v-xwmwetM 'S3*s (flontrll Ham ^rijnnl l&ibranj CORNELL UNIVERSITY LIBRARY 3 1924 069 393 605 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924069393605 THREE YEAR CUMULATIVE SUPPLEMENT 1925 HEATON'S SURROGATES' COURTS FOURTH EDITION Containing the Amendments, Additions and Eef- erences to the changes in the law to the close of the regular 1925 session of the New York State Legisla- ture, together with Annotations and Digest of Cases to July 1, 1925, affecting Surrogates' Practice, since the date of the Fourth Edition of this work. It gives all the material which was contained in the earlier 1923 and 1924 Supplements— all under one arrangement. The original two volumes are brought to date in this single volume Supplement. Always examine the original pages of Heaton, 2 volumes, first; then consult this 1925 Supplement. 1925 SUPPLEMENT (THKEE YEAR CUMULATIVE SUPPLEMENT.) (Including all prior Supplements.) HEATON'S SURROGATES' COURTS FOURTH EDITION Containing the Amendments, Additions and References to the changes in the law to July, 1925, together with annotations and digest of the cases affecting Surrogates' Practice since the date of the fourth edition of this work BY WILLIS E. HEATON Former Surrogate of Rensselaer County ALBANY, N. Y. MATTHEW BENDER & COMPANY, INCORPORATED. 1925 Copyright, 1925, By WILLIS E. HEATON. EXPLANATIONS Italics in the reprint of laws show the recent amendments made. The paragraph numbers (1^) show the paragraphs of the Fourth Edition and also of the Third Edition as they have the same numbers. In some instances, where so stated, the paragraphs are also found in the Supplement. TABLE SHOWING WHEEE THE SECTIONS OF THE SURROGATES' COURT ACT ARE CITED (Volume 2 begins with No. 175.) Book Book S. C. A. Para. S. C. A. Para. 2 2 34 13 3 2 35 13 4 2 36 13 5 2 37 4 6 3 38 4 7 3 39 4 8 4 40 14 9 4 41 20 10 4 42 16 11 4 43 16 12 4 44 16 13 4 45 17-81 14 4 46 16 15 4 47 19 16 5 48 24 17 5 49 25 18 5 50 25 19 5, 115 51 25 20 4-6 52 26 21 10 53 26 22 10 54 26 23 10 55 27 24 10 56 28 25 10 57 28 26 10 58 28 27 10 59 28 28 10 60 27 29 11 61 29 30 11 62 29 31 11 63 30 32 2-12 64 30 33 14, 45 65 366 (V) vi Table of Sections Cited. Book Book S. C. A. Para. S. C. A. Para. 66 15-32 112 123 67 31 113 125 68 31 114 126 69 31 115 125 70 31 116 127 71 32 117 127 72 32 118 82 73 32-48 119 83 74 32-48 120 83 75 32 121 86 76 32 122 87 77 32-50 123 82 78 33 124 , 88 79 33-35 125 88 80 33-464 126 90 81 33 127 242 82 33 128 243 83 34 129 243 84 34 130 243 85 108 131 243 86 108 132 90 87 34 133 91 88 102 134 91 89 , 102 135 91 90 102 136 92 91 103 137 40 92 103 138 43 93 103 139 44 94 104 140 45 95 105 141 48 96 105 142 49 97 105 143 51 98 103 144 , 63 99 106 145 68 100 106 146 77 101 107 147 52 102 109 148 52 103 109 149 53 104 110 150 74 105 118 151 74 106 119 152 74 107 120 153 74 108 120 154 66-110 109 121 155 77 110 121 156 77 111 122 157 78 Table of Sections Cited. vii Book Book ■S. C. A. Para. S. C. A. Para. 158 78 204 265 159 Ill 205 185 160 Ill 206 185 161 112 207 212-474 162 112 208 214 163 113 209 420 164 114 210 220 165 114 211 222, 223 166 115 212 226, 420 167 79 213 221 168 80 214 225 169 77-105 215 225 170 79 216 231 171 79 217 239, 302 172 94 218 290 173 95 219 345 174 95 220 345 175 96 221 303 176 96 222 313, 405 177 96 223 41 178 96 224 208 179 97 225 241 180 98 226 335 181 98 227 206 182 98 228 14 183 94 229 470 184 99 230 108 185 99 231 110 186 99 232 245 187: 100 233 245 188 100 234 247 189 100 235 246 190 101 236 248 191 101 237 250 192 101 238 251 193 101 239 253 194 351 240 253 195 188 241 253 196 188 242 254 197 189 243 253 198 190 244 255 199 190 245 256 200 192 246 256 201 193 247 256 202 195 248 251 203 197-265 249 256 viii Table of Sections Cited. Book Book S. 0. A. Para. S. C. A. Para. 250 252 284 134 251 357 285 135-141 252 357 286 406 253 359 287 134 254 360 288 161 255 361 289 164 256 362 290 159 257 362 291 161 258 243, 369 292 164 259 369 293 165 260 369 294 166 261 378 295 166 262 378 296 263 384-381 297 172 264 398-382 298 169 265 398 299 169 266 368 300 169 267 441-440 301 170 268 473 302 170 269 474 303 170 270 448 304 170 271 492 305 170 272 469 306 273 468 307 164 274 464-439 308 164 275. . .' 151 309 171 276 152 310 171 277 152 311 316 278 153 312 316 279 156 313 316 280 154 314 476-369-319-36 281 156 315 476 282 157-255 316 478 283 158 317 476 INDEX TO LAWS AMENDED AND ADDED, WITH BEIEF BEFEBENCE TO CHANGES MADE. Banking Law: Page Sec. 188. Amendment regarding consent of executor to appointment of trust company 117 Civil Practice Act: Sec. 182. Amendment fixing place of residence of representative in litigation 128 Sec. 457a. Directing verdict 33 Sec. 980. Amendment as to disposition of proceeds of infants cause of action 231 Sec. 1048. Relating to payment of proceeds of sale in partition 164 See. 1551. Amendment increasing fees of printers 129 Decedent Estate Law: Sec. 15. Amendment eliminating word "male" 37 Sec. 17. Amendment relating to gifts of more than one-half of estate for charitable purpose 169 Sec. 22a. Addition relating to validity of wills executed without the state 46 Sec. 25. Amendment correcting obsolete reference 47 Sec. 30. Amendment authorizing taking and filing affidavits of phy- sicians and subscribing witnesses 45 Sec. 44. Amendment relating to recording wills or papers where prop- erty passes by devise or descent 64 Sec. 45. Amendment regarding authentication of papers 65 Sees. 48, 104. Amendments regarding application of definitions .. . 176,227 Sees. 81-85. Amendments affecting rights of parents on descent of property 193 Sec. 92. Amendment making no distinction of sex 194 Sec. 111. Amendment authorizing investments in shares of savings associations 202 Sec. 16fl. Amendment as to suits by or against foreign representa- tives 123 (ix) x Index to Laws Amended. Page Domestic Relations Law: Sees. 6 and 7. Amendments relating to void and voidable marriages . . 24, 25 Sec. 7a. Addition relating to dissolution of marriage 25 Sec. 10. Marriage a civil contract 24 Sec. 80. Amendment making rights of parents equal as guardians in socage 209 Sec. 110, &c. Amendments relating to adoption of adults and minors. 17, 23 Membership Corporation Law: Sec. 65a. Addition as to trust for burial grounds outside of cemeteries and large cities 198 Sec. 85. Amendment relating to perpetual care of cemetery lots. . . . 197 Personal Property Law: Sec. 10. Amendment defining income in relation to stock dividends. . 