Tmii-niir ' ' •''TlffiTlifflWir 1 ^H ^P^ Ilk- & "^R ^^^ ^ i| ^mm 1 jrr ff ' 1.1 i 1 i ((nrnf U iCaui §>tl|n0l SJibrarg KFN5205T97" """"""' "-'"'^^ %IHllllSll,M?.t,ffiM'«s. -lescent 3 1924 022 810 570 a Cornell University f Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022810570 NEW YORK ESTATES AND SURROGATES Descent and Distribution. Decedents' and Infants' Estates. Surrogates' Practice. Wills — Forms — Rules By Frank Hubbard Twyeffort Of The New YoikBar "Marley was dead, to begin with" — Did^ens' "A Christmas Carol" 1916 THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY ROCHESTER, NEW YORK Copyright 1916 BY PRANK H. TWYEFFORT TO R. H. z. PREFACE The purpose of this treatise is to fill a need which the writer has felt since he began as a novice in the office of the late Edward M. Shepard to specialize in that branch of jurisprudence which has to do with decedents' and infants' persons and property. This need is of a book which, while limited to the statutes and decisions of this State, shall not be restricted to that part of the law affecting minors and decedents which comes td mind when the term "Surro- gates' Practice" is used; but rather shall comprehensively treat of this branch of the law so as to include the practice of it in courts other than surrogates,' and, particularly, its substantive and gen- eral aspects. Furthermore, quite aside from the desirability of a volume treating side by side the substantive and adjective law of this subject, the radical revision of that portion of the Code of Oivil Procedure conveniently knovpn as the "Surrogates' Code," made essential a new text ; and now that this statute has been criti- cally inspected and dissected by the courts for over two years such a text is warranted. The author has sought to make his book practical and helpful throughout. To this end he has begun at the logical point of "Death" and proceeded till the decedent's estate is distributed and his children are of age; he has given forms and court rules; and has tried to make the work's contents readily accessible by means not only of separate indexes to text and forms, but of distinct cyclo- psedic analyses at the beginning of the text and forms, respectively, and of tables to statutes and sections of the Code of Oivil Proce- dure. It is for the profession to say whether or not the book meets practical demands. If it does, it is the writer's intent to keep it up-to-date, and he will therefore be glad to receive any criticism or suggestion for its improvement. Finally, the author gives his thanks to those who have helped him in the mechanical preparation of his book; to his friend John N. Blair for kindly and helpful counsel ; to the Attorney for the State Comptroller for schedules and forms of the Transfer Tax ; and to the Clerks of the various Surrogates' Courts for rules and forms. Feanic H. Twyeffoet. 128 Broadway, New York City, September, 1916. TABLE OF CASES References are to pages. Abbey ads. Matson, 141 N. Y. 179, 36 N. E. 11 Abbott, Matter of, 39 Misc. 760, 80 Supp. 1117 419, Abbott V. Curran, 98 N. Y. 665 197, Abbott ads. Tavshanjian, 200 N. Y. 374, 93 N.. E. 978 .. ..466, Abel, Matter of, 136 A. D. 788, or 121 Supp. 452 Ablowieh, Matter of, 118 A. D. 626, 103 Supp. 699 Aborn v. Janis, 62 Misc. 95, or 113 Supp. 309 Ackerman, Matter of, 116 N. Y. 654, 22 N. E. 552 Ackerman v. Emott, 4 Barb. 626 Ackermann ads. Mott, 92 N. Y. 539 Adams, Matter of, 51 A. D. 619, 64 Supp. 591, affd 166 N. Y. 623, 59 N: E. 1118 Adams, Matter of, 30 Misc. 184, 61 Supp. 751. Adams v. Anderson, 23 Misc. 705, or 53 Supj). 141 54, Adams ads. f Robinson, 30 Misc. 537 or 63 Supp. 816 ..,.:... Adams ads. Robinson, 81 A. D. 20, or 80 Supp. 1098, aff'd 179 N. Y. 558, 71 N. E. 1139 Adams ads. Royce, 123 N: Y. 402, 25 N. E. 386 634, Adams ads. Seofield, 12 Hun, 366 592, Adams v. Swift, 169 A. D. 802, * 155 SUpp. 873 478, Adair v. Brimmer, 95 N. Y. 35 ' Adair v. Brimmer, 74 N. Y. 539 Adair v. Brimmer, 95 N. Y. 35 Adee v. Campbell, 79 N. Y. 52 80, Adier, Matter of, 60 Hun, 481, or 15 Supp. 227 Adriance, Est of, JST. Y. L. J. Dec. 24, 1915 Affleck, Matter of, 83 Misc. 659, or 146 Supp. 835 '.. .. 666, Aiken ads. Pugsley, 11 N. Y. 494 '. . 982 689 570 467 602 257 710 701 535 93 968 811 60 604 672 675 601 481 376 618 919 81 951 10 667 109 44 34 900 609 625 Aikin v. Kellogg, 119 N, Y. 441, 23 N. B. 1046 38, 41, 42, Aikman v. Harsell, 98 N. Y. 186 Albee ads. Scheibeler, 114 A. D. 146 or 96 Supp. 706 673 Alberst ads. Bottome, 47 Misc. 665 or 94 Supp. 348 899 Albert v. Miller, 85 Misc. 16, or 147 Supp. 50 Albertson ads. Lane, 78 A. D. 607, 79 Supp. 947 Alexander, Matter of, 83 Hun, 147, 31 Supp. 411 Alexander, Matter of, 62 Misc. 443, '116 Supp. 800,' or 120 Supp. 1125 927 Alexander ads. Goodman, 165 N. Y. 289, 55 L.R.A. 781, 59 N. E. 145 707, 727 Alexander v. Greacen, 36 Misc. 526, 73 Supp. 1001 551 Alexander ads. Hynes, 2 A. D. 109, 37 Supp. 527 819 Alfson V. Bush Co. 182 N. Y. 393, 108 Am. St. Rep. 815, 75 N. E. 230. 145 Alger, Matter of, 38 Misc. 143, or 77 Supp. 166 463 Allen, Matter of, 36 Misc. 398, or 73 Supp. 750 Allen, Matter of, 96 N. Y. 327. . . Allen, Matter of, 81 Hun, 91, or 30 Supp. 683; aff'd 151 N. Y. 243, 45 N. E. 554 949 Allen ads. Hyatt, 56 N. Y. 553 . . 667 Allen V. Kelly, 55 A. D. 454, 67 Supp. 97, 171 N. Y. 1, 63 N. B. 528 757, 809, 812, Allison ads. Rundle, 34 N. Y. 180 545, 622 Althaus, Matter of, 94 Misc. 43 595, 613 Altman, Est. of, 89 Misc. 697, 151 Supp. 1092, affd 155 Supp. 507 419 Altman vl Hofeller, 152 N. Y. 498, 46 N. E. 961 394 American Bible Soc. v. Knox, 52 N. Y. 125 447, 44S 66 416 815 VIU TABLE OF CASES References are to pages. American Central Ins. Co. ads. Mathews, 154 N. Y. 449, 39 L.R.A. 433, 61 Am. St. Eep. 627, 48 N. E. 751 ■, . . ; 247 American Locomotive Co. ads. Meyers, 201 N. Y. 163, 94 N. E. 605 884 American Seaman's Friend So- ciety V. Hopper, 33 N. Y. 619 . . 974 American Surety Co., Matter of, 61 Misc. 542, 115 Supp. 860 . . 808 American Surety Co. ads. Dunne, 43 A. D. 91, etc 798, 801, 814 American Surety Co. ads. Dunne, 34 Misc. 584, 70 Supp. 391 814 American Surety Co. ads. Fassen- bender, 66 Misc. 6, 122 Supp. 442 800 Aines ads. Hardy, 47 Barb. 413 . . 274 Ametrano v. Downs, 33 Misc. 180, 67 Supp. 128; aflf'd 62 A. D. 405, 70 Supp. 833, 170 N. Y. 388, 58 L.R.A. 719, 88 Am. St. Eep. 671, 63 N. E. 340 599 Anderson, Matter of, 122 A. D. 453, or 106 Supp. 818 372 Anderson, Matter of, 10 Misc. 210, 43 Supp.i 1146 594 Anderson, Matter of, 84 A. D. 268, 82 Supp. 683 902 Anderson, Matter of, 78 Misc. 713, or 140 Supp. 230 473 Anderson ads. Adams, 23 Misc. 705, or 53 Supp. 141 . . 54, 60 Anderson v. Appleton, 48 Hun, 534, or 1 Supp. 319, afiPd 112 N. Y. 104, 2 L.R.A. 176, 19 N. E. 427 482 Andei'son ads. Carr, 6 A. D. 6, or 39 Supp. 746 46, 47 Anderson ads. Diaper, 37 Barb. 168 772 Anderson ads. Dodd, 197 N. Y. 466, 27 L.R.A.(N.S.) 336, 90 N. E. 1137, 18 Ann. Gas. 738 481, 495 Anderson v. Dodge, 158 A. D. 201, 143 Supp. 132 708 Anderson v. Fry, 123 A. D. 46, or 107 Supp. 916; affd 194 N. Y. 515, 87 N. E. 1115 645 Anderson v. McCann, 14 A. D. 160, or 43 Supp. 689 983 Andrews, Matter of, 162 N. Y. 1, 48 L.R.A. 662, 76 Am. St. Reip. 294, 56 N. E. 529 448, 451 Andrews ads. Cole, 176 N. Y. 374, 68 N. E. 641 256 Andrews ads. Martin, 69 Misc. 298 or 111 Supp. 40 343, 418 Annan, Matter of, 74 Hun, 19, or ' 26 Supp. 258; dism'd 143 N. Y. 623, 37 N. E. 827 728 Annett v. Terry, 35 N. Y. 256 389, 803 Anonymous, Matter of, 80 Misc. 10, 141 Supp. 700 597 Antonopulos, Matter of, 171 A. D. 659 , 24 Appleton ads. Anderson, 48 Hun, 534, or 1 Supp. 319; aft'd 112 N. Y. 104, 2 L.R.A. 175, 19 N. E. 427 482 Apthorp V. Thurston, 153 A. D. 572, or 138 Supp. 41 , 290 Arbuckle, Matter of, 77 Miso. 309, 137 Supp. 683 104 Archer, Matter of, 77 Misc. 288, 137 Supp. 770 347, 429, 542 Arendt v. Olin, 27 Misc. 270, 58 Supp. 429 539 Arkenburgh, Matter of, 13 Misc. 744 or 35 Supp. 251 ....430, 587, 588, 689 Arkenburgh, Matter of, 15 Misc. 416 or 38 Supp. 178 .. .. 926 Arkenburgh, Matter of, 58 A. D. 583, or 69 Supp. 125 948 Arkenburgh, Matter of, 17 Misc. 543, or 41 Supp. 287; aff'd 11 A. D. 44, 41 Supp. 287, 43 Supp. 1150 945 Arkeniburgh v. Arkenburgh, 27 Misc. 760, 59 Supp. 612, afif'd 49 A. p. 636, 64 Supa 742.. 533 Arkenburgh ads. Jones, T.12 A. D. 483, or 98 Supp. 532 and 114 Supp. 440 398 Armour v. Phyfe, 6 A. D. 605, or 39 Supp. 973; aff'd 159 N. Y. 552, 54 N. E. 1089 340 Armstrong, Matter of, 92 A. D. 286, or 76 Supp. 37 854 Armstrong, Matter of, 72 A. D. 620, 76 Supp. 40, aff'd 76 Supp. 1019 934 Armstrong, Matter of, 25 Misc. 261, or 54 Supp. 555, aff'd 42 A. D. 301, 59 Supp. 105 . .282, 287 Armstrong ads. Dobie, 160 N. Y. 584, 55 N. E. 302 497 Arnold v. Arnold, 90 N. Y. 580 290 Arnold ads. Cheney, 15 N. Y. 346, 69 Am. Dec. 609 13 Arnold ads. Cheeney, 18 Barb. 434, aff'd 15 N. Y. 345 . . . .503, 509 TABLE OF CASES References are to pages. Arnold ads. Dalrymple, 21 Hun, 110 231 Arnold v. Haronn, 43 Hun, 278 63 Arnold ads. Lavid, 25 Hun, 4 . . 108 Arnton, Matter of, 106 A. D. 326, or 94 Supp. 471 405, 599 Arndstein ads. Dworsky, 29 A. D. 274, or 51 Supp. 597 490 Arrovvsmith v. Arrowsmith, 8 Hun, 606 46, 48 Arthur ads. Darling, 22 Hun, 84 456 Ashheini, Matter of. 111 A. D. 176, or 97 Supp. 607, aff'd 185 N. y. 609, 78 N. E. 1099 ... 372 Ashley ads. King, Matter of, 179 N. Y. 281, 72 N. E. 186 60 Ashley ads. Hard, 88 Hun, 103, or 34 Supp. 583 469, 507 Ashmore, Matter of, 48 Misc. 312, or 96 Supp. 772, 178, 191, 194, 211 Astor's Executors ads. Langdon, 16 N. Y. 9 598 Athertbn ads. Smith, 54 Hun, 172, 7 Supp. 300 616 Atkins ads. Bostwick, 3 N. Y. 53 315 Atlantic Trust Co. v. Powell, 23 Misc. 289, or 50 Supp. 866 664 Attorney-General v. Continental Life Ins. Co. 93 N. Y. 45 899, 935, 960 Auburn Seminary, Trustees of, v. Calhoun, 25 N. Y. 422 448, 498, 502 Auburn Telephone Co., ads. Casey, 155 A. D. 66, or 139 Supp. 579 145 Audrade v. Cohen, 32 Hun, 225, aff'd 99 N. Y. 608 786 Austen, Matter of, v. Varian, 16 A. D. 337, 45 Supp. 599 298 Austin, Matter of, 45 Hun, 1 . . 447 Austin V. Metropolitan St. Ey. Co., 180 A. D. 249, 95 N. Y. Supp. 740 68 Austin V. Munro, 47 N. Y. 360 129, 538 Avery ads. Betts, 46 A. D. 342, 61 Supp. 525 806 Avery v. Everett, 36 Hun, 6 aff'd 110 N. Y. 317, 1 L.R.A. 264, 6 Am. St. Kep. 368, 18 N. B. 148 3, 439 Avery ads. Marsh, 81 N. Y. 29 968, 969 Avery, People ex rel. v. Purdy, 155 A. D. 607, or 140 Supp. 614, aff'd 209 N. Y. 575 ..209, 117 Avers v. Courvoisier, 101 A. D. 97, or 91 Supp. 549 93 Aymar ads. North American Trust Co., 33 Misc. 576, or 68 Supp. 870 922 Ayrault, Matter of, 81 Hun, 107, or 30 Supp. 654; aff'd 146 K. Y. 389, 42 N. E. 542 827 Ayres ads. Harrison, 18 Hun, 336 276 Babcock, Matter of, 115 N. Y. 450, 22 N. E. 263 298 Babcock, Matter of, 52 Hun, 510, or 5 Supp. 634 40S Babcock, Matter of, 42 Misc. 235, 86 Supp. 670 497 Baccelli, Matter of, 79 Misc. 371, or 140 Supp. 606 169 Baolunann ads. Chorrmann, 119 A. D. 146, or 104 Supp. 151 673 Bachrach, Est. of, N. Y. L. J., Dec. 22, 1914 425 Backus, Matter of, 49 A. D. 410, or 63 Supp. 544 461 Bacon v. Sayre, 84 Misc. 462, 147 Supp. 522 520 Bacon v. Schlesinger, 171 A. D. 503, 157 Supp. 649 988 Bacon ads. Shaffer, 35 A. D. 248, 54 Supp. 796, aff'd 161 N. Y. 635, 57 N. E. 1124 590^ Badger v. Badger, 88 N. Y. 546 . 14, 15 Badger ads. Burgess, 82 Hun, 488, 31 Supp. 614 113 Baird, Matter of, 126 A. D. 439, or 110 Supp. 708 244 Baird, Matter of, 41 Hun, 89 . . 509 Baird, Matter of, 74 Misc. 34, 133 Supp. 729 999 Bailey v. Hilton, 14 Hun, 3 951 Bainbridge v. MeCullough, 1 Hun, , 448 380 Bair v. Hayer, 97 A. D. 358, etc 282, 290 Baker, Matter of, 42 A. D. 370, or 59 Supp. 121 381 Baker, Matter of, 26 Hun, 626 . . 368 Baker, Matter of, 72 A. D. 211, or 76 Supp. 61; aff'd 172 N. Y. 617, 64 N. E. 1118 413 Baker, Matter of, 57 A. D. 44, or 68 Supp. 44 645 Baker, Matter of, 35 Hun, 272 414 Baker v. Baker, 18 A. D. 189, or 45 Supp. 870, app. dism'd. 157 N. Y. 671, 51 N. E. 1089 ..93 342, 563 Baker v. Brown, 64 Hun, 627, or 19 Supp. 258 39S. TABLE OF GASES Beferences are to pages. Baker ads. Oorbin, 167 N. Y. 128, i 60 N. E. 332 , 645 Baker v. Disbrow, 18 Hun, 29, aff'd 79 N. Y. 631 .... 643 Baker, Est. of, N. Y. L. J., June 15, 1915 , 293 Baker ads., Haberman, 128 N. Y. 253, 13 L.E.A. 611, 28 N. E. 370 . 239 Baker ads.' N.' Y." Life Iiis. & Tr. Co., 165 N. Y. 484, 53 L.R.A. 544, 59 N. E. 257 664 Baker ads. O'Brien, Matter of, 65 A. D. 282, or 72 Supp. 1001 250, 252 Baker v. Oakwood, 49 Hun, 416, 3 Supp. 570 47, 48 Baker v. Woodbridge, 66 Barb, 261 454 Balch, Matter of, 93 Misc. 419, 156 Supp. 1006 8, 10, 12 Baldasarro, Matter of, 92 Misc. 627, 156 Supp. 175 208 Baldwin, Matter of, 67 Mise. 353, or 124 Supp. 859 296 Baldwin, Matter of, 27 A. D. 506, 50 Supp. 872, dism'd 158 N. Y, 713, 53 N. E. 218 560 561, 960 Baldwin, Matter of, N. Y. L. J,, June 11, 1915 895 Baldwin, Matter of, 74 Misc. 341, or 133 Supp. 1109; aff'd 142 Supp. 1107 668 Baldwin, Matter of, 30 Mise. 189, 63 Supp. 727 964 Baldwin ads. Olcott, 190 N. Y. 99, 82 N. E, 748 408, 411, 418 424, 425 Baldwin v, Eice, 44 Misc. 64, 89 Supp. 738; aff'd 100 A. D. 241, 89 Supp. 738; aff'd 183 N. Y, 55, 75 N. E, 1096, reargument denied 184 N. Y. 523, 71 N. B. 1088 98, 99, 176, 185, 187, 629 838, 839 Baldwin v. Smith, 3 A. D, 350, or 38 Supp. 299 348 Baldwin ada. Washington Trust Co., 118 A. D. 186, or 102 Supp. 1105, aff'd 189 N. Y. 543, 82 N. E. 1134 151 Ball, Matter of, 161 A. D, 79, or 146 Supp, 499 113 Ball, Matter of, 94 Mise, 112 . . 926 Ball, Matter of, 55 A, D, 284, 66 Supp. 874 553 Ball V. Eaiidall, 87 Misc. 194, 149 Supp. 595 8 Ball ads.iUngrich, 152 A. D. 824, ,137 Supp. 722 819 BaUou V, Ballou, 78 N, Y. 325 236, 237 Banes v, Eainey, 192 N. Y, 286, 85 N, lE. 71 977, 778 Bangs, Est, of, N. Y. L. J., Feb. 3, 1916 ,.., 384 Bank of lansingburgh. The, ■J. Crary, 1 Barb. 542 239 Bank of Kiagara v. Talbot, 110 A. D. 519, 96 Supp. ,976, aff'd 184 N. Y. 576, 77 N. E. 1181 611, 614 Bank of Poughkeepsie v. Has- brouek, 6.N. Y. 216 . .274, 281, 394 Bankers' Surety Co. v. Meyer, 205 N. Y. 219, 98 N. E. 399, Ann. Gas. 1913D, 1218 ..284, 304 Banks, Matter of, N. Y. L. J., Dec. 14, 1914 200 Banks ads. Cummings, 2 Barb. 602 102 Banning, Matter of, 108 A. D. 12, 95 Supp. 467 927 Banta ads. Fisher, 66 N, Y, 468 394, 873 Baptist Church ads. Booth, 126 N. Y. 215, 28 N. E. 238 .... 599 Barandon, Matter of, 41 Misc. 380, or 84 Supp. 937 ..49, 72, 512 Barber, Matter of,: N. Y. L. J., Mch. 10, 1916 25 Barber v. Barber, 17 Hun, 72 436, 482 Barber v. Brundage, 169 N. Y. 368, 62 N, E. 417 51 Barefield, Matter of, 177 N. Y. 387, 101 Am. St. Rep. 814, 69 N. E. 732 934 Barker, Matter of, 4 Misc. 40, 24 Supp. 723 778 Barker v. Barker, 92 Misc. 390, 156 Supp. 194 17 Barker ads. Gould, People ex rel, 150 N, Y. 52, 44 N. E, 785 536, 537 Barker y. Laney, 7 A. D. 352, or 40 Supp. 66 619 Barker ads. Yale, 2 Hun, 468 .. n4 Barker ads. Young, 141 A. D. 801, or 127 Supp. 211, 1150 ..415, 645 Barlow ads. Delaiield, 107 N. Y. 535, 14 N. E. 498 342 Barnes, Matter Of, 7 A. D. 13, or 40 Supp. 494; aff'd 154 N. Y. 737, 49 N. E. 1093 . . . .233, 614 Barnes, Matter of, 25 Misc. 279, 55 Supp. 430 373 TABLE OF CASES References are to pages. Zl Barnes, Matter of, 76 Misc. 382, or 136 Supp. 940 463 Barnes, Matter of, 140 N. Y. 468, 35 N. E. 653 663 Barnes ads. Bedell, 29 Hun, 589 979 Barnes v. Underwood, 47 N. Y. 351 67, 68, 69, 70 Barnum, Matter of, 129 A. D. 418, or 114 Supp. 33 716 Barr, Matter of, 38 Mise. 355, 77 Supp. 935 4 Barr ads. Baucus, 45 Hun, 582, aff'd 107 N. Y. 624, 13 N. E. 939 809 Barr v. Howell, 85 Misc. 330, 147 Supp. 483 34 Barry v. Lambert, 98 N. Y. 300, 50 Am. Rep. 677 532 Barry, Matter of, 62 Misc. 456, or 116 Supp. 798 81 Barson t. Mulligan, 191 N. Y. 306, 16 L.R.A(N.S.) 151, 84 N. E. 75 7 Bartells, Matter of, 109 A. D. 586, or 96 Supp. 579 688 Bartholick, Matter of, 141 N. Y. 166, 36 N. E. 1 80 Barton, Matter of, 64 Misc. 242, 118 Supp. 1087 611 Bartseh, Matter of, 60 Misc. 272, 113 Supp. 286 823 Baruth, Matter of, 62 Misc. 596, 116 Supp. 1125 278 Baskin v. Baskin, 36 N. Y. 416 449, 453, 455 Bassett, Matter of, 84 Misc. 656, or 148 Supp. 1049, or 30 Supp. 388 453, 502 Bassett ads. Ehrman, 159 A. D. 752, 144 Supp. 976 128 Bassett ads. Hatch, 52 N. Y. 359 72 Batehis v. Leask, 149 A. D. 713, 134 Supp. 350 672 Bate V. Graham, 11 N. Y. 237 527, 825 Bates V. Virolet, 33 A. D. 436, or 53 Supp. 893, and 34 Supp 629 16 Battell V. Torrey, 65 N. Y. 294 756 Bauchle v. Smylie, 104 A. D. 513, 93 Supp. 709 114 Baucus V. Barr, 45 Hun, 582, aff'd 107 N. Y. 624, 13 N. E. 939 809 Baucus ads. Sipperly, 24 N. Y. 46 996 Baucus V. Stover, 89 N. Y. 1 . . . . 243 Baum, Matter of, 121 A. D. 496, . or 106 Supp. 113, app. dism'd • 199 N. Y. 564, 83 N. E. 1122 . . 69 Baum ads. Brackett, 50 N. Y. 8 37 Baumann, Matter of, 85 Mise. 656, or 148 Supp. 1049 452, 450 Bauman v. Moseley, 63 Hun, 492, 18 Supp. 563 896 Bauseh ads. Vallance, 28 Barb. 633 68, 69, 70 Baxter ads. Hyland, 98 N. Y. 630 345, 831 Baxter ads. Kettell, 50 Misc. 428 or 100 Supp. 529 18, 57 Bayer, Matter of,. 54 Hun, 189, 7 Supp. 566 894, 896 Baylis v. Baylis, 207 N. Y. 446, 101 N. E. 176 18 Balz V. Underbill, 19 Misc. 235, or 44 Supp. 419, aff'd 16 A. D. 635, 46 Supp. 1089 286, 539 Beach ads. Bostwick, 31 Hun, 343 539 Beach ads. Bostwick, 103 N. Y. 414, 9 N. E. 41 45 Bean ads. Czech, 35 Misc. 729, or 72 Supp. 402 5, 6, 156 Beard, Matter of, 77 Hun, 111, or 28 Supp. 305 407 Beard v. Beard, 140 N. Y. 260, 35 N. E. 488 417, 423 Beardslee v. Hemingway, 65 Hun, 400, 20 Supp. 214 112 Beardsley ads. Cobb, 37 Barb. 192 189 Beams, Matter of, 89 Misc. 712, or 153 Supp. 1089, aff'd 154 Supp. 1111 447 Beatty ads. Vermilya, 6 Barb. 429 141 Beaver, Matter of, 62 Misc. 155, 116 Supp. 424 610 Beear, People ex rel. v. StruUer, 16 Hun, 234 801 Beck, Matter of, 6 A. D. 211, or 39 Supp. 810; aff'd 154 N. Y. 750, 49 N. E. 1093 451, 949 Beck, Matter of, 26 Misc. 179, 156 Supp. 853 510 Beck V. McGillis, 9 Barb. 35 . . . 598 Becker, Matter of, 28 Hun, 207 490 Becker, Est. of, N. Y. L. J., Feb. ,9, 1915 224, 225 Becker ads. Payne, 87 N. Y. 153 34 Beckett v. Place, 12 Misc. 323, or 33 Supp. 634 810 Beckman ads. Power, 126 N. Y. 354, 27 N. E. 474 803 Beebe, Matter of, 71 Misc. 102, 121 Supp. 1092 284 Beebe ads. Collin's, 54 Hun, 318, or 7 Supp. 442 ... : 923 TABLE OF CASES References are to pages. Beebe v. Eatabrook, 11 Hun, 523, aff'd 79 N. Y. 246 . .48, 61, 63, 82 Beebe v. Griffing, 14 N. Y. 235 53, 61 Beech, Matter of, 79 Misc. 200, or 139 Supp. 713, aff'd 144 Supp. 1121 71 Beech, Matter of, 3 Misc. 393, 24 Supp. 717 920 Beecher axis. Foote, 78 N. Y. 155 948, 949 Beeeher ads. Griifith, 10 Barb. 432 ; 237 Beeeher ads. Hooper, 109 N. Y. 609, 15 N. E. 742 956, . 962 Beekman v. Bonsor, 23 N. Y. 298, 80 Am. Dec. 269 92, 162, 560 Beeman ads. Lamport, 34 Barb. 239 320 Beer ads. Halsey, 52 Hun, 366, or 5 Supp. 334, Act. of Feb. 10, 1855 31 Beer ads. Parker, 65 A. D. 598, or 72 Supp. 955, aff'd 173 N. Y. 332, 66 N. E. 3 326 Beers ads. City of N. Y., 163 A. D. 495, 148 Supp. 438 647 Beers v. Shannon, 73 N. Y. 292 480 Beers v. Strong, 128 A. D. 20, 112 Supp. 382 621 Bedell v. Barnes, 29 Hun, 589 . . 979 Bedford, Matter of, 130 A. D. 642, 115 Supp. 472 174 Bedford, Matter of, 30 Hun, 551 896 Bedlow V. Stillwell, 91 Hun, 384, 36 Supp. 129, aff'd 158 N. Y. 292, 53 N. E. 26 36 Behr, Est. of, N. Y. L. J., Sept. 26, 1914 752 Belden v. Belden, 118 A. D. 296, 103 Supp. 346 188 Belden ads. Valentine, 20 Hun, 537 267, 317 Bell, Matter of, N. Y. L. J., Mch. 30, 1916 426, 427 Bell V. Pierce, 51 N. Y. 12 8 Bell V. The Mayor, 10 Paige Gh. 49 37 Bell's Estate, Matter of, 34 Supp. 191 74, 79 Bellinger v. Ford, 21 Barb. 311 105 Belotti, Matter of, 85 Misc. 81, or 150 Supp. 421 95, 183 Benedict v. Ferguson, 15 A. D. 96, or 44 Supp. 307 229 Benjamin, Matter of, 155 A. D. 233, or 139 Supp. 1091 5 Benjamin v. Ver Noby, 168 N. Y 578, 61 N. E. 971 982, 983 Benioflf, Matter of, 73 Misc. 493, 133 Supp. 413 , . . . 252 Bennett, Matter of, 166 A. D. 637, 152 Supp, 46 461, 469 Bennett ads. Fisher, 21 Misc. 178, or 47 Supp. 114 977 Bennett ads. Johnson, 39 Barb. 237 644 Bennett v. Lyndon, 8 A. D. 387, or 40 Supp. 786 105- Bennett v. Pittman, 48 Hun, 612, or 1 Supp. 27 897 Bennett ads. Thomas, 56 Barb. 197 720^ Benson, Matter of Accounting of, 96 N. Y. 499, 48 Am. Rep. 646 41 44, 6oa Benson v. Siemons, 92 Misc. 509, 156 Supp. 1 824 Benton, Matter of, 71 A. D. 522, or 75 Supp. 859 952 Bergen, , Matter of, 56 Misc. 92, 106 Supp.. 1038 593: Bergdorf, Matter of, 206 N. Y. 309, 99 N. E. 714 ..536, 537, 557 Bergman ads. Lord, 194 N. Y. 70, 86 N. E. 828 141 Berkeley v. Kennedy, 62 A. D. 609, or 70 Supp. 899 255. Berkeley ads. Bushby, 153 A. D. 742, 138 Supp, 831 427 Bei'man, Est.' of, N. Y. L. J., July 13, 1915 886 Bernhard ads. Mahoney, 45 A. D. 499, or 63 Supp. 642; aff'd 169 N. Y. 589, 62 N. E. 1097 .... 411 Bernhardt ads. Mahoney, 27 Misc. 339, 58 Supp. 748, mod. 45 A. D. 499, 63 N, E. 642 549> Bernsee, Matter of. Will of, 71 Hun, 27, or 24 Supp. 509; aff'd 141 N. Y. 389, 36 N. E. 314 453, 503 Berthoud ads. Sacia, 17 Barb. 15 27ft Beshe v. Wright, 118 A. D. 320, or 103 Supp. 410; aff'd 195 N. Y. 509, 88 N. E. 1116 ....... 367 Best ads. Sayles, 140 N. Y. 368, 35 N. E. 636 343, 358, 527 Betsipger v. Chapman, 24 Hun, 15; aff'd 88 N. Y. 487 14, 400" Betts V. Avery, 46 A. T>. 342, 61 Supp. 525 806 Betts ads. Stout, 74 Hun, 266, 2o Supp. 809 .. 955. Bevan v. Cooper, 72 N. Y. 317 . . 829 Beveridge ads. Lyttle, 58 N. Y, 592 547 TABLE OF CASES Keferences are to pages. Xlli Bevier, Matter of, 17 Misc. 486, 41 Supp. 268 415, 681 Bevillard ads. Jones, 209 N. Y. 446, 103 N. E. 719 635 Beyea, Matter of, 10 Misc. 198, or 31 Supp. 200 368, 372 B. H. K. R. Co. ads. Meekin, 164 N. Y. 145, 51 L.R.A. 235, 79 Am. St. Eep. 635, 58 N. E. 50, 8 Am. Neg. Rep. 490 133 Bibby, Est. of, N. Y. L. J., Jan. 5, 1915 415 Biddleeom ads. Eredenburgh, 85 N. Y. 196 961 Bielby, Matter of, 91 Misc. 353, or 155 Supp. 133 . . 264, 343, 380, 541 546, 587, 589, 610, 710, 868, 904 Bielostosky, Matter of, 27 Misc. 716, 59 Supp. 606 600 Biggars, Matter of, 39 Misc. 426, or 80 Supp. 214 222 Billings V. Carver, 54 Barb. 40 925 Bilman ads. Holmes, 138 N. Y. 369, 20 L.R.A. 566, 34 Am. St. Eep. 463, 34 N. E. 205 644 Bingham, Matter of, 127 N. Y. 297, 27 N. E. 1055 274, 325, 330 884, 998 Bingham v. Jones, 25 Hun, 6 . . . . 93 Bingham v. Marine National Bank, 41 Hun, 377, aff'd 112 N. Y. 661, 19 N. E. 416 98, 139 Bisehoflf, Matter of, N. Y. L. J., June 2, 1916 107, 147 Bischoff V. Yorkville Bank, N. Y. L. J. May 16, 1916 270 Bischoff V. Engel, 10 A. B. 240, 41 Supp. 815 814 Bishop, Est. of, 89 Misc. 355, 151 Supp. 768 348 Bissell V. Sexton, 66 N. Y. 55 803 Bitters' Est., Matter of, 154 N. Y. Supp. 975 904 B. L. T. & S. D. V. K. G. & M. A. Assn., 126 N. Y. 450, 22 Am. St. Rep 839, 27 N. E. 942 721 Black ads. Horsfield, 40 A. D. 264, or 57 Supp. 1006 92 Black ads. Larry, 58 N. Y. 185 707, 709 Blair, Matter of, 28 Misc. 611, 55 Supp. 425 590 Blair, Matter of, 34 Misc. 444, or 69 Supp. 1013; aff'd 67 A. D. 116, 73 Supp. 675 226 Blake, Matter of, 60 Misc. 627, or 113 Supp. 944 81 Blake ads. Bollermann, 24 Hun, 187, aff'd 94 N. Y. 624 16 Blake ads. Tyson, 22 N. Y. 558 607 Blauvelt, Matter of, 131 N. Y. 249 30 N. E. 194 549 Blauvelt, Matter of, 72 Misc. 287, 131 Supp. Ill 174, 218 Bleakney, Matter of, 61 Misc. 542, 115 Supp. 860 808 Bleau ads. Rosseau, 131 N. Y. 177, 27 Am. St. Rep. 578, 30 N. E. 52 316 Bliss V. Fosdick, 76 Hun, 508, or 27 Supp. 1053 937 Bliss ads. Sheldon, 8 N. Y. 31 72, 842 Bliven v. Seymour, 88 N. Y. 469 593, 600 Blum, Matter of, 83 A. D. 161, or 82 Supp. 491 374 Blum, Matter of, N. Y. L. J., Mch. 28, 1916 423 Blum ads. Schen, 119 A. D. 825, or 104 Supp. 887 154 Blun, Matter of, N. Y. L. J., Mch. 28, 1906 ..; 409 Bloomer v. Bloomer, 2 Bradf. 339 72 Bloomer ayds. Owens, 14 Hun, 296 233 Bloodgood V. Bruen, 8 N. Y. 362 287 Blood V. Kane, 130 N. Y. 514, 15 L.R.A. 490, 29 N. E. 994 527, 536, 602 Bloodgood V. Sears, 64 Barb. 71 279 Blood ads. Smith, 106 A. D. 317 or 94 Supp. 667 .... 327, 331, 338 Blydenburgh v. Northrop, 13 How. Pr. 289 37 Board of Education ads. Carter, 68 Hun, 435, or 23 Supp. 95, aff'd 144 N. Y. 621, 39 N. E. 628 619 Board of Supervisors ads. Town- send, 73 Misc. 563, 133 Supp. 555 1007 Bodine, Matter of, 119 A. D. 493, or 104 Supp. 138 917 Boericke, Matter of, 93 Misc. 410 268 Boffe V. Consolidated Telegraph & El. Subway Co. 171 A. D. 392, 157 Supp. 318 144 Bogart, Matter of, 28 Hun, 466 620 Bogart, Matter of, 43 A. D. 582, 60 Supp. 496 515 Bogart, Matter of, 46 A. D. 240, 61 Supp. 677 970, 972 Bogert, Matter of, 41 Misc. 598, or 85 Supp. 291 619 Bogert ads. De Caumont, 36 Hun, 382 62 Bogert T. Furman, 10 Pai. Ch. 496 74, 75 SIV TABLE OF CASES References are to pages. Bdhmer, Matter of, N. Y. L. J. Dec. 1, 1914 279 Boiee ads. People, 39 Barb. 307 729 Boies ads. O'Donoghue, 159 N. - Y. 87, 53 N. E. 537 ... 716, 717, 824 Bolton, Matter of, 141 N. Y. 554, ' 35 N. E. 1079 956 Bolton, Matter of, 146 N. Y. 257, 40 N. B. 737 ; 318 Bolton, Matter of, 20 Mise. 532, or 46 Supp. 908 717 Bolton, Matter of, 159 N. Y. 129, 53 N. E. 756 823, 829 Bolton ads. Myers, 157 N. Y. 393, 52 N. E. 114 317 Bolton V. Schriever, 135 N. Y. 65, 18 L.E.A. 242, 31 N. E. 1001 2, 488, 996 BoUermann v. Blake, 24 Hun, 187, aff'd94 N. Y. 624 16 Bolles, Matter of, 67 Misc. 40, 124 Supp. 620 417 Bond V. Smith, 4 Hun, 48 ..... . 135 Bonilla v. Mestre, 34 Hun, 551 . . ,99 Bonner ads. Carpenter, 26 A. D. 462, or 50 Supp. 298 93 Bonner ads. Roberge, 94 A. D. 342, or 88 Supp. 91, aff'd 185 N". Y. 265, 77 N. E. 1023 289 Bonnett ads. Graff, 31 N. Y. 9 130 Bonnett ads. Hoyt, 50 N. Y. 538 111, 280 Bonnette v. Molloy, 209 K. Y. 167, 102 N. E. 559 953 Bonsor ads. Beekman, 23 N. Y. 298, 80 Am. Dec. 269 . . 92, 162, 560 Boon V. Hall, 76 A. D. 520, 78 Supp. 557 632,. 641 Booth, Matter of Will of, 127 N.. Y. 110, 12 L.R.A. 452,, 24 Am. . St. Rep. 429, 27 N. E. 826 449 Booth V. Baptist Church, ; 126 N"., . Y. 215, 28 N. E. 238 599 Borchard, Est. of, N. Y. L. J., Jan. 27, 1915 ..;: 97 Borrowe v. Corbin, 31 A. D. 172, or 52 Supp. 741; aff'd 165 N. Y. 634, 59 N. E., 1119 826 Boss ads; Davidson, 57 A. D.:212, or 68 Supp. 316 977 Bosaie v. Edelsou, 76 Misc. 234, 134 Supp. 615 459 Bostwiok, Matter of,. 78 Mise. 695, 140 Supp. 588 .... 467 Bostwick V. Atkins, 3 N. Y. .53 315 Bbstwick V. Beach, 31 Hun, 343 . . 539 Bostwick Y. Beach, 103 N. Y. 414, ,: 9 N. E. 41 '45 Bostwick V. Carr, N. Y. L. J., Dee. 31, 1914 (App. Div. 2d Dept.) 142 Bostwick V. Carr, 165 A. D. 55, or 151 Supp. 74 153 Bottome v. Alberst, 47 Misc. 665, or 94 Supp. .348 : 899 Bottome v. Neely, 54 Mise*. 258, or 104 Supp. 429; aff'd 124 A. D. 600, 109 Supp. 120 900 Bottome v. Neeley, 124 A. D. 600, or 109 Supp.; 120, aff'd 194 N. Y. 575, 88 N. E.. 1115 108 Bouehoux, Matter of, 89 Mise. 47, or 152 Supp. 548 : 515 Bouck, Matter of, 80 Mise. 196, 141 Supp. 922 594 Boughton V. Flint, 74 N. Y. 476 301 Bowe V. McNab, 11 A. D. 386 .... 551 Bowen ads. Torry, 15 Barb. 304 456 Bowers v. Emerson, 14 Barb. 652 92, 161, 559, 677, 725 Bowery Bank ads. Jaeger, 8 Misc. 150, or 29 Supp. 53 137 Bowery National Bank v. Wilson, 122 N. Y. 478, 9 L.R.A. 706, 19 Am. St. Rep. 507, 25 N. E 855 . 404 Bowery Savings Bank ads. Schlu- ter, 117 N. Y. 125, 5 L.R.A. 541, 15 Am. St. Rep. 494, 22 N. E. 572 258 Bowery Savings Bank ads. Whit- lock, 36 Hun, 460 ; 105 Bowron v. Kent, 190 N. Y. 422, 83 N. E. 472 62 Boyce, Matter . of, 37 Misc. 151, 74 Suppj 9.58 386 Boyd ads. Montgomery, 78 A. D. 64, or 79 Supp. 879 141 Boyer, Matter of, 68 Misc. 6, 124 Supp. 892 634 Boyer v. Bast, 161 N. Y. 580, 76 Am, St. Rep. 290, 56 N. E., 114 707, 708 Boyer, Eat. of N. Y. L. J., June 12, 1915 612 Boylan, Matter of, 25 Misc. 281, or 55 Supp. 426 793 Boyle, Matter of, 166 A. D. 504, 151 Supp. 1022 689 Boyle, Mattfer of, 151 A. D. 568, 136 Supp. 96 , 379 Boyle ads. Roe, 81 N. Y. 305 .. 961 Boynton v. Laddj^, 60 Hun, 339, 3 Supp. 393 ,■•■■• 688 Brackett v. Baum, 50 N. Y. 8.^ , . 37 Brackett v. Ostrander, 126 A. D. , 529, 110 Supp. 779 588 TABLE OF CASES References are to pages. XV Bradford, Est. of N. Y. L. J., Nov. 10, 1915 Bradley, Matter of, 25 Misc. 261, or 54 Supp. 555; aff'd 42 A. D. 301, 59 Supp. 105 282, Bradley v. Krudop, 128 A. D. 200, 112 Supp. 609 Bradley ads. Walker, 89 Misc. 516, or 153 Supp. 686 109, Bradner v. Faulkner, 12 N. Y. 472 Bradner v. Faulkner, 34 N. Y. 347 Brady, Matter of, 58 Misc. 108, or 110 Supp. 755 .... 695, 755, Brady v. McCosken, 1 N. Y. 214 Bramley v. Forman, 15 Hun, 144 Brand, Matter of, 68 A. D. 225, or 73 Supp. 1073 . . ; Brandt, Matter of, 30 Misc. 14, or 62 Supp. 997 Brenn, Matter of, 171 A. D. 800' Brater v. Hooper, 77 Hun, 244, or 28 Supp. 487 Bratt, Matter of, 10 Misc. 491, 32 Supp. 168 Bratt ads. Fort Miller Pulp & Paper Co., No. 2, 119 A. D. 685, or 104 Supp. 350 Brauneis, Matter of, N. Y. L. J., Mch. 10, 1916 Brannsdorf, Matter of, 13 Misc. 666, or 35 Supp. 298, mod'f'd, 2 A. D. 73, 37 Supp. 229 . . 428, 542 Breakiron, Matter of, 165 A. D. 946, 153 Supp. 1107 Breese, Matter of, 92 Misc. 650, 156 Supp. 267 Brennan, Matter of, 160 A. D. 400, 145 Supp. 553 Brennan, Est. of, N. Y. L. J., Apr. ■ 20, 1916 Brennan ads. Hall, 64 Hun, 394, 19 Supp. 623, aff'd 140 N. Y. 409; 35 N. E. 663 Brenneman ads. Kayer, 47 A. D. , 63, or 62 Supp. 339, and 52 Supp. 447 359, Brett ads. Bucknam, 35 Barb. 596 Brewster, Matter of, 92 Misc. 339, or 156 Supp. 588 Brewster, Matter of, 72 A. D. 587, or 76 Supp. 283 . 461, Brewster ads. Markey, 10 Hun, 16, aff'd 70 N. Y. 607 Briasco, Matter of, 69 Misc. 278, 126 Supp. 1001 Brick V. Brick, 66 N. Y. 144 . . 841 287 475 236 611 239 828 519 399 484 9 596 630 596 136 25 649 842 737 144 681 149 1 377 128 835 469 291 175 853 Bridgeport Brass Co., Matter ot, 77 Misc. 69, or 137 Supp. 418 316 Bridgeford ads. Van Geissen, 83 N. Y. 348 194 Briggs, Matter of, 171 A. D. 52, 156 Supp. 947 559, 569 Briggs, Matter of, 47 A. D. 47, or 62 Supp. 294 501 Briggs V. Carroll, 117 N. Y. 288, 22 N. E. 1054 330 Brill V. Wright, 112 N. .Y. 129, 8 Am. St. Eep. 717, 19 N. E. 628 330 Brimmer ads. Adair, 74 N.' Y.' 539 618 Brimmer ads. Adair, 95 N. Y. 35 376, 919 Brinker v. Loomis, 43 Hun, 247 273 Brinckerhoff, v. Faries, 52 A. D. 256, or 65 Supp. 358, aff'd 170 N. Y. 427, 63 N. E. 437 . . 376, 433 Brinckermann, Matter of, 89 Misc. 41, or 152 Supp. 542 161, 166, 560, 678 Brintnall, Matter of, 40 Misc. 67, or 81 Supp. 250 242 Brisbin ads. Haight, 100 N. Y. 219, 3 N. E. 74 579, 812 Brisbin ads. Haight, 96 N. Y. 132 342 Brissell, Matter of, 16 A. D. 137 or 45 Supp. 122 504 Bristow, Matter of, 63 Misc. 637, 118 Supp. 686 888 Broadway Savings Institutioii, The V. Pelham, 148 If'. Y. 737, 42 N. E. 722 976 Broderick, Matter of, 163 A. D. 91, 148 Supp. 541 342 Brodhead, Matter of, 19 Misc. 373, 44 Supp. 357 223, 294 Brodil, Est. of, N. Y. L. J., Mch. 24, 1915 ; 967 Brodil, Est. of, N. Y. L. J., Dee. 30, 1915 324 Bronson, Matter of, 69 A. D. 487, or 74 Supp. 1052 843 Brooklyn Heights R. R. Co. ads. Fisher Hausen, 173 N. Y. 492, 66 N. E. 395, 13 Am. Neg. Rep. 396 987 Brooklyn Trust Co., Matter of, 92 Misc. 695, 157 Supp. 671 . . 441 442, 670 Brookman, Matter of, 11 Misc. 675, or 33 Supp. 575 463 Brooks, Matter of, 71 Misc. 102, 121 Supp. 1092 284 Brooks, Matter of, 65 Misc. 439, 121 Supp. 1092 284 XVl TABLE OF CASES Eeferences are to pages. Brooks Infants, Est. of, N. Y. L. J., Jan. 22, 1915 874 Bross, Matter of, 60 Misc. 647, 113 Supp. 941 329 Brouwer ads. Gill, 37 N. Y. 549 599 Brower, Matter of, 71 Misc. 398, 130 Supp. 191 220, 586 Brower, Matter of, N. Y. L. J., Nov. 9, 1914 223 Browning ads. Central Union Gas Co. 210 N. Y. 10, 103 N. E. 822 238 Brown, Matter of, 78 Misc. 342, 139 Supp. 459 348, 546 Brown, Matter of, 77 Misc. 507, 137 Supp. 978 33 Brown, Matter of, N. Y. L. J., Mch. 11, 1916 24, 860 Brown, Matter of, 79 Misc. 675, 141 Supp. 318 315, 316 Brown, Matter of, 80 Misc. 4, or 141 Supp. 193 780, 782 Brown, Matter of, 60 Misc. 628, 113 Supp. 937 181 Brown, Matter of, 71 Misc. 398, 130 Supp. 191 341 Brown, Matter of, 68 Misc. 3, 124 Supp. 894 692 Brown, Matter of, 47 Hun, 360 . . 494 Brown, Matter of, 31 Hun, 166 . . 510 Brown, Matter of, 71 Hun, 160, or 25 Supp. 694 812 Brown, Est. of, N. Y. L. J., Nov. 21, 1914 905 Brown v. Broiyn, 64 A. D. 544, 72 Supp. 309 934 Brown v. Brown, 83 Hun, 160, 31 Supp. 650, aff'd 146 N. Y. 385, 42 N. E. 543 778 Brown v. Brown, 41 N. Y. 507 . . 969 Brown v. Brown, 53 Barb. 217 . . 377 Brown v. Brown, 122 A. D. 576 107 Supp. 864 607 Brown ads. Baker, 64 Hun, 627, or 19 Supp. 258 392 Brown ads. Brush, People ex rel., 35 Hun, 324, afif'd 42 Hun, 609 728 Brown v. Catholic Mutual Benefit Association, 33 Hun, 263 249 Brown v. Clark, 77 N. Y. 369 . . 465 483 Brown ads. Conkling, 51 Barb. 265 61 Brown ads. Guidet, 3 Abb. N. C. 295 45 Brown ads. Horton, 29 Hun, 654, aflf'd 102 N. Y. 698 982 Brown ads. Ide, 178 N. Y. 26, 70 N. B. 101 706 Brown ads. Jenny, People ex rel., 83 Misc. 495, or 146 Supp. 123 757 Brown v. Knapp, 17 Hun, 160, rev'd 79 N. Y. 136 140 612, 613, 617 Brown v. Landon, 30 Hun, 57 . . 198 Brown v. Phelps, 48 Hun, 219, aff'd 113 N. Y. 658, 21 N. B. 415 625 Brown ads. Risley, 67 N. Y. 160 805 Brown v. Snell, 57 N. Y. 286 . . 803 804 Brown ads. Terriwilliger, 44 N. Y. 237 644 Brown ads. Watkins, 89 A. D. 193, or 8S Supp. 820 232 Brown v. Wheeler, 53 A. D. 6, or 65 Supp. 436 386 Bro-svn ads. Wood, 34 N. Y. 337 532 688, 826, 843 Browne, Matter of, 35 Misc. 362, 71 ■ Supp. 1034 299 Bruce v. Griscom, 9 Hun, 280, aff'd 70 N. Y. 612 82 Bruce v. Lorillard, 62 Hun, 416, or 16 Supp. 900 421 Bruen ads. Bloodgood, 8 N. Y. 362 287 Bruen v. Gillet, 115 N. Y. 10, 4 L.E.A. 529, 12 Am. St. Rep. 764, 21 N. E. 676 637 Brug, Matter of, 39 A. D. 485, or 57 Supp. 390; aff'd 165 N. Y. 673, 59 N. B. 1119 711 Brugerhof ads. Foote, 84 Hun, 473, 32 Supp. 397 699 Bruggerhof, ads. Foote, 66 Hun, 406, or 21 Supp. 509 820 Brundage ads. Barber, 169 N. Y. 368, 62 N. B. 417 51 Brundage v. Brundage, 65 Barb. 397, aff'd 60 N. Y. 544 .... 520 665 Brush, People ex rel. v. Brown, 35 Hun, 324, aff'd 42 Hun, 609 728 Brush ads. Young, 28 N. Y. 667 225 590, 696 Bryan v. Stewart, 83 N. Y. 270 . . 532 Bryant ads. Eberle, 31 Misc. 814, or 63 Supp. 963 ; aff'd 32 Misc. 195, 65 Supp. 728 810 Bryant v. Thompson, 59 Hun, 544, 14 Supp. 28, dism'd 128 N. Y. 426, 13 L.R.A. 745, 28 N. B. 522 597 937, 595 TABLE OF CASES References are to pages. XVll Bryon v. Bryon, 134 A. D. 320, or 119 Supp. 41 39 40 Buchan v. Rintoul, 70 N. Y. 1 . . 378 892 Buchajiaii ads. Greagan, 15 Misc. 580, or 37 Supp. 83 644 Buchanan ads. Patterson, 40 A. D. 493, or 58 Supp. 179 230 Buckland v. Gallup, 40 Hun, 61, affM 105 N". y. 453, 11 N. E. 843 979 980 Buckler, Matter of, 96 A. D. 397, or 89 Supp. 206 728 Buckley, Matter of, 41 Hun, 106 479 480, 852 Buckley ads. Fliess, 90 N. Y. 286 273 Bucknam v. Brett, 35 Barb. 596 . . 128 Budd V. Walker, 113 N. Y. 637, 21 N. E. 72 282 Budlong, Matter of, 100 N. Y. 203, 3 N. E. 334 974 Budlong, Matter of Will of, 126 N. Y. 423, 27 N. E. 945 ..959 961 Buell V. Gardner, 83 Misc. 513, or 144 Supp. 945 520 Buel ads. McGregor, 24 N. Y. 166 563 Buffalo Car Mfg. Co. ads. Chester, 70 A. D. 443, or 75 Supp. 428 668 Buffalo General Electric Co. ads. Carpenter, 213 N. Y. 101, 106 N. E. 1026 56 58, 76, 77 Buffalo Loan & Trust Co. v. Leonard, 9 A. D. 384, 41 Supp. 294, aff'd 154 N. Y. 141, 47 N. E. 966 604 Bugbee ads. Square, 65 A. D. 429, or 72 Supp. 1023 672 Bulger ads. Wall, 46 Hun, 346 . . 621 721 Bull, Matter of. 111 N. Y. 624, 19 N. E. 503 957 Bull ads. Ledyard, 119 N. Y. 62, 23 N. E. 444 300 351, 544 Bumstead v. Read, 31 Barb. 661 480 Bundy v. Bundy, 38 N. Y. 410 . . 675 Bimgart ads. Ludwig, 48 A. D. 613, or 63 Supp. 91 827 Bunting, Matter of, 98 A. D. 122, or 90 Supp. 786 829 842 Burbank, Matter of, 104 A. D. 312, or 96 Supp. 866; aff'd 185 N. Y. 559, 77 N. E. 1183 .... 857 Burdick, Matter of, 41 Misc. 346, or 84 Supp. 932 729 Burdick, Matter of, 47 Misc. 28, or 95 Supp. 206 711 Burger v. Burger, 111 N. Y. 523, 19 N. E. 99, 21 N. E. 50 .... Burgess v. Badger, 82 Hiui, 488, 31 Supp. 614 Burke v. Valentine, 52 Barb. 412 Burnham v. Comfort, 108 N. Y. 535, 2 Am. St. Rep. 562, 15 N. E. 710 Burnham v. Comfort, 37 Hun, 216, etc Burns ads. Van Cleaf, 133 N. Y. 540, 30 N. E. 661 Burt V. Burt, 41 N. Y. 46 Burton's Will, Matter of, 4 Misc. 512, or 25 Supp. 824 Burr, Matter of, 116 A. D. 518, 101 Supp. 776 Burr, Matter of, 48 Misc. 56, or 96 Supp. 225; rev'd on other point 118 A. D. 482, 104 Supp. 29 294, 607, 392, 527, 579, Burr ada. Forsyth, 37 Barb. 540 Burr ads. Thayer, 201 N. Y. 155, 94 N. E. 604 Burr ads. Wiggins, 54 Misc. 149, 105 Supp. 649 Burrell ads. Simmons, 8 Misc. 388, or 28 Supp. 626 58 Burritt ads. HoUister, 14 Hun, 291 Burrows ads. Ferris, 34 Him, 104, aff'd 99 N. Y. 616 Burrows ads. Glenn, 37 Hun, 602 Busch, Matter of, 87 Misc. 239, 150 Supp. 419 Bush Co. ads. Alfson, 182 N. Y. 393, 108 Am. St. Rep. 815, 75 N. B. 230 Bushbey, Matter of, 59 Misc. 317, 112 Supp. 262 Bushby v. Berkeley, 153 A. D. 742, 138 Supp. 831 Bushe V. Wright, 118 A. D. 320, 103 Supp. 410; aff'd 195 N. Y. 509, 88 N. E. 1116 Bushnell v. Carpenter, 92 N. Y. 270 Butler, Matter of, 66 Misc. 409, 123 Supp. 279 242 Butler, Matter of, 38 N. Y. 397 Butler v. Butler, 91 A. D. 327, or 86 Supp. 586 Butler ads. Duneklee, 30 Misc. 58, or 62 Supp. 921 728 948 113 48 70 597 598 39 259 260 465 949 583 266 668 688 78 92 620 129 450 145 11 427 820 590 246 262 265 062 TABLE OF CASES Eeferences are to pages. Butler v. Johnson, 111 N. Y. 204, 18 N: E. 643 151 281 Butler V. Townsend, 84 Hun, 100, 31 Supp. 1094 552 Butler V. Weeks, 12 Misc. 192, 33 Supp. 1090 664 Butman, Matter of, 130 A. D. 156, 114 Supp. 533 992 Buttacavolt, Est. of, N. Y. L. J., Sept. 5, 1914 754 Butterfield, Matter of, 161 A. D. 506, or 146 Supp. 671, affd 211 N. Y. 395, 105 N. E. 830 . . .80 81 Butterfield v. Cowing, 112 N. Y. 486, 20 N. E. 369 632 Byron, Matter of, 61 Hun, 278, 16 Supp. 760 973 Byrne ads. Deery, 120 A. D. 6, or 104 Supp. 836 902 Cadwalader, Matter of, 79 Misc. 200, or 139 Supp. 713 aff'd 144 Supp. 1121 71 Cady, Matter of, 36 Hun, 122, aff'd 103 N. Y. 678, 9 N. E. 442 570 Caffrey, Matter of, N. Y. L. J., May 15, 1916 498 Caflisch, Est. of, N. Y. L. J., Jan. 19, 1916 272 Cahen ads. Meyer, 111 N. Y. 270, 18 N. E. 852, 1 E. S. 749, 84 44 Calanan v. McClure, 47 Barb. 206 281 Caldwell, Matter of, 188 N. Y. 115, 80 N. E. 663 228, 229, 232, 427 Calhoun ads. Auburn Seminary, Trustees of, 25 N. Y. 422 . .448, 498, 502 Calkins ads. Darrow, 154 N. Y. 503, 48 L.E.A. 299, 61 Am. St. Eep. 637, 49 N. E. 61 112 Callahan, Matter of, 152 N. Y. 320, 46 N. E. 486 277 Callahan, Matter of, 66 Hun, 118, 20 Supp. 824; dism'd 139 N. Y. 51, 34 N. E. 756 366, 934, 961 Callahan ads. Dunphy, 126 A. D. 11, or 110 Supp. 179 981 Callanan v. Keenan, 158 A. D. 84, 142 Supp. 561 141 Callas, Est. of, N. Y. L. J., Sept. 25, 1915 402 Cameron, Matter of, 47 A. D. 120, or 62 Supp. 187; aff'd 166 N. , Y. 610, 59 N. E. 1120 180 Cameron ads. Hopkins, 34 Misc. 688, 70 Supp. 1027 45 Camp, Matter of, 50 Hun, 389, 3 Supp. 335 , 777, 778 Camp, Matter of, 91 Hun, 204, or 3« Supp. ,1123 785 Camp V. Camp, 18 Hun, 217 63 Camp, Matter of Petition of, 126 N. Y. 377, 27 N. E. 799 48, 743, 777 Camp V. Smith, 117 N. Y. 354, 22 N. E. 1044 351 Campbell, Matter of, 192 N. Y. 312, 18 L.E.A.(N.S.) 606, 85 N. E. 392 154, 160, 164 Campbell, Matter of, 21 Misc. 133, or 47 Supp. 29 373 Campbell, Matter of, 170 N. Y. 84, 62 N. E. 1070 447 Campbell, Matter of, 96 A. D. 561, 89 Supp. 569 69 Campbell, Matter of, 35 Misc. 572, 72 Supp. 55, aff'd 67 A. D. , 627, 73 Supp. 1130 461 Campbell, Matter of, 55 Misc. 469, 106 Supp. 677 245, 914 Campbell, Matter of, 87 Misc. 83, or 150 Supp. 416 466 Campbell, Matter of, 88 Hun, 374, or 34 Supp. 831 517 Campbell ads. Adee, 79 N. Y. 52 80, 81 Campbell ads. Hutchinson, 13 Misc. 152, 34 Supp. 82 544 Campbell ads. Leahy, 70 A. D. 127, 75 Supp. 72 290 Canaday ads. Simon, 53 N. Y. 298, 13 Am. Rep. 523 35 Canfield v. Crandall, 4 Dem. Ill 72, 73 Cantwell ads. Horton, 108 N. Y. 255, 15 N. E. 546 519 Cantwell ads. Wead, 36 Hun, 528 520 Capria, Est. of, 89 Misc. 101, or 151 Supp. 385 253 Carey, Matter of, 11 A. D. 289, or 42 Supp. 346 250 Carey, Matter of, 24 A. D. 531, or 49 Supp. 32 999 Carey ads. Peck, 27 N. Y. 9 . .440 499, 557 Carey, Matter of v. Thorne, 63 Misc. 489, 118 Supp. 504 667 Carey ads. Tobin, 34 Hun, 431 . . 748 Carpenter v. Bonner, 26 A. D. 462, or 50 Supp. 298 93 Carpenter v. Buffalo General Elec- tric Co. 213 N. Y. 101, 106 N. E. 1026 56, 58, 76 77 Carpenter ads. Bushnell, 92 N. Y. 270 596 Carpenter v. Newland, 92 Misc. 596, 156 Supp. 438 138 TABLE OF CASES Eeferences are to pages. XIX Carpenter v. Taylor, 164 N. Y. 171, 58 N. E. 53 428 Carr, Matter of, 24 Misc. 143, 53 Supp. 555 601 Carr v. Anderson, 6 A. D. 6, or 39 Supp. 746 46, 47 Carr ads. Bostwick, 165 A. D. 55, or 151 Supp. 74 153 Carr ads. Bostwick, N. Y. L. J., Dec. 31, 1914 (App. Div. 2d Dept.) 142 Carr ads. Fox, 16 Hun, 434 246 Carr ads. Mahaney, 175 N. . Y. 454, 67 N. E. 903 25 Carroll, In re, N. Y. L. J., June 16, 1915 547 Carroll ads. Briggs, 117 N. Y. 288, 22 N. E. 1054 330 Carroll v. Carroll, 60 K. Y. 121 70, 197 Carroll v. Collins, 6 A. D. 106, or 40 Supp. 54 19 Carson, Est. of, N. Y. L. J., Oct. 9, 1915 837 Carter, Matter of, 74 Misc. 1, or 133 Supp. 720 163 Carter v. Board of Education, 68 Hun, 435, or 23 Supp. 95, aff'd 144 N. Y. 621, 39 N. E. 628 . . 619 Carter ads. Churchill, 15 Hun, 385, 902 Carter ads. "Westphel, 1 Misc. 403, 20 Supp. 945 552 Carter ads. Zapf, 90 A. D. 407, or 86 Supp. 175 964 Cartledge ads. Hull, 18 A. D. 54, 45 Supp. 450 537 Carver ads. Billings, 54 Barb. 40 925 Cary, Matter of, 77 Misc. 602, or 138 Supp. 682 ; 826 Case, Matter of, 122 A. D. 343, 106 Supp. 1086 112 Case, Matter of, 214 N. Y. 199, 108 N. E. 408 216 Casey v. Auburn Telephone Co., 155 A. D. 66, or 139 Supp. 579 145 Casey v. Casey, 161 A. D. 427, 146 Supp. 348 155 Cashman, Matter of, 62 Misc. 598, 116 Supp. 1128 284 Oasoni v. Jerome, 58 N. Y. 315 91, 198, 202, 203, 803, 804, 809 Cassidy v. McFarland, 139 N. Y. 201, 34 N. E. 893 ... . . . . 893, 957 Caswell ads. Linthicum, 19 A. D. 541, 46 Supp. 610, aff'd 160 N. Y. 702, 57 ]Sr. E. 1115 604 Caswell ads. Rhodes, 41 A. D. 229, or 58 Supp. 470 395 Catherwood, Est. of, N. Y. L. J., Mch. 20, 1915 715 Catholic Mutual Benefit Associa- tion ads. Brown, 249 Catlin, Est. of, 89 Misc. 93, 151 Supp. 254 517 Caulfleld ads. Fitzmahoney, 87 Hun, 67, or 33 Supp. 876 278 CauUield v. Sullivan, 85 N. Y. 153 471, 478 Cavana ads. Grain, 36 Barb. 410 38, 45 Cavanaugh, Matter of, 72 Miss. 584, 131 Supp. 982 479 590, 852, 937, 954 Cavanaugh v. O'Neill, 20 Misc. 233, 45 Supp. 489 925 Caw V. Robertson, 5 N. Y. 125 . . 509 C. B. & Q. R. R. Co. ads. Title Guarantee & Trust Co., 123 N. Y. 37, 25 N. E. 198 .531, 672 Centre v. Finch, 22 Hun, 146 809, 813 Central Tr. Co. v. Skillin, 154 A. D. 227, 138 Supp. 884 76 Central Union Gas Co. v. Brown- ing, 210 N. Y. 10, 103 N. E. 822 238 Chadeayne ads. Clock, 10 Hun, 97 114, 402 Chamberlain, Matter of, 140 N. Y. 390, 37 Am. St. Rep. 568, 35 N. E. 602 239 Chamberlain v. Chamberlain, 71 N. Y. 423 14 Chamberlain v. Chamberlain, 43 N. Y. 424 38 Chamberlain v. Dunlop, 126 N. Y. 45, 22 Am. St. Rep. 807, 26 N. E. 966 109 540 Chamberlin v. Gleason, 163 N. Y. 214, 57 N. E. 487 648 Chanler v. N. Y. Elevated R. R. Co., 34 A. D. 305, 54 Supp. 341 343 Chapin ads. Kohn, 152 N. Y. 305, 46 N. E. 489 644 Chapman, Est. of, N. Y. L. J., Feb. 27, 1915 516 Chapman, Matter of, 32 Misc. 187, or 66 Supp. 235; aff'd 167 N. Y. 619, 60 N. E. 1108, and 59 A. D. 624, 69 Supp. 1131 649 Chapman ads. Betsinger, 24 Hun, 15, aff'd 88 N. Y. 487 14, 400 Chapman v. Tibbsts, 33 N. Y. 289 709 Chapman ads. Wickwire, 15 Barb. 302 160 TABLE OF CASES Eeferences are to pages. Chase, Matter of, 32 Hun, 318 . . 183 Chase, Matter of, 38 Misc. 622, or 78 Supp. 215 326 Chase, Matter of, 40 Misc. 616, or 38 Supp. 62 675 Chemical National Bank ads. Petersen, 32 N. Y. 21 140 Cheeney v. Arnold, 18 Barb. 434, aff'd 18 N. Y. 434 503, 509 Cheney v. Arnold, IS N. Y. 346, 69 Am. Dec. 609 13 Chemung Canal Bank, The v. Judson, 8 N. Y. 254 831 Chester v. Buffalo Car. Mfg. Co., 70 A. D. 443, or 75 Supp. 428 668 Chesterman, Matter of, 75 A. D. 573, 78 Supp. 345 995 Child ads. Cornell, 170 A. D. 240, 156 Supp. 449 48, 49, 60 61 Children's Aid Society v. Lever- idge, 70 N. Y. 387 509 Childa V. Childs, 68 Misc. 472, or 124 Supp. 550 822 Childs V. Childs, 150 A. D. 656, 135 Supp. 972 379 Child's Executor, ads. Voorhis, 17 N. Y. 354 Ill Chilson ads. Eeed, 142 N. Y. 152, 36 N. E. 884 889 Chipman v. Montgomery, 63 N. Y. 221 819 Chisolm V. Hamersley, 114 A. D. 565, or 100 Supp. 38 412, 670 Chisolm V. Toplitz, 82 A. p. 346, or 82 Supp. 1081, afi'd 178 N. Y. 599, 70 N. E. 1096 92 Chittenden, Matter of, 76 Misc. 92, 136 Supp. 953 191 Choate, Matter of, 105 A. D. 356, 94 Supp. 176 555 Chorrmann v. Bachmann, 119 A. D. 146, or 104 Supp. 151 673 Chouteau v. Suydam, 21 N. Y. 61, 94 N. E. 195 278 Chouteau v. Suydam, 21 N. Y. 179 279, 540 Chrystie, Matter of, 59 Hun, 153, 13 Supp. 202,,aff'd 133 N. Y. 473, 31 N. E. 515 93 Churchill v. Carter, 15 Hun, 385 902 Churchill ads. Despard, 53 N. Y. 192 49, 72, 530 Churchill ads. Scofield, 72 N. Y. 565 809 Cimorelli, Matter of, 91 Misc. 604, or 155 Supp. 509 31 Ciotto, Matter of, 105 A. D. 143, 93 Supp. 973 189 City of Johnstown v. Wade, 157 N. Y. 50, 51 N. E. 397 959 City of N. Y., Matter of, 200 N. Y. 138 993 City of N. Y. V. Beers, 163 A. D. 495, 148 Supp. 438 647 City of N. Y. ads. Cunningham, 162 A. D. 851, 148 Supp. 170 95 City of New York v. Goss, 124 A. D. 680, 109 Supp. 151 116 City of New York v. U. S. Trust Co., 78 A. D. 366, or 79 Supp. 1010, aff'd 178 N. Y. 551, 70 N. E. 1097 304 City of Philadelphia ads. MuUer, 118 A. D. 276, 103 Supp. 387 632 Citizens' Central National Bank V. Toplitz, 113 A. D. 73, or 98 Supp. 826, aff'd 188 N. Y. 634, 81 N. E. 1162 366, 605 Citizens' Saving's Bank of Jeffer- son, Texas ads. Jamison, 85 N. Y. 546 936 Crittenden v. Fairehild, 41 N. Y. 289 342 Clapp, Matter of, 30 Misc. 395, 36 Supp. 1096 380 Clapp V. Fullerton, 34 N. Y. 190, 90 Am. Dee. 681 952 Clare v. Mutual Life Ins. Co., 201 N. Y. 492, 35 L.R.A.(N.S.). 1123, 95 N. E. 1075 779 Claflin Co. ads. Woodruff, 198 N. Y. 470, 28 L.R.A.(N.S.) 440, 91 N. E. 1103, 19 Ann. Cas. 791 147 Clark, Matter of, 40 Hun, 233 .. . 514 Qark, Matter of, 16 Misc. 405, 37 Supp. 722 545 Clark, Matter of, 75 Hun, 471, 27 Supp. 681 501 Clark, Matter of, 25 Misc. 281, or 55 Supp. 426 793 Clark, Matter of, 36 Hun, 301 783, 971 Clark, Matter of, 168 N. Y. 427, 61 N. E. 769 898 Clark ads. Brown, 77 N. Y. 369 465, 483 Clark V. Clark, 147 N. Y. 639, 42 N. E. 275 630 Clark V. Coe, 52 Hun, 379, 5 Supp. 243 267 Clark ads. Davis, 87 N. Y. 623 957 958 Clark ads. Gill, 31 Misc. 337, or 65 Supp. 40.6,. affd 54 A. D. 617, 66 Supp. 1132 899 Clark ads. Harrison, 20 Hun, 404 805, 911 TABLE OF CASES References are to pages. ZXl Clark ads. Harrison, 87 N. Y. 572 803, 838 Clark V. Kingsley, 37 Hun, 246 . . 599 Clark ads. Metcalf, 41 Barb. 45 140, 923 Clark V. Poor, 73 Hun, 143, or 25 Supp. 908, diam'd 144 N. Y. 699, 39 N. E. 857 481 Clark V. Scovill, 191 N. Y. 8, 83 N. E. 659 284 Clark V. Truslow, 161 A. D. 675, 146 Supp. 750 148, 604 Clark ads. Voshall, 123 A. D. 136, 108 Supp. 313 317 Clark ads. Williams, 82 A. D. 199, 81 Supp. 381 708 Clarke, Matter of, 57 A. D. 430, or 68 Supp. 243 284 Clarke, Matter of, 131 A. D. 688, or 116 Supp. 101, aflf'd 195 N. Y. 613 48 Clarke, Est. of, N. Y. L. J., Dec. 12, 1914 904 Clarke v. Sawyer, 2 N. Y. 498. . . 519 Claussen ads. Odell, 120 A. D. 535, 104 Supp. 1104 339 Clausen v. Puvogel, 114 A. D. 455, or 100 Supp. 49 430 Clayton v. Wardell, 4 N. Y. 230 13, 15 Cleveland, Matter of, 28 Misc. 369, or 59 Supp. 985 10 Cliflford V. Morrell, 22 A. D. 470, or 48 Supp. 83 93 Cline V. Sherman, 78 Hun, 298, or 29 Supp. 909; aff'd 144 N. Y. 601, 39 N. E. 635 393, 636 Clock y. Chadeayne, 10 Hun, 97 114, 402 Close V. Earmers' Loan and Trust Co., 195 N. Y. 92, 87 N. E. 1005 798, 801 Clover ads. Montelvan, 32 Barb. 190 141 Clowes, Matter of, 163 A. D. 961, 148 Supp. 386 75 Clowes V. Van Antwerp, 6 N. Y. 466 782, 851 Cluff V. Day, 124 N. Y. 195, 26 N. E. 306 631 Clute, Matter of, 37 Misc. 710, or 76 Supp. 456 163 Clute V. Gould, 28 Hun, 348 406 Clutterbuck ads. Wheeler, 52 N. Y. 67 49, 60, 61 Coaekley v. Maher, 36 Hun, 157 . . 720 Coale V. Coale, 63 A. D. 32, 71 Supp. 214 295 Cobb V. Beardsley, 37 Barb. 192 . . 189 Cobb ads. Ford, 20 N. Y. 344 238 Cobb V. Hanford, 88 Hun, 21, or 34 Supp. 511 836 Coburn, Matter of, 9 Misc. 437, or 30 Supp. 383 514 Cochrane v. Hawver, 54 Hun, 556, 7 Supp. 907 117 Cockburn ads. Van Buren, 14 Barb. 118 498 Coddington, Eat. of, N. Y. L. J., Nov. 19, 1915 70O Coddington v. McCormack, 184 N. Y. 467, 77 N. E. 979 69 Coe, Matter of, 55 A. D. 270, or 66 Supp. 784 937 Coe ads. Clark, 52 Hun, 379, 5 Supp. 243 267 Coffin V. Coffin, 23 N. Y. 9 ... 449, 455 557 Cogan V. McCabe, 23 Misc. 739, 52 Supp. 48 669 Coggshall V. Green, 9 Hun, 471 161 Cohen ads. Audrade, 32 Hun, 225, aff'd 99 N. Y. 608 786 Cohen v. Congregation Shearith Israel, 114 A. D. 117, or 99 Supp. 732, aff'd 189 N. Y. 528, 82 N. E. 1125 227 Cohen ads. Empire State Surety Co., 93 Misc. 299, 156 Supp. 935 719 Cohen ads. Moss, 158 N. Y. 240, 53 N. E. 8 619 Cohn, Matter of, 78 N. Y. 248 . . 213 Cohnfeld v. Tanenbaum, 176 N. Y. 126, 98 Am. St. Eep. 653, 68 N. E. 141 706 Coit ads. Freeman, 27 Hun, 447 231 780 Coit V. Grey, 25 Hun, 444 46 Colaizzi, Matter of N. Y. L. J., Jan. 30, 1915 917 Colaizzi, Est. of, N. Y. L. J., Jan. 30, 1915 936 Colaizzi, Est. of, N. Y. L. J., May 29, 1915 142 Cole, Matter of, 85 Misc. 630, 148 Supp. 1099, or 148 Supp. 1099 293 294 Cole V. Andrews, 176 N. Y. 374, 68 N. E. 641 256 Cole V. Gourley, 79 N. Y. 527 700 757 Cole ads. Heath, 15 Hvm, 100 . . 456 Cole V. Niles, 3 Hun, 376, aff'd 62 N. Y. 636 600 Cole ads. Pope, 55 N. Y. 125, 14 Am. Kep. 198 Ill TABLE OF CASES JCeterences are to pages. Cole V. Tarpenning, 27 Hrni, 111 975 Coleman ads. Darrow, People ex rel., 119 N. Y. 137, 7 L.E.A. 407, 23 N. E. 488 646 Coleman v. St. Michael's Protest- ant E. Church, 170 A. D. 658, 155 Supp. 1036 227 Coles ads. Harring, 2 Bradf. Surr. 349 50 Coley V. Tallnian, 107 A. D. 445, or 95 Supp. 270; aff'd 186 N. Y. 569, 79 N. E. 1103 .... 717 Colgan V. Dunne, 50 Hun, 443, or 3 Supp. 309 311 Collier v. Miller, 62 Hun, 99, or 16 Supp. 633; aff'd 137 N. Y. 332, 33.N. E. 374 392 Collier v. Munn, 41 N. Y. 143 . . 404 Collin ads. Skidmore, 8 Hun, 50 110 Collins ads. Carroll, 6 A. D. 106, or 40 Supp. 54 20 Collins V. Beebe, 54 Hun, 318, or 7 Supp. 442 923 Collins, Est. of, N. Y. L. J., Aug. 4, 1915 860 Collins, People ex rel. v. Dono- hue, 70 Hun, 317, or 24 Supp. 437 804, 810 Collins V. Russell, 96 A. D. 136, or 89 Supp. 414, aff'd 184 N. Y. 74, 112 Am. St. Eep. 569, 76 N. E. 731, 6 Ann. Cas. 92 47 Collyer, Matter of, 124 A. D. 16, 108 Supp. 600 ... 794 Collyer v. Collyer, 110 N. Y. 486, 6 Am. St. Eep. 405, 18 N. E. 110 469, 972 Columbia Steam Navigation Co., ads. Leonard, 84 N. Y. 48, 38 Am. St. Rep. 491 146 Columbus Watch Co. v. Hoden- pyle, 61 Hun, 557, or 16 Supp. 337; aff'd 135 N. Y. 430, 32 N. E. 239 542, 923 Colvin V. Young, 81 Hun, 116, or 30 Supp. 689 616 Com. Gen. Life Ins. Co. ada. Steele, 22 Misc. 249, or 49 Supp. 647, aff'd 160 N. Y. 703, 37 N. E. 1125 259 Comer, Matter of, 72 Miac. 321, or 131 Supp. 187 371 Comfort ads. Burnham, 108 N. Y. 535, 2 Am. St. Rep. 562, 15 N. E. 710, 37 Hun, 216 ... 597, 508 Commercial Trust Co. ads. Levy, 86 Misc. 10, 148 Supp. 173 .... 528 Commissioners of Taxes ads. Con- dert. People ex rel., 31 Hun, 235 ., 551 Comparetto, Matter of, 88 Misc. 369,r or 151 Supp. 961 169 Comstock ads. Gilbert, 93 N. Y. 484 287 Conant v. Wright, 22 A. D. 216, or 48 Supp. 422; aff'd 162 N. Y. 635, 57 N. E. 1108 679 Conant v. Wright, 19 Misc. 321, 44 Supp. 727 675 Condon ada. Griffin, 18 Misc. 236, 41 Supp. 380 230 Congregation Shearith Israel ads. Cohen, 114 A. D. 117, or 99 Supp. 732, aff'd 189 N. Y. 528, 82 N. E. 1125 227 Congregation S. L. A. Sakoler v. Sindrack,: 15 A. D. 82, or 44 Supp. 295 230 CongregationaluUnitarlan Society, -Matter of, 34 A. D. 387, or 54 Supp. 269 374 Congregational Unitarian Soc. v. Hale, 29 A. D. 396, or 51 Supp. 704 621 Conklin ads. Darde, 73 A. D. 590, 77 Supp. 39 984 Conklin ads. Le Brantz, 39 Misc. 715, 80 Supp. 967 481 Conkling v. Brown, 51 Barb. 265 61 Conkling ads. N. Y. Life Ins. & Tr. Co., 159 A. D. 337, 144 Supp. 638 826 Conkling ads. Vose, 153 A. D. 40, 137 Supp. 1066, dism'd 209 N. Y. 521, 102 N. E. 1116 540 Conkling v. Weathervrax, 173 N. Y. 43, 65 N. E. 855 617 Conlon ads. Haughian, 39 Misc. 584, 80 Supp. 586 826 Conlon ads. McDermott, 153 A. D. 69, or 137 Supp. 1105 292 Connell, Matter of, 92 Misc. 324, 155 Supp. 397 11 175, 192 Connell, Matter of, 75 Misc. 594, or 136 Siapp. 166 481 Conner v. Watson, 1 A. D. 54, or 37 Supp. 71 42 Connoly, Est. of, 88 Misc. 405, 150 Supp. 559 754 Conrie v. Kleman, 162 A. D. 570, 147 Supp. 589 344 Conroy, Matter of, N. Y. L. J., Nov. 17, 1914 208 Conselus, Matter of, 95 N. Y. 340 380, 549 TABLE OF CASES References are to pages. Consolidated Telegraph & El. Sub- way Co. ads. Boffe, 171 A. D. 392, 157 Supp. 318 144 Continental Life Ins. Co. ads. Attoriey-General, 93 N. Y. 45 899, 935, 960 Conway v. Cooney, 111 A. D. 864, or 98 Supp. 171 292 Cook, Matter of, 187 N. Y. 253, 79 N". E. 991 50 56, 57, 76, 77 Cook, Matter of, 68 Hun, 280, or 22 Supp. 769 918 Cook, Matter of, 33 Misc. 672, 68 Supp. 938 929 Cook V. Lowry, 29 Hun, 20, aff'd 95 N. Y. 103 414 643 Cook V. Stockwell, 206 N. Y. 481, 300 N. E. 131, Ann. Cas. 1914B, 491 : . . . 424 Cook V. White, 43 A. D. 388, or 60 Supp. 153; aff'd 167 N. Y. 588, 60 N. E. 1109 440 484 Cooke V. County of Kings, 97, N. Y. 421 339 Cooke V. Meeker, 36 N. Y. 15 . . 615 Cooke V. Piatt, 98 N. Y. 35 93 327 Cookman v. Stoddard, 132 A. D. 485, or 116 Supp. 901 ' 804 Coombs, Matter of, 62 Misc. 597, 116 Supp. 1129 670 Coombs V. Joerg, 125 A. D. 615, or 110 Supp. 6 278 Cooney ads. Conway, 111 A. D. 864, or 98 Supp. 171 292 Cooney v. English, 86 Misc. 292, 148 Supp. 285 227 Coope, Matter of, 53 Misc. 509, or 103 Supp. 431 474 Cooper, Matter of, 82 MiSc. 324, or 144 Supp. 189 377 669 Cooper ads. Bevan, 72 N. Y. 317 829 Cooper ads. Grout, 9 Hun, 326 . . 41 42 Cooper V. Illinois Central R. E. Co., 38 A. D. 22, 57 Supp. 925 269, 633 Cooper ads. Shumway, 16 Barb. 556 70 Cooper V. Whitney, 3 Hill, 95 . . 39 Cope ads. Washbon, 144 N. Y. 287, 39 N. E. 388 838 Corbett-ads. Johnson, 11 Page, Ch. 265 33 Corbin, Matter of, 101 A. D. 25, or 91 Supp. 797 647 973 Corbin v. Baker, 167 N. Y. 128, 60 N. E. 332 • 645 Corbin ads. Borrowe, 31 A. D. 172, or '52 Supp. 741; aff'd 165 N. Y. 634, 59 N. E. 1119 826 Cordes, Matter of, N. Y. L. J., Feb. 24, 1915 422 Corey v. The People, 45 Barb. 262 34 Cornelius ads. Dodge, 168 N. Y. 242, 61 N. E. 244 459 Cornell, Matter of, 17 Misc. 468, 41 Supp. 255 554, 561 Cornell ads. Rudd, 171 N. Y. 114, 63 N. E. 823 397 Cornell v. Child, 170 A. D. 240, 156 Supp. 449 48, 49, 60, 61 Cornell ads. Smith, 111 N. Y. 554,. 19 N. E. 271 550 Cornell University ads. McGraw, Matter of, 45 Hun, 354, aff'd 111 N. Y. 66, 2 L.E.A. 387, 19 N. E. 233, and 136 U. S. 152, 34 L. ed. 427, 10 Sup. Ct. Rep. 775 948 Cornes v. Wilkin, 14 Hun, 428, aff'd, 79 N. Y. 129 . . 273, 276, 285 Cornne ads. Davis, 151 N. Y. 172, 45 N. E. 449 399 Cornwell v. Deck, 8 Hun, 122 . . 259 Correll v. Lauterbach, 12 A. D. 531, or 42 Supp. 143, aff'd 159 N. Y. 553, 54 N. E. 1089 .... 339 Corse ads. Ireland, 67 N. Y. 343 431 Coryell v. Scott, 4 A. D. 429, or 39 Supp. 508 494 Cosgrove, Matter of, 31 Misc. 422, or 65 Supp. 570 507 Cossey, Matter of, 51 A. D. 619, 64 Supp. 591, aff'd 166 N. Y. 623, 59 N. E. 1118 968 Costea, Est. of, N. Y. L. J., Julv 24, 1915 ". 945 Costello V. Costello, 209 N. Y. 252, 103 N. E. 148 . . 110, 543, 646 Costello ads. Mclntyre, 47 Hun, 289 36 Coster V. Coster, 125 A. D. 516, 109 Supp. 798 679, 682 Coster ads. Fish, 28 Hun, 64, aff'd 92 N. Y. 627 '. 94 Cottle V. Vanderhayden, 59 Barb. 622 166 Cottrell, Matter of, 95 N. Y. 329 503 Couch V. Delaplaine, 2 N. Y. 397 148 Coudert, Matter of, 92 Misc. 109, 155 Supp. 145 530 XXIV TABLE OP CASES Eeferences are to pages. Coudert, Matter of, 153 A. D. 196, 138 Supp. 296 567 Coudert, People ex rel. v. Commis- sioners of Taxes, 31 Hun, 235 551 Coughlin, Matter of, 171 A. D. 662 904 Coughlin V. Fay, 68 Hun, 521, or 22 Supp. 1095 721 Courvoisier ads. Ayers, 101 A. D. 97, or 91 Supp. 549 93 Coutant, Matter of, 24 Misc. 350, 53 Supp. 713 991 County of Kings, ads. Cooke, 97 N. y. 421 339 County of Kings ads. Prince, 97 N. Y. 421 339 County of Tompkins v. IngersoU, 81 A. D. 344, or 81 Supp. 242, aff'd 177 N. y. 543, 69 N. B. 1132 102 Cowdrey ads. Croner, 139 N. Y. 471, 36 Am. St. Eep. 716, 34 N. E. 1061 465 Cowen, Matter of, 130 A. D. 364, 114 Supp. 888 300 Cowing ads. Butterfield, 112 N. Y. 486, 20 N. E. 369 632 Cox V. Schermerhorn, 18 Hun, 16 418 Cox V. Schermerhorn, 12 Hun, 411 938 Cozine, Matter of, 104, A. D. 182, or 93 Supp. 557 382 Cozine, Matter of, 113 A. D. 22, or 98 Supp. 1041 295 Craft ads. Lambert, 98 N. Y. 342 276 277 Cragg ads. Riggs, 89 N. Y. 479 829 359 Craig, Matter of, 171 A. D. 218, 157 Supp. 310 987 Craighead ads. Gay, 6 A. D. 463, or 39 Supp. 688 140 Crain v. Cavana, 36 Barb. 410 . . 38 45 Cramsey, Matter of, 68 Misc. 3, 124 Supp. 894 692 Crandall ads. Canfield, 4 Dem. Ill 72 73 Crandall ads. Davis, 101 N. Y. 311, 4 N. E. 721 .. 594, 603, 604, 605 Crane v. Decker, 22 Hun, 452 . . 636 Crary ads. The Bank of Lansing- burgh, 1 Barb. 542 239 Graver v. Jermain, 17 Misc. 244, 40 Supp. 1056 756 Crawford, Matter of, 80 Misc. 615, or 142 Supp. 1032 462 Crawford, Matter of, 113 N. Y. 560, 5 L.E.A. 71, 21 N. E. 692 411, 597 Crawford ads. Ferguson, 70 N. Y. 253 .'.. 838 Crawford v. McCarthy, 159 N. Y. 514, 54 N. E. 277 592 Crawford v. Nassoy, 173 N. Y. 163, 65 N. E. 962 245 Crawford v. Ormsbee, 6 A. D. 50, or 39 Supp. 740 283 Crayton, Matter of, 37 Misc. 696, 76 Supp. 448 919 Cregan, Matter of, N. Y. L. J., July 31, 1915 968 970 Crickard, Matter of, 52 Misc. 63, or 102 Supp. 440 751 Cridler, Matter of, 68 Misc. 412, 124 ;Supp. 628 971 Cridler v. Curry, 66 Barb. 336 . . 80 Crispell ads. Maisenhelder, 105 A. D. 219, or 94 Supp. 707 . . 288 Crocker v. Mulligan, 154 A. D. 711, 139 Supp. 381 467 Crocker ads. Niles, 88 Hun, 312, or 34 Supp. 761 982 Croft v. Williams, 88 N. Y. 384 532 Cromwell ads. Potter, 40 N. Y. 287, 100 Am. Dec. 485 237 Croner v. Cowdrey, 139 N. Y. 471 36 Am. St. Eep. 716, 34 N. E. 1061 465 Crosby, Matter of, 85 Misc. 67», or 148 Supp. 1045 11 Cross, Matter of, 92 Misc. 89, 155 Supp. 1020 729 Grossman v. Grossman. 95 N. Y. 145 433, 489 Grossman, Est. of, N. Y. L. J., June 12, 1915 551 Crouch, Matter of, 41 Misc. 349, or 84 Supp. 936 989 Grouse v. Wilson, 73 Hun, 353, 26 Supp. 923 823 Crucible Steel Co. ads. Ziemer, 99 A. D. 169, or 90 Supp. 962 838 Cruger, Matter of, 36 Misc. 477, 73 Supp. 812 472 Cruikshank, Matter of, 40 Misc. 325, or 81 Supp. 1029 793 GuUen, Est. of, N. Y. L. J., July 9, 1915 385, 388 Cummings v. Banks, 2 Barb. 602 102 Cunningham, Matter of, 76 Misc. 117, 136 Supp. 325 76 Cunningham, Matter of, 87 Misc. 172, or 150 Supp. 431 967 Cunningham v. City of N. Y., 162 A. D. 851, 148 Supp. 170 95 TABLE OF CASES References are to pages. XXV Cunningham v. Knight, 1 Barb. 399 37, 45 Cunningham v. Parlcer, 146 N. Y. 29, 48 Am. St. Rep. 765, 40 N. E. 635 330 Ounnion, Matter of, 201 N. Y. 123, 94 N. B. 648, Ann. Gas. 1912A., 834 508 Curley ada. Murtha, 92 N. Y. 359 977 Curran ads. Abbott, 98 N. Y. 665 197, 570 Curry, Matter of, 25 Hun, 321 . . 250 Curry ads. Cridler, 66 Barb. 336 802 Curser, Matter of, 89 N. Y. 401 . . 167 Curtin, Matter of, 93 Misc. 394 728 Curtiss, Matter of, 74 Misc. 341, or 133 Supp. 1109; aff'd 142 Supp. 1107 668 Curtiss, Matter of, 15 Misc. 545, or 37 Supp. 580, aff'd 9 A. D. 285, 37 Supp. 586, 41 Supp. 1111 413, 415, 418, 527 583 Cutler, Est. of, N. Y. L. J., June 25, 1915 97 Cutler, Est. of, N. Y. L. J., Jan. 19, 1915 497, 904 Cutting, Matter of. No. 1, 38 A. D. 247, 56 Supp. 945 737 Cutting ads. Hamilton, 60 A. D, 293, or 70 Supp. 118 344 Czech V. Bean, 35 Misc. 729, or 72 Supp. 402 5, 6, 156 back V. Dack, 19 Hun, 630; modf'd 84 N". Y. 663 ....447, 953 D'Adamo, Matter of, 212 N. Y. 214, L.R.A.1915D, 373, 106 N. E. 81 168, 169 D'Adamo, Matter of, 94 Misc. 1, 157 Supp. 374 223, 403 Daggett, Matter of, 1 Misc. 248, or 22 Supp. 911 287 d'AgostinOj Matter of, 88 Misc. 371, or 151 Supp. 957 . . . .163, 169 Daiker ads. Suesens, 117 A. D. 668, 102 Supp. 919 781 Dailey, Matter of, 43 Misc. 552, or 89 Supp. 538 293, 593 Dale, Matter of, 56 Hun, 169, or 9 Supp. 396; aS'd 134 N. Y. 614, 32 N. E. 649 454, 499 Dalrymple v. Arnold, 21 Hun, 110 231 Damon, Est. of, N. Y. L. J., Apr. 29, 1915 580 Daniels, Matter of Application of, 71 Hun, 195, 24 Supp. 506 12 Dan Klefsen, Matter of, 171 A. D. 339, 157 Supp. 119 469 Darde v. Conklin, 73 A. D. 590, 77 Supp. 39 984 Darrow v. Calkins, 154 N. Y. 503, 48 L.R.A. 299, 61 Am. St. Rep. 637, 49 N. E. 61 112 Darrow, People ex rel. v. Cole- man, 119 N. Y. 137, 7 L.R.A. 407, 23 N. E. 488 112 Darling v. Arthur, 22 Hun, 84 . . 456 Darling v. Pierce, 15 Hun, 542 998 Darling v. Powell, 20 Misc. 240, 45 Supp. 794 539 Dart ads. Schenck, 22 N. Y. 420, 2 R. S. 93, § 58 419, 547 Datesgold, Est. of, N. Y. L. J., Mch. 23, 1916 272 Davenport, Matter of, 142 A. D. 41, 126 Supp. 693 193 Davenport, Matter of, 37 Misc. 455, or 75 Supp. 934 7 Davenport, Matter of, 67 A. D. 191, or 73 Supp. 653, aff'd 172 N. Y. 454, 65 N. E. 275 52 Davenport, Matter of, 43 Misc. 573, or 89 Supp. 506 888 Davenport, Matter of, 36 Misc. 475, 73 Supp. 810 81 Davey v. Presbyterian Hospital, 202 N. Y. 259, 95 N. E. 695, Ann. Cas. 1912D, 1238 226 Davidson v. Bose, 57 A. D. 212, or 68 Supp. 316 977 Davidson ads. Jones, People ex rel., 35 Hun, 471 927 Davies v. Davies, 129 A. D. 379, or 113 Supp. 872 980 Davis, Matter of, 60 Misc. 297, 113 Supp. 287 974 Davis, Matter of, 37 Misc. 326, or 75 Supp. 493 403 Davis, Matter of, 43 A. D. 331, or 60 Supp. 315 382, 541 Davis, Matter of, 45 Misc. 306, 92 Supp. 392 436, 493 Davis, Matter of, 48 Misc. 489, or 96 Supp. 1106 164, 170 Davis, Matter of, 105 A. D. 221, or 93 Supp. 1004; aff'd 182 N. Y. 468, 75 N. E. 530 . .482, 492, 493 Davis V. Clark, 87 N. Y. 623, 957, 958 Davis V. Cornue, 151 N. Y. 172, 45 N. E. 449 399 Davis V. Crandall, 101 N. Y. 311 4 N. E. 721 594, 603, 604, 605 Davis V. Davis, 27 Misc. 455, or 59 Supp. 223 468 Davis V. Gorton, 16 N. Y. 255 . . 282 Davis V. Kerr, 3 A. D. 322, or 38 Supp. 387 635, 637 TABLE OP CASES References are to pages. Davis V. Stover, 58 N. Y. 473 . . 