highest profit realized in any other of said years, be disregarded, not only because the exceptional profit has no place in the computation of averages but for the reason that the tendency would be to destroy rather than to enhance good-will.</p> <p>The executor of a decedent who was his partner in business is chargeable upon the judicial settlement of his accounts with one-half of the appraised value of the good-will of the partnership.</p> <p>Where the rent of piers in the city of New York used for many years by the partnership was paid as an expense of the business, but the leases stood in the name of the executor personally prior to the formation of the firm and so continued until decedent’s death, the executor should only be charged with one-half of the amount of the value of the plant upon the piers at the time of decedent’s death, as without an assignment of said leases they were not partnership property;</p> <p>Where a contract regarded as preserved as a firm asset was carried out by the executor after he took over the business to himself without contribution from the estate of his deceased partner, the estate can be credited with only the naked profit under the contract, with proper offsets to the executor’s capital, services and general plant.</p>

<p>Wills—Direction to Trustee—Payment of Income—Charges Against Estate—Trusts.</p> <p>Where a will directed the trustee to collect the rent, interest, profits and income of a residuary estate and after paying “ all necessary expenses ” pay the remaining income to a sister of testator for life and then to turn over the trust property absolutely to a grandniece, expenses of the trustee, in defense of the corpus of the trust and in an endeavor to increase the same, are not chargeable against the income.</p>

<p>Death—Presumption of—Evidence.</p> <p>The presumption of death after seven years’ absence or disappearance is one of fact which may be rebutted by any inherent circumstance, or expressly, and should be applied only when it is an irresistible inference from facts otherwise found.</p> <p>Matter of Matthews (75 Misc. Rep. 449) and Matter of Smith (77 id. 76) explained.</p>

<p>Decedents’ Estates—Claims Against—Evidence—Statute of Limitations.</p> <p>Widow—Sums Expended by fob Reasonable Support During Quarantine.</p> <p>Where, upon the hearing of the personal claim of an executrix for various sums alleged to have been collected by her testator, it is established that either the decedent or the claimant, his widow, received said moneys, the question “Did you have any of these payments? ” is prohibited by section 829 of the Code of Civil Procedure.</p> <p>Under section 204 of the Real Property Law the widow was entitled to be reimbursed sums expended by her for reasonable support and maintenance during hen quarantine.</p> <p>Where, during sixteen years preceding testator’s death, land owned by the claimant was used for pasture in connection with a farm of decedent, the rent therefor, in the absence of agreement as to time and payment, became due at the end of each pasturing season, and claimant, who, as executrix, was bound to plead the Statute of Limitations as a defense, was entitled to recover for the use of her land only for the six years immediately preceding decedent’s death.</p> <p>The decedent not having, in certain instances, paid over to claimant moneys collected upon her bonds and mortgages, a demand therefor was not a condition precedent to her right to enforce payment, but the causes of action having matured more than six years prior to decedent’s death, and the claimant not having commenced an action within that period to enforce payment, her claim is barred by the Statute of Limitations.</p> <p>Where both the indorsements of claimant and decedent upon certain checks given by a mortgagor for payments on his bond, and mortgage were in the handwriting of the decedent, and each check bore the bank’s paid stamp, and it does not appear that claimant ever had possession of said checks, or that she authorized decedent to indorse her name thereon, or that she ever parted with the title to the money represented thereby, her claim for the amount of said cheeks will be allowed against the estate.</p>

<p>Wills—Direction to Executors to Invest and Pay Income During Life and upon Death to Divide Trust Fund Among “Heirs at Law ”—Who are Heirs at Law.</p> <p>Where a will directed executors to invest and keep invested a certain sum, pay the income to testator’s nephew during his life and on his death divide the trust fund among his heirs at law, the remaindermen take direct from the testator, their identity being determined upon the nephew’s death, and all who answer the description of “heirs at law,” giving the expression its strict legal meaning, are in that class.</p>

<p>.Surrogates’ Courts—Appointment of Substituted Trustee—Bond of Trustee.</p> <p>Where the decree appointing a substituted trustee in the place 'Of a testamentary trustee who resigned required the new trustee to .give a bond, the same may not be canceled on an original petition.</p>