208 Sec. 17a. Added relating to stock dividends 208 Sec. 21. Amendment relating to investment in shares of savings as- sociations 203 Poor Law: Sec. 84. Amendment increasing amount allowed for burial of soldiers, sailors and marines 140 Sees. 130, 131, 132, 133. Amendment relating to support of infant from property of absconding parent 210 Real Property Law: Sec. 66. Amendment relating to quantity of estates 147 Sec. 106. Amendment relating to leases by trustees 200 Sec. 116. Amendment allowing investment in property sold to corpora- tions 204 Sec. 196. Addition as to dower on dissolution of marriage 190 Sec. 240. Words of inheritance not necessary to create fee 174 Sec. 312. Amendment relating to authentication of acknowledgments and impression of seal 26 Surrogate's Court Act: Sec. 15. Amendment as to compensation of acting surrogate 2 Sec. 18. Amendment as to vouchers 3 Sec. 21. Amendment as to clerks 5 Sec. 26. Amendment as to stenographers 6 Sec. 29. Amendment as to fees of surrogates and clerks 7 Sec. 30. Amendment as to fees of stenographers 10 Sec. 40. Amendment as to jurisdiction in discovery proceedings 10 Sec. 55. Sec. 56. Sec. 63. Sec. 70. Sec. 96. Sec. 109. Sec. 111. Sec. 118. Sec. 130. Index to Laws Amended. xi Page Sec. 53. Amendment relating to contents of citation where number of respondents is large 27 Sec. 54. Amendment authorizing omitting citation to attorney-gen- eral in certain cases 28 Amendment introducing term "respondent" 28 Amendment relating to service by publication 30 Amendment relating to notice of appearance 30 Amendment regarding jury trial by county judge 33 Amendment regarding objections to issue of letters 117 Added regarding release of sureties 126 Added, providing proceeding for reduction of penalty of bond. 127 Amendment relating to priority of right to administration. . 70 Amendment relating to leasing property by temporary ad- ministrators 160 Sec. 138. Amendment relating to probate of wills of citizens of Great Britain 47 Sec. 139. Amendment authorizing guardian to propound will 48 Sec. 141. Amendment authorizing probate of will which cannot be filed in court 49 Sec. 142. Amendment relating to testimony of absent subscribing wit- nesses 50 Sec. 148. Amendment in relation to notice of contest 53 Sec. 150. Amendment relating to retaining wills on file in another jurisdiction 63 Sec. 161. Amendment relating to grant of ancillary letters 121 Sec. 162. Amendment requiring citation to State Tax Commission on application for ancillary letters 122 Sec. 167. Amendment relating to designating clerk by testamentary trustee for service of papers 68 Sec. 168. Amendment relating to appointment of successor trustee. ... 68 See. 180. Amendment reducing penalty of bond 113 Sec. 188. Amendment as to time for qualifying of guardian by will or deed 114 Sec. 190. Amendment relating to guardian's annual account in certain large counties 115 Sec. 205. Amendment making it apply to guardians and to property disposed of and to money withheld 143 Sec. 206. Amendment authorizing decree directing payment for prop- erty disposed of or withheld 144 Amendment regarding publishing notice to creditors where representative dies or is removed.- 150 Amendment omitting definition of funeral expenses 157 Amendment including expense of administration with debts for which sale may be had . . , 158 Added, regarding compensation of attorney 14 Amendment authorizing sale of real estate to pay funeral expenses 161 Sec. 207. Sec. 216. Sec. 217. Sec. 231a. Sec. 234. xii Index to Laws Amended. Page Sec. 236. Amendment making State a party to proceedings to mort- gage, lease or sell real property 161 Sec. 262. Amendment regarding citation on voluntary judicial settle- ment 212 Sec. 271. Amendment increasing amounts of shares of infants pay- able directly 230 Sec. 278. Amendment increasing costs 135 Sec. 279. Amendment making additional allowance "costs" 136 Sec. 284. Amendment regarding fees of appraisers 128 Sec. 285. Amendment increasing rate of commissions 130 Sec. 287. Amendment increasing fees of printers 129 Sec. 311. Amendment as to jurisdiction to take proof of heirship 192 Sec. 314. Amendments of section on definitions 231 Sec. 316. Amendment as to application of certain provisions of law. . . 231 Tax Law: Sec. 220. Amendment relating to transfers by residents 81 Sec. 221. Amendment as to exceptions and limitations 82 Sec. 227. Amendment as to liability of certain corporations 79 Sec. 228. Amendment as to jurisdiction of surrogate 79 Sec. 230. Amendment as to proceedings by appraiser 83 Sec. 235. Amendment as to proceedings by district attorneys 91 Sec. 236. Amendment relating to receipts for taxes 92 Sec. 241. Amendment as to tax on contingent remainders, etc 89 Sees. 248 to 248p. Amendments enacting new regulations as to nonresi- dents and adding new sections 94 Sees. 249 to 249 1. Additions enacting an estate tax on taxes of over one million valuation 101 United States Revised Statute: Sec. 159. Showing requirements for exemplification 66 Laws of New York: Laws 1921, ch. 163, amended 8 SUPPLEMENT TO HEATON'S SURROGATES' COURTS q 1 Page 4. late of , deceased, for the payment of her debts, funeral expenses and charges, that by an order of the said Surrogate's Court dated the day of , 1925, the said was duly authorized to mortgage the real property owned by said deceased at the time of her death for the purposes therein mentioned, the same being purposes set forth in section 234 of the Surrogate's Court Act and the said infants mentioned in said proceedings having been represented by , their special guardian, and all of the proceedings having been in conformity with the laws of the state of New York, Now Therefore, by virtue of the authority in me vested by the said proceed- ings and the orders of the Surrogate's Court of Rensselaer County and in consideration of the sum of $500 to me in hand paid the receipt whereof is hereby acknowledged, the party of the first part for securing the payment of the said sum of $500 with interest thereon at the rate of 6% per annum from the day of , 1925, ten years from the date thereof, the interest thereon to be paid semi-annually, does hereby grant, release and mortgage unto the said party of the second part and to his heirs, {successors) and assigns forever. (Insert description of property.) Together with the appurtenances and all the estate and rights of the said and of the party of the first part, his heirs and assigns forever. To have and to hold the above granted premises unto the said party of the second part, his heirs, administrators, executors or assigns the said sum as though this mortgage were made by said in h. . . . life time. Provided always that if the said party of the first part as such executor or his successor or the devisees or their successors in interest under the Will of the said or their assigns shall pay unto the said party of the second part, his heirs, administrators, executors or assigns the said sum of money afore mentioned and the interest thereon at the time and in the manner mentioned herein, then these presents and the estate hereby granted shall cease, determine and be void. Provided Further that if the said executor or devisees, their heirs, executors or assigns shall fail to pay any tax or assessment levied