301 Davis ads. Tillman, 95 N. Y. 17, 47 Am. Kep. 1 48, 70 Davis' V. Tremain, 205 N. Y. 236, 98 N. E. 383 519 Dawson v. Dawson, 10 Misc. 428, or 31 Supp. 78 36, 38 Day ads. Cluff, 124 N. Y. 195, 26 N. E. 306 631 Dayger, Matter of, 47 Hun, 127 450, 452 Dayton ads. Foland, 40 Hun, 563 107 Dean, Matter of, 86 N. Y. 398 . . 548 Dean, People ex rel. v. Markell, 72 Misc. 427, 131 Supp. 383 927 Dcbbe, Matter of, 66 Miac. 414, or 123 Supp. 287 242 De Brulatour ads. Robertson, 188 N. Y. 301, 80 N. E. 938 . . 408, 419, 668, 671 De Castro, Matter of, 32 Misc. 193, 66 Supp. 239 498 De Caumont v. Bogert, 36 Hun, 382 62 Decillis v. Mescelli, 152 A. D. 304, 136 Supp. 573 540 Deck ads. Cornwell, 8 Hun, 122 259 Decker ads. Crane, 22 Hun, 452 636 Decker v. Vreeland, 170 A. D. 234, 156 Supp. 442 442 De Crans \. Moore, 30 Misc. 303, or 63 Supp. 585 315 Deebold v. Oppermann, 111 N. Y. 531, 2 L.E,A. 644, 7 Am. St. Rep. 760, 19 N. E. 94, 692, 803, 806 Deeriug v. Pierce, 149 A. D. 10, or 132 Supp. 582 675 Deery v. Byrne, 120 A. D. 6y or 104 Supp, 836 902 De Forest, Matter of, 119 A. D. 782, or 104 Supp. 342, afl'd 189 N. Y. 544, 82 N. B. 1125 .... 303 Degaramo, Matter of, 86 Hun, 390, or 33 Supp. 502 247 Degen, Matter of, 89 Hun, 143, 34 Supp. 1137 953 Dego, Matter of, 36 Hun, 512, aff'd 102 N. Y. 724, 7 N. E. 819 918 De Groote ads. Moore, 158 A. D. 828, or 143 Supp. 873; dism'd 213 N. Y. 642, 107 N. E. 1082 822 de Haas, Matter of, 9 A. D. 561, 41 Supp. 686 504 de Haas, Matter of, 24 Misc. 420, 53 Supp. 733 913 Delabane v. McAlpin, 71 A. D. 591, or 76 Supp. 301 822 Delafleld v. Barlow, 107 N. Y. 535, 14 N. E. 498 342 Delaplaine, Matter of, 45 Hun, 225, or 19 N. C. 36 484 Delaplaine ads. Couch, 2 N. Y. 397 148 Delaware & Hudson Co., ads. Hoff- man, 85 Misc. 535, or 147 Supp. 475 145 Delaware, Lackawanna & West- ern K. R. Co. V. Gilbert, 44 Hun, 201, afif'd 112 N. Y. 673, 20 N. E. 416 539 Delgado, Matter of, 79 Misc. 590 or 141 Supp. 198 347 Del Genovese, Matter of, 169 A. D. 140, 154 Supp. 806 464 Delmore, Est. of, N. Y. L. J. Xov, 24, 1915 253 Delpart, Matter of, 27 Misc. 355, or 58 Supp. 768 455 Demming a.ds. Powell, 22 Hun, 235 519 Denehy v. McCloud, 21 Misc. 541, or 47 Supp. 714 978 Denike, Matter of, 48 Hun, 606, 1 Supp. 17 971 Denison v. Denison, 96 A. D. 418, or 89. Supp. 126, aff'd 183 N. Y. 505, 76 N. E. 1093 969 Denton, Matter of, 40 Misc. 326, 81 Supp. 1031; aff'd 88 A. D. 359, 84 Supp. 613 882 Denton, Matter of v. Sanford, 103 N. Y. 607, 9 N. E. 490 . . 537, 541, 553 Denton v. Manny, 8 Barb. 618, 37, 38 Denton v. Sanford, 39 Hun, 487 579 Denyse ads. Dugan, 13 A. D. 214, or 43 Supp. 308 717 Depau ads. Fowler, 26 Barb. 224 342 De Peyster ads. Hone, 106 N. Y. 645, 13 N. E. 778 , 980 De Pierris, Matter of, 79 Hun, 279, 29 Supp. 360 365 Deraismes v. Deraismea, 72 N. Y. 154 396, 647 Deraismes v. Dunham, 22 Hun, 86 688 Deraismes ads. Dunham," 166 N. Y. 607, 59 N. E. 903 617 Despaid v. Churchill, 53 N. Y. 192 49 72, 530 Dessauer, Est. of, N. Y. L. J., Dee. 24, 1915 787 De Stroeckl, Est. of, N. Y. L. J., Sept. 22, 1914 (N. Y. Surr.) 166 De Wert ads. Verplanck, 10 Hun, 611 63 TABLE OF CASES References are to pages. Dewey, Matter of, 153 N. Y. 63, 46 N. E. 1039 527 Devane v. Miller, 89 Misc. 297, or 152 Supp. 1060 901 Devlin ads. Meldon, 20 Misc. 56, or 45 Supp. 333 663 Devlin ads. Meldon, 31 A. D. 146, or 53 Supp. 172; aff'd 167 N. Y. 573, 60 N. B. 1116 637 Devoe, Matter of, 171 N. Y. 281, 57 L.R.A. 536, 63 N. E. 1102 . . 70 De Voe, Matter of, 107 A. D. 245, or 94 Supp. 1129, aff'd 185 N. Y. 536, 77 N. E. 1185 52 Dexter ads. Schlieder, 114 A. D. 417 or 99 Supp. 1005 720 Dey Ermand, Matter of, 24 Hun, 1 912 Diamond v. Wheeler, 80 A. D. 58, 80 Supp. 416 673 Diaper v. Anderson, 37 Barb. 168 772 Diaz, Matter of Probate of Will of, 50 N. Y. 88 443 Dibble, Est. of, N. Y. L. J., May 1 1915 552 Dieicens v. N. Y.' C. E. R.'Co., 23 N. Y. 158, 5 Am. Neg. Gas. 61 70 Dietz, Matter of, 132 A. D. 641, or 117 Supp. 461, dism'd 196 N. Y. 528, 89 N. E. 1098 681 Dietzel, Matter of, 36 A. D. 300, 55 Supp. 323 896, 942 Diez, Matter of Probate of Will of, 50 N. Y. 88 . .437, 438, 474, 483 Dillenbeck ads. Lockwood, 104 A. D. 71, or 93 Supp. 321 281 Dimon ads. Faburn, 20 A. D. 529 280 Dimond, Est. of, N. Y. L. J., Oct. 31, 1914 413 Di Lorenzo v. Dragone, 25 Misc. 29, or 54 Supp. 420 995 Disbrow ads. Baker, 18 Hun, 29, aff'd 79 N. Y. 631 643 Disbrow v. Disbrow, 46 A. D. Ill, or 61 Supp. 614; aff'd 167 N. Y. 606, 60 N. E. 1110 688 Disbrow v. Mills, 62 N. Y. 604 1005 Dissosway, Matter of, 91 N. Y. 235 925 Ditmas v. McKane, 92 A. D. 344, 86 Supp. 1083 996 Divane v. Miller, N. Y. L. J., Feb. 1, 1915 107 Dixon ads. Hiekey, 42 Misc. 4 . . 707 D. L. & W. R. R. Co. v. Gilbert, 44 Hun, 201, aff'd 112 N. Y. 673, 20 N. E. 416 543 D. L. & W. E. E. Co. ads. Preun- felker, 81 A. D. 67, 80 Supp. 701 901 Doane v. Mercantile Trust Co., 160 N. Y. 494, 55 N. E. 296 342 Dobie V. Armstrong, 160 N. Y. 584, 55 N. E. 302 497 Doblin, Matter of, N. Y. L. J., Dec. 23, 1914 723 Dodd V. Anderson, 197 N. Y. 466, 27 L.E.A.{N.S.) 336, 90 N. E. 1137, 18 Ann. Gas. 738 ..487. 495 Dodd ads. Taylor, 58 N. Y. 335 593 Dodge, Matter of, 105 N. Y. 585, 12 N. E. 759 .. 755 Dodge ads. Anderson, 158 S. D. 201, 143 Supp. 132 70S Dodge V. Cornelius, 168 N. Y. 242, 61 N. E. 244 459 Dodge ads. Harry, 66 Misc. 302, 123 Supp. 37 7, 11 Dodge V. Pond, 23 N. Y. 69 604 Dodge V. Stevens, 105 N. Y. 585, 12 N. E. 759 .755 Dodge & Stevenson Mfg. Go., Mat- ter of, 77 N. Y. 101 998 Dodge ads. Van Slooten, Matter of, 145 N. Y. 327, 39 N. E. 950 276, 277 Dodin V. Dodin, 16 A. D. 42, or 44 Supp. 800, aff'd 162 N. Y. 635, 57 N. E. 1107 58, 78 Doe V. Eoe, 2 Barb. 200 447, 448 Doheny, Matter of, 70 A. D. 370, or 75 Supp. 24, aff'd 171 N. Y. 691, 64 N. E. 1120 396, 647 Doig, Matter of, 125 A. D. 746, 110 Supp. 93 281, 911, 951 Dolan, Matter of, 88 N. Y. 309 332 Dolan ads. Tracy, 31 A. D. 24, or 52 Supp. 351 979 Dole V. Irish, 2 Barb. 639 843 Dbmeyer ads. Kittel, 175 N. Y. 205, 67 N. E. 433 248 Dominick ads. Parker, 105 A. D. 440, 94 Supp. 249 814 Dominick v. Stern, 79 Misc. 271, or 139 Supp. 59; aff'd 142 Supp. 1115 248 Donohue, Matter of, 88 Misc. 359, or 151 Supp. 1094 662 Donlon, Matter of, 66 Hun, 199, or 21 Supp. 226 916 Donohue ads. Collins, People ex rel., 70 Hun, 317, or 24 Supp. 437 804, 810 Doremus v. Doremus, 66 Hun, 111, 21 Supp. 13 41 TABLE OF CASES References are to pages. -Dorit, Matter of, v. Dority, 40 A. D. 236, or 57 Supp. 1073 . . 630 Dorsey, Matter of, 157 Supp. 662, 94 Misc. 566 513, -514 Doscher, Matter of, 165 A. D. 193, 151 Supp. 76 212, 213, 220, 579 Doty ads. Lane, 4 Barb. 530 541 Douglas, Matter of, 60 A. D. 64, or 69 Supp. 687 392, 415, 554 Douglas, Matter of, 52 A. D. 303, or 65 Supp. 103 915, 919 Douglas V. Yost, 64 Hun, 155, or 18 Supp. 830 590, 819 Douglass, Matter of, 38 Misc. 609, or 78 Supp. 103 447 Douglass V. Douglass, 70 Misc. 412, 128 Supp. 912 69 Douglass V. Ferris, 138 N. Y. 192, 34 Am. St. Eep. 435, 33 N. E. 1041 803, 805, 806, 828 Douglass v. Low, 36 Hun, 497 777 Dougherty, Matter of, 43 Mise. 468, 89 Supp. 549 532 Dougherty ads. Kerr, 17 Hun, 341, aff'd 79 N. Y. 327 611 Dougherty v. Thompson, 167 N. Y. 472, 60 N. E. 760 597 Doughty V. Stillman, 1 Bradf. 300 73 Doulon V. Kimball, 61 A. D. 31, or 70 Supp. 252 506 Dounce ads. Potts, 173 N. Y. 335, 66 N. E. 4 131 Downey v. Downey, 16 Hun, 481 493 Downs ads. Ametrano, 33 MisC. 180, 67 Supp. 128, aff'd 62 A. D. 405, 70 Supp. 833, 170 "N. Y. 388, 58 L.R.A. 719, 88 Am. St. Rep. 671, 63 N. E. 340 599 Doyle, Matter of, v. Mayor, 26 Misc. 61, or 56 Supp. 441 898 Dragone ads. Di Lorenzo, 25 Misc. 29, or 54 Supp. 420 995 Drake, Matter of, 45 A. D. 206, or 60 Supp. 1020 948 Drake v. Peekin, 58 Mise. 449, 109 Supp. 474 490 Drake v. Price, 5 N. Y. 430 527 Draper, Matter of, 74 Misc. 335, 134 Supp. 236 292 Draper v. Montgomery, 108 A. D. 63, or 95 Supp. 904 339 Draper ads. Whitehead, 132 A. D. 799, or 117 Supp. 539 416 Drescher, Est. of, N. Y. L. J., ■ Jan. 20, 1915 332 Drowne, Matter of, 56 Misc. 417, or 107 Supp. 1029 733 Dry Dock, East Broadway and Battery E. E. Co. ads. Martin, 92 N. Y. 70 154 Dubois V. Sands, 43 Barb. 412 . . 622 Duck V. McGrath, 160 A. D. 482, or 145 Supp. 1033 and 160 Supp. 490, aff'd 212 N. Y. 600, 106 N. E. 1032 299, 815 Dudgeon ads. Gates, 173 N. Y. 426, 93 Am. St. Rep. 608 631 Dudley v. Mayhew, 3 N. Y. 9 . . 832 Dueser v. Meyer, 129 A. D. 598, or 114 Supp. 64 289 Duffy, Matter of, 19 Misc. 92, or 43 Supp. 970 292 Duffy, Matter of, 127 A. D. 174, 111 Supp. 491 483 Duffy V. Duffy, 70 Hun, 135, 24 Supp. 506, aff'd 183 N. Y. 62, 111 Am. St. Rep. 687, 75 N. E. 931, 5 Ann. Gas. 81 ....41, 42 Duffie ads. Younger, 94 N. Y. 535, 46 Am. St. Eep. 156 . .436, 449, 450 Dugan V. Denyse, 13 A. D. 214, or 43 Supp. 308 717 Duhokop V. White, 13 A. D. 293, or 43 Supp. 190 899 Dummett, Matter of, 38 Misc. •477, or 77 Supp. 1118 347, 429 Duncan, Matter of, 81 Misc. 575, 143 Supp. 492 421 Duncklee v. Butler, 30 Misc. 58, or 62 Supp. 921 662 Dunfee ads. Packard, 119 A. D. 599, 104 Supp. 140 539 Dunford v. Weaver, 84 N. Y. 445 923 Dunham, Matter of, 165 A. D. 165, 152 Supp. 692 561 Dunham, Matter of, — Mise. — . N. Y. L. J., Meh. 16, 1916 .. 910 Dunham v. Deraismes, 166 N. Y. 607, 59 N. E. 903 617 Dunham ads. Deraismes, 22 Hun, 86 688 Dunham, Est. of, N. Y. L. J., Nov. 5, 1914 910 Dunham ads. Luce, 69 N. Y. 36 . . 70 Dunham v. Osborn, 1 Paige Ch. 634 35 Dunlap ads. Chamberlain, 126 N. Y. 45, 22 Am. St. Eep. 807, 26 N. E. 966 100, 540 Dunlap, Est. of, N. Y. L. J., Dec. 4, 1914 211 Dunlop, ads. Green, 136 A. D. 110, or 120 Supp. 583 300, 311 Dunn, Matter of, 164 A. D. 134, 149 Supp. 530 .' 896 TABLE OF CASES References are to pages. XXIX Dunn, Matter of, 39 A. D. 510, or 57 Supp. 444 402 Dunn, Est. of, N. Y. L. J., Meh. 9, 1915 591 Dunn V. Travis, 56 A. D. 317, or 67 Supp. 743 4 Dunne v. America.n Surety Co., 43 A. D. 91, or 59 Supp. 429 798 801, 814 Dunne v. American Surety Co., 34 Misc. 584, 70 Supp. 391 814 Dunne ads. Colgan, 50 Hun, 443, or 3 Supp. 309 311 Dunning v. Dunning, 82 Hun, 462, or 31 Supp. 719, dism'd 147 N. Y. 686, 42 N. E. 722 329, 332 Dunning v. Ocean Nat. B'k, 61 N. Y. 497, 19 Am. Eep. 293 239 316, 630 Dunphy v. Callahan, 126 A. D. 11, or 110 Supp. 179 981 Dupuy V. Wurtz, 53 N. Y. 556 8, 448 Durando v. Durando, 23 N. Y. 331 35 Durant ads. Frethy, 24 A. D. 58, or 48 Supp. 839 820 Durant ads. Warner, 16 N. Y. 133 597, 615 Duryea v. Mackey, 151 N. Y. 204, 45 N. E. 458 ..97, 324 Duryea v. Mathews, 45 Barb. 69 37 Duryea ads. Seaman, 11 N. , Y, 324 764, 765 Duryea ads. Valentine, 37 Hun, 427 547 Dusenberry, Matter of, 10 Misc. 633, or 32 Supp. 820; dism'd 88 Hun, 618, 34 Supp. 1138 .. 292 Dusenberry, Matter of, 33 Misc. 166, 68 Supp. 372 995 Dusenberry, Matter of, 34 Misc. 666, or 70 Supp. 725 324 Dusenberry,, Matter of, 106 A. D. 235, 94 Supp. 107 112 Dusenberry ads. Hall, 38 Hun, 125 302 Dutcher, Matter of, 102 A. D. 410, or 92 Supp. 418 . : 413, 968 Dutcher v. Dutcher, 88 Hun, 221, 34 Supp. 653 108 Dworsky v. Amdstein, 29 A. D. 274, or 51 Supp. 597 490 Dyett ads. Randa;!!, 38 Hun, 347 256 Eagan, Matter of, 89 A. D. 565, or 85 Supp. 663 623 Earle v. Earle, 93 N. Y. 104 ... 532 536 Earle v. McGoldrick, 15 Misc. 135, or 36 Supp. 246 642 East ads. Boyer, 161 , N. Y. 580, 76 Am. St. Rep. 290, 56 N. E. 114 707, 708 East River Savings Institution ads. Roderigas, 76 N. Y. 316, 32 Am. Rep. 309 3, 155, 839 Easterly, Matter of, 202 N. Y. 466, 96 N. E. ,122 642 Easterly ads. Hetzel, No. 7, 96 A. D. 517, or 89 Supp. 154 ..397, 554 Easton, Matter of, 84 Misc. 1, 145 Supp. 373 470 Eaton, Matter of, 159 A. D. 7, or 144 Supp. 254 512, 939 Eberle v. Bryant, 31 Misc. 814,, or 63 Supp. 963, aff'd 32 Misc. 195, 65 Supp. 728 810 Eberle v. Schilling, 32 Miac. 195, 65 Supp. 728 771 Eekler, Matter of, 126 A. D. 199, or 110 Supp. 650 937 Eddy, Matter of, 10 Misc. 211, 31 Supp. 423 178 Edeison ads. Bossie, 76 Misc. 234, 134 Supp. 615 459 Edmonds, Matter of, 47 A. D. 229, or 62 Supp. 652 281 Edsall V. Waterbury, 2 Redf. 48 72 Edson V. Parsons, 155 N. Y. 555 438 Edwards ads. Pierrepont, 25 N. Y. 128 594 Egan, Est. of, 7 Misc. 262, or 27 Supp. 1009 420 Egan, Est. of, N. Y. L. J., Oct. 9, 1914 324 Egbert v. McGuire, 36 Misc. 245, 73 Supp. 302 635 Egenbeger ads. Messman, 46 A. D. 46, 61 Supp. 556 63 Ehrenreich v. Liehtenberg, 29 Misc. 305, or 60 Supp. 513 . . 983 Ehrman v. Bassett, 159 A. D. 752, 144 Supp. ,976 . : 128 Eichler, Matter of, 84 Misc. 667, 146 Supp. 846 16 Eimer ads. Luhrs, 80 N., Y. 171. . 60 Eisenlohr ads. O'Gara, 17 Elder, Matter of, 87 Misc. 79, or 150 Supp. 114 158, 159, 163 Elias v. Schweger, 13 A. D. 336, or 43 Supp. 55 ,646,088, 690 Elkena ads. Taishoflf, 171 A. D. 288, 157 Supp. 98 63.5 Elliott ads. Harris, 24 A. D. 133, or 48 Supp. 1020 G08 Ellis, Matter of, 78 Misc. 589, or 139 Supp. 1011 240, 246 TABLE OF CASES References are to pages. Ellis V. Filon, 85 Hun, 485, or 33 Supp. 138 ■ 288 Ellwood V. Northrup, 106 N. Y. 172, 12 N. E. 590 755 Elmendorf ads. Lawrence, 5 Barb. 73 101 Elmendorf v. Lockwood, 57 N. Y. 322 45 Elmer, Matter of, 88 Hun, 290, or 34 Supp. 406 497 Elmer ads. Hewlett, 103 N. Y. 156, 8 N. E. 387 958 Elmira, C. & N. E. R. Co. ads. Lowman, 85 Hun, 188, or 32 Supp. 579, aff'd 154 N. Y. 765, 49 N. E. 1099 95, 197 Elmore ads. Jacques, 7 Hun, 675 591 Elsworth V. Hinton, 47 Hun, 625 393 Elting, Matter of, 93 A. D. 516, or 87 Supp. 833 397 Ely V. Ely, 163 A. D. 320, 148 Supp. 691 240 Emans v. Hickman, 12 Hun, 425 228, 232, 233 Emanuel ads. Frost, 152 A. D. 687, 137 Supp. 559 442 Emerson, Matter of, 59 Hun, 244, 12 Supp. 788 411 Emerson ads. Bowers, 14 Barb. 652 92, 161, 559, 677, 725 Emerson v. Spicer, 46 N. Y. 594 707, 708, 709 Emigrant Industrial Savings Bank ads. Fribourg, 168 A. D. 816, 154 Supp. 532 . 346 Emigrant Industrial Savings Bank ads. Marks, 122 A. D. 661, or 107 Supp. 491 ...... 258 Emott ads. Ackerman, 4 Barb. 626 553 Empire State Surety Co. v. Cohen, 93 Misc. 299, 156 Supp. 9,35.. 719 Empire State Surety Co. ads. Spurr & Sons, Inc., 117 A. D. 816, 102 Supp. 1065 902 Enders v. Enders, 2 Barb. 362 .. . 594 Engel, Matter of, 155 A. D. 467, 140 Supp. 286 576 Engel, Matter of, 83 Misc. 675, or 146 Supp. 793 212, 578 Engel ads. Bishoff, 10 A. D. 240, 41 Supp. 815 814 Englebfecbt, Matter of, 15 A. D. 541, 01- 44 Supp. 551 217, 218 694, 696, 752, 753 English adSi Cooney, 86 Mi«c. 292, 148 Supp. 285 227 English V. Mclntyre, 29 A. D. 439, or 51 Supp. 697 .... 634 English ads. Slocum, 62 N. Y. 494 . 223 Eno, Matter of, N. Y. L. J., Apr. 11, 1916 514 Eno, Matter of, N. Y. L. J., Feb. 24, 1916 497, 513 Eno, Matter of, 92 Misc. 658, 157 Supp. 491 196, 929 Enos, Matter of, 61 Misc. 594, 115 Supp. 863 599 Ensign, Matter of Estate of, 103 N. Y. 284, 57 Am. Rep. 717, 8 N. E. 544 39, 72 Erie R. E. Co. ads. Murphy, 202 N. Y. 242, 95 N. E. 699 79 Erie R. R. Co. ads. Reilly, 63 A. D. 415, 71 Supp. 551 133 Erving, Matter of, 103 A. D. 500, 92 Supp. 1109 610, 611 Erwin v. Loper, 43 N. Y. 521 . . 117 272, 273, 274 Estabrook ads. Beebe, 11 Hun, 523, aff'd 79 N. Y. 246 ... 48, 61 63, 82 Esty ads. Gibbs, 22 Hun, 266 47 Evans, Matter of, 82 Misc. 193, or 143 Supp. 839 756 Evans, Matter of, 33 Misc. 567, or 68 Supp. 936 988 Evans, Matter of, 58 A. D. 502, ' or 69 Supp. 482 987 Evans ads. Letson, 33 Misc. 437, 68 Supp. 421 853 Evans v. Ogsbury, 2 A. D. 556, or 37 Supp. 1104 40 Everts v. Everts, 62 Barb. 577 243, 587, 889 Everett ads. Avery, 36 Hun, 6 aff'd 110 N. Y. 317, 1 L.R.A. 264, 6 Am. St. Eep. 368, 18 N. E. 148 3, 439 Everett ads. Wakeman, 41 Hun, 278, aff'd 110 N. Y. 675, 18 N. E. 481 ..^.■ 137 Evchner, Matter of, 65 Misc. 86, '120 Supp. 1110 316 Eyre v. Higbie, 35 Barb. 502 .. 115 270 Eysaman, Matter of, 113 N. Y. 62, 3 L.R.A. 599, 20 N. E. 613 953 Eysaman v. Nelson, 79 Misc. 304, or 140 Supp. 183; aff'd 150 N. Y. Supp. 1085 .'348, 696, 697 Ezagni ads. Sartorelli, 64 ilisc. 115, 118 Supp. 46 923 Faburn v. Dimon, 20 A. D. 529 . . 280 Facer ads. Mallery, 181 N. Y. 507, 74 N. E. 487- 604 TABLE OF CASES References are to pages. Fagan, Matter of, 166 A. D. 244, 151 Supp. 701 605 Paile, Matter of, 51 Misc. 166, 100 Supp. 856 348, 398, 516 Faile, Matter of, 89 Misc. 082, 152 Supp. 463 171 Kairchild ads. Crittenden, 41 N. Y. 289 342 Faircliild ads. Staples 871 Fargo, Matter of, 68 Misc. 273, 125 Supp. 156 378, 404, 432 Fargo, Matter of, 20 Misc. 137, 45 Supp. 732 269 Faries ads. Brinckerhoff, 52 A. D. 256, or 65 Supp. 358; aff'd 170 N. Y. 427, 63 N. E. 437 . . 376, 433 Farman ads. Marion, 68 Hun, 383, or 22 Supp. 946 291, 292 Farmer, Matter of, 35 Misc. 150, or 71 Supp. 462 370 Farmers' Loan & Trust Co., Mat- ter of, 68 Misc. 279, 125 Supp. 78 80 Farmers' Loan & Trust Co., Mat- ter of, 49 A. D. 1, or 63 Supp. 227 432 Farmers' Loan & Trust Co. ads. Close, 195 N. Y. 92, 87 N. E. 1005 798, 801 Farmers' Loan & Trust Co., ads. Frankel, 152 A. D. 58, or 136 Supp. 703; affd 209 N. Y. 553, 103 N. E. 1124 699 Farmers' Loan & Trust Co. v. Hughes, 11 Hun, 130 693 Farmers' Loan & Trust Co. v. Kip, 192 N. Y. 266, 85 N. E. 59 299, 602 Farmers' Loan & Trust Co. ads. Lowry, 172 N. Y. 137, 64 N. E. 796 668 Farmers' Loan & Trust Co. v. Mc- Carthy, 128 A. D. 621, 113 "Supp. 207 609 Farmers' Loan & Trust Co. v. Pendleton, 179 N. Y. 486, 72 N. E. 508 . . : 792 Farmers' Loan & Trust Co. v. Pendleton, 115 A. D. 506 672 Farmers' Loan & Trust Co., ads. Starbuck, 28 A. D. 308, or 51 Supp. 8 294 Farman, Matter of, 75 N. Y. 187 366 Farnsworth v. Oliphant, 19 Barb. 30 786 Farrell, Matter of, 125 A. D. 702, or 110 Supp. 41 819 Fassenbender v. American Surety Co., 66 Misc. 6, 122 Supp. 442 800 Fattossimi, Matter of, 33 Misc. 18, 67 Supp. 1119 Faulkner ads. Bradner, 12 N. Y. 472 Faulkner ads. Bradner, 34 N. Y. 347 Faversham v. Faversham, 161 A. D. 521, or 146 Supp. 569 Fay ads. Coughlin, 08 Plun, .52], or 22 Supp. 1005 Fay V. Taylor, 31 Misc. 32, or 03 Supp. 572 Feehan, Matter of, 36 Misc. 614, 73 Supp. 1126 Feme, Matter of, N. Y. L. J., Meh. 22, 1916 Feldman Infants, Estates of, N. Y. L. J., Oct. 7, 1914 Ferguson, Matter of, 41 Misc. 465, or 84 Supp. 1102 161, 560, Ferguson ads. Benedict, 15 A. D. 96, or 44 Supp. 307 Ferguson v. Crawford, 70 N. Y. 253 Ferguson v. Tweedy, 43 N. Y. 543 Ferrigan, Matter of, 92 A. D. 376, or 87 Supp. 16 Ferrigan, Matter of, 42 A. D. 1, or 58 Supp. 920 ; afif'd 160 N. Y. 689, 55 N. E, 1095 ....894, Ferrin v. Myriek, 41 N. Y. 315 Ferris v. Burrows, 34 Hun, 104, aff'd 99 N. Y. 616 Ferris ads. Douglass, 138 N". Y. 192, 34 Am. St. Rep. 435, 33 N. E. 1041 803, 805, 806, Ferris v. Ferris, 10 Misc. 320, 30 Supp. 982 Fidelity & Deposit Co. ads. Flanagan, 32 Misc. 424, 66 Supp. 544 Fidelity Loan, Trust & Guaranty Co., Matter of, 23 Misc. 211, or 51 Supp. 1124 269, Field, Matter of, 204 N. Y. 448, 39 L.R.A.(N.S.) 1060, 97 N. E. 881, Ann. Cas. 1913C, 842. .450, Field V. Field, 77 N. Y. 294 . . 273, Field V. Gibson, 20 Hun, 274 Fiester v. Shepard, 26 Hun, 183, aff'd 92 N. Y. 251 Filon ads. Ellis, 85 Hun, 485, or 33 Supp. 138 Finch ads. Centre, 22 Hun, 146 169 611 239 24] 721 31 242 217 92.'5 174 678 229 838 46 47 182 895 915 129 620 828 41 80O 430 4.^) I 275 277 140 936 288 809 813 TABLE OF CASES Refersnces are to pages. Finch ads. More, 65 Hun, 404, 20 Supp. 104 197 i'inok ads. McCue, 20 Misc. 506, 46 Supp. 242 543 Finkel, Est. of, N. Y. L. J., May 15, 1935 254 Finn, Matter of, 44 Misc. 622, or 90 Supp. 159 841 Finn, Matter of Est. of, 1 Misc. 280, or 22 Supp. 1066 436, 483 Fiorentine, Matter of, 43 Misc. 573, or 89 Supp. 506 888 First National Bank ads. Haupt- man, 83 Hun, 78, 31 Supp. 364 242 First Nat. B'k ads. Van Buren, 53 A. D. 80, 65 Supp. 703, aff'd 169 N. Y. 610, 62 N. E. ilOl 586 First Nat. Banlc of Cooperatown V. Tamajo, 77 N. Y. 476 900 Fischer, Est. of, N. Y. L. J., Mch. 3, 1915 416 Fish, Matter of, 88 Hun, 56, or 34 Supp. 536, aff'd 153 N. Y. 679, 48 N. E: 1104 458 Fish V. Coster, 28 Hun, 64, aff'd 92 N. Y. 627 94 Fisher, Matter of, 93 A. D. 186, or 87 Supp. 567 420, 593 Fisher v. Banta, 66 N. Y. 468 . . 394 873 Fisher v. Bennett, 21 Misc. 178, or 47 Supp, 114 977 Fisher, Est. of, N. Y. L. J., Meh. 13, 1915 421 Fisher-Hansen v. B'klyn Heights R. R. Co. 173 N. Y. 492, 66 N. E. 395, 13 Am. Neg. Rep. 396 987 Fisher ads. Kain, 6 N. Y. 598 . . 36 Fisk V. Fisk, 77 A. D. 83, or 79 Supp. 37 ; 112 Fitch ads. Preston, 137 N. Y. '41, 33 N. E. 77 110 Fithian, Matter of, 44 Hun, 457 791 Fitzgerald ads. Patrick, i^eople ex rel., 73 A, D. 339, or 76 Supp. 865 479, 840, 852 Fitzgerald, ads. Sprague, People ex rel., 15 A. D. 539, or 44 . Supp. 556,' aff'd 156 N. Y. 689, 50 N. E. 1121 /. , 840 Fitzmahoney v. Caulfield, 87 Hun, 67, or 33 Supp. 876 ..; 278 JJ'itzpatrie]!: ads. : Monahan, 16 Misc. 508, 39 Supp. 857 358 Fitzsimons, Matter of, 174 N. Y. 15, 66 N. E. 554 989 Flanagan, Est. of, N. Y. L. J., Oct. 20, 1914 877 Flanagan v. Fidelity & Deposit Co., 32 Misc. 424, 66 Supp. 544 800 Flandrow, Matter of, 92 N. Y. 256 536, 537 Flandrow v. Hammond, 13 A. D. 325, or 43 Supp. 143 134 Flatauer v. Loeser, 156 A. D. 591, 141 Supp. 941, or 142 Supp. 1117, rev'd 211 N. Y. 15, 104 N. E. 1123 72, 621, 818, 827 839 Plege ads. Hortsmann, 61 A. D. 518, or 70 Supp. 596, aff'd 172 N. Y. 381, 65 N. E. 202 42 Fleming, Matter of, 51 Misc. 662, 102 Supp. 203 418, 607 Fleming ads. Jones, 104 N. Y. 418, 10 N. E. 693 41 Fleming ads. Wright, 76 N. Y. 517 399 Flemming ads. Wright, 19 Hun, 370 486 Flieas v. Buckley, 90 N. Y. 286 273 Flint ads. Boughtori, 74 N. Y. 476 301 Florande, Matter of, 54 'Hun, 328, or 7 Supp. 578, dism'd 119 N. Y. 661, 23 N. E. 1151 11 Florida ' East Coast Ry. Co. ads. Zerkua, 153 A. D. 345, or 138 Supp. 478 145 Floyd ads. Madison Trust Co., 151 A. D. 722, 136 Supp. 213 665 Floyd ads. Smith, 193 N. Y. 683, 87 N. E. 1127 635 Flynn, Matter of, 136 N. Y. 287, 32 N. B. 767 914, 918 Flynn, Matter of, 92 A. D. 379, 87 Stipp. 18 180 Flynn, Mattel' of, 75 Misc. 85, or 134 Supp.' 867, aff'd 141 Supp. 1119 230 Flynn v. MeDermott, 102 A. D. 56, or 92 Supp. 1123, and 89 Supp. 506, aff'd 183 N. Y.' 62,: - 111 Am. St. Rep. 687, 75 N. E. 931, 5 Ann, Cas. 81 41, 42 Flynn v. Judge, 149 A. D. 278, 133 Supp. 494 : 403 Fbehner v. Huber, 42 A. D. 439, or 59 Supj). 447 68 Fogarty, Matter of, 117 A. D. 583, or 102 Supp. 774 821 Fogel ads. Glacius,' 88 N. Y. 434 301 It, .. . :■■ . 53^ Fdland v. Dayton, 40 Hun, 563.. 107 Foley, Matter of, 76 Misc. 168, or 136 Supp. 933 451 Foley, Matter of, 39 A. D. 455, or 46 Supp. 810 328 TABLE OF CASES Befereuces are to pages. XXXIU Foley, Matter of, N. Y. L. J., Apr. 20, 1916 494 Foley ads. O'Brien, 150 A. D. 257, 134 Supp. 825 289 Foley V. M. L. Ins. Co. 138 N. Y. 333, 20 L.E.A. 620; 34 Am. St. Eep. 456, 34 N. E. 211 . . . .707, 708 709 Foley V. Phelps, 1 A. D. 551, or 37 Supp. 471 226 Fonde v. Penfield, 56 Barb. 503 635 Foote V. Beeoher, 78 N. Y. 155 948 949 Foote T. Bruggerhof, 66 Hun, 406, or 21 Supp. 509 820 Foote V. Bruggerhof, 84 Hun, 473, 32 Supp. 397 699 Forbes v. Reynard, 113 A. D. 306, or 88 Supp. 710 706, 766 Ford ads. Bellinger, 21 Barb. 311 105 Ford V. Cobb, 20 N. Y. 344 238 Fordham v. Gouverneur Village, 5 A. D. 565, or 39 Supp. 396 . . 15 Forman ads. Bramley, 15 Hun, 144 399 Forman v. Marsh, 11 N. Y. 544 706 Forshay ads. Pettigrew, 12 Hun, 483 849 Forsyth v. Burr, 37 Barb. 540 266 Fort Edwards Water Works Co. ads. Mott, 79 A. D. 179, or 79 Supp. 1100 840 Fort Miller Pulp & Paper Co. v. Bratt, No. 2, 119 A. D. 685, or 104 Supp. 350 136 Fosdick ads. Bliss, 76 Hun, 508, or 27 Supp. 1053 937 Fosdick ads. Sullivan, 10 Hun, 173 527 Foster, Matter of, 15 Misc. 175, or 37 Supp. 36 244, 620 Foster, Matter of, 38 Misc. 347, 77 Supp. 922 598 Foster, Matter of, 15 Hun, 387 664 Foster, Matter of, 8 Misc. 344, 29 Supp. 316 299 Foster, Est. of, 93 Misc. 400, 156 Supp. 1005 43 Foster v. Hawley, 8 Hun, 68 . . . 15 Foulds, Matter of, 35 Misc. 171, 71 Supp. 473 240 Fowler v. Depau, 26 Barb. 224 . . 342 Fowler ads. Jacobs, 135 A. D. 713, 119 Supp. 647 7 Fowler ads. Van Winkle, 52 Hun, 355, or 5 Supp. 317 343 Fowles, Matter of, 95 Misc. 48 7 Fox, Matter of, 88 Misc. 433 .. 67 Fox, Matter of, 166 A. D. 718, 152 Supp. 431 345, 841, 869, 900 Fox V. Carr, 16 Hun, 434 246 Fox ads. Hegeman, 31 Barb. 475 9, K) I'rancis, Matter of, 73 Misc. 148, or 132 Supp. 695 463 Frankel v. Farmers' Loan & Trust Co. 152 A. D. 58 or 136 Supp. 703,.aflf'd 209 N. Y. 553, 103 N. E; 1124 699 Frankenheimer, Matter of, 195 N. Y. 346, 133 Am. St. Rep. 803, 88 N. B. 374 602, 950 Franklin, Matter of, 26 Misc. 107, or 56 Supp. 858 423, 550, 669 Franldin ads. Mildeberger, 130 A. D. 860, or 115 Supp. 903 819 Franklin Trust Co., Matter of, 95 Misc. 71 595 Fraser, Matter of, 165 A. D. 441, 150 Supp. 774 487, 588 Fraser v. Trustees, etc. U. P. Church, 124 N. Y. 479, 26 N. E. 1034 341 Fredenburgh v. Biddlecorn, 85 N. Y. 196 901 Freel, Matter of, 49 Misc. 386, or 99 Supp. 509 ; : . 407 Freeman, Matter of, 64 Misc. 658, 120 Supp. 174 or 714 331, 641, 647, 669 Freeman v. Cort, 27 Hun, 445 231, 780 Freleigh, Matter of, 42 Misc. 11, 85 Supp. 830 637 Frethy v. Durant, 24 A. D. 58 or 48 Supp. 839 , 820 Freund v. Washburn, 17 Hun, 543 737 Freunfelker v. D. L. & W. E. R. Co., 81 A. D. 67, 80 Supp. 701 901 Fribourg, Matter of, 216 N. Y. 665, no N. E. 1048 961 Fribourg v. Emigrants Industrial Savings Bank, 168 A. D. 816, 154 Supp. 532 346 Friedell, Matter of, 20 A. D. 382, or 46 Supp. 787 848 Friedlander, Matter of, 160 A. D. 475, or 145 Supp. 679 . . 221, 981 Friedlander, Est. of, N. Y. L. J., Feb. 15, 1916 337 Fries, People ex rel. v. Riley, 25 Hun, 587 925 Froelich, Matter of, 122 A. D. 440, or 107 Supp. 173, aflf'd 192 N. Y. 566, 85 N. E. 1110 430 TABLE OF CASES References are to pages. Frost V. Emanuel, 152 A. D. 687, 137 Supp. 559 442 Frost V. Frost, 15 Misc. 167, or 37 Supp. 18 721 Frost ads. Keeler, 22 Barb. 400 635 l'"rv ads. Anderson, 123 A. D. 46, or 107 Supp. 916, aff'd 194 N. Y. 515, 87 N. E. 1115 645 Frv V. Smith, 10 Abb. X. C. 224 68 Fulton, Matter of, N. Y. L. J. Nov. 14, 1914 6 Fullerton ads. Clapp, 34 N. Y. 190, 90 Am. Dec. 681 952 Furman ads. Bogert, 10 Pai. eh. 496 74, 75 GaffneY, Matter of, N. Y. L. J., Feb.' 5, 1915 517 GafFney, Matterof, 116 A. D. 583, or 101 Supp. 882; aff'd 189 N. Y. 503, 18 N. E. 1165 920 Gaines, Matter of, 84 Hun, 520, 32 Supp. 398, aff'd 154 N. Y. 747, 49 N. E. 1097 948,' 949 Gale ads. Naylor, 73 Hun, 53, or 25 Supp. 934 ; . . . 404 Gale, Matter of, 83 Misc. 686, 145 Supp. 301 42, 43 Gall V. Gall, 114 N. Y. 109 . . . ; 14 Gall, Matter of, 107 A. D. 310, or 95 Supp. 124 951 Gall, Matter of, 40 A. D. 114, or 57 Supp. 835 153 Gall, Matter of, 47 A. D. 490, or 62 Supp. 420 810 Gallagher, Matter of, 217 N. Y. Ill 595 Gallup ads. Buckland, 40 Hun, 01, aff'd 105 N. Y. 453, 11 N. E. 843 979, 980 Galvin. Est. of, N. Y. L. J. Dec. 23, 1914 234 Galway, Matter of, 19 Misc. 92, or 43 Supp. 970 ... : 292 Gantert, Matter of, 136 N. Y. 106, 32 N. E. 551 325, 342 Ga. Num v. Palmer, 159 A. D. 86, 144 Supp. 457 ... 437, 594 Gardener ads. Wallcer, 8 Misc. 468, 29" Supp. 669 977 Gardiner v. Gardiner, 34 N. Y. 155 . 952 Gardinier, Est. of, N. Y. L. J., Feb. 3, 1915 '. 781 Gardner ads. Buell, 83 ilisc. 513, 144 Supp. 945 520 Garlock v. Vandervort, 128 N. Y. 374, 28 N.' E. 599' .... 347, 826 Garner, Matter of, 59 Misc. 116, or 112 Supp. 212 ..:... 493 Garner ads. Thorn, 113 N. Y. 198, 21 N. E. 149 611, 613, 614 Garretson, Matter' of, 79 Misc. 176, or 140 Supp. 752 671 Garretson, Matter of, 92 A. D. 1, or 87 Supp. 65, aff'd 179 N. Y. 520, 71 N. E. 1133 ' . 643 Gaiside, Matter of, 165 A. D. 897, 149 Supp. 647 837 Garth; Matter of, 10 A. D. 102, 41 Supp. 1022 404, 411 Garvey ads. McCue, 14 Hun, 562, 231 Garvey v. U. S. Fidelity & Guar- antv Co.. 77 A. D. 391, or 79 Supp. 337 512 Gasquet v. Pollock, 1 A. D. 512, ' or 37 Supp. 357, aff'd' 158 N. Y. 734, 53 N. E. 1125 698 Gasten, Matter of, 16 Misc. 125, 38 Supp. 948 598 Gates, Matter of, 26 Hun, 179 .. . 940 Gates V. Dudgeon, 173 N. Y. 426, 93 Am. St. Rep. 608 631 Gates ads. Wheaton and The Trustees, etc., 18 N. Y. 382, 72 Am. Dec. 526 237 Gay V. Craighead, 6 A. D. 463 or 39 Supp. 688 . .■ 140 Gay V. Ulrichs, 136 A. D. 809, or 121 Supp. 726 880 Gearns', Matter of, 27 Misc. 76, 58 Supp. 200 894 Geary ads. Rockell, 4 Hun, 606 306, 315 Gedney, Matter of, 30 Misc. 18, or 62 Supp. 1023 . 995 Gedney, Matter of, 33 Misc. 160, 68 Supp. 627, 30 Misc. 18, 62 Supp. 1023 237 Geib V. Topping, 83 N. Y. 46 . . 899 Geis, Matter of, 27 Misc. 490, or 59 Supp. 175 347, 390 Georgi, Matter of, 21 Misc. 419, or 47 Supp. 1061 325, 336 Georgi, Matter of, 37 Misc. 242, 75 Supp. 256 316 Georgi, Matter of, 35 Misc. 685, 72 Supp. ' 431 ' . V 872, ,889 Gelston v. Shields, 16 Hun, 143, aff'd 78 N. Y. 275 713 Genet t. Wieloek, 93 A. D. 588, or 87 Supp. 938 296 Gerard v. MoGormick, 130 N. Y. 261, 14 L.R.A. 234, 29 N. E. 115 293 Gerber,' Est. of, N. Y. L. J., Jan. 12, 1915 48S TABLE OF CASES Kefeirences are to pages. •Gerlach, Matter of, 29 Misc. 90, 60 Supp. 574 16 German Savings Bank ads. Maas, 176 N. Y. 377, 98 Am. St. Eep. 689, 68 N. E. 658 72, 258, 530 Gerould v. Wilson, 16 Hun, 530, aflf'd 81 N. Y. 573. . . .371, 798, 803, 804, 808 Gerry, Matter of, 103 N. Y. 445, 9 N. E. 235 671 Getman, Matter of, 128 A. D. 767, 113 Supp. 67 595 Getman v. McMalion, 30 Hun, 531 593, 595, 596 Geyer; Matter of, 62 Misc. 443, 116 Supp. 800, or 120 Supp. 1125 927 Geyer v. Snyder, 140 N. Y. 394, 35 N. E. 784 109, 532,. 645 Gibbons ads. Holly, 176 N. Y. 520, 98 Am. St. Rep. 694, 68 N. E. 889 ,286, 344 Gibbs, Matter of, N. Y. L. J., Aug. 2, 1916 733 Gibbs V. Esty, 22 Hun, 266 47 Gibert, Matter of, 39 Hun, 61, aif'd 104 N. Y. 200, 10 N. E. 148 115 Gibson, Matter of, 195 N. Y. 466, 88 N. E. 1100' 910, 960 Gibson ads. Field, 20 Hun, 274 . . 140 Gibson's Will, Matter of, 151 Supp. 459, 166 A. D. 11, rev's 87 Misc. 503, 149 Supp. 922 . . 627 Gick, Matter of, 49 Misc. 32, 98 Supp. 299, aflf'd 113 A. D. 16, 98 Supp. 961 251, 252 Giddings v. Seward, 16 N. Y. 365 etc 593, 594 Gifford ads. Murdock, 18 N. Y. 28 237 Gifford ads. O'Conner, 117 N. y. 275, 22 N. E. 1036 . . 256, 605, 632 Gihon, Matter of, 48 A. D. 598, 62 Supp. 426 106, 172 Gihon, Matter of, 29 Misc. 273, or 61 Supp. 244, aflf'd 49 A. D. 635, 63 Supp. 1108 965 Gihon, Matter of, 27 Misc. 626, 59 Supp. 494 955 Gilchrist, Matter of, 37 Misc. 543, ' ' or 75 Supp. 1055 . . . : 165 Gilbert,, Matter of, 39 Hun, 61, aflf'd 104 N. Y. 200,' 10 N.- E. 148 346, 936 Gilbert v. Comstock, 93 N. Y. 484 287 Gilbert ads. D. L. & W. E. R. Co>, 44 Hun, 201, aflf'd 112 N. Y. 073, 20 N. E. 416 539, 543 Gilbert v. Knox, 52 N. Y. 125 447, 448 Gilbert v. Morrison, 53 Hun, 442, 6 Supp. 491 613 Gill, Matter of, 199 N. Y. 155, 92 N. E. 390 274, 298, 390 Gill, Matter of, 183 N. Y. 347, 76 N. E. 274 365 Gill, Matter of, 21 Misc. 281, 47 Supp. 706 415 Gill, Matter of, 42 Misc. 457, or 87 Supp. 252, aflf'd 101 A. D. 607 285, 376 Gill, Matter of, 3 Hun, 20 777 Gill V. Brouwer, 37 N. Y. 549 . . 599 Gill V. Clark, 31 Misc. 337, or 65 Supp. 406, aflf'd 54 A. D. 617, 66 Supp. 1132 899 Gill, Est. of, 92 Misc. 661, 155 Supp. 1019 518, 711 Gill ads. Manhattan Oil Co., 118 A. D. 17, 103 Supp. 364 .... Ill Gill ads. Richards, 138 A. D. 75, or 122 Supp. 620 315 Gilleran, Matter of, 50 Hun, 399, 3 Supp. 145 585 Gillet ads. Bruen, 115 N. Y. 10, 4 L.R.A. 529, 12 Am. St. Rep. 764, 21 N. E. 676 637 Gillette ads. Pease,- 10 Misc. 467, or 32 Supp. 102 ! 373 Gillian v. Guaranty Trust Co., 186 N. Y. 127, 116 Am. St. Rep. 536, 78 N. E. 697 58 Gilman, Matter of, 92 A. D. 462, or 87 Supp. 128, affd 178 N. Y. 606, 70 N. E. 103 279 Gilman, Matter of, 38 Barb. 364 452 Gilman, Matter of, 41 Hun, 561 260 Gilman v. Gilman, 63 N. Y. 41 603 Gilroy, Est. of, N. Y. L. J., Nov. 4, 1914 905 Gimpel, Matter of, 89 Misc. 717, or 153 Supp. 1094 211 Girvin v. Hickman, 21 Hun, 316 813 Gittings V. Russel, 114 A. D. 405, or 99 Supp. 1064, aff'd 187 N. Y. 538, 80 N. E. 1110 68 Giwosky, Est. of, N. Y. L. J., Dec. 4, 1914 : 719 Glacius V. Fogel, 88 N. Y. 434 301, 534 Gleason, Matter of, 62 Misc. 597, 116 Supp. 1129 670 Gleason ads. Chamberlin, 163 N. Y. 214, 57 N. E. 487 648 Gleason, Est. of, N. Y. L. J. Dec. 21, 1914 , 782 Glenn v. Burrows, 37 Hun, 602 . . 129 TABLE' OF CASES Eeferenees are to pages. Glennan v. Rochester Trust & S. D. Co., 209 N. Y. 12, 52 L.E.A. (N.S.) 302, 102 N. E. 537, Ann. Cas. 1915A, 441 257 Glokner ads. Mundt, 24 A. D. 110, or 48 Supp. 940, dism'd 160 N. Y. 571, 55 N. E. 297 .... 146, 247 Goddard, Matter of, 94 N. Y. 544 170 Goetsehuis, Matter of Est. of, 2 Misc. 278, or 23 Supp. 970 376 Goetz, Matter of, 120 A. D. 10, or 104 Supp. 832 209, 820 Goetze, Est. of, N. Y. L. J., Nov. 14, 1914 863 Golden, Matter of, 40 Misc. 544, 82 Supp. 990 9 Goldenberg ads. Rothschild, 103 A. D. 235, or 92 Supp. 1076, aff'd 188 N. Y. 327, 80 N. E. 1030 937 Goldfarb, Est. of, 93 Misc. 401, 157 Supp. 137 272 Goldsmith v. Swift, 25 Hun, 201 665, 666, , 668 Goldsticker, Matter of, 54 Misc. 175, 105 Supp. 931 942, 963 Goldsticker, Matter of, 192 N. Y. 35, 18 L.R.A.(N.S.) 99, 84 N. B. 581, 15 Ann. Gas. 66 . . . 461, 513 Gomez v. Tradesmen's Bank, 4 Sandf. Super. Ct. 102 ....... . 36 Goodale ads. Persorieni, 199 N. Y. 323, 92 N. E. 754 .. 324, 325, 327 Goodheart, Matter of, 40 Misc. 322, or 81 Supp. 1030 298 Goodman v. Alexander, 165 N. Y. 289, 55 L.R.A. 781, 59 N. E. 145 707, 727 Goodrich v. Russell, 42 N. Y. 177 59 Goodwin, Matter of, 122 A. D. 800, or 107 Supp. 784 701 Goodwin ads. Newhouse, 17 Barb. 236 503 Goodwin ads. Walton, 54 Hun, 387, or 7 Supp. 929 903 Gorden, Matter of, 172 N. Y. 25, 92 Am. St. Rep. 689, 64 N. E. 753 42 Gordon, Est. of, N. Y. L. J., Feb. 27, 1915 419, 670 Gordon, Est. of, N. Y. L. J., Apr. 7, 1916 357 Gordon ads. Mee, 187 N. Y. 400 630 Gordon ads. Raynor, 23 Hun, 264 329 Gorlitzer v. Wolffberg, 208 N. Y. 475, 102 N. E. 528, Ann. Cas. 1914D, 357 134, 135 Gorman, Matter of, 49 A. D. 637, 63 Supp. 123 897 Gorman, Matter of, 68 A. D. 649, or 74 Supp. 33 213 Gorman ads. Mayor, 26 A. D. 191, or 49 Supp. 1026 273, 274 Gorton ads: Davis, 16 N. Y. 255 282 Goss, Matter of, 98 A. D. 489, or 90 Supp. 769 ... 249, 273, 275, 288 Gottsberger v. Taylor, 19 N. Y. 150 809 Gould, People ex rel. v. Barker, 150 N. Y. 52, 44 N. E. 785 536, 537 Gould ads. Clute, 28 Hun, 348 . . 40« Goundoz, Matter of, 57 A. D. 232, or 68 Supp. 155 208 Gourley ads. Cole, 79 N. Y. 527 756, 757 Gouverneur Village ads. Ford- ham, 5 A. D. 565, or 39 Supp. 396 ...:.. 15 Govan, In re Estate of, 2 Misc. 291, 23 Supp. 766 206 Gowdy, Matter of, 101 A. D. 275, 91 Supp. 662 941 Gracie, Matter of, 37 Misc. 536, ' 75 Supp. 1047' 389 Graff V. Bonnett, 31 N. Y. 9 . . 130 Gragan, Matter of, N. Y. L. J., Feb. 10, 1915 224 Graham, Matter of, 39 Misc. 226, or 79 Supp. 573 884 Graham ads. Bate, 11 N. Y. 237 527, 825 Graham v. Graham, 67 Hun, 329, 22 Supp. 299 41 Graham v. Linden, 50 N. Y. 547 37, 839 Graham v. Luddington, 19 Hun, 246 : ...:.... 47 Graham v. Public Administrator, 4 Bradf . 127 . . . ; 72 Grant, Matter of, 56 A. D. 176, or 67 Supp. 654; aff'd 166 N. Y. 640, 60 N. E. 1111 ..754, 781 Grant, Matter of, 122 A. D. 602, 107 Supp. 375 816 Grant, Matter of, 83 Misc. 257, or 144 Supp. 567 13 Grant, Matter of, 130 A. D. 706, 115 Supp. 283 926 Grant, Matter of, 37 Misc. 151, 74 Supp. 958 386 Grant, Matter of, 132 A. D. 739, 116 Supp., 767, 1152 849 Grant ads. Van. Zandt, 67 A. D. 70, or 73 Supp. 600; aff'd 175 N. Y. 150, 67 N. E. 221 ..743, 799 803, 815 TABLE OF CASES Eeferences are to pages. Gray, Matter of, 111 N. Y. 404, 18 N. E. 719 fl2 Gray v. Gray, 5 A. D. 132, 39 Supp. 57 41 Gray v. The Journal of Finance Publishing Co., 2 Misc. 260, or 21 Supp. 967 880 Gray ads. Schoomaker, 208 N. Y. 209, 101 N. E. 886, Ann. Cas. 1914D, 910 350 Gray ads. Webster, 54 Hun, 113, 7 Supp. 266 484 Greacen ads. Alexander, 36 Misc. 526, 73 Supp. 1001 551 Gregan v. Buchanan, 15 Misc. 580, or 37 Supp. 83 .. 644 Green. Matter of, 63 Misc. 638, or 118 Supp. 747 67 Green ads. Coggshall, 9 Hun, 471 161 Green v. Dunlop, 136 A. D. 116, or 120 Supp. 583 306, 311 Green, Matter of v. Meyer, 63 Misc. 638, or 118 Supp. 747 . . 344 Green ads. Palmer, 63 Hun, 6, or 17 Supp. 441 255 Green v. Putnam, 1 Barb. 500 35, 36 Green v. Roberta, 47 Barb. 521 . . 292 Greenbufg v. N. Y. C. & H. R. E. R. Co., 210 N. Y. 505, 104 N. E. 931 721 Greenblatt v. Herrmann, 144 N. Y. 13, 38 N. E. 966 53, 54 Greene, Matter of, 48 Misc. 31, or 96 Supp. 98 ....160, 162, 166, 558 559, 560, 677, 678, 725 Greene v. Greene, 35 L.R.A. 790 650 Greene v. Reynolds, 72 Hun, 565, 25 Supp. 625 35 Greenland v. Waddell, 116 N. Y. 234, 15 Am. St. Rep. 400, 22 N. E. 367 91, 93, 535, 675 ■Greenpoint Savings Bank The, ads. Ruoff, 40 Misc. 549, or 82 Supp. 881 4 Gregory, Matter of, 15 Misc. 407, ., 37 Supp. 925 57, 467 Gregory, Matter of, 13 Misc. 363, or 35 Supp. 105 478, 489 Grenier ads. Kich, 56 N. Y. 220 55 Grey ads. Coit, 25 Hun, 444 46 GrifBn, Matter of, 118 A. D. 515, 103 Supp. 345 244 GriflHn v. Condon, 18 Misc. 236, 41 Supp. 380 230 GrifBng ads. Beebe, 14 N. Y. 235 53, 61 Griffith, Matter of, 49 Misc. 406, or 100 Supp. 215 33, 390 Griffith V. Beecher, 10 Barb. 432 237 Griffiths ads. Laffin, 35 Barb. 58 238 Griscom ads. Bruce, 9 Hun, 280, aff'd 70 N. Y. 612 82 Griswold v. McDonald, 81 Misc. 376, or 143 Supp. 341 331, 332 Gritelfeld, Matter of, N. Y. L. J., Dec. 21, 1915 611 Grogan, Matter of, 82 Misc. 555, 145 Supp. 285 292 Grondahl, Will of, N. Y. L. J., Jan. 19, 1916 489 Gross V. Gross, 26 Misc. 385, or 56 Supp. 219 137 Gross V. Moore, 14 A. D. 353, or 43 Supp. 954 223, 224 Gross V. Rowley, 147 A. D. 529 . . 860 Grossman, Matter of, 92 Misc. 656 412 Grotrian, Matter of, 30 Misc. 23, or 62 Supp. 996 326 Grotrin, Matter of, 35 Misc. 257, 71 N. Y. Supp. 842 42 Grout, Matter of, 15 Hun, 361 . . 983 Grout V. Cooper, 9 Hun, 326 . . 41, 42 Grub ads. Piatt, 41 Hun, 447 242 Guaranty Trust Co., Matter of, 131 A. D. 658, or 116 Supp. 147; aff'd 195 N. Y. 611, 89 N. E. 1101 394, 664 Guaranty Trust Co. ads. Gillian, 186 N. Y. 127, 116 Am. St. Rep. 536, 78 N. E. 697 58 Guaranty Trust Co. ads. Hill, 163 A. D. 374, or 148 Supp. 601 . . 397 Guarantee Trust Co. v. P., R. & A. E. R. R. Co. 160 N. Y. 1, 54 N. E. 575 964 Guidet V. Brown, 3 Abb. N. C. 295 45 Guinn ads. Mullen, 88 Hun, 128 or 34 Supp. 625 980 Guldenkirch, Matter of, 35 Misc. 123, 71 Supp. 310 256 Gulick V. Gulick, 33 Barb. 92 141 Gumee, Matter of, 84 Misc. 324, 147 Misc. 396, aff'd 150 Supp. 1088 597 Haag, Est. of, N. Y. L. J., July 1, 1916 906 Haberman v. Baker, 128 N. Y. 253, 13 L.R.A. 611, 28 N. E. 370 239 Hachemeister ads. Hanger, 114 N. Y. 566, 5 L.R.A. 137, 11 Am. St. Rep. 691, 21 N. E. 1046 . . 267 Haddock ads. Williams, 78 Hun, 429, or 29 Supp. 199, aff'd 145 N. Y. 144, 39 N. E. 825 318 xxxvm TABLE OF CASES Eeferences are to pages. Haddow v. Lundy, 59 N. Y. 320 822 Hadley, Matter of, 43 Misc. 579, or 89 Supp. 545 : . 52 Hagar, Matter of, 48 Misc. 43, or 96 Supp. 96 474, 475 Hagerty v. Hagerty, 9 Hun, 175 712 Haggerty ads. Orth, 126 A. D. 118, or 110 Supp. 551 ; 43 Hahn, Matter of, N. Y. L. J., Dec. 24, 1915 271 fiaight, Matter of, 51 A. D. 310, or 64 Siipp. 1029 ; . .397, 424 Faight V. Brisbin, 100 N. Y. 219, 3 N. E. 74 579, 8l2 Haight T. Brisbin, 96 N. Y. 132 342 Haight V. Hoyt, 19 N. Y. 464 . . 135 Haines v. Meyer, 25 Hun, 414 . . 815 Hanies ads. Willets, 96 A. D. 5, or 88 Siipp: 1018, affd 182 N. Y. 543, 75 N. E. 1135 . . . .128, 395 Hale, Matter of, 45 A. D. 578, 61 Supp. 596 892, 933 Hale, Matter of, 6 A. D. 411, 39 Supp: 577 374 Hale ads. Congregational Unitar- ian Soc, 29 A. D. 396, or 51 "Supp. 704 ....;'...'..'.: 621 Haley, Matter of, 21 Misc. 777, or 49 Supp. 307 ;... 170 Haley V. Sheridan, 190 N". Y. 331, 83 N. E. 296 59 Hall, Matter of, '61 A. D. 266, or 70 Supp. '406 ..' 948 Hall, Matter of, 164 N. Y. 196, 58 ■N. B. 11' .■■ ...'.:■ 662 Hall ads. Soon, 76 A. D. 520, 78 Supp. 557 ., 632, 641 Hall V. Brennari, 64 Hiin, 394, 19 Supp. 623, aflf'd 140 N. Y. 409, 35 N. E. 663 149 Hall V. Dusenberry, 38 Hun, 125 302 Hall V. Hall, 81 N. Y. 130 ' 59 Hall V. Hali; 78 N. Y. 535 . '. '.,. . . 410 Hall ads. Murphy, 38 Hun, , 528 , 140, Hall V. O'Briep, 160 A. D. 851,, ' 146 Supp. 551 ,.... ;.. ' 290 Hall ads. Tonnele, 4 N. Y. 140 449, 484 Hallenbeck v. Parr, 65 A. D. 167, or 72 Supp. 488 252 Halsey, Matter of, 93 N. Y. 48 608, 935, 960, 961 Halsey v. Beer, 52 Hun, 366, or 5 Supp. 334, Act of Feb. 10, 1855 : 31 Halsey ads. Schdley, 7,2 N. Y. 578 148 Halstead, Matter of, 51 Misc. 542, 101 Supp. 971 501 Hamersley ads. Chisolm, 114 A. D. 566', or 100 Supp. 38 ..412, 670 Hamilton, Matter of, 76 Him, 200 or 27 Supp. 813 493 Hamilton v. Cutting, 60 A. D. 293, or 70 Supp. 118 344 Hamilton, Est. of, N. Y. L. J., July 14„ 1915 178 Hamlin v. Smith, 72 A. D. 601, or 76 Siipp. 258 276, 287 Hammer,, Matter of, 94 Misc. 36 407 Hammond, Est. of, N. Y. L. J., ' ■ Jan. 29, 1915 485 Hammond ads. Flandrow, 13 A. D. 325, or 43 Supp. 143 134 Hancock, Matter of, 27 Hun; 575 819 Hancock, Matter of, 91 N. Y. 284 998 Hancock v. Hancock, 22 N. Y. 568 291 Hancock ads. Swenarton, 22 Hun, 38, aff'd 84 iST. Y. 653 501 Hancox v. Meeker, 95 N. Y. 528 340, 425 Hancox v. Wall, 28 Hun, 214, dist'g'd 95 N. Y. 535 821 Hanford ads. Cobb, 88 Hun, 21, ' or 34 Supp. 51-1 . 836 Hanford ads. Hill, 11 Hun, 536 781 Hang V. Hewitt, 87 Misc. 67, br 150 Supp. 236 743, 824 Hanger" v. Hachemeister, 114 N. Y. 566, 5 L.R.A. 137, 11 Am. St. Rep: 691, 21 N. E. 1046 . 267 Haniman, Matter of, 50 Miscy245, 100 Supp. 481 ..;. 252 Hanlon, Est. of, N. Y. L. J., Apr. 15, 1915 192 Hann ads. MaTtin; 32 A. D. 602, or 53 Supp. 186 803 Hannah, Matter of, 45 Hun, 561 949 HannOn, Matter of, 46 Misc. 229, 93 Supp. 207 301 Hannibal*, St. Joseph R. C. Co. ads. Hurd, 30 Hun, 109 200 Hansen, Matter of, N. Y. L. J., act. 5, 1914 ..:... 712 Harbeck, Matter of, 81 Hun, 26, or 30 Supp. 521 ;' aff'd 145 N. Y. 648, 41 N. E. 89 429 Harbeson ads. Rice, 63 N. Y. 493 118 Hard v. Ashley, 88 Hun, 103, or 34 Supp. 583 469, 507 Harden, Est. of, 88 Misc. 420^ or 150 Supp! 743 515 Hardenbrook, Matter of, 23 Misc. • 538, or 52 SUpp. 845 405 Sardenburgh, Matter of, 85 Hun, 580, or 33 Supp. l50 4.'^.-. 458, 50'_ TABLE OF CASES Beferences are to pages. XXXI X Hardin, Matter of, 97 A. D. 493, or 89 Supp. 978, aff'd 181 N. Y. 513, 73 N. E. 1124 73 Hardy v. Ames, 47 Barb. 413 . . 274 Hardy, John, Est. of, N. Y. L. J., Apr. 9, 1915 701 Harlow, Matter of, 73 Hun, 433, or 26 Supp. 469 880, 950 Harney ads. Leonard, 173 N. Y. 352, 66 N. E. 2 248 Haronn ads. Arnold, 43 Hun, 278 63 Haroxhurst, Matter of, N. Y. L. J., Apr. 28, 1915 91 Harper, Matter of, 27 Mise. 471, or 59 Supp. 371 424 Harring v. Coles, 2 Bradf. Surr. 349 i 50 Harris v. Elliott, 24 A. D. 133, or 48 Supp. 1020 698 Harris, Est. of, N. Y. L. J., June 15, 1915 225, 235 Harris ads. Strong, 84 Hun, 314, or 32 Supp. 349 826 Harrison v. Ayres, 18 Hun, 336 . . 276 Harrison v. Clark, 87 N. Y. 572 803, 838 Harrison v. Clark, 20 Hun, 404 805, 911 Harrison ads. McMahon, 6 N. Y. 443 162, 559, 677, 678, 725 Harrison ads. Plant, 36 Misc. 649, or 74 Supp. 411 ,. 9 Harrington v. Strong, 49 A. D. 39, 63 Supp. 257 981 Harrington v. Keteltes, 92 N. Y. 40 ...,150, 255 Harriot, Matter of, 145 N. Y. 540, 40 N. E. 246 . . .■ 263, 936, 960 Harry v. Dodge, 66 Misc. 302, 123 Supp. 37 7, 11 Harsell ads. Aikman, 98 N. Y. 186 34 Hart, Matter of, 60 Hun, 516, or 15 Supp. 239 236, 379, 380 Hart V. Kip, 148 N. Y. 306, 42 N. e; 7i2 8 Hart, Matter of v. Tuite, 75 A. D. 323, or 78 Supp. 154 . . .' 288 Hart ads. Russell, 87 N. Y. 19 . . 487 Hart a:ds. U. S. Trust Co., 150 A. D. 413, 135 Supp. 81, modi- fied 208 N. Y. 617, 102 N. E. 1115 8, 9 Hartman, Matter of, 13 Misc. 486. or 35 Supp. 495 300 Hartnett v. Wandell, 60 N. Y. 346 469 534, 536 Hartshorne ads. Johnson, 52 N. Y. 173 •. 113 Harty, Matter of, 85 Misc. 628, or 148 Supp. 1052 . 449, 458 Harvey ads. Johnson, 84 N. Y. 363, 38 Am. St. Rep. 515 816 Hasbrouck, Matter of, 153 A. D. 394, or 138 Supp. 620; dism'd 208 N. Y. 586, 102 N. E. 1104 990 Hasbrouck ads. Bank of Pough- keepsle, 6 N. Y. 216 274 281, 394 Hasbrouck v. Hasbrouck, 27 N. Y. 182 90, 110, 265, 266 Hascall v. King, 165 N. Y. 288, 59 N. E. 132 976 Haskin, Matter of, 111 A. D. 754, 97 Supp. 827 425 Haskin, Matter of, 49 Mise. 177, or 98 Supp. 926 425 Haslehurst, Matter of Est. of, 4 Misc. 366, or 25 Supp. 827 781 Haslett, Matter, of, 95 Misc. 71 . . 595 Hassard v. Rowe, 11 Barb. 22 . . . 754 Hasselbrook, Matter of, 128 A. D. 874, 113 Supp. 97 512, 513 Hastings v. Tousey, 123 A. D. 480, or 108 Supp. 526 142 Hastrich v. Pilcher, 171 A. D. 470, 157 Supp. 613 835 Hatch, Est. of, N. Y. L. J., Sept. 19, 1914 849 Hatch V. Bassett, 52 N. Y. 359 . . 72 Hatch V. Luckman, 64 Misc. i 508, 118 Supp. 689, aff'd 140 Supp. 1123 844 Hatfield ads. Loder, 71 N. Y. 92 507 612, 616, 617, 976 Hatfield v. Sneden, 54 N. Y. 280 46 47, 48 Hathaway, Matter of, 9 Hun, 79, aff'd 71 N. Y. 238 481 Haug, , Matter of, 55 Misc. 481, 106 Supp. 850 540 Haughian, Matter of, 37 Misc. 457 or 75 Supp. 932 90, 155 Haughian v. Coulon, 39 Misc. 584, 80 Supp. 586 .826 Hauptman v. First National Bank, 83 Hun, 78, 31 Supp. 364 , 242 Hauptmann v. Hauptmann, 91 A. D, 197, 86 Supp. 427 38 I-Iavemeyer, Matter of, 27 A. D. 123, or 50 Supp. 126 975 Havemeyer, Matter of, 3 A. D. 519, or 38 Supp. 292 579, 693 Havemeyer ads. Hentz, 132 A. D. 56, or 116 Supp. 317 135 Havens, Matter of, 8 Misc. 574, 29 Supp. 1085 386 xl TABLE or CASES Keferences are to pages. Havens v. Sherman, 42 Barb. 636 756 Haviland, Matter of, 17 Misc. 193, 40 Supp. 97 443 Hawk, Matter of, 54 Misc. 187, 105 Supp^856 671 Hawkea v. Warren, 140 A. D. 712, 125 Supp. 820 26, 78 Hawley, Matter of, 36 Hun, 258, 100 N. Y. 206, 3 N. E. 68 .... 349 917, 920 Hawley, Matter of, 108 A. D. 185, 06 Supp. 61, affd 185 N. Y. 566, 77 N. E. il88 545 Hawley, Matter of, 37 Misc. 667, or 76 Supp. 461 166 Hawley, Matter of, 104 N. Y. 250, 10 N. E. 352 630, 772 Hawley ads. Foster, 8 Hun, 68 15 Hawver ads. Cochrane, 54 Hun, 556, 7 Supp. 907 , 117 Hayden, Matter of, 54 Hun, 197, or 7 Supp. 313, aff'd 125 N. Y. 776, 27 N. E. 409 . . . .415, 417, 428 Hayden, Matter of, 204 N. Y. 330 785 Hayden v. Sugden, 48 Misc. 108, or 96 Supp. 681 676 Hayer ads. Bair, 97 A. D. 358, or 90 Supp. 27 :..282, 290 Hayes, Matter of, 40 Misc. 500, 82 Supp. 792 390 Hayes v. Kerr, 19 A. D. 91, or 45 Supp. 1050 839 Hayne v. Sealy, 22 Misc. 243, or 48 Siipp: 769; aff'd 35 A. D. 633, 55 Supp. 1141 257 Haynes, Matter of, 82 Misc. 228, 143 Supp. 570 887, 890 Hayt ads. Haight, 19 N. Y. 464 135 Hayt ads. Purdy, 92 N. Y. 446 347 Hayward, Matter of, 44 A. D. 265, 60 Supp. 636 919 Hayward ads. Hood, 48 Hun, 330, or 1 Supp. 566; mod. 124 N. Y. 1, 26 N. E. 331 810, 811 Haywood v. Townsend, 4 A. D. 246, or 38 Supp. 517 .... 803 Hazard, Matter of, 51 Hun, 201, or 4 Supp. 701 786 Heaney, Matter of, 125 A. D. 619, or 110 Supp. 80 366 Heaney, Matter of, 59 Misc. 136, or 112 Supp. 208, and 116 Supp. 1143, and 118 Supp: 1328 396 Heany ads. Walbaum, 104 A. D. 412, or 93 Supp. 640 290 Hearns, Matter of, 214 N. Y. 426, 108 N. E. 816 268 Heath v. Cole, 15 Hun, 100 456 Heavy ads. Tuttle, 59 Barb. 334 710 Hechib, Matter of Application of, 71 Hun, 62, ox 24 Supp. 540 .. . 682 Heermans v. Hill, 2 Hun, 409 .. . 478 Heert, Est. of, N. Y. L. J., Apr. 15, 1916 400 Hegeman V. Pox, 31 Barb. 475..9, 10 Hegeman ads. Moore, 92 N. Y. 521, 44 Am. Sep. 408 17 Hegen, Matter of, 40 Misc. 511, or 82 Supp. 791 240 Heidt aids. Heinrieh, 106 A. D. 179, or 94 Supp. 423 281 Heilbron ads. Schneider, 115 A. D. 721, 101 Supp. 152 620 Heimberger, Matter of, N. Y. L. J., Jan. 19, 1916 906 Heimburger, Matter of, N. Y. L. J., Jan. 7, 1916 911 Heinerschnit ads. Howard, 16 Hun, 177 541 Heinrieh v. Heidt, 106 A. D. 179, or 94 Supp. 423 281 Heinsberg, Ma.tter of, N. Y. L. J., Nov. 9, 1934 521 Heitshusen, Est. of, N. Y. L. J., Mch. 17, 1915 (Bronx Surr.) . . 165 Helbrungj ' Est. of, N. Y. L. J., • May 29, 1935 378 Heldmann, Matter of, 153 A. D. 583, 138 Supp. 59 933 Heldmann, Matter of, 151 A. D. 234, or 135 Supp. 143 237 Hemingway ads. Beardslee, 65 Hun, 400, 20 Supp. 214 112 Henderson, Matter of, 157 N. Y. 423, 52 N. E. 183 914, 918 Henderson ads. Thacker, 63 Barb. 271 708 Henry, Matter of, 78 Misc. 339, ' , 139 Supp. 690 915 Henshaw, Matter of, 37 Misc. 536, 75 Supp. 3047 389 Hentz V. Havemeyer, 132 A. D. 56, or 116 Supp. 317 135 Herdtfelder ads. Lichtenberg, 103 N. Y. 302, 8 N. E. 526 297 Herkimer v. Rice, 27 N. Y. 163 267 Hermann, Matter of, 91 Misc. 464, or 154 Supp. 957; aff'd 159 Supp. 112S 479, 512, . 854 Hermann, Matter of, 83 Misc. 283, or 145 Supp. 293 508 Herrman, Est. of, N. Y. L: J., July 9, 1915 385 Hermann ads. Greenblatt. 144 N. Y. 13, 38 N. E. 966 ..'..".. 53, 54 TABLE OF CASES References are to pages. xll Hernandez, Matter of, 158 A. D. 815, 144 Supp. 150 936 Herriott v. Prime, 87 Hun, 95, or 33 Supp. 970; aflf'd 155 N. Y. 5, 49 N. E. 142 339 Herrington, Matter of, 73 Misc. 182, 132 Supp. 486 381 Herrington v. Lowman, 22 A. D. 266, or 47 Supp. 863 350 Hershkowitz, Matter of, N. Y. L. J., Nov. 9, 1914 ; 266 Hervy, Matter of, 67 Hun, 13, or 21 Supp. 685 326 Herzig ads. Joseph, 198 N. Y. 456, 92 N. E. 103, 114 Hess, Matter of, 85 Misc. 659, or 148 Supp. 1054 V 929 Hesaen ads. McKinley, 202 N. Y. 24, 95 N. E. 32 957 Hetzel V. Easterly, No. 7, 96 A. D. 517, or 89 Supp. 154 .... 397, 554 Heuaer, Matter of, 87 Hun, 262, or 33 Supp. 831 380 Hewitt, Matter of, 91 N. Y. 261 452 Hewitt, Matter of, 40 Misc. 322, or 81 Supp. 1030 298 Hewitt ads. Haug, 87 Misc. 67, or 150 Supp. 236 ,743, 824 Hewins ads. Van Alen, 5 Hun, 44 494 Hewlett V. Elmer, 103 N. Y. 156; 8 N. E. 387 958 Hibbard, Matter of, 89 Misc. 707, or 153 Supp. 1097 909 Hickey, Matter of, 34 Misc. 360, or 69 Supp. 844 368, 543 Hickey v. Dixon, 42 Misc. 4 . . . . 707 Hickman ads. Emans, 12 Hun, 425 228, 232, 233 Hickman ads. Girviri, 21 Hun, 316 813 Hickg V. Hicks, 12 Barb. 322 .... 171 Hicks V. Stebbins, 3 Lans. 39 .. 36 Hicks ads. Thompson, 1 A. D. 275, -. or 37 Supp. 340 101 Hicks ads. Young, Matter of Est. of, 92 N. Y. 235 842 Hidden, Matter of, 63 Misc. 535 118 Supp. 589 663 Higbee ads. Eyre, 35 Barb. 502 115, 270 Higbie v. Westlake, 14 N. Y. 281 334 Higginbotham, Matter of, 51 Misc. 158, 100 Supp. 414 317 Higgins, Matter of, 94 N. Y. 554 502, 958 Higgins, Matter of, 91 Misc. 387, 154 Supp. 670 253 Higgins, Matter of, 65 Misc. 415, or 124 Supp. 1005 215 Higgins, Matter of, 81 Misc. 579, 143 Supp. 552 348 Higgins, Matter of, 80 Misc. 609, 142 Supp. 1029 222, 223 Hildenbrand, -Matter of, 87 Misc. 471, or 150 Supp. 1067 . . 4")!), 403 Hill, Matter of, 166 A. D. 303, or 141 Supp. 791, aff'd 215 N. Y. 604, 109 N. E. 1078 214 Hill, Matter of, 43 Misc. 5S3, 89 Supp. 552 ITS Hill V. Guaranty Trust Co., 103 A. D. 374, or 148 Supp. 601 . . 397 Hill V. Hanford, 11 Hun, 536 .. 781 Hill ads. Heermans, 2 Hun, 409 478 Hill ads. Minehan, 144 A. D. 854, or 129 Supp. 873 .350 Hillis V. Same, 16 Hun, 76 610 Hills ads. VVinne, 91 Hun, 89, 39 Supp. 683 288 Hilton, Matter of, 29 Misc. 532, or 61 Supp. 1073 178 Hilton ads. Bailey, 14 Hun, 3 . . 951 Hilton ads. Russell, 80 A. D. 178, or 80 Supp. 563 ; aff'd 175 N. Y. 525, 67 N. E. 1089 223, 587 Hilton ads. Smith, 50 Hun, 236, or 2 Supp. 820 481 Hine v. Hine, 118 A. D. 585, 103 Svipp. 535 554 Hinman, Matter of, 147 A. D. 452, aff'd 206 N. Y. 653 15 Hinton ads. Elsworth, 47 Hun, 625 393 Hirsch, Matter of, 185 N. Y. 598, 78 N. E. 294 922 Hirsch, Matter, of. No. 1, 116 A. D. 367, or 101 Supp. 893; aff'd 188 N. Y. 584, 81 N. E. 1165 692, 896 Hirshfeld, Est. of, 88 Misc. 399, or 151 Supp. 846 742 Hiscox, Matter of, 135 A. D. 848, 120 Supp. 308; app. dism'd 200 N. Y. 584, 94 N. E. 1094 .... 528 Hitchcock V. Lensly, 17 Hun, 556 622 Hitchcock T. Peaslee, 145 N. Y. 547, 40 N. E. 211 911 Hitchler, Matt.er of, 21 Misc. 417, or 47 Supp. 1069 478, 889 Hitchler, Matter of, 25 Misc. 369, or 55 Supp. 640 973 Hoagland, Matter of, 51 A. D. 347, or 64 Supp. 920 and 79 Supp. 58; aff'd 164 N. Y. 573, 58 N. E. 1091 . i261 Hoagland, Matter of, 79 A. D. 56, 79 Supp. 1080 534. xlii TABLE OF CASES BefereUces are to pages. Hoaglaiid ads. Leask, 136 A. D. 658, or 121 Supp. 197 621 Hoctor V. Lavery, 51 A. D. 74, 64 Supp. 518 230 Hodenpyle ads. Columbus Watch Co., 61 Hun, 557, or 16 Supp. 337 ; aff'd 135 N. Y. 430, 32 N. E. 239 : i.; 542, 923 Hodges V. Webber, 65 A. D. 170, 72 Supp. ?08 146 Hodgman, Matter of, 82 Hun, 419, or 31 Supp: 263; dism'd 145 N Y. 637, 41 N. E. b9 . . 916 Hodgman, Matter of, 69 Hun, 484, or 23 Supp. 735, aff'd 140 N. Y. 421, 35 N. E. 660 . .376, 414 594, 611, 614, 618 Hodgman, Matter of, 11 A. D: 344, or 42 Supp. 1004, aff'd 161 N. Y. 627, 55 N. E. 1096 371, 377, 901 Hoenninger ada. Rostetter, 214 N. Y. 66, 308 N. E. 210 . . 437, 438 Hoes, Matter of, 54 A. D. 281, or 66 Supp. 664 270 Hoes V. Hoosen, 1 N. Y. 120 299, 602 Hoes ads. Kohn, 14 Misc. 63, 35 Supp. 273 :.... 506 Hoes V. N. Y. N. H. & H. R. R. Co., 173 N; Y. 435, 66 N. E. 119 105, 157 Hoesen ads. Hoes, 1 N. Y. 120 299 602 Hofeller ads. Altman, 152 N. y! 498, 46 N. E. 961 394 Hoffman, Matter of, 136 A'. D. 516, 121 Supp. 184 ...... .225, 896 Hofiman, Matter of, 62 Misc. 60O, or 115 Supp. 1081 974 Hoffman, Matter of, N. Y. L. J., Dec. 22, 1914 . . : 432 Hoffman, Matter of, 42 Misc. 90, or 8S Supp. 1082 .. . . 298 Hoffman v. Delaware & Hudson Co., 85 Misc. 535, or 147 Supp. 475 '. 145 Hoffman ads. Mills, 92 N. Y. 181 374 Hogan, Matter of, 78, Misc. 322,' or 139 Supp. 463 '. .... 175 Hogan V. Kavanaugh, 138 N. Y. 417, 34 N. E. 292 32'i,. 330 Hogarty, Matter of, 62 A. D. 79, or 70 Supp. 839. 408, 973 Hogg V. Lindridge, 151 A. D. 513^ 135 Supp. p28 , 41 Plogle V. Hogle, 49 Hun, '313l, 2 '■ .Supp. 172 ;.. 874 Hoguet ads. Whittlesey, 66 N. Y. '358 : 934, 935 Holbrook, Matter of, 39 Misc. 139, or 78 Supp. 972 413 Holden, Matter of Application of, 126 N. Y. 589, 27 N. E. 1063 970 HoUenbeck, Matter of, 195 N. Y. ' 143, 133 Am. St. Rep. 782, 88 N. E. 16 66 HoUins, Matter of, 79 Misc. 200, or 139 Supp. 713, aff'd 144 Supp. 1121 71 Hollister v. Burritt, 14 Hun, 291 92 Holly V. Gibbons, 176 X. Y. 520, 98 Am. St. Rep. 694, 68 N. B. 889 :. .'. 286, 344 Holmberg, Matter of, 83 Misc. 245, or 145 Supp. 846 ..448, 4S4 456 Hohne, Est. of, N., Y. L. J., Apr. 23, 1915 967 Holme, Matter of. Misc. N. Y. L. J., Mch. 16, ,1916 511 Holme, Matter of, 167 A. D. 237, or 152 Supp. 8'22 494 Holmes, Matter of. No. 2, 79 A. D. 267, 79 Supp. 687; aff'd 176 N. Y. 604, 68 N. E. 1118 925 Holmes v. Bilman, 138'K Y. 369, 20 L.R.A. 566, 34 Am. St, Rep. 463, 34 N. E. 205 . 644 Holmes' Will, Matter of, 152 Supp. 822, or 167 A. D. 237 ;. 513 Holyoke v. Mutual Life insurance Co., 22 Hun, 75, aff'd 84 N. Y. 648 .., :;.,.. 259 Holzworth, Matter of, 166 A. D. 150, or 151 Supp. 1072; aff'd 215 N. Y. 700, 109 N. E. 1079 699, 834 Holzworth, In re, N. Y. L. J., Feb.. 12, 1915 ....'..,,..;... 609 Homans v. N. Y. Life Ins. Co., 55 Misc., 574, 106 Supp. 929 - 157, 255 Hone V. De Peyster, 106 N. Y. 645, 13 N. E. 778 980 Hood, Matter of, 90 N. Y. 512 . . 396 Hood, Matter of, 98 N. Y. 363, and 104 N. Y. 103, 10 N. E. 35 631 Hood V. Hay ward, 48 Hun, 330, or 1 Supp. 566 ; mod. 124 N. Y. 1, 26 N. E. .-iSl 810, 811 Hood V. Hood, 85 N. Y. 561 812 ...: 813 Hook V. Pratt, 8 Hun, 102 .... 460 Hooper v. Beecher, 109 N. Y. 609, 15 N. E. 742 956, 962 TABLE OF CASES References are to pages. xliii Hooper ads. Brater, 77 Hun, 244, or 28 Supp. 487 630 Hooven ads. Post, 33 N. Y. 593 711, 755 Hopkins, Matter of, 95 A. D. 57, or 87 Supp. 793 , 179, 964 Hopkins, Matter of, 57 Hun, 9, 10 Supp. 2t>4 552 Hopkins, Matter of, 172 N. Y. 360, 65 L.R.A. 95, 92 Am. St. Rep. 746, 65 N. E. 173 468 Hopkins, Matter of, 43 Misc. 464, 89 Supp. 467, affd 102 A. D. 458, 92 Supp. 463 79 Kopkins, Matter of, 41 Misc. 83, or 83 Supp. 890; aff'd 93 A. D. 618, 37 Supp 768 500, 954 Hopkins, Matter of, 32 Hun, 618, aff'd 98, N. Y. 636 414 Hopkins v. Cameron, 34 Misc. 688, 70 Supp. 1027 45 Hopkins, Est. of, N. Y. L. J., Jan. 13, 1915 634 Hopkins ads. Kent, 86 Hun, 611, 33 Supp. 767 62 Hopkins v. Lott, 111 N. Y. 577, 19 N. E. 273 982 Ho]' ler ads. American Seaman's Friend Society, 33 N. Y. 619 974 Hopper V. Hopper, 125 N. Y. 400, 12 L.R.A. 237, 16 N. E: 457 , 529, 530 Hopper V. Sage, 132 N. Y. 530, 8 Am. St. Rep. 771, 20 N. , E. 350 665 Horn, Matter of, 7 A. D. 89, or 39 Supp. 954 388 Horsfleld v. Black, 40 A. D. 264, or 57 Supp. 1006 92 Horton, Matter, of, 169 A. D. 292, 154 Supp. 827 478 Horton, Matter of, 217 N. Y. 363 496 Horton, Matter of, 163 A. D. 213, 148 Supp. 18 949 Horton V. Brown, 29 Hun, 654, aff'd 102 N. Y. 698 982 Horton v. Cantwell, 108 N. Y. 255, 15 N. E. 546 519 Horton ads. Lee, 104 N. Y. 538, , ' 11 N. E. 51 .!.... 607 Horton v. McCoy, 47 N. Y. 21 .. . 440 Hortsmann v. Flege, 61 A. D. 518, or 70 Supp. 596,, aff'd 172 N. Y. 381, 65 N. E. 202 42 Horsford, Matter of, .27 A. D. 427, or 50 Supp. 550 ] , 256 House v. Jackson, 50 N. Y. 161 35 House V. Raymond, 3 Hun, 44 . . 339 Hovell V. Noll, 10 Misc. 546, 31 Supp. 439 782 Hovey v. Smith, 1 Barb. 372 136, 238 Howard, Matter of, A\ Y. L. J., Mch. 28, 1916 411 Howard, Matter of, 5 Misc. 293, 25 Supp. 832 711 Howard, Matter of, 11 Misc. 224, or 32 Supp. 1098 288 Howard, Matter of, 110 A. D. 61, or 97 Supp. 23; aff'd 185 N. Y. 539, 77 N. E. 1189 636 Howard's Estate, Matter of, 3 Misc. 170, or 23 Supp. 836 233, 545 Howard v. Heinerschmit, 16 Hun, 177 ■ 541 Howard ads. Rowland, 75 Hun, 1, or 26 Supp. 1018 288 Howard ads. White, 52 Barb. 294, aff'd 46 N. Y. 144 .. 49, 72, 514 Howell, Matter of, N. Y. L. J., July 31, 1915 . : 968, 970 Howell ads. Barr, 85 Misc. 330, 147 Supp. 483 34 Howell V. Howell, 30 Hun, 625 819 !I54 Hoyt, Matter of, 55 Misc. 159, or 106 Supp. 359 492 Hoyt, ,Matter of, 160 N. Y. 607, 48 L.R.A. 126, 55 N. E. 282 . . : ' 379 Hoyt, Matter of, 31 Hun, 176 538 Hoyt V. Hovt, 85 N. Y. 142 .... 330 Hoyt V. Bonnett, 50 N. Y. 538 111, 280 Hoysradt v. Kingman, 22 N. Y. 372 . . . , 458 Hoyt ads. U. S. Trust' Co., 150 A. D. 621, or 135 Supp. 849 ... 19, 57, 78 Hubbard, Matter of, 82 N. Y. 90 824 Hubbard v. Hubbard, 12 Barb. 148, aff?d 8 N. Y. 196 ....438, 504 Huber, Matter of, N. Y. L. J., Oct. 9, 1914 490 Huber ads. Lochner, 42 A. D. 439, or 59 Supp. 447 . 68 Huck V. Kraus, 50 Misc. 528, 99 , Supp. 490 , 266 Hudson, Matter of, 37 Misc. 539, 75 Supp. 1053 159, 165 Hudson V. Reeve, 1 Barb. 89 13G Hudson ads. Voelckner, 1 Sandf. Super. Ct. 215 33 Huebsch, Matter of, 87 Misc. 566, or 151 Supp. 377 740, Huebsch, Matter of, N. Y. L. J., Nov. 25, 1914 743 xliv TABLE OF CASES References are to pages. Huggins, Est. of, N. Y. L. J., Aug. 4, 1915 967 Huggins ads. O'Conner, 113 N. Y. 511, 21 N. E. 184 181 Hughes, Matter of, 95 N. Y. 55 . . 157 Hughes ads. Farmers' Loan & Trust Co., 11 Hun, 130 693 Hughes ads. The Public Adminis- trator, 1 Bradf. 123 72 Hull, Matter of, 67 Misc. 40, 124 Supp. 620 417 Hull, Matter of, 97 A. D. 258, or 89 Supp. 939 367 Hull V. Cartledge, 18 A. D. 54, 45 Supp. 450 537. Hulse, Matter of, 41 Misc. 307, or 84 Supp. 220 245 Humphreville, Matter of, 154 N. Y. 115, 47 N. E. 1086 ;. 925 Humphreville, Matter of, 8 A. D. 312, or 40 Supp. 939 ... . 919 Humphreville, Matter of, 6 A. D. 535, or 39 Supp. 550 294 Hun, Matter of, 144 N. Y. '472, 39 N. E. 376 298 Hunken ads. Morris, 40 A. D. 129, or 57 Supp. 712 '.... 947 Hunt, Matter of, 121 A. D. 96, or 105 Supp. 696 387, 408 Hunt, Matter of, 82 Mise. 211, 143 Supp. 997 600 Hunt, Matter of, 42 Hun, 434, aff'd 110 N. Y. 278, 18 N. E. 106 454 Hunt, Matter of, 110 A. D. 533, or 97 Supp. 408. :-.... 387 Hunt, Matter of 38 Misc. 613, 78 Supp. 105 .. ... ... . . 533 Hunt, Matter of, 38 Misc. 721, 78 Supp. 291 : 606 Hunt, Matter bf, 84 A. D. 159, or 82 Supp. 538; afl'd 179 X. Y. 570, 72 N. E. 1143. ...... 368, 372 Hunter v. Hunter, 19 Barb. 631. 143 Hilnt V. Kingston, 3 Misc. 309, 19 L.R.A. 3T7, 23 Supp. 352 64 Hunt ads. Moultrie, 23 N.' Y. 394. 472 Hunt ads. McLouth, 154 N. Y. 179, 39 L.R.A. 230, 48 N. E. 548. . . 668 Hunter ads. Leggett, 19 N. Y. 445 .638, 675 Huntington ads. MeNulta, 62 A. D. 257, or 70 Supp. 897 133 Huntley, Matter of, 13 Mise. 375, ' 35 Supp. 113 586, 591 Huntley ads. Kittle, 67 Hun, 617, or 22 Supp. 519 229, 230 Hurd, Matter of, 6 Misc. 171, or 26 Supp. 893 900 Hurd V. Hannibal & St. Joseph E. C. Co'. 30 Hun, 109. ...... V. . . 200' Hurlbut, Matter of, 51 Misc. 263, 100 Supp. 1098 347, 395 HuTlburt, Matter of, 43 Hun, 311. 369j 889 Hurst, Matter of. 111 A. D. 460, 97 Supp. 697. 417 Hussey, Matter of, 67 Misc. 32, 124 Supp. 426 612 Hustace ads^ Lane, 154 A. D. 636, 139 Supp. 784 635 Husted V. Thompson, 158 N. Y. ^328, 53 N. E. 20. 673 Bfutcliinson, Matter of, 84 Hun, 563, or 32 Supp. 869 696 Hutchinson v. Campbell, 13 Misc. 152, 34 Supp. 82 544 HutehiriSon ads. Lincoln Trust Co., 65 Misc. 590, or 120 Supp. 811 33 Hutchinson ads. Valentine, 43 Misc. 314, or 88 Supp. 862... 46, 47 Hutchinson ads. WiUiams, 3 N. Y. 313, 53 Am. Dec. 301 781 Huth, Matter of, 88 Misc. 458, 152 Supp. 215 229 Huyck, Matter of, 49 Mise. 391, or 99 Supp. 502 26 Hyatt, Matter of, 80 Misc. 467, 142 Supp. 455 301, 302, Hyatt V. Allen, 56 N. Y. 553 667 Hyatt V. Pugsley, 33 Barb. 373, and 23 Barb. 285 55, 61 Hyatt, Matter of, v. Seeley, 11 N. Y. 52 706 Hyde, Matter of, N. y. L. J., May, 4, 1916 .". 861 Hyland, Matter of, 218 N. Y. 93 904 Hyland, Matter of, 24 Misc. 357, or 53 Supp. 717 ]2 Hyland v. Baiter, 98 N. Y. 610 345, 831 Hynes, Matter of, 105 N. Y. 560, 12 N. E. 60 707, 70S Hynes v. Alexander, 2 A. D. 109, 37 Supp. 527 ..: 819 Hynes v. McDermott, 91 N. Y. 451, 43 Am. Rep. 677 13, 14 Ide v. Brown, 178 X. Y. 26, 70 N. E. 101 706 Ilkow, Matter of, 66 Mi^c. 418, 121 Supp. 207 888 Illinois Central R. R. Co. ads. Cooper, 38 A. D. 22, 37 Supp. 925. 269, 636. TABLE or CASES xlv Keferences are to pages. lovinella, Matter of, 166 A. D. 460, or 151 Supp. 1007. . . .497, 904 Industrial School Assn. ads. Lyon, 127 N. Y. 402, 28 N. E. 17. . . 613 Ingersoll, Matter of, 95 A. D. 211, or 88 Supp. 698. n. 413 Ingersoll, ads. County of Tomp- kins, 81 A. D. 344, or 81 Supp. 242, afl'd 177 N. Y. 543, 69 N. E. 1132 102 Ingersoll v. Mangan, 84 N. Y. 622 887 Ingraham ads. Post, 122 A. D. 738, or 107 Supp. 737 820 Ingram, Matter of, 67 Mise. 27, or 124 Supp. 622 416 International Bank, ads. Wilson, 125 A. D. 568, or 109 Supp. 1027 110 International Giant Safety Coast- er Co. ads. Provst, 152 A. D. 83, or 136 Supp. 654, aflf'd 208 N. Y. 635, 102 N. E. 1112. .... 144 Ireland, Matter of, 47 Mise. 545, or 95 Supp. 1079 865 Ireland v. Corse, 67 N. Y. 343. . . 431 Irish ads. Dole, 2 Barb. 639 843 Irvin, Matter of, 24 Misc. 353, 53 Supp. 715 386 Irving, Matter of, 153 A. D. 728, or 138 Supp. 784; aff'd 207 N. Y. 765, 101 N. E. 1106 .... 452 Irving V. Irving, 21 Misc. 743, or 47 Supp. 1025 675 Irwin, Matter of, 68 A. D. 158 or 74 Supp. 443 791, 793 Irvi'in, Matter of, 59 Misc. 143, 112 Supp. 205 664, 665 Irwin V. Teller, 188 N. Y. 25, 80 N. E. 376 615 Isole V. Weber, 12 A. D. 267, or 42 Supp. 615 976 Jack, Matter of, 52 Misc. 424, or 102 Supp. 383 843 Jackson, Matter of, 32 Hun, 200 408 Jackson ads. O'Brien, 167 N. Y. 31, 60 N. E. 238 538, 540, 638 Jackson ads. House, 50 N. Y. 161 35 Jackson v. Jackson, 39 N. Y. 153 452, 458, 459, 514 Jackson v. Johnson, 5 Cow. 74 . . 