<p>Subrogates’ Courts—Jurisdiction—Accounting in.</p> <p>Executors and Administrators—Code Civ. Pro. § 2472a.</p> <p>Where the daughter and son-in-law of a testator, the daughter being the residuary legatee, as executors of the estate, entered into a written agreement providing for a voluntary division and distribution of the assets, specifying in detail the various items each should receive in full payment and settlement of their respective interests, and further, that the daughter should quitclaim to her husband her interest in certain real estate and release her rights in certain insurance upon his life, and also designated a trustee to take charge of the assets set off to the daughter, which agreement was subsequently modified by the substitution of her husband as trustee, the surrogate, upon the petition of the daughter to compel an accounting by her co-executor and payment of her legacy, has jurisdiction, under section 2472a of the Code of Civil Procedure, to determine the validity of the agreement.</p> <p>But where an action had been commenced in the Supreme Court, .prior to the service of the citation issued in the proceeding in the Surrogate’s Court to determine the validity of said agreement and to have the same annulled and adjudged void and inoperative, the jurisdiction of the Supreme Court was retained to the exclusion of the Surrogate’s Court and the proceedings therein to compel an accounting will be stayed until the action in the Supreme Court has been tried and a decision rendered.</p>

<p>Proceedings upon the judicial settlement of the accounts of a surviving executor.</p>

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

<p>Domicile—Incompetent Person—Return to Domicile of Origin.</p> <p>A French Canadian naturalized in this country and long domiciled in New York county, but whose domicile of origin was in Quebec, after concluding all his mercantile operations in this country determined to repatriate himself and to die in his native land. Before such intention could be consummated, he became incapaw, but his committee appointed in this state took him to Ms old home where he died. The committee’s domicile was Canada and the courts in that jurisdiction took cognizance of the last will of decedent. The Surrogate’s Court of New York county, on a petition to administer the estate of the imeompetent as an intestate resident, also granted administration. In a proceeding to revoke said letters of administration, held that the domicile of origin governed and that prima facie the Canadian courts had jurisdiction.</p>

<p>Wills—Vesting of Estates—Contingent and Vested Remainders.</p> <p>Where a will is silent as to the period of vesting, tfie gift vests immediately on the will coming into operation, whenever it appears that the enjoyment of the legacy is postponed merely for the convenience of the estate, or to let in - an intervening interest.</p> <p>The vesting of legacies is now most favored in construction, particularly under the statute which subjects limitations of future or contingent interests in personal property to the rules presented in relation to future estates in real property.</p> <p>Where upon the death of testator’s widow, the life beneficiary, the executor was directed to pay from testator’s estate a legacy of $25,000 to testator’s brother, who was an old man and childless at the time of the execution of testator’s will which did not provide for the event that the brother should die before the life tenant, the legacy to him vested at the time of testator’s death, the payment thereof being merely postponed for no other reason than to let in the interest of testator’s • widow.</p>

<p>Wills—Words of Gift Contained in—Vested Remainder.</p> <p>The will of testator, who was survived by his widow, her son by testator and three children by an earlier marriage, provided that when said son should attain his majority the corpus of the estate should be divided among testator’s widow and all the children, share and share alike, the surviving issue of any deceased child to take per stirpes and not per capita. Because of advances made by testator to two of his sons, respectively, of $2,500, a codicil to his will provided that in order to carry out the principle of equality therein an equal sum should be paid, from his residuary estate before the distribution and division thereof, to his widow and the two other children. Testator’s widow, who-was also his executrix, died leaving a will during the minority of her son who reached full age. Upon the judicial settlement of the accounts of the administrator of the will annexed of testator, held, that the provision in favor of testator’s widow on her son’s, coming of age constituted a gift which vested at testator’s death, and that the decree should provide for the payment to the executor-of said widow of $2,500 with interest from the date of the advances to the two sons and a one-fifth share of the residuary estate.</p> <p>Where the only words of gift are contained in the direction to-divide or pay, the gift' vests on the-testator’s death if such intention appears, and the gift is only future and contingent when the only evidence of intention is found in the direction to divide or pay.</p>

<p>Executors and Administrators—Accounting—Modification of Decree on judicial Settlement of Accounts.</p> <p>A decree entered on the judicial settlement of the accounts of an administratrix will.be modified by striking therefrom a statement which is not true whether it was made intentionally or-otherwise.</p>

<p>Decedents’ Estates—Application foe Letters de Bonis non—Code Civ. Pro. § 2669—Executors and Administrators.</p> <p>Where upon the death of a father, to whom as the only next of kin of his deceased daughter and entitled to her whole estate had been granted letters of administration thereon, his widow and administratrix applies for letters of administration de boms non of the original estate, her application must be denied, though she be the only person wholly interested in the fund.</p> <p>In such case, under section 2669 of the Code of Civil Procedure, the letters of administration de bonis non must issue to the public administrator who is preferred over a creditor and a brother of the intestate.</p>