against said property when the same is due or payable or to keep the buildings on said premises insured against loss by fire for the benefit of the mortgagee, then the said party of the second part, his executors, administrators or assigns shall have the power to sell the said premises herein described according to law, It Is Further Expressly Agreed that the whole of said principal sum shall become due at the option of the party of the second part, his executors, administrators or assigns after default in the payment of any interest due or said taxes, assessments or insurance or any part thereof for 60 days. 254 Forms. In Witness Whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. In Presence of L. S. As executor of the Last Will and Testa- ment of (Add acknowledgment.) FORM No. 332. Issues framed foi trial by jury.. I. Was the alleged last will and testament, bearing date , duly executed by ? n. Did possess testamentary capacity at the time of the execu- tion of the alleged last will and testament on the. . . .day of , 19. ... T TIT. Was the execution of the alleged last will and testament procured by fraud or undue influence practiced upon the said ? FORM No. 333. Designation by trust company of clerk of court to receive service of papers against trustee. SURROGATE'S COURT, Rensselaer County. In the matter of the probate of the last will and testament of , deceased. The Union National Bank of Troy, New York, having been appointed trustee of the trusts created in the last will and testament of , deceased, by an order of the Surrogate's Court of the County of Rensselaer, pursuant to section 167 of the Surrogate's Court Act, as amended, hereby designates .the clerk of said Surrogate's Court, or his successor in office, as a person on whom service of any process issuing from the Surrogate's Court may be made in like manner and with like effect as if it were served personally upon said trustee, whenever such trustee cannot be found and served within the State of New York, after due diligence used. Dated Troy, N. Y., June 4th, 1924. THE UNION NATIONAL BANK OF TROY, NEW YORK, By Its President. Trustee of the trusts created in the last will and testa- ment of , deceased. Forms. 255 state of new york, Rensselaer County, ss.: On this fourth day of June, 1924, before me personally came , to me personally known, who, being by me duly sworn, did depose and say that he resided in the City of Troy, and that he was the president of The Union National Bank of Troy, New York, the corporation described in and which executed the foregoing instrument, that he knew the corporate seal of said corporation, that the seal affixed to the foregoing instrument was such corporate seal; that it was thereto, affixed by order of the board of directors of said corporation, and that by like order he subscribed his name thereto as president. Notary Public, Rens. Co., N. Y. FORM No. 334. Petition for adoption of infant under 12 years of age. SURROGATE'S COURT, County of Monroe. In the matter of the application for adoption of , an infant, under the age of twelve years, by and , his wife. To the Surrogate of the County of Monroe: The petition of and , his wife, of the City of Ro- chester, County of Monroe and State of New York, respectfully shows: First. That your petitioners are husband and wife and live together as such at number 307 McNaughton Street, in the City of Rochester, County of Monroe and State of New York. Second. That , the person whom your petitioners desire to adopt, as hereinafter stated, is of the age of about three months as your petitioners are informed and verily believe; that said resides with her mother at number 79y 2 North Street, in the City of Rochester, New York. Third. That shortly before or after said infant was born , father of said infant, abandoned said infant and its mother and has not since re- turned, as your petitioners are informed and verily believe. Fourth. That said infant was born at the City of Rochester, New York, on the 30th day of April, 1924, as your petitioners are informed and verily believe. 256 Forms. Fifth. That the religious faith of the parents as your petitioners are informed and verily believe and of the foster parents of said child is the Roman Catholic faith. Sixth. That said infant has at no time resided with said foster parents. That the mother of said infant has three other children besides the said , namely: , ten years of age; , eight years of age; and , sis years of age; that said mother depends upon her own earnings to support said child, and that unless said child is placed for adoption with some person, it will be necessary for said child to be placed in some free institution, as your petitioners are informed and believe. Seventh. That your petitioners desire to adopt said and for said purpose have made and executed an instrument pursuant to the Domes- tic Relations Law of the State of New York, which is submitted herewith, and which is consented to by , mother of said infant, as required by the Domestic Relations Law as appears by said instrument. Eighth. That your petitioners have sufficient means to properly care for, support and educate said infant. Ninth. That no application for an order as prayed for herein has been made to any other Court. Tenth. That your petitioners therefore pray that an order may be made allowing said adoption pursuant to the statutes in such cases made and provided, and that said shall henceforth be regarded and treated as your petitioners' own lawful child and be accorded all the rights and privileges afforded by law and that she be given the name of and may after said adoption be known by that name. Dated Rochester, N. Y., July 22nd, 1924. STATE OF NEW YORK. County of Monroe, City of Rochester, ss.: and , his wife, being duly sworn, depose and say that they are the petitioners named in the foregoing petition; that they have read the foregoing petition and know the contents thereof; that the same is true of their own knowledge, except as to the matters stated therein to be alleged upon information and belief, and that as to those matters they believe it to be true. Sworn to before me this, day of July, 1924. Philip H. Donnelly, Attorney for petitioners, 500 Aetna Building, Rochester, N. Y. Surrogate. Forms. 