48 Jackson ads. Monot, 40 Misc. 197, or 81 Supp. 688 650 Jackson v. O'Donaghy, 7 Johns. 247 33 Jackson ads. Sanford, 10 Paige Ch. 266 41 Jackson ads. Stagg, 1 N. Y. 206 371 Jacobs, Matter of, 73 Misc. 162, 132 Supp. 481 447, 449, 458 Jacobs, Matter of, 109 A. D. 293, or 96 Supp. 133 277 Jacobs, Matter of, 5 A. D. 508, 38 Supp. 1083 580 Jacobs V. Fowler, 135 A. D. 713, 119 Supp. 647 7 Jacobsen v. Levina, 59 Mise. 449, 110 Supp. 1002 427 Jacobs V. Steinbrink, 164 A. D. 715, 149 Supp. 337 650, 1648 Jacques v. Elmore, 7 Hun, 67.5 . . 591 Jaeger v. Bowery Bank, 8 Misc. 150, or 29 Supp. 53 137 James, Matter of, 78 Hun, 121, or 28 Supp. 992; afif'd 146 N. Y. 78, 48 Am. St. Rep. 774, 40 N. E. 876 667, 669 Jameson ads. Pitts, 15 Barb. 310 111 Jamison v. Citizens Savings Bank of Jefferson, Texas, 85 N. Y. 546 930 Jameson ads. Seaman, 146 A. D. 428, 131 Supp. 155 129 Jamison ads. Seaman, 188 A. D. 832, 144 Supp. '209 291 Jamison ads. Aborn, 62 Misc. 95, or 113 Supp. 309 , 710 Janssen ads. Prentice, 14 Hun, 548, afi'd 79 N. Y. 478 343 Jardine v. O'Hare, 66 Misc. 33, 122 Supp. 463 09 Jarvie, Matter of, 77 Mise. 309, 137 Supp.. 083 104 Jay V. Kirkpatrick, 26 Misc. 550, 57 Supp. 476 137 Jefferson Co. Savings Bank ads. Mierke, 208 N. Y. 347, 46 L.R.A. (N.S.) 194, 101 N. E. 889, Ann. Cas. 1914D, 21 257 Jermain ads. Craver, 17 Misc. 244, 40 Supp. 1056 756 Jenkins, Matter of, 132 A. D. 339, 117 Supp. 74 371 Jenkins ads. Mead, 95 N. Y. 31 . . 150 Jenkins v. Young, 43 Hun, 194 . . 338 Jenny, People ex rel. v. Brown, 83 Misc. 495, or 146 Supp. 123 . . 757 Jerome ads. Casoni, 58 N. Y. 315 91, 198, 202, 203, 803, 804, 809 Jessup V. Smith, 170 A. D. 605, 156 Supp. 553 697 Jewett V. Keenholts, 16 Barb. 193 331 Jewitt V. Schmidt, 83 A. D. 276, or 82 Supp. 49 527, 630, 683 Joerg ads. Coombs, 125 A. D. 615, or 110 Supp. 6 278 Joost, Matter of, 50 Misc. 78, 100 Supp. 378 256 xlvi TABLE OF CASES References are to pages. John, Matter of, 78 N. Y. 248 . . 750 Johnson, Matter of, 27 Hun, 538 934 Johnson, Matter of, 37 Misc. 334, 75 Supp. 489 .. 510 Johnson, Matter of, 27 Misc. 167, or 58 Supp. 601 998 Johnson, Matter of, 42 Misc. 651, 87 Supp. 733 533 Johnson, Matter of, 170 N. Y. 139, 63 N. E. 63 419 Johnson, Matter of, 32 A. D. 634, 52 Supp. 1081 317 Johnson v. Bennett, 39 Barb. 237 644 Johnson ads. Butler, 111 N. Y. 204, 18 N. E. 643 151, 281 Johnson v. Corbett, 11 Paige, Ch. 265 .....'.... 33 Johnson v. Hartshorne, 52 N. Y. 173 113 Johnson V. Halrvey, 84 N. Y. 363, 38 Am. St. Eep. 515 816 Johnson ads. Jackson, 5 Cow. 74 48 Johnson v. Lawrence, 95 N. Y 154 408 Johnson v. Mvers, 103 N. Y. 666, 9 N. E. 55 ■ 983 Johnson ads. Pittman, 35 Hun, 38, afl'd 102 N. Y. 742 621 Johnson ads. Stoddard, 13 Hun, 606 616 Johnson v. Wallis, 112 Ni Y. 230, 2 L.R.A. 828, 8. Am. St. Eep. 742, 19 N. E. 653 140 Johnston, Matter of, 76 Misc. 374, or 137 Supp. 92 915, 918 Jones, Matter of, 28 Misc. 599, or 59 Supp. 1020 224, 589 Jones, Matter of, 53 A. D. 164, or 65 Supp. 865 , 379 Jones, Matter of, 19 Misc. 80, 43 Supp. 965 ; . , . . 10 Jones, Matter of, 70 Misc. 154, or 128 Supp. 477 5, 6, 195 Jones, Matter of, 30 Misc. 354, or 63 Supp. 726; aff'd' 51 A. D. ■420, 64 Supp. 667 ...' 366, 372 Jones, Matter of, 143 A. D. 692, or 128 Supp. 215; aff'd 207 N. Y. 731, 101 N. E. 1106 697 Jones, Matter of, 103 N. Y. 621, 57 Am. St. Rep. 775, 9 N. E. 493 649 Jones, Matter of, Est. of, 3 Misc. 586, 24 Supp. 706 348 Jones V. Arftenburgb, 112 A. D. 483, or 98 Supp. 532 and 114 Supp. 440 398 Jones V. Bevillard, 209 N. Y. 446, 103 3sr. E. 719 ■ 635 Jones ads. Biiigham, 25 Hun, 6 . . 93 Jones V. Fleming, 104 N. Y. 418, 10 N. E. 693 41 Jones ads. Knox, 47 N. Y. 389 . 49, 593 Jones ads. Lewis, 50 Barb. 645 . . 440 Jones ads. Mason, 2 Barb. 229 55,' 75 Jones ads. Minor, 2 Redf. 289 at p. 293 ; . .. 72 Jones, People ex rel. v. Davidson, 35 Hun, 471 927 Jones ads. Wildmari, 150 A. D. 514, or 135 Supp. 428; app. dismM 209 1^. Y. 531, 102 N. E. 1117 289 Jordan, Matter of, 50 A. D. 244, * or 63 Supp. 911 373 Jorrin ads. Olcott, 36 Misc. 735, 74 Supp. 393 108 Joseph V. Herzig, 198 N. Y. 456, 92 N. E. 103 114 Joslin, Matter of, 74 Misc. 332, 134 Supp. 229 ■ 847 Jouffret V. Toppin, 20 A. D. 455, or 46 Supp. 810 328 Journal of Finance Publishing Co.,' The, ads. Gray, 2 Misc. 260, or 21 Supp. 967 880 Judson, Matter of, 92 Misc. 136, 156 Supp. 270 178 Judson V. The Chemung Canal .Bank, 8 N. Y. 254 831 Judge ads. Flynn, 149 A. D. 278. 133 Supp. 494 403 JuTgens V. Kogge, 16 Misc. 100, or 37 Supp. 249 43 Kaesche ads. Orth, 165 A. D. 513, 150 Supp. 957 509 Kager V. Brenneman, 47 A. D. 63, or 62 Supp. 339, and 52 Supp. 447 377 Kahn v. Chapin, 152 N. Y. 305, 46 , N. E. 489 644 Kahn v. Hoes, 14 MiSc. 63, 35 Supp. 273 506 Kain v. Fisher, 6 N. Y. 598 3ti Kaiser ads. Knothe, 2 Hun, 575 . . 718 Kalbfleisch y. Kalbfleisch, 67 N. Y. 354 , 330 Kalbfleisch ads. Wade, 58 N. Y. '282 135 Kamp V. Kamp, 59 N. Y. 212 . . .:. 83S Kane, Matter of, 64 A. D. 566, 72 ■ Supp. 333 .241, 347 Kane. Matter of, 38 Misc. 276, or 77 Supp.'874 ...: 248 TABLE OF CASES Keferences are to pages. xlvii Kane ads. Blood, 130 IST. Y. 514, 15 L.E.A. 490, 29 N. E. 994 . .527, 536, 602 Kaplan, Est. of, N, Y. L. J., Mch. 22, 1916 ;..; 97 Karstena v. Karstens, 20 ,Mise. 248, or 45 Supp. 966, aff'd 29 A. D. 229, or 51 Supp. 795 ... . 4 Kasson, Matter of, 46 A. D. 348, 61 Supp. 569 580 Kaufman, Matter of, 93 Misc. 408 742 Kaufman, Matter of Will of, 131 N. Y. 620, is L.E.A. 292, 30 A'. E. 242 ., 464 Kavanaugli ads. Slogan, 138 N. Y. 417, 34 N. E. 292 324, , 330 Kayer v. Brenneman, 47 A. D. 63, or 62 Supp; 339, and 52 Supp. 447 ,...,.....'. 359 Keane, Matter pf, N. Y. L. J., Apr. 17, 1916 396, 646 Kearney y. McKeon, 85 N. Y. 136 288 Kearnv ads. People, The, 31 Barb. , 430 " 714 Keating v. Stevenson, 2\ A. D. 604, or 47 Supp. 847 673 Keator ads. Van Vechten, 63 N. Y. 52 .....'. 117 Keef , Matter of, 43 Hun, 98 .... . 400 Keefe, In re, N. Y. L. J., June 16, 1915 547 Keefe, Matter of, 164 N. Y. 352, 58 N. E. 117 958 Keeffe, Matter of, 155 A. D. 575, or 141 Supp. 5 ; afl^'d 209 N. Y. 535,102 N.E. 1104 454 Keegan v. Smith, 31 Misc. .651, 64 " Supp. 1117, aflf'd 172 N. Y. 624, 65 N. E. 1118..;.... 802 Keegan v. Smith, 60 A. D. 168, 70 Supp. 260, aff'd 172 N. Y. 624, 65 N. E. 1118... ; 805 Keeler v. Frost, 22 Barb. 400 635 Keenan, Mattei: of, 15 Misc. 368, 38 Supp. 426 , , 612 Keenan ads. Callanan^ 158 A. D. ' 84, 142 Supp. 561 . 141 Keeney v. Morse, 34 Misc. 114, or 69 Supp. 5?5;. aff'd 71 A. D. ;,104, 75' Supp. 728 .' , ^ 300 Keenholts adsi Jewett, 16 Barl?. 193 ''. .;.. ; 331 Kelaher v. McCahill, 26 Hun, 148 779 Kelliher v. N. Y. C. & H. E. R. R. , . Co., 212 N. Y. 207, L.R.A. 1915E,,1178, IQp N. E. 824. . . . 145 Kellogg, Matter of, ,72 Misc. 303, 131 Supp. 203 '. 252 Kellogg, Matter of, 187 N. Y. 355, 13 L.R.A.(N.S.) 288, 80 N. E. 207 711 Kellogg, Matter of, 104 N. Y. 648, 10 N. E. 152 953, 961 Kellogg, Matter of, 214 N. Y. 460, 108 N. E. 844 632, 678 Kellogg ads. Aikin, 119 N. Y. 441, 23 N. E. 1046 38, 41„ 42, 44 Kellogg V. Kellogg, 169 A. D. 395, 155 Supp. 310 374 Kellogg V. Stoddard, 89 A. D. 137, , or 84 Supp. 1015 .. 270 Kellogg ads. Webster, 168 A. D. 443, 153 Supp. 791 157 Kellum's Will, Matter of, 52 N. Y. 517 . . ..447, 503, 504 Kelly, Matter of, 77 Misc. 309, 137 Supp. 683 104 Kelly ads. Allen, 55 A. D. 454, or 67 Supp. 97 757, 809, 812, 815 Kelly V. Kelly, 5 Lans. 443 61 Kelly, ' Matter Of v. Langevin, 153 A. D. 322, 137 Supp. 1099. .796, 864 Kelly V. Pratt, 41 Misc. 31, or 83 Supp. 636 298 Kelly ads.: St. Vincent de Paul, Sisters of Charity, 67 N. Y. 409 451 Kelly V. West, ,80 N. Y. 139 . . 198, 806 Kemp v. Macready, 165 A. D. 124, 150 Supp. 618,.....,. :,. 664 Kemp V. N. Y. Produce Exchange, 34 A- D. 175, or 54 Supp. 678 78 Kempf's Will, Matter of, 107 Supp. (A. D.) 277, modifying , 53 Misc. 20Q, 104 Supp. 585. . . 429 Kennedy, Matter of, 167 N. Y. 163, 60 N. i;. 442 505, 510 Kennedy adsi Berkeley, 62 A. D. 609, or 70 Supp. 899 255 Kennedy v. Ryall, 67 N. Y. 379 . . 10 Kennedy v. Steele, 35 Misc. 105, or 71' Supp. 237. 222 Kenny, Matter of, 92 Misc. 330, or 156 Supp. 827 835 Kent, Matter .of, 92 Misc. 113,, 155 Supp. 383... 378, 389, 700, , , 834, 892 Kent, Matter of, 89 Miss. 16, or 152 Supp., 557 462, 507 Kent ads. Bowron, 190 N. Y. ,422, 83 N. E. 472 62 Kent V. Hopkins, 86 Hun, 611, 33 , Supp. 767 ,..^ 62 Kenworth, Matter of, 63 Hun, • 165, or 17 Supp. 655 413, 550 Kenyon ads. Van Ness, 208 N. Y. .. 228, 101 N. E. 881, Ann. Cas. 1914D, 221 280, 285 xlviii TABLE OF CASES Eeferenoes are to pages. Keoleiaji, Matter of, N. Y. L. J., May 11, 1916 215 Kernochan, Matter of, 104 N. Y. 618, 11 N. E. 149 667 Kernochan v. Murray, 111 N. Y. 306, 2 L.R.A. 183, 7 Am. St. . Rep. 744, 18 jST. E. 868 108 Kerr ads. Davis, 3 A. D. 322, or 38 Supp. 387 635, 637 Kerr v. Dougherty, 17 Hun, 341, aff'd 79 N. Y. 327. 611 Kerr ads. Hayes, 19 A. D. 91, or 45 Supp. 1050 839 Kerr v. Kerr, 41 N. Y. 272 2,14 Kerwin, Matter of, 59 Hun, 589, or 14 Supp. 353 824 Ketcham, Matter of, 62 Misc. 596, 116 Supp. 1125.-..., :278 Ketchum ads. Tobias, 32 N. Y. 319 43 Keteltas v. Keteltas, 72 N. Y. 312, 28 Am. Kep. 155 70 Keteltas ads. Smith, 62 A. D. 174, or 70 Supp. 1065; aflBrm- ing 32 Misc. Ill, 66 Supp. 260 650 651 Keteltes ads. Harrington, 92 N. Y. iO .: 130, 255 Kettell V. Baxter, 50 'Misc: 428, or 100 Supp. 529 18, 57 Keyes v. Metropolitan Trust Co., 169 A. D. 765, 155 Supp. 888. . 287 Keves ads. Olmsted, 85 KT. Y. 593 68 K.'G. (Sr. M. A. Assn. ads. B. L. T. & S. D., 126 N. Y. 450, 22 Am. St., Kep. 839, 27 N. E. 942 721 Kich V. . Grenier, 56 N. Y. 220 . . . . 55 Kiernan, Matter of, 38 Misc. 394, 77 Supp. 924 v:. .12, 231 Killan, Matter of, 172 N. Y.,547, 63 L.E.A. 95, 65 N. E. 561 . . 392, 884, 929, 9S5, 961 Kimball ads. Donlon, 61 A. D. 31, or 70 Supp. 252 506 Kindberg, Matter of, 207 HT. Y. 220, 100 N. E. 789 .498, 510 King, Matter of, 122 A. D. 354, or 106 Siipp. 1073 225, 420 King, Matter of, 42 Hun, 607 .. . 748 King. Matter of, 89 Misc. 638, or 154 Supp. 238 498 King, Matter of, v. Ashley, 179 N. Y. 281, 72 N. E. 106 . . 960 King ads. Ha^call, 165 N. Y. 288, 59 N. E. 132 ..; .'. .:. 976 Kingman ads.' Hoysradt, 22 N. Y. 372 :.. 458 King v. King, 39 Hun, 2?0, aff'd 109 N. Y. 619, 15 N. E. 895. . . 513 King V. Leighton, 100 N. Y. 386, 3 N. E. 594 110 King ads. Little Falls National Bank, 53 A. D. 541, or 65 Supp. 1010 and 62 Supp. 624 . . 329 King V. Talbot, 40 N. Y. 76 . .413, 606, 613, 614, 630, 643, 660, 661, 665 King ads. Van Arsdale, 155 N. Y. 325, 49 N. E. 866 959 Kings County Trust Co., Matter of, 69 Misc. 531, 127 Supp. 879 420 Kings Co. Trust Co.,' ads. Strubbe, 60 A. D. 548, or 69 Supp. 1092; aff'd 169 N. Y. 603, 62 N. E. 1100 824 Kingsford, Est; of, N. Y. L. J. Oct. 25, 1915, N. Y. Surr 12 Kingsland, Matter of, 60 Hun, 116, 14 Supp. 495, aff'd 133 N. Y. 170, 3d K E. 845 325 Kingsland v. M^urray, 133 N. Y. 170, 30 N. E. 845, or 14S . . 325, 930 Kingsley ads, Clark, 37 Hun, 246 599 Kingston ads. Hunt, 3 Misc. 309, 19 L.E.A. 377, 23 Supp. 352 . . 04 Kinkholder, Matter of, 171 A. D. 153, 157 Supp. 37 512 Kinn, Matter of, 139 A. D. 766, 124 Supp. 569 . . ' ; 975 Kinneally, Matter of, v. People, 98 A. b. 192, 90 Supp. 587 . . . 994 Kinnier v. Rogers, 42 N. Y. 53l 342 Kinsella, Matter of, 50 Misc. 235, ' 100 Supp.' 485 , . 791 Kinyon v. Kinyon, '6 Misc. 584, 27 Supp. 627 .;.. .. . 402 Kiolin, Matter of, 37 Misc. 187, or 74 Supp, 937 . . . . .449, 973 Kip ads. Fanners' Loan & Trust Co., 192 N. Y. 266, 85 JT. E. 59 229, 602 Kip ads. Hart, 148 N. Y. 306, 42 ' N. E. 712 ' ■.:: 8 Kirehner v. Kirchner, 71 Misc. 57, or 127 Supp.' 399 648 Kirk V. McCann, 117 A. D. 56, or 101 Supp. 1093 .'.... ,. 397 Kirk V. Richardson; Matter of, 32 Hun, 434 : . 46 Kirkham ads. Paddock, 102 N. Y. 597, 8 N. E. 214 901 Kirkmau v. Kirkman, 20 Misc. 211, or 45 Supp. 373; aff'd 26 A. D. 395, 49 Supp. 683 112 Kirkpatrick ads. Jay, 26 Misc. 550, 57 Supp. 476 137- TABLE OF CASES zliz Eeferences are to pages. Kirschner, Matter of, 89 Misc. 717, or 153 Supp. 1094 211 Kittel V. Domeyer, 175 N. Y. 205, 67 N. E. 433 248 Kittle V. Huntley, 67 Hun, 617, or 22 Supp. 519 229, 230 Kissam, Matter of, 59 Misc. 307, 110 Supp. 158 470, 478 Kissam v. Squires, 102 A. D. 536, 92 Supp. 873 665 Klatte, Matter of, 92 Misc. 651 . . 229 Klatzko, Est. of, N. Y. L. J., Dec. 19, 1914 302 Klein, Matter of, 80 Misc. 377, or 142 Supp. 557 719 Klein, Est. of, N. Y. L. J., June 24, 1916 746 Kleman ads. Conrie, 162 A. D. 570, 147 Supp. 589 344 Klingenstein, Matter of, 156 A. D. 749, 141 Supp. 742 745 Klinger ads. Schlesin^er, 112 A. D. 853, 98 Supp. 545 45 Klopscli ads. Morales, 158 A. D. 824, 143 Supp. 922 ... 130 Klugh, Est. of, N. Y. L. J., Feb. 10, 1916 915 Klumpf, Est. of, N. Y. L. J., May 2, 1916 516 Klunck, Matter of, 33 Misc. 267, 68 Supp. 629 780 Knab, Matter of, 38 Misc. 717, or 78 Supp. 292 . . . 228, 382 Knabe, Matter of, 94 Misc. 67, 157 Supp. 267 42 Knabe, Est. of, N. Y. L. J., Feb. 2, 1916 43 Knapp, Matter of, 25 Misc. 133, 54 Supp. 927 239, 331 Knapp ads. Browii, 17 Hun, 160, rev'd 79 N. Y. 136... . .140, 612, 613, 617 Knapp V. Knapp, 10 N. Y. 276 .. . 505 Knapp ads. Patterson, 83 Hun, 492, or 32 Supp. '32 898 Knibbs, Matter of, 45 Misc. 83, or 91 Supp. 697 ; mod. 108 A. D. 134, 96 Supp. 40 969 Knight ads. Cunningham, 1 Barb. 399 37, 45 Knothe v. Kaiser, 2 Hun, 575 ... 71 S Knox ads. American Bible Soc, 52 N. Y. 125 . ; 447, 448 Knox ads. Gilbert, 52 N. Y. Ur, ' ' 447, 448 Knox V. Jones, 47 N. Y. 389 . .49, 593 Knox ads. Miller, 48 N. Y. 232 109, 235, 236 Knox V. Nobel, 77 Hun, 230, 28 Supp. 355 108 Koch, Matter of, 33 Misc. 672, 68 Supp. 938 929 Koenig v. Wagener, 126 A. D. 772, 111 Supp. 116 149 Kohler, Matter of, 91 Misc. 462, 154 Supp. 958 627 Kohlman ads. Uhl, 52 A. D. 455, 65 Supp. 197 994 Konvalinska v. Schlegel, 104 K. Y. 125, 58 Am. Eep. 494, 9 N. E. 868 42 Korte, Matter of, 78 Misc. 270, or 139 Supp. 444 23 Kortwright v. Storminger, 49 Hun, 249, or 1 Supp. 880 634 Krakauer, Matter of, 33 Misc. ■ 674, or 68 Supp. 935 ; . . SSr. Kranz, Matter of, 41 Hun, 463 . . 028 Kraus ads. Huck,. 50 Misc. 528, 99 Supp. 490 266 Kreidler, Matter of, 68 Misc. 412, 124 Supp. 628 971 Kreischer, Matter of, 30 A. D. 313, or 51 Supp. 802 789 Kriegsfeld, Matter of, N. Y. L. J., Mch. 10, 1916 25 Krisfeldt, Matter of, 49 Misc. 26, 97 Supp. 877 ....118, 429, 553, 660, 719 Krogg, Matter of, 84 Misc. "676, or 147 Supp. 887 724 Krog-man, Matter of, N. Y. L. J., Dee. 31, 1915 43 Kroog, Matter of, 89 Misc. 35, or 152 Supp. 553 800 Kroog, Matter of, 84 Misc. 676, or 147 Supp. '887 and 152 Supp. 553 .... 104, 159, 164, 165, 200, 558 Krouse ads. Oroen, 89 Hun, 1, or 34 Supp. 1004 . 231 Krouse ads. Van Orden, 89 Hun, 1, or 34 Supp. 1004 235 Krudop ads. Bradley, 128 A. D. 200, 112 Supp. 609 475 Krueger v. Schlinger, 19 Misc. 221, 43 Supp. 305 551 Kucielski, Matter of, 49 Misc. 404, 99 Supp. 828 610 Kunkler, Est. of, N. Y. L. J., Det. 20, 1914 : 220, 580 Kuntz, Matter of, 163 A. D. 125, 148 Supp. 332 447, 469 Kutter, Matter of, 79 Misc. 74, 139 Supp. 693 .: 214, 215 Kyle V. Kyle, 67 N. Y. 400 294 TABLE OF CASES Keferences are to pages. Laddy. ads. Boynton, 50 Hun, 339, ,3 Supp. 393 .^,.... i988 Ladies' Union Benevolent Society . V. Van Natta, 96 A. D.' 99, or 88 Supp. 1083 984 Laffargue, Matter of, 142 A. D. 426, or 126 Supp. 965; aff'd 202 N. Y. 614 365 Laflin v. Griffiths, 35 Barb. 58 ... 238 I^alin V. Sullivan, 116 A. D. 669, '. ■ or 101 Supp. 920; aff'd 192 N. Y. 591, ,85 N. B. 1111 805 Lake v. Eanney, 33 Barb. 49 ... , 497 Lakin v. Sutton, 132 A. D. 557, or 116 Supp. 820 980 Lamb, Matter of, 10 Misc, 638, 32 _ Supp. 225 : 549 Lambert ads., Barry, 98. N. Y. gOQ, 5,0 Am. Eep. 677 532 Lambert v. Craft, 98 N. Y. 342 276, 277 Lambert v. Metropolitan St. E. E. Co., 33 Misc. 579,' or 68 Supp. 877; aff'd 56 A. D. 624, 67 Supp. 1137 , 924 Lamphere v. Lamphere, 54 A. D. 17, or 66 Supp. 27t)' .,./..... 982 Lamport v. Beeman, 34, Barb. 239 ..... ,.•■-.. 320 Lamport v. Smedley, 213 N". Y. 82, 106 N. E. 922 953 Landmesser, Matter of, 101 A. D. 110, 91 Supp. 774 680 Landon ad.s. Brown, 30 Hun, 57 198 Lane v.' Albertson, 78 A. D. 607, 79 Supp. 947 609 Lane v. Doty, 4 Barb. 530 ...... 541 Lane v. Hustaee, 154 A. D, 636, 139 Supp. 784 ......'. 635 Lane v. Lane, 95 N. Y. 494 j . . .i 455 Lane ads. Oxley; 35 N.iY. 340 . . ,969 Lane ada. Euasell,:! Barb,! 519 ... 275 Laney, Matter of, 50 Htin, 15, 2 Supp. 443 114 Laney ads. Barker, 7 A. D. 352, or 40. Supp., 66 619 Lanfer, Est. of, N. Y. L. J., Nov. 4, 1914 415 Lang, Matter of, 144 N: Y. 275, 39 N. E. 363 ■ 375,, 618 Lang, Matter of, 9 Misc. 521, or 30 Supp. 388 .... 454, 470, 593 Langdon v. Astor's Executors, 16 . N. Y. 9 598 Langevin ads. Kelly, Matter of, 153 A. D. 322, 137 Supp. 1099 869, 935 Lankford v. Thornton, 161 A. D. 890, 14.1 Supp. 1130 603 Lansing v. Lansing, 45 Barb, 142 ; .^410, 430, 554 Lansing ads. Smith, 2i4 Misc. 566, 53 Supp. 633 ....!... 6li3, 690 Larson ads. 'Van Blaricum, 205 N. Y. 355, 98 N. E. 488, Ann. Gas. ,. 1913E, 553 .39, 40, 45 Lasalc,, Matter of Will of, 131 N. , "i. 624, 30 N. B.,112 479, 848 Latham, Matter of, 145 A. D. 849, 130 Supp. 545 ...;.. 559 Latimer ads. Olmstead, 9 A. D. 163, or 41 Supp. 44 273, 274 Lattan, Matter, of, 42 Misc. 467, , 87 Supp. 24'6'..../.. .. .:,: 386 Latz, Matter of, 110 N. Y. 661, 18 N. E. 260 . . 961 Laudy, Matter of, 14 A. D. 160, or 43 Supp. 689 453 Laudy, Matter of, ,148 N. Y. 403, 42 N. E. 1061 ,......:,... 453 Laudy, Matter of, 35 A. D. 542, or 65 Supp. 98 . . . 954 Laudy, Matter of, 161 N. Y. 429, 55 N. E. 9i4 449, 450 Lauer, Matter of, 76 Misc. 117, 136 Supp. 325 71 Lauterbach ads. Correll, 12 A. I). 531, or 42 Supp. 143, aff'd 159 N. Y. 553, 54 N. E. 1089 339 Lavery ads. Hoctor, 51 A. D. 74, 64 Supp. 518 ;., . ; , , , ..... 230 Layid v. Arnold, 25 Hun, 4 108 Law, Matter of, 8|0 A. D. 73, or 80 , Supp. 410; aff'd 175 N. Y. 471, 67 N., E. 1084, ;.,..,......:... 500 Law, Matter of, 56 A. D. 454, or '67 Supp. 8p7 .,- 920 Lawrence, Matter ' of, 37 Misc. 702, or 76 Supp. 655 . ., 417 Lawrence, Matter of, S6 Miso. 275, or 73 Supp.' 414 ... . .'. 149 Lawrence v. Elmendorf, 5 Barb. 73 .:.., ' 101 Lawrence ads. Johnson, 95 N. Y. 154 408 iLawrence v. Lindsey, , 70 N. Y. 566 970 Lawrence v. Niagara Fire Ins. Co. 2 A. D. 267, or 37 Supp. 811 . . 133 Lawrence v. Townsend, 88 N. Y. 28 531, 589 Lazelle, Matter of, 16 Misc. 515, or 40 Supp. 343 ... , 922 Lea i. Timken, 10 A. D. 213, or 41 Supp. 979 45 Leach V. Leach, 21 Hun, 381 . . 35, 46 Leach v. Leacli. 19 Hun, 381 .... 48 TABLE OF CASES Eeferences are to pages. Leahy v. Campbell, 70 A. D. 127, 75 Supp. 72 290 Leary's Est., Matter of, 154 Supp. 959 515 Leary v. Leary, 60 How. Pr. 122 59 Leask, Matter of, 159 A. D. 102, 143 Supp. 865 666 Leask, Matter of, 197 N. Y, 193, 134 Am. St. Rep. 866, 90 N. B. 652, 18 Ann. Cas. 516 16 18, 79 Leask ads. Batchls, 149 A. D. 713, 134 Supp. 350 672 Leask v. Hoagland, 136 A. D. 658, or 121, Supp. 197 621 Leask v. McCarty, 147 A. D. 796, or 132 Supp. 92; aff'd 208 N. Y. 635, 102 N. E. 1105 620 Leavitt, Matter of, 135 A. D. 7, • 119 Supp. 769 676, 680 Leavitt, Matter of, 86 Misc. 609, 148 Supp. 758 609 Leavitt v. Scholes Co., 210 N. Y. 107, 103 N. E. 965 127, 981 Le Brantz v. Conklin, 39 Misc. 715, 80 Supp. 967 481 Ledyard v. Bull, 119 N. Y. 62, 23 N. E. 444 300 351, 544 Lee V. Horton, 104 N. Y. 538, 11 ,N. E. 51 607 Lefevre v. Lef evre, 59 N. Y. 434 72 LefSngwell; Matter of, 30 Hun, 528 848, 894, 897 Leggett V. Hunter, 19 N. Y. 445 638 675 Leggett V. Pelletreau, 213 N. Y. 237, 107 N. E. 509 236 Leggett V. Stevens, 77 A. D. 612, or 79 Supp. 289 517 Lehman, Matter of, 2 A. D. 531, or 37 Supp. 10S6 780 Lehritter ads. Vogel, 139 N. Y. 223, 34 N. E. 914 455 Leighton ads. King, 100 N. Y. 386, 3 N. E. 594 . . . : 110 Leitch V. Wells, 48 N. Y. 585 . . 527 635 Leland, Matter of, N. Y. L. J., ! June 8 and July 7, 1916 848 Leland v. Manning, 4 Hun, 7 . . . 279 Leland ads. Warren, 2 Barb. 613 or 813 236, 239 Lemoine, Est. of, N. Y. L. J., May 6, 1915 425 Lent ads. Stephani, 30 Misc. 346, 63 Supp. 471 439 Leonard ads. BufFalo Loan & Trust Co., 9 A. D. 384, 41 Supp. 294, aff'd 154 N. Y. 141, 47 N. E. 966 604 Leonard v. Columbia Steam Navi- gation Co. 84 N. Y. 48, 38 Am. St. Rep. 491 146 Leonard v. Harney, 173 N. Y. 352, 66 N. E. 2 248 Leonhard, Matter of, 86 Hun, 280, or 33 Supp. 302; modified 152 N. Y; 645, 46 N. E. 1145 237 Leslie, Matter of, 92 Misc. 663, 156 Supp. 346 55, 75 Leslie, Frank, Estate of, N. Y. L. J., Feb. 4, 1916 847 Lesser, Matter of, 119 A. D. 507, 104 Supp. 213 793 Letson v. Evans, 33 Misc. 437, 68 Supp. 421 853 Levengston, Matter of, 158 A. D. 69, or 142 Supp. 829 448 Leveridge ads. Children's Aid So- ciety, 70 N. Y. 387 509 Levin v. Russell, 42 N. Y. 251 . . 105 Levina ads. Jacobaen', 59 Misc. 449, 110 Supp. 1002 427 Levy, Matter of, N. Y. L. J., Sept. 25, 1914 782 Levy, Matter of, 91 A. D. 483. or 86 Supp. 862; aff'd 176 N. Y. 603, 72 N. E. 1144 943 Levy, Matter of, 41 Misc. 68, or 83 Supp. 647; aff'd 97 A. D. 630, 89 Supp. 1109 376 Levy V. Commercial Trust Co., 86 Misc. 10, 148 Supp. 173 52S Lewis, Matter of, 36 Misc. 741, 74 Supp. 469 793 Lewis V. Lewis, 11 N. Y. 222 447 448, 449, 453, 456, 4911 Lewis V. Jones, 50 Barb. 645 . . . 440 Lewis V. Mahoney, 12 Hun, 207 . . 623 Lewis V. Smith, 9 N. Y. 502, 61 Am. Dec. 706 42 Libbey v. Mason, 112 N. Y. 525, 2 L-.R.A. 795, 20 N. E. 355 .. . 160 959 Libby v. Van Derzee, 80 A. D. 494, or 81 Supp. 139; aff'd 176 N. Y. 591, 68 N. IE. 1119 ■ 721 Lichtenberg v. Lichtenberg, 156 A. D. 532, or 141 Supp. 356 . . 331 Lichtenberg ads. Ehrenreich, 29 Misc. 305, or 60 Supp. 513 983 Lichtenberg v. Herdtfelder, 103 N. Y. 302, 8 N. E. 526 . . 297 lU TABLE OF CASES Eeferenees are to pages. Liddle, Matter of, 35 Misc. 173, or 71 Supp^474 292 326, 327, 331 Liebmann ads. Phillips, 10 A. D. 128, 41 Supp. 1020 811 Lilienthal v. Lessen, 102 A. D. 500, 92 Supp. 619, aff'd 185 N. Y. 557, 77 N. E. 1190 548 Lincoln Trust Co., Matter of, 78 Mise. 324, 139 Supp. 304 615 Lincoln Trust Co. v. Hutchinson, 65 Misc. 590, or 120 Supp. 811 33 Linden ads. Graham, 50 N. Y. 547 37, 839 Lindridge ads. Hogg, 151 A. D. 513, 135 Supp. 928 41 Linds T. Murray, 91 Hun, 335, or 36 Supp. 231; affd 157 N. Y. 697, 51 N. E. 1091 340 Lindsey ads. Lawrence, 70 N. Y. 566 970 Lindstrang, Matter of, N. Y. L. J., Apr. 28, 1916 357 Linsly ads. Hitchcock, 17 Hun, 556 622 Linthicum v. Caswell, 19 A. D. 541, 46 Supp. 610, aff'd 160 N. Y. 702, 57 N. E. 1115 604 Liscomb, Matter of, 60 Misc. 647, 113 Supp. 941 329 Little Falls National Bank v. King, 53 A. D. 541, or 65 Supp. 1010 and 62 Supp. 624 329 Little V. Lynch, 99 N. Y. 112, 1 N. E. 312 899 Littmann, Matter of, 88 Misc. 403, or 150 Supp. 607 825 Litzenberger, Matter of, 85 Hun, 512, 33 Supp. 155 533 Livingston, Matter of, 151 A. D. 1, or 135 Supp; 328 24 Livingston ads. Phoenix, 101 N. Y. 451, 5 N. E. 70 408, 422 Livingston v. Sulzer, I9 Hun, 375 238 Llado, Matter of, 50 Misc. 227, or 100 Supp. 495 826 Lockman v. Eeilly, 95 N. Y. 64 239 527 Lockwood V. Lockwood, 51 Hun, 337, or 3 Supp. 187 475 Lockwood V. Dillenbeok, K)4 A. D. 71, or 93 Supp^ 321 281 Lockwood ads. Elmendorf, 57 N. Y. 322 45 Lockwood V. U. S. Steel Corpora- tion, 209 N. Y. 375, L.R.A. 1915C, 471, 103 N. E. 697 .... 98 268, 530 Loder V. Hatfield, 71 N. Y. 92 597, 612, 616, 617, 976 Loder v. Whelpley, 111 N. Y. 239, 18 N. E. 874 952 Loewenguth, Matter of, 114 A. D. 754, 100 Supp. 422 935 Logiorato, Matter of, 34 Misc. 31 or 69 Mise. 507 169, 170 Lombardi, Matter of, 78 Misc. 689 169 Long V. Long, 142 N. Y. 545, 37 N. E. 486 328, 333 Longbotham, Matter of, 38 A. D. 607, or 57 Supp. 118 373 Long Island Loan & Trust Co., Matter of, 92 A. D. 5, 87 Supp. 318 256, 968 Long Island Loan & Trust Co., Matter of, 92 A. D. 1, or 87 Supp. 65, aff'd 179 N. Y. 520, 71 N. E. 1133 643 Long Is. Loan & Trust Co., Mat- ter of, 79 Misc. 176, or 140 Supp. 752 671 Longshore ads. Miller, 147 A. D. 214, or 131 Supp. 1041 277 Loomis ads. Brinker, 43 Hun, 247 273 Loop V. Northrup, 59 Hun, 75, or 13 Supp. 144 • 813 Loper ads. Erwin, 43 N. Y. 521 117, 272, 273, 274 Loper ads. Smith, 32 Hun, 46 . . 326 Loppin ads. Jouffret, 20 A. D. 455, or 46 Supp. 810 328 Lorillard ads. Bruce, 62 Hun, 416 or 16 Supp. 900 421 Losee, Matter of, 46 Misc. 363, or 94 Supp. 1082, aff'd 119 A. D. 107, 104 Supp. 1132, or 966 . . 5, 6, 90 Loser ads. Flatauer, 156 A. D. , 591, 141 Supp. 941, or 142 Supp. 1117, rev'd 211 N. Y. 15, 104 isr. E. 1123 : . 72, 621, 818, 827, 839 Losey v. Stanley, 147 N. Y. 560, 42 N. E. 8 755 Lott ads. Hopkins, 111 N. Y. 577, 19 N. B. 273 982 Lott ads. Stevens, People ex rel., 42 Hun, 408 912 Loucks v. Standard Oil Co., 92 Misc. 475, 156 Supp. 7 144 Lounsbury v. Sherwood, 53 A. D. 318, 65 Supp. 676 984 Lovell v. Quitman, 88 N. Y. 377 460, 463 Loyinella, Matter of, 88 Misc. 224, 150 Supp. 689 847 TABLE OP CASES References are to pages. lih Low ads. Douglass, 36 Hun, 497 777 Low ads. Wainwright, 132 N. Y. 313, 30 N. E. 747 31, 60 Lowen, Matter of, N. Y. L. J., Apr. 23, 1915 177 Lowen, Matter of, N". Y. L. J., May 6, 1916 253 Lowenthal, Matter of, 148 A. D. 487 266 Lowerre, Matter of, 48 Misc. 317, 96 Supp. 764 328 Lowery, Matter of, 19 Misc. 83, 43 Supp. 972 607 Lowry ads. Cook, 29 Hun, 20, afif'd 95 N. Y. 103 414, 643 Lowry v. Farmers, Loan & Trust Co., 172 N. Y. 137, 64 N. E. 796 668 Lowman's Estate, Matter of, 1 Misc. 43, or 22 Supp. 1055 .... 968 Lowman v. Eltaira, C. & N. E. K. Co., 85 Hun, 188, or 32 Supp. 579; aff'd 154 N. Y. 765, 49 N. E. 1099 95, 197 Lowman ads. Herrington, 22 A. D. 266, or 47 Supp. 863 350 Loyd, Matter of, 151 Supp. 459, 166 A. D. 11, rev's 87 Misc. 503, , 149 Supp. 922 627 Luanev. Paige, 82 Hun, 139, 31 Supp. 310 548 Lublin, Matter of, 62 Misc. 596, 116 Supp. 1125 278 Lucas, Matter of, 92 Misc. 88, 155 Supp. 1017 301 Luce V. Dunham, 69 N. Y. 36 . . . 70 Lucid, Est. of, N. Y. L. J., Dec. 22, 1914 383 Luckman ads. Ha,teli, 64 Misc. 508, 118 Supp.' 689; affd 140 Supp. 1123 844 Luddington ads. Graliam, 19 Hun, 246 47 Ludington v. Mercantile National Bank, 102 A. D. 251, or 92 Supp. 454; aff'd 182 N. Y. 522, 74 N. E. 1119 633 Ludington v. Thompson, 153 N. Y. 499, 47 N. E. 903. .281, 527, 673 Ludlum V. Otis, 15 Hun, 410 447 Ludwig V. Bungart, 48 A. D. 613, or 63 Supp. 91 827 Ludwig ads. Eighter, 39 Misc. 416, 80 Supp. 16 50 Lugar V. Lugar, 160 A. D. 807, 146 Supp. 37 36 Luhrs V. Eimer, 80 N. Y. 171 ... 60 Lundy ads. Haddow, 59 N. Y. 320 822 Lutz, Matter of, 43 Misc. 230, 88 Supp. 556 76 Lyman, Matter of, 14 Misc. 352, or 36 Supp. 117 483 Lyman, Matter of, 60 Hvm, 82, or 14 Supp. 198; aff'd 128 N. Y. 614, 28 N. E. 252 285 Lyman ads. Parsons, 20 N. Y. 103 72, 98, 258 Lynch, Matter of, 83 Hun, 39, 31 Supp. 767 252 Lynch ads. Little, 99 N. Y. 112, 1 N. E. 312 899 Lynch ads. Purdy, 145 N. Y. 462, 40 N. E. 232 631 Lynde v. Lynde, 113 A. D. 411, 99 Supp. 283 699 Lyndon ads. Bennett, 8 A. D. 387, or 40 Supp. 786 105 Lyon V. Lyon, 67 N. Y. 250 719 Lyon V. Industrial School Assn., 52 Hun, 359, 5 Supp. 326 ; aff'd 127 N. Y. 402, 28 N. E. 17 ... 613 Lyon V. Peek, 111 N. Y. 350, 18 N. E. 863 99 Lyth, Matter of, 32 Misc. 608, or 67 Supp. 579 373 Lyttle V. Beveridge, 58 N. Y. 592 547 McAdam ads. McKay, 80 Hun, 260 604 McAleenan, Matter of, 53 A. D. 193, or 65 Supp. 907 ; aff'd 165 N. Y. 645, 59 N. E. 1125 242 McAlpin ads. Delabarre, 71 A. D. 591, or 76 Supp. 301 822 McAlpine v. Potter, 126 N. Y. 285, 27 N. E. 475 407, 410 McCabe, Matter of, 84 A. D. 145, 82 Supp. 180; aff'd 177 N. Y. 584, 69 N. E. 1136 156, 556 McCabe, Matter of, 55 Misc. 484, 106 Supp. 679 257 McCabe ads. Cogan, 23 Misc. 739, 52 Supp. 48 669 McCahill, Matter of, 29 Misc. 450, or 61 Supp. 1071 518 McCahill ads. Kelaher, 26 Hun, 148 779 McCann ads. Anderson, 14 A. D. 160, or 43 Supp. 689 983 McCann ads. Kirk, 117 A. D. 56, or 101 Supp. 1093 397 McCarthy ads. Crawford, 159 N. Y. 514, 54 N. E. 277 592 McCarthy ads. Farmers' Loan & Trust Co. 128 A. D. 621, 113 Supp. 207 609 McCarthy v. Marsh, 5 N. Y. 263 58 liv TABLE OF CASES Eeferenees are to pages. McCarthy v. Supreme Court of Foresters, 107 A. D. 185, 94 Supp. 876 839 MeCarty ads. Leask, 147 A. D. . 796, or 132 Supp. 92; aflf'd 208 N. Y. 635, 102 N. B. 1105 .... 620 MeCarty v. Myers, 5 Hun, 83 . . : 318 McCasken ads. Brady, 1 N. Y. 214 519 McCauley, Matter of, 49 Misc. 209, 99 Supp. 238 ., 155 McCloud ads. Denehy, 21 Misc. 541, or 47 Supp. 714 978 McClure ads. Calanau, 47 Barb. 206 2S1 MeClure ada. Eobins, 100 N. Y. 328, 53 Am. Rep. 184, 3 N. E. 663 67, 70 McCollum, Matter of, 80 A. D. 362, 80 Supp. 755 541 McCombs ads. Phillips, 53 K Y. 494 293 MciConnon, Matter of, 60 Misc. 22, or 112 Supp. 590 729 McCord, Matter of, 2 A. D. 324, or 37 Supp. 852 428 MeCormack v. Coddington, 184 N'. Y. 467, 77 N. E. 979 59 McCormick, Matter of, 46 Misc. 386, or 94 Supp. 1071 .' 795 McCormick, Matter of, 22 Misc. 309, or 49 Supp. 1119; affd 40 A. D. 73, 57 Supp. 548 .... 698 McCormick ada. Gerard, 130 N. Y. 261, 14 L.R.A. 234, 29 N. E. 115 : 293 McCormick v. Shannon, 127 A. D. 745, 111 Supp. 875 717 McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480 330 McCoun V. Sperb, 53 Hun, 165, 6 Supp. 106 816 McCoun ads. Sperb, 110 N. Y. 605, 1 L.R.A. 490, 18 N. E. 441 811, 813 McCoy, Matter of, 51 Misc. 441, 101 Supp. 539 426 McCoy ads. Horton, 47 N. Y. 21 440 McCready, Est. of, N. Y. L. J., .June 23, 1915 824 McCready ads.- McCuUough, 52 Misc. 542, or 122 Supp. 633; aff'd 106 Supp. 1135 228 McCue V. Finck, 20 Misc. 506 46 Supp. 242 543 McCue V. Garvey, 14 Hun, 562 231 McCuUoug, Matter of, 18 Misc. 721, or 43 Supp. 968 923 McCullough, Matter of; 165 A. D. 946, 153 Supp. 1107 842 McCullough ads. Bainbridge, 1 Hun, 448 380 McCullough v. McCready, 52 Misc: 542, or 122 Supp. 633; aff'd 106 Supp. 1135 228 McCullough ads. Myers, 63 A. D. 321, 71 Supp. 520 632 McCullough ads. West, 123 A. D. 846 or 108 Supp. 493, aff'd 194 N. Y. 518, 87 N. E. 1130 68 McCullmn, Matter of, 37 Misc. 54, or 74' Supp. 829; aff'd 80 A. D. 362, 80 Supp. 755 543 McDermott, Matter of, 49 Misc. 402, 99 Supp. 829 922 McDermott v. Conlon, 153 A. D. 69, or 137 Supp. 1105 292 McDermott ads. Flynn, 102 A. D. 56, or 92 Supp. 1123, and 89 Supp. 506, aff'd 183 N. Y. 62, 111 Am. St. Rep. 687, 75 N. B. 931, 5 Ann. Cas. 81 41, 42 McDermott ads. Hyries, 91 N. Y. 451, 43 Am. Rep. 677 13, 14 McDonald, Matter of, 211 N. Y. 272, 105 N. E. 407 158, 165, 177, 208, 209 McDonald, Matter of, 51 Misc. 318, or 101 Supp. 275 .. 229, 363 McDonald, Matter of, 160 A. D. 86, or 145 Supp. 267, aff'd 211 N. Y. 272, 105 N. E. 407 218 McDonald ads. Griawold, 81 Misc. 376, or 143 Supp. 341 .. 331, 332 McDonald v. O'Hara, 144 N. Y. 566, 39 N. E. 642 343 McDonald ads. Metropolitan Trust Co., 52 A. D. 424, 65 Supp. 260 539 McDougall, Matter of, 141 N. Y. 21, 35 JST. E. 961 607 McEchron,- Matter of, 55 A. D. 147, 67 Supp. 18 976 McElroy ads. Ryan, 15 A. D. 216, or 44 Supp. 196 983 McElwaine, Matter of, 77 Misc. 317, or 137 Supp. 681 11 MeEntee ads. Stuber, 142 N. Y. 200, 36 N. E. 878 105, 247 MoFarland ads. Cassidy, 139 N. Y. 201, 34 N. B. 893 .... 893, 957 McGarry v. McMahon,- 124 A. D. 607, 109 Supp. 61 93 McGee, Matter of, 63 Misc. 494, ■ 118 Supp; 423 252 MoGillis ads. Beck, 9 Barb. 35 . . 598 TABLE OF CASES Keferences are to pages. Iv McGillivray, Matter of, 138 N. Y. 308, 33 N. E. 1077 . , 957 McGlynn, Matter of, 41 Misc. 156, or 83 Supp. 975 ............ 422 McGlynn ads. Marx, 88 N. Y. 357 676 McGoldrick ads. Earlc, 15 Misc. 135, or 36 Siipp. 246 642 McGoughran, Matter of, 124 A. D. 312, or 108 Supp. 934, app. dism'd 192 N. Y. 565, 85 N. E. 1112 .. 219 McGovvan, Matter of, 28 Hun, 246 623 McGowan, Matter of Accounting of, 124 N. Y. 526, 26 N. E. 1098 612 McGrath ads. Duck, 160 A. D. 482, or 145 Supp. 1033, and 160 Supp. 490, afi'd 212 N. Y. 600, 106 N. E. 1032 299, 815 McGrath ads. Scully, 201 N. Y. 61, 94 N. E. 195 278 JMcGrath v. Weiller, 98 A. D. 291, 90 Supp. 420 134 McGraw, Matter of v. Cornell University, 45 Hun, 354, aff'd 111 N. Y. 66, 2 L.R.A. 387, 19 N. E. 233, and 136 U. S. 152, 34 L. ed. 427, 10 Sup. Ct. Rep. 775 948 McGregor v. Buel, '24 N. Y. 166 563 McGregor v. McGregor, 35 N. Y. 218 243, 260, 534 McGregor ads. Thomson, 81 N. Y. 592 798, 802 McGuire ads. Egbert, 36 Misc. 245, 73 Supp. 302 ; . 635 Mclnnes, Matter of, 119 A. D. 440 or 104 Supp. 147 7 Mclntyre v. Costello, 47 Hun, 289 36 Mclntyre ads. English, 29 A. D. 439, or 51 Supp. 697 634 McKane ads. Ditmas; 92 A. D. 344, 86 Supp. 1083 ........ 996 McKay, Matter of, 5 Misc. 123 or 25 Supp. 725 . . 36, 41, 42, 44, 60], 614 McKay, Matter of, 75 A. D. 78, 77 Supp. 845 71 McKay, Matter of, 37 MiSc. 590, 75 Siipp. 1069 420 McKay, Matter of, 77 Misc. 303, 136 Supp. 821 468 McKay, Est. of, N. Y. L. J., Apr. 2, 1916 486 McKay, Est. of, N. Y. L. J., Dec. 11, 1915 ■ 253 McKay v. McAdam; 80 Hun, 260 604 McKeaggan v. Post and McCord, ' 117 A. D. 129, or 102 Supp. 276 McKenna, Est. of, N. Y. L. J., Feb. 18, 1916 McKenna v. O'Connell, 84 .ATisc. 582, 147 Supp. 922 McKeon, Matter of, 37 Jlisc 658, 76 Supp. 312 McKeon ads. Kearney, 85 N. Y. 136 McKessom ads. Wilderming, 103 N. Y. 329, 8 N. E. 665 McKinley v. Hessen, 202 N. Y. 24, 95 N. E. 32 McKnight, Matter of, 80 A. D. 284, 80 Supp. 251, aflf'd 179 N. Y. 522, 71 N. E. 1134 McLaren, Est. of, 6 Misc. 483, 27 Supp. 289 McLarney, Matter of, 153 N. Y. 416, 60 Am. St. Eep. 664, 47 N. E. 817 McLean v. McLean, 207 N. Y. 365, 101 N. E. 178 McLean ads. Rogers, 34 N. Y. 536 McLean ada. Schlinback, 83 A.'D. 157 or 82 Supp. 516; aff'd 178 N. Y. 600, 70 N. E. 1108 McLean v. Swanton, 13 N. Y. 535 McLeod, Matter of; 82 Misc. 229, or 66 Supp. 255 McLeod ads. Sargent, 209 N. Y. 360, 52 L.R.A. (N.S.) 380, 103 N. E. 164 McLevey, Matter of, 93 Misc. 384 McLoughlin, Est. of, N. Y. L. J., Sept. 25, 1915 McLouth V. Hunt, 154 N. Y. 179, 39 L.R.A. 230, 48 N. E. 548 . . McMahon, Matter of, N. Y. L. J., Apr. 3, 1916 McMahon ads. McGarry, 124 A. D. 607, 109 Supp. 61 McMahon ads. Getman, 30 Hun, 531 593, 595, McMahon v. Harriscin, 6 N. Y. 443 162, 559, 677, 678, McMahon v. Smith, 24 A. D. 25, or 49 Supp. 93 MoManemee, Est. of, N. Y. L. J., June 25, 1915 McManus, Matter of, 06 A.' D. 53, or 73 Supp. 88 . McMillan, Matter of, 126 A. D. 155', ot 110 Supp. 622, aff'd 193 5:. Y. 651, 86 N. E. 1127 . . ; . McJIillan, Matter of, 218 N. Y. 64 978 789 688 0ri:j 288 53i> 957 581 412 464 467 721 702 58 68 851 416 668 254 93 590 725 804 230 928 34 289 Ivi TABLE OF CASES Eeferences are to pages. McMonagle, Matter of, 139 A. D. 398, 124 Supp. 258 390 McMullen, Matter of, 85 Misc. 661, or 148 Supp. 1092 104, 200, 217, 889 JIcMurray v. McMurray, 66 N. Y. 175 757 MeNab ads. Bows, 11 A. ,D. 386 551 McNally, Matter of, 68 Misc. 8, 124 Supp. 864 792 McNamee, Matter of, 78 Misc. 324, 139 Supp. 304 612 McNeil V. Merriam, 57 A. D. 164, or 68 Supp. 165 978 McNulta V. Huntington, 62 A. D. 257, or 70 Supp. 897 133 McNulty V. Mitchell, 41 Misc. 293, or 84 Supp. 89 5 McQuade, Matter , of, 157 A. D. 344, 142 Supp. 493 400 McRea ads. Moriarta, 45 Hun, 564, aff'd 120 N. Y. 659, 24 N. E. 1103 36 McShane, Matter of, 73 Misc., 146, or 132 Supp. 470 177 MacKenzie v. MacKenzie, 3 Misc. 200, or 23 Supp. 270 10 MacKey, ads. Duryea, 151 N. Y. 204, 45 N. E. 458 342 MacRea, Matter of, 189 N. Y. 142, 81 N. E. 956, 12 Ann. Cas. ,505 24, 27, 29, 56,, 77 Maack, Matter of, 13 Misc. 368, or 35 Supp. 109 66, 265 Maas V. German Savings Bank, 176 N. Y. 377, 98 Am. St. Rep. 689, 68 N. E. 658 72, 258, 530 Macaulay, Matter of, 27 Hun, 577, afl'd 94 N. Y. 574 .. 864, 865, 882, 890 Maceaffil, Matter of, 57 Misc. 264, or 107 Supp. 1115, aff'd 127 A. D. 21, 111 Supp. 315 . . 154, 163, 430 Maccafil, Matter of, 127 A. D. 21, 111 Supp. 315 482 Mackay, Matter of, 110 N. Y. 611, 1 L.R.A. 491, 6 Am. St. Rep. 409, 18 N. B. 433 453 Mackay, Matter of, 24 Misc. 255, 53 Supp. 563 326 Mackev ads. Duryea, 151 N. Y. 204,"' 45 N. E. 458 97 Macready ads. Kemp, 165 A. D. 124, 150 Supp. 618 ,,. . . 664 Madaloni, Matter, of, 79 Misc., 653, or 141 Supp. 323 169 Madison Trust Co. v. Floyd, 151 A. D, 722, 136 Supp. 213 665 Magoun, Matter of, 41 Misc. 352, 84 Supp. 940 577, 582, 836 Mahaney v. Carr, 175 N. Y. 454, 67 N. E. 903 25 Mahaney v. Walsh, 16 A. D. 601 or 44 Supp. 969 268 Maher aids. Coackley, 36 Hun, 157 720 liahoney. Matter of, 37 Misc. 472, or 75 Supp. 1056 221 Mahon'ey v. Bernhard, 45 A. D. 499, or 63 Supp. 642; aff'd 169 N. Y. 589, 62 N. E. 1097 411 Mahoney v. Bernhardt, 27 Misc. 339, 58 Supp. 748, mod. 45 A. D. 499, 63 N. E. 642 549 Mahoney ads. Lewis, 12 Hun, 207 623 Maisenhelder v. Crispell, 105 A. D. 219, or 94 Supp. 707 288 Mallery v. Facer, ,181 N. Y. 567, 74 N. E. 487 : 604 Mallon, Matter of, 38 Misc. 27, or 76 Supp. 879 693 Mallon, Matter of, 43 Misc. 569, 89 Supp. 554 636 Mallory, Matter of, 13 Misc. 595, or 35 Supp. 155 292 Malloy, Matter of, 13 Misc. 595, or 35 Supp. 155 289 Malone, Matter of, 150 A. D. 31, or 134 Supp;' 496 .'..'. 915 Manamy, Matter, of, N. Y. L. J., Dec. 1, 1914 ,. 495 Manchester, Matter of, 79 Misc. 200, or 139 Supp. 713, aff'd 144 Supp. 1121 71 Mancini, Est. of, 89 Misc. 83, or 151 Supp. 387 729 Mangan ads. Ingersoll, 84 N. Y. 622 887 Manhattan Oil Co. v. Gill, 118 A. D. 17, 103 ,Supp. 364 Ill Manica, Matter of, 31 Hun, 119 412 Mann, Matter of, 51 Misc. 315, or 100 Supp. 1100 465 Manning ads. Leland, 4 Hun, 7 . . 279 Manny ads. Denton, 8 Barb. 618 38 Mansfield, Matter of, 10 Misc. 296, 31 Supp. 684 418 Maples ads. Tyler, 19 Barb. 448 449 Maples ads. Wells, 15 Hun, 90 . . 238 Marble, Matter of, 88 Misc. 339, or 151 Supp. 953 398 Marcellin, Matter of, 25 Misc. 260, 55 Supp. 425 225 Marcellin, Matter of, 24 Hun, 207, aff'd 40 A. D. 578 713 Marcellus, Matter of, 165 N. Y. 70, 58 N. E. 796 290, 294 TABLE OF CASES Eeferences are to pages. Ivii ilarganea, Matter of, IGl A. D. 563, or 146 Supp. '922: affd 233 N. Y. 659, 107 N. B. 1082 296 Marion v. Farman, 68 Hun, 383, or 22 Supp. 946 291, 292 Marine National Bank ads. Bing- ham, 41 Hun, 377, aff'd 112 N. Y. 661, 19 N. B. 416 98, 139 Maritch, Matter of, 29 Misc. 270, or 61 Supp. 237 .' 900 Markham ads. Shakespeare, 72 N. Y. 400 ......;....: 301 Markfill ads. Dean, People ex rel. 72 Misc. 427, 131 Supp. 383 . . 927 Markey v. Brewster, 10 Hun, 16, aff'd 70 N. Y. 607 291 Marks, Matter of, 128 A. D. 775, 113 Supp. 104 930 Marks v. Emigrant Industrial Savings Bank, 122 A. D. 661, or 107 Supp. 491 . ,' 258 Marsellis v. Thalhimer," 2 Paige Ch. 35 '..:..: 46 Marsh, Matter of, 5 Misc. 428, 26 Supp. 718 74, 365 Marsh v. Avery, 81 N. Y. 29 968, 969 Marsh ads. Forman, 11 N. Y. 544 706 Marsh ads. McCarthy, 5 N. Y. 263 58 Marshall, Matter of, 80 Misc. 1, 141 Supp. 540 592 Marshall, Matter of, 43 Misc. 238, or 88 Supp. 550 393, 669 Marshall v. Moseley, 21 N. Y. 280 240 Martens, Matter of, 16 Misc. 245, or 39 Supp. 189 423, 647 Martens, Matter of, 39 Misc. 512, or 80 Supp. 376 821 Martin, Matter of, 211 N. Y. 328, 105 N. E. 546 829 Martin, Matter of, 80 Misc. 17, or 141 Supp. 784 . . . . .853, 930, 933, 996 Marten, Matter of, 124 A. D. 793, ' 109 Supp. 217 410 Martin, Matter of, 190 N. Y. 415, 90 N. E. 46 404, 408, 426 Martin, Est. of N. Y. L. J., Oct. 22, 1915 901 Martin v. Andrews, 59 Misc. 298, or 111 Supp. 40 343, 418 Martin v. Dry Dock, East Broad- way and Battery R. R. Co., 92 N.'Y. 70 ..." :. .. 154 Martin v. Hann, 32 A. D. 602, or 53 Supp. 186 '. . . . 803 Martin v. Piatt, 51 Hun,, 429, 4 Supp. 359 539 Marx V. McGlynn, 88 N. Y. 357 . . 676 Marshall v. Meich, 51 N. Y. 140, 10 Am. Rep. 572 988 Mason, Matter of, 98 N. Y. 527 .409, 419, 426, 431 Mason Hamlin Organ Co. v. Pugs- ley, 19 Hun, 282 902 Mason v. Jones, 2 Barb. 229 54, 75 Mason ads. Ljbbey, 112 N. Y. 525, 2 L.R.A. 795, 20 N. E. 355 160, 959 Mason ads. Post, 91 N. Y. 539, 43 Am. St. Rep. 689 928 Mather, Matter of, 41 Misc. 414, or 84 Supp. 1105, aff'd 90 A. D. 382, 85 Supp. 657 918 Mathews, Matter of, 75 Misc. 449, or 136 Supp. 636 4 Mathews, Matter of, 153 N. Y. 443, 47 N. E. 901 16 Mathews, Matter of, 27 Hun, 254 432 Mathews v. American Central Ins. Co., 154 N. Y. 449, 39 L.R.A. 433, 61 Am. St. Rep. 627, 48 N. E. 751 247 Mathews v. Duryea, 45 Barb. 69 37 Mathewsoh, Matter of, 8 A. D. 8, or 40 Supp. 140 796 Matson v. Abbey, 141 N. Y. 179, 36 N. B. 11 982 Matteson, Matter of, 72 , N. Y. 32 816 Matteson v. Falser, 173 N. Y. 404, 66 N. E. 110 306 Matthews, Matter of, 75 Misc. 449, or 136 Supp. 636 348 Matthews, Est. of, N. Y. L. J., Feb. 25, 1915 970 Matthews v. Studley, 17 A. D. 303, or 45 Supp. 201 : aff'd 161 N. Y. 633, 51 N. E. 1117 819 Mayer, Matte'r of, 84 Misc. 9, 144 Supp. 438 ■ . 563 Mayer, Matter ' of, 84 Hun, 539, or 32 Supp. 850 949 Mayer, Matter of, 84 Misc. 9, 145 Supp. 665 535,' 554 Mayer ads.' Nealis, 21 Misc. 344, . or 47 Supp. 165 898 Mayhew ;ads. Dudley, 3 N. Y. 9 . . 832 Maynard v. Maynard, 36 Hun, 227, 30 N. E.,747 , 59 Mayor, The, ads. ' Bell, 10 Paige Ch. 49 37 r. The, ads. Moore, 8 N. Y. , 130, 59 Am. Dec. 473 .,.: 34, 35 Mayor ads. Doyle, Matter of, '28 ' Misc; 61, or 56 Supp. 441 .... 898 Iviii TABLE OF CASES Keferences are to pages. Mayor v. Gorman, 26 A. D. 191, or 49 Supp. 1026 273, 274 Mead v. Jenkins, 95 N. Y. 31 ... 150 Meagley, Matter of, 39 A. D. 83', or 56 Supp. 503 325 Meaney v. Post and McCord, 117 A. D. 563, or 102 Supp. 611 ... 978 Mee V. Gordon, 187 N. Y. 400 ... 630 Meehan, Matter of, 150 A. D. 681, or 135 Supp. 723 16 Meeker ads. Cooke, 36 N. Y. 15 . . 615 Meeker ads. Haneox, 95 N. Y. 528 340 425 Meekin v. B. H. R. E. Co., 164 N. Y. 145, 51 L.R.A. 235, 79 Am. St. Rep. 635, 58 N. Y. 50, 8 Am. Neg. Rep. 490 133 Meeks v. Meeks, 34 Misc. 465, or 69 Supp. 737 , 827 Meeks v. Meeks, 122 A. D. 461, or 106 Supp. 907 820 Megrue, Est. of, N. Y. L. J., July 14, 1915 ; . . 666 ilegrue, Matter of, 170 A. D. 653, 155 Supp. 1059 668 Meixel v. Meixel, 161 A. D. 518, 146 Supp. 587 45 Melcher ads. Stevens, 80 Hun, 514, 30 Supp. 625, mod. 152 N. Y. 551, 46 N. E. 965 614, 648-9, 650-1, 670 Meldon v. Devlin, 20 Misc. 56, or 4.5 Supp. 333 663 Meldon v. Devlin, 31 A. D. 146, or 53 Supp. 172; aff'd 167 N. Y. 573, 60 N. E. 1116 637 Mellen, Matter of, 56 Hun, 553, or 9 Siipp. 929 895 Melrose ads. Stilwell, 15 Hun, 378 117, 236 Meng, Matter of, N. Y. L. J., June 2, 1916 ...,. .......107, 147 Mercantile Nat. B'k ads. Jiuding- ton, 102 A. D. 251, or 92 Supp. 454; aff'd 182 N. Y. 522, 74 N. B. 1119 633 Mercantile Trust Co., Matter of, 210 N. Y. 83, 103 N. E. 884 . . 417 Mercantile Trust Co. ads. Dosine, 160 N. Y. 494, 55 N". B. 296 .. . 342 Mercellin, Matter of, 25 Misc. 260, 55 Siipp. 425 974 Merchants' Bank v. Thomson, 55 N. Y. 7 ..;....:.. 37 Mericlo, Matter of, 63 How. Pr. 62 '. 56 Merino v. Munox, 99 A. D. 201, or 90 Supp. 985 , 275 Merriam ads. McNeil, 57 A. D. 164, or 68 Supp. 165 978 Merrick v. Waters, 51 A. D. 83, or 64 Supp. 542; aff'd 171 N. Y. 655, 63 N. E. 119 644 Merrill, Matter of, 151, A. D. 785, or 136 Supp. 884 998 Merritt, Matter of, 35 A. D. 337, or 54 Supp. 955 361-2, 773 Merritt v. Merritt, 33 Misc. 230, 68 Supp. 624 369 Merritt v. Merritt, 35 A. D. 442, or 53 Supp. 127; aff'd 161 N. Y. 634, 57 N. E. 1117 673 Merritt v. Seamen, 6 N. Y. 168 . . 128 Merritt v. Thompson, 27 N. Y. 225 .' 984 Mersereau, Matter of, 38 Misc. 208, or 77 Supp. 329 44, 66 Mescelli ads. Decillis, 152 A. D. 304, 136 Supp. 573 540 Messman v. Egenberger, 46 A. D. 46, 61 Supp. 556 63 Mestre a;ds. Bonilla, 34 Hun, 551 99 Metcalf V. Clark, 41 Barb. 45 . . . 923 Metcalfe, Est. of, 6 Misc. 524, 27 Supp. 879 347 Metropolitan Life Ins. Co. ads.. Murphy, 92 Misc. 479, 155 Supp. 1062 6 Metropolitan St. Ry. Co. ads. Aus- tin, 180 A. D. 249, 95 N. Y. Supp. 740 68 Metropolitan St. R. R. Co. ads. Lambert, 33 Misc. 579, or 68 Supp. 877; aff'd 56 A. D. 624, 67 SujJp. 1137 ..' 924 Metropolitan Trust Co. ads. Keyes, 169 A. D. 765, 155 Supp. 888 287 Metropolitan Trust Co. v. McDon- ald, 52 A. D. 424, 65 Supp. 260 539 Metropolitan Trust Co. v. Stallo, No. I, 166 A. D. 639, 152 Supp. 183 827, 840 Metropolitan Trust Co. v. Truax, ! 154 A. D. 442, or 139 Supp. 181, aff'd 210 N. Y. 528, 103 N. E. 1131 107 Meuschke, Matter of, 61 Misc. 9, 114 Supp. 722 228 Meyer, Matter of, 63 Misc. 638, or 118 Supp. 747 67 Meyer,, Matter of, 72 Misc. 566, or ,131 Supp. 27 836 TABLE OF CASES References are to pages. lix Meyer, Matter of, 95 A. D. 443, or 88 Supp. 798, aff'd 181 N. Y. 562, 74 N. E. 1120 348. 367, 372, 549 Meyer ads. Bankers' Surety Co., 205 N. Y. 219, 98 N. E. 399, Ann. Cas. 1913D, 1218 284 Meyer v. Cahen, 111 N. Y. 270, 18 N. E. 852, 1 R. S. 749, 84 44 Meyer ads. Dueser, 129 A. D. 598, or 114 Supp. 64 289 Meyer ads. Green, Matter of, 63 Misc. 638, or 118 Supp. 747 ... 344 Meyer ads. Haines, 25 Hun, 414 815 Meyers v. American Locomotive Co., 201 N. Y. 163, 94 N. E. 605 884 Meyers ads. Bankers Surety Co., 205 N. Y. 219, 98 N. E. 399, Ann. Cas. 1913D, 1218 304 Meyers ads. Rutherford, 50 A. D. 298, or 63 Supp. 939 849 Michele, Est. of, N. Y. L. J., July 22, 1916 684 Mickle ads. Piatt, 137 N. Y. 106 70 Middlewortli v. Ordway, 191 N. Y. 404, 84 N. E. 291 25 Mierke v. Jefferson Co. Savings Bank, 208 N. Y. 347, 46 L.R.A. (N.S.) 194, 101 N. E. 889, Ann. Cas. 1914D, 21 257 Milburn ads. Pryor, 15 Misc. 596, 101 Supp. 34 128 Mildeberger v. Franklin, 130 A. D. 860, or 115 Supp. 903 819 Milham, Matter of, 28 Misc. 366, 59 Supp. 910 174 Miller, Matter of, 23 Misc. 319, 52 Supp. 245 138 Miller, Matter of, 50 Misc. 70, 100 Supp. 344 462 Miller, Matter of, 51 Misc. 156, or 100 Supp. 849 468 Miller, Matter of, 67 Misc. 660, 124 Supp. 825 ,. 6 Miller ads. Albert, 85 Misc. .16, or 147 Supp. 50 900 Miller ads. Collier, 62 Hun, 99, or 16 Supp. 633; aff'd 137 N. Y. 332, 33 N. E. 374 392 Miller ads. Divane, N. Y. L. J., Feb. 1, 1915 107 Miller ads. Devane, 89 Misc. 297, or 152 Supp. 1060 901 Miller v. Knox, 48 N. Y. 232 109, 235-6 Miller v. Longshore, 147 A. D. 214, or 131 Supp. 1041 277 Miller v. Miller, 79 Hun, 197, or 30 Supp. 116 984 Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669 16 Miller v. Montgomery, 78 N. Y. 282 558, 803 Miller v. Morton, 89 Hun, 574, 35 Supp. 294 306 Miller ads. Rosenfield, 131 A. D. 282, 115 Supp. 692 755 Miller ads. U. S. Trust Co., 57 Misc. 500, 109 Supp. 938 71 Milliken, Matter of, 32 Misc. 317, or 66 Supp. 724 913 Milliman, Matter of, 94 Misc. 7 53 Mills ads. Disbrow, 82 N. Y. 604 1005 Mills V. Hoffman, 92 N. Y. 181 374 Mills V. Smith, 141 N. Y. 256, 36 N". E. 178 617 Mills V. Van Voorhies, 20 N. Y. .412 37 Minehan v. Hill, 144 A. D. 854, or 129 Supp. 873 350 Miner, Matter of, 39 Misc. 605, or 80 Supp. 643 804 Miner, Matter of, 146 N. Y. 121, 40 N. E. 788 952 Minor v. Jones, 2 Redf. 289 at p. 293 72 Mitchell, Est. of, N. Y. L. J., June 23, 1915 233 Mitchell. Matter of, 39 Misc. 120, or 78 Supp. 976 222, 224 Mitchell, Matter of, 41 Misc. 603, 85 Supp. 288 377, 425 Mitchell, Matter of, 36 A. D. 542, or 55 Supp. 725; aff'd 161 N. Y. 654, 57 N". E. 1117 242 Mitchell ads. McNulty, 41 Misc. 293, or 84 Supp. 89 5 Mitchell V. Mitchell, N. Y. L. J., Jan. 6, 1916 778 Mitchell V. Mitchell, 16 Hun, 97, aff'd 77 N. Y. 596 455 Mitchell V. Mitchell, 170 A. D. 452, 156 Supp. 76 766-7 Mitchell ads. Noble, People ex rel., 170 A. D. 379, 155 Supp. 660 996 Mitchel V. Thorne, 134 N. Y. 536, 30 Am. St. Rep. 699, 32 N. E. 10 49, 227 M. L. Ins. Co. ads. Foley, 138 N. Y. 333, 20 L.R.A. 620, 34 Am. St. Rep. 456, 34 N. E. 211 ... . 707, 709 Metcalf V. Clark, 41 Barb. 45 . . . 140 Moderns, Matter of, 63 Hun, 261, 17 Supp. 781 302 TA.BLE OF CASES Eeterences are to pages. Moehring, Matter of, 24 Misc. 418, or 53 Supp. 730 171 Moehring, Matter of, 154 N. Y. 423, 48 N. E. 818 789 Moffat, Matter of, 24 Hun, 325 . . 418 Moier v. Moier, 17 Misc. 648, 40 Supp. 772 325 Molino, Matter of, N. y, l. J., Deo. 16, 1914 181 Molino, Matter of, N. Y. L. J., March 24, 1916 221 Moller, Est. of, N. Y. L. J., June 7, 1916 836 Molloy ads. Bonnette, 209 N. Y. 167, 102 N. E. 559 953 Moloatowaky, Eat. of, N. Y. L. J., Oct. 29, 1914 , 251 Moloughney ads. Nichols, 85 A. D. 1, or 82 Supp. 949 977 Monahan v. Fitzpa'triek, 16 Miae. 508, 39 Supp. 857 358 Monerief v. Ross, 50 N". Y. 431 . . 344 Moneypeny v. Moneypenyj 202 N. Y. 90, 95 N. E. 1 . . . . : 519 Monell, Matter of, 28 Misc. 308, or 59 Supp. 981 387, 395 Monot V. Jackaon, 40 Misc. 197, or 81 Supp. 688 650 Monroe, Matter of, 142 N. Y. 484, 37 N. E. 517 316 Monteith, Matter of, 27 Misc. 163, or 58 Supp. 379 919 Montelvan v. Clover, 32 Barb. 190 141 Montfort v. Montfort, 24 Hun, 120 607 Montgomery v. Boyd, 78 A. D. 64, or 79 Supp; 879 141 Montgomery ada. Chipman, 63 N. Y. 221 ...,,.. 819 Montgomery ads. Draper, 108 A. D. 63, or 95 Supp. 9,04 339 Montgomery ada. Miller, 78 N. Y. 282 558, 803 Moore, Est. of, N. Y. L. J., Oct. 31, 1914 .........; 159 Moore ads. De Grans, 30 Misc. 303, or 63 Stipp. 585 315 Moore v. De Groote, 158 A. D. 828, or ;143 Supp. 873 ; diam'd 213 N. Y. 642, 107 N. E. 1082 '822 Moore ads. Gross, 14 A. D. 353, or 43 Supp. 954 ,. :. 223-4 Moore v. Hegeman, 92 N. Y. 521, 44 Am. Eep. 408 17 Moore v. The Mayor, 8 N". Y. 110, 59 Am. Dec. 473 34-5 Moore v. Moore, 5 N. Y. 256 547 Moore ads. Philaon, 23 Hun, 152 605 Moore ads. Thornton, 26 Miac. 120, or 56 Supp. 1100; aff'd 41 A. D. 617, 58 Supp. 1150 138 Moralea v. Klopach, 158 A. D. 824, 143 Supp. 922 130 Moran, Estate of, 5 Misc. 176, 25 Supp. 702 167 Moran, Matter of, 58 Misc. 488, or 111 Supp. 630 and 112 Supp. 207 401 Moran, Matter of, 59 Misc. 133, , 112 Supp. 207 625 Moran, Matter of, 60 Misc. 298, 113 Supp. 276 : 975 Moran, Matter of, 75 Misc. 90, or 134 Supp. 968 .... 226, 230, 232 Moran v. Morrill, 78 A. D. 440, 80 Supp. 120, aff'd 177 N. Y. 563, 69 N. E. 1127 548 Moran ads. Parhan, 4 Him, 717, aff'd, 71 N. Y. 596 197 Morchauser v. Pierce, 64 A. D. 558, 72 Supp. 328 248 More V. Finch, 65 Hun, 404, 20 Supp. 164 197 Morette ada. Schutz, 146 N. Y. 137, 40 N. E. 780 ... 129, 277, 286 Morgan, Matter of Accounting of, 104 N. Y. 74, 9 N. E. 861 .... 82 Morgan's Est., Matter of, 1 Misc. . , 71, 22 Supp. 1064 991 Moriarta v. McEea, 45 Hun, 564, aff'd 120 N. Y. 659, 24 N. E. 1103 36 Moris, Matter of, 92 Misc. 630, 157 Supp. 472 15 Morreil ads. Clifford, 22 A. D. 470, or 48 Supp. 83 93 Morrill ads. Moran, 78 A. D. '440, 80 Supp. 120 ; aff'd 177 N. Y. 563, 69 N. E. 1127 548 Morris V. Hunken, 40 A. D. 129, or 57 Supp. 712 ' 947 Morris ads. Taylor, 1 N. Y. 341 339 Morris v. -Wtod,' 36 N. Y. 587 50-1, 53 Morrison ads. Gilbert, 53 Hun, 442, 6 Supp. 491 613 Morrison ads. Palmer, 104 N. Y. 132, 10 N. E. 144 320-1 Morrow v. Morrow, 12 Hun, 3S6 287 Morse ads. Keeney, 34 Misc. 114, or 69 Supp. 535; aff'd 71 A. D. 104, 75 Supp. 728 300 Morse ads. Shimmel, 57 A. D. 434, or 63 Supp. 322 and 08 Supp. 1148 394 TABLE OF CASES Keferences are to pages. ]xi Morton, Matter of Est. of, 7 Misc. 343, 28 Supp. 82 276 Morton ada. Miller, 89 Hun, 574, 35 Supp. 294 306 Morton Trust Co., Matter of, 67 Misc. 40, 124 Supp. 620 417 Moseley ads. Marshall, 21 N. Y. 280 240 Mott V. Ackermann, 92 N. Y. 539 93 Mott V. Fort Edwards Water Works Co., 79 A. D. 179, or 79 Supp. 1100 840 Mott ada. Willis, 36 N. Y. 486 . . 458, 951 Moseley ads. Bauman, 63 Hun, 492, 18 Supp. 563 896 Moskovvitz, Est. of, N. Y. L. J., Oct. 10, 1914 905 Moss V. Cohen, 158 N. Y. 240, 53 N. E. 8 619 Moultrie v. Hunt, 23 N. Y. 394 . . 472 Mount, Matter of, 27 Misc. 411, 59 Supp. 176 385, 919 Mount, Matter of, 185 N. Y. 162, 77 N. E. 999 515 Mount V. Mount, 68 A. D. 144, or 74 Supp. 148 791 Moyer v. Moyer, 17 Misc. 648, 40 Supp. 772 402 Mudgett ads. Veeder, 95 N. Y. 295 618 Mulford ads. Price, 107 N. Y. 303, 14 N. E. 298 149 Mullen V. Guinn, 88 Hun, 128, or 34 Supp. 625 980 MuUer, Eat. of, N. Y. L. J., Mch. 30, 1915 275 Muller, Matter of, 31 A. D. 80, 52 Supp. 565 661 Muller V. City of Philadelphia, 118 A. D. 276, 103 Supp. 387 632 Muller V. National Surety Co., 91 Misc. 544, 154 Supp. 1096 802 Mulligan, Matter of, 82 Misc. 336, or 143 Supp. 686 and 149 Supp. 1098 224, 290 Mulligan ada. Barson, 191 N. Y. 306, 16 L.R.A.(N.S.) 151, 84 N. E. 75 7 Mulligan ads. Crocker, 154 A. D. 711, 139 Supp. 381 467 Mullon, Matter of, 145 N. Y. 98, 39 N. E. 821 265, 275, 536 Mulrein v. Smillie, 25 A. D. 135, or 48 Supp. 994 639 Mulry, Est. of, IST. Y. L. J., Feb. 15, 1915 967 Mulry, Est. of, N. Y. L. J., Apr. 24, 1915 377 Mulry, Matter of, 31 Misc. 78, 64 Supp. 576 853 Mundt V. Glokner, 24 A. D. 110, dism'd 160 N. Y. 571, 55 N. E. 297 146, 247 Munn ads. Collier, 41 N. Y. 143 404 Munox ada. Merino, 99 A. D. 201, or 90 Supp. 985 275 Munro ads. Austin, 47 N. Y. 360 129, 538 Munsell v. Munsell, 33 Misc. 185, 68 Supp. 392 717 Munson v. Syracuse, Geneva & Corning R. R. Co., 103 N. Y. 58, 8 N. E. 355 644 Munter, Matter of, 19 Misc. 201, 43 Supp. 605 597 Munzor, Est. of, 4 Misc. 374, or 25 Supp. 818 Ill, 894 Murdock v. Gifford, 18 N. Y. 28 237 Murdoek ads. Rogers, 45 Hun, 30 620 Murdock v. Ward, 67 N. Y. 387 70 Murdock v. Waterlnan, 145 N. Y. 55, 27 L.R.A. 418, 39 N. E. 829 117 Murphy, Matter of, 59 Misc. 131, 112 Supp. 220 303, 930 Murphy, Matter of, 87 Misc. 564, . or 151 Supp. 475 166, 171 Murphy, Matter of, 11 A. D. 426, 106 Supp. 183 591 Murphy, Matter of, 79 A. D. 541, or 81 Supp. 101 950 Murphy, Matter of, .144 N. Y. 557, 39 N. E. 691 466 Murphy v. Erie R. R. Co., 202 K Y. 242, 95 N. B. 699 79 Murphy v. Hall, 38 Hun, 528 140 Murray ads. Kingaland, 133 N. Y. 170, 30 N. E. 145 936 Murrarr ada. Luida, 91 Hun, 335, or 36 Supp. 231; aff'd 157 N. Y. 697, 51 N. E. 1091 340 Murphy v. Metropolitan Life Ina. Co., 92 Misc. 479, 155 Supp. 1062 6 Murphy v. Naughton, 68 Hun, 424, or 23 Supp. 52 107, 127 Murray ads. Kernochan, 111 N. Y. 306, 2 L.R.A. 183, 7 Am. St. Rep. 744, 18 N. E. 868 108 Murray ads. Kingaland, 133 N. Y. 170, 30 N. E. 845 323 Murtha v. Curley, 92 N. Y.. 359 977 Mutual Life Ins. Co. ads. Clare, 201 N. Y. 492, 35 L.R.A. (N.S.) 1123,. 95 N. E. 1075 77!> Mutual Life Insurance Co. ads. Holyoke, 22 Hun, 75, aff'd 84 N. Y. 648 2.5') Ixii TABJ^E OF CASES Eeferences are to pages. Mut. Life Ins. Co. of N. Y. ads. Myers, 99 N. Y. 1, 1 N. E. 33 541 Mutual i^eserve Fund Life Assn. ads.; Sulz, 7 Misc. 593, 28 Supp. 263 163 Myers ads. MeCarty, 5 Hun, 83 318 Myers, Matter of, 58 Hun, 173, 11 Supp. 543 544 Myers, Matter of, 28 Misc. 359, or 59 Supp. 908 484 Myers, Matter of, 36 A. D. 625, or 55 Supp. 107; aff'd 165 N. 'Y. 617 288 Myers v. McCuUogli, 63 A. D. 321, 71 Supp. 520 .; 632 Myers, Matter of, 131 N. Y. 409, 30 N. E. 135 661 Mvers v. Bolton, 157 N. Y. 393, 52 N. E. 114 317 Myers ads. Johnson, 103 N. Y. 666, 9 N. E. 55 983 Myers v. Mut. Life Ins. Co. of N. Y., 99 N. Y. 1, 1 N. E. 33 541 Myers ads. Starke, 24 Misc. 577, 53 Supp. 650 137 Mygatt V. Washburn, 15 N. Y. 316 : 149 Mygatt V. Wilcox, 45 N, y. 306, i Am. Rep. 90 . . '.'.. 107, 282 Myrick ads. Eerrin, 41 N. Y. 315 129 Napny ads. Denton, 8 Barb. 618 37 Nanz V. Oakley, 120 N. Y. 84, 9 L.E.A. 223, 24 N. E. 306 . .531, 811 Xafgan^s, , Matter of, 161 A. D. 563, or 146 Supp, 922; aff'd 213 N. Y. 659, 107 N. E. 1082 287 Nash, Matter of, 76 A. D. 212, or 78 Supp. 449 500 Nash, Matter of, 37 Misc. 706, or 76 Supp. 453 474 Nassoy ads. Crawford, 173 N. Y. 163, 05; N. E. 962 24,5 National Lead Co. ads. Pearse, 162 A. D. 766, 147 Supp. 989 387 National Surety Co. ads. Muller,' 91 Misc. 544, 154 Supp. 1096 802 Naugh1;on ads. Murphy, 68 Hun, 424, 23 Supp. 52 107, 127 Naylor v. Gale, 73 Hun, 53, or 25 Supp. 934 404 Nealis v. Mayer, 21 Misc. 344, or 47 Supp. 165 898 Near v, Shaw, 76 Misc. 303, 137 Supp. 77 465 Neeley ads. Bottome, 124 A. D. 600, or 109 Supp. 120, aff'd , 194 N. Y. 575, 88 N. E. 1115 108 I Neely, Matter of, 67 Hun, 13, or 21 Supp. 685 326 Neely, ads. Bottome, 54 Misc. 258, or 104 Supp. 429; aff'd 124 A. D. 600, 109 Supp. 120 900 Negus or Noues, Matter of, 27 Misc. 165, or 58 Supp. 377 ... 69 Nehrer, Matter of, 57 Misc. 527, or 109 Supp. 1090, aff'd 128 A. D. 882, 112 Supp. 1138 ...111, 277 Neidnig, Matter of,' 65 Misc. 216, 107 Supp. 590 902 Neichelman, Est. of, N. Y. L. J., Jan. 5, 1915 711- Neil, Matter of, 35 Misc. 254, 71 Supp. 840 ..: 282 Neilley v. Neilley, 89 N. Y. 532 293 Nelson, Matter of, 89 Misc. 25, or 152 Supp. 734 493 Nelson, Matter of, 63 Misc. 627, 118 Supp. 673 283 Nelson, Mattel, of, 141 N. Y. 152, 36 N. B. 3 .; 447j 459 Nelson a^s. Eysaman, 79 Misc. 304, or 140 Supp. 183; aff'd 150 N. Y. Supp, 108S, . . . .348, 696, 697 Nelson ads. Watson, Matter of, 69 N. Y. 536 925 Nesmyth, Matter of, 140 N. Y. ,' 609, 35 N. E. 942 660 Nestell, Matter of, 72 Misc. 331, or 131 Supp. 193 5 aff'd 131 Supp. 1131 999 Nester, Matter of, 166 A. D. 224, 151 Supp. 194 431 New V. NieoU, 73 N. Y. 127 638 952 503 Ne\vcomb, Matter of, 192 N. Y. .238; 84 N. E. 950 8, NeVhouse v. Goodwin, 17 Barb. 236 ,..!.... Ne^land, Matter of Est., 7 Misc. 728, or 28 Supp. 496 405 Newland ads. Carpenter, 92 Misc. 596,' 156 Supp. 438 138 Newell, Matter of, 38 Misc. 563, " 77 Siipp. 1116 258 Newell V. Nichols, 75 N. Y. 78, 31 Am. Eep. 424 6 Newton v. Stanley, 28 N. Y. 61 527, 593, Niagara Fire Ins. Co. ads. Law- rence, 2 A. D. 267, or 37 Supp. 811 :. . Nicoll ads. New, 73 N. Y. 127 . . Nichols, Matter of, 54 Misc. 495, or 104 Supp. 581, aff'd 133 A. . D. 928, or 118 Supp. 1136 . .71, Nichols, Matter of, 60 Misc. 299, or 113 Supp. 277 79, 80 594. 133 638 81 TABLE OF CASES Beferences are to pages. Ixiii Nichols, Matter of^ 40 Hun, 387 468 Nichols V. Moloughney, 85 A. D. 1, or 82 Supp. 949 977 NlchoU ads. Newell, 75 N. Y. 78, 31 Am. Eep. 424 6 Nichols V. Park, 78 A. D. 95 or 79 Supp. 547 36, 39 Nichols ads. Ransom, 22 N. Y. 110 68, 69, 70 Niederstein, Matter of, 154 A. D. 238, or 138 Supp. 952 297 Niles, Matter of, 47 Hun, 348 ... 943 Niles, Matter of, 142 A. D. 198, or 126 Supp. 1066 100, 101 Niles, Matter of, 113 N. Y. 547, 21 N. E. 681 391 Niles ads. Cole, 3 Hun, 376, aff'd 62 N. Y. 636 . 600 Niles V. Crocker, 88 Hun, 312, or 34 Supp. 761 982 N. J. & H. E. E. & F. Co. ads. Piertraroia, 197 N. Y. 434, 91 N. E. 120 959 Nobel ads. Knox, 77 Hun, 230, 28 Supp. 355 108 Noble, People ex rel., v. Mitchell. 170 A. D. 379, 155 Supp. 660 996 Nocton, Est. of, N. Y. L. J., Jan. 20, 1916 , 989 Noe, Matter of, 94 Misc. 60 . . 325, 326 Nokes, Matter of, 7l Misc. 382, or 130 Supp. 187 484 Noll, Matter of, 10 A. D. 356, or 41 Supp. 765; aff'd 154 N. Y. -765, 49 N. E. 1101 812 Noll ads. Hovell, 10 Misc. 546, 31 Supp. 439 : 782 Nolting, Matter of, 43 Hun, 456 5 Nones or Negus, Matter of, 27 Misc. 165, or 58 Supp. 377 69 Norris v. Norris,,85 A. C. 113, 83 Supp. 77 . . : 766 North American Trust Co. v. Aymar, 33 Misc. 57'6, or 68 Supp; 870 ...... 929 Northrop ads. Blydenburgh, 13 How. Pr. 289 37 Northrop ads. St. John, 23 Barb. 25 56 Northrup, Matter of, 92 A. D. 5, 87 Supp. 318 256, 968 Northrup ads. Ellwood, 106 N. Y. 172, 12 N. E. 590 755 Northrup ads. Loop, 59 Hun, 75, or 13 Supp. 144 813 Northwest Protestant Dutch Church, The, ads. Richards, 32 Barb. 42 227 Norton, Matter of, 58 Misc. 133, 110 Supp. 474 425 Nowak, Matter of, 38 Misc. 713, 78 Supp. 288 71S Nyahay, Matter of, 66 Misc. 418, 121 Supp. 207 8S-S N. Y. C. & H. E. R. E. Co., ads. Greenburg, 210 N. Y. 505, 104 N. E. 931 721 N. Y. C. & H. E. R. R. Co., ads. Kelliher, 212 N. Y. 207, L.R.A. 1915E, 1178, 105 X. E. 824 ... 145 N. Y. Central & H. R. R. R. Co. ads. Shaw, 101 A. D. 246, or 91 Supp. 740 181 N. Y. C. & H. R. R. R. Co. ads. Uline, 79 N. Y. 175 935 N. Y. Elevated R. E. Co. ads Chanler, 34 A. D. 305, 54 Supp. 341 343 N. Y. Life Ins. Co. ads. Homans, 55 Misc. 574, 106 Supp. 929 157, 255 N. Y. Life Ins. & Trust Co., Mat- ter of, 24 Misc. 71, or 53 Supp. 382 671 N. Y. Life Ins. & Tr. Co. v.' Baker, 165 N. Y. 484, 53 L.R.A. 544, 59 N. E. 257 664 N. Y. Life Ins. & Tr. Co. v. Conkling, 159 A. D. 337, 144 . Supp. 638 826 New York Life Insurance & Trust Co. V. Sands, 26 Misc. 252, or 56 Supp. 741 433 N. Y. Life, Ins. & T. Co. v. Viele, 161 N. Y. 11 19 N. Y. N. H. & H. R. R. Co. ads. Hoes, 173 N. Y. 435, 66 N. E. il9 105, 157 N. Y. Produce Exchange ads. Kemp, 34 A. D. 175, or 54 Supp. 678 ... 78 N. Y. Security Co. v. Saratoga Gas & Electric Light Co., 156 N. Y. 645, 51 N. E. 297 959 Oakeshott v. Smith, 104 A. D. 384, 93 Supp. 659, aff'd 185 N. Y. 583, 78 N. E. 1108 660 Oakes, Matter of, 19 A. D. 192, 45 Supp. 984 611, 612 Oakley, People ex rel., v. Petty, 32 Hun, 443 , 1004 Oakley ads. Nanz, 120 N. Y. 84, 9 L.E.A. 223, .24 N. E. 306 . .53], 811 Oaks ads. Swarthout, 52 Barb. 622 811 Ixiv TABLE OF CASES Eeferenees are to pages. Oatley, Matter of. 83 Misc. 655, or 146 Supp. 796 80 Oakwood ads. Baker, 49 Hun, 416, 3 Supp. 570 47, 48 O'Brien, Matter of, 5 Misc. 136, or 25 Supp. 704 347, 588, 968 O'Brien, Matter of, 34 Misc. 436, 69 Supp. 724, aflf'd 65 A. D. 282, 72 Supp. 1001 250, 252 O'Brien, Matter of, 39 A. D. 321, 56 Supp. 925 330 O'Brien, Matter of, 45 Hun, 284 791 O'Brien, Matter of, 33 Misc. 17, 67 Supp. 1116 916 O'Brien, Matter of, 145 N. Y. 379, 40 N. E. 18 222 O'Brien v. Foley, 150 A. D. 257, 134 Supp. 825 289 O'Brien v. Jackson, 167 N. Y. 31, 60 N. E. 238 538,540, 638 O'Brien ads. Hall, 160 A. D. 851, 146 Supp. 551 290 O'Brien v. Reformed Church, 10 A. D. 605, or 42 Supp. 356 707, 709 Ocean Nat. B'k ads. Dunning, 61 N. Y. 497, 19 Am. Rep. 293 239, 316, 630 Oceanic Steam Navigation Co., Ltd., ads. Robinson, 112 N. Y. 315, 2 L.R.A. 636, 19 N. E. 625 139 Ockerhausen, Matter of, 59 Hun, 200, or 13 Supp. 396 926 O'Connell, Matter of Est. of, 1 Misc. 50, 22 Supp. 914 248 O'Connell ads. McKenna, 84 Misc. 582, 147 Supp. 922 688 O'Conner v. Gifford, 117 N. Y. 275, 22 N. E. 1036 . . .256, 605, 632 O'Conner v. Huggins, 113 N. Y. 511, 21 N. E. 184 181 O'Connor, Matter of 90 Hun, 284, or 35 Supp. 779, aff'd 149 N. Y. 573, 43 N. E. 988 625 O'Connor, Matter of, 65 Misc. 403, 121 Supp. 903 489, 504 O'Connor ads. Roche, 95 A. D. 496, 88 Supp. 968 885 O'Day, Est. of, 88 Misc. 408, 150 Supp. 425 432 Odell, Matter of Eat. of, 1 Misc. 390, or 23 Supp. 143 913 Odell V. Claussen, 120 A. D. 535, 104 Supp. 1104 339 O'Donaghy ads. Jackson, 7 Johns. 247 33 O'Donoghue v. Boies, 92 Hun, 3, or 37 Supp. 961, aff'd 159 N. Y. 87, 53 N. E. 537 716, 717, 824 OTlynn v. Powers, 136 N. Y. 412, 32 n: B. 1085 326, 328, 333 O'Gara V. Eisenlohr, 38 N. Y. 296 17 Ogden, Matter of, 41 Misc. 158, or 83 Supp. 977 . .223, 233, 317, 587 Ogden ads. Potter, 136 N. Y. 384, 33 N. E. 228 732, ,741, 806, 832 Ogsbury v. Ogsbury, 45 Hun, 388 317 Ogsbury ads. Evans, 2 A. D. 556, or 37 Supp. 1104 40 O'Hare, Matter of, 60 Misc. 269, 113 Supp. 281 . . .160, 558, 677, 725 O'Hara, Matter of, 62 Hun, 531 or 17 Supp. 91 692 O'Hara, Matter of, 50 Misc. 495, 100 Supp. 635 892 O'Hara, Matter of, 19 Misc. 254, 44 Supp.. 222 615 O'Hare ads. Jardine, 66 Misc. 33, 122 Supp. 463 69 O'Hara ads. McDonald, 144 N. Y. 566, 39 N. E. 642 343 Olcott V. Baldwin, 190 N. Y. 99, 82 N. E. 748' 408,-411, 418, 424, 425 Olcott V. Jorrin, 36 Misc. 735, 74 Supp. 393 108 O'Leary, Matter of, N. Y. L. J., Dec. 14, 1914 166, 181 Olin V. Arendt, 27 Misc. 270, 58 Supp. 429 539 Oliphant ads. Farnsworth, 19 Barb. 30 786 O'Keeffe, Matter of, 80 A. D. 513, 81 Supp. 118 .,.. 