<p>Legacy—Interest—Payable upon Death of Residuary Legatee— Wills.</p> <p>Where a general legacy is made payable upon the death o£ the residuary legatee, it bears interest only from the happening of that event; and the income derivable from the sum aggregating the amount of several such legacies passes to the residuary legatee.</p>

<p>Wills—Vested Remainder—Time of Payment Postponed—Death of Legatee before Time fixed for Payment—Trustees.</p> <p>Executors were directed to invest one-seventh of the remainder of an estate, together with the amount mentioned in a particular item of the will, and to pay the income of the whole semi-annually to testator’s son during life and, upon his death leaving lawful issue, to pay the principal, and any interest not paid over, to said issue, share and share alike as they should come of age, and in default of such issue to divide the same equally among testator’s surviving children and the children of any who should have died, the children of any deceased child of testator to take the share its parent would have taken if living. Held, that a surviving child of testator’s son, who died before coming of age, took a vested remainder in one-fourth of the property held in trust for the life of her father, and the decree judicially settling the accounts of the trustee should direct the payment thereof to the administrator of said child.</p>

<p>Executors and Administrators—Accounting—Salary op Executor as Officer of Corporation in which Estate was Stockholder.</p> <p>The surrogate, upon the judicial settlement of the accounts of an executor, has no power to decree that he “ return ” to the estate the salary received by him as an officer of a corporation in which the estate was merely a stockholder.</p> <p>An objection to the account, based on the assumption that the corporation was the estate and treated as such, must be overruled on the ground that the services rendered by the executor as an officer of the corporation were not performed within his function either as executor or as trustee; and the salary should not be returned to the estate because it was not taken therefrom.</p> <p>A further objection to the retention by the executor of a certain dividend on his personal stock in the corporation, while assenting to the repayment of the dividend in which the estate was interested, must be overruled on the same ground.</p>

<p>Executors and Administrators—Wills—Contracts Relating to Farms Devised by Will—Receipt op Proceeds op Contracts and Payment to Devisees—Surcharging Account.</p> <p>Where, under two separate contracts made with the testator which did not terminate until after his death, his executor received one-half of the proceeds of milk of two separate dairy farms, such money represents the earnings of the personal estate of the testator; and, where the executor pays such proceeds to the devisee of each farm, his accounts on the judicial settlement thereof will be surcharged therewith, such proceeds to be distributed as directed by the will.</p>

<p>Wills—Probate of Will and Codicil—Probate Contested on Allegations of Fraud and Undue Influence.</p> <p>Where the probate of an instrument in writing purporting to be a last will, or a codicil thereto, is contested solely upon allegations of undue influence exercised upon testator, the proofs take a wide range; and where, in addition, actual fraud is charged no fact tending to prove it is irrelevant.</p> <p>A man over eighty years of age within two years of the death •of his second wife, under whose last will he derived practically all his property, married a woman fifty years his junior whom he first saw the year after the death of his second wife, and, after having by various assignments of property stripped himself of all his property, executed a last will by which he gave $25,000 to Ms daughter and only child, and the residue of his estate to his tMrd wife. Six months later he executed a codicil to said will, which on its face took away the $25,000 legacy to the daughter, and about all the residue of nothing was given to his third wife; and the will and codicil were prepared by an attorney who had known the third wife from childhood and also .the situation of testator’s property and that his daughter was to some extent dependent on him. On the application to probate said will and •codicil, it appeared inter, alia that proponent during the first month of her marriage told testator’s housekeeper that before she became acquainted with her husband she had heard “ that there was a rich old guy up the country that wanted a wife badly and that was how she came to know Mr. Van Ness,” and that she had married him “for his money,” and the testimony is not contradicted by her; and it also appears that five days after the making of said codicil a document was prepared in the handwriting of proponent and purporting to have been signed by testator, and witnessed by the draftsman of the will and codicil, reflecting on the legitimacy of said daughter and threatening her with exposure in the event of any attempt by her to commence a suit against proponent to break the will and codicil; and it is evident that the decree sought by proponent is to be used as a shield in other litigation affecting said property, probate will be refused on the ground that the papers sought to be probated have not satisfactorily been shown to be the free, deliberate and conscious acts of a capable testator.</p>