257 FORM No. 334a. Agreement of adoption. SURROGATE'S COURT, County of Monroe. In the matter of the application for adoption of , an infant, under the age of twelve years, by and , his wife. AGREEMENT OF ADOPTION. Whereas, and , his wife, both being of full age and residing together as husband and wife at number 307 McNaughton Street, in the City of Rochester, County of Monroe and State of New York, desire to adopt as their own child , a minor of the age of about three months, now residing with her mother at 79% North Street, Rochester, N. Y. Now therefore, the said and , his wife, promise and agree to adopt the said as their own lawful child, and by this agreement do adopt the said , and promise and agree to treat the said as their own lawful child in every respect whatsoever. And the said , mother of said infant, hereby consents to said adoption, and hereby renounces all right and claim upon said , or upon her earnings or any other property or right of said which she may now own, possess or be entitled to receive at the present time, or which she may own, possess or be entitled to receive at any time in the future, including both equitable and legal rights and property and choses in action. And the parties to this agreement severally pray that an order may be made allowing and confirming said adoption. And said states that the said was born in the City of Rochester, New York, on the 30th day of April, 1924, and that said child and her parents are of the Roman Catholic faith. It is further agreed that said shall after said adoption be known as In Witness Whereof, the said and , his wife, and said have hereunto subscribed their names and set their seals the 22nd day of July, 1924. (Acknowledgment. ) 258 Forms. FORM No. 334b. Order of reference. At a Surrogate's Court held in and for the County of Monroe, at the Court House, in the City of Rochester, N. Y., on the 22nd day of July, 1924. SURROGATE'S COURT, County of Monroe. In the matter of the application for adoption of , an infant, under the age of twelve years, by and , his wife. A petition having been duly presented by and , his wife, verified on the 22nd day of July, 1924, praying for an order allow- ing and confirming the adoption by them of one , an infant female child, born at the City of Rochester, N. Y., on the 30th day of April, 1924, and there having been duly presented to me at the same time an instrument in writing wherein and whereby the said and , his wife, agree to adopt said and treat her in all respects as their own child, and wherein and whereby , the mother of said infant, consents to said adoption and renounces all right to said child, and the said and , his wife, and having appeared be- fore me and been examined by me to determine whether the moral and temporal interests of said will be promoted by said adoption, and the Domestic Relations Law as amended by Chapter 323 of the Laws of 1924 requiring an investigation as to the truth of the allegations set forth in the papers herein, it is hereby Ordered, that the matter herein be referred to William C. Combs, Esq., attorney and counselor at law of Rochester, N". Y., to investigate and report upon the allegations set forth in the papers in this proceeding and such other facts relating to said child and to said foster parents as will give the Court full knowledge as to the desirability of confirming said adoption, and it is hereby further Ordered, that the said William C. Combs, Esq., submit to this Court a report containing the results of his investigation. Surrogate. Forms. 259 FORM No. 334c. Report of referee. SURROGATE'S COURT, Monroe County. In the matter of the application for adoption of an infant under the age of twelve years by and , his wife. To the Surrogate of the County of Monroe: Pursuant to an order of this Court granted on the 22nd day of July, 1924, in the above-entitled matter, directing me to investigate and report upon the allegations set forth in the papers in this proceeding and such other facts relating to the child and foster parents as will give this Court full knowl- edge as to the desirability of confirming the adoption of said child, I do respectfully advise that I have made an investigation in accordance with said order, and that, as a result of said investigation, I do respectfully submit the following facts for this Court's consideration, which facts are to my best knowledge, information and belief, true: I find the facts, circumstances and conditions, as set forth in the petition and other papers in this proceeding, to be truly and fairly stated; I further find that the petitioners, and , were married nine (9) years ago and have been since that time living with the mother of said , that they have resided for a period of nearly nine years at no. 307 McNaugh- ton street in the City of Rochester, New York; that they now have one child, Marian Rose, an issue of said marriage, of the age of six years, who is living with them. The said has been steadily employed at Kodak Park for a period of nine years, and still is, and earns sufficient wages to properly care for his present family and the infant sought to be adopted by this proceeding; that he has no outstanding debts or obligations. That the said owns a small amount of real estate on Elizabeth street in the City of Rochester, New York. That the said petitioners were first informed of the infant in this proceeding by an "ad" in » Rochester newspaper; that thereafter, Rev , a Roman Catholic Priest, informed them that the facts and circumstances as stated by the mother of said infant, .., and as restated by them in the papers in this proceeding, were true. I further find that , the mother of said infant, is not employed at the present time, although able to do certain kinds of work, which she is now seeking; that her stepbrother contributes to her support and maintenance when necessary and that she has no other income except as above stated, although she expects to share, with her own brother, in her mother's estate when the same is settled; that her mother died when she, , was three years of age but that she has received no moneys or property what- ever from said estate although her mother owned, or had an interest in, 260 Fobms. certain property in the city of Utica and, upon information and belief, in the State of Massachusetts. By reason of all the above I am of the opinion that the adoption petitioned for would be for the best interests of the infant and further that, although the period of residence of the said infant with the foster parents is less than six months, to date, the facts relating to the circumstances of the mother of said infant necessitate the adoption at the present time. Dated. Rochester, New York, July 23rd, 1924. WM. C. COMBS. FORM No. 334d. Order confirming adoption. At a Surrogate's Court, held in and for the County of Monroe, at the Court House, in the City of Rochester, N. Y., on the 30th day of July, 1924. Present: Hon. Selden S. Brown, Surrogate. SURROGATE'S COURT, Monroe County. In the matter of the application for adoption of an infant, under the age of twelve years, by and , his wife. A petition having been duly presented by and , his wife, verified on the 22nd day of July, 1924, praying for an order allowing and confirming the adoption by them of one , an infant female child, born at the City of Rochester, N. Y., on the 30th day of April, 1924, and there having been duly presented to me at the same time an instrument in writing wherein and whereby the said and , his wife, agree to adopt said and treat her in all respects as their own child, and wherein and whereby , the mother of said infant, consents to said adoption and renounces all right to said child, and the said and , his wife, and having appeared be- fore me and been examined by me to determine whether the moral and temporal interests of said will be promoted by said adoption, and an investigation as required by the Domestic Relations Law, as amended by chapted 323 of the Laws of 1924, having been ordered, pursuant to said, statute, and said investigation having been made by William C. Combs, Esq., attorney and counselor at law, of Rochester, N. Y., to determine the truth of the allegations set forth in the papers presented in this proceeding and as Forms. 