974 Olmstead, Matter of, 24 A. D. 515, or 66 Supp. 212; aff'd 164 N. Y. 571, 58 N. E. 1092 646 Olmstead, Matter of, 24 A. D. 190, 49 Supp. 104 690 Olmstead v. Latimer, 9 A. D. 163, or 41 Supp. 44 273, 274 Olmsted v. Kefea, 85 N. Y. 593 68 Olmsted v. Oltnsted, 190 N. Y. 458, 123 Am. St. Rep. 585, 83 N. E. 569 16, 17 Olsen, Matter of, 89 Misc. 719, or 153 Supp. 1094 247 Olyphant v. Phyfe, 48 A. D. 1, or 62 Supp. 688; aff'd 166 N. Y. 630, 60 N. E. 1117 . . . : 333 O'Neil, Matter of, 46 Hun, 500 . . 913 O'Neil, Matter of, 91 N. Y. 516 448 O'Neil, Matter of, 49 Misc. 285, 99 Supp. 237 324 O'Neill ads. Cavanagh, 20 Misc. 233, 45 Supp. 489 925 Oosterhoudt, Matter of, 15 Misc. 566, 38 Supp. 179 549 TABLE OF CASES Beferences are to pages. Ixv Oppenheim ads. Pache, 93 A. D. 221, or 87 Supp. 704 227 Oppermann ads. Deebold, 111 N. Y. 531, 2 L.R.A.. 644, 7 Am. St. Eep. 760, 19N. E. 94..692, 803, 806 Ordemann ads. Squire, 194 N. Y. 394, 87 N. E. 435 549 Ordway, Matter of, 196 N. Y. 95, 89 N. E. 474 222. Ordway ads. Middleworth, 191 N. Y. 404, 84 N. E. 291, at p. 412 25 Ordway v. Kadigan, 114 A. D. 538, or 100 Supp. 121 902 Ormsbee ads. Crawford, 6 A. D. 50, or 39 Supp. 740 283 O'Keilly, Matter of, 59 Misc. 136, or 112 Supp. 208, and 116 Supp. 1143, and 118 Supp. 1128 396 Oroen v. Krouse, 89 Hun, 1, or 34 Supp. 1004 231 O'Eourke, Matter of, 12 Mise. 248, 34 Supp. 45 151 Orser v. Orser, 24 N. Y. 50 503 Orth V. Haggerty, 126 A. D. 118, or 110 Supp. 551 43 Orth V. Kaesche, 165 A. D. 513, 150 Supp. 957 509 Osborn ads. Dunham, 1 Paige Ch. 634 35 Osborne, Matter of, 166 A. D. 547, 152 Supp. 48 . 937 Osborne, Matter of, 209 N. Y. ,450, 50 L.R.A.(N.S.) 510, 103 N. E. 723, Ann. Gas. 1915A, 298 666 Osburn v. Rochester Trust k S. D. Co., 209 N. Y. 54, 46 L.R.A. (N.S.) 983, 102 N. E. 571, Ann. Cas. 1915A, 101 462 Osgood ads. Vielie, 8 Barb. 130 . . 237 Ostrander ads. Braekett, 128 A. D. 529, 110 Supp. 779 588 Otis ads. Ludlum, 15 Hun, 410 . . 447 Otto V. Van Riper, 164 N. Y. 536, 79 Am. St. Rep. 673, 58 N. E. 643, aflSrming 31 A. D. 278, 52 Supp. 773 814 Overton, Matter of, N: Y. L. J. Jan. 20, 1915 792 Owechi, Matter of, 38 Misc. 713, 78 Supp. 288 •. .. 71S Owens V. Bloomer, 14 Hun, 296 . . 233 Owsley, Matter of, 153 A. D. 90, 137 Supp. 1040 583, 585 Oxley V. Lane, 35 N. Y. 340 969 Pache V. Oppenheim, 93 A. D. 221, or 87 Supp. 704 227 Packard, Matter of, 53 Mise. 163, 104 Supp. 474 252 Packard T. Ehinfee, 119 A. D. 599, 104 Supp. 140 539 Paddock v. Kirkham, 102 N. Y. 597, 8 N. E. 214 901 Page, Matter of, 107 N. Y. 266, 14 N. E. 193 ISO Page ads. Sherman, 85 N. Y. 123 534-5, 602 Paige ads. Luane, 82 Hun, 139, 31 Supp. 310 548 Palmer, Matter of, 115 N. Y. 493, 22 N. E. 221 K53 Palmer ads. Ga. Num, 159 A. 1). 86, 144 Supp. 457 437, 594 Palmer v. Green, 63 Hun, 6, or 17 Supp. 441 255 Palmer v. Morrison, 104 N. Y. 132, 10 N. E. 144 320, 321 Palmer v. Phoenix Mutual Life Insurance Co., 84 N. Y. 63 139 Palmer v. Ward, 91 A. D. 449, 86 Supp. 990 101 Palser ads. Matteson, 173 N. Y. 404, 66 N. E. 110 306 Paola, Matter of, 36 Misc. 574, or 73 Supp. 1062 17.5 Parciasepe, N. Y. L. J., Jan. 8, 1915 295 Parham v. Moran, 4 Hun, 717, aff'd 71 N. Y. 596 197 Park ads. Nichols, 78 A. D. 95, or 79 Supp. 547 36, 39 Parker v. Beer. 65 A. D. 598, or 72 Supp. 955, aff'd 173 N. Y. 332, 66 N. E. 3 ... 326 Parker ads. Cunningham, 146 N. Y. 29, 48 Am. St. Rep. 765, 40 N. E. 635 330 Parker t. Dominick, 105 A. D. 440, 94 Supp. 249 814 Parker ads. Staunton, 19 Hun, 55 560 Parker ads. White, 8 Barb. 48 706, 719 Parr, Matter of, 45 Misc. 564, or 92 Supp. 990; aff'd 113 A. D. 921, 100 Supp. 1133 380, 650 Parr ads. Hallenback, 65 A. D. 167, or 72 Supp. 488 252 Parry v. Parry, 92 Misc. 490, 155 Supp. 1072 130 Parsons ads. Edson, 155 N. Y. 555 438 Parsons v. Lyman, 20 N. Y. 103 72, 98, 258 Parsons ads. Rowe, 6 Hun, 338 . . 8n-.> Parsons v. Winslow, 16 Mass. 361 648 Partlin, Est. of N. Y. L. J., Mch. 10, 1915 22S Paton, Matter of, 41 Hnn, 497 . . 421 Ixvi TABLE OF CASES Eeferences are to pages. Paton. Matter of, 7 Misc. 377, 28 Supp. 160 : 623 Patrick, People ex rel. v. Fitz- gerald, 73 A. D.. 339, or 76 Supp. 865 479, 840, 852 Patten, Matter of, 80 ilisc. 482, or 142 Supp. 452 164 Patterson, Eat. of 5 Misc. 178, 25 Supp. 702 612 Patterson, Matter of, 70 Hun, 371, or 29 Supp. 451 ; aff 'd 146 N. Y. 327, 40 N. E. 990 864, 916 Patterson, Matter of, 41 Misc. 66, or 83 Supp. 649 ; 214 Patterson, Matter of, 146 N. Y. 327, 40 N. E. 990 : 915 Patterson v. Buchanan, 40 A. D. 493, or 58 Supp. 179 '. ." 230 Patterson v. Knapp, 83 Hun, 492, or 32 Supp. 32 898 Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384 ..226- 229, 296 Patterson ads. Whitteck, 10 Barb. 608 :447, 454 Patterson ads. Whitbeck, 22 Barb. 83 :. 975 Pattison, Matter, 78 Misc. 699, or 142 Supp. 1134; aff'd 154 Supp. 1136 507 Paulding v. Sherkey, 88 N. Y. 432 532 Payne, Est. of, N. Y. L. J., Jan. i9, 1916 356 Payne v. Becker, 87 N. Y. 153 ... 34 Payne ads. Rouse, 120 A. D. 667, ■ or 105 Supp. 549 , 813 Pearce, Matter of, 77 Misc. 415, "137 Supp. 755 ... ...,,... 751 Pearse v. Natural Lead Co. 162 A. D. 766, 147 Supp. 980 . .268, 387 Pease v: Gillette, 10 Misc. 467, or 32 Supp. 102 ...... ... 373 Peaslee, Matter of, 73 Hun, 113, 25 Supp, 940 913 Peaalee, .Matter of, 81 Hun, 597, 30 Supp. 1028, aff'd 146 N.' Y. 378, 41 N.' E. 90 620 Peaslee ads. Hitchcock, 145 N. Y. 547,40 N. E. 211 911 Peck, Matter of, 31 A. D. 407, 52 Supp. 1028, dism'd 161 N. Y. 655, 57 N. E. 1119 533 Peck, Matter of, 79 A. D. 296, 80 Supp. 76, aff'd 177 N. Y. 538, 69 N. E. 112© 543 Peck V. Carey, 27 N. Y. 9 440, 499 557 Pecks ads. Lyon, 111 N. Y. 350^ 18 N. E. 863 . . ; 99 Peck V. Peck, 23 Hun, 312 aff'd 99. N. Y. 608 973 Peck V. Richardson, 17 A. ,D. 618 68 Peck V. Sherwood, 56 N. Y. 615 . . 648 Peckin ads. Drake, 58 Misc. 449, 109 Supp. 474 ...' 490 Pegrot ads. Smith, 201 N. y. 210, 94 N. E. 662 '. 539 teiser. Matter of, 79 Misc. 668, 140 Supp. 844 451 Pelham v. The Broadway Savings Institution, 148 N. Y. 737, 42 N. E. 722 976 Pelletreau ads. Leggett, 213 N. Y'. 237, 107 N. .E. 509 236 Peltz, Matter of, v. SLiiultes, 64, Hun, 369, or 19 Supp. 637 792 Pendleton ads. Farmers' Loan & Trust Co., 115 A. D. 506 672 Pendleton ads. Farmers' Loan & Trust Co., 179 N. Y. 486, 72 JST. E. 508 792 Penfield ads. Fonde, 56 Barb. 503 635 People V. Boice, 39 Barb. 307 ... 729 The People ads. Corey, 45 barb. 262 34 People, The, v. Kearney, 31 Barb. 430 714 People ads. Kinneally, Matter Of, 98 A. D. 192, 90 Supp. 587 .... 994 People V. Pierson, 176 N. Y. 201, 63 L.R.A. 187, 98 Am. St. Rep. 666, 68 N. E. 243 706 People V. Townsend, 37 Barb. 520 101 People's Trust Co., Matter of, 37 Misc. 239, 75 Supp. 254 926 People's Trust Co., Matter of, 169 A. D. 699, 155 Supp. 639 . . ; . . 545 Pepoon, Matter of, 91 N. Y. 255 504 Percival, Matter of, 79 Misc. 567, 141 Supp. 180, mod. 146 Supp. 1108 34, 382, 545 Perego, Matter of, 65 Hun, 478, or 20 Supp. 394 440 Perkins v. Stimmel, 114 N. Y. 359, 11 Am. St. Rep. 69, 21 N. E. 729 720, 812 Perry, Matter of, 5 Misc. 149, or 25 Supp. 716 551, 622 Perry, Matter. of, 129 A. D. 587, or 114 Supp. 246, and 131 Supp. 284 381 Perry, Matter of, 131 A. D. 284, 115 Supp. 744 975 Personemi v. Goodale, 199 K. Y. 323, 92 N. E. 754 324-5; 327 Peters v. Sinith, 60 Misc. 203. Ill Supp. 842 534 TABLE OF CASES Eeferences are to pages. Ixvii Peters v. Talleliief, 121 A. D. 309, or 106 Supp. 64 844 Peterson, Matter of, 51, Misc. 367, or 99 Supp. 883; affd 115 A. D. 920 888 Peterson, Matter of, 64 Misc. 217, or 118 Supp. 1077, and 121 Supp, 738 295 Peterson, Matter of, 68 Misc. 10, 124 Supp. 907 917 918 Peterson, Matter of, 137 A. D. 435, 121 Supp. 738 345 Petersen v. Chemical National Bank, 32 N. Y. 21 140 Petry, Est. of, N. Y. L. J., Nov. 16, 1915 422 Pettigrew v. Foshay, 12 Hun, 483 849 Petty ads. Oakley, People ex. rel., 32 Hun, 443 1004 Peyrot ads. Smith, 201 N. Y. 210, 94 N. E. 662 340 Peyser, Matter of, 35 A. D. 447, 54 Supp. 832 252 Pfarr, Matter of, 38 Misc. 223, 77 Supp. 326 168 Pfarr's Est. Matter of, 113 St. Eep. 639 949 Pfeifer v. Supreme Lodge, 54 A. D. 200, or 66 Supp. 604 977 Pflug, Est. of, N. Y. L. J., May 25, 1915 794, 796 Pfohl, Matter of, 20 Misc. 627, 46 Supp. 1086 328 Phalen, Matter of, 51 Hun, 208, or 4 Supp. 408 882 Phalen v. U. S. Trust Co. 100 A. D. 264, or 91 Supp. 537 ..392, 512 Phelps ads. Brown, 48 Hun, 219, aff'd 113 N. Y. 658, 21 N. E. 415 ; 625 Phelps ads. Foley, 1 A. D. 551, or 37 Supp. 471 226 Phelps V. Phelps, 143 N. Y. 197 . . 36 Phelps ads. Stewart, 71 A. D. 91, or 75 Supp. 526; aiDf'd 173 N. Y. 621, 66 N. E. 1117 667 Phillips, Matter of, 34 Misc. 442, 69 Supp. 481 : 458 Phillips, Matter of, 98 N. Y. 267 454 Phillips V. Liebmann, 10 A. D. 128, 41 Supp. 1020 753, 811 Phillips V. McCombs, 53 N. Y. 494 293 Phillips ads. Roome, 24 N. Y. 463 318 Phillips ads. Eoome, 27 N. Y. 357 93, 94, 340 Philp, Matter of, 29 Misc. 263, or 61 Supp. 241 114, 390 Philson V. Moore, 23 Hun, 152 . . 605 Phoenix v. Livingston, 101 N. Y. 451, 5 N. E. 70 408, 422 Phoenix Mutual Life Insurance Co. ads.. Palmer, 84 N. Y. 63 139 Phyfe ads. Armour, 6 A. D. 605, or 39 Supp. 973 ; aif'd 159 N. Y. 552, 54 N. E. 1089 340 Phyfe ads. Olyph^nt, 48 A. D. 1, or 62 Supp. 688 ; aff'd 166 N. Y. 630, 60 IST. E. 1117 333 Pierce ads. Bell, 51 N. Y. 12 8 Pierce ads. Daxling, 15 Hun, 542 998 Pierce ads. Deering, 149 A. D. 10, or 132 Supp. 582 675 Pierce ads. Morchauser, 64 A. D. 558, 72 Supp. 328 248 Pierce v. Pierce, 71 N. Y. 154, 27 Am. Rep. 22 40 Pieris, Matter of, 82 A. D. 466, or 81 Supp. 927; aff'd 176 'S. Y. 566, 68 N. E. 1123 990 Pierson, Matter of, 19 A. D. 478, or 46 Supp. 557 277 Pierson ads. People, 176 N. Y. 201, 63 L.R.A. 187, 98 Am. St. Rep. 666, 68 N, E. 243 706 Pierrepont v. Edwards, 25 N. Y. 128 594 Piertraroia v. N. J. & H. K. R. & F. Co., 197 N. Y. 434, 91 N. E. 120 950 Pilcher ads. Hastrich, 171 A. D. 470, 157 Supp. 613 835 Pilling V. Pilling, 45 Barb. 92 . . 948 Pinckney v. Smith, 26 Hun, 524. . 338 Pittman ads. Bennett, 48 Hun, 612, or 1 Supp. 27 897 Pittman v. Johnson, 35 Hun, 38, aff'd 102 N. Y. 742 621 Pitts V. Jameson, 15 Barb. 310 . . Ill Pitts V. Pitts, 52 N. Y. 593 39 Place ads. Beckett, 12 Misc. 323, or 33 Supp. 634 810 Plant V. Harrison, 36 Mi.sc. 649, or 74 Supp. 411 9 Plastrik, Est. of, N. Y. L. J., Oct. 17, 1914 625 Platch, Matter of, 56 Hun, 223, or 9 Supp. 251 177 Plate, Matter of, 93 Misc. 423, or 156 Supp. 999 905 Piatt ads. Cooke, 98 N. Y. 35 . .93, 327 Piatt V. Grubb, 41 Hun, 447 .... 242 Piatt ads. Martin, 51 Hun, 429, 4 Supp. 359 539 Piatt V. Mickle, 137 N. Y. 106 . . 70 Piatt ads. Voke, 48 Misc. 273, or 96 Supp. 725 40 Ixviii TABLE QF CASES Eeferences are to pages. Plopper, Matter of, 15 Misc. 202, 37 Supp. 33 324 Plumb, Matter of, 52 Hun, 119, 4 Supp. 831 823, 911 Plumb, Matter of, 64 Hun, 317, or 19 Supp. 79; dism'd 135 N. Y. 661, 32 N. E. 22 901 Plumb, Matter of, 24 Misc. 249, or 53 Supp. 558 777 Plumb, Application of, 135 N. Y. 661, 32 N. E. 22 901 Plummer, Matter of, 38 Misc. 536, 77 Supp. 1115 615 Podmore v. South Brooklyn Sav- ings Institution, 27 Misc. 120, 57 Supp. 406 977 Pollock, Est. of, N. Y. L. J., Sept. 28, 1915 930' Pollock, Matter of, 91 Mifec. 471, or 155 Supp. 270 791 Pollock ads. Gasquet, 1 A. D. 512, or 37 Supp. 357; aff'd 158 N. Y. 734, 53 N. E. 1125 698 Pomeroy ads. White, 7 Barb. 640 738 Pond, Matter of, 40 Misc. 66, 81 Supp. 249 373 Pond ads. Dodge, 23 N. Y. 69 . . . . 604 Poole ads. Titus, 146 N. Y. 414, 40 N. E. 228 275, 284 Poor ads. Clark, 73 Hun, 143, or 25 Supp. 908, dism'd 144 N. Y. 699, 39 N. E. 857 481 Pope V. Cole, 55 N. Y. 124, 14 Am. Rep. 198 Ill Popp, Matter of, 123 A. D. 2, or 107 Supp. 277 430 Popp's Will, Matter of, 107 Supp. {A.J).) 277, modifying 53 Misc. 200, 104 Supp. 585 ■ .' 429 Poppenh'ausen ads. Richten, 42 N. Y. 373 '......:... Ill Poppenhausen ads. Van Ripen, 43 N. Y. 68 ...:.. Ill Porter v. Purdy, 29 N., Y. 106 . . 838 Porter ads. Roosevelt, 36 Misc. 441, or 73 Supp. 800 . . '. 514 Porter ads. Tifft, 8 N. Y. 516 593 Porter ada. Wetmore, 92 N. Y. 76 540 Post, Matter of, 30 Misc. 551, 64 Supp. 369 631, 889 Post V. Hoover, 33 N. Y. 593 711, 755 Post V. Ingraham, 122 A, D. 738, or 107 Supp. 737 . 820 Post V. Mason, 91 N. Y. 539, 43 Am. St. Rep. 689 928 Post ads. Taylor, 30 Hun,, 446 . . 37 Post ads. Williams, 158 A. D. 818, or 143 Supp. 1027 . . 6 Post and McCord ads. McKeag- ,gan, 117 A. T>. 129, or 102 Supp. 276 978 Post and McOord ads. Meaney, 117 A. d! 563 or 102 Supp. 611 978 Potter V. Cromwell, 40 N. Y. 287, 1 00 Am. Dec. 485 237 Potter ads. MoAlpine, 126 N. Y. 285, 27 N. E. 475 407, 410 Potter V. Ogden, 136 N. Y. 384, 33 N. E. 228 . . . .732, 741, 806, 832 Potter ads. Savage, 159 A. D. 729, 145 Supp. 78 ■ 942 Potter's Will, In re 155 Supp. (A. D.) 939 479, 848 Potts V. Dounce, 173 N. Y. 335, 66 N. E. 4 131 Powell, Matter of, 136 A. D. 830, 121 Supp. 779 951 Powell ads. Atlantic Trust Co., 23 Misc. 289, or 50 Supp. 866 664 Powell, ads. Darling, 20 Mi^c. ,240, 45 Supp. 794 : 539 Powell V. Demming, 22 Hun, 235 519 Power V. Speckman, 126 N. Y. 354, 27 N. E. 474.. 803, 806, 922 Powers, Est. of, N. Y. L. J., Sept. 5, 1914 354 Powers, Matter of, 75 Misc. 85, or 134 Supp. 967 226, 228, 232 Powers, Matter of, 124 N. Y. 361, 26 N. E. 940 286 Powers ads. OTlynn, 136 N. Y. 412, 32 N. E. 1085 . . 326, 328, 333 P. R. & A. E. R. R. Co. ads. Guar- antee Trust Co., 160 N. Y. 1, 54 jSr. E. 575 964 Praetz, Matter of, 87 Misc. 128, or 150 Supp. 221 316 Pratt ads. I&ok, 8 Hun, 102 . . 460 Pratt ads. Kellv, 41 Misc. 31, or 83 Supp. 636 298 Pratt ads. Robinson, 151 A. D. 738, 136 Supp. 98 238 Pratt V. Roman Catholic Orphan Asylum, 20 A. D. 352, or 46 Supp. 1035, aflf'd 166 ISf. Y. 593, 59 N. E. 1120 826 Pratt ads. Trust & Deppslt Co., 25 Hun, 23 815 Pray, Matter of, 40 Miso 516, 82 Supp. 807 220, 580 Prentice, Matter of, 25 A. D. 209, 49 Supp. 353, aff'd 160 N. Y. 568, 55 N. E. 275 . . 414, 421, 960 Prentice v. Janssen, 14 Hun, 548, aff'd 79 N. Y. 478 343 TABLE OF CASES References are to pages. Ixix Prentice ads. Van Cott, 104 N. Y. 45, 10 N. E. 257 437 Prentiss v. Weatherby, 68 Hun, 114, or 22 Supp. 687, aff'd 144 N. Y. 707, 39 N. E. 858 .... 800 Prentice v, Whitney, 8 Hun, 300 284 Presbyterian Hospital ads. Da- vey, 202 N. Y. 259, 95 N. E. 695, Ann. Cas. 1912D 1238 .. 226 Preston v. Fitch, 137 N. Y. 41, ,33 N. E. 77 110 Prevost, Est. of, N. Y. L. J.-, Meh. 15, 1915 176 Price ads. Drake, 5 N. Y. 430 527 Price V. Mulford, 107 N. Y. 303, 14 N. E. 298 149 Price V. Price, 124 N. Y. 589, 12 L.E.A. 359, 27 N. E. 383 . . 35 Prime ads. Herriott, 87 Hun, 95, or 33 Supp. 970, aff'd 155 N. Y. 49 N. E. 142 337 Primmer, Matter of, 49 Misc. 413, 99 Supp. 830 231, 233, 295 Primmer v. Primmer, 166 A. D. 402, 151 Supp. 1024 497 Prince, Matter of, 56 Misc. 222, or 107 Supp. 296 277 Prince v. County of Kings, 97 N. Y. 421 339 Printup, Matter of, 121 A. D. 322, or 106 Supp. 74 843 Prote or Nichols, Matter of, 54 Misc. 495, or 104 Supp. 581, aff'd 133 A. D. 928, or 118 Supp. 1136 71, 81 Protestant Episcopal Public School, Matter of, 86 N. Y. 396 970, 976 Prout, Matter of, 52 Hun, 109, 4 Supp. 841 365 Prout, Matter of, 128 N. Y. 70, 13 L.R.A. 104, 27 N. E. 948 . . 258 Provst V. International Giant Safety Coaster Co., 152 A. D. 83, or 136 Supp. 654^ aff'd 208 N. Y. 635, 102 N. E. 1112 144 Pruden ads. Schiffer, 64 N. Y. 47 39 Pruyn, Matter of, 141 N. Y. 544, 36 N. E. 595 350 Pruyne, Matter of, C8 A. D. 584, 73 Supp. 859 • 719, 754 Pryor v. Milburn, 15 Misc. 596,. 101 Supp. 34 12S Public Administrator ads. Gra- ham, 4 Bradf. 127 72 The Public Administrator v. Hughes, 1 Bradf. 125 at p. 126 72 Pugsley V. Aiken, 11 N. Y. 49i . . 109 Pugsley ads. Hvatt, 23 Barb. 285 61 Pugsley ads. Hyatt, 33 Barb. 373, and 23 Barb. 285 55 Pugsley ads. Mason Hamlin Or- gan Co., 19 Him, 282 902 Pullen, Matter of, 52 Misc. 75, 102 Supp. 435 619 Pulitzer, Est. of, 89 Misc. 657, or 153 Supp. 1100 431 Pumpelly v. Tinkham, 23 Barb. 321 182 Purdy, Est. ' of, ' N. ' Y. ' L. J.', ' Nov. 3, 1915 582 Purdy ads. Avery, People ex rel. 155 A. D. 607, or 140 Supp. 614, aff'd 209 N. Y. 575 . . 117, 209 Purdy V. Hayt, 92 N. Y. 446 347 Purdy V. Lynch, 145 N. Y. 462, 40 N. E. 232 631 Purdy ads. Porter, 29 N. Y. 106 838 Putnam ads. Greene, 1 Barb. 500 35-6 Putney, Matter of, 61 Misc. 1, 114 Supp. 556 780 Puvogel ads. Clausen, 114 A. D. 455, or 100 Supp. 49 430 Pye, No. 1, Matter of, 18 A. D. 306, 46 Supp. 350, aff'd 154 N. Y. 773, 49 N. E. 1103 596 Pye, Matter of, 21 A. D. 266, 47 Supp. 689 964 Pye, Matter of, 23 A. D. 206, 48 Supp. 865 954 Pyle V. Pyle, 137 A. D. 568, or 122 Supp. 256, 'aff'd 199 N. Y. 538, 92 N. E. 1099 692, 822 Quackenbos, Matter of, 38 Misc. 66, 76 Supp. 964 922 Quackenboss v. Southwick, 41 N. Y. 117 691 Quatlander, Matter of, 29 Misc. 566, or 61 Supp. 1064 325 Quinby ads. Wilcox, 73 Hun, 524, or 26 Supp. 114 643, 648 Quinlan, Est. of, N. Y. L. J., Apr. 12, 1916 214 Quinn, Matter of, 16 Misc. 651, or 40 Supp. 732 221 Quitman ads. Lovell, 88 N. Y. 377 460, 463 Raab, Matter of, 47 A. T>. 33, 62 Supp. 332 983 Radigan ads. Ordway, 114 A. D. 538, or 100 Supp. 121 902 Rafferty, Matter of, 52 Misc. 69, 102 Supp. 432 423 Rafferty v. Scott, 4 A. D. 429, or 39 Supp. 508 494 Ixs. TABLE OF CASES Eeferences are to pages. Eainach, Matter of, 41 Misc. 78, or 83 Supp. 651 ' 346 Eainey, Matter of Est. of, 5 Misc. 367, or 26 Supp. 892 282 Rainey ads. Banes, 192 N. Y. 286, 85 K E. 71 977, 978 Eainforth, Matter of, 40 Misc. 609, 83 Supp. 57 . . ; 547, 587 Rainsforth, Matter of, 37 Misc. 660, or 76 Supp. 314 852 Ralph, Matter of, 91 Misc. 373, or 155 Supp. 147 372 Rapelje, Matter of, 66 Misc. 414, or 123 Supp; 287 242 Raplee ads. Spicer, 4 A. D. 471, ' or 38 Supp. 806 : 284 Randal v. Dyett, 38 Hun, 347 . . 256 Randall ads. Ball, 87 Misc. 194, 149 Supp. 595 . 8 Randall v. Sackett, 77 N. Y. 480 805 Randall ads. Wilcox, 7 Barb. 633 37 Rankin ads. White, 18 A. D. 293, or 46 Supp. 228, aff'd 162 N. Y. 622, 57 N. E. 1128 374 Ranney ads. Wilder, 95 N. Y. 7. ; 534 Ranny ads. Lalce, 33 Barb. 49.. 497 Eansier, Matter of, 26 Misc. 5,82, 57 Supp. 650 ..-.. 822 Ransom v. Mchols, 22 N. Y. llO 68, 69, 70 Ransom ads. Van Ness, N. Y. L. J., Aug. 4, 1915 ,.: ,.,.:.. :241 Easeh, Matter of, 26 MiSc. '459, or 55 Supp. 434 .:. ..■.,..'.;.:■. .-; 388 Rastetter v. Hoenninger, '214 Nl Y. 66, 108 N. E. 210 437, ^38 Rathgen, Matter of, 115 A. D. 644, or 101 Supp. 289 : . 215 .Raymond, Matter' of, 73 A. D. 11, far 76 Supp. 355 843 Raymond ads. Hbusfei 3 Hun, 44 334) Eaynor, Matter of, 48 Misc. 325, or 96 Supp. 895 160, 558, 677, 725 Raynor, Matter of, 93 A. D. 114, OT 87 Supp. 23 936 Raynor v. Gordon, 23 Hun, 264 . . 329 Read, Matter of, 41 Hun, 95 365 Read' ads. Burnstead, 31 Barb. 661 480; Eecknagel, Matter of, , 148 A. D. 268, 132 Supp. 99 393 Eedfield, Matter of, 94 Misc. 20 " 490, 493, 887 Redfield Matter, 71 Hun, 344, 25 , Supp. 3 ' . 386 Iteed, Matter of, 45 A. D. 196, or 61 Supp. 50 410, 643, 663 Reed, Matter of, 171 A. D. 21, 156 Supp. 944 880; 933 Reed v. Chilson, 142 N. Y. 152, 36 N. E. '884 889 Reeve, Ma+ter of) 38 Misc. 409, 77 Supp. 936 ■ 49 Reeve ads. Hudson, 1 Barb. 89 136 Reeve ads. Trustees of ' M. B. Church, 79 A. D. 65, 79 Supp. 1102 147 Reeves,' Matter of, 48 Hun, 606, 1 Supp. 17 971 Refortiied Church ads. O'Brien, 10 A. D. 605, or 42 Supp. 356 707, 709 Regan, Matter of, 167 N. Y. 338, '60 N. E. 658 847, 960, 989 Rhodes V. Caswell, 41 A. D. 229, or 58 Supp. 470 395 Reichert, Matter of, 34 Misc. 288, or 69 Supp. 644 162 Reid, Matter of, 170 A. D. 631, 156 Supp. 500 662 Reiffeld, Matter of, 36 Misc. 472, or 73 Supp. 808 505 Reilly v. Erie E. R. Co., 63 A. D. 415, 71 Supp. 551 133 Eeilly ads. Lockman, 95 N. Y. 64 239, 527 Reiman ads. Schuehle, 86 N. Y. 270 '. 826, 840 Reinhardt's Will, Matter of, 92 Misc. 96, or 156 Supp. 171 ... 904 Reinhardt v. Reinhardt, 134 A. D. 440, or 119 Supp. 2g5 109 Reinisch, Matter of, 20 AJ D. 416, 46 Supp. 902 681 Reisrier, Matter of, 81 Misc. 101, or 142 , Supp. 3074 45,1 Eemiiigtori ads. Smith, 42 Barb. 75 ..,...; 623 Eemington v. Walker, 99 'N. Y. 626, 1 N. E. 305 '545 Reynault ads. Walther, 56 Hun, 560; or 9 Supp. 849 236 Reynard ads; Forbes, 113 A. D. 306, or 98 Supp. 710 . 706, 766 Reynolds, Matter of, 11 Hun, 41 712 Reynolds, Matter of, , 87 Misc. 569, or 151 Supp., 380 .... 504 Reynolds ads. -Greenei', 72 Hun, 56§, i25 Supp.. 625 35 Reynolds v. Reynolds; 16 N. Y. 257- : . 617 Reynolds v. Reynold's Executors, 17 N. Y. 257 ..■ 616 Reynolds v. Reynolds, 20 Misc. 254, or 45 Supp. 338 903 TABLE OF CASES Eeferences are to pages. Ixxi Reynolds v. Reynolds, 34 Wend. 193 39 Reynolds v. Sisson, 78 Hun, 595, 29 Supp. 492 645 Reynolds ads. Stephen, 6 N. Y. 454 322 Riccardo, Matter of, 79 Misc. 371, or 140 Supp. 606 169 Rice, Matter of, 81 A. D. 223, or 81 Supp. 68; aff'd 176 N. Y. 570, 68 N. E. 1123 479, 852 Rice ads. Baldwin, 100 A. D. 241, or 91 Supp. 1086, and 89 Supp. 738, afif'd 183 N. Y. 55, 75 N. B. 1096 99, 529, 839 Rice ads. Baldwin, 44 Misc. 64, 89 Supp. 738, aflf'd 183 N. Y. 55, 75 N. E. 1096, reargument denied 184 N. Y. 523, 71 N. E. 1088 98, 176, 185, 187, 838 Rice V. Harbeson, 63 N. Y. 493 . . 118 Rice ads. Herkimer, 27 N. Y. 163 267 Rice ads. Tompkins, 55 Hun, 563 68 Richards v. Gill, 138 A. D. 75, or 122 S^pp. 620 315 Richards v. Stillman, 57 A. D. 182, or 68 Supp. 188 ; aff'd 172 N. Y. 632, 65 N. E. 1121 .... 983 Richards V. The Northwest Prot- estant & Dutch Church, 32 Barb. 42 227 Richardson, Matter of, 118 A. D. 164, 103 Supp. 22 837 Richardson, Matter of, 81 Hun, 425, or 30 Supp. 1008 913 Richardson, Matter of, 120 A*. D. 406, or 105 Supp. 615 917 Richardson, Matter of, 31 Misc. 666, or 66 Supp. 94 .. 253 Richardson, Matter of, Est. of, 2 Misc. 288, 23 Supp. 978 . . 423, 429 Richardson ads. Kirk 32 Hun, 434 ....;... :......... 46 Richardson ads. Peck, 17 A. D. 618 68 Richmond, Matter of, 63 A. D. 488, or 7i Supp. 795 938 Richmond v. Richmond, 123 A. D. 117, or 108 Supp. 298, aff'd 196 N. Y. 535, 89 N. E. 1111 .... 669 Richter v. Poppenhausen, 42 N. Y. 373 ..: Ill Riddell V. Riddell, 85 Hun, 482, ■'■' 33 Supp. 99 36, 38 Rider, Matter of, 68 Misc. 270, 124 Supp. 1001 329 Riggs V. Cragg, 89 N. Y. 479 359, 829 Righter v. Ludwig, 39 Misc. 416, 80 Supp. 16 50 Riley ads. Fries, People ex rel. 25 Hun, 587 925 Riley v. Ryan, 103 A. D. 176, 93 Supp. 386 148 Riley v. Waller, 22 Misc. 63, 48 Supp. 535 230 Rima v. Rossie Iron Works, 120 N. Y. 433, 24 N. E. 940 737 Ring, Matter of, N. Y. L. J., Feb. 24, 1915 422 Ring, Geo., Est of, N. Y. L. J., Dec. 29, 1914 885 Rintoul ads. Buchan, 70 N. Y. 1 378, 892 Ripsom ada. Whipple, 29 A. D. 70, or 51 Supp. 635 940 Risley v. Brown, 67 N. Y. 160 805 Risley v. Wightman, 13 Hun, 163 128 Ritch, Matter of, 79 Hun, 36, or 27 Supp. 613 225 Robbins, Matter of Est. of, 7 Misc. 264, or 27 Supp. 1009 . . 282 Roberge v. Bonner, 94 A. D. 342, or 88 Supp. 91; aff'd 185 N. Y. 265, 77 N. E. 1023 289 Roberts, Matter of, 40 Misc. 512, or 82 Supp. 805 424, 425 Roberts, Matter of, 72 Misc. 625, 132 Supp. 396 320 Roberts ads. Green, 47 Barb. 521 2;i2 Roberts ads. Ross, 2 Hun, 90, aff'd 63 N. Y- 652 339 Robertson, Matter of, 23 Misc. 450, 51 Supp. 502 , . . 491 Robertson, Matter of, 51 A. D. 117, or 64 Supp. 385; aff'd 165 N. Y. 675, 59 N. E. 1129 ...... 911 Robertson ads. Caw, 5 N. Y. 125 509 Robertson v. De Bouletour, 188 N. Y. 301, 80 N. E. 938 . . 406, 419, 668, 671 Robins v. McClure, 100 N. Y. 328, 53 Am. Rep. 184, 3 N. E. 663 67, 70 Robinson, Matter of, 53 Misc. 171, 104 Supp. 588 897 Robinson, Matter of, 160 N. Y. 448, 55 N. E. 11 974 Robinson, Matter of, 59 Misc. 323, 112 Supp. 280 990 Robinson, Matter of, 125 A. D. 424, 109 Supp. 827; aff'd 192' N. Y. 574, 85 N. E. 115 988 Robinson, Matter of, 37 Misc. 336, or 75 Supp. 490 419 Robinson, Matter of, 45 Misc. 551, 92 Supp. 967 403 Ixxii TABLE OF CASES Keferences are to pages. Robinson, Matter of, 37 N. Y. 261 678, 682 Robinson v. Adams, 81 A. D. 20, or 80 Supp. 1098; aff'd 179 N. Y. 558, 71 N. E. 1139 672 Robinson v. Adams, 30 Misc. 537, 63 Supp. 816 605 Robinson v. Oceanic Steam Navi- gation Co., Ltd., 112 N. Y. 315, 2 L.R.A. 636, 19 N. E. 625 . . 139 Robinson v. Pratt, 151 A. D. 738, 136 Supp. 98 238 Robinson v. Thomas, No. 1, 123 A. D. 411, or 107 Supp; 1110 . . 132 Robinson ads. Wilmot, 42 Misc. ■244, or 86 Supp. 575 328 Robitaille, Matter of, 78 Misc. 108, or 138 Supp. 391 12 Robitscher, Matter of, 92 Misc. 653, 156 Supp. 265 174 Robitscher, Matter of, 216 N. Y. 665, 110 N. E. 1048 961 Robson, Matter of, 32 Misc. 608, or 67 Supp. 579 373 Rocco, Matter of, 55 Misc. 469, 106 Supp. 677 245, 914 Roche V. O'Connor, 95 A. D. 496, 88 Supp. 968 '. 885 Rochester Trust & S. D. Co., ads. Glennan, 209 N. Y. 12, 52 L.RA.{N.S.) 302, 102 N. E. 537, Ann. Cas. 1915A, 44i .... 257 Rochester Trust & S. D. Co., ads. Osburn, 209 N. Y. 54, 46 L.R.A. (N.S.) 983, 102 N. E. 571, Ann. Cas. 1915A, 101 462 Rock V. Rod?, 105 A. D. 157, or 93 Supp. 646 ...._ 288 Rockefeller ads. Smith, 3 Hun, 295 981 Rockwell V. Geary, 4 Hun, 60fi 306, 315 Rockwell V. Saunders, 19 Barb. 473 : .., .., . 255 Roderigas v. East River Savings Institution, 76 N. Y. 316, 32 Am. Rep. 309 3, 839 Roderigas v. East River Savings Institution, 63 N. Y. 460 155 Rodwell ads. TJnderhill, 18 A. D. 361, 46 Supp. 11 618 Roe, Matter of, 82 Misc. 565, 143 Supp. 999 449, 456 Roe V. Boyle, 81 N. Y. 305 . ., 961 Roe ads. Doe, 2 Barb. 200 ... 447, 448 Roebuck, Matter of, 79 Misc. 589, or 140 Supp. 1107 50 Roffo, Matter of, 57 A. D. 35, 64 Supp. 455 607 Rogers, Matter of, 37 Misc. 54, or 74 Supp. 829; aff'd 362, 80 Supp. 755 543 Rogers, Matter of, 153 N. Y. 316, 47 N. E. 589 373 Rogers, Matter of, 10 A. D. 593,, or 42 Supp. 133 948 Rogers, Est. of, N. Y. L. J., June 11, 1915 392 Rogge ads. Jurgens, 16 Misc. 100, or 37 Supp. 249'.. 43 Rogers ads, Kinnier, 42 N. Y. 531, 342 Rogers v. lilcLean, 34 N. Y. 536 721 Rogers v. Murdoek, 45 Hun, 30 620 Rogers v. iCogers, 75 Hun, 133, or 27 Supp. 276 143 Rogers v. Squires, 26 Hun, 388, aflf'd 98 N. Y. 49 268 Rogers ads. Westerfield, 174 N. Y. ■230, 66 N. E. 813 821, 826 Roland, Matter of, 55 A. D. 66, or 66 Supp. 1121; aflf'd 166 N. Y. 641, 60 N. E. 1120 988 RoUwagen v. Rollwagen, 63 N. Y. 504 440, 498 Roman Catholic Orphan Asylum ads. Pratt, 20 A. D. 352, or 46 Supp. 1035, aff'd 166 N. Y. 593, 59 N. E. 1120 826 Roome v. Phillips, 24 N. Y. 463 318 Roome v. Phillips, 27 N. Y. 357 93, 94, 340 Rooney, Matter of, 26 Misc. 106, 56 Supp. 855 402 Roos V. Willett, 76 Hun, 211, 27 Supp. 785 112 Roosevelt v. Porter, 36 Misc. 441, or 73 Supp. 800 514 Roosevelt v. Van Alen, 31 A. D. 1, or 52 Supp. 304 421 Rose, Matter of, 153 A. D. 263, 137 Supp. 1079 928 Roseboom v. Rosehoom, 15 Hun, 309, aff'd 81 N. Y. 356 981 Rosekraus v. Rosekraus, 163 A. D. 730, 148 Supp. 954 25, 57 Rosenfield v. Miller, 131 A. D. 282, 115 Supp. 692 755 Ross, Matter' .of, 87 N. Y. 514 956, 958 Ross, Matter of, 123 A. D. 74, 107 Supp. 899 540 Ross, Matter of, 33 Misc. 163, or 68 Supp. 373 418, 421, 422, 428 Ross ads. Moncrief, 50 N. Y. 431' 344 Ross V. Ross, 6 Hun, 80 287 Ross V. Roberts, 2 Hun, 90; aff'd 63 N. Y. 652 339 TABLE OF CASES Keferences are to pages. Ixxiii Eoss V. Willett, 76 Hun, 211, or 27 Supp. 785 175 Eosseau v. Bleau, 131 N. Y. 177, 27 Am. St. Rep. 578, 30 N. E. 52 316 Rossie Iron Works ads. Eima, 120 N. Y. 433, 24 N. E. 940 ... 737 Eossignot, Matter of, 50 Misc. 231, or 100 Supp. 623 464 Rothschild, Matter of, 42 Misc. 161, 85 Supp. 1084 372 Rothschild v. Goldenberg, 103 A. D. 235, or 92 Supp. 1076; aflf'd 188 N. Y. 327, 80 N. E. 1030 . . 937 Rouse V. Payne, 120 A. D. 667, or 105 Supp. 549 813 Rowe ads. Hassard, 11 Barb. 22 754 Rowe V. Parsons, 6 Hun, 338 802 Rowell, Matter of, 45 A. D. 323, or 61 Supp. 382 295 Rowland, Matter of, 153 A. D. 327, 137 Supp. 1010 588 Rowland v. Howard, 75 Hun, 1, or 26 Supp. 1018 288 Eowlev, Matter of, 38 Misc. 622, or 78 Supp. 215 ; 326 Rowley ads. Gross, 147 A. D. 529 860 Royce v. Adams, 123 N. Y. 402, 25 N. E. 386 634, 675 Rubens, Matter of, 117 A. D. 523, 102 Supp. 795 . 865 Rubens, Matter of, 128 A. D. 626, or 112 Supp. 941 471 Rudd V. Cornell, 171 N. Y. 114, 63 N. E. 823 397 Eugg V. Rug^, 21 Hun, 383, aif'd 83 N. Y. 592 . . . .499, 502, 504, 509 Ruggiero v. Lufani, 54 Misc. 497, or 104 Supp. 691 230 Rundle v. Allison, 34 N. Y. 180 545, 622 Runic, Matter of, 200 N. Y. 447, 94 N. E. 363 349 EuofI V. The Greenpoint Savings Bank, 40 Misc. 549, or 82 Supp. 881 4 Ruppaner, Matter of, 15 Misc. 654, or 37 Supp. 429 72 Ruppaner, Matter of, 7 A. D. 11, or 39 Supp. 763 974 Russell ads. Collins, 96 A. D. 136, or 89 Supp. 414, aff'd 184 N. Y. 74, 112 Am. St. Eep. 569, 76 N; E. 731, 6 Ann. Cas. 92 47 Russel ads. Gittings, 114 A. D. 405, or 99 Supp. 1064, aff'd 187 N. Y. 538, SO N. E. 1110 68 Russell ads. Goodrich, 42 N. Y. 117 59 Russell v. Hart, 87 N. Y. 19 487 Russell V. Hilton, 80 A. D. ITS. or 80 Supp. 563; aff'd 175 X. Y. 525, 67 N. E. 1089 221, 587 Russell V. Lane, 1 Barb. 519 .... 27 r, Russell ads. Levin, 42 N. Y. 251 IDr, Rutherford, Matter of, 196 X. V. 311, 89 N. E. 820 603. 611 Rutherford v. Myers, 50 A. D. 298, or 63 Supp. 939 849 Ruthven ads. Wheeler, 74 N. Y. 428, 30 Am. Eep. 315 611 Eyall ads. Kennedy, 67 X. Y. 379 Kl Eyalls, Matter of, 74 Hun, 205, or 26 Supp. 815 '. 382 Eyalls, Matter of, 80 Hun, 459, or 30 Supp. 443 791 Eyan ads. Eiley, 103 A. D. 176, 93 Supp. 386 14& Eyan v. McElroy, 15 A. D. 216, or 44 Supp. 196 983 Ryder, Matter of Est. of, 129 N. Y. 640, 29 N. E. 309 294 Eyer, Matter of, 94 A. D. 449, or 88 Supp. 52; aff'd 180 N. Y. 532, 72 isr. E. 1150 632 Eyer, Matter of, 120 A. D. 154, 104 Supp. 804 . 5-1!) Eylance, Matter of, 25 Misc.- 283, 55 Supp. 433 973; Eywolt, Matter of, 81 Misc. 103, 142 Supp. 1066 oOn Sacia v. Berthoud, 17 Barb. 15 . . 270 Sack, Matter of, 70 A. D. 401, or 75 Supp. 120 777 Sackett, Matter of, 38 Misc. 463, 77 Supp. 1030 . . . : 993 Sackett ads. Eandall, 77 N. Y. 480 805 Sackett, People ex rel., v. Wood- bury, 70 A. D. 416, 75 Supp. 236 392, 841, 921 Sage ads. Hopper, 112 N. Y. 530, 8 Am. St. Rep. 771, 20 N. E. 350 ■ 605 St. Cyr, Matter of, — Misc. — , N. Y. L. J., Feb. 18, 1916. . 494, 732 St. John, Matter of, 104 A. D. 460, or 93 Supp. 836 885 St. John V. Northrop, 23 Barb. 25 56 St. Michael's Protestant E. Church ads. Coleman, 170 A. D. 658, 155 Supp. 1036 , 227 St. Thomas' Church ads. Whit- thaus, 161 A. D. 208, 146 Supp. 279 237 St. Vincent de Paul, Sisters of Charity v. Kelly, 67 N. Y. 409 451. lixiv TABLE OF CASES Eeferences are to pages. Samsons ads. Springsterai, 32 N. Y. 703 798 Sanders v. Loutter, 126 N. Y. 193 ,.819, 825, 827 Sanderson, Matter of, 9 Mise. 574, 30 Supp. 848 502 Sandrock, Matter of, 49 Misc. 371, 99 Supp. 497 547, 580 Sands ads. Dubois, 43 Barb. 412 622 Sands ads. New York Life Insur- ance & Trust Co., 26 Misc. 252, or 56 Supp. 741 433 Sanford, Matter of, 100 A. D. 479, or 91 Supp. 706 5,165-6, 171 Sanford ads. Denton, 39 Hun, 487 553, 579 Sanford ads. Denton, Matter of, 537, 541 Sanford v. Jackson, 10 Paige Ch. 266 41 Sanford v. Sanford, 4 Hun, 753 44, 468 Sanford v. Sanford, 45 N. Y. 723 246 Sanford v. Sanford, 62 N. Y. 553 150 Santos, Matter of, 31 Misc. 76, 64 Supp. 572 898 Saratoga Gas & Electric Light Co. ads. N. Y. Security Co., 156 N. Y. 645, 51 N. E. 297 959 Sargent v. McLeod, 209 N. Y. 360, 52 L.R.A.(N.S.) 380, 103 N. E. 164 988 Sartorelli v. Ezagni, 64 Misc. 115, 118 Supp. 46 923 Sauer, Est. of, 89 Misc. 105, 151 Supp. 465 616 Saunders ads. Rockwell, 19 Barb. 473 255 Saunders ads. Van Schaaek, 32 Hun, 515 , 563 Santer, Est. of, N. Y. L. J., Meh. 23, 1916 272 Savage v. Sherman, 24 Hun, 307, modified 87 N. Y. 277 414 Savage v. Potter, 159 A. D. 729, 145 Supp. 78 ., 942 Sawyer ads. Clarke, 2 N. Y. 498 519 Saxtou ads. Vedder, 46 Barb. 191 66 Sayles, Matter of, 57 Misc. 524, 109 Supp. 972 367 Sayre ads. Bacon, 84 Misc. 462, 147 Supp. 522 520 Saylea v. Best, 140 N. Y, 368, 35 N. E. 636 , .'. . .,, 343, 358, 527 Sayre ads. Supplee, 51 Hun, 30, or 3 Supp. ,627 982 Schack ads. Witthaus, 105 N. Y. . 332, 11 N. E. 649 545 Schaefer, Est. of, N. Y. L. J., Nov. 4, 1914 905 Schaefer, Matter of, 34 Misc. 34, or 69 Supp. 489, 65 A. D. 378, or 73 Supp. 57; aflf'd 171 N. Y. 686, 64 N. E. 1125 . . .346, 546, 896 Scharmen v. Schoell, 38 A. D. 528, etc ..,812, 814 Scheetz, Matter, 62 MiSc. 166, or 116 Supp. 428 ...276-7, 280 Scheibeler v. Albee, 114 A. D. 146, or 96 Supp. 706 673 Scheideler, Matter of Estate, 75 Hun, 185, 27 Supp. 7, aflf'd 142 ' , N. Y.'668, 37 n; E. 571 115 Schen v. Blum, 119 A. D. 825, or 104 Supp. 887 154 Schenck v. Dart, 22 N. Y. 420 419, 547 Sehermerhorn ads. Cox, 18 Hun, 16 418, 938 Scherrer, Matter of, 24 Misc. 351 782 Scheuer, Matter of, 161 A. D. 528, 146 Supp. 709 926-7 SchifFer v. Pruden, 64 N. Y. 47 . : 39 Schilling ads. Eberle, 32 Misc. 195, 65 Supp. 728 771 Sciaeca, Est. of, N. Y. L. J., Jan. 6, 1915 25JL Schlegel ads. Konvalinska, 104 N. Y. 125, 58 Am. Eep. 494, 9 N. E. 868 , 42 Schlesinger, Matter of, 36 A, D. 177, or 55 Supp.. 514 854 Schlesinger ads. Bacon, 171 A. D. 503, 157 Supp. 649 988 Schlesinger v. Klinger, 112 A. D. 853, 98 Supp. 545 45 Schlieder v. Dexter, 114 A. D. 417, or 99 Supp. 1005 720 Schlinback v. Mctean, 83 A. D. 157, or 82 Supp. 516; aff'd 178 N. Y. 600, 70 W. E. 1108 702 Schlinger ads. Krueger, 19 Misc. 221, 43 Supp. 305 551 Schlosser, Matter of, 63 Misc. 166, or 116 Supp. 796, aff'd 120 Supp. 1145 81, 919 Schluter v. Bowery Savings Bank, 117 N. Y. 125, 5 L.R.A. 541, 15 Am. St. Rep. 494, 22 N. E. 572 258 Schmidt, Matter of, 77 Hun, 201, or 28 Supp. 350 712, 729 Schmidt, Matter of, 42 Misc. 463, or 87 Supp. 428 17, 76 Schmidt ads. Jewitt, 83 A. D. 276, or 82 Supp. 49 527, 630, 683 TABLE OF CASES Keferences are to pageii Ixxv Schnabel, Matter of, 136 A. D. 522, or 121 Supp. 54; aff'd 202 N. Y. 134, 95 N. E. 698 . . .825, 842 Schneider, Matter of, 1 A. D. 39, 36 Supp. 972 894 Schneider v. Heilbron^ 115 A. D. 721, 101 Supp. 152 620 Sohober, Matter of, N. Y. L. J., Apr. 19, 1915 .488, 514, 864 Schober, Matter of, 90 Misc. 230, or 154, Supp. 309 . : 480 Schoell ads. Scharman, 38 A. D. 528, or 56 S^pp. 498 812, 814 Sehoeneman, Est. of, N. Y. L. J., Mch, 5, 1915 ... ...,•• 872 Sehoenfeldt ads. Zimmerman, 3 Hun, 692 46, 48, 440 Schofield, Matter' of, 72 Misc. 281, 129 Supp. 190 469 Seholes Co. ada. Leavitt, 210 N. Y. 107, 103 N. E. 965 . 127, 981 Scholey v. Halsey, 72 N. Y. 578 148 Scbolle V. Scholia, 113 N. Y. 261, 21 N. E. 84 , 34] Sehoomaker v. Gray, 208 N. Y. 209, 101 N. E. 886, Ann. Cas. 1914D, 910 350 Schriever ads. Bolton, 135 N. Y. 65, 18 L.R.A. 242, 31 N. E. 1001 , 2, 448, 996 Schroeder, Matter of, 93 Misc. 404, 157 Supp. 42 837 Schroeder, Matter of, No. 1, 113 A. D. 204, or 99 Supp. 176, aff'd 186 N. Y. 537, 78 N. E. . 1112 115, 240 Schroeder, Matter of. No. 2, 113 A. D. 221, or 99 Supp. 174 8P5 Sohuehle v. Eeiman, 86 N. Y. 270 836, 840. I^huessler, Matter of, 49 Misc. 203, 98 Supp. 939 995 Schuler, Matter of, 49 Misc. 373, or 94 Supp. 1063 4(32 Schultes, ads. Peltz, Matter of, 64 Hun, 369, or 19 Supp. 637 ... 792 Schultes ads. Watson, Matter of, , 64 Hun, 369, or 19 Supp. 637 . . ' 792 Schutz V. Moretta, 81 Hun, 518, 31 Supp. 39 2,77 Schutz V. Morette, 146 N. Y. 137, . 40 N. E. 780 124, ,280 Schwartz, Est. of, N. Y. L. J., Nov. 27, .19,14 ..:...,... 5 Schwartz, Est. of, 87 Misc. 559, , or 151 Supp. 374 252 Schweibert, Matter of, 25- Misc. 464, 55 Supp. 649 387, 927 Schweger ads. Elias, 13 A. D. 336, or 43 Supp. 55 . .646, 688, 690 Scofield V. Adams, 12 Hun, 366 592, 601 Scofield V. Churchill, 72 N. Y. 565 809 Scott, Matter of, 34 Misc. 446, 70 Supp. 425 252 Scott, Matter of, 49 A. D. 130, 62 Supp. 1059 696 Scott, Matter of, 80 A. D. 369, 81 Supp. 29 979 Scott ads. Coryell, 4 A. D. 429, or 39 Supp. 508 494 Scott ads. Rafferty, 4 A. D. 429. or 39 Supp. 508 .' 494 Scovill, Matter of, 218 N. Y. 93 901 Scovill ads. Clark, 191 N. Y. 8, 83 N. E. 6^9 284 Scovil V. Scovil, 45 Barb. 517 . . . 150 Scoville, Matter of, 88 Misc. 364, 150 Supp. 1070 ., 847 Scoville V. Sutton, 72 Misc. 310, or 131 Supp. 205 711 Seudder, Matter of, 21 Misc., 179, or 47 Supp. 101 . ." 786, 810 Scully V. MoGrath, 201 N. Y. 61, 94 N. E. 195 278 Scutella, Matter of, 145 A. D. 156, or 129 Supp. 20 169 Seabra, Matter of, 38 Hun, 218 . . 737 Seabury, Matter of, 87 Misc. 241, or 150 Supp. 420 432 Seagrist, Matter of, 8 A. D. 298, 40 Supp. 940 975 Sealy ads. Hayne, 22 Misc. 243, or 48 Supp. 769; aflf'd 35 A. D. 633, 55 Supp. 1141 , 257 Seaman, Matter of, 63 A. B. 49, or 71 Supp. 376 790, 792, 897 Seaman v. Duryea, 11 N. Y. 324 764,, 765 ;Seaman v. Jamison, 146 A. D. 428, 131 Supp. 155 129 Seaiiian v. Jamison, 188 A. D. 832, 144 Supp. 20fl 291 Seamen ads. Merritt, 6 N. Y. 168 128 Seaman v. Whitehead, 78 N. Y. 306 222, 588 Searle ads. Van Camp, 147 N. Y. 150, 41 N. E. 427 672 Sears ads. Bloodgood, 64 Barb. 71 279 Second Nat. B'li, ads. Smith, 169 , N. Y. 477, 62 N. E. 577 98 Second National BanJc' ads. Smith, 70 Hun, 230, 24 Supp. 64 ... . 108 Seeor v. Tradesmen's National Bank, 92 A. D. 294, or 87 Supp. 181 1]0 Ixxvi TABLE OF CASES References are to pages. Seeley ads. Hyatt, Matter of, 11 N. Y. 52 706 Serine v. Serine, 2 Barb. 385 456, 458 Seigler, Matter of, 49 Misc. 189, or 98 Supp. 929 . . . : . . 223, . 429 Seixes, Matter of, 73 Misc. 488,' 133 Supp. 406 472, 832 Selleck, Matter of, 111 N. Y. 284, 19 N. E. 66 :376, 425, 968 Scntell, Matter of, 53 Misc. 165, 104 Supp. 477 902 Seward ads. Giddings, 16 N. Y. 365 593, 594 Sewell, Matter of, 32 Misc. 604, or 67 Supp. 456 383, 589 Sexton, Matter of, 61 Misc. 569, 115 Supp. 973 : 548 Sexton ads. Bissell, 66 N. y. 55 803 Sexton V. Sexton, 64 A^ D. 385, or 72 Supp. 213 ; affd 174 N. Y. ' 510, 66 N. E. 1116 . . ; 345, 827 Seymour, Matter of, 33 Misc. 271, or 68 Supp. 638 . .' 165 Seymour, Matter of, 76 Misc. 371, or 136 Supp. 942 ... ; 503 Seymour ads. Bliven, 88 N. Y. 469 593, 600 Shafer, Matter of, 35 Misc. 371, 71 Supp. 1033 . . ; 368 Shaffer v. Bacon, 35 A. D. 248, 54 Supp. 796, aflf'd 161 N. Y. 635, 57 N. E. 1]24 590 Shakespeare v. Markham, 72 N. Y. 400 301 Shanley, Matter of, N. Y. L. J., May 18, 1916 245 Shannon ads. Beers; 73 N. Y. 292 480 Shannon ads. McCormick; 127 A. D. 745, 111 Supp. 875 ........ 717 Shaper, Matter of, 86 Misc. 577, or 149 Supp. 468 ....'.. 456 Sharp ads. Willis, 113 N. Y. 586 542 Sharpsteen ads. WadsVbrth, 8 N. Y. 388 440 Shaw ads. ISTear, 76 Misc. 303, 137 Supp. 77 ,..!.. .,..., 465 Shaw V. N. Y. Central & H, R.. R. R. Co. 101 A. D. 246 or 91 bupp. 746 . . ., 181 Shaw ads. Wiltsie, 100 N. Y. 191, 3 N. E. 331 616 Dennis Shea, Est. of, N., Y. L. J., June 7, 1916 : . . 635 Shecker v. Woolsey, 2 A. D. 52, or 37 Supp. 292 837 Sheldon, Matter of, 117 A. D. 359, or 103 Supp. 177 947 Sheldon, Matter of, 118 A D. 488, 103 Supp. 518 182, 865 Sheldon, Matter of, 158 A. D. 843, ' 144 Supp. 94 507 Sheldon v. Bliss, 8 N. Y. 31 . ! 72, 842 Sheldon v. Sheldon, 133 N. Y. 'l, 30 N. E. 730 293 Sheldon ads. Spallholz, 158 A. D. 367, or 143 Supp. 417, aff'd 216 N. Y. 205, 155 Supp. 363 . .151, 673 Sheldon v. Wright, 7 Barh. 39. aflf'd 5 N. y. 497 ....3, 195, 315, 324, 840 Shepard, Matter of, 62 Misc. 598, 116 Supp. 1128 284 Shepard ads. Fiester, 26 Hun, 183; aff'd 92 N. Y. 251 936 Sheridian, Est. of N. Y. L. J., Mch. 25, 1915 223 Sheridan ads. Haley, 190 N. Y. 331, 83 N. E. 296 ...'....... 59 Sherkey ads. Paulding, 88 N. Y. 432 ... :.....:... ... 532 Sherman, Matter of, 70 Hun, 465, 24 Supp. 283 723 Sherman, Matter of, 68 Misc. 6, 124 Supp. 892 634 Sherman ads. Cline, 78 Hun, 298, or 29 Supp. 909; aff'd 144 N. Y. 601, 39 N. E. 635 393, 636 Sherman ads. Havens, 42 Barb. 636 ... 756 Sherman v. Page, 85 ^T, y. 123 534-5, 602 Sherman ads. Savage, 24 Hun, 307, modified 87 N. Y. 277 .... 414 Sherman ads. Snyder, 88 N. Y. 656 952 Sherman v. Willett, 42 N. Y. 146 239, 240 Slienvood, Matter of, 83 Ilun, 200, 31 Siippl 409 . . . . 299 Sherwood ads. Lounsbury, 53 A. , p. 318, 65 Supp. 676 . ; , . . 984 Sherwood ads. Peck, 56 N. Y. 615 , 648 Shei'wood v. Sherwood, 85 Misc. 99, 147 Supp. 205, aflf'd 151 Supp.' 1144 . . . : 487 Shel-wood ads. Wintermeyer, 77 Hun, 193, 28 Supp. 449 . . 280 Shields ads. Gelston, 16 Hun, 143, aff'd 78 N. Y. 275 713 Shields v. Shields, 60 Barb. 56 581 Shimmiel v. Morse, 57 A. D. 434, or 63 Supp. 322 and 68 Supp. 1148 394 Shipman, Matter of, 53 Hun, 511, 6 Supp. 276 .'.' 608 TABLE OF CASES References are to pages. Ixxvii Shipman, Matter of, 82 Hun, 108, or 31 Supp. 571 228, 647, 853 Shook V. Shook, 19 Barb. 653 ... 582 Shuffley, Est. of, N. Y. L. J., June 25, 1915 265 Shumway v. Cooper, 16 Barb. 556 70 Shuttleworth v. Winter, 55 N. Y. 624 114 Sibley v. Waffle, 16 N. Y. 180 838, 840, 854 Siemens ads. Benson, 92 Misc. 509, 156 Supp. 1 824 Sigler, Est. of, N. Y. L. J., Feb. 20, 1915 384 Silberhorn, Est. of, N. Y. L. J., Oct. 5, 1915 610 Silkman, Matter of, 121 A. D. 202, 105 Supp. 872, affd 190 N. Y. 560, 83 N. E. 1128 544 Silliman, Matter of, 39 Misc. 120, or 78 Supp. 976 222, 224 Silliman, Matter of, 67 Misc. 27, or 124 Supp. 622 416 Silverman, Matter of, 87 Misc. 571, or 151 Supp. 382 252 Silvetti, Matter of, 66 Misc. 394, or 122 Supp. 400 169 Simmons v. Burrell, 8 Misc. 388, or 28 Supp. 625 58, 78 Simmons v. Taylor, 19 A. D. 499 93 Simon v. Canaday, 53 N. Y. 298, 13 Am. Eep. 523 35 Simon ads. Wciher, 41 Misc. 202, 83 Supp. 927 .97, 825 Simons v. Steele, 82 A. D. 202, or 81 Supp. 737; aff'd 177 N. Y. 542, 69 N. E. 1131 295 Simonson v. Waller, 9 A. D. 503, or 41 Supp. 353 514 Simpson v. Simpson, 44 A. D. 492, or 60 Supp. 879 825 Sindreck ads. Congregatioii S. L. A. Sakoler, 15 A. D. 82, or 44 Sup.p. 295 230 Sipperly v. Baucus, 24 N. Y. 46 996 Siriski, Matter of, 51 Misc. 661, 102 Supp. 203 163 Sisson ads. Reynolds, 78 Hun, 595, 29 Supp. 492 645 Skidmore v. Collin, 8 Hun, 50 . . 110 Skillin ads. Central Tr. Co., 154 A. D. 227, 138 Supp. 884 76 Slater, In re, N. Y. L. J., Feb. 12, 1915 609 Slater v. Slater, 175 K. Y. 143, 61 L.K.A. 796, 96 Am. St. Eep. 619, 67 N. E. 224 113 Slenson, Matter of, 78 Misc." 342, 139 Supp. 459 348 Slingerland, Matter of, 36 Hun, 575 251, 847, 936 Sloan, Matter of, 79 Misc. 176, or 140 Supp. 752 671 Slocum, Matter of, 169 N. Y. 153, 62 N. E. 130 408, 410 Slocum V. English, 62 N. Y. 494 223 Small, Matter of, 158 N. Y. 128, 52 N. E. 723 961 Smart, Eat. of, 92 Misc. 402, 157 Supp. 143 272 Smart, Matter of, 84 Misc. 336, or 145 Supp. 838 493, 836 Smedley ads. Lamport, 213 N. Y. 82, 106 N. E. 922 953 Smillie ads. Mulrein, 25 A. D. 135, or 48 Supp. 994 639 Smith, Matter of Est. of, 1 Misc. 253, or 22 Supp. 1085 288 Smith, Matter of Est. of, 1 Misc. 269, or 22 Supp. 1067 41 Smith, Matter of, 89 Hun, 606, 34 Supp. 1157 999 Smith, Matter of, 13 Misc. 592, or 36 Supp. 820 382 Smith, Matter of, 18 Misc. 139, or 41 Supp. 1093 231 Smith, Matter of, 40 :\Iisc. 331, or 81 Supp. 1035 853, 895 Smith, Matter of, 58 Misc. 493, or 111 Supp. 1085 281 Smith, Matter of, 74 Misc. 11 . . 15 Smith, Matter of, 77 Misc. 76, or 136 Supp. 825 4 Smith, Matter of, 79 Misc. 77, 139 Supp. 522, or 142 Supp. 151 . . 901 Smith, Matter of, 80 Misc. 728, or 142 Supp. 151; and 79 Misc. 77 903 Smith, Matter of, 86 Misc. 136, or 149 Supp. 131.. 406, 425, 546, 698 Smith, Matter of, 46 A. D. 318, 61 Supp. 716, afif'd 166 N. Y. 620, 59 N. E. 1130 534 Sinith, Matter of, 75 A. D. 339, or 78 Supp. 130 233, 293 Smith, Matter of. 111 A. D. 23, or 97 Supp. 171 892 Smith, Matter of, 120 A. D. 199, or 105 Supp. 223 820 Smith, Matter of, 95 N. Y. 516 889, 953 Smith V. Atherton, 54 Hun, 172, 7 Supp. 300 616 Smith ads. Baldwin, 3 A. D. 350, or 38 Supp. 299 348 Smylie ads. Bauchle, 104 A. D. 513, 93 Supp. 709 114 Ixzviii TABLE OF CASES Eeferences are to pages. Smith T. Blood, 106 A. D. 317, or 94 Supp. 667 327, 331, 338 Smith ads. Bond, 4 Hun, 48 135 Smith ads. Camp, 117 N. Y. 354, 22 N. E. 1044 351 Smith V. Cornell, 111 N. Y. 554, 19 N. E. 271 550 Smith V. Floyd, 193 N. Y. 683, 87 N. E. 1127 635 Smith ads. Fry, 10 Abb. N. C. 224 68 Smith ads. Hamlin, 72 A. D. 601, or 76 Supp. 258 276, 287 Smith V. Hilton, 50 Hun, 236, or 2 Supp. 820 481 Smith ads. Hovey, 1 Barb. 372 136, 238 Smith ads. Jessup, 170 A. D. 605, 156 Supp. 553 697 Smith ads. Keegan, 31 Misc. 651, 64 Supp. 1117; affd 60 A. D. 168, 70 Supp. 260, aff'd 172 N. Y. 624, 65 N. E. 1118 802, 805 Smith V. Keteltas, 32 Misc. Ill, 66 Supp. 260; aff'd 62 A. D. 174, 70 Supp. 1065 650-1 Smith V. Lansing, 24 Misc. 566, 53 Supp. 633 .613, 690 Smith ads. Lewis, 9 N. Y. 502, 61 Am. Dec. 706 42 Smith V. Loper, 32 Hun, 46 326 Smith ads. McMahon, 24 A. D. 25, or 49 Supp. 93 804 Smith ads. Mills, 141 N. Y. 256, 36 N. E. 178 617 Smith ads. Oakeshott, 104 A. D. 384, 93 Supp. 659, aff'd 186 N. Y. 583, 78 N. E.' 1108 560 Smith V. P6grot, 201 N. Y. 210, 94 N. E. 662 340, 539 Smith ads. Peters, 60 Misc. 203, 111 Supp. 842 534 Smith ads. Pinckney, 26 Hxin, 524 338 Smith V. Eeniihgton, 42 Barb. 75 623 Smith V. Rockefeller, 3 Hun, 295 981 Smith V. Second National Bank, 70 Hun, 230, 24 Supp. 64 .... 108 Smith V. Second Nat. B'k, 169 N. Y. 477, 62 N. E. 577 98 Smith V. Smith, 70 A. D. 286, 74 Supp. 967 ■. 59 Smith V. Stevenson Brewing Co., 117 A. D. 690, 102 Supp. 672 143 Smith ads. Theobald, 103 A. D. 200, or 92 Supp. 1019 58 Smith V. Wells, 69 N. Y. 600 880 Smith ads. Wilcox, 26 Barb. 316 117, 375-6, 398 Smith ads. Wl-ight, 209 N. Y. 249 957, 959 Smyk, Matter of, — Misc. — , N. Y. L. J., Feb. 14, 1916 869 Snare & Triest Co. ads. Summo, 166 A. D. 425 15 Snedeker, Matter of, 95 A. D. 149 ; or 88 Supp. 847 225 Snedeker, Matter of, 61 Misc. 216, 114 Supp, 936 386 Snedeker v. Snedeker, 47 A. D. 471, or 63 Supp. 580; aff'd 164 N. Y. 58, 58 N. E. 4 ..... .144, 247 Snell ads. Brown, 57 N. Y. 286 803, 804 Snell, People ex rel. v. Snell, 77 Misc. 528, 137 Supp. 193 728 Snelling, Matter, of Will of, 136 N. Y. 515, 32 N. E. 1006 951 Sneden ads. Hatfield, 54 N. Y. 280 46, 47, 48 Snyder, Matter of, 103 N. Y. 178, 8 N. E. 479 925, 958 Snyder, Est. of, N. Y. L. J., Jan. 27, 1915 854 Snyder ads. Geyer, 140 N. Y. 394, 35 N. E. 784 109, 532, 645 Snyder v. Sherman, 88 N. Y. 656 952 Snyder V. Snyder, 96 N. Y. 88 . . 294 Sogaard, Matter of, 39 Misc. 519, I 80 Supp. 379 808 ' SoUinger, Est. of, N. Y. L. J., Feb. 3, 1915 493 Solomon, Est. of, N. Y. L. J., , Mch. 11, 1916 209 Soule, Matter of, 46 Hun, 661, aff'd 109 N. Y. 662, 17 N. E. 868 914, 935 Soule, Matter of, 72 Hun, 594, or .25 Supp. 270 ... ! 917 South Brooklyn Savings Institu- tion ads. Podmore, 27 Misc. 120, 57 Supp. 406 977 Southwick ads. Quackenboss, 41 ,N. Y. 117 691 Southworth, Matter of, 164 A. D. 825, 150 Supp. 509, aff'd 215 N. Y. 719, 109 N.' E. 1092 600 Soiitter, Matter of, 105 N. Y. 514, or 574, 12 N. E. 34 367, 396 Soutter ads. Sanders, 126 N. Y. 193, 27* N. E. 263 ..819, 825, 827 Soverhill v. Suydam, 59 N. Y. 140 243, 244 Spallholz V. Sheldon, 158 A. D. 367, or ]43 Supp. 417, aff'd 216 N. Y. 205,; 156 Supp. 363 . . ]51, 673 Spears, Matter of, 89 Hun, 49, or 35 Supp. 35 316 Speckilian ads. Power, 126 N. Y. 354, 27 N. E; 474 .... 806, 922 TABLE or CASES Keferences are to pages. Iyyiy Spelmaji, Matter of, v. Terry, 74 N. y. 448 710, 822, 828 Spencer v. Spencer, 38 A. D. 403, or 56 Supp. 460 419, 425 Spencer v. Spencer, 169 A. D. 54, 154 Supp. 527 647 Spencer v. Strait, 40 Hun, 463 . . 980 Sperb, Matter of, 71 Misc. 378, or 130 Supp. 122 499 Sperb V. McCoun, 110 N. Y. 605 8il, 813 Spicer ads. Emerson, 46 N. Y. 594 707, 708, 709 Spicer v. Eaplee, 4 A. D. 471, or 38 Supp. 806 284 Spipman, Matter of, 82 Hun, 108, or 31 Supp. 571 265 Spooner, Matter of, 86 Hun, 9, or 33 Supp. 136 220 Spooner, Matter of, 87 Misc. 170, or 150 Supp. 136 497, 904 Spooner, Matter of, 89 Misc. 30, or 152 Supp. 537 500 Spooner's Will, Matter of, 152 •Supp. 537, or 89 Misc. 30, . . 502 Spormann, Matter of, N. Y. L. J., Oct. 15, 1914 497, 905 Sprague, Matter of, 46 Misc. 216, 94 Supp. 84 431, 614 Sprague, Matter of, 40 A. D. 615, or 57 Supp. 1128; aff'd 162 N. Y. 611, 57 N. E. 1125 382 Sprague, People ex rel. v. Fitz- gerald, 15 A. D. 539, or 44 Supp. 556; aff'd 156 N. Y. 689, 50 N. B. 1121 840 Spt-att, Matter of, 4 A. D. 7, 38 N. E. 329 940 Sprathoff, Matter of, 50 Misc. 109, etc., 941-2 Sprett V. Syms, 104 A. D. 232, or 93 Supp. 728 . . 172 Springsteen v. Samson, 32 N. Y. 703 ■ 798 Spurr & Sons, Inc. v. Empire State Surety Co., 117 A. D. 816, 102 Supp. 1065 902 Squire v. Bugbee, 65 A. D. 429, or 72 Supp. 1023 672 Squires ads. Ilissam, 102 A. D. 536, 92 Supp. 873 .. . . .. 665 Squire v. Ordemann, 194 N. Y. 394, 87 N. E. 435 549 Squires ads. Rogers, 26 Hun, 388, aff'd 98 N. Y. 49 268 Stagg V. Jaclcson,.l N. Y. 206 .. 371 Stall V. Wilbur, 77 N". Y. 158 . . 239 Stallo, Matter of, 82 Misc. 135, or 143 Snpp; 775 .. 171, 209, 214 Stallo ads. Metropolitan Trust Co., No. 1, 166 A. D. 639, 152 Supp. 183 827, 840 Standard Oil Co. ads. Loucks, 92 Misc. 475, 156 Supp. 7 144 Stanlield, Matter' of, 135 N. Y. 292, 31 N. E. 1013 615 Stanley ads. Losey, 147 N. Y. 560, 42 N, E. 8 755 Stanley ads. Newton, 28 N. Y. 61 527, 593, 594 Stanton, Matter of, 41 Misc. 278, 84 Supp. 46 546 Staunton v. Parker, 19 Hun, 55 560 Stanton ads. U. S. Trust Co., 139 N. Y. 531, 34 N. E. 1098 634 Staples V. Fairchild, 3 N. Y. 41 . . 871 Stapleton, Matter of, 11 A. D. 1, or 42 Supp. 385 937 Starbuck v. Farmers' Loan & Trust Co., 28 A. D. 308, or 51 Supp. 8 294 Starke v. Myers, 24 Miscj 577, 53 Supp. 650 137 Stebbins ads. Hicks, 3 Lans. 39 . . 36 Steele v. Com. Gen. Life Ins. Co., 22 Misc. 249, or 49 Supp. 647, aff'd 160 N. Y. 703, 37 N. E. 1125 259 Steele ads. Kennedy, 35 Misc. 105, or 71 Supp. 237 222 Steeneaken, Matter of, 51 A. D. 417, 64 Supp. 660 897 Steencken, Matter of, 58 A. D. 85, or 68 Supp. 444 976 Steele ads. Simons, 82 A. D. 202, or 81 Supp. 737, aff'd 177 N. Y. 542, 69 N. E. 1131 295 Stein, Matter of, N. Y. L. J., Jan. 29, 1915 723 Stein, Matter of, 33 Misc. 542, 68 Supp. 933 533 Stejnbrink ads. Jacobs, 164 A. D. 715, 149 Supp. 337 648, 650 Steinent v. Van Aken, 165 A. D. 206, or 150 Supp. 525 801 Steiner, Matter of, 89 Misc. 66, or 152 Supp. 725 461 Steinway, Matter of, 37 Misc. 704; : 76 Supp. 452 792 Steinv.ay v. Steinway, 112 A. D. 18, or 98 Supp. 99, aff'd 197 N. Y. 522, 90 N. E. 1165 .... 670 Stcin\A'ay v. Von Bernuth, 82 A. D. 596, 81 Supp. 883 828 Stephani v. Lent, 30 Misc. 346, 63 Supp. 471 439 Stephen v. Reynolds, 6 N. Y. 454 322 Ixxx TABLE OF CASES References are to pages. Sterling, Matter of, 68 Misc. 3, 124 Siipp. 894 ....:....:... 692 Stern ads. Dominick, 79 Misc. 271, or 139 Supp. 59, aff'd 142 Supp. 1115 248 Stevens, Jlatter of, 40 Misc. 377, 82 Supp. 397 622 Stevens, Matter of, 47 Misc. 560, 95 Supp. 1084 ...668, 969 Stevens, Matter of, 114 A. D. ,607, or 99 Supp. 1070, aff'd ]8S N. Y. 589, 81 N. E. 1176 ..824, 937, 951 Stevens, Matter of, 187 N.Y. 471, 12 L.R.A.(N.S.) 814, 80 N. E. 358, 10 Ann. Cas. 511 699 Stevens ads. Dodge, 105 N. Y. 585, 12 N. E.-759 755 Stevens ads. ■ Leggett, 77 A. D. 612, or 79 Supp. 289 517 Stevens, People ex rel. v. Lott, 42 Hun, 408 912 Stevens v. Melcher, 152 N. Y. 551, 46 N. E. 965, modifying 80 Hun, 514; 30 Supp. 625 614, 648-649, 650-651, 870 Stevenson, Matter of, 86 Hun, 325, or 33 Supp. 493 '. .. 381 Stevenson Brewing Co. ads. Smith, 117 A. D. 690, 102 Supp. 672 143 Stevenson ads. Keating, 21 A. D. 604, or 47 Supp. 847 .. 673 Steward, Matter of, 90 Hun, 94, 35 Supp. 366 116 Stewart, Matter of, 77 Hun, 564, or 28 Supp. 1048 250 Stewart, Matter of, 21 Misc. 412, or 47 Supp. 1065 282 Stewart, Matter of, 23 A. D. 17, 48 Supp. 999 716 Stewart, Matter of Will of, 135 N. Y. 413, 32 N. E. 144 940, 942, 948 Stewart ads. Bryan, 83 N. Y. 270 S32 Stewart v. Phelps, 71 A. D. 91, or 75 Supp. 526, aff'd 173 N. Y. 621, 66 N. E. 1117 .......... 667 Stickney, Matter of, 161 N. Y. 42, 76 Am. St. Rep. 246, 55 N. E. 396 447 Stiens, Matter of, 60 Misc. 631, 113 Supp. 1105 252 Stikeman, Matter of, 48 Misc. 156, 96 Supp. 460 55' Stiles, Matter of, 64 Misc. 658, or 120 Supp. 714 33, 331, 641 647, 669 Stillman ads. Doughty, 1 Bradf. 300 73 Stillman ads. PichaadSj 57 A. D. 182,'0r68' Supp. 1^8, aff'd 172 ISr. Y. 632, 65 N. E. 1121 98S Stillwell ads. Bedlow, 91 Huh, 384, 36 Supp. 129, aff'd 158 N. Y. 292, 53 N. B. 26 36 Stilwell, Matter of Est. of, 139 X Y 337 991 Stilweli V. Melrose, 15 Hun, 378 117, 236 Stimmel ads. Perkins, 114 N. Y. '359, 11 Am. St. Kep. 659, 21 N. E. 729 .' 720, 812 Stiinson v. Vroman, 99 N. Y. 74, 1 N. E. 147 960 Stoekwell ads. Cook, 206 N. Y. 481, 100 N. E. 131, Ann. Cas. 1914B, 491 424 Stoddard ads. Cookman, 132 A. D. 485, or 116 Supp. 901 804 Stoddard v. Johnson, 13 Hun, 606 616 Stoddard ads. Kellogg, 89 A. D. 137, or 84 Supp. 1015 276 Stokes, Matter of, 28 Hun, 564 929 Storm, Matter of, 28 Hun, 499 533 Storm, Matter of, 84 A. D. 552, or 82 Supp. 731 345 Stormiriger ads. Kortwright, 49 Hun, 249, or 1 Supp. 880 034 Stout V. Betts, 74 Hun, 266, 26 Supp. 809 955 Stover ads. Baucus, 89 N. Y. 1 . . 243 Stover ads. Davis, 58 N. Y. 473 . . 301 Stow V. Tifft, 15 Johns. 458 ..... . 37 Stowell, Matter of, 15 Misc. 533, or 37 Supp. 1127 328 Strait ads. Spencer, 40 Hun, 463 980. Striker, Matter of, 24 Misc. 422, 53 Supp. 732 403 Strickland, Matter of, 10 Misc. 486, or 32 Supp. 171 240 Strong, Matter of. 111 A. D. 281, or 97 Supp. 459, aff'd 186 N. Y. 584, 79 N. E. 1116 926 Strong ads. Beers, 128 A. D. 20, 112 Supp. 382 621 Strong ads. Harrington, 49 A. D. 39, 63 Supp. 257 981 Strong V. Harris, 84 Hun, 314, or 32 Supp. 349 826 Strong ads. Vaughan, 66 Hun, 278, or 21 Supp. 154 984 Strubbe v. Kings Co. Trust Co., 60 A. D. 548, or 69 Supp. 1092, aff'd 169 N. Y. 603, 62 N. E. 1100 . . 824 Struller ads. Becar, People ex rel., 16 Hun, 234 801 TABLIil OF CASES References are to pages. Ixxxi Stuber v. McEntee, 142 N. Y. 200, 36 N. E. 878 105, 247 Studley ads. Matthews, 17 A. D. 303, or 45 Supp. 201, affd 161 N. Y. 633, 57 N. E. 1117 819 Stumpf, Matter of, 49 Misc. 32, or 98 Supp. 299, aff'd- 113 A. D. 16, 98 Supp. 961 251, 252 Suarez, Est. of, — Misc. — , N. Y. L. J., Mar. 30, 1916 422 Sudds, Matter of, 32 Misc. 182, G6 Supp. 231 550 551 Suesens v. Daiker, 117 A. D. 668, 102 Supp. 919 781 Suess, Matter of, 37 Misc. 459, or 75 Supp. 938 115 Sugdeu ads. Havden, 48 Misc. 108, or 96 Supp. 681 676 Sullivan, Matter of, 51 Hun, 378, or 4 Supp. 59 4 Sullivan ads. Caulfield, 85 N. Y. 153 471, 478 Sullivan v. Foadick, 10 Hun, 173 527 Sullivan ads. Lahn, 116 A. D. 669, or 101 Supp. 920, aff'g 192 N. Y. 591, 85 N. E. 1111 .... 805 Sullivan v. Tioga K. R. Co., ' 44 Hun, 304, aflf'd 112 N. Y. 643, 8 Am. St. Rep. 793, 20 N. B. 569 198 Sultan of Turkey v. Tirygakian, 162 A. D. 613, or 147 Supp. 978, afl'd 213 N. Y. 429, 108 N. E. 72 72 Siilz V. Mutual Reserve Fund Life Assn., 7 Misc. 593, 28 Supp. 263 163 Sulzer ads. Livingston, 19 Hun, 375 238 Summers, Matter of, 37 Misc. 575, or 75 Supp. 1050 328 Summo V. Snare & Triest Co., 166 A. D. 425 15 Supplee V. Sayre, 51 Hun, 30, or 3 Supp. 627 982 Supreme Court of Foresters ads. McCarthy, 107 A. D. 185, 94 Supp. 876 , 839 Supreme Lodge ads. Pfeifer, 54 A. D. 200, -or 6,6 Supp. 604 977 Sutton, Matter of, 159 A. D. 21, 143 Supp. 1072 291 Sutton ads. Spoville, 72 Misc. 33 0, or 131 Supp. 205 711 Sutton ads. Lakin, 132 A. D. 557, or 116 Supp. 820 980 Suydam ads. Cloiiteau, 21 N. Y. 61, 94 N. E. 195 278, 279, 540 Suydam ads. Soverhill, 59 N. Y. 140 243, 244 Suydam ads. Tracy, 30 Barb. 110 902 Swan, Matter of, 158 A. D. 568, 143. Supp. 910 819 Swanson, Matter of, N. Y. L. J., Jan. 7, 1915 , . '. '. 270 Swanton ads. McLeaii, 13 N. Y. 535 58 Swartbout, Matter of, 38 Misc. 56, 76 Supp. 961 117, 232 Swartbout v. Oaks, 52 Barb. 622 811, 812 SWartz, Matter of, 79 Misc. 388, or 139 Supp. 1105 483 Sweeney v. Warren, 127 N. Y. 426, 24 Am. St. Rep. 468, 28 N. E. 413 339 Swenarton v. Hancock, 22 Hun, 38, aflf'd 84 N. Y. 653 501 Swezey, Matter of, 40 Misc. 516, 82 Supp. 807 220, 586 Swift ads. Adams, 169 A. D. 802, 155 Supp. 873 478, 481 Swift ads. Goldsmith, 25 Hun, 201 665, 666, 668 Swingman, Est. of, N. Y. L. J., Mch. 3, 1915 577 Syme ads. Taylor, 162 N. Y. 513, 57 N. E. 83 531, 564 Syms ads. Sprett, 104 A. D. 232, or 93 Supp. 728 172 Syracuse, Bingbamton & N. Y. R. R. Co., ads. Tolman, 92 N. Y. 358 : . 978 Syracuse, Geneva & Corning R. R. Co., ads. Munson, 103 N. Y. 58, 8 N. E. 355 64-1 Tabor, Matter of, 31 Misc. 579, or 65 Supp. 571 69, 346 Taggart ads. Willick, 17 Hun, 511 700 Tailer,. Matter, of, 147 A. D. 741, or 133 Supp. 122, aff'd 205 N. Y. 599, 98 N. E. 1116 41, 44, 341, 595 Taishoff v. Elkena, 171 A. D. 288, 157 Supp. 98 635 Talbot, Matter of, 91 Misc. 382, 154 Supp. 1083 443, 450 Talbot ads. Bank of Niagara, 110 A. D. 519, 96 Supp. 976, aff'd 184 N. Y. 576, 77 N. E. 1181 611, G14 Taibot ads. King, 40 N. Y. 76 413, 606, 6l3, 614, 630, 643, 660 60.1, G6o Tallcbief ads. Peters, 121 A. D. 309, or 106 Supp. 64 844 Ixxxii TABLE OF CASES References are to pages. Tallman ads. Coley, 107 A. D. 445, or 95 Supp. 270, aflF'd 186 , N. Y. 569, 79 N. E. 1103 : . . . . 717 T'almage, Matter of, 59 Misc. 130, ,112 Siipp. 206 516 Tamajo ads. First Nat. Bank of Cooperstown, 77 N. Y. 476 900 Tanenbaum ads. Cohnfeld, 176 N. Y. 126, 98 Am. St. Rep. 653, 68 N. E. 141 706 Tarpenning ads. Cole, 27 Hun, 111 975 Tarrant v. Ware, 25 N. Y. 425 . . 498 Tator, Matter of, 81 Misc. 83, 141 Supp. 927 60„ 167 Tatum, Matter of, 169 N. Y.' 514, 62 N. E. 580 341 Tavshanjian v. Abbott, 200 N. Y. , 374, 93 N. E. 978" 466, 467 Taylor, Matter of, 62 Misc. 442, 116 Supp. 1040 : . . . ' 999 Taylor, Matter of, 30 A. D. 213, or 51 Supp. 609 371, 373 Taylor, Matter of, 144 A. D. 634, or 129 Supp. 378, afif'd 204 N. ' Y. 135, 97 N. E. 502, Ann. Cas. 1913B, 276 398 Taylor ads. Carpenter, 164 N. Y. 171, 58 N. E. 53 ; . 428 Taylor v. Dodd, 58 N. Y. 335 .... 593 Taylor ada. Fay, 31 Misc. 32, or 63 Supp. 572 31 Taylor ads. Gettsberger, 19 N. Y. 150 '......: 809 Taylor v. Morris, 1 N. Y. 341 ... 339 Taylor v. Post, 30 Hun, 446 37 Taylor ads. Simnjons, 19 A. D. 499 93 Taylor v. Syme, 162 N. Y. 513, 57 N. E. 83 oSi, 564 Taylor ads. Thomson, 71 N., ,Y. 217 ,..'..'.: 303 Taylor ads. Thompson, 72 N . Y. 32 .........:: 816 Taylor ads. Vamum, 59 Hun, 554, 14 Supp. 242 92 Te Culver, Matter of, 22 Misc. 217, 49 Supp. 820 993 Teller ads. Irwin, 'l88 N. Y. 25, 80 N. E. 376 615 Tepedine, Matter of, 63 Misc. 637, 118 Supp. 686 888 Terry, Matter of, 31 Misc. 477, or 65 Supp. 655 '. 717 Terry ads. Annett, 35 N. Y. 256 389, 803 Terry ads. Spelman, Matter of, 74 N. Y. 448 .... 710,822, 828 Terwilliger, Matter of, 63 Misc. 479, 118 Supp. 424 14 Terwilliger v. Brown, 44 N. Y. 237 ...: 644 Textor, Mat,ter of, N. Y. L. J., Mch. 15, 1916 411 Thacker v. Henderson, 63 Barb. 271 ., 70S Thalhiiner ads. Marsellis, 2 Paige Ch. 35 .....' 46 Thayer v. Burr, 201 N. Y. 155, 94 N. E. 604 668 Thayer ads. Van Duyn, 14 Wend. 233, and 19 Wend. 162 37 Theobald v. Smith, 103 A. D. 200, or 92 Supp. 1019 58 ThOden Infants, Est. of, N. Y. L. J., Feb. 11, 1915 77» Thomas, Matter of, 33 Misc. 729, or 68 Supp. 1116 69 Thomas v. Bennett, 56 Barb. 197 720 Thomas ads. Robinson, No. 1, 123 A. D. 411, or 107 Supp. 1110 132 Thomas ads. Yates, 35 Misc. 552, or 71 Supp. 1113 679,800, 815 Thompson;! Matter of, 41 Barb. 237, ... 223 Thompson; Matter of, 41 ■ Misc. 223, or- 420, or ,84 Supp. 1111, aff'd 87 A. D. 609, 83 Supp. 1117, and 178 N. Y. 554 267, 269, 364 Thomp,son, . Matter of, 184 N. Y. 36, te N. E. 870, . . . 1.249, 383, 996 Thompson, Matter of, 217 N. Y. Ill, 111 N. E. 762 . . .595, 596, 762 Thompson ads. Bryant, 59 Hun, 544, 14 Supp. 28, dism'd. 128 N. Y. 426, 13. L.R.A. 745, 28 N. E. 522 '. . . . .597, 937, 959 Thompson ads. Doughertf, 167 N. ■ Y. 472, 60 N. E. 760 " 597 Thompson v. Hicks, 1 A. D. 275, or 37 Supp. 340 101 Thompson ads. Husted, 158 N. Y. 328, 53 N. E. 20 : 673 Thompson ads. Ludington, 153 N. Y. 499, 47 N. E, 903 .. 281, 527, 673 Thompson v. McGregor, 81 ISf. Y. .592 802 Thompson ails. Merritt, 27 N. Y. 225 984 Thompson v. Taylor, 72 N, Y. 32 816 Thompson ads. Utica Trust &. Deposit Co., 87 Misc. 3l„ or 149 Supp. 392 ........;. 341, 600, 820 Thompson v. Wliitmarsh, 100 N. Y. 35, 2 N. E. 2*73 ....... 138 TABLE OF CASES Eeferences are to pages. Ixxxiii Thomsen ads. Von Beck, 44 A. D. 373, or 60 Supp. 1094, aff'd 167 N. Y. 601, 60 N. E. 1121 . . 24, 78-9 Thomson, Matter of, 71 N. Y. 217 303 Thomson t. McGregor, 81 N. Y. 592 798 Thomson ads. Merchants' Bank, 65 N. Y. 7 37 Thomson v. Taylor, 71 N. Y. 217 303 Thomson v. Tracy, 60 N. Y. 174 70, 537, 538 Thorn v. Garner, 113 N. Y. 198, 21 N. E. 149 611, 613, 614 Thorn ads. Mitchell, 134 N. Y. 536, 30 Am. St. Kep. 699, 32 N. E. 10 49 Thornburgh, Matter of, 72 Misc. 619, or 132 Supp. 268 , 347 Thome, Matter of, 155 N. Y. 140, 49 N. E. 66 19 Thorne ads. Carey, Matter of, 63 Misc. 489, 118 Supp. 504 667 Thorne ads. Mitchell, 134 N. Y. 536, 30 Am. St. Eep. 699, 32 N. E. 10 49, 227 Thornton, Matter of, 32 Misc. 604, or 67 Supp. 458 383, 589 Thornton ads. Lankford, 161 A. D. 890, 145 Supp. 1130 603 Thornton v. Moore, 26 Misc. 120, or 56 Supp. 1100, aff'd 41 A. D. 617, 58 Supp. 1150 .. ..! 138 Thorp, Matter of, 31 Misc. 581, or 65 Supp. 575 ■. ... 114 Thurber, Matter of, 37 Misc. 155, 74 Supp. 949 808, 922 Thurston ads. Apthorp, 153 A. T>. 572, or 138 Supp. 41 290 Thurston v. Wilbur Trust Co., 7 Misc. 302, 27 Supp. 923 995 Tibbets ads. Chapman, 33 N. Y. 289 709 Tierney, Matter of, 88 Misc. 347, or 151 Supp. 972 226, 229 Tifft V. Porter, 8 N. Y. 516 593 Tifft ads. Stow, 15 Johns. 458 37 Tilden, Matter of, 44 Hun, 441 421, 431 Tilden, Matter of, 56 A. D. 277, or 67 Supp. 879 913, 934 Tilden, Matter of, 90 N. Y. 434 393 Tilden, Matter of, 98 N. Y. 434 912, 960 Tillman v. Davis, 95 N. Y. 17, 47 Am. Rep. 1 48, 70 Tilton V. Vail, 17 Civ. Pro. 194 51 Timerson, Matter of, 39 Misc. 675, i 80 Supp. 639 610 Timken ads. Lea, 10 A. D. 213, or 41 Supp. 979 45 Tinkham ads. Pumpelly, 23 Barb. 321 382 Tioga R. R. Co. ads. Sullivan, 44 Hun, 304, aff'd 112 N. Y. 643, 8 Am. St. Rep. 793, 20 N. E. 569 198 Tirygakiau ads. Sultan of Turkey, 162 A. D. 613, or 147 Supp. 978, aff'd 213 N. Y. 429, 108 N. E. 72 72 Tisdale, Matter of, 110 A. D. 857, 97 Supp. 494 38 Titeomb, Matter of, 80 Misc. 612, 142 Supp. 1030 223, 589 Title Guarantee and Trust Co., Matter of, 114 A. D. 778, 100 Supp. 243, aff'd 188 N. Y. 542, 80 N. E. Ill 591 Title Guarantee & Trust Co. v. C. B. & Q. R. R. Co., 123 N. Y. 37, 25 N. E. 198 531, 672 Titus, Matter of, 86 Misc. 375, 148, Supp. 359 243, 267, 973 Titus V. Poole, 145 N. Y. 414, 40 N. E. 228 275, 284 Tobias v. Ketchum, 32 N. Y. 319 43 Tobin V. Carey, 34 Hun, 431 .... 748 Todd, Matter of, 47 Misc. 35, or 95 Supp. 211 1 290 Todd, Matter of, 85 Misc. 298, or 147 Supp. 161 666 Todd, Matter of, 64 A. D. 435, or 72 Supp. 277 795 Tolman v. Syracuse, Binghamton, & N. Y. R. R. Co., 92 N. Y. 358 978 Tombo, Matter of, 164 A. D. 392, 149 Supp. 688 712 Tompkins v. Rice, 55 Hun, 563 . . 68 Toms, Matter of, 84 Misc. 312, 147 Supp. 550 623 Tonnele v. Hall, 4 N. Y. 140 . . 