261 to such other facts relating to said child and as to said foster parents and the desirability of confirming said adoption, and a written report containing the results of said investigation having, pursuant to statute, been submitted to me, wherein and whereby it appears that the mother of said infant is living separate and apart from her husband and is the only support of four small children and that she has been abandoned by her husband, and wherein and whereby it appears that it is necessary that said child be adopted by some suitable person, or by some institution, and that said and , his wife, are suitable persons; and it appearing that the said has not resided with said foster parents for a period of six months, as provided by statute, but that it will be for the best interests of said child that it be immediately adopted by said foster parents, and that it is necessary that said adoption take place at once without waiting for the six months period, pro- vided by statute, to run; and being satisfied that the moral and temporal interests of said will be promoted thereby, it is hereby Ordered, that the said adoption be allowed and confirmed, and henceforth the said shall be regarded and treated in all respects as the child of said and , his wife, and the said shall hereafter be known under the name of Surrogate. FORM No. 335. SURROGATE'S COURT— Rensselaer County. In the matter of the petition of and , as executrices of the last will and testament of , deceased, for a determination as to the construction or effect of the disposition of property contained in the last will and testament of , late of the town of Hoosick, Rensselaer County, New York, deceased. To the Surrogate's Court of the County of Rensselaer: The petition of and , executricies of the Last Will and Testament of the above named deceased, respectfully shows to the Court: — 262 Fokms. First. That they are the executrices of the Last Will and Testament of said deceased, duly appointed by a Decree of the Surrogate's Court of the County of Rensselaer, dated June 12, 1923. Second. That the said ' died in said County of Rensselaer leaving a Last Will and Testament which was duly probated in the Surrogate's Court of said County on June 12th, 1923, and duly recorded therein; that Letters Testamentary under said Will were granted to your petitioners, who qualified and are now acting as such executors. Third. That the said died seized and possessed of real property of the value of approximately $6,000, and personal property of the inventory value of $5,826.49. Fourth. The only persons interested in this proceeding, and under the terms and provisions of the Last Will and Testament of said are as follows : Name Age Address That the above named is an infant of years of age having no general guardian and who resides with his mother, That there are no other persons than those mentioned interested in this proceeding. Fifth. For the purpose of determining whether your petitioners, as execu- trices of the Will of said deceased, have the power under said Will to sell and convey the real property which the deceased owned at the time of his death, under an implied power of sale, in order to work an equitable conver- sion of the realty into personalty and so that the provisions of said Will may be carried out according to the testator's intention, your petitioners desire a judicial determination as to the construction or effect of the following provisions of said Will. (Insert extract from Will.) Wherefore, your petitioners pray that a citation to show cause issue; out of this Court to all persons interested in the said Will, citing and requiring them to show cause in this Court on a day to be fixed by the Court, why a decree should not be made construing said Will and judicially determining that it was the intention of the testator by his said Will to cause an equitable con- version of his real property into personalty and for that purpose there is an implied power of sale given the executors thereof, and that said executors have the right to sell said real property and to give a good and sufficient title thereto; or such other determination as to the Court may seem just and proper in the premises. Forms. 2.63 That no other application has been made for the relief herein asked for. Dated Troy, N. Y., February 16th, 1924. Petitioner. STATE OF NEW YORK, Washington County, ss.: 3 being duly sworn, says that she is one of the petitioners named in the foregoing petition by her subscribed; that she has read said petition and knows the contents thereof and that the same is true of her own knowledge, except as to the matters therein stated to be alleged on information and belief and that as to those matters she believes it to be true. Sworn to before me this 16th day of February, 1924. Notary Public. FORM No. 335a. THE PEOPLE OF THE STATE OF NEW YORK. To: Upon the petition of , executrices of the Last Will and Testa- ment of , deceased, who resides at , You are hereby cited to show cause before the Surrogate's Court of the County of Rensselaer, at the Court House in the City of Troy, New York, on the 21st day of March, 1924, at ten o'clock in the forenoon of that day, why a decree should not be granted construing the Last Will and Testament of said deceased and judicially determining that it was the intention of the testator by said will to cause an equitable conversi6n of his real property into person- alty and that for that purpose there is an implied power of sale given to the executrices thereof, and that said executrices have a right to sell said real property and to give a good and sufficient title thereto, or such a determination as to the Court may seem just and proper in the premises. In Testimony Whereof, we have caused the seal of our said Surrogate's Court to be hereunto affixed. L. S. Witness : Hon. Chester G. Wager, Surrogate of said County, at the City of Troy, this 3rd day of March, 1924. LUCIEN E. CLICKNER, Clerk of Surrogate's Court. 264 Forms. FORM No. 335b. At a Surrogate's Court held in and for the County of Rensselaer at the Court House in the City of Troy, New York, on the 14th day of April, 1924. Present: Hon , Surrogate. SURROGATE'S COURT— Rensselaer County. In the matter of the petition of and , as executrices of the Last Will and Testament of , deceased, for a determination as to the construction and effect of the disposition of property contained in the Last Will and Testament of , late of the town of Hoosick, Rens- selaer County, New York, deceased. The petition of and , executrices of the Last Will and Testament of the above named deceased, which Will was duly probated and recorded in this Court, verified the 16th day of February, 1924, praying for a judicial determination by this Court as to the construction and effect of the Third, Fourth and Fifth clauses or paragraphs of said Will, having been heretofore and on the 3rd day of March, 1924, filed in this Court, and a citation thereupon duly issued to all persons interested under said Will requiring them to show cause in this Court on the 21st day of March, 1924, why the determination and construction prayed for in said petition should not be made and said citation having been returned with proof of the due service thereof upon all persons named therein, and said petitioners having appeared in this proceeding by Heaton & Mambert, Esqs., their attorneys; and it appearing that , a person interested under said Will is an infant over the age of fourteen years, , upon filing his written consent thereto was duly appointed special guardian of said infant to attend to his interest in this matter and he appeared personally for that purpose and opposed the petitioners' application; and said proceeding having been adjourned from time to time to this day — Now, After Hearing Heaton & Manbert, Esqs., in favor of the determination and construction prayed for in said petition, and , Esq., for the infant in opposition thereto; and after hearing the proofs and allegations of the parties and due deliberation had and on motion of Heaton & Mambert, Esqs., — Forms. 265 It is Ordered, Adjudged, Decreed and Determined, "that the true construction and effect of the items or paragraphs of the Last Will and Testament of , deceased, numbered 'Thirdly,' 'Fourthly' and 'Fifthly,' is that it was the intention of said testator by said provisions to cause an equitable conversion of his real property into personalty and for that purpose, and for the purpose of carrying out the terms and provisions of said Will, there is an implied power of sale given the executrices thereof and that said execu- trices have the power and lawful right to sell and convey said real property and to give good and sufficient conveyances thereof." It is Further Ordered, Adjudged and Decreed, that said executors pay to , the special guardian for said infant, the sum of $75.00 for his costs in this proceeding, which is hereby allowed. That they pay to Heaton and Mambert, Esqs., the sum of $125.00 for their costs and disbursements in this proceeding, which is hereby allowed. Witness : Hon , and the seal of the Surrogate's Court the day and year first above written. Surrogate. INDEX. A. Abandoned child: Page defined 18 Abatement: legacy for support 167 Account: administrator of property of absconding persons 211 citation for settlement 212 filing on application for release of surety 126 inserting expenses of administration 217 intermediate for information and for settlement 212 legatee, over paid 217 liability of sureties for fraud of co-representative 217 more complete ordered 12 trial of with jury 32, 213 Accumulation: merging income with principal 196 stock dividends 196 Ademption: legacies • ■ 166 Administration : alien nonresident 73 ancillary, transmitting assets 122 citing nonresidents 74 c. t. a., appointed when 75, 77 c. t. a.., assignee of whole estate 78 c. t. a., no distinction on account of sex 78 c. t. a., rights, powers and duties 159 effect of divorce 72 excluding persons having prior right 77 granted to whom 70 guardian appointed 72 no distinction as to sex 71 public administrator 73 temporary, whether adm. c. t. a. should be appointed 75 (267) 268 Index. Adoption: Page abandoned child 18 abrogation 22, 23 charitable institutions 21 consent 18 evidence of abandonment 18 investigation 20 natural children of either spouse 17 order and effect 20 property rights 229 same religious faith 21 several sections amended 16 voluntary 19 After-born child: not cited 4 Appeal: effect on parties not appealing 138 motion to direct not necessary 139 order in transfer tax proceeding 138 Appearance: notice, form and effect 30 Asset: goodwill may be 214 Attorney: appeal from order fixing fees 16 fees may be apportioned 15 fixing compensation 14 Attorney-general : not cited 28 Authentication: certificate, contents 26 exemplification of will 66 B. Banks and trust companies: acting in fiduciary capacity 117 foreign may receive appointment 118 Bond: filing by surrogate 3 guardian, penalty reduced 114 reduction of penalty by proceeding 127 Index. 269 Burial: Page control of burial and monument 139 perpetual care of cemetery lots 197 soldiers, sailors and marines 140 trusts to cemetery for care of lot outside certain cities 198 C. Citation: account where next of kin paid 213 after-born child 4 ancillary letters to state tax commission 122 attorney-general need not be cited 28 contents where number is large 27 for administration 74 known creditors more than fifty 29 legal papers publishing in first department 30 service on infant 29 service within the state 28 service without state or by publication 30 settlement of account 212 Clerks: fees and expenses 7 New York county, fees and expenses 8 surrogate's court 5 Codicil: republished will 45 revoking 42 Commissions: allowed under law in force 134 assignability 134 computing value of estate on gross value of $100,000 135 deceased representative 134 proceeds of business 133 rate of increased 130 unsold real estate 133 Compromise: issues in will contest 152 Consolidation: proceedings for probate— different wills 32 Construction of will: application of trustee in bankruptcy 212 before end of life tenancy 211 270 Index. Construction of will — Continued. Page class ascertained as of what time 172 conversion and intention 149 investments directed by will 201 judicial settlement 211 "or his heirs" 176 selling investments made by testator 206 Contempt: serving certified copy of decree 35 Costs: additional allowance 136 adult parties 136 allowance should be based on affidavits 136 appeal, construction by court 137 depending on final decree 137 fixed in making decree 135 probate, proponent a legatee 136 Custody: of property 12 D. Death: presumption 13 presumption, date of 13 presumption, in partition 13 proof of, letters issued not prima facie 13 Debt or claim: action on 153 additional services under general hiring 221 adminstration expenses, proceeding for payment 158 alimony 156 allowance and contest on judicial settlement 151 bad faith in allowing or paying 151 contingent claim 150 deficiency judgment in foreclosure 155 duty to discover 149 establishing 151 funeral expenses 157 jury trial when rejected 153 liability of heir to pay 187 notes or cheeks as debts 225 on judgment, statute of limitations 155 paid, or allowed and not paid 223 proof of claim for services 224 Index. 