449, 484 Toohey, Matter of, 40 Misc. 67, or 81 Supp. 250 242 Toplitz ads. Chislom, 82 A. D. 346, or 82 Supp. 1081, aff'd 178 N. Y. 599, 70 N. E. 1096 92 Toplitz ads. Citizens' Central Na- tional Bank, 113 A. D. 73, or 98 Supp. 826, aff'd 188 N. Y. 634, 81 N. E. 1162 366, 605 Topping ads. Geib, 83 N. Y. 46 899 Torrey ads. Battell, 65 N. Y. 294 756 Torry v. Black, 58 N. Y. 185 707, 708, 709 Ixxxiv TABLE OF CASES Beferences are to pages. Totten, Matter of, 179 N. Y. 112, 70 L.R.A. 711, 71 N. E. 748, 1 Ann. Cas. 900 957, 958 Tousey ads. Hastings, 123 A. D. 480, or 108 Supp. 526 142 Townsend, Matter of, 83 Hun, 200, 31 Supp. 409 299 Townsend v. Board of Super- visors, 73 Misc. 563, 133 Supp. 555 1007 Townsend ads. Sutler, 84 Hun, 100, 31 Supp. 1094 552 Townsend ads. Haywood, 4 A. D. 246, or 38 Supp. 517 803 Townsend ads. Lawrence, 88 N. Y. 28 531, 589 Townsend ads. The People, 37 Barb. 520 101 Townsend v. Van Buskirk, 33 Misc. 287, or 68 Supp. 512 18 Townsend ads. Whitney, 67 N. Y. 40 934 Townsend v. Whitney, 75 N. Y. 425 816 Tracy v. Dolan, 31 A. D. 24, or 52 Supp. 351 979 Tracy v. Suydam, 30 Barb. 110 902 Tracy ads. Thomson, 60 N. Y. 174 70, 537, 538 Tradesmen's Bank ads. Gomez, 4 Sandf. Super. Ot. 102 36 Tradesmen's National Bank ads. Lecor, 92 A. D. 294, or 87 Supp. 181 110 Traver, Matter of, 9 Misc. 621, or 30 Supp. 851 916 Travis ads. Dunn, 56 A. D. 317, or 67 Supp. 743 4 Tredwell, Matter of, 85 A. D. 570, 83 Supp. 242 928 Tredwell v. Tredwell, 86 Misc. 104, 148 Supp. 391 35, 642 Trelease, Matter of, 115 A. D. 654, 100 Supp. 1051 . . . . 260, 606 Tremain ads. Davis, 205 N. Y. 236, 98 N. E. 383 519 Trimboli ads. Turco, 152 A. D. 431, 137 Supp. 343 340 Trimm, Matter of, 30 Misc. 493, or 63 Supp. 952 ... .• 28 Truax ads. 'Metropolitan Trust Co., 154 A. b. 442, or 139 Supp. 181, aflf'd 210 N. Y. 528, 103 N. E. 1131 109 Truesdell, Matter of, 40 Misc. 336, 81 Supp; 1038 581 Truslow, Matter of, 37 Misc. 189, 74 Supp. 944 389 Truslow ads. Clark, 161 A. D. 675, ' 146 Supp. 750 148, 604 Trust & Deposit Co. v. Pratt, 25 Hun, 23 815 Trustees of M. E. Church v. Reeve, 79 A. D. 65, 79 Supp. 1102 .... 147 Tucker, Matter of, 28 Misc. 595, or 59 Supp. 1022 698 Tucker, Matter of, 29 Misc. 728, or 62 Supp. 1021 422, 423 Tucker v. Tucker, 122 A. D. 303, 106 N. Y. Supp. 713 51 Tufani ads. Euggiero, 54 Misc. 497, or 104 Supp. 691 230 Tuite ads. Hart, Matter of, 75 A. D. 323, or 78 Supp. 154 288 Tully Infants, Matter of, 4 Misc. 184, or 105 Supp. 858 728 Tunstell, Matter of, 62 Misc. 442, 116 Supp. 1040 999 Turco V. Trimboli, 152 A. D. 431, 137 Supp. 343 340 Turfler, Matter of, 78 Hun, 258, or 29 Supp. 1151 - 380 Turfler, Matter of Est. of, 1 Misc. 58, or 23 Supp. 135 61 Turner, Matter of, 79 A. D. 495, 80 Supp. 573 393 Turrell, Matter of, 28 Misc. 106, 59 Supp. 780 455 Turrell, Matter of, 166 N. Y. 330, 59 N. E. 910 448, 459, 507 Tuttle V. Heavy, 59 Barb. 334 ... 710 Tweedy ads. Ferguson, 43 N. Y. 543 ;..... 46-7 Twichell, Matter of, 117 A. D. 301, 102 Supp. 163 772 Twombly, Matter of, 24 Misc. 51, 53 Supp. 385 605 Tyers, Matter of, 41 Misc. 378, or 84 Supp. 934 212 Tyler v. Maples, 19 Barb. 448 449 Tyndal, Matter of, 117 A. D. 294, or 102 Supp. 211, aflf'd 190 N. Y. 522, 83 N. E. 1133 716 Tyndall, Matter of, 48 Misc. 39, or 96 f-'upp. 222 , 765 Tyndell v. Van Auken, 106 A. D. 238, 94 Supp. 269 300 Tyson v. Blake, 22 N. Y. 558 607 Uhl V. Kohlman, 52 A. D. 455, 65 Supp. 197 994 Uline V. N, Y. C. & H. E,. It. R. Co., 79 N. Y. 175 935 Ullmann, Matter of Est. of, 137 N. Y. 403, 33 N. E. 480 .... 347 Ulrichs ads. GaV, 136 A. D. S'09, or 121 Supp. 726 880 TABLE OF CASES Beferences are to pages. Ixxxv Ulster Co. Savings Institution v. Young, 161 N. y. 23, 55 N. E. 483 285 Underhill, Matter of, 35 A. D. 434, or 54 Supp. 967, affd 158 N Y. 721, 53 N. E. 1133 .... 631 Underhill, Matter of, 117 N. Y. 471, 22 N. E. 1120 618 Underhill ads. Balz, 19 Misc. 215, or 44 Supp. 419, aflf'd 16 A. D. 635, 46 Supp. 1089 286, 539 Underhill v. Rodwell, 18 A. D. 361, 46 Supp. 11 618 Underwood ads, Barnes, 47 N. Y. 351 ■ 67, 68, 69, 70 Ungrich, Matter of, 201 N. Y. 415, 94 N. E. 999 670 Ungrich v. Ungrich, 131 A. D. 24, or 115 Supp. 413 645 Ungrich v. Ball, 152 A. D. 824, 137 Supp.; 722 8ia Union Trust Co., Matter of, 70 A. D. 5, or 75 Supp. 68, dismissed 172 N. Y. 494, 65 N. E. 259 90, 409, 461 Union Trust Co., Matter of, 77 Misc. 88, 137 Supp. 437 697 Union Trust Co., Matter of, 65 A. D. 449, or 72 Supp. 977, affd 174 N. Y. 541, 66 N. E. 1117 394 Union Trust Co., Matter of, 179 N. Y. 261, 72 N". E. 107 .... 58 Union Trust Co., Matter of, 86 Misc. 392, or 151 Supp. 1099 662 Union Trust Co., Matter of, N. Y. L. J., Dec. 22, 1914 432 U. P. Church, Trustees etc. ads. Eraser, 124 N. Y. 479, 26 N. E. 1034 341 U. S. Fidelity & Guaranty Co. ads. Garvey, 77 A. D. 391, or 79 Supp. 337 512 U. S. Mortgage and trust Co., Matter of, 114 A. D. 532, or 100 Supp. 12 377 U. S. Steel Corp. ads; Lockwood, 209 N. Y. 375, L.E.A.1915C, 471, 103 N. E. 697 . . 98, 268, 530 U. S. Trust Co., Matter of, 175 N. Y. 304, 67 N. E. 614 . . 831, 837 U. S. Trust Co., ads. City of New York, 78 A. D. 366, or 79 Supp. 1010, affd 178 N. Y. 551, 70 N. E. 1097 304 U. S. Trust Co. V. Hart, 150 A. D. 413, 135 Supp. 81, mod'f'd 208 N. y. 617, 102 N. E. 1115 ..8, 9 United States Trust Co. v. Hoyt, 150 A. D. 62, 135 Supp. 849 19, 57, 78 U. S. Trust Co. V. Miller, 57 Misc. 500, 109 Supp. 938 71 U. S. Trust Co. ads. Phaleu, 100 A. D. 264, or 91 Supp. 537 392 512 U. S. Trust Co. V. Stanton, 139 n! Y. 531, 34 N. E. 1098 634 U. S. Trust Co. V. Wood, 346 A. D. 751, or 131 Supp. 427 821 Utica Trust & Deposit Co. v. Thompson, 87 Misc. 31, 149 Supp. 392 341, 600, 820 Vaccaro, Est. of, N. Y. L. J., Feb. 13, 1915 384 Vail ads. Tilton, 17 Civ. Proe. 194 51 Valentine, Matter of, 100 N. Y. 607, 2 N. E. 451 958, 968 Valentine, Matter of, 1 Misc. 491, 23 Supp. 289 386 Valentine v. Belden, 20 Hun, 537 267, 317 Valentine ads. Burke, 52 Barb. 412 48, 70 Valentine v. Duryea, 37 Hun, 427 548 Valentine v. Hutchinson, 43 Misc. 314, or 88 Supp. 862 46, 47 Valentine v. Wetherill, 31 Barb. 655 61 Vallance v. Bausch, 28 Barb. 633 68, 69, 70 Van Aken ads. Steinent, 165 A. D. 206, 150 Supp. 525 801 Van Alen v. Hewins, 5 Hun, 44 494 Van Alen ads. Roosevelt, 31 A. D. 1, or 52 Supp. 304 .... 421 Van Allen ads. Vanderpoel, 10 Barb. 157 238 Van Auken ads. Tyndell, 106 A. D. 238, 94 Supp. 269 300 Van Antwerp ads. Clowes, 6 N. Y. 466 782, 851 Van Arsdale v. King, 155 N. Y. 325, 49 N. E. 866 959 Van Blaricum v. Larson, 205 N. Y. 355, 98 N. E. 488, Ann. Cas. 1913E, 553 39, 40 Van Buren, Matter of, 19 Misc. 373, or 44 Supp. 357 223, 294 Van Buren v. Cockburn, 14 Barb. 118 498 Van Buren v. First Nat. Bk. 53 A. D. 80, 65 Supp. 703, affd 169 N. Y. 610, 62 N. E. 1101 .... 586 Van Buskirk ads. Townsend, 33 Misc. 287, or 68 Supp. 512 ... IS Ixxxvi TABLE OF GASES Keferences are to pages. Van Camp v. Searle, 147 N. Y. 150, 41 N. E. 427 672 Van Cleai, Matter of, N. Y. L. J., Jan. 13, 191S 382 Van Cleaf v. Burns, 133 N. Y. 540, 30 N. E. 661 39 Van Cott V. Prentice, 104 N. Y.' 45, 10 N. E. 257 437 Van de Veer, Matter of, 63 A. D. 495, 71 Supp. 849 589 Van Dermoor, Matter of, 42 Hun, 326 249 Van Dermoor v. Van Dermoor, 80 Hun, 107, or 30 Supp. 19 249 Vanderhayden ads. ' Cottle, 59 Barb. 622 166 Vanderpoel v. Van Allen, 10 Barb. 157 :... 238 Vanderpoel v. Van Valkenburgh, 6 N. Y. 190 839 Vanderwater, Matter of, 115 N. Y. 669, 22 N. E. 174 727, 728 Van Derzee, Matter of, 73 Hun, 532, or 26 Supp. 121 793 Van Derzee ads. Libby, 80 A. D. 494, or 81 Supp. 139, aff'd 176 N. Y. 591, 68 N. E. 1119 .. 721 Vandevort, M?itter of, 8 A. D. 341, or 40 Supp. 791 341, 553 Vandevort ads. Garlock, 128 N. Y. 374, 28 N. E. 599 347, 826 Van De Walker, Matter of, 79 Misc. 661, or 141 Supp. 325 226, 232, 337, 841 Van Doren, Matter of, 77 Misc. 44, or 137 Supp. 420, and 138 Supp. 1147 438 Van Duyn v. Thayre, 14 Wend. 233, and 19 Wend. 162 37 Van Geison,' Matter of, 47 Hun, 5 453 Van Geisaen v. Bridgford, 83 N. Y. 348 194 Van Gelder v. Van Gelder, 84 N. Y. 658 ... . .'. 976 Van Hoesen ads. Hoes, 1 N. Y. 120 602 Van Houten, Matter of, 18 A. D. 301, 46 Supp. 190 604 Van Natta ads. Ladies', Union Benevolent Society, 96 A. D. 99, or 88 Supp. 1083 984 Van Ness v. Kenyon, 208 N. Y. 228, 10] N. E. 881, Ann. Cas. 1914D, 221 280, 285 Van Ness v. Ransom, N. Y. L. J., Aug. 4, 1915 ., 241 Van Nostrand, Matter of, 3 Misc. ■ 396. or 24 Supp. 850 221 Van Orden v. Krouse, 89 Hun, 1, or 34 Supp. 1004 235 Van Rensselaer v. Van Rens- selaer, 113 N. Y. 207, 21 N. E. 75 601 Van Ripen v. Poppenhausen, 43 N. Y. 68 Ill Van Riper ads. Otto, 164 N. Y. 536, 79 Am. St. Rep. 673, 58 N. E. 643, affirming 31 A. D. 278, 52 Supp. 773 814 Van Schaack v. Saunders, 32 Hun, 515 : 563 Van Scheick ads. Wilcox, 19 Hun, 279 '.' 718 Van Sise, Matter of, 38 Misc. 155, 77 Supp. 266 381 Van Slooten, Matter of v. Dodge, 145 N. Y. 327, 39 N. E. 950 276, 277 Van Slooten v. Wbeeler, 140 N. Y. 624, 35 N. E. 583 288 Van Syckle v. Van Syckle, 168 A. D. 924 : 730 Van Valkenburgh a,ds. Vander- poel, 6 N. Y. 190 839 Van Vecbten v. Keator, 63 N. Y. 52 117 Van Vleck, Matter of, 32 Miso. 419, 66 Supp. 727 326 Van Voorhies ads. Mills, 20 N. Y. 412 37 Van Wagonen, Matter of, 69 Hun, 365, or 23 Siipp. 636 736, 917 Van Winkle v. Fowler, 52 Hun, 355, or 5 Supp. 317 343 Van Wyck v. Van Wyck, 22 Hun, 9 572 Van Zandt v. Grant, 67 A. D. 70, or 73 Supp. 600; aff'd 175 N. Y. 150, 67 N. E. 221 743, 799, 803, 815- Varian ads. Austen, Matter of, 16 A. D. 337, 45 Supp. 599 298 Varnum v. Taylor, S9 Hun, 554, 14 Supp. 242 92 Vaugban v; Strong, 66 Hun, 278, or 21 Supp. 154 984 Vedder v. Saxton, 46 Barb. 191 66 Veeder v. Mudgett, 95 N. Y. 295 618 Vermilya v. Beatty, 6 Barb. 429 141 Vernon, Matter of, 77 Misc. 425, 137 Supp. 767 679, 794 Vernon v, Vernon, 53 N. Y. 351 42, 43 Ver Nooy ads. Benjamin, 168 N. Y. 578, 61 N. E. 971 982, 983 Verplanck, Matter of, 91 N. Y. 439 347 Verplanck v. De Wert, 10 Hun, 611 63 TABLE OF CASES References are to pages. Izxxvii Very, Matter of, 24 Misc. 139, or 41 Supp. ,389 231, 325, 649 Vesely, Est. of, N. Y. L. J. Jan. 30. 1915 . 573 Vetter, Matter of, 95 Misc. 62, 158 Supp. 450 .. 513 Vetter, Matter of, N. Y. L. J., Apr. 11, 1916 .. 499 Vetter, Est. of, N. Y. L. J. Apr. 5, 1916 929 Victoria 9 and 10 c. 93 § 2 247 Viehmann, Est. of, N. Y. L. J., Apr. 8, 1916 729 Viele ads. N. Y. Life Ins. & T. Co., 161, N. Y. 11 19 Vielie v. Osgood, 8 Barb. 130 . . : . 237 Viles, Matter of, 86, Misc. 170, or 149 Supp. 121; aff'd 155 Supp. 401 226 Villard v. Villard, 166 A. D. 203, 151 Supp. 1(327 663 Virolet ads. Bates; 33 A. D. 436, or 53 Supp. 893, and 34 Supp. 629 16 Voelclcner v. , Hudson, 1 Sandf. Super. Ct. 215 33 Vogel V. Lehritter, 139 N. Y. 223, 34 N. E. 914 455 Yoke V. Piatt, 48 Misc. 273, or 96 Supp. 725 40 Volhard v. Volhard, 119 A. D. 266, 104 Supp. 578 820 Volk, Est. of, J{. Y. L. J., Jan. 20, 1915 ^. . .. 271 Von Beck v. Tliomsen, 44 A. D. 373, or 60 Supp. 1094, aff'd 167 N. Y. 601, 60 N. E. 1121 . . 24, ,78, 79 Von Bernutt ads. Steinway, 82 A. D. 596, or 81 .Supp, 883 828 Von Blaricum v. Larson, 205 N. Y. 355, 98 N. E. 488, Ann. Cas. 1913E, 553 45 Von Glahn, Matter of, 53 A. D. 164, or 65 Supp. 865 379 Voorhees v. Voorhees, 39 N. Y. 4(53 452, 506 Voorhis, Matter of, 125 N. Y. 765, 26 N. E. 935 447 Voorhis v. Qiild's Executor, 17 N. Y. 354 Ill Vose V. Conkling, 153 A. D. 40, 137 Supp. 1066, dism'd 209 N. Y. 521, 102 N. E. 1116 540 Voshall V. Clark, 123 A. D. 136, 108 Supp. 313 317 Vreeland ads. Decker, 170 A. D. 234, 156 Supp. 442 442 Vroman ads. Stimson, 99 N. Y. 74, 1 N. E, 147 960 Wabrath, Matter of, 69 Hun, 403, 23 Supp. 648 942 Wachter, Matter of, 16 Misc. 137, or 38 Supp. 941 34, 228 Wacker v. Wacker, 154 A. D. 495, 139 Supp. 78 11 Waddell ads. Greenland, 116 N. Y. 234, 15 Am. St. Rep. 400, 22 N. E. 367 91, 93, 535, 675 Wade, Matter of, 38 Misc. 154, 77 Supp. 163 837 Wade ads. City of Johnstown, 157 N. Y. 50, 51 N. E. 397 959 Wade V. Kalbfleisch, 58 N. Y. 282 135 Wadsworth v. Sharpsteen, 8 N. Y. 388 440 Waffle ads. Sibley, 16 N. Y. 180 838, 840, 854 'Vagener, Matter of, 143 A. D. 286 or 128 Supp. 164 5 Wagener ads. Koenig, 126 A. D. 772, 111 Supp. 116'. 149 Wager v. Wager, 89 N. Y. 161 527, 826 Wagner, Matter of, 52 Hun, 23, or 4 Supp. 761; aflf'd 161 N. Y. 627, 55 N. E. 1096 371 Wagner, Matter of, 40 Misc. 490, 82 Supp. 797 221, 224, 587 Wagner, Matter of, 75 Misc. 419, or 135 Supp. 678 ...... 712, 727 Wagner, Matter of, 132 A. D. 306, 117 Supp. 53 643, 647 Wagner, Matter of, 119 N. Y. 28, 23 N. E. 200 364 Wait V. Wait, 4 N. Y. 95 .... 34, 39 Wainwright v. Low, 132 N. Y. 313, 30 N. E. 747 31, 60 Wakeman v. Everett, 41 Hun, 278, aff'd 110 N. Y. 675^ 18 N. e: 481 137 Walbaum v. Heaney, 104 A. D. 412, or 93 Supp. 640 290 Waldron, Matter of, 19 Misc. 333, or 44 Supp. 353 505 Walker, Matter of, 43 Misc. 475, 89 Supp. 459 '.. 895 Walker, Matter of, 54 Misc. 177, or 105 Supp. 890 .. ' 11 Walker v. Bradley, 89 Misc. 516, or 153 Supp. 686 ...... 109, 236 Walker ads. Budd, 113 N. Y. 637, 21 N. E. 72 ' 282 Walker v. Gardener, 8 Misc. 468, 29 Supp. 669 977 Ixxxviii TABLE OF CASES Eefereiices are to pages. Walker ads. Remington, 99 N. Y. 626, 1 N. B. 30S 545 Wall V. Bulger, 46 Hun, 346 . . 621, 721 Wall ads. Hancox, 28 Hun, 214, dist'g'd 95 N. Y. 535 821 Wallace, Matter of, N. Y. L. J., Mch. 14, 1916 216 Wallace, Matter of, 28 Misc. 603, or 59 Supp. 1084 918 Wallace, Matter of, 68 A. D. 649, or 74 Supp. 33 213 Wallace v. Wallace, 158 A. D. 273, 143 Supp. 1148, aflf'd 216 N. Y. 28, 109 N. E. 872 290 Wallach, Matter of, 164 A. D. 600, 150 Supp. 302 .. ; 528 Waller ads. Eiley, 22 Misc. 63, 48 Supp. 535 230 Waller ads. Simonson, 9 A. D. 503, or 41 Supp. 353 514 Wallis ads. Johnson, 112 N. Y. 230, 2 L.R.A. 828, 8 Am. St. Rep. 742, 19 N, E. 653 ....... 140 Walrath, Matter of, 37 Misc. 696, 76 Supp. 448 919 Walsh ada. Mahaney, 16 A. D. 601, or 44 Supp. 969 268 Walther v. Reynault, 56 Hun, 560, or 9 Supp. 849 236 Walton, Matter of, 38 Misc. 723, or 78 Supp. 296 787 Walton, Matter of, 112 A. D. 176, 98 Supp. 42 791 Walton V. Goodwin, 54 Hun, 387, or 7 Supp. 929 903 Wandell, Matter of, 32 Huri, 545 779 Wandell ads. Hartnett, 60 N. Y. 346 469, 534, 536 Wanninger, Matter of, 120 A. D. 273, or 105 Supp. 4, aflf'd 190 N. Y. 527, 83 N. E. 1133 .... 423 Ward, Matter of, 49 Misc. 181, 98 Supp. 923 . '..... 414, 719, 720 Ward, Matter of, 50 Miisc. 483, 100 Supp. 634 214 Ward, Matter of, 59 Misc. 328, 112 N. Y. Supp. 282 19 Ward ads. Murdock, 67 N. Y. 387 70 Ward ads. Morris, 36 N. Y. 587 50, 51, 53 AVard ads. Palmer, 91 A. D. 449, 86 Supp. 990 101 Ward V. Ward, 105 N. Y. 68, 11 N. B. 373 631 Warden ads. Clayton, 4 N. Y. 230 13, 15 Ware ads. Tarrant, 25 N. Y. 425 498 Waring, Matter of, 7 Misc. 502, or 28 Supp. 393 922 Waring, Matter of, 46 Misc. 222, , or 94 Supp. 82 712 Waring, Matter of, 1 A. D. 29, 36 Sti'pp. 529 . 926 Warner, Matter of, 39 Misc. 432, or 79 Supp. 363 292, 601 Warner, Matter of, 53 A. D. 565, 65 Supp. 1022 948 Warner v. Durant, 16 N. Y. 133 597, 615 Warren ads. Hawkes, 140 A. D. 712, 125 Supp. 820 26, 78 Warren v. Leland, 2 Barb. 813 236, 239 Warren ads. Sweeney, 127 N. Y. 426, 24 Am. St. Rep. 468, 28 N. E. 413 339 Warren ads. Wilbur, Matter of, 104 N. Y. 192, 10 N. E. 263 117 Warrin, Matter of, 56 A. D. 414, or 67 Supp. 763 ............. 278 Washbon v. Cope, 144 N. Y. 287, 39 N. B. 388 838 Washburn, Matter of, 12 Misc. 242, 34 Supp. 44 , . 881 Washburn ads. Freuni, 17 Hun, 543 , ; 737 Washburn ads. Mygatt, 15 N. Y. 316 149 Washington Trust Co. v. Baldwin, 118 A. D. 186, or 102 Supp. 1105, aff'd 189 N. Y. 543, 82 N. E. 1134 , 151 Water Commissioners of Amster- dam, Matter of, 104 N. Y. 677, 10 N. E. 545 ... . 976 Waterbury ads. Edsall, 2 Redf. 48 '..:..'. . 72 Waterman, Matter of, 60 Misc. 292, 113 Supp. 280 409, 422 Waterman, Matter of, 112 A. D. 313, 98 Supp. 583, dism'd 186 N. Y. 534, 78 N. E. 1114. .... 580 Waterman ads. Murdock, 145 N. Y. 55, 27 L.R.A. 4l8, 39 N. E. 829 117 Waters ads. Merrick, 51 A. D. 83, or 64 Supp. 542; aflTd 171 N. Y. 655, 63 N. E. 1119 .... 644 Waters v. Waters, 7 Misc. 519, or 27 Supp. 1004 880, 883 Watkins v. Brown, 89 A. D. 193, or 85 Supp. 820,. • • •, , 232 Watson, Matter of, 86 Misc. 588, or 148 Supp. 902 381, 587 Watson, Matter of, 101 A. D. 550, or 92 Supp. 195 ■ and 315 Supp. 315 389 TABLE OF CASES Ixxxix Eeferences are to pages. Watson, Matter of, 115 A. D. 310, 100 Supp. 993, aff'd 187 N. Y. 541, 80 N. E. 1122 548 Watson, Matter of, 163 A. D. 41, 148 Supp. 525 374 Watson, Matter of, 213 N. Y. 177, 107 N. E. 338 548 Watson, Matter of, 215 N. Y. 209, 109 N. E. 86 : 346 Watson ads. Conner, 1 A. D. 54, or 37 Supp. 71 42 Watson, Matter of v. Nelson, 69 N. Y. 536 ,.., 925 Watson, Matter of y. Schultes, 64 Hun, 369, or 19 Supp. 637 792 Wead V. Cantwell, 36 Hun, 528 520 Weatherby ads. Prentiss, 68 Hun, 114, or 22 Supp. 687, affd 144 N. Y. 707, 39 N. E. 858 800 Weatherwax ads. Conkling, 173 N. Y. 43, 65 N. E. 855 617 Weaver, Matter of, 92 Misc. 674, 157 Supp. 547 670 Weaver ads. Dunford, 84 N. Y. 445 923 Webb, Matter of,'ii Hun, 124' '. '. 140 Webb, Matter of, 63 Misc. 535, 118 Supp. 589 663 Webb, Matter of, 92 Misc.' 695, 157 Supp. 671 441-2 Webber ads. Hodges, 65 A. D. 170, 72 Supp. '508 146 Weber ads. Isole, 12 A. D. 267, or 42 Supp. 615 976 Webster y. Gray, 54 Hun, 113, 7 Supp. 266 484 Webster v. Kellogg Co., 168 A. D. 443, 153 Supp. 791 157 Weed, Matter of, 81 Misc. 386, 143 Supp. 349 344 Weeks ads. Biitleir, 12 Misc. 192, 33 Supp. 1090 664 Weiher v. Siinon, 41 Misc. 202, 83 Supp. 927 97, 825 Weil, Est. of, N. Y. L. J., Mch. 5, 1915 ;... 413, 424 Weil, Matter of, 80 Misc. 473, or 142 Supp. 463 425, 668 Weil, Matter of, 49 A. D. 52, 63 Supp. 688, 684 Weiller ads: MoGrath, 98 A. D. 291, 90 Supp. 420 .,..■: 134 Weinstein, Matter of, 43 Misc. 577, or 89 Supp. 535,... 237 Weiss, Matter of, 39 Misc. 71, or 78 Supp. 877 61 Welch, Matter of,. 77 Misc. 427, 137 Supp. 941 ........ v; 113 Welch, Matter of, 74 N. Y. 299 713 Weller v. Weller, 28 Barb. 588 35 Weller v. Weller, 4 Hun, 195 291, 894 Welling, Matter of, 51 A. D. 355, or 64 Supp. 1025 393, 794 Wells, Matter of, 123 A. D. 79, 108 Supp. 164, aff'd 194 N. Y. 548, 87 N. E. 1129 ,. 13 Wells ads. Leitch, 48 N. Y. 585 527 635 Wells V. Maples, 15 Hun, 90 ...! 238 Wells ads. Smith, 69 N. Y. 600 . . 880 Welsh, Ma:tter of, 50 A. D. 189, or 63 Supp. 737 725 Wenner, Matter of, 125 A. D. 358, 110 Supp. 694, aflf'd 193 N. Y. 672, 87 N. E. 1129 601 Wentz, Matter of, 9 Misc. 240, or 30 Supp. 211 751, 781 Werle, Est. of, N. Y. L. J., July 14, 1915 300 Werle, Matter of, 91 Misc. 398, 155 Supp. 262 300,593-4 West, Matter of, 40 Hun, 291, aff'd 111 N. Y. 687, 19 N. B. 286 215 West ads. Kelly, 80 N. Y. 139 198, 806 West V. McCullough, 123 A. D. 846, or 108 Supp. 493, aff'd 194 N. Y. 518, 87 N. E. 1130 68 jWesterfield, Matter of, 32 A. D. 324, 53 Supp. 25 638 Westerfield, Matter of, 61 A. D. 413, or 70 Supp. 641 918 Wet-terfield v. Rogers, .174 N. Y. 230, 66 N. E. 813 821, 826 Westfield, Matter of, N. Y. L. J., Mch. 25, 1916 2.34 Weston, Matter of, 60 Misc. 275, or 113 Supp. 619 480 Weston, Matter of, 91 N. Y. 502 269, 379 Westphal V. Carter, 1 Misc. 403, 20 Supp. 945 552 Westurn, Matter of, 5 A- D- 595, 39 Supp. 429 936 Wetheirill ads. Valentine, 31 Barb. 655 . . . i 61 Wetmore, Matter of, 113 A. D. 232, 98 Supp. 952 682 Wetmore v. Porter, 92 N. Y. 76 540 Wheaton, Matter of, 37 Misc. 184, 74 Supp. 938 580 Wheaton and The Trustees, etc. V. Gates, 18 lif. Y. 392, 72 Am. Dec. 526 - 297, TABLE OF CASES Beferences are to pages. Whedon ads. Williams, 309 N. Y. 333, 4 Am. St. Rep. 480, 16 , N. E. 365 109 Wheeler, Matter of, 46 Hun, 64 . . , 20& Wheeler ads. Brown, 53 A. D. 6, or 65 Supp. 436 386 Wheeler v. Clutterbuck, 52 N. Y. 67 ,. 49, 60-1 Wheeler ads. Diamond, 80 A. D. 58, 80 Supp. 416 673 Wheeler v. Buthven, -74 N". Y. 428, 30 Am. St. Rep. 315 611 Wheeler ads. Van Slooten, 140 N. Y. 624, 35 N. e: 583 288 Whelpley ads. Lc|der, 111 N. Y. 239, 18 N. E. 874 952 Whipple, Matter of, 81 A. D. 589, or 81 Supp. 393 419, 794 Whipple V. Ripsom, 29 A. D. 70, ' or 51 Supp. 635 940 Whitbeek, Matter of, 22 Misc. 494, 50 Supp. 932 .. . . . ., 697 Wh,itheck v. Patterson, lO Baib. 608'..' . 454; ' 608 Whitbeek v. Patterson, 22 Barb: 83 : '....,. 975 White, Matter of, 31 Misc. 484, or 65^upp. 567 . .. 4 White, Matter, of, 40 A. D. 165, or 57 Supp. 862, aff'd 160 N. Y. . ■ 685, 55 N. E. llOl 748 White, Matter of, 52 A. D. 225, or 65 Supp. 168, aff'd 170 N. Y. 575, 62 N. E. 1101 915 White, Matter of, ll9 A. D. 140, 103 Supp. 868 250 White ads. Cook, 43 A. D. 388, or. 60 Supp. 153, aff'd 167 N. Y. 588, 60 N. E. 1109 440, 484 White ads. Duhokop, 13 A. D. 293, or 43 Supp'. 190 ..'..,...'., 899 White V. Howard, 52 Barb^ 294, aff'd 46 N. Y. l44 ..... 49, 72, 514 White V. Parker, 8 Barb. 48 706, 719 White V. Pomeroy, 7 Barb. 640 738 White T. Rankin, 18 A. D. 293, or 46 Supp. 228, aff'd 162 N.Y. 622, 57 N. E.' 1128 '. . 374 Whitehead v. Draper, 132 A. D. 799, or 117 Supp. 539 416 Whitehead ads. Seaman, 78 N. Y. 306. ..... .....' 222, 588 Whitlock V. Bowery Savings Bank, 36 Hun, 460 .. . 105 Whitmarsh ads. Thompson, 100 N. Y. 35, 2 N. E. 273 138 Whitney, Matter of, 153, N. Y. 259',. 60 Am. St. Rep.' 61b, 47 N. E. 272 451 Whitney aids. Cooper, 3 Hill, 95 39 Whitney ads. Prentice,, 8 Hun, 300 '...., 284 Whitnev v. Townsend, 67 N. , Y. 40 .". , 934 Whitney ads. Townsend, 75 N. Y. 425, .., 816 Whittemdre, Matter of, N. Y. L. J., Nov. 9, 1914 223 Whitthaus v. St. Thomas' Cl^urch, 161 A. D. 208, 146 Supp. 279 237 Whittlesey, Matter of, v. Hoguet, 66 N. r. 358 934, 935 Wick, Matter of,'53 Misc. 211,, 104 Supp. 717 222-3, 376 Wicke; Matter of, 74 A. 0. 221, or 77 Supp. 558 95,0 Wickwire, Matter of, 80 Misc. 137, or 141 Supp. 783 '.' 912, 918 Wickwire v. Chapman, 15 Barb. 302, ' 160 Widmayer v. Widmayer, 76 Hun, 251, 27 Supp. 773 576 Wielock ads. Genet, 93 A. D. 588, ■ or §7 Supp. 938 296 WieselJ, ,Mp,tter of, 51 Misci 325, 101 Supp^ 273 817 Wiggins, Matter of, 29 Hun, 271 693 ^iggins V. Burr, 54 Mipo. 149,,— ■ 105 Supp. 6.49 '.; i,688 Wightman ads. Risley, 13 Hun, 163 ;,......„. 128 Wilber, Matter of, 27 Mi^c. 53, or ■57 Supp. 942 i :.."...... 780 ■Wilbur ads. Stall, 77.N;. Y. 158 239 Wilbur V. Warien, Matter of, 104 N. Y. 192, 10 N. E. 263 117 Wilbur Trust -Co. ads» , Thurston, 7 Misc. 302, 27 Supp. 923 ... 995 Wilcox, Matter of, , 131 N. Y. 610, 30 N. E. 101 ,. 953 Wilcox Estate, Matter of, 1 Misc. ' ,55, or 21 Supp. 780 921 Wilcojc ads. Mygatt, ,45 N. Y. 306 ; 107, 282 Wilcox V. Quinby, 73 Hun, 524, or 26 Supp. 114 643, 648 Wilcox V. Ratadall,' 7 Barb. 633 37 Wilcox V. Smith, 26 Barb. 316 117, 375-6, 398 Wilcox V. Van Scheick, 19 Hun, 279 718 Wildberger, Matter of, 25 Misc. 582. 55 Supp. 1135 '. 12 Wilder V. Ranncy, 95 N. y. 7 ... 534 TABLE OF CASES References are to pages. Wilderming, Matter of, 75 Misc. 432, or 135 Supp. 516 507 Wilderming v. McKessom, 103 N. y. 329, 8 ]Sf. E. 665 532 Wildman v. Jones, 150 A. D. 514, or 135 Supp. 428, app. dism'd 209 N. Y. 531, 102 N. E. 1117 289 Wiley, Matter of, 55 Hun, 248, or 7 Supp. 848, aff'd 119 N. Y. 642, 23 N. E. 1054 789 Wiley, Mattel- of, 98 A. D. 921, or 90 Supp. 740 643 Willdn, Matter of, 183 N. Y. 104, 75 N. E. 1105 634 Wilkin ads. Cornes, 14 Hun, 428, aff'd 79 N. Y. 129 . . 273, 276, 285 Willett ads. Eosa, 76 Hun, 211, or 27 Supp. 785 112, 175. Willett ads. Sherman, 42 N. Y. 146 239, 240 Willetts, Matter of, 112 N. Y. 289, 19 N. E. 690 ..378, 409, 412, 424 Willets V. Haines, 96 A. D. 5, or 88 Supp. 1018, aff'd 182 N. Y. 543, 75 N. E., 1135 . . 128, 395 Williams, Matter of, 44 Hun, 67, aff'd 111 N. Y. 680, 19 N. E. 284 167 Williams, Ma,tter of, 1 Misc. 35, 22 Supp. 906 328 Williams, Matter of, 6 Misc. 512, 27 Supp. 433 , 941, 944 Williams, Matter of, 26 Misc. 636, or 57 Supp. 943 787 Williams, Matter of, 27 Misc. 716, 59 Supp. 606 600 Williams, Mattei: of, 34 Misc. 748, or 152 Supp. 725 . . .' 461 Williams, Matter of, 57 Misc. 537, or 109, Supp. 974 372 Williams, Matter of, 31 A. D. 617, or 52 Supp. 700 33 Williams, Matter of, 135 A. D. 123, 119 Supp. 892 955 Williams, Matter of, 187 N. Y. 286, 79 N. E. 1019 989 Williams, Matter of, 208 N. Y. 32, 46 L.E.A.(N.S.) 719, 101 N. E. 853 298 Williams v. Clark, 82 A. D. 199, 81 Supp. 381 708 Williams, ads. Croft, 88 N. Y. 384 532 Williams v. Haddock, 78 Hun, 429, or 29 Supp. 199, aff'd 145 N. Y. 144, 39 N. E. 825 318 Williams v. Hutchinson, 3 N. Y. 313, 53 Am. Dec. 301 781 Williams v. Post, 158 A. D. 818, or 143 Supp. 1027 Williams v. Whedon, 109 N. Y. 333, 4 Am. St. Rep. 460, 16 N. E. 365 100 Williams v. Williams, 152 A. D. 323, or 136 Supp. 990 94 Williamsburgh Trust Co., Matter of, 60 Misc. 296, 113 Supp. 276 414 Willick V. Taggart, 17 Hun. 511 709 Willis, Matter of, N. Y. L. J., Feb. 3, 1916 281 Willis T. Mott, 36 N. Y. 486.. 458, 951 Willis V. Sharp, 113 N. Y. 586 542 Wilmot, Matter of, 39 Misc. 686, or 80 Supp. 651 288 Wilmot V. Robinson, 42 Misc. 244, or 86 Supp. 575 328 Wilson, Matter of, N. y. L. J., Jan. 20, 1915 792 Wilson, Matter of, 76 Hun, 1, or 27 Supp. 957 503 Wilson, Matter of, 10 A. D. 371, or 41 Supp. 10O6 952 Wilson, Matter of, 103 N. Y. 374,- 8 N. E. . 731 509 Wilson ads. Bowery National Bank, 122 N. Y. 478, 9 L.E.A. 706, 19 Am. St. Rep. 507, 25 N. E. 855 404 Wilson ads. Grouse, 73 Hun, 353, 26 Supp. 923 823 Wilson ads. Gerould, 16 Hun, 530, aff'd 81 N. Y. 573 . . 371, 798, 803-4, 808 Wilson V. International Bank, 125 A. D. 568, or 109 Supp. 1027 110 Wiltsie V. Shaw, 100 N. Y. 191, 3 N. E. 331 616 Wincfcler v. Winckler, 149 A. D. 250, 133 Supp. 768 . .- 898 Windsor Trust Co., Matter of, 142 A. D. 772, 127 Supp. 586 641, 649 Winfield, Matter of, 93 N. Y. 45 899, 935, 960 Wingersky, Matter of, 75 Misc. 79, or 134 Supp. 877 ... 228, 230 Winkemeier, Matter of, 37 Misc. 539, 75 Supp. 1053 159, 165 Winne, Matter of, 2 Lans. 21 . . 48 Winne v. Hills, 91 Hun, 89, 39 Supp. 683 : . . 288 Winslow, Matter of, 12 Misc. 254, 34 Supp. 637 99!) TABLE or CASES Eeferences are to pages. Winslow ads. Parsons, 16 Mass. 361 , . 648 Winter ads. Shuttleworth, 55 N. Y. 624 114 Wintermeyer v. Sherwood, 77 Hun, 193, 28 Supp. 449 280 Winthrop, Est. of, N. Y. L. J., Nov. 11 1914 : 35d Wisehmann, Matter of, 80 A. D. 520, 80 Supp. 789 573 Wise, Matter of, 84 Misc. 663, or 146 , Supp. 789 8 Wise, Matter of, 165 A. D. 420, 150 Supp. 782 10 Withers, Matter of, 23 A. D. 404, 48 Supp. 169 371 Witthaus T. Schack, 105 N. Y. 332, 11 N. E. 649 45 Wittnauer, Est. of, N. Y. L. J., Dec. 4, 1914 600 W. N. Y. & P. R. R. Co. ads. Wooden, 126 N. Y. 10, 13 L.R.A. 458, 22 Am. St. Rep. 803, 26 N. E. 1050 146 Wolbarst, Est. of, N. Y. L. J., May 5, 1916 .; : 837 Wolf, Matter of, 88 Misc. 433 . . 67 Wolff, Matter of, 161 A. D. 255, or 14p Supp. 495 .. 154, 159, 165, 558, 724 Wolflfberg ads. Gorlitzer, 208 N. Y. 475, 102 N. E. 528, Ann. Cas. 19lto, 357 134, 135 Wood, Matter of Estate of, 70 Hun, 230, 24 Supp, 64 213 Wood, Matter of, 38 Misc. 64, or 76 Supp. 967 •. 402 Wood, Matter of, 70 Misc. 467, 128 Supp. 1102 372, 790 Matter of Wood, 70 A. D. 321, or 75 Supp. 272 324 Wood, Matter of, 170 A. D. 533, 156 Supp. "810 .:... 367 Wood V. Brown, 34 N. Y. 337 532, 688, 826, 843 Wood ads. U. S. Trust Co., 146, A. D. 751, or 31 Supp. 42if 821 Woodbridge ads. Baker, 66 Barb. 261 4.54 Woodbury, Matter of, 13 Misc. 474, 35 Supp. 485 268 Woodbury, Matter of, 40 Misc. 143, 81 Supp; 503 .. 228, 544, 601 Woodbury ads. Sackett, People ex rel., 70 A. D. 416, 75 Supp. 236 392, 841, 921 Wooden V. W. N. Y. & P. E. R. Co., 126 N. Y. 10, 13 L.R.A. 458, 22 Am. St. Rep. 803, 26 N. E. 1050 146 Woodruff V. Claflin Co., 198 N. Y. 470, 28 L.R.A.(N.S.) 440, 91 N. E. 1103, 19 Ann. Cas. 791 147 Woodruff V. Young, 31 Hun, 420 371 Woods, Matter of, 55 Misc. 181, 106 Supp. 471 229 Woodward, Matter of, 69 A. D. 286, or 74 Supp. 755 381, 910 Woolley, Matter of, 162 A. D. 330, 147 Supp. 518 970 Woolley V. Woolley, 95 N. Y. 231 503 Woolsey ads. Shecker, 2 A. D. 52, or 37 Supp. 292 . 837 Work, Matter of, 151 A. D. 707, or 136 Supp. 218 485 Worthington, Matter of, 141 N. Y. 9, 23 L.R.A. 97, 35 N. E. 929 . . , , 404 Wostenholme v. Wostenholme, 64 N. Y. 272 951 Wotton, Matter of, 59 A. D. 584, or 69 Supp. 753, a&'d 167 N. Y. 629, 60 N. E. 1123 .. 413, 663 Wright, Est. of, 89 Misc. 108, 151 Supp. 378 970 Wright, Matter of, N. Y. L. J., March 20, 1916 : 452 Wright, Matter of, 121 A. D. 581, or 106 Supp. 369 ... 970 Wfight ads. Beslie, 118 A. D. 320, or 103 Supp. 410, aff'd 195 N. Y. 509, 88 N. E. 1116 367 Wright ads. Brill, 112 N. Y. 129, 8 Am. St. Rep. 717, 19 N. E. 628 330 Wright ads. Bushe,' 118 A. D. 320, 103 Supp. 4l0, aff'd 195 N. Y. 509, 88 N. E. 1116 820 Wright ads. Conant, 19 Misc. 321, , 44 Supp. 727 675 Wright ads. Conant, 22 A. D. 216, or 48 Supp. 422, aff'd 162 N. Y. 635, 57 N. E. 1108 679 Wright V. Fleming, 19 Hun, 370 486 Wright V. Fleming, 76 N. Y. 517 399 Wright ads. Sheldon, 7 Barb. 39, aff'd 5 N. Y. 497 . . 3, 195, 315, 324, 840 Wright V. Smith, 209 N. Y. 249, 103 N. E. 154 957, 959 Wurtz ads. Dupuy, 53 N. Y. 556 8, 447 Wyckoff, Matter of, 50 Misc. 190, 100 Supp. 417 327 TABLE OF CASES Beferences are to pages. Wyckoff, Matter of, 67 Misc. 1, 124 Supp. 625 727 Wylie, Matter of, 162 A. D. 574, 145 Supp. 133 461 Wyman v. Wyman, 26 N. Y. 253 247 Yale V. Barker, 2 Hun, 468 94 Yates V. Thomas, 35 Misc. 552, or 71 Supp. 1113 .... 679, 800, 815 Yetter, Matter of, 44 A. D. 404, or 61 Supp. 175, affd 162 N. Y. 615, 57 N. E. 1129 910 Yorkville Bank ads. BiachoflF, N. Y. L. J., May 16, 1916 270 Yost ads. Douglas, 64 Hun, 155, or 18 Supp. 830 590, 819 Young, Matter of, 27 Hun, 54, aff'd 92 N. Y. 235 41 Young, Matter of, 92 Misc. 633, 157 Supp. 494 233 Young, Matter of, 17 Misc. 680, or 41 Supp. 539 .. 226, 428, 647, 648 Young, Est. of, N. Y. L. J., Sept. 24, 1915 209 Young, Est. of, N. Y. L. J., Oct. 23 1915 967 Young V. Barker, 141 A. D. 801, or 127 Supp. 211, 1150 . . .415, 645 Young V. Brush, 28 N. Y. 667 225, 590, 696 Young ads. Colvin, 81 Hun, 116, or 30 Supp. 689 616 Younger v. Duffie, 94 N. Y. 535, 46 Am. St. Eep. 156 . . 436, 449, 450 Young, Matter of Est. of, v. Hicks, 92 N. Y. 235 842 Young ads. Jenkins, 43 Hun, 194 338 Young ada. Ulster Co. Savings Institution, 161 N. Y. 23, 55 N. E. 483 285 Young ads. Woodruff, 31 Hun, 420 371 Zahrt, Matter of, 94 N. Y. 605 41 Zapf V. Carter, 90 A. D. 407, or 86 Supp. 175 964 Zeikus V. Florida East Coast Ry. Co., 153 A. D. 345, or 138 Supp. 478 145 Zeller, Matter of, 25 Misc. 137, or 54 Supp. 926 724 Zeph, Matter of, 50 Hun, 523, or 3 Supp. 560 3 Zerega, Matter of, 81 Misc. 113, or 142 Supp. 144, aff'd 144 Supp. 1151 679, 680 Zerega, Matter of, 58 Hun, 505, or 12 Supp. 497 914 Zerwinski, Matter of, 51 Misc. 661, 102 Supp. 203 163 Ziegler, Matter of, 82 Misc. 10, 143 Supp. 682 395, 670 Ziegler, Matter of, 168 A. D. 735, 154 Supp. 652 397, 409, 795 Ziegler, Matter of, 85 Misc. 673, or 148 Supp. 1055, mod. 154 Supp. 652 796 Ziegler, Matter of, 161 A. D. 589, 146 Supp. 881, 82 Misc. 346, 143 Supp. 562 24, 28 Ziemer v. Crucible Steel Co., 99 A. D. 169, or 90 Supp. 962 838 Zimmerman v. Schoenfeldt, 3 Hun, 692 46, 48, 440 Zinke, Matter of, 90 Hun, 127 892 Zites'berger, Est. of, 88 Misc. 386, or 151 Supp. 950 510 Zwickert, Matter of, 5 Misc. 272, 26 Supp. 773 712 TABLE OF ABBREVIATIONS. Keferencea aje always to pages except where otherwise indicated, ("Old Code" and "new Code" refer, respectively, to the Code of Civil Pro- cedure before and after the revision effective Sept. 1, 1914, of that part of such Code which is known as the Surrogates' Code.) Abb. N. C Abbott's STew Cases. afF'd affirmed. Am. Neg Cas American Negligence Cases. Am. Eep American Reporter. Am. St. Eep American State Reporter. Ann. Cas Annotated Cases. A. D New York Appellate Division Reports. Barb Barbour's Reports. Brad Bradford's Reports. Brad. Surr Bradford's Surrogates' Reports. B. R. C ■ British Ruling Cases. C. C. P Code of Civil Procedure. Civ. Pro New York Code of Civil Procedure Reports Cow Cowen's Reports. Deced. Est. L Decedent Estate Law. Dem Demarest's Reports. dism'd Appeal dismissed. Oom. Rels. L Domestic Relations Law. How. Pr Howard's Practice Reports. [ns. L Insurance Law. Johns Johnson's Reports. Jud. L Judiciary Law. L. c. — Laws of , chapter . Lana Lansing's Reports. L.R.A Lawyers Reports Annotated. L.E.A. ( N.8. ) Lawyers Reports Annotated, New Serte*. Misc New York Miscellaneous Reports mod. or mod'f'd modified. N. Y New York ( Court of Appeals) Eepoi-tft. N. Y. Const Constitution of New York. N. Y . L. J New York Law Journal. N". E Northeastern Reporter. Pai. Ch Paige's Chancery Reports. Pers. Prop. L Personal Property Law. Real Prop. L .'. . . Real Property Law. Eedf Redfield's Surrogates' Reports. rev'd reversed. Sand. Super. Ct Sandford's Superior Court Reports. Supp New York Supplement Reporter. U. S. Const Constitution of United States. Wend Wendell's Reports. xcv CYCLOPiEDIC ANALYSES CHAPTEE I. INTKODUOTOEY: DEATH, DOMIOIL, MAEEIAGE, LEGITIMACY, ADOPTION AND ALIENAGE. A. DEATH: , 1. General Effect of, § 1. 2. Proof of, § 2. 3. Presumption of, § 3. 4. Presumption of Time of, § 4. 5. Presumption of Survivorship, § 5. 6. Presumption of. Testate or Intestate, § €. 7. Presumption of. With or Without Issue, § 7. B. DOMICIL: 1. In General, § 8. 2. Qf Woman, § 9. 3. Of Infant, § 10. 4. Of Incompetent, § 11. 5. Of Soldier, § 12. C. MARRIAGE: 1. In General, § 13. 2. After Divorce, § 14. D. LEGITIMACY: 1. What Law Determines, § 15. 2. Presumption of, § 16. 3. By Natural Parents' Marriage, § 17. 4. Children of Bigamous Marriage, § 18. E. ADOPTION: 1. Definition, § 19. 2. What Law Determines, § 20. 3. Manner of: a. In General, § 21. b. Appearance and Examination of Parties Interested: aa. When Minor is Under 18, § 22. bb. When Infant ig 18 or Over, § 23. CO. When Major is Adopted, § 24. 0. Instrument of Adoption, § 25. d. The Consent, § 26. e. The Order, § 27. 4. Proof of, § 28. 5. Effect of: a. On Adopted Person, § 29. b. On Adopting Person, § 30. xcvii xcviii CYCLOPEDIC ANALYSES. CHAPTER I. E— Continued. 6. Abrogation of: a. Jurisdiction, § 31. b. Mstjiner of; . ast! Adoption from Individual^ § 32. bb. From Institution, § 33. F. ALIENAGE AND CITIZENSHIP: 1. In General, § 34. ,2, Of Married Woman, § 35. 3. Of Infant, § 36. CHAPTEE 11. INTESTATE SUCCESSION'. A. REALTY: 1. Quarantine, § 37. 2. Dower: a. In General, § 38. b. Wlien Is Widow, § 39. c. Of What Dowable: aa. In General, § 40. bb. In Exchanged, Mortgaged and Partnership Lands, § 41. d. When Barred: aa. In General, § 42. bb. By Divorce, § 43. cc. By Jointure, § 44. dd. By Provision Before Marriage, § 45. ee. By Provision After Marriage, § 46. ff. By Provision in Will, § 47. gg. Effect of Electing to Take Under Will, § 48. hh. By Wife's Release, § 49. 3. Curtesy, § 50. 4. Descent: a. In General, § 51. b. What Law Governs, § 52. c. What Descends, § 53. d. When Lineal Descendants Inherit, § 54. e. When.Father Inherits, § 55. f. When Mother inherits, § 56. g. When Collaterals Inherit, § 57. h. When Father's and (or) Mother's Relatives Inherit, § 58. i. When Deceased Husband's or Wife's Heirs Inherit, § 59. j. After Born, § 60. i „ k. From and to Illegitimate, § 61. 1. From Adopted Person, § 62.' m. To Adopted Person, § 63. n. From Alien, § 64. o. To Alien, § 65. p. To Half-Blood, § 66. CYCLOPiEDIC ANALYSES. xcix CHAPTER II. A. 4— Continued. q. Sole or In Common, § 67. r. Advancements, § 68. s. Under Common Law, § 69. B. PERSONALTy: 1. Quarantine and Exemptiona, § 70. 2. Husband's Title to Wife's Personalty, § 71. 3. Children's Exemptions, § 72. 4. Distribution: a. In General, § 73. b. What Law Determines^ § 74. c. When Widow and Descendants Take, § 75. d. When Widow and Next of Kin Take, § 76. e. When Descendants Takey § 77. f. When Next of Kin Take, § 78. g. When Child and Next of Kin of Deceased Husband or Wife Take, § 79. h. After Born, § 80. 1. From and to Illegitimate, § 81. j. From Adopted Person, § 82. k. To Adopted P'erson, § 83. 1. To Half Blood, § 84. m. To Equal and Unequal Degree, § 85. n. Representation Among Collaterals, § 86. 0. Advancements, § 87. CHAPTEE III. ADMIlSriSTRATOES. Aim EXECUTOES, TESTA^iIENTAEY TEUSTEES AND GUAEDIANS, ON CEETAIN SECTIONS COMMON TO THEM AS WELL AS ADMINISTEATOES. A. DEFINITIONS, POWERS, DUTIES AND LIABILITIES: 1. In General: a. Administrators in Chief, § 88. b. Administrators c. t. a., § 89. c. Administrators d. b. n., § 90. d. Limited ^administrators, § 91. e. Temporary Administrators, § 92. f. Ancillary Administrators, § 93. g. Ancillary Administrators, c. t. a., § 94. h. Foreign Administrators, § 95. L Surviving, Successor and Successive Administrators, § 96. j. Co-Administrators, § 97. k. Administrators for Different States, § 98. 1. County Treasurers as Administrators, § 99. m. Public Administrators, § 100. c CYCLOPEDIC ANALYSES. CHAPTER III. A— Continued. 2. Before Letters, § 101. 3. Pending Appeal, § 102. 4. Debts, Contracts and Agreements, § 103. 5. Intestate's Partnership: a. Eights of Administrator, § 104. b. Liabilities of Administrator, § 105. c. Good Will, § 106. d. Liabilities of Surviving Partner, § 107. 6. Liability for Interest, § 108. 7. Personal Purchase, Profit and Liaibility, § 109. 8. Taxes, Mortgages and Repairs, § 110. 9. Investments, § 111. • ■' i, 10. Transfer Tax (as it Affects Executors, Testamentary TrusSiees and Guardians, also) : a. In General,; § 112. b. Appraisal, Order Fixing Tax and Appeal, § 113. c. Exemptions, § 114. i,: d. Rate of Tax, § 115. B. ACTIONS BY AND AGAINST (ADMrNISTRATORS AMD EXECUTORS) : 1. Pleading and Practice: a. In General, § 116. aa. Actions By, § 117. bb. Actions Against, § 118.: b. Survival and Revivor: aa. Actions By, § 119. bb. Actions Against, § 120i c. Counterclaim, § 121. d. Abatement, § 122. , , > 2. Foreign Administrators (and Executors)', § 123. 3. Tejnporary Administratoj;s, J, 124. 4. Co-Admihistf ators (and Executors ) ,' § l25. 5. Public Administrators, § 126. . ; i ■ 6. Actions for Dea;th, § 127. i ^ • ; 1 i : .' 7. Actions for Improper Payment or Distribution, § 128. 8. When Barred, !§ 129. ;.•:,; • ,■; 9. Judgment and Execution, § 130. 10. Costs, § 131. . , C APPOINTMENT AND LETTERS: 1. What Jurisdiction Surrogate Has, § 132. 2. What Surrogate Has Jurisdiction, : § 133. 3. Persons Incompetent : a. In General, § 134. b. Infants, § 135. c. Adjudged Incompetent, § 136. d. Aliens and Non-InhabitantSj § 137. e. Felons, § 138. f. Drunkenness, Dishonesty, Improvidence, Want of Understanding, § 139. . . -: Tt," g. Death, § 140. h. Renunciation, Refusal: Retraction, § 141. CYCLOPxHDIC ANALYSES. ei CHAPTER III. C— Continued. 4. Preferences: a. Next of Kin Entitled to Take, § 142. b. Men to Women, § 143. c. Whole to Half Blood, § 144. d. Unmarried to Married, § 145. e. Estates of Illegitimates, § 146. f. Consuls, § 147. g. Discretionary Preferences, § 148. 6. When Appointed and Who Preferred: a. Administrators in Chief, § 149. b. Administrators c. t. a., § 150. c. Administrators d. b. n., § 151. d. Limited Administrators, § 152. e. Ancillary Administrators, § 153. f. Ancillary Administrators, c. t. a., § 154. g. Successor Administrators, § 155. h. Temporary Administrators, § 156. i. Public Administrators, § 157. 6. Petition: a. Administrator in Chief, § 158. b. Administrators c. t. a., § 159. c. Administrator d. b. n., § 160. d. Limited Administrator, § 161. e. Temporary Administrator, § 162. f. Ancillary Administrator, § 163. g. Ancillary Administrator, c. t. a., § 184. h. Successor Administrator, § 165. 7. Citation: a. Administrator in Chief, § 166. b. Administrator c. t. a., § 167. c. Administrator d. b. n., § 168. d. Limited Administrator, § 169. e. Temporary Administrator, § 170. f. Ancillary Administrator, § 171. g. Ancillary Administrator, c. t. a., § 172. h. Public Administrator, § 173. 8. Objections, § 174. 9. Hearing and Decree, § 175. 10. Letters: a. Form, § 176. b. Force and Effect, § 177. D. OATH AND BOND: 1. Oath, § 178. 2. Bond: a. Administrator in Chief, § 179. b. Administrator c. t. a., § 180. c. Temporary Administrator, § 181, d. Ancillary Administrator, § 182. e. County Treasurer, § 183. f. Public Administrator, § 184. eii CYCLOPEDIC. ANALYSES. CHAPTER III. D— Continued. 3. New Bond: a. Grounds, § 185. b. Petition, § 186. c. Citation, § 187. d. Hearing, Order and Decree, § 188. E. TERM OF OFFICE: 1. Surrogate's Jurisdiction, § 189. 2. Revocation Per Se, § 190. 3. Revocation Without Petition or Citation, § 191. 4. Revocation on Petition: a. Grounds: aa. In General, § 192. bb. Legal Incompetency or Disqualification, § 193. cc. Unfitnea for OflBce, § 194. , dd. Refusal to Obey Direction or Law, § 195. ee. False Suggestion of Fact, § 196. ff. Happening of Contingency, § 197. gg. In Case of Temporary Administration, § 198. b. Petition, § 199. u. Citation, § 200. d. Order Suspending Administrajtqr, § 201. e. Hearing and Decree ; and Effect, § 202. F. ADMINISTRATION EXPENSES: 1. In General and What Are, § 203. 2. Services Which Administrator Should Have Performed, § 204. 3. Traveling Outlays, §,205. ; 4. Legal Services: a. In General, § 206. b. To Administrator Individjially, §i 207. c. How Fixed, § 208. d. To Temporary Administrator, § 209. 5. Court Expenses, § 210. G. LAST ILLNESS, BURIAL AND FUNERAL EXPENSES (BOTH OF AD- MINISTRATORS AND EXECUTORS) : 1. In General, § 211. .;;-.;; .. 2. What Are, § 212. 3. Whence Payable, § 213. 4. Of Married Women, § 214. 5. How Fixed, § 215. 6. Compulsory Payment, § 216. H. ASSETS AND PERSONALTY (BOTH AS TO ADMINISTRATORS AND EXECUTORS): 1. What Are: a. In General, § 217. b. Leases, § 218. ;;; c. Interests, Estates and Contracts in Land, § 219. d. Fixtures, § 220. ; e. Secured Debts, § 221. f. Crops and Produce, § 222. CYCLOPEDIC ANALYSES, ciii CHAPTER III. H, 1— Continued, g. Rents, § 223. h. Payments Due at Fixed Periods, § 224. i. Accounts and Circulating Medium, § 225. j. Corporate Stock, § 226. k. Claims Owing Decedent by Representative, Legatee, etc., § 227. 1. Goods, Wares and Merchandise and Exemptions: aa. In General, § 228. bb. Compulsory Setting Apart of Exemptions, § 229. m. Other Personalty in General, § 230. n. Proceeds from Action for Death, § 231. o. Insurance: aa. Fire, § 232. bb. Life, § 23S. 2. Discovery: a. In General, § 234. b. Petition . and AflSdavit, § 235. c. Order, § 236. d. Hearing or Trial, § 237. e. Decree, § 238. f. By Public Administrator, § 239. 3. Collection: a. Collection, In General, § 240. b. By Foreign Representative, § 241. 4. Custody, § 242. 5. Appraisal: a. Appraisers' Appointment, Oaths and Duties, § 243. ' b. Notice of, § 244. u. Appraisers' Compensation, § 245. 6. Inventory: a. Making and Filing, § 246. b. Eflfeet, § 247. c. Compulsory, § 248. 7. Disposition of: a. In General, § 249. b. By Temporary Administrator, § 250. c. By Court Advice, § 251. L DEBTS OF AND CLAIMS AGAINST DECEDENT (BOTH AS TO ADMIN- ISTRATORS AND EXECUTORS) : 1. Notice to Creditors to Present, § 252. 2. Presenting: a. When, § 253. b. Manner, § 254. c. What Presentable, § 255. 3. Adjflission, § 256. 4. Compromise: a. Without Court Authority, § 257. b. By Court Authority, § 258. 5. Rejection, § 259. 6. When Barred: a. In General, § 260. civ CYCLOPAEDIC ANALYSES. CHAPTER III. I, 6— Continued. b. Wlien Notice to Present Published, § 261. c. When Objection Sustained on Accounting, § 262. d. Representative's Claim, § 263. 7. Revivor, § 264. 8. Proof of: a. In General, § 265. b. By Relatives, § 266. c. By Legatees, § 267. d. By Representatives,' § 268. e. Burden of Proof, § 269. 9. Payment: a. Duty and Order of: aa. In General, § 270. bb. Debts Entitled to Preference by Law, § 271. cc. Taxes Assessed Before Death, § 272. dd. Judgments Docketed and Decrees Entered, § 273. ee. Miscellaneous Debts, § 274. b. Source of Payment, § 275. 10. Interest, § 276. 11. Compulsory Payment : a. In General, § 277. b. By Representatives in Surrogate's Court, § 278. c. By Action: aa. In General, § 279. bb. Against Intestate's Husband, Wife and Kin, § 280. cc. Against Intestate's Heirs, §281. dd. Against Testator's Legatees, Kin, Husband or Wife, § 282. ee. Against Testator's . Devisees or Heirs, § 283. J. DISPOSITION OF REALTY (BOTH BY ADMINISTRATORS AND EXECUTORS): 1. Surrogate's Jui'isdiction, § 284. 2. Power Over, In General: a. Of Administrator, § 285. b. Of Executor, § 286. 3. Fulfilling Decedent's Contract to Convey, § 287. 4. Decedent's Contract to Buy, § 288. 5. Takiiig' Possession and Collecting Rents, § 289. 6. Sale, Mortgage or Lease to Pay Debts, etc.: a. When Possible, In General, § 290. b. Insufficiency of Personalty, § 291. c. When Power of Sale, etc.. Given By Will, § 292. d. When Exempt from Levy, § 293. e. To Pay What Debts, § 294. f. To Pay What Liens, Funeral and Administration Expenses, Trans- fer Tax, Legacy, Charged Debts, § 295. g. To Distribute, When Possible, § 296. h. What May Be Sold, § 297. i. Who Have Notice, § 298. j. Hearing and Order or Decree, § 299. CYCLOPEDIC ANALYSES. cv CI-IAPTEE, III. J, 6— Continued. k. Adjournment of Accounting, § 300. 1. Representative's Bond, § 301. m. Execution, Report and Court's Determination Thereon, § 302. n. Supplemental Account and Decree, § 303. o. Creditor as Purchaser; Effect of Sale on Title of Purchaser or Mortgagee or Heir or Devisee ; Guardian for Infant Party, § 304. 7. Under Power in Will: a. Who May Execute, § 305. b. When Extinguished, § 306. c. Manner of Exercise, § 307. d. When Imperative and Discretionary, and Equitable Conversion, § 308. e. Rights of Beneficiaries, § 309. K. ACCOUNTINGS (OF EXECUTORS AND TESTAMENTARY TRUSTEES AS WELL AS ADMINISTRATORS) : 1. Jurisdiction, § 310. 2. Definitions, § 311. 3. By Parties Interested Inter Sese, § 312. 4. In Court: a. Voluntary, Intermediate, Without Settlement, § 313. b. Voluntary, Intermediate Settlement, § 314. c. Voluntary, Final Settlement: aa. Petition: aaa. Of Executor or Administrator in Chief, § 315. bbb. Of Limited Executor or Administrator, § 316. ccc. Of Testamentary Trustee, § 317. bb. Citation: aaa. When Issues, § 318. bbb. Who to Have Notice!: aaaa. Of Administrator in Chief, § 319. bbbb. Of Limited Executor or Administrator, § 320. cecc. Of Executor in Chief, § 321. dddd. Of Testamentary Trustee, § 322. ccc. Form, § 323. cc. Hearing and Decree, § 324. d. Compulsory, Intermediate: aa. When and By Whom Compellable, Petition, § 325.' bb. Order to Account, § 326. > cc. Proceedings on Order's Return, § 327. e. Compulsory, Pinal Settlement: aa. Petition: aaa. Who May Make and When: aaaa. Of Administrator, § 328. bbbb.. Of Executor; § 329. ccc<'. Of Testamentary Trustee, § 330. bbb. Form, § 331. bb. Citation, § 332. cc. Proceedings on Citation's Return, § 333. 5. When Barred, § 334. cvi CYCLOPEDIC ANALYSES. CHAPTER III. E— Continued. 6. The Account, § 335. 7. Contest and Objections: a. Who May Make, § 336. b. When May Be Made, § 337. M. How Made, § 338. d. Burden of Proof, § 339. e. Hearing or Trial, § 340. 8. Decree: a. In General, § 341. b. Distribution, Payment, Delivery and Set-Oflf, § 342. c. Eetention, § 343. d. Adjusting Advancements, § 344. e. Surcharging Accountant, § 345. f. Crediting Accoimtant, § 346. g. Revoking Letters or Permitting Resignation, § 347. h. Discharging or Reducing Bond or Siirety, § 348. i. Costs, Allowances and Commissions, § 349. j. Effect: aa. Who Bound, § 350. bb. As to What Bound, § 351. D. DISTRIBUTION: 1. What Law Determines, § 352. 2. Jurisdiction, § 353. 3. Time of, § 354.. 4. Compulsory,; § 355. 5. When Barred, § 356. 6. To Whom Made, § 357. 7. Set-Off, § 358. 8. Receipt for Payment, f 359. M. COMPENSATION (OF EXECUTORS, TESTAMENTARY TRUSTEES AND 1 • : ■ GUARDIANS, AS WELL AS ADMINISTRATORS) : 1. Commissions: a. In General, § 360. b. Amount, § 361. c. Of Public Administrators, § 362. d. Of County Treasurer as Administrator, § 363. e. Double, § 364. , : f. Full to Three or Less, § 365. g. Withholding, | 366. h. Waiver, § 367. i. Successive Representatives, § 368. j. On What Computed: , aa. On Principal: aaa. In General, .§ 369. bbb. On Specific Bequests, § 370. ccc. On Realty, § 371. ddd. When Payable, § 372. bb. On Income, § 373. CYCLOPEDIC ANALYSES. cvii CHAPTER in. M— Con^;inued. 2. Other Compensation: . . a. As Attorney, § 374. b. On Accounting or Disposition of Realty, § 375. c. By Agreement, § 376. d. For Extra Services, § 377. e. By Will, § 378. f. Of Guardians: aa. In Surrogate's Court, § 379. bb. In Supreme Court, § 380. CHAPTEK IV. WILLS. A. DEFINITIONS: 1. In General, § 381. 2. Joint and Mutual, § 382. 3. Nuncupative, § 383. 4. Holographic, § 384. 5. Duplicate, § 385. B. WHO MAY MAKE, § 386. C. WHAT MAY BE WILLED, § 387. D. WHO MAY TAKE BY WILL: 1. Corporations, In General, § 388. 2. Benevolences, § 389. 3. Subscribing Witnesses, § 390. E. HINTS IN DRAWING, § 391. F. EXECUTION: 1. Formalities, in General, § 392. 2. Place of Testator's Signature, § 393. 3. Manner of Testator's Signature, § 394. 4. Acknowledgment, § 395. G. PUBLICATION, § 396. H. REPUBLICATION, § 397;. L ATTESTATION: ' '' 1. Request to Witnesses to Sign, § 398. 2. Witnesses' Signature, § 399. 3. Witnesses' Addresses, § 400. 4. Attestation Clause, § 401. K. ALTERATION AND REVOOATION: 1. In General, §402. 2. Revocation: a. By Other Writing,. § 403. b. By Burning, Tearing, Cancelling, Obliterating or Destroying, § 404. c. By Marriage of Testate Unmarried Men, § 405. d. By Marriage of Women, § 406. e. By Birth of Child, § 407.' f. Presumption of, § 408. g. Effect of,. § 409. 3. Alteration, § 410. cviii CYCLOPEDIC ANALYSES. CHAPTER IV.— Continued. L. PROBATE, RECORD AND ESTABLISHMENT: 1. Foreigii Wills: a. In Genepal,. § 411. , b. Of Realty or Personalty: aa. Executed According to N, y. Law by Anyone Anywhere, § 412.- bb. Proven in Great Britain or Dependencies Executed by U. S. Citizen, etc., § 413. c. Of Personalty Only : . aa. Executed According to Law of Testator's Domicil, § 414. bb. Executed in U. S., Canada or Great Britain, According to Its Law, § 415. > , . , . , . , d. Affecting Realty in This State, § 416. e. Authentication: aa. Of Wills Probated and Letters Issued in Other States of U. S. A., § 417. bb. Of Wills Probated and Letters Issued in Foreign Countries, §418. 2. Domestic Wills: a. Jurisdiction : . aa. What Jurisdiction Surrogate Has, § 419. bb. What Surrogate Has Jurisdiction, § 420. cc. Of Supreme Court, § 421.. ".' b. What Provable As ; aa. In General, § 422. ,, , . , ,. ; bb. Papers Attached to, or Referred to by Will, § 423, cc. Last Will Only, § 424. c. Production, § 425. d. Petition for Probate: aa. Who May Make, § 426. bb. Form, § 427. e. Citation to Probate: aa. Who Have Notice: aaa. Will of Personalty Only, § 428. bbb. Will of Realty Only, § 429. ccc. Will of Both Realty and Personalty, § 430. bb. Form, § 431. ,, . f. Answer, § 432. g. Objections and Contest: aa. Who May Make, § 433. bb. Time Limit, Contents and Costs, .§.434,, h. Notices to Beneficiaries of Probate and Objections, § 435. i. Hearing or Trial and Proof: aa. In General — Jury or No Jury? § 436. bb. Burden and Order, of Proof, § 437. cc. Proof of Written Will: aaa. In General, § 438. bbb. When Two or More Witnesses Alive, in State and Com- petent, § 439. ecc. When One Witness in State and Competent, g 440. ddd. When All Witnesses Out of State, but One Alive, Com- petent and Able, § 441. CYCLOPEDIC ANALYSES. cix CHAPTER IV. L, 2, i, cc— Continued. eee. When All Witnesses Dead, Incompetent, Unable or Absent, § 442. fff. Wben Witness Forgets or Testifies against Execution, § 443. dd. Proof of Noncupatlve Will, § 444. ee.' Proof of Lost or Destroyed Will: aaa. In Surrogate's Court, § 445. bbb. In Supreme Court: aaaa. In General, § 446. bbbb. Burden of Proof, § 447. ff. Proof of Holographic Will, § 448. gg. The Witnesses: aaa. Definitions, § 449. bbb. Examination and Testimony: aaaa. In General, § 450. bbbb. Disqualification or Excuse from Testifying, § 451. ccec. Recovery by Witness Losing Share, § 452. dddd. As to Testator's Statements, § 453. j. Determination and Decree: aa. In General, § 454. bb. Form and Contents, § 455. k. Motions in Probate Proceedings, § 456. M. VALIDITY, CONSTRUCTIOlsr AND EFFECT.: 1. What Law Determines, § 457. 2. Surrogate's Jurisdiction: a. In General, § 458. b. In Course of Probate Proceeding, § 459. c. Reservation on Probate Proceeding, § 460. d. Petition: aa. Who May Make, § 461. bb. Form, § 462. e. Citation, § 463. f. Decree, § 464. 3. Supreme Court's Jurisdiction: a. When Maintainable, § 465. b. Who May Get, § 466. N. DEPOSITING, FILING, RECORDING AND WITHDRAWING PROM RECORD, § 467. O. PUTTING CERTIFIED COPIES OR CERTIFICATES IN EVIDENCE, § 468. CHAPTEE V. EXECUTORS. A. DEFINITIONS, DUTIES, POWERS AND LIABILITIES; 1. In General: a. Of Executor In Chief, § 469. b. Of Limited Executor, § 470. ex CYCLOPEDIC ANALYSES. CHAfTER V. A, 1— Continued. c. Of Ancillary Executor, § 471. d. Of Foreign Executor, § 472. e. Of Supplementary Executor, § 473. f. Of Co-executors, § 474. g. Of Several Executors in Different States, § 475. h. Of Executor Also Trustee, Legatee or Devisee, § 476. 2. Before Letters, § 477. 3. Pending Appeal and Contest, § 478. 4. Contracts, Agreements and Debts, § 479. 5. Testator's Partnership, § 480. 6. Liability for Interest, § 481. 7. Personal Purchase, Profit and Liability, § 482. 8. Taxes, Mortgages and Repairs, § 483. 9. Investments, § 484. B. TRANSFER TAX, § 485.— (See Same Title: "Administrators.") C. ACTIONS BY AND AGAINST, § 486.— (See Same Title: "Administrators.") D. APPOINTMENT AND LETTERS: 1. What Jurisdiction Surrogate Has, § 487. 2. What Surrogate Has Jurisdiction, § 488. 3. Persons Incompetent: a. In General, § 489. b. Infants, § 490. c. Adjudged Incompetents, § 491. d. Aliens and Non-Inhabitants; or Non-Kesidents, § 492. e. Felons, § 493. f. Drunkenness, Dishonesty, Improvidence, Want of Understanding, § 494. g. Renunciation or Refusal, § 495. h. Inadequate Circumstances, § 496. i. Illiteracy or Failure to File Designation, § 497. 4. When Made and Petition: a. Executor Named by Will, § 498. h. Under Power of Appointment, § 499. c. On Contingency, § 500. d. Limited Executors, § 501. e. Ancillary Executors, § 502. f. Supplementary Executors, § 503. !':>' ; g. Sucfcessor Executorsj, § 504,.. 5. Citation: ; .■'- a. In General, § 505. : • : b. Ancillary Executors, § 506. 6. Notice to Beneficiaries, § 507. 7. Objections, § 508. 8. Hearing and Decree, §'509. 9. Letters: a. Form, § 510. b. Force and Effect,. § 511. E. OATH AND BOND: 1. Oath, § 512. 2. Bond, § 513. CYCLOPiEDIC ANALYSES. exi CHAPTER V. E— Continued. 3. New Bond: a. Grounds, § 514. b. Petition, § 515. c. Citation, § 516. d. Hearing, Order or Decree, § 517, P. TERM OF OFFICE: 1. Jurisdiction, § 518. 2. Revocation Per Se, § 519. 3. Revocation Withoiit Petition or Citation, § 520. 4. Revocation On Petition: a. Grounds: aa. In General, § 521. bb. Legal Incompetency or Disqualification, § 522, cc. Unfitness for Office, § 523. dd. Refusal to Obey Direction or Law, § 524. ee. False Suggestion to Get Letters, § 525. If. Happening of Contingency, § 526. gg. Inadequate Circumstances, § 527. hb. Removal from State, § 528. b. Petition, § 529. c. Citation, § 530. d. Order Suspending Executor, § 531. e. Hearing, Decree and Effect, § 532. G. ADMINISTRATION EXPENSES: 1. In General, § 533. 2. Services Wbich Executor Should Render, § 534. 3. Travelling Outlays, § 535. 4. Legal Services: a. In General, § 536. b. To Executor Individually, § 537, o. How Fixed, § 538. 5. Court Expenses, § 539. H. LAST ILLNESS, BURIAL AND FUNERAL EXPENSES, § 540 (See Same Title : "Administrators." ) I. ASSETS AND PERSONALTY, § 541 (See Same Title: "Administrators.") J. DEBTS OF AND CLAIMS AGAINST DECEDENT, § 542 (See Same Title: "Administrators.") K. DISPOSITION OF REALTY, § 543 (See Same Title: "Administrators.") L. ACCOUNTING,, § 544 (See Same Title: "Administrators.") M. LEGACIES: 1. Definitions: a. In General, § 545. b. General Legacy, § 546. c. Demonstrative Legacy, § 547. d. Specific Legacy> § 548. e. Contingent, Conditional and Joint Legacies, § 549. f. Annuity and Income, § 550. 2. Ademption and Satisfaction, § 551. 3. Lapse, § 552. cxii CYCLOPEDIC ANALYSES. CHAPTER V. M— Continued. i. Payment: a. Duty and Authority, § 553. b. Order, Preference and Source of, § 554. c. Time of, § 555. d. Manner of : aa. In General, § 556. bb. To Infant or For Support, § 557. cc. Of Life Legatee's or Executor's, § 558. dd. Of Lunatic's, § 559. ee. Before Due; or Specific, § 560. ff. Of Legacy In Kind, § 561. gg. To Person Unknown or of ^ Unknown Address, § 562. 5. Interest On: a. In General, § 563. b. On Specific Legacy, § 564. c. On Legacy for Support, § 565. d. On Legacy in Lieu of Dower, § 566. e. On Legacy in Trust, § 567. 6. Charged on Land, § 568. 7. Overpayment, § 569. 8. Payment of Destroyed Legacy, § 570. 9. Retainer, § 571. 10. Compulsory Payment: a. In Supreme Court, § 572. b. In Surrogate's Court: aa. In General, § 573. bb. In All Cases Except for Support, § 574. cc. For Support, § 575. 11. Receipt for Legacy, § 576. . r N. COMPENSATION AND COMMISSIONS, § 577, (See Same Htle: "Admin- istrators.") OHAPTEK VI. TESTAMEISTTARY TEtrSTEES. A. DEFINITIONS, DUTIES, POWERS AND LIABILITIES: 1. In General, § 578. 2. Successor, Substituted and Surviving Trustee, § ' 578a. 3. Co-Trustees, § 579. 4. Qualified, Of Named, Trustees, § 580. 5. Contracts, Agreements and Debts, § 581. 6. Sales, Mortgages and Leases, § 582. 7. Liability for Interest, § 583. 8. Personal Purchase, Profit and Liability, § 584. 9. Taxes, Repairs and Improvements, § 585. 10. Investments, § 586. 11. Transfer Tax, § 587. 12. Principal and Income: a. Dividends, § 588. CYCLOPEDIC ANALYSES. exiii CHAPTER VI. A— Continued. b. Rents, Proceeds of Sale or Condemnation, etc., § 589. v;. Carrying and Accounting Charges, § 590. d. Investments, § 591. B. ACTIONS BY AND AGAINST: 1. Actions By, § 592. 2. Actions Against, § 593. C. APPOINTMENT: 1. What Jurisdiction Supreme and Surrogates' Courts Have, § 594. 2. What Surrogate Has Jurisdiction, § 595. 3. Persons Ir competent: a. In General, § 596. b. Infants, § 597. c. Adjudged Incompetents, § 598. d. Aliens and Non-Inhabitants, or Non-Residenta, § 599. e. Felons, § 600. f. Drunkenness, Dishonesty, Improvidence, Want of Understanding, § 601. g. Renunciation or Refusal, § 602. h. Inadequate Cirmnstances, § 603. 4. When Made and On Whose Petition: a. In Surrogate's Court: aa. When No Trustee In Office, § 604. bb. When Trustee In Office, § 605. b. In Supreme Court, § 606. 5. Notice: a. In Surrogate's Court, § 607. b. In Supreme Court, § 608. «. Objections, § 609. 7. Decree, Order or Judgment, § 610. D. OATH AND BOND; OR CONSENT: 1. Oath or Consent, § 611. 2. Bond or Consent, § 612, 3. New Bond in Surrogate's Court; a. Grounds, § 613. b. Petition, § 614. c. Citation, § 615. d. Order or Decree, § 616. B. TERM OF OFFICE: 1. In Supreme Court, § 617. 2. In Surrogate's Court: a. Jurisdiction, § 618. b. Voluntary Removal and Discharge,, § 619. e. Involuntary Removal: aa. Without Petition or Citation, § 620. bb. On Petition: aaa. In General, § 621. bbb. Grounds, § 622. ccc. Petition, § 623. ddd. Citation, § 624. cxiv CYCLOP-^mC ANALYSES. c:'HAPTER VI. E, 2,c, bb— Continued. eee. Order Suspending, § 625. fff. Hearing and Decree, § 626. F. EXPENSES OF ADMINISTRATION, § 627. G. ACCOUNTING, § 628 (See same title: "Administrators.") H. PAYMENT AND DELIVERY: 1. In General, § 629. 2. To Infant or Lunatic, and for Support, § 630. 3. To Life Tenant, § 631. 4. In Kind, § 632. 5. Compulsory; a. Jurisdiction, § 633. b. When Not Needed for Support, § 634. c. For Support, § 635. 6. Receipt for Payment, § 636. I COMPENSATION, § 637 (See same title: "Administrators.") CHAPTEK VII. GUAKDIANS AND INFAE^TS. A. DEFINITIONS, DUTIES,, POWERS AND LIABILITIES. 1. In General, § 638. 2. Guardians by Nature, § 639. 3. Guardians In Socage, § 640. 4. General Guardians, § 641. 5. Special Guardians, § 642. 6. Guardians by Will, § 643. 7. Guardians by Deed, § 644. 8. Ancillary Guardians, § 645. 9. Limited Guardians, § 646. 10. Guardians ad litem, § 647. B. PERSONAL PURCHASE, PROFIT AND LIABILITY, § 648. C. INVESTMENT, § 649. D. ACTIONS BY AND AGAINST, § 650. E. APPOINTMENT AND LETTERS: 1. What Jurisdiction Surrogate Has, § 651. 2. What Surrogate Has Jurisdiction, § 652. 3. Persons Incompetent: a. In General, § 653. b. Infants, § 654. c. Adjudged Incompetents, § 655. d. Aliens and Non-Inhabitants ; or Non-Residents, | 656. e. Felons, § 657. f. Drunkenness, Dishonesty, Improvidence, Want of Understanding, § 658. g. Renimciation or Refusal, § 659. h. Inadequate Circumstances, § 660. i. Illiteracy or Failure to File Designation, § 661. 4. Preferences, § 662. CYCLOPEDIC ANALYSES. cxv CHAPTP:R VII. E— Continued. 5. When Appointed and Petition: a. General Guardian, § 663. b. Special Guardian, § 664. c. Guardian By Will, § 665. d. Guardian By Deed, § 666. e. Ancillary Guardian, § 667. f . Guardian ad Litem, § 668. g. Joint Guardians, § 669. 6. Citation: a. General Guardian, § 670. b. Special and ad Litem, § 671. c. Ancillary Guardian, § 672. 7. Hearing and Order or Decree, § 673. 8. Letters: a. Form, § 674. b. Effect, § 675. F. QUALIFICATION: 1. General Guardian: a. Of Person, § 676. b. Of Property, § 677. 2. Special Guardian, § 678. 3. Guardian By Will, § 679. 4. Guardian By Deed, § 680. 5. Ancillary Guardian, § 681. 6. Limited Guardian, § 682. 7. Guardian ad Litem, % 683. G. TERM OF OFFICE: 1. Guardians In Supreme Court, § 684. 2. Guardians In Surrogate's Court: a. Surrogate's Jurisdiction, § 685. b. Voluntary Revocation of Letters or Resignation, § 686. c. Compulsorj' Revocation Without Petition or Citation, § 687. d. Compulsory Revocation On Petition: aa. Grounds: aaa. Legal Incompetency or Disqualification, § 688. bbb. Unfitness for Office, § 689. cec. Refusal or N<^lect to Obey Direction or Law, § 690. ddd. False Suggestioix to Get Letters, § 691. eee. ' Happening of Contingency, § 692. fff. Removal from State, § 693. ggg. Promotion of Infant's Interests, § 694. bb. Petition, § 695. cc. Citation, § 696. dd. Order Suspending Guardian. § 697. ee. Hearing, Decree and Effect, § 698. H. ADMINISTRATION EXPENSES, § 699. I. DISPOSITION OF INFANT'S RKALTY, § 700. 1. In General, § 700a. 2. By Action: a. When; By Whom; Judgment, §' 700b. cxvi CYCLOPEDIC ANALYSES. CHAPTER VII. I— Continued. 3. By Application in Special Proceeding: a. By Whom and When, § 700c. b. Petition, § 700d. c. Special Guardian and Bond, § 700e. d. Reference, § 700f. e. Order for Sale, Mortgage, Lease, etc., § 700g. f. Agreement for Sale, etc., and Deed, by Guardian, § TOOli. g. Effect of Deed, etc., § 700i. 4. Proceeds Remain Realty Save on Infant's Death, § 700j. 5. Disposition and Investment of Proceeds: a. In General, § 700k. b. When Dower Involved, § 7001. c. »When After-Born Infants Get Interest, § 700m. d. When Infant is Nonresident, § 700n. c. Payment of Infant's Debts, § 700o. J. ACCOUNTING: 1. Jurisdiction, § 701. 