27,1 Debt or claim — Continued. Page publishing notice to creditors , 150 representative against deceased 219 submission to representative 153 under bond and mortgage 151 withdrawing on judicial settlement 154 Decree: opening 4 probate, effect of out of state 14 probate, force and effect 3.5 probate, opening 4 probate, surrogate must be satisfied ■ 57 serving certified copy 35 Definitions: amendments 231 Deposition: witness without the state 51 Depository: of securities under order of court 125 Descent: child born alive 194 comes on part of father or mother, definitions 194, 195 general rules 193, 194 inheritance by parents 193 no distinction of sex 193 Devise and bequests: abatement 166, 167 absolute, cut down 173 ademption 166 after gift to individual or corporation 168 carries other property, when 165 charitable, gift to one to be paid to another when formed 198 charitable purposes 168 computing life estate as to one-half estate 170 corporation merged or dissolved 177 effect of words like "heirs," "to have and to hold" 174 eo nominee 171 foreign money 180 further disposition of void or lapsed legacy 176 implied trust 195 income from bank deposits . , 183 in lieu of dower 190 interest on legacies , 181 272 Index. Devise and bequests — Continued. Page- interest on legacy payable in future 182 jointly or in common 185 more than one-half estate 169 next of kin 171 not in employ, lapse 177 offsetting debt 181 payment 181 right to occupy house or room 183 secret trusts 167 substitutionary 176 taxes on annuities 18ft to executors for care of cemetery lots 196 vested contingent remainder 185 vesting 178 vesting, time for payment postponed 178 widow rejecting legacy, reimbursement of devisee 190 ; Discovery proceeding: burden of proof 146 when gift claimed 146 compelling payment for property withheld 143 decree where payment is directed 144 determined when 145 effect of answer 145 guardian may present petition 143 jurisdiction 142 payment for or delivery of property withheld 10, 12 trial or examination 144 trial with jury 143 : Distribution: between 1898 and 1905 227 either spouse divorced 228 proceeding to compel payment 158 to child after dissolution of marriage 228 Divorce: residence of infant affected by Ill Dower: estates by entirety 189 in fee absolute 189 dissolution of marriage 189, 190 proceeds sale 164 E. Equitable powers: 12 Index. 273 Estates tax: Page provisions establishing on estates exceeding one million dollars. . 101, 109 Evidence: ancient wills 64 competency of witnesses 222 competency of witness, claim paid or allowed 22$ court records as to sanity 56 declarations 56 declarations in other wills 158 extrinsic in construction 61 interested party releasing interest 55 prima facie, allegations in papers 13 undue influence : 56 Examination: before trial 5 Executor: all should join in creating obligation 141 appointing substitute 67 F. Fees: appraiser, referee, juror and witness 128 collecting rents 131, 132 effect of decree under former rates 132 executor, administrator, guardian or trustee 130 printers 129 Findings: not necessary 138 Foreign executor or administrator: defined 124 may be brought into action 125 may sue or be sued 123, 124 G. Gift: per capita 187 when need not be testamentary 36 Good will: asset of a profitable business 214 Guardian: appointed as administrator 72 274 Index. h. Husband and wife: Page property in joint names 215 I. Indians: administrator of estates of 69 Onondagas "dead feast" 227 proof of authority of representative to sue or be sued 123 Infant: ' allowance for support 184 allowing parent for past support 218 associate guardian estate over $5,000 113 conditional decree of guardianship 113 effect of divorce on domicile 112 guardian's annual account in certain counties 115 guardian by will or deed 114 guardian in socage 209 guardian of same religious faith 113 may not lawfully do .'.... 209 payment of share including proceeds of action 230 proceeds of action for personal injuries 231 property not to be mingled 210 removal of guardian 120 residence or domicile 110 sojourning in the county 112 support of, from property of absconding parent 209 Insurance: group 148 (fire) collected by representative as trustee 141 (life) assets when 147 change of beneficiary 145 industrial » ^ . . 144 Issues: framing for trial ; 32 J. Joint property: assets when 147 deposit in trust for another , 219 husband and wife 215 savings bank deposits 220 use of "or" "and" 216 Index. 275 Judge: Page practicing law , 1 Judicial settlement: equitable powers 12 Jurisdiction: compensation of attorney 14 concurrent of Supreme and Surrogate's courts 109 construction of will 60 contracts and mutual wills 158 discovery proceedings 142 equitable powers 12 fact of partnership 148 general 10 order more complete account 12 representative removed or resigned 128 residence of infant in county Ill state, over property there 14 Jury: fees of jurors and officers 33 New York county, special 34 obtained how 33 panel in supreme or county court 33 Jury trial: accounting proceeding 31, 213 closing argument 55 constitutional right 213 demand for 52 determining right to 31 directing verdict 33, 55 entitled to 32 framing issues 32 Kings county 1 none on application for share of unknown person 230 not entitled to 31 probate at heirship 193 submitting issues 55 K. Kings county: jury trial T 276 Index. l. Letters: Page ancillary, granted to foreign representative 121 filing designation of clerk on whom to serve process 118 improvidence defined 116 not prima facie proof of death 116 objections to grant of 117 proof of authority 13 Life tenant and remainderman: allotment of dividends 208 apportionment of interest and dividends 191 apportionment of proceeds on sale of unproductive property 192 apportionment of royalties for publication 191 death of one of three 198 lessee from 175 ownership of stock dividends designated 208 title not dependent on probate 184 M. Marriage: civil contract 24 common law 23 dissolution 25 dower when dissolved 189, 190 presumption of legitimacy 26 presumption of validity 118 void and voidable 24, 25 Mortgage, lease or sale of real property for payment of debts and charges: effect of partition pending 163 for distribution 165 interest of people of the state 162 limitation of time 163 payment into court 164 petition 163 real property, when and how 161, 162 Motion: defined 26 succeeding surrogate may decide 5 N. Negligence: payment for personal injuries to infant 231 prosecuting action for 218 settlement of action 218 Index, 277 New trial: Page granting 4 New York county: fees and expenses of clerk 8 New York city taxes payable from personal estate 154 special jury 34 Notice: appearance, form and effect 30 contest of probate 53, 54 to creditors, publishing 150 P. Papers and books: filing by surrogate 3 Partition: effect of, on sale to pay debts 163 payment to parties 164 presumption of death and birth of issue 13 Partnership: dividends to creditors 148 good will as an asset 214 jurisdiction to determine fact of 148 Party: person served with notice of contested probate 5 Petition: prima facie evidence 13 probate '. 48 Pleading: motion is not '. 26 Power: appointment by will 174 distributive, under 173 in trust 195 to grant new trial 4 to open decree 4 Power of sale: right of administrator c. t. a. to execute 159 278 ' Index. Presumption: Page conflicting 26 Probate: abandoning contest and enforcing compromise agreement 163 compromise of issues by proceeding 152 consolidation of proceedings as to different wills 32 costs fixed by decree 135 decree, force and effect , 35 decree not effective as to out of state property 14 demand for trial with jury 52 dispensing with testimony of absent or deceased witness 50 effect of alterations 59 effect of, on will which violates contract 59 examination before trial 5 illiterate testator, proof of knowledge 57 lo»t or destroyed will 52 name of testator written by him in attestation clause 57 notice of contest to legatees and devisees 53 objections in case of divorce or separation 53 party, person served with notice of contest 5 proof, knowledge of contents 57 proponent to produce witnesses 54 release of interest for purpose of testifying 55 right to statutory 58 striking out objections or answer 54 submitting issues 55 surrogate must be satisfied 57 testimony of witness dead or absent 50, 51 title of life tenant not dependent on 184 unrevoked will 60 who ,may petition 48 who may file objections 53 ; will, citizen of Great Britian 47 will on file out of state . . ." 49 will written in shorthand 58 witness and proof 49 witness failing to remember 58 Probate of heirship: jury trial 193 proof of , . 192 Provisions: applicable 231 Public administrator: entitled over divorced husband 73, 75 Index. 279 R. Removal: Page executor or trustee » 119 guardian of nonresident infant 120 not depositing funds in separate account 120, 121 trustee cannot be suspended 119 Revocation: by later will 43 codicil to will 42 duplicate will 44 later invalid will 43 marriage 44 mutual or reciprocal will 41 presumption and evidence 52 writing on original will 43 S. Service: certified copy decree 36 citation on infant 29 citation within the state 28 creditors more than fifty 29 without the state or by publication 30 Soldiers, sailors and marines: burial fund increased 140 Special county judge: compensation when acting as surrogate 2 Stenographers: appointment 6 fees 10 Stock: location of 14 Sureties: liability for fraudulent acts 217 reduction of penalty of bond : 127 release of, by proceeding 126 Surrogate: acting, compensation 2 clerks 5 fees and expenses 7 280 Index. Surrogate — Continued. Page filing papers, books and bonds 3 motion made before former surrogate 5 practicing law 1 T. Taxes: payable from personal estate 154 Temporary administrator: power to lease real property .' 160 Tenancy by curtesy: defined 188 seized in possession 188 Tenancy by entirety: divorce severs tenancy 187 dower in 189 interest may be mortgaged or sold 186 land sold and mortgage taken back 161 tenants in common of rents 186 Testamentary: paper, character of 36 Testimony: record of dispensing with on probate 51 subscribing witness and physician, preserving 46 Transfer tax: amendments as to taxing residents 81 annuities 88 appeal from pro forma order 138 bond may be given where highest rate has been assessed 83 contemplation of death 87 contingent remainders 89 district attorney may collect tax 91 dower in estates by entirety 87 estates by entirety 221 estate of nonresident after July 1, 1925 94 estates of nonresidents prior to July 1, 1925 93 exemptions for education and charity 82 exemptions and rates under previous statutes 88 joint tenants 82, 86 jurisdiction to make order 79 liability of certain corporations 79 Index. 281 Transfer tax— Continued. Page nonresidents, in effect July 1, 1925 94-101 order not controlling on other questions than tax 78 proceedings by appraiser 83 receipts for taxes 92 tenancy by entirety 82, 86 Trial: claim of representative against deceased ; 219 counterclaim, debt due from representative 128 when executor or administrator party 128 Trust and trustee: appointed when 77 arriving at certain age 199 bond under foreign will 67 care cemetery lots 196 care cemetery lots outside of certain cities 198 certificate designating clerk to receive service 68 concurrence by all 141 investment of funds 202, 205 investment in certain stocks 204 lease of property 200, 201 order for sale of 200 order to pay income not assignment 199 personal discretion 69 power of alienation 198 power of sale after death of beneficiary 200 reaching income for benefit of spouse. 207 required to file designation of clerk to receive process 116 selling investments made by testator 206, 207 setting apart funds 207 successor appointed how 68 terminates on death of 69 V. Verdict: directing 33, 55 Vouchers: returned or destroyed * 3 W. Will: after-born child provided for 225 age eighteen in both sexes 37 conditional and contingent 36 construction, ambiguous will 62 effect of word "surviving" 62 282 Index. Will — Continued. Page extrinsic evidence 61 intention of testator 61 special proceeding 60 contract violated by 59 deposit for safe keeping 45 duplicate 44 effect of alteration 59 executed without the state 46 exemplification of 66 holographic without witnesses, proof 46 lost or destroyed, probate 52 mutual and reciprocal 41 non-English speaking witness 40 nuncupative 41 obtaining from safe deposit box 45 order of signing by testator and witnesses 40 preserving testimony of subscribing witness and physician 46 publication by testator 39 recording and retaining, foreign wills excepted 63 recording foreign, authentication of papers 65 proceeding for 64 to perfect title 64 republishing by codicil 44 retaining on file 63 revoking 41, 44 signing at the end 38 signing in or after attestation clause 39 subscribing or attesting witnesses 39 subscription by mark 37 who may make 37 words of inheritance not necessary 63 written in shorthand 58 Witnesses: attesting to will 39, 40 deposition without the state 51 examination on probate 49 probate, order for examination before trial 54 record dispensing with testimony of deceased witness 50 Words and phrases construed: authorize and empower 232 heirs 232 may and must 232 or and and 232 relatives 232 widow 232