2. Definitions, § 702. 3. By Parties Interested Inter Sese, § 703. 4. By Judicial Proceedings: a. Voluntary: aa. Annual, § 704. bb. Intermediate: Without Settlement, § 705. cc. Intermediate: Settlement, § 706. dd. Final: Settlement: aaa. Petition, § 707. bbb. Citation, § 708. ccc. Hearing and Decree, § 709. b. Compulsory: aa. Annual, § 710. bb. Intermediate: aaa. Petition, § 711. bbb. Order To Account, § 712. ccc. Proceedings on Order's Return, § 713. cc. Intermediate Settlement, § 714. dd. Final Settlement: aaa. Petition, § 715. bbb. Citation, § 716. ccc. Proceedings on' Citation's Return, § 917. c. The Account, § 718. d. Contest and Objections, § 719. e. Hearing and Decree, § 720. 5. When Barred, § 721. K. PAYMENT: 1. Jurisdiction, § 722. 2. In General, § 723. 3. For Support and Maintenance: a. Petition, § 724. b. Wlien and What Allowed, § 725. c. Notice and Order, |, 726. CYCLOPEDIC ANALYSES. CHAPTER VII. K— Continued. 4. Receipt for, § 727. L. COMPENSATION, § 728 (See same title: "Administrators.") CHAPTEE VIII. EEPKESEN'TATIVES OE DECEASED KEPEESENTA- TIVES. A. DEFINITIONS, DUTIES, POWERS AND LIABILITIES IN GENERAL, § 729. B. ACTIONS AND PROCEEDINGS, § 730. C. ACCOUNTINGS: 1. In General, § 731. 2. Surrogate's Jurisdiction, § 732. 3. Voluntary Settlement: a. Petition, § 733. b. Citation, § 734. c. Proceeding and Decree on Citation's Return, § 735. 4. Compulsory Settlement: a. Petition, § 736. b. Citation, § 737. c. Proceedings and Decree on Citation's Return, § 738. 5. For Wbat Accountable, § 739. 6. When Barred, § 740. 7. Delivery Over, § 741. 8. Compensation, § 742. CHAPTEE IX. SUEETIES AND BONDS. A. THE BOND: 1. Form and Construction, § 743. 2. Approval and Recording, § 744. 3. Prosecution: a. In General, § 745. b. By Him In Whose Favor Decree Made, § 746. c. By Successor, § 747. d. By Person Aggrieved, § 748. e. By Assignee, § 749. B. THE SURETY: 1. Definition and Justification, § 750. 2. Liability: a. When Attaches, § 751. b. What Notice Needed to Hold Surety, § 752. c. When Ceases: aa. In General, § 753. cxviii CYCLOPAEDIC ANALYSES. CHAPTER IX. B, 2, c— Continued. bb. Principal's Performance, § 754. cc. Statute of Limitations, § , 755. . dd. On Surety's Application, § 756. d. Extent Of: aa. In General, § 757. bb. In Money, § 758. ce. To Co- and Dual-Principals, § 759. 3. Suits and Actions Against, § 760. 4. Surety's Remedies, § 761. CHAPTEE X. JUEISDICTIOK A. CONCURRENT AND CONFLICTING JURISDICTION OP SUPREME AND SURROGATES' COURTS: 1. When Complete Relief Obtainable in One Court: a. In General, § 762. b. Accountings, § 763. . . c. Term of Office of Represeniative or Trustee, § 764. d. Wills, § 765. 2. Over Gua'rdians: a. Suri;ogate Court's Jurisdiction, § 766. b. Supreme Court's Jurisdiction, §, 767. 3. When Relief Inadequate in One Court, § 768. 4. Court First Acquiring Jurisdiction, § 769. B. JURISDICTION OF SURROGATES AND THEIR COURTS: 1. In General, § 770. 2. To Complete Predecessor's Business, Certify and Sign Papers, Take Oaths, etc., § 771. 3. Equitable Jurisdiction, § 772. 4. Common Law and Incidental Jurisdiction, § 773. 5. Attacking Jurisdiction, § 774. 6. Preventing Exercise Of, § 775. 7. General Jurisdiction Over Administrators, § 776. 8. General Jurisdiction Over Executdrs, § 777. 9. General Jurisdiction Over Testarhentary Trustees, § 778. 10. Jurisdiction Over Indians, § 779. CHAPTER XL PEOCEEDINGS ; PAPEES AND PLEADINGS ; PKOCESS ; PAETIESj A;iSrD PEACTICE. A. PROCEEDINGS: 1. In General, § 780.- 2. Dismissal Of, § 781. 3. Stay and Injunction Of, § 782. CYCLOPiEDIC ANALYSES, ( CHAPTEll XI. A— Continued. 4. Postponement Of, § 783. 5. Consolidation Of, § 784. 6. Abatement and Revivor Of, § 785, B. PAPERS AND PLKADINGS: 1. Contents, Verification, Acknowledgment, Filing, etc., § 786. 2. Petition: a. Definition, Form and Contents, § 787. b. Verification and Service, § 788. c. Amendment, § 789. 3. Answer: a. Definition, Form and Contents, § 790. b. Verification and Service, § 791. 4. Objection: a. Definition, Form and Contents, § 792. b. Verification and Service, § 793. c. Withdrawal, § 794. ' 5. Reply, § 795. 6. Demurrer, § 796. C. PROCESS: 1. Kinds, Return and Execution In General^ § 797. 2. Surrogates' and Their Clerks' Jurisdiction, § 798. 3. Citation: a. Form and Contents, § 799. b. Return and Amendment, § 800. c. Service: aa. In General, § 801. bb. Service In State: aaa. Personal, § 802. bbb. Substituted, § 803. ccc. By Publication, § 804. cc. Service Out of State, Personally or By Publication, § 805. dd. Who May Make, § 806. ee. Time of Making, § 807. 4. Supplemental Citation, § 808. 5. Order To Show Cause, § 809. 6. Subpoena Duces Tecum, § 810. 7. Notices, § 811. 8. Proof of Service of Process, § 812. D. PARTIES: 1. Definitions, § 813. 2. Jurisdiction, § 814. 3. Appearance: a. In General, § 815. b. Notice Of, § 816. c. By Special Guardian, § 817. d. By Consul, § 818. e. Compulsory, § 819. f. Effect, § 820. , cxx CYCLOPAEDIC ANALYSES. CHAPTER XI.— Continued. E. PRACTICE: 1. Testimony Out of Court: a. In General, § 821. b. By Surrogate Before Whom Proceeding Pending, § 822. c. By Surrogate of Another County, § 823. d. By Clerk of Another County, § 824. e. Preservation Of, § 825. f. Reference: aa. When Ordered and Who Appointed, § 826. bb. Kinds Of, § 827. cc. Referee's Powers and Duties, § 828. dd. Hearing and Notice, § 829. ee. Referee's Report and Surrogate's Determination Thereon, § 830. ff. Termination Of, § 831. gg. Compensation, § 832. g. Commission or Letters Rogatory In General, § 833. h. Commission: aa. When Open and When Closed, § 834. bb. Form Of, § 835. cc. Interrogatories, § 836. dd. Filing ' Testimony and Commission, § 837. 2. Testimony in Court: a. Jury Trial: aa. When Proper, § 838. bb. Demand, Waiver and Notice, § 839. cc. Where Had and Order Directing, § 840. dd. Drawing the Jurors, § 841. ee. The Trial, § 842. ff. Verdict and Decision, § 843. b. Non-Jury Trial or Hearing, § 844. K.. Exceptions, §, 845. 3. Decrees and Orders: a. In General, § 846. b. Amendment, § 847. e. Opening, Vacating, Modifying, Setting Aside, and Entering as of Former Time: aa. Jurisdiction, § 848. bb. Who May Apply and When, § 849. cc. Grounds, § 850. dd. When Barred, § 851. ee. When Appeal Proper Remedy, § 852. d. Eflfect, In General, § 853. c. Docketing, § 854. f. Satisfaction, § 855. g. Enforcement: aa. Service, § 856. bb. Execution and Attachment, § 857. cc. Contempt, § 858. 4. Contempt, § 859. CYCLOPEDIC ANALYSES. cxxi CHAPTER XI. E— Continued. 5. New Trial or Hearing, § 860. 6. Motions, § 861. CHAPTEE XII. APPEALS. A. TO APPELLATE DIVISION: 1. In General, § 862. 2. How Entitled, § 863. 3. From What May Be Taken, § 864. 4. Who May Take: a. Party, § 865. b. Person Not a Party, § 866. 5. When Barred, § 867. 6. Notice Of Appeal: a. Contents, § 868. b. Service, § 869. 7. On What Heard: a. When No Testimony Taken, § 870. b. When Testimony Taken, § 871. 8. Undertaking On Appeal: a. When Needed, § 872. b. Requisites Of, § 873. c. Who May Prosecute, § 874. 9. Power of Appellate Division On Appeal: a. To Decide Questions of Fact, § 875. b. To Receive Testimony or Evidence and Appoint Referee, § 876. c. On Appeal From Determination Opening, Vacating, Modifying, Setting Aside, Entering as of Former Time a Decree or Order; or Granting New Trial, § 877. d. To Review Surrogate's Discretion, § 878. e. To Reverse, Modify or Aifirm: aa. In General, § 879. bb. To Reverse, § 880. ; cc. To Modify, or Affirm, § 881. 10. Proceedings On Order On Appeal, § 882. 11. Effect of Appeal: a. In General, § 883. b. From Decree Granting Letters or Admitting Will, § 884. c. From Decree or Order of Commitment, § 885. d. From Decree to Pay, Distribute, Deposit, Deliver or For Esecutian, § 886. e. From Decree Revoking, Removing, Suspending, etc., § 887. 12. Argument of Appeal, § 888. , . B. TO COURT OF APPEALS: 1. Jurisdiction, § 889. ; 2. How Entitled, § 890. cxxii CYCLOPEDIC ANALYSES. CHAPTER XII. B— Continued. 3. From What May Be Taken, § 891. 4. Who May Take, § 892. 5. When Barred, § 893. 6. Notice of Appeal : J : ' ] , a. Contents, § 894. b. Service, § 895. c. On What Heard, § 896. 7. Undertaking On Appeal, § 897. 8. Proceedings on Order On Appeal, § 898. 9. Effect Of Appeal, § 899. CHAPTEE XIII. COSTS. A. IN SURROGATE'S COURT: 1. What Are and Taxation, § 900. 2. By Whom or Whence Payable, § 901. 3. To Whom Awarded, § 902. 4. On Order, § 903. 5. On Decree: ii. In Any Proceeding: To Petitioner, § 904. b. In Uncontested Proceeding, § 9fl5. c. In Contested Proceeding, § 906. 6. To Special Guardian, § 907. B. IN OTHER COURTS: 1. On Appeal: a. To Appellate Division, § 908. b. To Court of Appeals, § 909. 2. On Reference, § 910. . 3. Security for Costs in Actions By and Against Representatives, § 911. 4. In Action by Representative, § 912. 5. In Action Against Representative, § 913. CHAPTEE XIV. MISCELLANEOUS MATTEES. (PEOBATE OF HEIESHIP; ATTOENEYS' LIEN; MONEYS PAID INTO COUET; OFFICEES, PLACES, . . EEOOEDS, SEALS, ETC., OF SUEEOGATES' COUETS.) A. PROBATE OF HEIRSHIP: 1. Surrogate's Jurisdiction, § 914. 2. Petition, § 915. 3. Citation, § 916. 4. Hearing and Decree, § 917. CYCLOPEDIC ANALYSES. exxiii CHAPTER XIV.— Continued. B. ATTORNEYS' LIEN, § 918. C. MONEYS PAID INTO COURT: 1. When So Paid; and To Whom, § 919. 2. Custody and Management, § 920. 3. Effect on Payor's Liability, § 921. 4. How Many Paid Into Court Gotten Out, § 922. D. OFFICERS, PLACES, RECORDS, SEALS, ETC., OF SURROGATES' COURTS: 1. The Surrogate: a. In General, § 923. b. Disqualification, § 924. c. Substitute: aa. In General, § 925. bb. In New York County, § 926. cc. In Kings County, § 927. dd. In Bronx County, § 928. ee. In Other Counties, § 929. d. Proof of Substitute's Authority, § 930. e. Compensation of Surrogate and Substitute, § 931. f. Sm-rogate's Liability, § 932. g. Surrogates' Seals, § 933. h. Surrogates' Books, § 934. i. Filing and Preserving Papers, § 935. j. Listing and Publication of Appraiser's, etc., § 936. 2. The Surrogate's Court: a. When Open and Held, § 937. b. Clerks, § 938. c. Court Officers, etc., § 939. NEW YORK ESTATES AND SURROGATES CHAPTER I. INTRODUCTORY: DEATH, DOMICIL, MARRIAaB, LEGITIMACY, ADOPTION AND ALIENAGE. A. Death: 1. General Effect of, § 1. 2. Proof of, § 2. 3. Presumption' of, § 3. 4. Presumption of Time of, § 4. 5. Presumption of Survivorship, § 5. 6. Presumption of. Testate or Intestate, § 6. 7. Presumption of. With or Without Issue, § 7. B: Domicil: 1. In General, § 8. 2. Of Woman, § 9. 3. Of Infant, § 10. 4. Of Incompetent, § 11, 5. 0/ Soldier, § 12. C Marriage: 1. Jot General, § 13. 2. After Divorce, § 14. ZJ. Legitimacy : 1. TFfcat iaw Determines, § 15. 2. Preswmp^iow o/, § 16. 3. By Natural Parents' Marriage, § 17. 4. Children of Bigamous Marriage, § 18. E. Adoption: 1. Definition, § 19. 2. Tf/so* iaw Determines, § 20, 3. Manner of: ■ a. In General, § 21. b. Appearance and Examination of Parties Interested: aa. Wfeeji Miwor is Under 18, § 22. bb. When Infant is 18 or Over, § 23. cc. When Major is Adopted, § 24, c. Instrument of Adoption, % 25. d. The Consent, § 26. e. The Order, § 27. ■ 4:. Proof 0f,% 28. 5. Efect o/; a,. On Adopted Person, § 29. b. On Adopting Person, § 30. N. Y. E. & S.— 1. NEW YORK ESTATES AND SURROGATES § 1 E. — continued. 6. Abrogation of: a. Jurisdiction, § 31. b. Manner of: aa. Adoption from Individual, § 32. bb. From Institution, § 33. F. Alienage and _ fiiti^sensMp : ,..,,,,■,., . ;1, In General, § 34. , ■'•, ' ' .' , - 2. Of Married Woman, § 35. 3. Of Infant, § 36. § 1. Death: General Effect of. — Death takes away the deceased's ability to manage his property and care for his children. If society didjiiot see to the management of his property and the: care of his children, his property, when he diedj would be scattered, and his children would be left without protection. If the children be under twenty-one j'ears of age, they are considered by the law not to be able to care for themselves; and are called "infants;" By the law a decedent's property is conserved for those who may be entitled to it; and his children are watched over until they shall have be- come discreet enough to care for themselves.^ In the belief that a man should l^e able to dispose of his prop- erty and the custody of his infant children after death, so long^^ as such disposition be not harmful to others or such children, it may be generally stated that the law permits any competent person to make a statement to become effective after his death as to who shall have his property and who shall cate fbr his infant children. This statement is called a "will;" and he who makes it is named, a testator; and is said to have died "testate." ' A disposition in a will of real property is known as a "devise ;" while a disposition in a will of jaersonal property is kno.\j'n as a "bequest" or 'legacy."' The person designated in a will to receive a disposition of real property is called a "devisee;" while a person so designated to receive a disposition of personal property is called a '-'legatee." The person appointed in a will to see to it that the testator's pi;opertj' shall go to those entitled to it is named an "executor ;" and the person empowered by a will to care for the person and property of the testator's infant children is named a "testamentary guard- ian." ^ril■...oU,^ ', ■■^..■'. -■■' '■-'-■^- ■ ■< ' ■ , If a person fail by will to dispose. of his property or the custody of his infant children,' he is said to have died "intestate" and is called an "intestate." Instead of allowing an intestate decedent's property to be appropriated and his children to be cared for by whomsoever may be able to appropriate the property or secure 1 See generally Bolton v. Schriever, 135 N. Y. 65, 18 L.R.A. 242 31 N E. 1001 (1892). , . , 2 § 2 • INTRODUCTORY custody of the children, the law provides who shall take the prop- erty and care for the children as it thinks the average man would wish his property to go and as it thinks best' for the children that they should be cared for. The person designated by law to receive an intestate decedent's real property is called an "heir-at-law;"^ while a person so designated to receive an intestate decedent's per- sonal property is called a "next-of-kin" or "distributee." The Statute prescribing the people to receive the real property of an intestate is known as the "Statute of Descents;" while the legal pronouncernent of who shall take the personal property of an intestate is referred to as the "Statute of Distributions." Land "descends" to an heir; while personalty is "distributed" to a next- of-kin. The person appointed by law to see to it that an intes- tate's personal property shall gO' to those entitled to it is named an "administrator," and such an one has, in general, Iio power over an -intestate's realty, title to which, on his death, is at once transferred to or "vested" in his heirs-at-law. The person empow- ered by law to care for the person and property of an intestate's infant children is named a "guardian." § 2. Id.: Proof of. — As death is the basis of all devolution of property and of all statutory provisions relating to guardianship of the person and property of , infant children of the decedent, it must be established in some way in order that the law may be set in, motion. The death spoken of is physical, and not civil death.. One sentenced to imprisonment in a State prison for life, though civilly dead, is not , dead so as to cause his realty to descend to his heirs.^ The Surrogate cannot grant; adrQinistratlon on the estate of one sentenced to, and in State prison for life, because the "decedent" on whose estate the Surrogate can grant administra- tion is one bodily: and not civilly dead.* When death can be sworn to because of personal knowledge of its Occurrence the difficulty of establishing it is obviated. ITheire is no proof or evidence of death adduced bya petition alleging death on information and belief, without giving any reasons for the allegation.* An allegation of death on information and belief in a petition is not sufficient proof of death to warrant grant of administration, although it is col,6r- able proof and not objectionable except on appeal." . It is when there is no physical evidence of death that proof of it is some- times hard to adduce. To help this state of affairs the law presumes * Avery v. EviSrett, 36 Hun, 6 *Roderigas v. East River Savings (1885), 3 R. S., 6th ed., 994, § 40, Institution, 76 N. Y. 316, 32 Am. aff'd 110 N. Y. 317, 1 L.RA. 264, Rep. 309 (1879)— application for ad- 6 Am. St. Rep. 368; 18 N. E. 148. ministration. » Matter of ZepH, 50 Hun, 523 " sJjeldon v. Wright, 7 Barb. 39 . (1888), or 3 Supp. 560. ' (1849), affi'd 5 N. Y. 497. 3 NEW YORK ESTATES AND SUEEOGATES § 3 death under certain circumstances indicative of its probable occur- rence. . ■ § 3. Id.: Presumption of. — At common law absence for. seven years is loosely said to raise a presumption of deatb.* It seems that the presumption of death, more properly defined, is "that, in the failure of proof to the contrary^ a person shall be, taken to be dead, when such person has been absent seven years and not heard from." ' The preS;Ump.tion of death after seven years' absence arises, however, only if the absence be without any intelligence of the absentee by those who would be likely to hear from him and without any evidence that he is actually alive.* To justify the presumption the departure must ha.ve been: under such cirr cumstances as to indicate that the disappeared person would com- municate with relatives or those near to him; and reasonable and diligent inquiry as to his whereabouts at the last place at which he was known to be alive must have been made.* Cases illustrat- ing what facts and circumstances warrant the presumption of death are collected in the note." The presumption of death after seven years is not so arbitrary that the period may not! be abridged on * EuofE V. The Greenpoint Savings entitle the one next tb him as kin Bank, 40 Misc. 549 (1903), or 82 to a decedent, to administration). Supp. 881. [Matter of Barr, 38 Misc. 355, 77 Generally on presumption of death Supp. 935 (1902).] from absence see note in L.E.A. One is presumed dead who has been 1915B, 729. absent and unheard from for over '' Matter of Matthews, 75 Misc. 449 14 years, , and who would be imr (1912), or 136 Supp. 636. pelled by strong motives of afEee- ' Matter of Sullivan, 51 Hun, 378 tion, family ties and hope of pecuni- (1889), or 4 Supp. 59. aty gain (because of a continuing 'Dunn V. Travis, 56 A. D. 317 contingent interest in an estate) to (1900), or 67 Supp. 743. , ' make himself known. ;[Karstens "A statement made by a decedent v. Karstens, 20, Misc. 248 (1897),; or 17 years before his death on making 45 Supp. 966, aff'd 29 A. D. 229, a deposit in a savings' bank that he 45 Supp. 966, or 51 Supp. 795.] had nearer next of Mn than those The presumption of death — ^though claiming administration oh his estate not 6t the time of death — ^from the prevents the issue of letters to the lack of word for seven years since latter when there is no evidence that the disappearance of a person not the former had been sought anywhere heard from by those if any who and the only testimony given shows would naturally hear of the absentee, that no inquiry has been made at the warrants the grant of administration, last known place of the decedent's on the givittg of a bond in twice the residence. [Matter of "White, 31 Misc. value of the estate, on the estate of 484 (1900), or 65 Supp. 567.] one once residing in the county, who One who went West 34 years since, was a single woman of dissipated of whom nothing has been h?ard dur- habits and feeble; health, and who, ing the 34 years, despite the efforts has not been heard of for 16 years, of counsel to obtain news of biro, [Matter of Smith, 77 Misc. 76 will be presuined dead (^o as to (19l2), or 136. Supp. 825.] § 3 INTRODUCTORY proof of special circumstances tending to show earlier death." "Cases of disappearance and long absence supply a basis for the The presumption is justified of the not been heard from by anyone for death of one who has been absent for ten years. [Matter of Nolting, 43 43 years; was dissipated and un- Hun, 456 (1887).] healthy; was 30 years old when last A finding of death is justified when heard of; knew of the existence of the subject of the inquiry mysterious- property in which he would in the ly disappeared 29 years before the natural course of events have had finding; no news has been had in the a share (and part of the income of interim of the subject by those who which he had received) ; had been the ordinarily would be likely to hear subject of rumors as to his death of such news, and diligent search for the which members of his family had subject 22 years before the finding heard ; had been searched for by such of death (because money was then members at the city of his last known left him by another) was unsuccess- residence; and had been advertised ful. [Matter of Sanford, 100 A. D. there for 3 years. (In such case a 479 (1905), or 91 Supp. 706.] purchaser on partition was compelled On necessity of inquiry to raise to take.) [McNulty v. Mitchell, 41 presumption of death from seven Misc. 293 (1903), or 84 Supp. 89.] years' absence, see notes in 2 L.R.A. A person's disappearance without (N.S.) 809, 28 L.R.A.(N.S.) 178. any supposition other than the word The presumption is that one is that he intends to commit suicide re- dead who diskppeared after being suits in the presumption of his death for 10 years continuously with the after the expiration of seven years, only family with which she had been [Matter of Losee, 119 A. D. 107, 104 since coming to this country; who Supp. 1132 (1907).] left everything save wearing appar- An unexplained disappearance f ol- el ; who has been unheard of for over lowed by a lapse of 18 years with- seven years by those who would nat- out any trace of the absentee after urally hear from her and who have inquiry in every quarter where there thoroughly searched for her; and who was any likelihood of finding a clue would be 73 years old if living at as to the absentee's , whereabouts is the time the question of her legal sufficient to warrant a presumption death arises. [Matter of Benjamin, of death, even though the absentee 155 A. D. 233 (1913), or 139 Supp. was accustomed to be away for irreg- 1091.] ular periods without disclosing his One not heard from or seen in 8 whereabouts, provided he used always years, who has not answered adver- to return to his usual abode. [Matter tisements in newspapers of the city of Wagener, 143 A. D. 286 (1911), where he was last heard of, may or 128 Supp. 164.] warrantedly be presumed dead. [Est. The death of a man is sufficiently of Schwartz, N. Y. L. J., Nov. 27, proved to authorize, grant of admin- 1914 (N. Y. Surr.)] istration of his estate to the public A woman of 34, in good health, administrator when he was educated, seen in another state 6 years after industrious and sober till he lost his her disappearance, but not thereafter wife; then became dissipated ; was heard from for over 7 years, will attacked with delirium tremens, the not be held proven dead in order morning after, left home with the to authorize grant of administration expressed intent to commit suicide; of her estate. [Matter of Jones, 70 went toward the dock; left a savings Misc. 154 (1910), or 128 Supp. 477.] deposit of $150; left a sister in a "Czech v. Bean, 35 Misc. 729 foreign country who had regularly (1901), or 72 Supp. 402. heard from him previously; and has One will be held dead who was 5 NEW YORK ESTATES AND SURROGATES §§ 4, 5 conclusion of death only where the proof defines a place from which the person could disappear." ^* The same certainty as to the pre- sumption of death is not required in determining upon the appoint- ment of a temporary administrator; as in deciding upon the grant of administration in chiefj beciausei the office of the temporary administrator is to collect and preserve the assets rather than to distribute them." § 4. Id.: Presumption of Time of. — In the absence of any epe^ cific determination by: a court as to the date of death, it will ordi- narily be assumed to be at the date of the decree adjudging death.^* The presumption of continueii hfe is iiot overcome by the presunip- tion of death till seven years have elapsed since: the disappearance, unheard of since, of the absentee. ^^ The grant of administration of an estate is no adjudication of the titne of the decedent's death, e. g., one claiming as next of kinthe share' of infants in a parti- tion action (deposited with the State, Treasurer because of the infants' disappearance) who had disappeared over seven years before they would have become 21, must prove that they did not die till after attaining their majority, as, the deposit remains realty till then." , . , ' , , § 5. Id.: Presumption of Survivorship. — There is no legal pre- sumption either that there was a survivor, or that there was a particular survivor." There is no presumption- of survivorship in the case of persons who die by common disaster: proof must be made; but if there be no satisfactory proof, their property is dis- last seen two years back, proceeding tion of death is set forth ia note in toward a househoat (which he owned L.R.A.1915B, 749.- and in which he was aeeustonaed to ^* Czech v. Bean, 36 Misc. 729 sleep) on a stormy night when- the (1901), or 72 Supp. 402; Matter of rain fell and a high tide was running Jones, 70 Misc. 154 (1910), or 128 out, the road to which was by planks, Supp. 477. from the shore to a scow between; the "Matter of Loseei, 46 Misc. 363, shore and the houseboat, and 80 feet 94 Supp. 1082 (1905), aff'd 119 A. from the latter, and' whose trousers D. 107, or 104 Supp. 966. were found next morning hanging in The presmhption as to the timie the scow : the rules applicable to the of death of one presumed to be dead presumption of death after an un- after seven years' absence, unheard explained absence do not apply when of, is discussed in notes in 26 L.R.A. there is a fatal danger in prospect. (N.S.) 294;- L.R.A.1915B, 756. [Matter of Miller, 67 Misc. 660, '^^jiiurphy v. Metropolitan Life 124 Supp. 825 (1910).] Ins. Co., :92' Misc. 479, 155 Supp. As to abridgment of time necessary 1062 (1915), life insurance policy to raise presumption of death, see payment, note in L.R.A.1915B, 744. i« Williams v. Post, 158 A. D. 818 18 In re Fulton, N. Y. L. J., Nov. (1913), C. C. P. § 751, or 143 Supp. 14, 1914 (King's Surr.) 1027. The place from which absence must ^^ Newell v. Nichols, 75 N. Y. 78, be shown in order to raise presump- 31 Am. Rep. 424 (1898). §§ 6-8 INTRODUCTORY posed of as if their deaths had happened at the same time — not because of the presumption of simultaneous death but because of the absence of evidence or presumption to the contrary.^' In the absence of all proof of the fact there is no presumption of survivor- ship or simultaneous death at common law ; and no Statute in this State changes this rule.^^ Although the unexplained absence of one for 25 years may admit the presumption of his death, yet it does not admit the presumption of his death before another who died within 7 years after the one was heard from, as such one could not be presumed dead till those seven years had passed.*" § 6. Id.: Presumption of, Testate or Intestate. — It will be pre- sumed that an unmarried man last heard of by his relatives when 50 years old, of somewhat dissipated habits, who had been an inmate of an inebriate asylum, largely dependent on his relatives for support, who expressed desire to enter a hospital when last heard of, letters to whom for years past were returned by the post- master with the statement they had not been called for and that the addressee was dead and buried,, died intestate.^ § 7. Id. : Presumption of, With or Without Issue.— Death of a person who was unmarried at the time of his disappearance 37 years before, without any word from him after, in spite of search and inquiry, not only is presumed; but his death without issue is also presumed.* B. DOMICIL. § 8. Domicil and Residence: In General.^ — The determination of the domicil and residence of a decedent is vital: the devolution of his property, the probate of his will, the administration of his estate are all dependent upon the proper ascertainment of his domi- cil and residence. The two terms "domicil" and "residence" are not synonymous. "Domicil" is a more inclusive term than "resi- dence" and includes, in addition to mere physical presence in a particular locality, proof of a, positive or presumptive intention to constitute that locality the dweller's permanent abiding place.* "Residence means living in a particular locality, but domicil means living in that locality with intent to make it a fixed and permanent " Matter of Mclnnes, 119 A. D. * Jacobs v. Fowler, 135 A. D. 713, 440 (1907), or 104 Supp. 147. / 119 Supp. 647 (1909). 19 Matter of Fowles, 95 Misc. 48. « Barson v. MuUigan, 191 N. Y. The presumption of survivorship 306, 16 L.R.A.(N.S.) 151, 84 N. E. among those who perish in a com- 75 (1908), 21 years old when dis- mon calamity is discussed in note in appeared. 51 L.R.A. 863. s Harry v. Dodge, 66 Misc. 302, 2» Matter of Davenport, 37 Misc. 123 Supp. 37 (1910). 455 (1902), or 75 Supp. 934. 7 NEW YORK ESTATES' AND SURROGATES § 8 abode. Residence simply requires bodily presence as an inhabitant in a given place, , while domicil requires bodily presence in that place and also an intent to make it one's domicil." * "To estab- lish a residence requires a less perma,nent abode than to give a domicil, or even to create an inhabitance." ^ It must be 'presumed that residence is where domicil is unless there is proof that resi- dence is at a place other than domicil.^ "A person who has a residence and domicil in this state, and departs as a traveler for business or pleasure in another country, dogs not by his absence acquire a residence, or reside in that country. He must while so absent at least take up his temporary abode at some particular place with the intent of making it his home while so absent, and actu- ally reside there. . . . The residence of a party is presumed to be where his domicil is, though he may be temporarily absent, until some facts are shown tO' change the presumption, or to justify a finding that he has taken up another residence elsewhere." ' A judgment rendered by a court of competent jurisdiction in a sister state, which adjudicates the domicil of a party to it, is binding on the question of domicil in the courts of this state in which the question arises.* For the purpose of succession a decedent's domi- cil is presumed to be that of his origin, on the assumption of its Con- tinuance, until there is shown not only a change of residence but an intent to abandon the old and acquire a new domicil, as the dece- dent's sole domicil, i. e., there must be both residence in, and intent to a,dopt ihe, new pla,ce of ;"esidenc^ as the decadent's sole domicil,' The length of a resijdence in a new domicil is quite * Matter of Neweomb, 192 N. Y. 1115, it was said: "For the pur- 238, 84 N. E. 950 (1908). pose of Succfeeding ' to property ' ^ Bell V. Pierce, 51 N. Y. 12 rights a perison (a) must have a (1872). domicil somewhere; (b) that he can ^Ball V. Randall, 87 Misc. 194, have but one; (c) that the domicil 149 Supp. 595 (1914). of origin is presumed to continue ''Hart v. Kip, 148 N. Y. 306, 4^ until a new one is acquired (cita- N. E. 712 (1896). tioil), and (d) that the burden of On going to another state, county proof rests upon the party alleging or district to teach school, or preach a change of dpmicil." as afiEeeting a change of domicil or In Matter of Wise, 84 Misc. 663 residence, see note in 22 L.R.A. (1914), or 146 Supp. 7,89, it. was (N.S.) 778. , ; said: "A mS'ii's domicil' of origin or * Matter of Bakh, 93 Misc. 419, a dpinicil of choice, once established, 156 Supp. 1006 (1916), U. • S. is presumptively retained until it is Const., art. IV. § 1. shpwn affirmatively that it was either 8 Dupuy V. Wurtz, 53 N. Y. 5S6 abandoned or changed by him. In (1873), fatter of Neweomb, supra, order to constitute such change both in U. S. Trust Co. v. Hart, 150 animus, or intent, and factum, resi- A. D. 413, 135 Supp: 81 (19l2), denee must concur." modified, 208 N. Y. 617, 102 N. E. As to whether domicil is lost by 8 § 8 INTRODUCTORY immaterial to the acquisition of it so long as the intent to abandon the old and remain in the new doinicil is bona fide and is con- summated by an adequate act." Both the fact of abode and the intent to remain indefinitely must be proven to constitute domicil ; and if they are proven, a change for health's sake is immaterial.^^ Less proof is needed of change of domicil from one state to another abandonment mthout intention of re- him as resident in such other county, turning before acquiring a new one, while assignments by him stated his see note, in 40 L.R.A,(N,S.) 986. residence as in the first county and On gaining a new domicil or resi- affidavits by him given with the as- dence before abandoning occupation signments stated Ms residence in the of old residence by purchasing or hir- second, but his permanent residence ing property in new locality with in- in the first county, is a resident of tention of establishing permanent res- the first county. [Matter of Brandt, idence there, see note in 33 L.R.A, 30 Misc. 14 (1899), or 62 Supp. 997.] (N.S.) 766. Residence for a quarter of a een- ^^ Plant V. Harrison, 36 Misc. 649 tury and over in a foreign country, (1902), or 74 Supp. 411; Matter of while important to be considered, is Newcomb, supra. not controlling in determining dom- One who died when 80 years old icil; because domicil may exist in a county other than the one in without actual residence (though which he had always lived, but in never without intention). [U. S. which he had summered for 25 years. Trust Co. v. Hart, 150 A. D. 413, 135 wiU not be held to have died a resi- Supp. 81 (1912), mod'f'd 208 N. Y. dent of the latter county when the 617, 102 N. E. 1115.] only evidence of intent to abandon One bom in Virginia in 1836, re- the former county is his request and mained there till 1859, then came to pa)Tnent for an addition to his house New York and there lived till 1880, in the summer county; his removal of then went to Paris, where he had a his money from a bank in his original residence, and stayed tiR death in county to a bank in his summer conn- about 1910, returning to America ty; his expressed purpose of spend- from time to, time, held domiciled in ing the rest of his days in the summer New York under these facts : voted county; his will drawn by an attor- in New York as late as 1877; buried ney stating his residence as in the in American cemetery in Paris where summer county; and his living in the he had a plot; kept about all proper- summer county for 5 months before ty (except house and furniture in his death. [Matter of Golden, 40 Paris) in New York; all wills in Misc. 544, 82 Supp. 990 (1903).] English according to New York stat- One who resided always in one ute except one in Erench as to Paris county tiU he went to another because realty; never took steps to change his wife, by reason of his intemper- American citizenship ; in last will and ance, refused to allow him in their codicil described himself as "citizen home, and stayed in such other coun- of the U. S. of A. temporarily resid- ty for 13 months ; when his wife (who ing in the City of Paris, Erance," etc. till then had been willing to welcome [U. S. Trust Co. v. Hart, supra.] him home if he had reformed) began n Hegeman v. Fox, 31 Barb. 475 suit for a separation, and then left (I860). On change of domicil as such other county and wandered affected by removal for benefit of about for 3 months till he returned to health see note in 9 L.R.A.(N.S.) it, staying there 3 months till he died, 1159. though his typewritten will described NEW YORK ESTATES AND/ SURROGATES § 9 than from one country to another.** If a decedent moved out of the State to another State and actually lived there, even for a short time, with the intention of making the other State his per- manent residence, it is immaterial, for the purpose of establishing his domicil there, that he lived in his son's instead of his own home." Prima /ffci?; evidence of domicil in this state is presented by showing that the decedent left or emigrated from his own couij- try, and located and was at work in New York.** , One described in his will and deed of trust as a resident of another state is none ■ the less a resident of New York wheii he regaided his ■ home as being the place in New York where he lived the greater part of the year and had sworn, he resided., there in order to escape jury service in such other, state.*^ Declarations as to a change of -resi- dence are riot of much weight if not accompanied by some act looking toward an actual change of abode with an intent to remain in the place to which the change is made : .there must be both an abandonment of the former residence and the taking of another.** § 9. Id.: Of Woman. — Very little evidence of intent to take up a new domicil is necessary in 'the case of an unmarried woman or widow who continuously resides in another place far from her domicil of origin." The . domicil of a wife; is that pf her hus- band except when ' she lives apart from him under, a decree of separation, or when she is entitled by reason of his conduct to a limited or absolute divorce,' or when they have agreed that she may select heir own domicil, or,., in limited cases^ , when higdonduct ** Hegeman v. Foz, supra; Matter other State) except for a 4 months' of Newcomb, supra. stay with his daughter in this State A woman whose domicil of origin 5 years before jhis death; who stated was New York i and who went to his intention to return whence he Europe with her ihusband and, stayed came on leaving his daughter; who there 13 years till he died; and then lived in 2 or ,3; places during his ab- retumedi to New York and qftaljfled sence from the State; ancj who, both as her husband's executrix and after in his application and examination H months returned to Europe and for membership in a fraternal order, stayed there 18 years till,, she died, stated his, residence in another State, remains a resident of New York, as is a nonresident.: [Est. of Adriance. the, domicil of origin is not changed N. Y. L. J. Dee.; 24, 1915 (N. Y. by length of residence elsewhere un- Surr.).] less there be an inteat to, abandon the *' Matter of Wise, 165 A. D. 420, old and acquire , a i new domicil. 150 Supp. 782 (1914), — ^flve months. [Matter of Cleveland, 28 Misc. 369 ** Kennedy v. Ryall, 67 N. Y. 379 (1899), or 59 Supp,.985.] , (1876). , One who abandoned, his wife and *^ MacKenzie v. MacKenzie, 3 family in this State i 27 years before Misc. 200 (1893), or 23 Supp. 270." his death in another State ; who was *° Matter of Jones, 19 Misc, 80, 43 only heard from by several portals Supp. 965 (1896). to his daughter (beginning 8 years ," Matter of Balch, 93 Misc. 419, before his death, and sent from an- 156 Supp. 1006 (1916), dictum. 10 § 9 INTRODUCTORY is unreasonable." It has been held on the one hand, that a wife may acquire a domicil separate from that of her husband so as to permit of the probate of her will in a county other than the one in which her husband resides;^' and, on the other, that a married woman's domicil remains that of her husband for pro- .bate purposes when she has no grounds for legal separation or di- vorce from him.^" Although the domicil of the husband is prima facie that of the wife, yet when the wife is wrongfully abandoned by, or for good and sufficient reason leaves her husband, she may acquire a separate domicil, and a domicil thereafter acquired by him is not her prima facie domicil.* A Separation lasting 26 years, although not evidenced by a judicial- decree, is effective in affording a wife the right to acquire an independent domicil.^ A wife maintaining in New York her home from her independent means without contribution from her husband from whom she has not legally but by agreement been separated for 12 years, he living in another state, is domiciled in New York so as to have her will probated here and to leave her property to whom she wishes.' When a married woman's de facto domicil has for years before her death been about where her trunk was, while her matrimonial domicil (i. e., her husband's domicil), her domicil of origin and her domicil of choice were apparently in a county of this- state, the Surrogate of that county maj^ probate her will, wherever she may have died.* A woman born in a foreign land and living there till she reached maturity is domiciled of origin there; and the facts that she came to this state and stayed here for at least 38 years, marrying a resident of, this state, and finally returning to the land of her domicil of origin two years before she died there, do not change her domicil.^ A native woman of the United States who married an Englishman and lived in England till her husband's death and her own death, is a resident of England even though, four years after husband's death, and ten years before her own, she made a declaration before the United States Consul in London that she then considered herself a resident of New York 1* Harry v. Dodge, 66 Misc. 302, * Waeker v. "Wacker, 154 A. D. 123 Supp. 37 (1910)'. 495, 139 Supp.;78 (1913). On domicil of wife for purposes of * Matter of Gropby, 85 Misc. 679 divorce, see notes in 16 L.R.A. 497, (1914), or 148 Supp. 1045— transfer ^9 L.R.A. 146, 38 L.R.A.(N.S.) 297. tax. Domicil as affecting capacity, of ^Matter of riorance, 54 Hun, 328 married woman to contract is set (1889), or 7 Supp. 578, dism'd 119 forth in note in 57 L.R.A. 513. N. Y. 661, 23 N. E. 1151. " Matter of Walker, 54 Misc. 177 * Matter of McElwaine, 77 Misc. (1907), or 105 Supp. 890. 317 (1912), or 137 Supp. 681. 80 Matter ofBushbey, 59 Misc. 317. « Matter of Connell, 92 Misc. 324, 112 Supp. 262 (1908). 155 Supp. 397 (1915). 11 NEW YOEK ESTATES AND SUBROGATES §§ 10, 11 and deseribed hergelf in her will and codicil: as of' the City. of New York, in the absence of actually acquiring a residence in New York after such declaration.^ .■■■ § IQ. Id.:, Of Infant^The domicil of an infant lafter the death of both parents is that of the last surviying pareintJ An infant cannot change, its own domicil.* Ordinarily the domicil of a . guardian is that of his ward ailso;: so that if a surviving parent appoint as his infant child's guardian a resident of another state who takes, the infant to reside with him there till the infant's death, the infant's estate passes under the laws of such: other state.^ On the death in another state of the surviving parent of an infant appointed the guardian of his person, who had, removed to such state with the child and there. resided, till death, the infant's domi- cil is in such other state." An infant is a resident of a foreign, and not of this state, when his parents were residents of the foreign state; his mother died; he then lived 3 years with his grandparent in the foreign state; his father then sent him to this state; his father then died; his father's will, appointing a relative resident of such foreign state guardian for the infant, was rejected in the foreign state; such relative then sent him; to this state to grand- parents; and all his property is in the foreign state.** §11. Id.: Of Incompetent. — The appointment by the Supreme Court of a committee for an incompetent determines for the Surro- gate's Court the incompetent's place of residence ; because^ the appli- cation for such appointment must by statute be made in the judi- cial district where the incbmpetent resides.** One discharged from an asylum and permitted to go at large is presumed sui jutis and capable of selecting his own domicil.** The domicil of one who becomes incompetent before resuming his domicil of origin accord- ing to his expressed intent, and who is taken by his committee to the latter 's domicil, which coincides with the incompetent's dom- icil of origin, will be held to be in the place where his domicil originated, so far, at; least, as to consider administration elsewhere granted ancillary, when the courts of his domicil of origin have taken jurisdiction of his estate.** *Est. of Kingsford, N. T. L. J., ** Matter of Application of Dan- Oct. 25, 1915, N. Y. Surr. iels, 71 Hun, : 195, 24 Supp. 506 ''Matter of Kiernan, 38 Misc. 394, (1893), holding surrogate in this 77 Supp. 924 (1902). state could not appoint guardian foi^ ' Matter of Riernan, supra. infant. ' Matter of Kiernan, supra. *^ Matter' of Hyland, 24 Misc. 357 Generally on the domicil of an in- (1898), or 53 Supp. 717. infant, see comprehensive note in 49 ** Matter of Balch, 93 Misc. 419, L.R.A.(N.S.) 860. 156 Supp. 1006 (1916). *« Matter of Wildberger,. 25 Misc. ** Matter of Robitaille, 78 Misc. 582, 55 Supp. 1135 (1898). 108 (1912), or 138 Supp. 391. 12 §§ 12, 13 INTRODUCTORY § 12. Id.: Of Soldier. — By showing a breaking up by a soldier of his home in his domicil of choice, removal to a U. S. military station in federal territory, continued residence there, and expres- sion of intent while there of always continuing to live in some specific federal territory, loss of the domicil of choice is esiab- hshed." C. Marriage. § 13. Marriage.: In General. — The necessity of proving the mar- riage relation between a man and a woman arises in various con- tingencies: to establish her dower right, her right to share in and administer his estate, the legitimacy of their children, etc. Mar- riage is a civil contract to which the consent of parties capable in law of making a contract is essential.'® By the general rule of law, a marriage valid or void by the lex, loci is valid or void everywhere : and in the absence of proof to the contrary it will be assumed that the requisites to constitute marriage are the same in another country as in our own.'' When, one person is free to enter into the matri- monial relation and does so in good faith; while the other paiiy is incapable of entering into the relation because a former wife or husband is living; but after such impediment is removed the parties continue the relation and cohabitation, and are recognized by rela- tives, friends and society as husband and wife:— frpm the death of the former wife or husband they are actually husband and wife, although the only ceremonial marriage between them was per- formed before the death of the former husband or wife of one of them.'' A woman is a widow of a deceased man so as to be entitled to administration of his estate. when, after living for years with his legal wife by whom he., had children, the maji separated from her by agreement in writing and lived openly and continuously " Matter of Grant, 83 Misc. 257 " Matter of Wells, 123 A. D. 79, (1913), or 144 Supp., 5,67. ' 108 Supp. 164 (190§), afPd 194 N. On jurisdiction of the estate of an T. 548, 87 N. E. 1129,— for fifteen inmate of a soldier's home, see note years (ten after and five before death in 39 L.R.A.(N.S.) 586. of husband's prior, insane, wife) '* Cheney V. Arnold, 15 N. Y. 346, parties lived together as husband and 69 Am- Dec. 609 (1857) ; Dom. Rels. wife. L. § 10 ; Clayton v. Wardell, 4 N. Y. The inf eifence or presumption of 230 (1850). marriage from continued cohabitation " Hynes v. McDermott, 91 N. Y. following the removal of an iirjpedi- 451, 43' Am. Rep. 677 (1883). ment is discussed in note in L.R.A. On the law governing validity of a 1915E, 91. marriage, see notes in 57 L.R.A: 155; On the effect of removal of imped- 11 L.R.A. (N.S.) 1082; 17 L.R.A. iment to marriage after parties have (N.S.) 800; 26 L.R.A.(N.S.) 179; 28 begun cohabitation, see also note in L.R.A.(N.S.) 753; 43 L.R.A.(N.S.) 3' L.R.A. (N.S.) 244. 355. 13 NEW YORK ESTATES AND SURROGATES §13 both before and after her death, with the-applieant for; letters, by whom he had a child before his legal wife's death; and when, he ■ declared and acknowledged, verbally and in writing, that the appli- cant was his wife; and they conducted; themselves and were reputed ■ and received among neighbors as husband and wife; though no marriage ceremony was ever performed between them.^^ "The cohabitation, apparently decent and orderly, of two persons oppo- site in sex, raises a presumption of more or less strength that they have been duly married. While such cohabitation does hot con- stitute marriage it tends 'to prove that a marriage contract has been entered into by the parties. Where, however, the cohabitation is illicit in its origin, the presumption is that it so continues until a change in its character is shown by acts and circumstances strong- ly indicating thait the connection has become matrimonial. It is sufficient if the acts aind declarations of the parties, their reputa- tion as married people and the circumstances surrounding them in their daily lives, naturally lead to the conclusion that although they began to live together as man and mistress, they finally agreed to live together as husband and wife. ' A present agreement between competent parties to take each other for husband and wife consti- tutes a valid marriage, even if not in the presence' of witnesses. Such a rnarriagfe may be proved by showing actual ' cohabitation as husband and wife, acknowledgment, declarations, conduct, re- pute, reception ainong neighbors and relatives and the like, and where the intercourse was illicit at first, but was not then accom- panied by any of the evidences of marriage, and Subsequently it assumes a matrimoiiial character, and is surrounded by the evi- dences of a valid ndarriagte', above named, a question of fact arises for the determination of the jury;" ^ "It makes out a prima facie case sufficient for the administration and devolution of property, that there was either a formal marriag;e which cannot otherwise be proved, or that the parties agreed per verba de presenti to a marriage which: was followed by cohaljitatioh^" ^ Proof, of matri- monial cohabitation, declarations of the parties, and reputatipn, that they are man and wife is sufficient upon which to found a presumption of marriage^* An admission by a woman that she was not married to a man destroys, any prepuniption of niarriage ^'Matter of Terwilliger) 63 MiSe. The presumptions ,geiierally aris- 479, 116 Supp. 424 (1909). ing from a marriage ceremony are 8" Gall V. Gall, 114 N. Y. 109, set forth in notes in 14 L.R. A. 540; <1889); Hynes v. McDermott, 91 N. 16 L.R.A.(N.S.) ,98; 34L.R.A.,(N.S.) Y. 451 (1883) ; Badger v. Badger, 88 940 ; L.R.A.1915E, 186. N. Y. 546 (1882). -^Betsinger v. Chapman, 88 N. Y. ^Chamberlain v. Chamberlain!,'. 71 487 (1882) — in determining if widow i N. Y. 423 (1877). takes portion of estate. , ,V 14 § 13 INTRODUCTORY which might arise from their cohabitation as husband and wife.' As a relation illicit in its origin is presumed to continue,* wifehood is not proved by evidence of concubinage with a testator ; cohabita- tion with him after divorce from his wife; holding out by him of the woman as his wife prior to the divorce ; and promise by him to marry her when the divorce should have been obtained.* A marriage may be found between a decedent married to a man only 4 years after her husband's disappearance, if she lived with him for 11 years openly and with the professed relation of man and wife, as there is no meretricious relation in the beginning.* Chapter 339, Laws of 1901, effective January 1, 1902, invalidat- ed any marriage in New York state not solemnized in the mode prescribed by statute, or pursuant to the regulations of a religious society to which the parties belonged, i. e., rendered a "common- law" marriage invalid. But by chapter 742, Laws of 1907, effec- tive January 1, 1908, the inhibition placed by chapter 339, Laws of 1901, on common-law marriages was removed (by repeal). In Matter of Hinman, 147 A. D. 452 (1911), it was said, obiter but deliberately (p. 456), that "the repeal shows the changed public policy of the state and that the legislature became satisfied that the provision making marriages void unless performed in a particular manner was against the public good and public morals and that the repeal was intended to and did make common-law marriages valid in this state." The court of appeals (206 N. Y. 653) af- firmed this decision ; but expressly refused to pass upon the dictum of the appellate division just quoted. (See also, Summo v. Snare & Triest Co. 166 A. D. 425—1915.) In Matter of Smith, 74 Misc. 11 (1911), the same view, as to the validity since January 1, 1908, of common-law marriages, was taken as in the opinion of the ap- pellate division in the Hinman Case. The statement of the law as to common-law marriages, given in the last paragraph, is therefore thought applicable to such marriages since 1908, as well as before 1902. On the general characteristics and The admissibility of declaration of validity of a common-law marriage, persons since deceased against his or see note in L.R;A.1-915B, 8. her own marriage is considered in The sufficiency of. words and con- note in 15 L.RiA.(N.S.) 190. duct to constitute a comnion-Jaw mar- * Foster v. Hawley, 8 Hun, 68 riage or of circumstantial evidence to (1876) ; Badger v. Badger, 88 N. Y. imply marriage is set forth in note in 546, 42 Am. Rep. 263 (1882) ; Clay- L.R.A.1915E, 60, , ton v. WardeU, 4 N. Y. 230 i(1850). ? Matter ■ of Morris, 92, Misc. 630, * Foster v. Hawley, supra, 157 Supp. 472 (1915), .question ^ Fordham v. Gouv^meur Village, ■whether woman was widow so as to 5 A. D. 565 (1896)., or 39 Supp. 396. be entitled to administration on dcr ceased husband's estate. 15 NEW YORK ESTATES: AND SUEEOGATES §§ 13^16 § 14. Id.: After Divorce. — One claiming to be the widow^ of a decedent who had gotten a, divorce from her in New. York can only prove her claim by showing either, a ceremonial: or noncere- monial marriage with the decedent after the divorce in some state other than New York.'' Cohabitation .between parties divorced in New York, begun here before the statute ; allowed marriage of divorced persons inter sese, though continued after, such statute was passed, being illicit in its inception, is presumed to continue so throughout its extent.* D. Legitimacy. § 15. Legitimacy: What Law Determines. — At common law a personal status of legitimacy acquired under foreign laws does not confer the right of inheritance in New Y'ork; ® but an illegiti- mate child, become legitimate by subsequent intermarriage of his parents, or otherwise, under the laws of the jurisdiction where the marriage took place and the parents, were doiniciled, is thereafter legitimate everywhere, and can inherit, notwithstanding he was born in another country.'" ' , § 16. Id.: Presumption of.^Ijegitimacy is alwa,ys presumed.^' Not only is it true that, if necessary to siipport the legality of a second marriage contracted while one of the parties' former spouse still lived, it will be presumed in the absence of evidence to the contrary that the first marriage had been legally dissolved, but it is also true that, when the fact of a marriage, especially of a ceremonial marriage, followed by long cohabitation of the parties and the birth of children is established, it is incumbent on whoever assails the validity of the marriage and the legitimacy of the, chil- dren to prove his case by evidence instead of presumptions (e. g., the presumption that, the prior wife being alive when the marriage in question was contracted, its illicit nJature continued) , even if that involve proof of a negative. ■'^ ' Matter of Gerlaeh, 29 Misc. 90, 60 569 (1908) ; Matter of Leask, 197 N. Supp. 574 (1899). Y. 193, 27 L.R.A.(N.S.) 1158, 134 ;,*■ Matter of Eiehl^r,i 84 Misc. 667, Am. St. Eep. 866, 90 N. E. 652, 18 146 Supp. 846 (1914), Dom. Eels. L. Ann. Cas. 516 (1910) ; and Miller, v. § , 8. ; , Miller, 91 N. Y. 316, 43 Am. Rep. 669 The conflict of laws as to marriage (1883);'' Bates v. Virolet, 33 A. D. of divorced persons and the effect of 436 (1898),' or 53 Supp. 893, and 34 statutes forbidding the remtirriage of SH'pp. 629. the guilty party after divorce: are On the conflict of laws as to legiti- discussed in notes in 24 L.E.A. 831; macy see note in 65 L.R.A. 177. 57 L.E.A. 169; 43 L.E.A. (N.S.) 358. "Matter of Matthews, 153 N. Y. 9 BoUermann v. Blake, 24 Hun, 187 443, 47 N. E. 901 (1897). (1881) ; aff'd 94 N. Y. 624. i«Matter of Meehan, 150A. D. 681 i» Olmsted v. Olmsted, 190 N. Y. (1912), or 135 Supp. 723. 458, 123 Am. St. Bep. 585, 83 N. E. 16 §§ 17, 18 INTRODUCTORY § 17. Legitimation: By Parents' Marriage. — Intermarriage of an illegitimate child's parents legitimates the child for all purposes and entitles the child to all the rights and privileges of a legitimate child, except that an estate or interest vested or trust created before the marriage of such parents is not divested or affected by such child's legitimation.'* Subsequent intermarriage of the parents of illegitimate children only legitimates the latter when such mar- riage can be lawfully made and not when polygamous, incestuous or prohibited by law ; e. g., if a resident of New York there mar- ries, but later goes to another state, marries again, and has children, and then goes to another state, gets a divorce from his wife in New York on grounds not recognized there, serves her with process by publication, and gets judgment by default, and then remarries his second consort in such state, the children by the second consort are not held legitimate in New York." § 18. Legitimacy: Children of Bigamous Marriage. — Of old, children of a second marriage of a man entered into by' him with knowledge that his wife was living but without such knowledge by his consort, born while the former wife is living, were illegitimate.'* Now, a child of a ceremonial marriage void because one parent had a husband or wife living when such marriage took place is the legitimate child of the parent who had no husband or wife then living if the latter parent was ignorant of the former mar- riage of the child's other parfent.'® A marriage will be presumed between a man and woman united by a ceremony of marriage void because, of the fact that the man had a wife living at the time of its celebration if they live together and cohabit after the wife's death for 13 years ; so as to make legitimate a child born to them during the life of the prior wife." The children of one, prohib- ited by a divorce decree in New York from marrying, who married validly in another state and had such children by that marriage, are capable of taking imder the New York law by will on the death of their parent in New York.*' Children born of a man and woman cohabiting in this country while he had a wife in anothei' country of; whom she did not know are legitimate so as to inherit fronci " Don). Rels. L. § 24. " O'Gara v. Eisenlohr, 38 N. Y. On the law governing the effect of 296 (1868). subsequent marriage to legitimate " Barker v. Barker, 92 Misc. 390, children previously bom^ see fiote in 156 Supp. 194 (1915), C. C. P. § 65 L.R.A. 178. 1745. " Olmsted v. Olmsted, 190 N. Y. " Matter of gehmidt, 42 Misc. 463 458, 123 Am. St. Rep. 585, 83 N. E.' (1904), or 87 Supp. 428, Dom. Rels. 569 (1908). ■ ■ L. § 18. On the legitimation of offspring of i' Moore v. Hegeman, 92 N. Y. 521, adulterous relations, see note in 1 44 Am. Rep. 408 (1883). L.R.A.(N.S.) 773. N. Y. E. & S.— -2. 17 NEW YORK ESTATES AND SURROGATES |§ 19, 20 their parents in New Yorfc State if after the former wife's death he and such woman cohabit as husband and wife, acknowledged and declared the relationship, conducted themselves as husband and wife, and were so reputed among and received by their neighbors.'^ A child of the marriage of a man and woman contracted while the one of them fully believed that the former marriage of the other, whose spouse was living, had been annulled and dissolved, and in good faith by such one,, is legitimated and entitled to suc- ceed to the innocent spouse's real or personal estate on the annul- ment of the rqarriage.^" The rule now seems to be that if a man and woman marry while the former spouse : of one of them is alive and the other (or unmarried) one entered into the marriage in good faith and with a full belief either (a) that the former hus- band or wife of the other was dead, or (b) that such former mar- riage had been annulled or dissolved, or (c) without any knowledge of the -former marriage, a^ohild of the last marriage is the legiti- rnate child 6f the parent who was legally competent to marry, ir- respective of whether or not a, judgment has been entered annulling the marriage and legitimatizing 'the child. ^ ' E. Adoption. § 19. Adoption: Definition. — "Adoption is the taking of a stran- ger in the. blood as one's , own child." ^ "Adoption is the legal act whereby an adult tak^ a minor into the relation of child and thereby acquires the. rights and, incurs the respoijisibilities of parent in respect to suph minor." ' The. statutory and judicial definitions of adoption as the, taking of a minor into the relation of child are not strictly correct; because, !;an fidult unmarried person, 'or an adult husband, or .wife, or. ;an adul]t,. husband, and $is adult ^ife together, may adopt, a person of the age, of twenty-one years and upivards." * "A voluntary adoption is ajay other than that of an indigent child, or. one ;wii,q is a.public charge from an orphan asylum or charitable ipstitutipii;" j^ >. ,,§20. Id.: /What Law I)etei;mines.-;-GJiil(ire^ of foreign adoption whqse rights are to be adjudicated upon in New York are regarded as though duly adopted under the laws of New Yprk; because the "Townsend v. Van Buskirk, 33 , .^Ketteli v. Baxter, 50 Misc. 428 Misc. 287 (1900), or 68 Supp. 512, (1906), pr 100 Supp. 529. L. 1895, e. 531. ' ... ' Dom. Rels. L., § 110, as amended 2»BayKs v. Baylis, 207 N. Y. 446, L. 1915, c. 352. 101 N. E. 176 (1913), and amend- *Dom. Rels. L., §,110, as amended ment by e. 444, L..1913, to C. C. L. 1915, c, 352. , P. § 1745. B Dom. Rels. L.,' § ilO. : ^Baylis V. Baylis, supra, ai>d,Bar- >. .... ker V. Barker, supra, and G. C. P. .§ ... 1745. 13 § 21 INTRODUCTORY logal status of an adopted child, acquired by the law of adoption, is by the law of comity recognized in every other jurisdiction in which it becomes material in determining the right to take prop- erty by will or inheritance.* "The legal status of an adopted child, acquired by the law of adoption, is by the law of comity recognized in every other jurisdiction where such status becomes material in determining the right to take property by will or inheritance." ' Proof of the lawful adoption of. a person of the age of 21 years and upwards, or of a minor, made before the statute, may be re- ceived in evidence ; and any such adoption is not abrogated by the enactment of the statute but has the effect of an adoption under it.* § 21. Id.: Manner of, In General. — ^Adoption and the rights ema- nating therefrom exist solely by virtue of statute; and to bring one within the class of adopted children, proof must be made of adoption in the manner prescribed by statute.® The Surrogate and County Judge have concurrent jurisdiction of adoption proceedings ; but the former cannot review adoption proceedings had before the latter." All proceedings in adoption must, be before the County Judge or Surrogate of the County where the foster parent or par- ents reside, or, if the foster parent or parents dp not reside in this state, in the County where the minor resides." The fact of illegit- imacy must in no case appear upon the record of an adoption.'^ An adult (a) unmarried person, or (b) husband, or (c) wife, or (d) husband and wife together, may adopt (1) a person of the age of 21 years and upwards, or (2) a minor in pursuance of the law; but not otherwise." If the adoption is from an orphan asylum or charitable institution,, incorporated for the care of orphan, friend- less or destitute children, the foster parents must, when practicable, * Matter of Least, 197 N. Y. 193, agreements executed without authori- 27 L.R.A.(N.S.) 1158, 134 Am. St. ty of law," Matter of Thome, 155 Rep. 866, 90 N. B. 652, 18 Ann. Gas. N. Y. 140 (1898) ; Garroll v. Collins, 516(1910). 6 A. D. 106, (1896), or 40 Supp. 54. '' N. Y. Life Ins. & T. Co. v. Viele, » Dom. Rels. L., § 110, as amend'd 161 N. Y. 11 (1^99)'. L.'l9i5, e. 352: "and a child shall not As to whether tewns "child," hereafter be adopted except in pur- "ehildren," "issue,?' etc;, in a wiU in- suance" of "this article." Matter of elude adopted children, see note in Thome, 155 N. Y. 140, 49 N. E. 661 27 L.R.A.,(N.S.) 1158. . (1898); U. S. Trust Co. v. Hoyt, 150 « Dom. Rels.: L., § 110, as amended A. D. 621 (1912), or 135 Supp^ 849. L. 1915, c. 352. The first general »« Matter of Ward, 59 Misc. 328, statutory provision for adoption in 112 N. Y. Supp. 282 (1908); , ; New York was ,c. 830, L. 1873, con- " Dom. Rels. L., § 112, as amend'd taining such a saving clause, which, L. 1916,;c. 453. ... however, "refers to those forms of ^^ Dom. Rels. L., § 113, as amend'd adoption theretofore , existing , by vir- L. 1916, c. 453. ; =- tue of special statutory enactments," '^ Dpm. Rels. :,L., § 110, as .amend'd and not to "the legalizing of private L. 1915, e. 352. 19 NEW YORK ESTATES AND SUBROGATES § 22 be persons I of the same religious faith ^s the blood parents.^* The steps to *bring about adoption are discussed under these headings: (A) Appearance and Examination of Parties in Interest; (B) In- strument of Adoption ; (C) Order of Adoption. § 22. Id. : Appearance and Examination, When Minor Under 18.^ — These persons must appear and be examined in proceedings for the adoption from individuals oi minovs under 18 years of age: (1) The foster parent or parents ; ^' (2) The person to be adopted; *® (3) The foster parent's husband or wife, unless they are law- fully separated or unless they jointly adopt the mihor; " - (4) The parents or surviving parent of a legitimate child and the mother of an illegitimate child," except (a) that the written ackhowleged consent (to adoption) of a parent residing' in some other country, state or county, certified as conveyances are required to be certified to entitle them to record in a county in this state, is equivalent to such parent's ajppearance," and (b)' that the con- sent, and consequently the a-ppearance, of a parent need not be had when such parent (aa) has abandoned the child,' (bb) is deprived of civil rights',, (cc) is divorced because qf his or her adultery or cruelty, ( Real Prop. L. § 200. er, 87 N. Y. 153 (1882), holding that 34 §§ 30, 40 INTESTATE SUCCESSION she enters upon the lands assigned to her for her dower, or com- mences an action for her dower.^^ § 39. Id.: When Is Widow. — The subject of marriage has pre- viously been discussed in general; ^ and reference is made to that discussion. The points here treated relate to marriage and divorce solely as they affect dower. A woman married to a man whose wife has absented herself from him for five successive years without being known to him to be living within that time is not entitled to dower in real estate owned by him at the date of the entry of a judgment in an action between them annulling their marriage because the wife is living.^ § 40. Id. : Of What Dowable, In General. — The widow is endowed only of, but of all lands whereof her husband was seised of an estate of inheritance ; * unless the lands were taken by act of sover- eignty for the public benefit against the husband's consent.* There- fore, death of the husband, whose estate is in remainder or rever- sion, before the tenant of the preceding life estate, defeats his wid- ow's dower; * even though the husband has purchased the life-ten- ant's interest.^ A conveyance in fee to the husband determinable upon his dying without issue living at the time of his death, if he so die, cuts off the wife's dower ; '' as does his failure to perform cer- tain conditions which are the sole consideration of a conveyance to him.* By the same token, she is not endowed of lands held by her husband under a contract of purchase when his interest is aliened ''I Real Prop. L. § 201, which also * Moore v. The Mayor, 8 N. Y. 110, allows enlargement of time under 59 Am. Dec. 473 (1853); Simon v. certain circumstances. Canaday, 53 N. Y. 298, 13 Am. Rep. ' See § 13, 14, supra. 523(1873). * Price V. Price, 124 N. Y. 589, 12 The effect of dedication or condem- L.R.A. 359, 27 N. E. 383 (1891). nation of husband's lands to public * Real Prop. L. § 190. use upon wife's right of dower is dis- On right of dower with respect to cussed in notes in 18 L.R.A. 79; 31 improvements placed on land, see L.R.A. (N.S.) 1025. note in 3 B. R. C. 957. > Leach v. Leach, 21 Hun, 381 On the right of dower in land pur- (1880) ; Durando v. Durando, ^3 N. chased by a railroad company, see Y. 331 (1861) ; Greene v. Putnam, 1 notein 29L.R.A.(N.S.) 726.. Barb. 500 (1847); Dunham v. Os- The rights of a widow in accretions bom, 1 Paige Ch. 634 (1829) ; Tred- added to shore lands are discussed in well v. Tredwell, 86 Misc. 104 (1914). note in 58 L.R.A. 210. , ^ House v. Jackson, 50 N. Y. 161 On dower rights in property con- (1872). veyed by husband before marriage, '' Weller v. WeUer, 28 Barb. 588 see note in 48 L.R.A.(N.S.) 512. (1858). On the right to dower on avoidance ' Greene v. Reynolds, 72 Hun, 565, as against creditors of a conveyance 25 Supp. 625 (1893). of land, legal title to which is never On dower in conditional estates, in husband during coverture, see note see notes in 22 L.R.A.(N.S.) 691; 39 in 32 L.R.A.(N.S.) 103. L.R.A.(N.S.) 307. 35 NEW YORK ESTATES AND SURROGATES § 41 during coverture ; ' or of a trust estate ; " or of real estate of a part- nership of which her husband was a partner while the partnership affairs are unsettled ;^^ or of land which her husband contracted to buy during coverture but title to which he took in his brother's name to prevent dower attaching, though he paid the consideration with his own money.^* To be seized of an estate of inheritance in lands the husband must either have actual seisin or the right to actual seisin. ^^ It has been lately held that an estate of inheritance within the meaning of the Statute giving dower to a wife includes any equitable interest which is not extinguished by the death of the husband.^* Dower in a defeasible fee is lost when the fee is defeat- ed.^* A title vested in the husband, although there is no actual possession, if there be no adverse possession is sufficient seisin to give the widow dower. ^^ A husband is not so seised in fee simple either in fact or in law of land as to entitle his wife to dower in it when he has but a vested remainder in fee limited on a precedent estate for life." Dower attaches to an interest in a lease, and in a tract of land in which the husband had an interesteven though held in the name of another.^' If lands on which grass and fruits and annually planted crops grew at the time of a husband's death .had been assigned to his widow for her dower she would thereupon have become entitled to such grass, fruits and crops." § 41. Id.: In Exchanged, Mortgaged and Partnership Lands. — If a husband exchanges lands of which his wife is endowed for other lands, on his death his widow cannot have dower of both, but must make her election to be endowed out of the one or the other, i. e. out of the lands given or of those taken in exchange ; and if her election is not evidenced by the commencement, within one year after her husband's deathj of an action to recover her dower of the lands given in exchange by her husband, she is deemed to have elected to take her dower of the lands received in exchange.*" The "exchange" of lands referred to in the Statute is the common law * Bicks v. Stebbins, 3 Lans. 39 26 — dower in a pier ; Matter of Mc- (1870 ) . Kay, 5 Misc. 123 (1893) , or 25 Supp, ^^ Gomez v. Tradesmen's Bank, 4 725. Sandf. Super. Ct. 102 (1850). iS]yioriarta v. McRea, 45 Hun, 564 "Riddell V. Riddell, 85 Hun, 482, (1887), aff'd 120 N. Y. 659, 24 N. E. 33 Supp. 99 (1895) ; Dawson v. Daw- 1103. son, 10 Misc. 428, or 31 Supp. 78. " Mclntyre v. Costello, 47 Hun, "Nichols V. Park, 78 A. D. 95 289 (1888). (1903), or 79 Supp. 547, the wife "Green v. Putnam, 1 Barb. 500 and husband eventually divorced. (1847). " Phelps V. Phelps, 143 N. Y. 197. " Matter of McKay, 5 Misc. 123 "Lugar v. Lu'gar, 160 A. D. 807, (1893), or 25 Supp. 725. 146 Supp. 37 (1914). See Bedlow v. ^^Kain v. Fisher, 6 N. Y. 598 Stillweli, 91 Hun, 384, 36 Supp. 129 (1852). (1895), a£E'd 158 N. Y. 292, 53 N. E. 8» Real Property Law, § 191. 36 § 41 INTESTATE SUCCESSION exchange, viz., a mutual grant of interests, the one in consideration of the other, equal in quantity of interest not in quantity of value.^ The widow is not endowed of lands conveyed to her husband by way of mortgage unless he acquires an absolute estate therein during the marriage.* A widow is endowed of lands mortgaged by her hus- band after her marriage to him if she does not join in the mortgage ; except it be a mortgage to secure the paj'^ment of the purchase money of the lands, when she is not entitled to dower as against the pur- chase-money mortgagee or those claiming under him, although she is entitled as against every other person.' Even if a widow join in a mortgage, whether for the purchase money or not, she is entitled to dower in the surplus of the equity of redemption; because the mortgagor is regarded as the real owner of the property, while the mortgagee, until he obtains possession, is held to have only a lien or charge upon it.* So if a wife join with her husband in an abso- lute deed which was really only intended as a mortgage, the legal estate remains in her husband, and when the mortgagee deeds the lands back to her husband and takes the latter's sole mortgage, the wife is dowable in the whole of the lands.* To entitle a widow to dower in mortgaged lands she must contribute, to the extent of the interest upon one third of the principal during her life, to the pay- ment of the mortgage,* and the fact that the mortgage covered two lots, one of ivhich was assigned to her in admeasurement of her dow- er, does not relieve her of the duty of this contribution." Even though a man executes before marriage a mortgage of lands of which he is seised of an estate of inheritance, his widow is entitled to dower therein as against every person except the mortgagee and those claiming under him,* (except when her husband gave the mortgage as part of the purchase price ®) ; and to dower in the surplus of the 1 Wilcox V. Randall, 7 Barb. 633 Duryea, 45 Barb. 69 (1865) ; Denton (1850). V. Nanny, 8 Barb. 618 (1850); Van * Real Prop. L. § 195. Duyn v. Thayre, 14 Wend. 233 8 Real Prop. L. § 193; Merchants' (1835); and 19 Wend. 162 (1838); Bank v. Thomson, 55 N. Y. 7 (1873) ; Bell v. The Mayor, 10 Paige Ch. 49 Brackett v. Bailm, 50 N. Y. 8 (1872) ; (1843) ; Blydenburgh v. Northrop, 13 Stow V. Tifft, 15 Johns. 458 (1818). How. Pr. 289 (1856) ; Mills v. Van As to dower in land subject to pur- Voorhies, 20 N. Y. 412 (1859). But chase money mortgage or vendor's see Brackett v. Baum, supra. lien, see extensive note in 52 L.R.A. * Taylor v. Post, 30 Hun, 446 (N.S.) 540. (1883). On a mortgage to secure money ad- * Graham v. Linden, 50 N. Y. 547 vanced to purchase property as a (1872). purchase money rttortgagcf not subject '' Graham v. Linden, supra, to dower, see note in 40 L.R.A. (N.S.) ' Real Prop. L. § 192. 275. ^ Cunningham v. Knight, 1 Barb. 4 Real Prop. L. § 194; -Matthews v. 399 (1847). 37 NEW YORK ESTATES AND SURROGATES § 42 equity of redemption." A wife of a deceased partner has dower in the partnership realty only to the extent of the interest, if any, of her husband left in such realty on dissolution of the partnership after payment of all its debts. ^^ § 42. Id. : When Barred, In General. — A widow is barred from her right of dower in all her husband's lands: — (1) in case of a divorce dissolving the marriage contract for her misconduct;*^ (2) when an estate in real property is. conveyed either to her as the intended wife of her husband-to-be, and the latter, or to her alone, or to a person in trust for them or her alone, for the purpose of cre- ating a jointure for her, and with her assent;** (3) by any pe- cuniary provision rnade for her benefit as the intended wife of her husbandTto-be and in lieu of dower, if she assents to it;** and it is of something she can take and enjoy after the husband's death; (4) by her election to take a jointure or pecuniary provision in lieu of dower, or her failure to so elect within one year from hei' husband's death, unless her time to elect be extended.** But a judg- ment or decree confessed by or recovered against the husband, or any laches, default, covin or crime of the husband, does not preju- dice the right of his wife to her dower or jointure, or preclude her from the recovery thereof.*® Every jointure and pecuniary provi- sion in lieu of dower is forfeited by the woman for whose benefit it is made in a case in which she would forfeit her dower, viz., a divorce dissolving the marriage contract for her misconduct; and *» Denton v. Manny, 8 Barb. 618 L.B,.A.(N.S.) ,575, 34 L.R.A.(N.S.) (1850). 762, ** Hauptmann v. Hauptmann, 91 On conduct during husband's life- A. D. 197, 86 Supp. 427 (1904) ; Rid- time as an estoppel to a claim of dell V. Riddell, 85 Hun, 482, 33 Supp. dower, see note in 3 L.R.A.(N.S.) 99 (1895); Dawson v. Dawson, 10 971. Misc. 428, or 31 Supp. 78. . ■ As to effect pf fraud to estop wid- On deceased partner's, widow's ow from claiming dower, see note in right of dower in partnership land, 25 L.R.A. 573. see note in 27 L.R.A. 340. , Estoppel to assert dower by de- *^ Real Prop. L. § 196. . eeiving one acquiring title is dis- *3 Real Prop. L. § 197, , cussed in note in 48 L.R.A. (N.S.) i*Real Prop. L. § 198; Grain v. 762, 764. Cavana, 36 Barb. 410 (1862)., The power of husband or his ered- **Real Prop. L. §§ 199, 201; Akin itors to defeat dower is discussed in V. Kellogg, 119 N. Y. 441, 23 N. E. note in 18 L.R.A. 75. 1046 (1890) ; Chamberlain v. Cham- The effect of a tax sale upon in- berlain, 43 N. Y. 424 (1870) ; Mat- choate right of dower is disqussed in ter of Tisdale, 110 A. D. 857, 97 note in 24 L.R.A. (N.S.) 1294. Supp. 494 (1906). . The effect of bankruptcy upon The estoppel of a wife living apart dower rights of bankrupt's wife is from husband to claim dower as set forth in note in 26 L.R.A.(N.S.) against purchaser ignorant of rela- 1180. tionship is set forth in note in 26 ** Real Prop. L. § 203. 38 § 43 INTESTATE SUCCESSION on such forfeiture, an estate so conveyed for jointurej or a pecuniary provision so made, immediately vests in the person or legal repre- sentative of the person in whom they would have vested on the determination of her interest therein by her death.^'' § 43. Id. : When Barred, By Divorce. — The Statute provides that a decree of divorce founded upon the wife's misconduct disentitles her to dower in her husband's real estate or any part thereof." Dower is not,, therefore, barred by a decree dissolving the marriage for the adultery of the husband.^^ The provision of the Statute "was needed to cut off the inchoate dower of the wife in property of the husband acquired prior to the decree, and was useless beyond that . . . ;" because by a decree of divorce "the relation of hus- band and wife, both actual and legal, is utterly destroyed, and no future rights can thereafter spring out of or arise from it.^" " No dower right attaches to land, or an interest in land acquired by a man after a divorce from his wife which terminated the marriage re- lation.* The "misconduct" of the wife which bars her from dower is "that kind of misconduct only which our laws recognize as suf- ficient to authorize a divorce, viz., adultery," and the effect which a divorce elsewhere has on the wife's right to dower in land of the husband in this state, is determinable by the laws of this state. ^ The conviction of adultery of the wife, to bar her of dower, must be by decree or judgment in an action for divorce ; and not in any other action or way.' A finding by a referee as to a wife's adultery is not a "conviction" of adultery so as to bar her of dower.* Al- though a divorce obtained in another state by the wife from the husband does not divest her of her dower on his death in lands acquired while the marriage between them existed, it does bar of any such right in lands acquired by him after the marriage rela- tion was severed; i. e. she remains his "widow" (under the statute " Eeal Prop. L. § 202. « Pitts v. Pitts, 52 N. Y. 593 " Real Prop. L. § 196. (1873) ; Sehififer v. Pruden, 64 N. Y. 19 Wait V. Wait, 4 N. Y. 95 (1850). 47 (1876) ; Bryon v. Bryon, 134 A. «« Matter of Estate of Ensign, 103 D. 320 (1909), or 119 Supp. 41,— N. Y. 284, 57 Am. Eep. 717, 8 N. E. husband died before entry of final 544 (1886), dictum in discussing but after entry of interlocutory de- divoroed wife's right as distributee. cree of divorce in New York against * Nichols V. Park, 78 A. D. 95 wife, and wife held dowable; Reyn- (1903),or 79 Supp. 547. olds v. Reynolds, 34 Wend. 193 2 Van Cleaf v. Burns, 133 N. Y. (1840),— wife guilty of adultery but 540, 15 L.R.A. 542, 30 N. E. 661 no divorce; Cooper v. Whitney, 3 (1892),— divorce in Illinois for aban- Hill, 95 (1842), wife guilty of adul- donment; Van Barclum v. Larson, tery but no divorce. 205 N. Y. 355, 41 L.R.A.(N.S.) 219, * Schiffer v. Pruden, supra. 98 N. E. 488, Ann. Cas. 1913E, 553 (1912). 39 NEW YORK ESTATES AND SURROGATES §§ 44, 45 giving her dower) after the divorce, as to lands acquired by her Iiusband during their marriage; but not as to lands acquired by him after the divorce.* A widow is entitled to dower in lands of which her husband died seised after an interlocutory judgment but before a final judgment in an action by him against her for divorce had been entered ; because the interlocutory judgment does not dis- solve the marriage and divorce the- parties.* § 44. Id.: When Barred, By Jointure. — When the election by a woman to accept in lieu of dower realty conveyed to or for her as a jointure takes place, depends upon whether it was made before her marriage and with her assent; or after marriage either with or without her assent. If made before her marriage and with her assent, her very assent then constitutes her election; and is evi- denced, if she be of full age, by her becoming a party to the convey- ance by which it is settled; or, if she be a minor, by her joining with her father or guardian in that conveyance.'' If made before her marriage without her assent ; or after, with or without her con- sent, she must make her election whether she will take the jointure or be endowed of her husband's lands, and is not entitled to both ;' and she is deemed to have elected to take the jointure unless within one year after her husband's death she enters upon, the lands as- signed to her for her dower or commences an action for her dower.^ § 45. Id.: When Barred, By Provision Before Marriage.— When a woman's election, to acpept in lieu of dower a pecuniary provision made for her before her marriage, takes place, depends upon wheth- er it was assented to by her ; or was not assented to by her. If a pecu- niary provision made for a woman before her marriage is assented to by her, her very assent then constitutes her election; and is evi- denced, if she be of full age, by her becoming a party to the convey- ance by which it is settled; or, if she be a minor, by her joining with her father or guardiah in that conveyance.*' The assent of a woman to any pecuniary provision made for her benefit in view of her com- ing marriage, in order to bar her of dower, must be fairly obtained and will not be effective if she was deceived.** What are pecuniary * Van Blaricum v. Larson, 205 N. " Real Prop. L. § 197. T. 355, 41 L.R.A.(N.S.) 219, 98 N. 'Real Prop. L. § 199. E. 488, Ann. Gas. 1913B, 553 (1912) ; » Real Prop. L. § 201, which also Real Prop. L. § 190; Voke v. Piatt, allows enlargement Of time for elee- 48 Misc. 273, or 96 Supp. 725 tion under certain circumstances. The (contra). provision is a Statute of Limitations ■ The effect on dower of foreign di- which must be pleaded, Evans v. Ogs- vorce is set forth in notes in 15 bury, 2 A. D. 556 (1896), or 37 Supp. L.R.A. 542; 59 L.R.A. 181; 41 L.R.A. 1104. (N.S.) 219. *« Real Prop. L. § 198. ^Bryon v. Bryon, 134 A. D. 320 ** Pierce v. Pierce, 71 N. Y. 154, 27 (1909), or 119 Supp. 41. Am. Rep. 22 (1877). 40 § 46 INTESTATE SUCCESSION provisions sufficient to be in lieu of dower are described in the cases cited in the note.^^ What constitutes such election is discussed in the cases mentioned in the note." As to when a provision is such as to put her to her election, see note.^* An agreement by fiance and fiancee in view of marriage, that she shall have a stated sum with interest from his death in lieu of dower and that she receive it in full satisfaction of dower, binds her.^^ If a pecuniary provision made for a woman before her marriage is not assented to by her, she must make her election whether she will take the pecuniary provision or be endowed of her husband's land ; ^* and is deemed to have elected to take the pecuniary provision unless within one year after her husband's death she enters upon the lands assigned to her for her dower or commences an action for her dower." If the wid- ow dies before the year is up, her legal representatives may not elect for her, but may recover the provision made for her in lieu of dower. 1* § 46. Id.: When Barred, By Provision After Marriage, In Gen- eraL — ^I£ a pecuniary provision is made for a woman after her mar- riage, either with or without her assent, she must make her election whether she wiU take the pecuniary provision or be endowed of her husband's land,^' and is deemed to have elected to take the pecuniary " Jones V. Fleming, 104 N. T. 418, " Matter of Young, 27 Hun, 54 10 N. E. 693 (1887) ; Matter of Ac- (1882), aff'd 92 N. Y. 235. counting of Benson, 96 N. Y. 499, 48 On power to bar dower by ante- Am. Eep. 646 (1884) ; In the Matter nuptial agreement sufficient in equity etc., of Zahrt, 94 N. Y. 605 (1884) ; but not conforming to any of the stat- Graham v. Graham, 67 Hun, 329, 22 utory methods of barring dower, see Supp. 299 (1893) ; Matter of Est. of note in 17 L.R.A.(N.S.) 866. Smith, 1 Misc. 269 (1892), or 22 " Real Prop. L., § 199. Supp. 1067; Sanford v. Jackson, 10 "Eeal Prop. L., § 201, which also Paige Ch. 266 (1843). allows enlargement of time for elec- "Gray v. Gray, 5 A. D. 132, 39 tion under certain circumstances; Supp. 57 (1896) ; Flynn v. McDer- Akin v. KeUogg, 119 N. Y. 441, 23 mott, 102 A. D. 56 (1905), or 92 N. E. 1046 (1890); Grout v. Cooper, Supp. 1123 and 89 Supp, 506, afE'd 9 Hun, 326 (1876)— that entry bars 183N. Y. 62, 2L.R.A.(N.S.) 959, 111 from taking pecuniary provision; Am. St. Rep. 687, 75 N. E. 931, 5 Duffy v. Duffy, 70 Hun, 135, 24 Ann. Cas. 81 — action by widow to Supp. 408 (1893); Matter of Mc- have will declared invaUd and probate Kay, 5 Misc. 123 (1893), or 25 Supp. revoked not an election; Hogg v. 725. Lindridge, 151 A. D. 513, 135 Supp. " Flynn v. McDermott, 102 A. D. 928 (1912) ; Doremus v. Doremus, 66 56 (1905), or 92 Supp. ll23 and 89 Hun, 111, 21 Supp. 13 (1892). Supp. 506, aff'd 183 N. Y. 62, 2 "Matter of Tailer, 147 A. D. 741 L.R.A.(N.S.) 959, 111 Am. St. Rep. (1911), or 133 Supp. 122; afE'd 205 687, 75 N. E. 931, 5 Ann. Cas. 81, be- N. Y. 599, 98 N. E. 1116; Ferris v. quest. Ferris, 10 Misc. 320, 30 Supp. 982 i* Real Prop. L., § 199. (18&4). 41 NEW YORK ESTATES AND SURROGATES § 47 pro^dsion unless within one year after her husband's death she ent-ers upon the lands assigned to her for her dower or commences an action for her dower.'^" If the widow dies before the year is up, her legal representatives may not elect for her but may recover the provision made for her in lieu of dower.^ The committee of an incompetent widow wilL not be allowed by the Surrogate to elect on sale of the husband's realty to take a gross sum for her in lieu of her dower when: the will directs the executors to apply out of the income an amount for her use for life which exceeds the total income : as this is in fact, though not so expressed, a gift to. her of the entire income of the estate.^ § 47. Id. : When Barred, By Provision in Will.*"— To put a widow to her , election between her , dower right and a provision for her in her husband's will it must appear from the face of the will that to uphold her right both to dower and the provision would disturb other provisions of the will's manifest scheme.^ A widow is not. put to her election between her dower and a testa- mentary provision of her husband's will in her favor when the will directs his executors to distribute h.is estate as they seei fit to his widovv and children; * or when the will laequeaths her furniture and devises and bequeaths the residue of his estate to his executors to sell a,nd divide ec[ua,lly among his wife and children.^ If she be devised all her husband's lands she. may take two-thirds as pur- chaser' under the will and one-thii-d as dower. ^ If shes be devised 20 Real Prop.;L., § 201, which also in 17 L.R.A. 296.; 35 L.R.A.(N.S..). allows enlargement of time for eleo- 1210;' 49 L.R.A.(N.S.') 1108. tion under certain circumstances ; ^^ On election by widow, between Akin V. Kellogg, ,119 N. Y. 441, 23 provisions of will and other rights,: N. E. 1046 (1890) ;, Grout v. Cooper, see note in 18 L.R.A. (N.S.) 272: 9 Hun, 326 (1876)— that entry bars The conflict of laws as to election from taking pecuniary provision; between will and dower is taken up Dufty V. Dufey, 70 Hun, 135, 24 in note in 2 L.R.A. (N.S.) 459. Supp. 408 (1893) ; Matter of McKay, ^ Horstmann v. Elege, 61 A. D. 518 5 Misc. 123 (1893), or 25 Supp. 725. (1901), or 7ft Supp.; 5,9'6, aff'd 172 iFlynn V. McDermott, 102 A. D. N.i Y. 381, . 65 .N...E; 202; Lewis v. 56 (1905)., or 92 Supp. 1123 and 89 Smith, 9 N. Y. 502, 61: Am.. Dec. 706 Supp. 506— afl'd 183 N. Y: 62, '2 (1854) ; Vernon v. Vernon, 53 N. Y. L.B.A.(N.S.) 959, 111 Am. St. Rep. 351 (1873) ; Matter of Gorden, 172 687, 75 N. E. 931j 5 Ann. Gas. 81— N- Y- 25, 92 Am. St. Rep. 689, 64 N. bequest. E. 753 (1902) :;^ Matter of Gale, 83 As to. the effect on legacy in! lieu JJ'f; 686, 145 Supp. 301 (1914) ; of dower of widow's dlath during T o°^ ^''c^'t': ^^ ^'''- ^^' ^^^ period for election, see note in 2 »UPP- ^o' ^ .j/'/ . . \ -r. .'. L.R.A.(N.S.) 959. n rqrT'%7 «^^*'°?f ^ ^- °- ^* „ .. „ (1896), or 37 Supp. 71. r-.X^'^c,"^ ^^n^f^^^n.^.*^'^''- '^^'^' ^KonvaUnska v. Schlegel, 104 N. /I N. Y. Supp. 842 (1901). y. 125, 58 Am. Rgp. 494, 9 N. E. 868 On who may elect against a will on (1887). behalf of an insane widow, see notes ^ Lewis v. Smith, supra. 42 § 47 INTESTATE SUCCESSION all her husband's realty and be bequeathed all his personalty for life, she may take her dowerJ The provisions of a husband's will in favor of his widow are so repugnant to her dower right that they cannot stand together when she is given one- third of the net income of all his realty, the life use of any of his houses and the household furniture and jewelry, while the executors are given full powers needed to carry out such provisions as trustees for the widow,' or when the will's provisions indicate that the power intended to be given the executors by the testator was a power to transfer, in case of sale, the whole title to his realty free from any claim of dower." A devise of lands in trust for a widow will not exclude her from her dower right in them unless there is an obvious incompatibility between the actual assignment of dower and the complete operation of the trust, so that the trust requires the pos- session and control by the trustee of the entire lands involved, e. g., when they must make repairs or improvements, insure buildings, mortgage or lease, ete.^* A devise by a husband of all his realty to a trustee, together with its possession and the right to receive and collect its rents and the duty to make all necessary repairs, pay all insurance premiums, taxes and assessments, implies that his testa- mentary provision for his widow is in lieu of dower.^^ A devise by a husband's will of his real and personal property to trustees, to pay the net rents and profits to his widow during her natural life or until.her remarriage, and "in case she remarries I hereby limit her to the dower right granted to her by lalw," entitles her to both dower and the testamentary provision." A gift of the whole of a hus- band's estate to his widow so long as she remains such, and of one- third if she remarries, is inconsistent with her claim to dower and puts her to her election.^* A widow is put to her election between a testamentary provision of the income for life of a fund and so much of the principal of it as might be needed for her comfortable sup- port, not staled to be in lieu of dower, and her dower right, when the will shows a purpose that the realty be held in trust till the testa- tor's youngest grandchild become of age, and the trustee was re- quired to take possession of and manage the whole of the realty.^* A bequest, specific,; of insurance moneys, with the devise and be- quest of the residuary estate to trustees to invest and pay the in- '' Lewis V. Smith, supra, ' " Matter of Gale, 83 Misc. 686, 145 9 Tobias v. Ketchum, 32 N. Y. 319 Supp. 301 (1914). (1865). 13 Est. of Knabe, N. Y. L. J., Feb. "Vernon v. Vernon, 53 N. Y. 351 2, 1916 (N. Y. Surr.). ^^^Ill'^^ *T7 ■ XT TT T T " Jurgens V. Rogge, 16 Misc. 100 "Matter of logman, N. Y L. J., (iggB), or 37 Supp. 249. Dee. 31, 1915, King Surr.; Est. of "^ " ^^ lop a -n ne Foster, 93 Misc. 400, 156 Supp. 1005 ^/^ Ortb v Haggerty, 126 A. D. 118 Qyj^yv' (1908), or 110 Supp. 551. 43 NEW YOBK, ESTATES AND. SURROGATES § 48 come to the widow for life, resulting in equitable conversion as of testator's .death, and to divide on her deatji, is inconsistent with the widow's dower right and puts her to her election.^^ The statutory provisions for a widow are dower, quarantine, exemptions and a distributive share of personal estate ; and a devise by a man, leaving adult children and devisees, beside his widow, to her, of specific, lands in lieu not only of dower but "also;of all statutory allowances" bars her, if she elects to take under the will, from dower, quaran- tine and exemptions, but not from a distributive share of the per- sonal estate.^'' A devise and bequest to a widow "in lieu and bar of her dower, and of all claims she may have upon or against iny estate as my widow" bars her from claiming any share under the statute of distributions to any legacies which may lapse through the death of the legatees before the testator.^' § 48. Id.: Electing to Take Under Will, Effect.— Once a widow has elected to take a testamentary provision made by her husband for her in lieu of dower she cannot retract the election ; for example, if she accepts a devise to her of land subject to a mortgage at her husband's death in l:3u of dower, and the mortgage is foreclosed after her husband's death and her election, with the result that a deficiency judgment is taken against the mortgagor's estate, she can- not claim from the estate the value of the property, at her husband's death ; *^ or, if she accepts a pecuniary provision and asks equity, more than a year after her husband's death, to relieve her of it on the grounds that she did not know the condition of the estate till the executor accounted (which he had not done till more than a year after the husband's death) and that the executor ha,d fraudulently represented to her she would be better off if she took the testamen- tary provision: because the requirement that she elect within one year of her husband's death has the effect of a staitute of limitations and she is chargeable with informing herself so as to make her elec- tion.^" If a provision in a will be accepted in lieu of dower it is doubtful if the widow has a lien, for a deficiency, on real estate de- vised to others ; ^ but her provision is entitled to priority over gener- al legacies.^ A widow, also appointed an executrix, among other executors, of her husband's will, waives hiar claim to dower in land "Matter of Taller, 147 A. D. 741 18, N. E. 852 (1888), 1 R. S. 749, (1911), or 133 Supp. 122, aff'd 205 84. N. Y. 599, 98 N. E. 1110. «" Akin v. Kellogg, 119 N. Y. 441, "Matter of Mersereani, 38 Misc. 23 N. E. 1046 (1890). 208, 77 Supp. 329 (1902). ^ Sanford v. Sanford, 4 Hun, 753 18 Matter of Benson, 96 N. Y. 499, (1875), 48 Am. Rep. 646 (1884). » Matter of McKay, 5 Misc. 123 "Meyer v. Cahen, 111 N. Y. 270, (1893), or 25 Supp. 725. 44 § 49 INTESTATE SUCCESSION which she and the other executors contracted to sell, insofar that she must look to the purchase-money as a substitute for the land.' § 49. Id.: Wife's Release. — ^Release of dower ca,n, strictly speak- ing, be made only after the husband's death. Release of a wife's inchoate right of dower or jointure, however, can be made in the husband's life-time; but only with her assent, evidenced by her ac- knowledgment thereof in the manner required by law to pass the contingent right of dower of a married woman.* The common and effective way to do this is to have the wife join in a deed or convey- ance by her husband of the lands.^ A deed by the wife while an infant does not bar her of dower,* and a deed to the husband is of no avail ; " or an agreement with him.' To deprive a woman of her dower there must be some agreement to which she was a party.^ A woman who is divorced from her husband, whether such divorce be absolute or limited, or granted in his or her favor, by any court of competent jurisdiction, may release to him, by an instrument in writing sufHcient to pass title to real estate, her inchoate right of dower in any specific real property theretofore owned by him, or generally in all such real property, and such as he shall thereafter acquire.^" A married woman of full age may release her inchoate right of dower in real property by attorneiy in fact in any case in which she can personally release it." The purpose of enabling such a release to be given was to prevent attachment of dower to lands bought by the divorced husband after the divorce, whenever and for whatever granted ; but it seems superfluous now,^^ except in the case of a limited diyorce.^' A widow's written consent to a sale of realty in which she has dower, and to accept a gross sum in satisfac- tion of her estate or interest, bars her action to have her dower admeasured." » Bostwick V. Beach, 103 N. Y. 414, » Meixel v. Meixel, 161 A. D. 518, 9 N. E. 41 (1886). 146 Supp. 587 (1914). «Keal Prop. L., § 203. i^Real Prop. L., § 206. B Elmendorf v. Lockwood, 57 N. T. " Real Prop. L., § 207t 322 (1874) ; Witthaus v. Schack, 105 On release of inchoate right of N. Y. 332, 11 N. E. 649 (1887) ; Lea dower by attorney under power given v^ Timken, 10 A. D. 213 (1896), or by married woman, see note in 16 41 Supp. 979. L.R.A. 209. The effect of husband's insanity on ** Von Blaricum v. Larson, 205 N. wife's power to convey or bar dower Y. 355, 41 L.R.A.(N.S.) 219, 98 N. is taken up in note in 34 L.R.A. 224. E. 488, Ann. Cas. 1913E, 653. « Cunningham v. Kjiight, 1 Barb. ^^ Schlesinger v. Klinger, 112 A. 399 (1847). D. 853, 98 Supp. 545 (1906). 'Grain v. Cavana, 36 Barb. 410 "Hopkins v. Cameron, 34 Misc. (1862). 688, 70 Supp. 1027 (1901). 8Guidet V. Brown, 3 Abb. N. C. 295 (1877) — article of separation. 45 NEW YORK ESTATES AND SUBROGATES § 50 § 50. Curtesy: In General. — The Statute of Descents provides that it "does not affect . . . tenancy by the curtesy. . . ." ^* Tenancy by the curtesy was a common-law estate and has been adopted in this State without modification.*^ It consists in the right of a surviving husband of a deceased intestate wife to receive during his life the rents, issues and profits of any land of which she died seised, subject to the charge, placed thereon by law, for debts contracted by her during her lifetime." If the land is sold to pay such debts of the wife, the husband's interest is the same as to the surplus, after such payment and discharge of the expenses of the sale, as it would have been in any portion of the land not re- quired for such payment and not sold.** Four things, are essential to tenancy by the curtesy: (1) Marriage; (2) Issue of the mar- riage; (3) Death of the wife; and (4) Seisin by the wife, during marriage, of the premises." Marriage. Marriage and what is sufficient to prove it has previ- ously been discussed; '" and reference is made to such discussion for a determination of the sufficiency of the marriage of a man to a woman in order to entitle him to curtesy in her lands. Birth of a living child during coverture is an essential to the right of curtesy.* The delivery of the child alive by the Ccesariau operation after the mother's death is not sufficient.* Wife's Death. The subject of death and its proof has been pre- viously discussed ; * and reference is made to suet discussion for a determination of the sufficieriicy of proof of the death of a woman . in order to entitle her husband to curtesy in her real estate. Seisin. "In order to entitle a husband to curtesy the wife must have had actual seisin of the lands during coverture. Constructive ** Decedent Estate Law, § 80, subd. *' Arrowsmith v. Arrowsmith, su- 4; Carr v. Anderson, 6 A. D. 6 pra. (1896), or 39 Supp. 746. "Ferguson v. Tweedy, 43 N. T. *^ Carr v. Anderson, supra; Leach 543 (1870) ; Valentine v. Hutchin- V. Leach, 21 Hun, 381 (1880). son, 43 Misc. 314 (1904), or 88 Supp. " Matter of Kirk v. Richardson, 32 862. Hun, 434 (1884) ; Zimmerman v. *" See §§ 13, 14, supra. Schoenfeldt, 3 Hun, 692 (1875) ; Ar- * Hatfield v. Sneden, 54 N. Y. 280 rowsmith v. Arrowsmith, 8 Hun, 606 (1873) ; Coit: v. Grey, 25 Hun, 444 (1875). (1881). On husband's right of curtesy in The effect upon curtesy of death property conveyed by him to his wife, of issue before seisin by wife is dis- see notes in 69 L.R.A. 375j 23 L.B.A. cussed in note in 20 L.R.A.(N.S.) .(N.S.) 776. 925. On curtesy in equity of redemption, ^ Dictum in Marsellis v. Thalhimer, see note in 20 L.B.A.(N.S.) 454. 2 Paige Ch- 35 (1830). On the right of husband as tenant ' See § 1-7, supra, by curtesy initiate, see note in L.R.A. 1915D, 996. 46 § 50 INTESTATE SUCCESSION possession of the wife or a bare right to possess will not support the estate (citations). Actual seisin or actual possession, as distin- guished from constructive possession or possession in law, has been defined to be one based upon an actual entry on the land and one which requires or gives an occupation as a demonstrative thing." * Seisin by the wife, though not actual, i. e., though there be no entry, is sufficient to give the husband curtesy, when it consists of the pos- session of a lessee- reserving rent; * or when it consists of constructive seisin of wild, unoccupied or waste lands ; ' or when it consists of re- covery in an ejectuient; ' or when it consists of taking under a deed and there is no adverse holding at the time.* If a wife has an undivided interest only in the realty, subject to her mother's dower in it, and she has deeded her interest to her mother for life so that the latter may have a life estate in the whole of the realty, the re- sult is that, if the wife dies before her mother, curtesy exists in all the realty except the , one-third dower interest.' If a wife claims land by devise or ^descent and dies before entry, the husband does not have. his curtesy.^" Seisin in the wife sufficient to give the hus- band curtesy does. not exist when there is an outstanding life estate so that the wife's estate is in reversion or remainder, unless the par- ticular estate be ended during coverture,*^ or the life estate is created' by some one other than an ancestor.*^ Seisin sufficient, to give cur- tesy exists when there is a devise in fee to the wife subject to defeat or curtailment by the happening of an event. ^* A daughter is not seised of so much of realty descended from her intestate father which was assigned to the father's widow as his doweress and occu- pied by her as such till after the daughter's death, so as to entitle the latter's husband to curtesy therein." A husband whose cover- ture begins after and ends during a possession of the land adverse to * Carr v. Anderson, 6 A. D. 6 ^^ Pergiison v. Tweedy, 43 N. Y. (1896), or 39 Supp. 746; Baker v. 543 (1870); Collins v. Russell, 96 Oakwood, 49 Hun, 416, 3 Supp. 570 A. D. 136 (1904), or 89 Supp. 414, (1888) ; Graham v. Luddington, 19 afl'd 184 N. Y. 74, 112 Am. St. Rep. Hun, 246 (1879) ; Hatfield v. Sneden, 569, 76 N. E. 731, 6 Ann. Cas. 92. 54 N. Y. 280 (1,873); Gibbs v. Esty, »« Valentine vi Hutchinson, supra. 22 Hun, 266 (1880). " Hatfield v. Sneden, 54 N. Y. 280 * Ferguson v. Tweedy, 43 N. Y. (1873) — to A and her heirs forever, 543 (1870), dictum. in event of return to country of B, to ^Ferguson v. Tweedy, supra, die- A and B equally; if A never had turn. children or child living at testator's ' Ferguson v. Tweedy, supra, die- death, if B should not return, to A turn. in fee. ' Ferguson y. Tweedy, supra,' die- On the right of curtesy in a de- tum. terminable fee, see note in 20 L.R.A. 9 Valentine v. Hutchinson, 43 Misc. (N.S.) 858. , 314 (1904), or 88 Supp. 862. , ; "Gibbs v. Esty, supra. ^^ Carr v. Anderson, supra. 47 NEW YORK ESTATES 1.ND SURROGATES § 51 his wife's had begun, acquires no right of cur1«sy therein.*' Wheth- er adverse possession began before or after issue of the marriage, if after the marriage, is immaterial to the right of curtesy.*® While the Married Women's Acts " excluded the husband during life from control of, or interference with his wife's real and personal estate, and gave to her alone the power of disposition by deed or will, yet they left the husband the right of curtesy in her real property, in so much as remained at her death undisposed of." When land is sold in which one has an estate as tenant by the cur- tesy, the purchase-money represents the land, and the tenant by the curtesy is in any event entitled to interest on such money for his life. 19 § 51. Descent: In General. — "The general principle pervading the statute of descents is that there shall be equality between the children of the intestate and the descendants of deceased children per stirpes." ^° When a decedent owning real property fails to pro- vide by will who shall have it on his death, resort must be had to the Statute of Descents to determine who shaH take it.* Those who take an intestate decedent's realty under the Statute of Descents are known as the deceased's "heirs-at-law" or "heirs." "The primary 'meaning in the law of the word 'heirs' is the persons related to one by blood, who would take his real estate if he died intestate." * There is a presumption that' no person dies without leaving heirs, but not in all cases that they are competent to inherit; although, if there is nothing to show that. the heirs presumably left were incap- able of inheriting, it will doubtless be assumed that not only were there heirs left but that they were capable of inheriting.' "By the term 'ancestor,' when used in respect to the succession to real estate, is meant a predecessor in estate, and is applied to every person from whom property might be inherited. It embraces both lineals and collaterals." * For example, brothers from whom a sister inherits 18 Baker V. Oakwood, 49 Hun, 416, (1868) ; Matter of Winne, 2 Lans. 21 3 Supp. 570 (1888). (1870). *8 Jackson v. Johnson, 5 Cow. 74 "Matter of Petition of Camp, 126 (1825). N. Y. 377, 27 N. E. 799 (1891). On adverse possession against ten- ^^ Beebe v. Esterbrook, 79 N. Y.. ant by ciirtesy and remaindermani ^S ^'U . ^ oo ^,^ «™ see note in 19,L.R.A. 841.. , l^T^' ^^^■^■'■\l\?\ ,, ,. "L. 1848,, c. 200; L. 1849, c. 875. .Jf^''\ ^h^^l^' ^^ ^^ ^^ ^^' *^ n«7?^'%'-' " '"'''"' 'I ?• ^^ u', »mX oi Se, 131 A. D. 688 ^ ?J^' fioTnT^T \ Schoenfeldt, ( 1909), or 116 Supp. 101, a£E'd 195 3 Hun, 692 (1875) ; ArroWsmith v. ff_ y gi3_ Arrowsmith, 8 Hun, ^06 (1876) ; 4 Cofnell v. Child, 170 A. D. 240, Leach v. Leach, 19 Hun, 381 (1880) ; 156 Supp. 449 (1915), Deced. Est. L., Burke v. Valentine, 52 Barb. 412 § 90. 48 §§ 52-54 INTESTATE SUCCESSION lands are her ancestors.* "The term 'ancestor,' when used with reference to the descent of real property, embraces collaterals as well as lineals, 1;hrough whom an inheritance is derived." * "The true rule appears therefore to be that the term ancestor , . may mean forefathers or progenitor in a given case, but may, and must in some cases, mean other relatives, in other words, that rela- tive of the deceased from whom the intestate acquires his inherit- ance." " "Ancestor" may but need not include parents, grandpar- ents and all persons in the ascending line as far as relationship can be traced, while descendants is an antonym of "ancestor," though not a synonym of "heir," as none is the heir of all his ancestors.* § 52. Id.: What Law Determines. — "The tenure, mode of enjoy- ment, transfer and descent of real property is regulated by the lex loci rei sitae." ' The laws of New York govern the disposition bj'^ will or the descent of realty situated here, wheresoever the deceased may have been domiciled.^" § 53. Id.: What Descends. — Real property of an intestate de- scends to his heirs. The term "real property" is defined to include "every estate, interest and right, legal and equitable, in lands, tene- ments and hereditaments, except such as are determined or extin- guished by the death of an intestate, seised or possessed thereof, or in any manner entitled thereto ; leases for years, estates for the life of another person, and real property held in trust, not devised by the beneficiary."^^ § 54. Id.: When Lineal Descendants Inherit.— The real property of a person who dies without devising it descends to his lineal de- scendants ; *^ if the intestate leave descendants in the direct line of lineal descent, all of equal degree of consanguinity to him, the in- heritance descends to them in equal parts, however remote from him the common degree of consanguinity may be; '* and if any of the intestate's descendants be living and any be dead, the inherit- ance descends to the living and the descendants of the dead, so that each, living descendant inherits such share as would have descended to him had all the descendants in the same degree of consanguinity (who shall have died leaving issue) been living, and so that the is- sue of the descendants who shall have died shall respectively take s Cornell v. Child, supra. (1872) ; Matter of Barandon, 41 « Wheeler v. Clutterbuck, 52 N. Y. Misc. 380 (1903), or 84 Supp. 937. 67 (1873). "White v. Howard, 52 Barb. 294 1 Matter of Keeve, 38 Misc. 409, 77 (1868), aff'd 46 N. Y. 144. Supp. 936 (1902). " Deced. Est. L. § 80, subd. 1. See 8 Mitchell V. Thome, 134 N. Y. 536, Despard v. Churchill, 53 N. Y. 192 30 Am. St. Rep. 699, 32 N. E. 10 (1873), (1892). "j)eced. Est. L., § 81, subd. 1. 9 Knox V. Jones, 47 N. Y. 389 " Deced. Est. L., § 82. N. Y. B. & S.— 4. 49 NEW YORK ESTATES AND SURROGATES § 55 the shares which their ancestors would have received.** "A lineal descendant is one who is in the line of descent from a certain per- son, but, since the Domestic Relations Law went • into effect, not necessarily in the line of generation. The line of descent is the course that property takes according to law when the owner dies." '* Children of an intestate's illegitimate daughter, though born in lawful wedlock, are not such intestate's lineal descendants.*^ § 55. Id.: When Father Inherits. — If an intestate die without lawful descendants and leave a father, the inheritance goes to such father unless it came to the intestate on the part of his mother and she be living ; but if she be dead, the inheritance descending on her part goes to the father for life, and the reversion to the intestate's brothers and sisters and their descendants, according to the law of collateral inheritance ; provided, that if there be no such brothers or sisters or their descendants living, the inheritance descends, to the father in fee." The inheritance mentioned in the first clause is the same as that mentioned in the second.*' / The complete bar against inheritance by a father from an intes- /tate son or daughter leaving no descendants (becaiise the inhgrit- / ance came to the son or daughter on the part of his or her mother) I is effective only if the mother be living on the intestate's death " and if the inheritance came to the intestate on the part of his moth- er.^" But an inheritance has "come to the intestate on the part of his mother" in every case in which it has come by devise,, gift or descent either from the mother or from any relative of the blood of the mother.* A gift comes to the intestate, within the meaning of the statute, however, only when the gift is pure, and not when it is of mixed consideration,' partly valuable and partly good, con- sisting of natural love and affection ; so that a valuable considera- tion, however small, is sufficient to support the conveyance in its whole extent, and results in making the intestate a purchaser for value — and not a donee to whom the statute applies.*, The father of an intestate who took the realty as remainderinah after the moth- er's life estate under his maternal grandfather's will takes only a *4Deeed. Est. L., § 831 80 Supp. 16 (1902)— Real Propl L., *5 Matter of. Cook, 187 N. Y. 253, § 284. ,•!,;,, 79 N. E. 991 (1907). * Deced. Est. L., § 80. *8 Matter of Roebuck, 79 Misc. 589 « Morris v. Ward, 36 N. Y. 587 (1913), or 140 Supp. 1107. (1867)— realty deeded to intestate's *' Deced. Est, L,, § 84 ; Morris v. relative of mother's blood for con- Ward, 36 N. Y. 587 (1867) ; Harring sidera,tion of $1, and natural love and V. Coles; 2 Bradf. Surr. 349 (1853). afeection, deed reciting that convey- , *' Morris v. Ward, 36 N, Y. 587 ance to be deemed an advancement — (1867). held a gift going apcording to Stat- ** Deced. Est. L., ;§ 84. ute of Descents. 20 Righter V. Ludwig, 39 Misc. 416, . ,50 § 56 INTESTATE SUCCESSION life estate if the intestate leave a brother or sister or descendant of brother or sister; because the inheritance came to the intestate on the part of his mother.* § 56. Id.: When Mother Inherits. — ^If the intestate dies without descendants or father (or leaving a father not entitled to take be- cause the inheritance came to the intestate on the part of his moth- er), but leaving a mother, brother or sister, or descendant of a brother or sister, the inheritance descends to the mother during her life and the reversion to such brothers and sisters of the intestate as may be living and the descendants of such as may be dead; pro- vided thatiif the intestate leave no brother, sister, or descendant of a brother or sister, the inheritance descends to the mother in fee.* The words "reversion to such brothers and sisters of the intestate as may be living" refer to such as were living at the time of the intes- tate's death.* So, when the intestate leaves a mother, sisters and brothers and children of a deceased sister, the mother inherits only a life estate.' If no lineal descendant or father (or if a father not entitled to take because the inheritance came on the part of the mother) survive the intestate, but brothers or sisters or their de- scendants, do, the intestate's inheritance descends to his or her brothers or sisters or their descendants in the same proportions, whether the mother be living or dead; but if the mother be living, the inheritance which descends to the intestate's brothers or sisters or their descendants is only the reversion after the life estate of the mother: while if the mother be. dead, the inheritance which descends to the intestate's brothers or sisters or their descendants is the fee.' If all the brothers and sisters of the intestate be living, the inherit- ance (whether of the reversion or the fee) descends to them.' If any of the brothers and sisters of the intestate be lijving and any be dead, the inheritance (whether of the reversion or the fee) descends to the brothers and sisters living, and the descendants, in whatever degree, of those dead ; so that each living brother or sister inherits such share as would have descended to him or her if all the brothers and sisters of the intestate who shall have died, leaving issue, had been living; and so that the descendants 6i the dead brothers and sisters, in whatever degree, collectively inherit the share which their parent would have received if living ; and the same rule prevails as to all direct lineal descendants of every brother and sister of the intestate whenever' such descendants are of unequal degrees.' So, » Morris v. Ward, 36 N. Y. 587 « Tucker v. Tucker, 122 A. D. 308, (1869). 106 N. Y. Supp. 713 (1907). *Deced." Est. L., § 85; Tilton v. ' Oeced. Est. L., §§ 85, 86. . Vail, 17 Civ. Pro. 194. » Deced. Est. L., §§ 85, 86, 87. 'Barber v. Brundage, 169 ,N. Y. 'Deced. Est. L., §§ 85, 86, 87. 368, 62 N. E. 417 (1902). 51 NEW YOE.K ESTATES AND SURROGATES §§ 57, 58 a decedent leaving, as his only relatives, nephews, a niece, and grandnephews, has as his heirs not only the nephews and niece but the grandnephews (by representation)." But a decedent leaving no husba;nd, brother, sister, ancestor or descendant, but children of a deceased brother (nephews and nieces), uncles, aunts and descend- ants of deceased uncles and aunts, has for her heirs only the neph'- Bws and nieces.^^ A decedent leaving no widow, deiscendant, father, mother, brother, sister, uncle, aunt or descendant of uncle or aunt, but nephews, nieces, grandniece and grandnephew (descendants of deceased brother and sister) has for his heirs not only the nephews and nieces but, by representation, the gratidnephew and grand- niece.^* § 57. Id. : When Collaterals Inherit, In General. — ^If there be no children^ descendants, father or mother capable of inheriting an in- testate's estate, it descends to the intestate's collateral relatives as specified by the statute; and if there be several such relatives, all bf equal degree of consanguinity to the intestate, the inheritance de- scends to them in equal parts, however remote from him the com- mon degree of consanguinity may be." Who these collateral rela- tives are depends upon what relatives of the intestate survive him and whether his inheritance came to him on the part of his father, mother, both, or neither. Reference is made to the discussion in the last section (56) for a determination of the rights by inherit- ance of brothers and sisters and their descendants when no mother survives the intestate; because the circumstances and rules of in- heritance by brothers and sisters and their descendants are the same whether the intestate's mother survived or not— the difference being that if the mother siirvive, the inheritance of the brothers and sisters and 'llheir descendants is only of the reversion after the mother's life estate; while if the mother do not survive, the inherit- ance of the brothers and sistets and their descendants is of the fee. § 58. Id.: When Father's and (or) Mother's Relatives Inherit,— If there be no lineal descendants, father, mother, brother, sister or descendants of brother or sister entitled to take, the inheritance de- scends according as it shall haye come to the intestateon the, part of tlie father or mother,** i. e., as the inheritance shall have come " Matter of DeVoe, 107 A. D. 245 172 N. Y. 454, 65 N. E. 275— by (1905), or 94 Supp. 1129, aff'd 185 analogy. N. Y. 536^ 77 N. E. 1185— construing " Matter of Hadley, 43 Misc. 579 L. 189S, c. 319> amend'g as to dis- (1904), or 89 Supp. 545— Real Prop, tribution like descent, § 287, Real L. § 287, like Deced. Est. L. §§ 85 to Prop. L., now §§ 86 to 87, Deced. 87. Est. L. 14 Deced. Est. L., § 86. "Matter of Davenpoili, 67 A. D. "Deced. Est. L., § 88. 191 (1901), or 73 Supp. 653, aflf'd 52 § 58 INTESTATE SUCCESSION to the intestate by devise, gift or descent from the father or mother, or any relative pf the blood of the father or mother.^' A gift, to come within the application of this pr^ovision of the statute, must be a pwre gift, and not of mixed consideration, partly valuable and partly good, consisting of natural love and affection ; so that a valu- able consideration, however small, is sufficient to support the con- veyance in its whole extent and results in making the intestate a purchaser for value — and not a donee to whom this provision of the statute applies." If there be no descendant, father, mother, brother, sister or de- scendant of brother or sister entitled to take, and the inheritance shall have come to the intestate on the father's part, it descends to the father's brothers and sisters in equal shares if all be living; if any be Uving and any dead leaving issue, it descends to such broth- ers and sisters as shall be living and to the descendants of such as are dead; if all such brothers and sisters be dead, it descends to their descendants; if there be no such brothers or sisters of the intestate's father, nor any descendants of such brothers or sisters, it descends to the intestate's mother's brothers and sisters, and to the descend- ants of such as shall have died, or, if all such brothers and sisters shall have died, to their descendants ; and if there be no brothers or sisters either of the father or mother, and no descendants of such brothers or sisters, it descends to the father's parents, if living, in equal parts, or, if they be dead, to the mother's parents, then living, in equal parts." Realty of an intestate which came to him from his father descends, if he leave no widow, descendant, brother, sis- ter, paternal uncle, paternal aunt, or descendant of such brother, sister, uncle or aunt, to the descendants of his maternal uncles and aunts (and equally to them whether they be of the whole or half blood) .^' The inheritance descends to the intestate's father's or mother's brothers and sisters or to their descendants, in like man- ner as if they had been the brothers and sisters of the intestate.^" The statute in a liberal spirit allows these who may have none of the blood of the first purchaser to inherit, because they are related to the one last seised; and makes no distinction between male and fe- male branches.^ If there be no descendant, father, mother, brother, sister or de- scendant of brother or sister entitled to -take, and the inheritance shall have come to the intestate on the mother's part, it descends to i«Deeed. Est. L., § 80; Greenblatt "Matter of Milliman, 94 Misc. 7 V. Hermann, 144 N. Y. 13, 38 N. E. (1916). 966 (1894). ^^ Deeed. Est. L. § 88 subd. 4. "Morris v. Ward, 36 N. Y. 587 i Beebe v. Griffing, 14 ,N. Y. 235 (1867). (1856). " Deced. Est. L., § 88. 53 NEW YOEK ESTATES AND SDEROGATES § 58 the mother's brothers and sistfers in equal shares if all be living : if any be living and any be dead leaving issue,' it descends to such brothers and sisters as shall be -living a:nd to the descendants of such as are dead ; if all such brothers and sisters be dead, it descends to their descendants ; if there He no such brothers or sisters of the in- testate's mother, nor any descendants of such brothers or sisters, it descends to the intestate's father's brothers and sisters, and to the descendants of such as shall have died, or, if all such brothers and sisters shall have died, to their descendants; and if there be no brothers or sisters either of the mother or father, and no descend- ants of such brothers or sisters, it descends to the mother's parents, if living, in equal parts, or, if they be dead, to the father's parents, then living, in equal parts.^ When an intestate leaves only de- scendants of a brother and sister of his mother, a paternail aunt, and the descendants, of a paternal uncle, real property of which he died seised which came to him from his mother descends to the descend- ants of his mother's brother and sister to the exclusion of collaterals on his father's side.' If ithere be no other statutory heir entitled to take and the in- heritance has not come to the intestate on the part of either his fa- ther or mother, it descends to the brothers arid "sisters both of the fa)ther and mother of the intestate, and their descendants, in the same inanner as if the ijiheritahce had come on the part of the father or .mother; and if there be no such brothers or sisteiB or their descendants, the inheritance descends to the intestate's living grandparents in equal parts.* The inheritance descends to the brothers and sisters of the, intestate's father and mother, or their descendants, in like manner, as if they had been the brothers and sisters of the.intestatp.,^ Wh,en.the inheritance comes to an intestate by purchase from a stranger. and neither on the part. pf the faiher or mother, it, descends to the heirs of both fa.ther.and mpther in equal shares.® Therefore, if an intestate leaves no descendant, fa- ther, mother, brother, sister, or descendant of brother, or sister sur- viving him, 1 but leaves realty whieh came tP: hirn on the part of neither his father nor his mother, it descends to his father's and mother's brothers and sisters in equal shajPes, and tg, their dascend- ants, in the same manner as if all such brothers and sisters had been the intestate's J An intestate leaving no ancestor, descendant, "* Deced. Est. L. § 88. « Adams v. Anderson, 23 Misc. 705 ' 3 Matter of McMillan, 126 A. D. (1898), or 53 Supp. 141. 155 (1908), or 110 Supp. 622, afi'd '' Greenblatt v. Herrmann, 144 N 193 N. Y. 651, 86 N. E. 1127. Y. 13, 38 N. E. 966 (1894) : 1 R. S *Deeed. Est. L., § 88, subds. 4 & 5; 752, § 13. 6 Deced. Est. L., § 88, subd. 4. 54 §§ 59-61 INTESTATE SUCCESSION brother, sister or descendant of a brother or sister, has for heirs the descendants of brothers and sisters of his father and mother alilce ; even though the realty came to his brother, from whom he inherits, from their father ; because resort can be had only to the immediate source from whom the intestate took, viz., his brother.' § 59. Id.: When Deceased Husband's or Wife's Heirs Inherit. — If the inheritance shall have come to the intestate from a deceased husband or wife, as the case may be, and there be no descendant, fa- ther, mother, brothers, sisters, descendant of brother or sister, bro- ther or sister of father or mother, descendant of brother or sister of father or mother, or parent of brother or sister of father or mother, of the intestate, entitled to inherit, the intestate's realty descends to the heirs of such deceased husband or wife, as the case may be, and such heirs are deemed to be the intestate's heirs.® It has been held by one of the Surrogates of New York County that this provision of the statute is unconstitutional ; but the reasoning upon which this opinion is based is not at all satisfactory.^' § 60. Id.: After Born.^A descendant or relative of an intestate begotten before his death, but born thereafter, inherits in the same maimer as if he had been born in: the lifetime of the intestate and had survived him.*^ "Posthumous children are placed on the same footing with respect to . . . property coming by descent as other children of the same parent."^* § 61. Id.: From and To Illegitimate.— If an intestate who was illegitimate dies without lawful issue, the inheritance descends to his mother, if living, and if his mother be dead, to his relatives on her part, as if he had been legitimate.^' Therefore, if an intestate illegitimate die without lineal descendants, his mother, or if she be dead, her children or their descendants, or, in default of these, her collateral relations would be capable of iiiheriting from the intestate as if he had been legitimate.''* But when the statute provides that if an illegitimate intestate's mother be dead the inheritance shall go to the intestate's relatives on the mother's part, it refers to the mother's death at the time that the intestate dies ; so that if the mother is then living but incapable of inheriting because of alien- « Hyatt V. Pugsley, 33 Barb. 373 " Deced. Est. L., § 93. (1861) ; and 23 Barb. 285 (1856). i« Mason v. Jones, 2 Barb. 229 9 Deced. Est. L., § 91. (1848), 2 R. S. 754, §§ 180, 65, 49, 10 Matter of Leslie, 92 Misc. 663, like Deced. Est. L., § 93. 156 Supp. 346 (1915). See criti- " Deced. Est. L., § 89. cisms of case in Harvard Law Re- i*Kieh v. Grenier, 56 N. Y. 220 view for Mareb, 1916, and Columbia (1874)— 1 R. S. 763, § 14. Law Review for April, 1916. 55 NEW YOEK ESTATES AND SUEEOGATES § 62 a£;e, a brother of tlie intestate cannot inherit the realty through her.15 If a woman die leaving an illegitimate child but no lawful issue, the illegitimate child takes his or her mother's inheritance as if legitimate.^® In any other case illegitimate children or relatives cannot inherit.^' Therefore,, an illegitimate child cannot inherit real estate by descent from an ancestor of the child's deceased mother. *' § 62. id.: From Adopted Persons. — On legal adoption of a child the latter's heirs are the same as if he or she were the legitimate child of the person adopting; " except that adoption, by consent, of a child by the spouse of its surviving or divorced or unmarried fos- ter parent, does not make the child's heirs any other than they would have been had adoption by such spouse not been had or con- sented to.^" So, on death of an adopted child intestate, leaving his natural but not his foster parents surviving, the persons entitled to inherit the child?s realty as his heirs are the relatives of the foster- parents and not the natural parents ; and a statutory grandchild and grandparent inherit from each other the same as if the relation had been created by nature.* The parents of a legally adopted child have no rights to the latter's property by descent; * but a surviving parent or a parent who has procured a divorce (only however, in either case, if the parent has lawful custody of his or her child) by consenting to the adoption by his or her spouse (who has become the child's step- father or stepmother) of such child, is not thereby deprived of any of his or her rights to the child's property by descent.' In any other case of legal adoption (i. e., by anyone except a step-parent by consent) the foster parents or parent have all the rights of inherit- ance to the child's property; and if a foster parent having lawful custody of the child, and being an adult unmarried person, marries, " St. John V. Northrop, 23 Barb. Matter of Cook, 187 N. Y. 253, 79 25(1856). N. E. 991 (1907). 16 Deced. Est. L., | 89. «" Dom. Eelats. L., § 114. See §§ " Deced. Est. L., § 89,. 29-30, supra. " Matter of Mericlo, 63 How. Pr. * Carpenter v. Buffalo General Co., 62 (1882). supra; Matter of Cook, 187 N. Y. On inheritance by, through or from 253, 79 N. E. 991 (1907). an illegitimate, see note in 23 L.E.A. ' * Dom. Eels. L., § 114 ; Carpenter 753. V. Buffalo General Electric Co. 213 On rights of lineal descendant of an N. Y. 101, 106 N. E. 1026 (1914)— illegitimate to inherit through ' him, compare Matter of MacEae, 189 N. see note in 27 L.E.A. (N.S.) 220. Y. 142, 81 N. E. 956, 12 Ann. Cas. 19 Dom. Eelats. L., § 114; Carpen- 505. ter V. Buffalo General Electric Co. ' Dom. Eels. L., § 114. 213 N. Y. 101, 106 N. E. 1026 (1914) ; 56 § 63 INTESTATE SUCCESSION he or she is not, by consenting to the adoption of the child by hii? or her spouse, deprived of any of his or her rights to such child's property by descent.* A minor adopted child is not, however, deemed the child of his or her foster parent so as to defeat the rights of remaindermen under the provisions of any instrument rendering the passing and limitation over of real property depend- ent on the foster parent dying without heirs.* The subject of adoption in general has already been treated, and reference is made thereto.' It will be seen that adults as well as in- fants may now be legally adopted; and the rights of inheritance from an adopted mvnor child possibly now apply to an adopted major person. § 63. Id.: To Adopted Person. — ^After legal adoption of a child not only do the latter's rights of succession from his natural parents remain unaffected, but the child has all rights of inheritance from his or her foster parent or foster parents ; except, first, that such child is not deemed the child of the foster parent so as to defeat the rights of remaindermen under the provisions of any instrument rendering the passing and limitation over of real property dependent on the fbster parent dying without heirs, and, secondly, that adoption, by consent, of the child, by the spouse of its surviving or divorced or unmarried, foster parent, probably does not entitle the child to inherit from such spouse.' It is to be noted that the statute gives the right of inheritance to the child only from and not through the foster parent.* An adopted child is a lineal descendant of his fos- ter parent.® "The right of an adopted child to inherit from a foster parent is determined by the law in force at the time of the foster parent's death, and is in no manner dependent upon the law in force at the time of the adoption." '" Adoptions from institutions, or otherwise, confer upon the adopted child the same right of inheri- *Dom. Eels. L., § 114. The right of adopted child to in- *Dom. Rels. L., § 114. herit property from a relative of its On descent and distribution of adoptive parent is discussed in notes property of adopted child, see note in in 17 L.R.A. 435, 8 L.R.A.(N.S.) 43 L.R.A.(N.S.) 1036. 117; 33 L.R.A. (N.S.) 139. As to inheritance by or from adopt- ® Matter of Cook, 187 N. Y. 253, 79 ed child, see note in 17 L.R.A. 435, N. E. 991 (1907). and note in 65 L.R.A. 186, as to the As to whether the terms "child," law governing the same. "children," "issue," etc., in statutes ^ See § 19, et seq., supra. governing distribution of decedent's 'Dom. Rels. L., § 114; Matter of estate, include adopted children, see Gregory, 15 Misc. 407 (1896). note in 30 L.R.A. (N.S.) 914. ' 'Kettell V. Baxter, 50 Misc. 428 " Rosekrans v. Rosekrans, 163 A. (1906), or 100 Supp. 529— holding D. 730, 148 Supp. 954 (1914) and adopted daughter of predeceased cases cited; U. S. Trust Co. v. Hoyt, sister cannot inherit. 150 A. D. 621 (1912), or 135 Supp. 57 NEW ^ O.RK ESTATES AND SURROGATES § 64 tance possessed by a natural child.^* Th|e legislature has power to change the class of those who shall inherit; ^* and, therefore, a child adopted under a statute excluding adopted children from the right of inheritance,^' may, nevertheless, inherit if an amendment in eflfect at the foster parent's death so permits." Siijce the enactment of the statutes permitting adoption in New York "the most chaste spinster or bachelor may have children who inherit from them in case of in- testacy." ^^ Adoptions of children before the Act of 1873, which first prescribed a general, uniform, statutory, method of adoption, were brought by that Act within its purview (and that of its amend- atory acts) ; so that, after the amendment of 1887, children so adopted had the right to inherit and succeed to their foster parents' property.^® § 64. Id. : From Alien.— A person capable of inheriting is not pre- cluded from such inheritance by reason of the alienism of an an- cestor.*'' "There is nothing in the section referred to which pro- fessed to change any of the rules of descent or to make one an heir who would not be such by the general law of inheritance." *' The ancestors referred to are linesal and collateral ancestors alike ; *' and the statute should be liberally construed to abolish a feudal policy designed to enrich the crown by escheats.^" The removal of the alienage of an ancestor as a bar to inheritance does not, however, enable the child of a decedent's nearest and alien relative to take by descent, because the statute makes no provision by which a citizen- child can inherit while its alien parent is living.* An alien who 849 ; Carpenter v. Buffalo General On the power to g:ive a child under Electric Go. 213 N. Y. 101, 106 N. existing adoption theright to ^inherit B. 1026 (1914).' froin parent or parent's relatives, see On right of child adopted, in an- note in 35 L.R.A.(N.S.) 216. other state to take under local statute ** Matter of Union Trust Co. 179 of distribution, see notes in 21 L.R.A. N. Y. 261, 72 N. E. 107 (1904). (N.S.) 679; 25 L.R.A.(N.S.) 1285, " Simmons v. Burrell, 8 Misc. 388 L.R.A.1916A, 1185. (1894), or 28 Supp. 625. "Id. "Deced. Est. L., § 95. *^ Gillian v. Guai-anty Trust Co. On tracing descent through, an 186 N. Y. 127, 116 Aiii, St. Rep. 536, aUen, see note in 37 L.R.A.(N.S.) 78 N. E. 697 (1906). 108. "L. 1873, c. 830. "McLean v. Swanton, 13 N. Y. i4Dom. Rels. L., §§ 60, 64 (L. 535 (1856). 1896, c. 272, as amended L. 1897, c. ^^ McCarthy v. Marsh, 5 N. Y. 263 408) ; Theobald v. Smith, 103 A. D. (1851)— 1 R. S. 754, § 22. 200 (1905), or 92 Supp. 1019, L. «" McCarthy v. Marsh, supra. 1873, c. 830; L. 1887, c. 703; Dodin On the effect of state statutes V. Dodin, 16 A. D. 42 (1897), or 44 and constitutions upon inheritance Supp. 800, aff'd 162 N. Y. 635, 57 through an ahen, see note in 31 N, E. 1107, father's will directing re- L.R.A. 146. mainder of estate "descend and be * McLean v. Swanton, supra, distributed according to" N. Y. Laws. 58 § Co INTESTATE SUCCESSION holds land pursuant to statutory privilege * does so independent of the power of the State to take it from him, and can, like a citizen, acquire the absolute fee to the land and transmit its title ; so that on his death intestate it is not forfeited or escheated but passes to his heirs-at-law under the Statute of Descents.' The general subject of alienage has already been treated, and reference is made to siich discussion.* § 65. Id. : To Alien,r^The state has a right to impose any condi- tions it sees fit as a prerequisite to giving to an alien the right' — which he did not have at common law — to take lands by descent.* The state has ordained that for six years after filing a deposition of intention to become a citizen and of being or intending to remain a resident, an alien may talce real property.* Failure by an alien to file a declaration of intention to become a citizen, upon his death ipso facto works , an immediate escheat to the State of lands which he otherwise would have inherited.'' If some heirs of an intestate cannot, because of alienage, inherit, their inheritance does not es- cheat, but vests in those of the heirs of the intestate who are compe- tent to inherit.' When an intestate leaves two brothers, a sister and a father; but one of the brothers, only, a citizen, that one in- herits all from the intestate.' Alien minor female heirs of a man and wife who bought realty in New York while aliens, and after- wards filed the declaration necessary to enable them to hold realty in New York, but died intestate before being naturalized, take such realty absolutely; but such of those heirs as were male and of age take a title defeasible by the state in proper proceedings instituted by it, so long as they omitted to file the necessary declaration with the state to enable them to hold realty in its boundaries.^" An alien woman, by marriage to a citizen of the United States, becomes a * L. 1897, c. 593. The effect of treaties upon an ' Haley v. Sheridan, 190 N. Y. 331, alien's right to inherit is set forth in 83 N. E. 296 (1907); Goodrich v. Qotes in 32 L.R.A. 177; L.R.A. Russell, 42 N. Y. 177 (1870) ; Hall 1915B, 327. V. Hall, 81 N. Y. 130 (1880). The effect of state Constitutions * See § 34, et seq. supra. and statutes upon the question of in- * McCormack v. Coddihgton, 184 heritanoe by or from an alien is dis- N. Y. 467, 77 N. E. 979 (1906). cussed in note in 31 L.R.A. 85. ' Real Prop. L., §§ 12, 13. ' Douglass v. Douglass, 70 Misc. ' McCormack V. Coddington, supra, 412, 128 Supp. 912 (1911), Deced. L. 1845, e. 115, § 4, as amended L. Est. L., §§ 86, 89, 95; Real Prop. L., 1874, c. 261, and L. 1875, e. 38. The § 10, subd. 2; Hall v. Hall, 81 N. Y. state only can take advantage of an 130 (1880). alien's failure to declare his intention ^ Leary v. Leary, 50 How. Pr. 122 to become a citizen, Smith v. Smith, (18.4)., 70 A. D. 286, 74 Supp. 967 (1902). i" Maynard v. Maynard, 36 Hun, An alien's right to inherit is dis- 227 (1885), L. 1875, c. 38, and L. cussed in note in 31 L.R.A. 177. 1874, c. 261. 59 NEW YORK ESTATES AND SUREOGATES § 66 "naturalized citizen of the United States; " ** and capable of taking lands in the state by descent. ^^ The general subject of alienage has been heretofore discussed^ and reference is made to such discussion.** § 66. Id. : To Half Blood.^Relatives of the half blood and their descendants inherit equally with those of the whtile blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor ; in which case all those who are not of the blood of such ancestor are excluded from such inheritance.** The term "of the blood," when used in the statute excluding relatives of the half blood and their descend- ants from inheriting from an intestate whose inheritance came to him from an ancestor of whose blood they have none, does not in- dicate the quktitity, but simply that there is some of the blood, whether the whole, or the half, or a smaller portion; so that when an intestate's father married sisters, successively, a half-brother of an intestate who, by reason of such marriage, is also the intestate's cousin, and the half-brother's descendants (nieces and nephews of the half blood) , are "of the blood" of the intestate and inherit the latter's realty to the exclusion of other cousins (descendants of = a deceased aiint of the intestate).*^. The true test in determining whether two persons are relatives of the whole or half blood is to go back to the same couple of ancestors, e. g., grandparents, and if such persons proceed from the same couple, e. g., the same grand- father and grandmother, rather than from the same husband (or wife) but from different wives (or htisbands), e. g., from the same grandfather but from different grandmothers, they are relatives of the whole rather than of the half blood.*® The statutory exclusion from inheritance of those not of the blood of the ancestor refers to the immediate ancestor from whom the intestate received the in- heritance, and not to a remote ancestor who was the original source of title." So that the "ancestor," under the statute, of an intestate who took realty by descent from his father, conveyed it to his moth- er for value, ajid took it from her by devise, is his mother and not his father.** One is of the "blood" of an ancestor, so as to be in- ** Wainwright v. Low, 132 N. T. 156 Supp. 449 (1915), Deced. Est. 313, 30 N. E. 747 (1892) ; Luhrs v. L., § 90. Eimer, 80 N. T. 171. (1880). *6 Matter of Tator, 81 Mise. 83, 141 ** Luhrs V. Eimer, supra. Supp. 927 (1913), in determining *' See § 34, et seq. supra. priority of right to administration. ** Deced. Est. L., § 90. *'' Wheeler v. Clutterbuek, 52 N. On descent and distribution among Y. 67 (1873) ; Adams v. Andersooj kindred of half blood, see notes in 23 Mise. 705 (1898), or 53 Supp. 29 L.R.A. 541; 26 L.R.A.(N.S.) 603. 141. ** Cornell V. Child, 170 A. D. 240, *' Adams v. Anderson, supra. 60 §§ 67, 68 INTESTATE SUCCESSION eluded in the inheritaiQce, although only a relative of the half blood of the ancestor. ^^ But to be included in such inheritance, the rela- tive must have some of the blood of the ancestor; ^^ so that a half- brother of an intestate, by a second marriage of their mother after the death of the intestate's father, is excluded from inheriting land which came to the intestate by descent from the intestate's father, as such half-brother has none of the blood of the intestate's father ; ^ but such half-brother could inherit land descending to the intestate through the latter's sister, which she had inherited from their com- mon father, as the half-brother was equally sueh of the intestate's sister, as of the intestate, "all being born of the same mother, but be- ing issue of different fathers." " § 67. Descent: Sole or In Common. — ^When there is but one per- son entitled to inherit, he takes and holds the inheritance solely ; but when an inheritance or a share of an inheritance descends to several persons, they take as tenants in common, in proportion to their respective rights.* If an intestate's nearest relatives are two cousins, sons of a paternal uncle, and a third cousin, daughter of another uncle, the three cousins, being all of equal degree of con- sanguinity, each inherits an equal portion of the estate.* If an in- testate's nearest relatives are first cousins, some of whom died leav- ing descendants, the inheritance is divided into as many shares as there were first cousins, and the descendants of those dead take by representation what their parents would have taken if living.* § 68. Id.: Advancements. — ^When there is any real property of an intestate to descend to his heirs * and the intestate has advanced to any child of his, by settlemient or portion, any real or personal property, its value must be reckoned, for the purpose of descent and ' distribution, as part of the intestate's real property descendible to his heirs and personal property distributable to his next of kin; and if the advancement be equal to or greater than the amount of the share which such child would be entitled to receive of the intestate's estate, such child and his descendants do not share in the intestate's w Beebe v. Grifflng, 14 N. Y. 235 » Deced. Est. L., § 94. (1856)— old § 15, 1 R. S. 753, now § * Kelly v. Kelly, 5 Lans. 443 90, Deced. Est. L. (1872). «> Cornell v. Child, supra. * Hyatt v. Pugsley, 23 Barb. 285 1 Wheeler V. Clutterbuck, 52 N.Y. (1856). 67 (1873)^old § 15, 1 R. S. 753, « Beebe v. .Estabrook, 79 N. T. 246, now § 90, Deced. Est. L. See also 252 (1879). See Matter of Weiss, ConMing V. Brown, 51 Barb.. 265 39 Misc. 71 (1902), or 78 Supp. (1870). 877, and Matter of Est. of Turfler, « Wheeler v. Clutterbuek, supra; 1 Misc. 58 (1892), or 23 Supp. l35 Valentine v. Wetherill, 31 Barb. 655 — that Statute applies only in in- (1860). testacy. 61 NEW YORK ESTATES AND SURROGATES § 68 estate; but if the advancement be less than the amount of the share which such child would be entitled to receive of the intestate's estate, such child and his descendants receive so much only of the intestate's personal property and inherit so much only of the in- testate's real property as shall be sufficient to make all the shares of all the intestate's children in his whole property^ including the advancement, equal.' When an advancement to be adjusted con- sists of real property, the adjustment must be made out of the real property descendible to the heirs; when of personal property, the adjustment must be made out of the surplus of the personal proper- ty to be distributed to the next of kin ; and when either the real or the personal propertj' is insufficient to enable the adjustment to be fully made, the defiiiiencjf must be adjusted out of the other.' An advancement is a transfer of property from a person, standing in loco parentis toward another, to the latter, in anticipation of the share of the donor's estate which the donee would rieceive in the event of the donor's death intestate.' The doctrine of advancements applies only in case of intestacy: Not even when a will provides for distribution of the testator's property according to law as in cases of intestacy— because one disposing of all his propertj' by wilL with- out mentioning an advancement must be presumed when malcing his will to have taken the advancement into consideration when determining the amounts of, his bequest, and so to have intended to cancel any obligation which might otherwise arise frorn an ad- vancement.^'' The provisions of the Statute of Descent as to setting off advancements in cases of intestacy do not apply when the in- testacy is only partial, because "when a person who has made ad- vanqenients to his children m.akes a will, he is presumed to make his, will with reference, to, his advancements, and the two acts repre- sent his intent with reference to the disposition of his estate." ^' The ,i'eason for the rule that a,n advancement made by one who thereafter mak^s his will disposing of his whole estate but not men- tioning the advancement is not to be regarded as an advancement, is the presumed taking of the advancement into consideratioji by the testator when he made his will, and his intention to cancel the ' Deced. Est. L., § 96. grantor to hold in trust as giving rise ' Deced. Est. L., § 97. to' a constructive trust where convfey- * Bowron v. Kent, 190 N. Y. 422, anee was by way of advaneementy see 83 N. E. 472 (1908). note in 39 L.R.A.(N.S.) 920. Whether a gift to one spouse by *' Id. ; De Caumont v. Bogert, 36 parent of the other is an advance- Hun, 382 (1885). ment or ademption is discussed in ^^ Kent v. Hopkins, 86 Hun,. 611, note in 26 L.R.A.(N.S.) 1050. 33 Supp. 767 (1895). On a grantee's oral promise^ ' to 62 § 69 INTESTATE SUCCESSION obligation of him advanced.^^ Therefore, even a receipt, by her ad- vanced, of the amount to be deducted from her part of the lender's e;:!tate, endorsed by the lender on the back "this to be charged to her portion," does not permit any deduction from a bequest or devise to the person advanced by the subsequently executed will of the lend- er.^' A testator dying intestate as to a remainder, which he sought to create by his will but which was found to be unlawful, does not die "intestate" within the meaning of the statute so as to make an advancement to one of his children part of' the latter's share in the proceeds of the former's estate undisposed of by will.^* Equal divi- sion by a decedent of his property raises no presumption that he intended advancements made by him to legatees to be charged agEiinst their legacies.** An advancement bears interest only from the time of probate of the will and not during the testator's life, unless a special direction is contained in the will.'* Grandchildren of an intestate, as well as children, may insist upon advancements by the intestate to his children being brought into hol^hpot so that they may .share in distribution." The value of an advancement, whether of real or personal property, made to a child, is deemed that value, if any, which was acknowledged by the child by an in- strument in Writing; otherwise it must be estimated according to the worth of the property when given.'* Maintaining or educating a child ; or giving him money without a view to a portion or settle- ment in life is not an advancement; but an estate or interest given by a parent to a descendant by virtue of a beneficial, power, or of a power in trust with a right of selection, is an advancement.'' Real property advanced may consist of any estate, interest and right, legal and equitable, in lands, tenements and hereditaments, except such as are determined or extinguished by an intestate's death, of or to which he was seised or possessed or in any manner entitled.^" § 69. Id. : Under Common Law. — In all cases not provided for by the Statute of Descents, the inheritance of an intestate descends ac- " Arnold v. Haronn, 43 Hun, 278 "Beebe v. Estabrook, 11 Hun, 523 (1887). ;.;,,. (1877), aff'd 79 N. Y. 246. , '^ Arnold v. Haronn, supra. Bringing advancements into "hotch- The right of one receiving an ad- pot" in case of partial intestacy is vancement and executing release of discussed in note in 4 B. R. C. 268. interest in estate to share in after- " Deced. Est. L., § 96. acquired property is discussed in '^ Deced, Est. L., § 96. note in 65 L.R.A. 578., ^^ Deeed. Est. L., § 80, subd. 1. '* Messman v. Egenberger, 46 A. D. On support of an adult child as an 46, 61 Supp. 556 (1899). advancement, see note in 22 L.E.A. « Camp V. Camp, 18 Hun, 217 (N.S.) 1165. (1879). 16 Verplanck v. De Wert, 10 Hun, 611 (1877). 63 JS^EW YORK ESTATES AND SURROGATES § 69 cording to the course of the common law.^ The cases provided for by the statute are when the decedent, leaves lineal descendants,^, a father, entitled to take ; ' a mother,* brothers or sisters or their de- scendants; * brothers or sisters of a father or mother, and their de- scendants; * and parents of a father or mother; '' and heirs of a deceased husband or wife from whom the inheritance came.* The course of descent at common law is given by Blackstone as follows : — "The nature and degrees of kindred: being thus in some measure explained, I shall next proceed to lay down a series of rules or canons of inheritance, according to which, estates are transmitted from the ancestor to the heir. ... "I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum,; but shall never lineally ascend. "II. A second general rule or canon is, that the male issue shall be admitted before the female. "III. A third rule or canon of descent is this: that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together. "IV. A fourth rule, or canon of descent is this : that the lineal descendants, in injinittinfijOi any person deceased shall represent their ancestor ; that is, shall stand in the same place as the person himself would have done, had he been living, "V. A fifth rule is that on failure of lineal despendants, or issue, of the person last seised,: the inheritance shall descend to his collatr eral relations, , being of the blood qf the first purchaser; subject to the three preceding rules. "VI. A sixth rule or canon therefore is, that the collateral heir of the person last seised must be his next collateral kinsman, of the whole hldod. "VII. The seventh and. last rule or canon is, that in collateral inheritances the- male stocks shall be preferred to the female (that is, kindred derived from the blood of the male ancestors, however iDeced. Est. L., § 92. « Ibid. :§§ 85-S7. 2 Ibid. subd. 1, § 81; § 82; § 83. « Ibid. § 88. 3 Ibid. § 84. Hbid. §88. ,; * Ibid. § 85. 8 Ibid. § 99. 64 § 70 INTESTATE SUCCESSION remote, shall be admitted before those from the blood of the female, however near), — ^unless where the lands have, in fact, descended from a female." ' The common law canon that male issue shall be admitted before the female applies in New York and is not superseded by the Stat- ute of Descent as to collaterals farther "than to descendants of broth- ers and sisters' children to the remotest degree ; to the brothers and sisters of the father of the intestate, and their descendants ; and then to the brothers and sisters of the mother of the intestate, and their descendants; or to the brothers and sisters of both father and mother of the intestate, and their descendants, according to the various ways in which the estate may have been acquired." ^^ Therefore, when an intestate's nearest relatives are a son of a de- ceased granduncle, grandaunts and descendants of deceased grand- aunts, the son of the deceased granduncle is the intestate's heir." B. Personalty. § 70. Quarantine and Exemptiofls,-^Widow's quarantine, i. e., her right to remain in her deceased husband's chief house for forty days after his death without paying rent and in the meantime to have her reasonable sustenance out of her deceased husband's estate, has been discussed elsewhere,^** and reference is made to that dis- cussion. In addition to this right of sustenance from her intestate husband's estate, a widow is granted certain personal property which belonged to her deceased husband, if he have a family, which is exempted from inclusion among the assets of his estate.^* It con- sists: (a) of all house-keeping utensils, musical instruments, sewing machine and household furniture used in and about the house and premises, fuel and provisions, and the clothing of the deceased, in all not exceeding in value $500; (b) of the family Bible, family pictures and school books, used by or in such family, and books not exceeding in value $50, which were kept and used as part of the family library ; (c) of domestic animals with their necessary food for sixty days, not exceeding in value $150 ; (d) of money or other personal property not exceeding in value $150,^' No allowance can be made in money or other property for such house-keeping uten- sils, musical instruments, sewing machine, household furniture, fuel, provisions, clothing, famiily Bible, , family pictures, school books, books used and kept as part of the family library, domestic 'Chase's "Blackstone," (2d ed.), " Hunt v. Kingston, supra, pp. 382, et seq. "»' See § 37, supra. "Hunt V. Kingston, 3 Mise. 309, i^ G. C. P. § 2670. 19 L.R.A. 377, 23 Supp. 352' (1893). " C. C. P. § 2670. N. Y. E. & S.— 5. 65^ NEW YORK.iESTATES AND , SURROGATES §71. animals, and their necessary food fpr-. sixty days, if such articles or things do not exist; but, in such a caae,i the widow is. only entitled to money or other personal property not exceeding in value $150.^* Articles in the category of persgn^l .effects which are ordinarily exempt and go to the widow without appraisal are none the, less sO' because the intest3.te was not. the sole owner of them, but had only an ijindivided. interest in them.^' The title to property exempted to the widow vests in her absolutely op her, husband's death, not only iis against creditors. and, npxj};pf kin but,£is against legatees, subject only to, the administrator's ., or ; executor's right to take possp^sipH; thereof, to: include and state it in his inventor j'.^°,; The failure; of appraisers, to set aside to a widow her statutory ,exempti©ns neither divests her of her rights nor requires her to apply to atnend. the in- ventory, as the correetiori may bemade on the legal representative's accounting..^'' The husbaiidi can no more by his will divesfr his widow of her right to statutory exemptions in his personal property than he can of dower of his real estate, i. e., he can only do this by some provision in his will made,in,]3,er favor ,\yhei,'eby sh^ is- directly or by implication put to her election either to, Accept the testamen- tary disposition or reject. it ^d we .lipr ex^mptiqns.^' A devise by A husband tphis widow, of specific lapds'in lieu npt pnly pf her dower bnti."alsp of all statuto,;y, allo\xapices";bars,he],', if she elects tp take under tlie.will,, from; dower, qiiaran tine ,an(i) exemptions, bijit.not from a distributive share of his p^icspnal es.tate.^* The. subject of exemptions is .treated. further qn aQd,,refere(noe is ma,de*- tljiereto.^" § 71.. Husband's J'itle to Wife's Personalty,— In deteffl^iping what title a,. surviving, husbajid has jtp his defjea^eii wife's, p^rsoo.ai property four possible sources of his title;mwst,be bqrrie in,mind,: 1*0., C. P.;§<,2670. ..j; '".Matter of :^pllenb(eck, 195 N. Y.. A widow's right to a yearns support 143, 133 'Ain. St. Rep. 782, 88 N.' E. or' allowance oiit of a fund recovered 16 (1909 J/' old code §' 2713, new for the negligent killing of her' tus-i code, § 2.670. .i,, , baud is tajien up in note in 42 L'.R.A. . ^^. Vedder v. Saxton, 46 Barb, 191 (N.S.) .725, . .;„ , ,, ,:,(18^5). The widow's, right to, a year's sup- "Matter of Maack, 13 Misc. 368 port or allowiince out of insurance (1895), or 35 Silpp. 109^ yUi Code, §§ money is discussed ■ in ;note in 46 2720, 2721, new codejg 2670; ;, L.R.Ai.:(N.S,) 788 ,,.■ _ ," Matter , of ; Allen, 36 ,]M|:js,c. 398 ,As I to wadp.Ay's right, to exemption , (1901), or 73, Supp. 750. or allowaiice for support ' out of the '' Matter of Mersereau, 38 Misc. personal assets of estate ' 'of • deceased' 908 (1902), or 77 Supp.- 329 husband who was a nonresident see The waiver of right to widow's al- note in .11 L.R.A. (N.S.) 361. i lowance; by an antenuptial agreement On the right of a nonresident- wid- is set forth in note in 25 L.R.4^.(NjS.). ow to statutory allowance, see note in 751. 21L.R.A. 241. -, ' ■ ^o See § 228, infra. 66 § 71 ■ INTESTATE SUCCESSION (1) her will; (2) exemptions accorded him by statute ; (3) hi,~ dii^- tributive share 'under the statute of distributions ; and (4) his com- mon law rights. A wife m^y will all her i^ersonalty awfly from her husband : even as to his statutory exemptions she may, by a provi- sion for him in her will in lieu thereof, put 'him to his election. These exemptions accrue to him whetlier his wife died testate or in- testate; in the same manner and under the same circumstances :is like exemptions accrue to a wife on the death of her husband before her; and are of the same character. Reference, 'therefore, is ntade to the disciission of the statutory exemptitins in a widow's behalf; for a determination of a husband's exemptions.^ ' ' The Statute of Distribution provides that the husband of a de- ceased married woinan leaving descendants her surviving is'' entitled to the same distributive share in her (his wife's) personal-property to Which a widow is entitled in the personal propei?ty' of her hus- band; and the provisions of the Statute of ' Distribution apply to the personal property of a married woman leaving descendants.^ In determining the distributive share of a husband in the estate of an. intestate married woman; the first question, to answer is: Did she leave any descendants? If she' did, her: husband takes the same share of her estate that she would take of his had he predeceased her and left descendants.^' The husbaind takes his distributive share of his:decea.sed wife's personalty although he i killed her while in- tending tokill another; because the killing was not:done with ; the- intention of getting such distributive share.*, ., ';■ , ,■ There is nothing in the Statute of Distribjution tO; disturb the common law right; of a husband; of a deceased wife, dying without descendants, ;to take aTasolutely all fif jher jUnbequeathed assets.^ If, a ^ deceased in,tes,tate,^ma^'rie(i wqmap, , left a ,hi:^sband .but no descendant, his share in her personalty is not determined by the Statute, an^ rgsort niust ,behad tf> thg common .]^^\y;.upder.whjch, he takes all personalty whiehhis wife, possessed at marriage and which has come to her since their' marriage;, and allihefr choseS in action which he h£)s recovered during the coverture by' virtue hf the mari- tal relation, his right .thereto, not being dependent upon his right to administer, or his actuar administration upon-her estate.^ ■ On the " 1 '■-'".-■ . ', :i ' *See § 70, supra, and § 228, infra. 'Matter 'of Green or Mever.' 6.3 "Dececi. Est. L., § 100. Misc. 638 (1909), or 118 Supp. 747. s Robins v. McCliire, 100 N. Y. 328, « Robins v. McClure, 100 N. Y. 328, 53 Am'. Rep. 184, 3 N. E. 663 (1885) , 53 Am. Rep; 184, 3 N. E. 663 (1885) , § 79, c. 7,82, L. 1867, like § 100 Deced. holding that husband appointed exec- Est. h, ; Earties' V. Uiiderwpod, '47 N. utor of wife's estate could take lapsed Y. 351 (1872). " '■' ' legacy^a's to wWch she died intestate * Matter of Wolf or Fox, 88 Misc. —even though he could noty being al- 433 (1914). '*eady executor, take out administra- 67 NEW YORK ESTATES AND SURROGATES § 71 death of a married woman possessed of separate personal estate with- out having disposed of it in life or by will, its title in her surviving husband cannot be affected by any grant of administration on her estate.' The fact that the wife is living apart from her husbajiid does not affect his common law rights in her unbequeathed personalty.* Even though the husband do not take out a,dministration, he may receive payment, of, and disch,arge a chose in action of his wife,® and transfer his wife's personalty validly, if he retain enough to pay her debts." The change in the beneficiary of a life insurance policy on a man's life after the death of his first wife intestftte from her to his second wife, vests the interest in the policy in the latter, because the change is equivalent to reducing the policy to the husband's possession, it being a chose in, action of the first wife.^* Under the will of a wife leaving no child or descendant , but only brothers and sisters, which gave her husband all the use ,of all her propertj"^ for his life and said nothing more, the husband tak^ a life estate under the will and all the property as in intestacy.^^ A bank properly refuses payment, on demand or suit by, a husband of it^ depositor, of a de- posit in her name when she dies leaving a will appointing an execu- tor to advertise for and pay claims; even though by antenuptial agreement she agreed that her husband should have absolute title on her death to all the personal property which might be left by her, as what was left could not be known till her creditors had been paid.** A joint deposit of a savings bank fund in the names of hus- band and wife gives the survivor title to the whole without need of delivery of any indidia of ownership by the one to the other." As to choses in action of his wife not recovered by the husband during coverture, administration by someone is probably necessary to reduce them to possession; and by statute the husband has prior tion on her estate; Barnes V.' Under- husband had been appointed adminis- wood, 47 N. Y. 351 (1872) ; Vallanee trsttor of wife's estate, husband legal- V. Bausch, 28 Barb. 633 (1859) ; Fry ly qpuld receive payment of and dis- V. Smith, 10 Abb. N. C. 224 (1882) ; charge not^ of , wifp; , Vallanee v. Austin V. Metropolitan St. Ry. Co. Bausch, 28 Barb. 633 (1859'). 108 A. D. 249, 95 N. Y. Supp. 740 "Tompkins v. Rice,' 55 Hun, 563 (1905) ; Peck V. Richardson, 17 A. D. (1890). = :. 618 (1897). " Olmsted v. Keyes, 85 N. Y. 593 ■'Gittings V. Russel, 114 A. D. 405 (1881). (1906), or 9.9 Supp. ,1064, afi'd 187 ^^ Matter of McLeod, 32 Misc. 229 N. Y. 538, 80 N. E. 1110. (1900), or 66 Supp. 255. . * Austin V. Metropolitan St. Ry. ** Fochner v. Huber, 42 A. D. 439 Co., supra; Barnes, v. Underwood, (1899), or 59 Supp. 447. supra. :■ , , "West v. McCullougli, 123 A. D. 'Ransom V. Nichols,. 22 N. Y. 110 846 (1908), or 108 Supp. 493, afE'd (1860)--when i someone other than 194 N. Y. 518, 87 N. B. 1130. § 71 INTESTATE SUCCESSION right to administration." In the event of a husband's death with- out administering his wife's estate, his next of kin are entitled to ad- minister and hold as their own the choses in action which belonged to his wife and which he did not reduce to possession.^* Letters of administration granted, on the estate of a deceased wife after the subsequent death of her husband, when she left no descendants, to her next of kin^ will be vacated ; because her assets belonged to her husband whether he took out administration pn her estate or not, and therefore passed to his administrator as part of his estate.^'' The law of tenancy or ownership by the entirety does not apply to per- sonal property; so that a husband as administrator of his wife is chargeable as administrator with one-half of the proceeds of a bond and mortgage on realty owned by him and his wife jointly which they took as part of its purchase price on selling it.^* The executor of a husband is properly denied an application to have set oflf from the wife's personal estate property exempt to the husband by statute, when the husband in his life orally declined the offer of the wife's executor of a cash payment in satisfaction of his claim to statutory exemptions, stating he wanted nothing from his wife's estate ; and died ; and when the accounting of the wife's execu- tor on which the application was presented was over six years after the expiration of eighteen months from the issuance of letters on her estate; because not only did the husband waive his claim, but the Statute of Ijimitations is a bar to iti^' A man divorced for adultery in New York State and prohibited from marrying again during his wife's lifetime, cannot, while the latter lives, share under New York law in the personal estate of an alleged second wife."" A husband is not deprived of all rights in his wife's estate on her death by an agreement of separation between them to the effect that she would make no demand for support and he would "not make any claim of any kind against" her and "releases her from any and all claims whatsoever," even though the husband was guilty of cruel and in- hum3,n treatment to his wife, and of adultery, unless there was a final decree.^ The Married Women's Acts have no effect upon the common-law " C. C. P. § 2588, subd. 1; Barnes " Matter of Baum, 121 A. D. 496 V. Underwood, 47 N. Y. 351 (1872) ; (1907), or 106 Supp. 113; app. Ransom v. Nichols, 22 N. Y. 110 dism'd 190 N. Y. 564, 83 N. E. 1122. (1860) : Vallanee v. Bausch, 28 Barb. " Matter of Campbell, 96 A. D. 633(1859). 561, 89 Supp. 569 (1904). "Matter of Nones or Negus, 27 8" Matter of Tabor, 31 Misc. 579 Misc. 165 (1899), or 58 Supp. 377. (1900), or 65 Supp. 571. "Matter of Thomas, 33 Misc. 729 i Jardine v. O'Hare, 66 Misc. 33, (1901), or 68 Supp. 1116, old code, 122 Supp. 463 (1910). § 2660, new code, § 2588. 69 NEW YOBK;i estates A.NP SURROGATES §§ 72^ 73 right of ;a, Husband, to the personalty of his depeased wife as to which she died ' intestate, without . descendants.^ .■,- , ;> ,;. §: '72, Children's Bxemptions; — If a; father Qr mother, i, e,,. a- pole surviving parent; having a family, die; .leaving ^ /minor; child or children, such child or children is entitled to . hav* set off to. it as e:s:empt iproperty the arti(ileSj things and tnoney of the, sanie char- acter asi would ihavft been set off, ^-exempt property, to the surviving spouse of the ■ decedent, had there been such an.one,^ , It should be remembered, however, .that only children under .twenty-one years of-age are entitled to .these; statutory exemptions, and that eventhej- are.ho;t entitled if their mother leave a husband or their father a widow surviving her or him,' as the case may be.* Reference is made to the. discussion of exemptions found elsewhere in; this volume for, fuller treatment of this subject.^ ■ , ; , § 73. ■, Distribution: Ini Generak-f— When a decedent owning per- soHal property fails to provide by -will who shall, have it on: his death, resort must be had to the Statute of Distribu.tion to determine who shall take it.* In general, the term "distribution," when applied' to the estate of a deceased person, refers to the ultimate division of the estate- amotig the next of kin, in Case of intestacy, or among the ben^ eficiaries under a will, after the estate is free from debtJ We are here concerned only with distribution in the sense of the division of the pisi'sorial property of one Who dies without leaving 'a will dis- posing validly of a:ll his personal estate. Those Who take an intes- tate decedlent's personal' property iinder the Sta!tute of -Distribution ai'e known ^3 the deceased's "next of kin," except that when the decedent is a mp,rried mail or wOtnan, his widow or her ntisband, though hot his or her ne|Xt of kin, also shares in the distribution of his or her personalty. ' "The proper primary signification of the words 'next of kin' is thpse related by blood who takfe personal estate of one who dies intestate." ' Husband and wife afe not iieXt oJF kin, as the, primary meaning of next, of kin includes only relatives in blood.^ The underlying- principle of the Statute of Distribution is 2fiobins V. McClure, l00'N.''y.'^28, " '' Thdmsoh v. Tracy, 60 N. Y; 174 53 Am. Rep. 184, 3 N. E. 668 (1885) ; (1875). Barnes v/ Underwooa, 47 N. Y. ci51 * Tillman v. Davis, 95 N. Y. 17, 47 (1872):' Ransom V. Nichols, 221 N.'Yj Am. Rep. 1 . (1884) . , ,,•,, i . lltf '(I860) ; Vallance v. Bausch, 28 » Liice v. Dunham, .69 N.,,Y. 36 Barb.633 (1859); Shumwayv. Coop- (1877).* Piatt v. Mickle, 137 N. Y. er, 16 Barb. 556 (1853); Biirke vi 106 (1893); Matter of Devoe, 171 N. •Valentine; 52 Barb. 412 (1868)i Y. 281, 57 L.R.A. 536, 63 N. E..1102 »C. C. P. §'2670. ••'•'• "''■' (1902); Murdock v. Ward, 67 N. Y. * C. CJ.P.'i 2670. ' ■ 387 (1876).'; .Keteltas v.. Keteltas, 72 5 See § 70, sm^rai and | 228, infra. N.. Y. 312,..28 Anu Rep. 15^. (1878) ; «Deced. Est. h., §§ 97 et seq. Dickens v. N. Y. C. R. R. Go. 23 70" § 74 ■ INTESTATE StiTCdlESSION to first find the nearest class of relationship to the intestate,, and then to give to each one in such nearest class' ati. equal' share of the intes- tate's estate; and to allow to the representatives of any in that class who have died ithe share to which the parent wotild liave be'en en- titled!'"' A relationship must exist either at common law or by stat- ute to permit of distribution, and, therefore, the infant son of a deceased unmarried sister of an intestate 'caiinot share in the latter's estate; as there is no relationship, because no' statute ameliorates the illegitimate infant's condition and his status is governed by the com- mon law.^^ The proceeds of the sale by executors of realty under a valid te^amentary power go as personalty to the personal represen- tatives of him to whom the reialty was given, if he die aftSr the sale.^^ The distribution of the personal property of married women dying, leaving descendants them survivihg, is governed by the provisions of the iStatute of Distribution which control iri other cases; and the husband of any such woman is entitled to the same distributive share in her personalty as a widow is entitled to in the personalty of her husband.^' ;; ,. , - A person who fraudulently produces an infant, falsely pretend- ing it to have Jaeen born of a parent whose child is or should be entitled tp inherit., real property, or tq receive a share of personal property, with intent to intercept the inheritance of such real prop- erty or the distributiqn of such perso:iial property, or to dgfraud any person out of such property or any interest therein ; or who, with intent fraudulently to obtain any property, Jfalseljr represents; him- self or another to be a person entitled to an interest or share in the estate of a deceased person, either as executor, administrator, husband, w;ife, hfiir, legatee, devisee, next of kin, gr relative of such deceased person, is punishable by imprisonment in a state prison for not more than 10 years. '^^ § 74. Id.: What Law Determines.— The devolution and disposi- tion of movable property of a decedent are' primarily governed by the law of the place of his domicil, wheresoever. his personal proper- ty may be situated." ' N. Y. 158, 5 Ani. Neg. Gas. ]B1 pate with those standii^g ia equal (1861) ; U. S. Trust' Co. v. Miller, 57 degree of relationship, -tvith suoh rela- Mise. 500, 109 Silpp. 938 (1908). tive in provisioii', for' "next of kin" On husband and wife as the next etc., see note in 28 L.R.A.(N.S.) 479. oJE kin of each other, see note in 15 ^^ Matter ; of .Lauer, 76 Mise. 117, L.R.A. 303. , ;■' 136 Siipp.;;325' (1912).' . '' 1" Matter of Nichols or Prote, 54 ,*'i^ Matter of McKay, 75 A. H. 78, Misc. 495 (1907), or 104 Supp. 581, 77 Supp;'845 (1902). afl'd 133 A. D. 928, or 'll8 Supp. ' '"D'eced. Fst. L., § lOO. 1136. I*"' Penal Law, § 922. Oh the rig-ht pf persons claiming "Matter of Hollins, or Cadwala- through decetised relative to partici- der, or Beech or Manchester,' 79 Misc. 71 NE>V YORK ESTATES AND SURROGATES § 75 § 75. Id.: When Widow and Descendants Take. — If there be a widow and descendants, one third of th6 surplus of an intestate's personalty after payment of his debts goes to his widow and the res- idue in equal portions among his children and such persons as legal- ly represent the children, if any of them have died before the de- ceased." A provision by a husband in his will, made for his wife in lieu of dower, though accepted by her, does not prevent her from taking her distributive share in any personal estate of which he may die pos- sessed intestate." No testamentary gift by a husband for a wife, not made in lieu of any claims by her against his estate, affects her right to a distributive share in any personalty of which he may die pos- sessed undisposed of by will." A provision by a husband in his will for his wife must be unequivocal to be held to be in lieu of any in- terest in his estate 'given her by law; it will never be so "con- strued." " A statute provides that when a decree of divorce is founded upon the misconduct of the wife she shall not be entitled to any distribu- tive share in his personal estate.** The same rule applies after any decree of divorce between the husband and' wife, however innocent the wife may be; because "the relation of husband and wife, both actual and legal, is utterly destroyed, and no future rights can there- after spring out of or arise from it," and the wife has no vested rights in a husband's personalty, as she ma,y have an inchoate right (of dower) iii his realty.^" 200 (1913), or 139 Supp.! 71^— aflf'd Barandon, 41 Misc. 3,80 (1903), oi 144 Supp. 1121 — decedent appointed 84 Supp. 937— condition in will de- different sets of executors for various f eating legacy if legatee contests, countries ; Sultan of Turkey v. Tiry— making legacy void, in country of gakian, 162 A. D. 613 (1914), ;or 147 teistator's domicil,^ voids it also here; Supp. 978, aff'd 2i3 N. T. 429, 108 Maas v. ' Gfernian' Savings Bank, 176 N. E. 72; Despard v. ' Churchill, '53 N. Y. 377, 98 Am. St. Rep. 689, 68 N. Y. 192 (1873)— testacy; Flatauer N. E. 658 (1903) ; Parsons v. Lyman, V. Loser, 156 A. D. 591 (1913), 141 20 N. Y. 103 (1859). Supp. 941, or 142 Supp. 1117, rev'd »* Deced. Est. L., § 98, subd. 1. on other point 211 N. Y. 15, 104 N. " Hatch v. Bassett, 52 N. Y. 359 E. 1123; Matter of Ruppaner, 15 (1873) ; Canfleld v. Crandall, 4 Dem. Misc. *654 (1895), or 37 Supp. 429; 111 (1885); Edsall v. Waterbury, 2 aff'd 9 A. D. 422, 41 Supp. 212; Redf. 48 (1871). Minor V. Jones, 2 Redf. 289 at p. 293 "Lefevre v. Lefevre, 59 N. Y. (1876); Graham v. Public Adminis- 434 (1875). trator, 4 Bradf. li27 (1856) ; The , "Sheldon v. Bliss, 8 N. Y. 31 Public Administrator v. Hughes, 1 (1853). Bradf. 125 at p. 126 (1850) ; Bloom- I'Real. Prop. L., § 196. er V. Bloomer, 2 Bradf. 339 (1853) ; «•> Matter of Estate of Ensign, 103 White V. Howard, 52 Barb. 294 N. Y. 284, 57 Am. R«p. 717, 8 N. E. (1868), aff'd 46 N. Y. 144; Matter of 544 (1886), in which Finch, J., said: 72 ' ■ §§ 76-78 INTESTATE SUCCESSION § 76. Id.: When Widow and Next of Kin Take.— If there be a widow but no children or legal representatives of children, one-half of the surplus of an intestate's personalty after payment of his debts is allotted to the widow, and the other half distributed to the intes- tate's next of kin entitled by the Statute's provision.^ The next of kin entitled, in various contingencies, will now be separately con- sidered: — ' If the intestate leaves a widow and a brother, sister, nephew, or nieces, but no descendants or parent, the widow gets one-half of the surplus of the intestate's personalty after payment of his debts, and also the residue, if it does not exceed $2000 ;• and $2000 of the resi- due, even if it does exceed $2000; and the remainder goes to the brothers and sisters and their representatives." So, when a widow, nephews, nieces, grandnephews and grarid nieces, but no other rela- tives, survive an intestate, the widow takes one-half of the intestate's personalty and $2000, in addition, while the remainder goes to the nephews and nieces ; ' and if a widow and brother and sister only survive, the widow takes all if the estate is not over $2000, in value ; and one-half if over $2000, and $2000, in addition.* If the intestate leaves a widow but no descendant, parent, brother, sister, nephew, or niece, the widow gets the whole surplus of the intestate's personalty after payment of his debts.* If the intestate leaves a widow, a mother, brothers, sisters or rep- resentatives of the latter, but no child, repr^ehtative of child, or father, the widow gets one-half of the surplus of his personalty after payment of his debts, and the other half is distributed in equal shares to his mother, brothers, sisters, or representatives of his broth- ers and sisters.* § 77. Id. : When Descendants Take. — ^If an iiitestate leave no wid- ow, but children and such as legally represent them, the whole sur- plus of his personalty after payment of his debts is distributed equally to and among such children and their representatives.'' § 78. Id.: When Next of Kin Take. — If there be no widow, chil- dren or representatives of a child of an intestate, the surplus of his personalty after payment of his debts is distributed in equal shares "Suppose that, with unusual activity, * Canfield v. Crandall, 4 Dem. Ill he" (the husband) "should leave (1885). four" ("widows," i. e. divorced * Deced. Est. L., subd. 3, § 98 ; wives), "how could each get one-third Matter of Hardin, 97 A. D; 493 of th6 personalty?" (1904), or 89 Supp. 978, afl'd 181 1 Decedent Estate Law, § 98, subd. N. Y.'513, 73 N. E. 1124. 2. 6Dgced. Est. L., § 98, subd. 6. 2 Deced. Est. L., subd. 3, § 98. ' Deced. Est. L., subd. 4, § 98. » Doughty v. Stillman, 1 Bradf . 300 (1850). 73 NEW YORK ESTATES AND SURROGATES , § 78 to his, next of kin in equal degree tQ him,, and their legal represen- tatives.^, Who these nexti of kin, are depends upon, ,what relatives of the intestate survive him,, and will now be considered: — If no widow or child or de^eejidant, but a, .father,, survive the intestate, the father is his sole next of kin.^ If no widow, child, descendant, father, brother, sister,: or repre- sentative of brother or sister, but a mother, survive the intestate^ the mothe^r is hissole next of kin,^", . . ,|,,., .;,> If no widow, child,, descendant or father, but a mother, brothers, sisters,, or representqitiyes of,,bjpthers and . sisters, .survive the intes- tate, the mother, brothera, sisters, or representatives of brothers and sisters, are his equal ,ne?it of , JdniW When the intestate leaves as next, of kin a niother and half-sister, the latter, takes equally with the former, as.rglatives.of, the half-blood take equally with relg.tives of the, whole blo;o^ in ,j:he same degree.^^ An intestate leiaving a mother, brotliers. and sist^rsi and children of a deceased brother, but no wife, children, descendants, or father, has for ne:^j;,of kiri the mother, brothers, .gisters, ap4' chjldren of the deceased brother : the mother, brothers and sisteffs each taking a share and the children of the deepased: brother taking collectively a sharp, .and. eaphpf sucl, shares being eqijal." ' ,.^.. ,■ ,>,.,. ,,, , .. , ,. If no widow, child, descendan>t, fat^iier or,moth^r, but a|l, his broth- ers and .sisters, suJ^vive th^ intgistat^j they are his sole nejft of kin.** So, ;the next of :{ii}i,-;Of;^n, intestate, .leaving a, rninor brother, and a paternal grandfather;, but no widow, child, des,c^ndan,t or parent,. is the minor brother.'?, , -i, „ ,,],*, ,, ; ,.,-,1, :,■ , ,. ,, ; If no. widow, child, descen,dant,,father,pr mother, but. some of his brothers or sisters, and descendants of some of his deceaspij.l^rothers or gis|;ers, survive, ihe ,i{ntes,tate.y,. his surviving brothers, or sisters and the .des^endaiife of bis 4epp9^^e. i^'Deced. Est. L., § :98„ gubd. 15a. (J915). The analogous, section (91). of the ,, ^o Deced. Est. L., § 98, subd. 14; Statute of, ijesc^nts Inas beep, held Mason v. Jones, 2 Barb. 229 (1848), uncoH^titutional in^ an unsatisfac- 2 R. S. 754, § 18, and 2 K. S- 65, § 49, torily. reasoned opinion by Surro- like- Deced. .Est. L., § 98j subd. 14 gate Fowler of New York County: (descent). Ma,tter of Le.slie, 92 Misc; 663i 156 ^ See § 407, infra. . Supp.-346 '(1915). : ■ 75 NEW YORK , -ESTATES ■ AjND SPB-ROGATES . , J 82 the part of his or her mother take in the same manner as if the. intestate had been legitimate.* So,iif an illegitimate dies intestate leaving his illegitimate sister, but neither his father nor his mother surviving him, the illegitimate sister- takes the intestate's, personal- ty, even though the father had legally adopted the son by, the, laws of a foreign country ; because the sister is the only- living descend- ant of the mother.' The subjects of illegitimacy and marriage are more fully treated elsewhere in this work.* If a woman die leaving illegitimate children but no lawful issue, the illegitimate children take her personalty as if legitimate,' "All children are 'issue' of their parents, for the operation of natural laws favorable to the procreation and birth of offspring is not afiEect- ed by the existence or non-existence of a marital contiract. But when this word relating to children is qualified by the adjective 'lawful,' it is ordinarily, understood to mean those begotten and born in lawful wedlock and no others." ' The: right of an illegiti- mate child to take from the mother does not give such child the right to succeed to the property of the maternal kindred.' Inter-, marriage of the parents of an illegitimate child legitimates the child for all purposes and entitles the child to all the rights and privileges of a legitimate child; except that an estate or interest vested or trust created before the marriage of such parents- is not divested or affected by such child's legitimation.' Such an inter- marriage occurs though one of the parents when married had a spouse living, if, -after such spouse's death, the cohabitation con- tinued as husband and wife.' Marriage and legitimacy are con- sidered more broadly elsewhere in this book." § 82. Id. : From Adopted Person. — The blood parents of a legally adopted child have no right to the latter's property by succession.^' This does not mean, however, that a surviving blood parent or a blood parent who has procured a divorce (provided such parent has « Deced. Est. L., § 98, subd. 9l « Central Tr. Co. v. Skillin, 154 A. 'Matter of Lutz, 43 Misc. 230, 88 D. 227, 138 Supp. 884 (1912). Supp. 556 (1904). » Matter of Cunningham, 76 Misc. On illegitimates as next of kin, see 117, 136 Supp. 325 (1912) — illegiti- note in 15 L.R.A. 301. mate child of intestate's deceased sis- On descent by, through or from an ter. illegitimate, see note'in 23 L.R.A. 753. ' Dom. Relats. Li., § 24. On the conflict of laws as to legiti- ' Matter of Schmidt, 42 Misc. 463 macy of distributee, see note in 65 (1904), or 87 Silpp. 428. L.R.A. 178. 10 See § 13, et seq. supra. On the rights of lineaj descendants " Dom. Rels. L., § 114; Carpen- of an illegitimate to inherit through t6r v. Buffalo General Electric Co., him, see note in 27 L.R.A. (N.S.) 220. 213 N. Y. 101, 106 N. E. 1026 * See § 13, et seq. supra. (1914); Matter of Cook, 187 N. Y. "Deced. Est. L., § 98, subd. 15. 253, 79 N. E. 991 (1907). Compare 76 8 »a IJSTEISTATK SUCCKISSiOK lawful custody of his or her child) , by consenting to the adoption by his or her spouse (who has become the child's stepfather or step- mother) of such child, is thereby deprived of any of his or her rights to the child's property by succession.^* In any other case of legal adoption (i. e. by anyone except a step-parent by consent of a blood parent) the foster parent or parents have all the rights of succession to the child's property." If a foster parent, having lawful custody of the child and being an adult unmarried person, marries, he or she is not, by consenting to the adoption of the child by his or her spouse, deprived of any rights to such child's prop- erty by succession." A minor adopted child is not, however, deemed the child of his or her foster parent so as to defeat the rights of remaindermen under the provision of any instrument rendering the passing and limitation over of personal property dependent on the foster parent dying without heirs." On legal adoption of a child, the latter's next of kin are the same as if he or she were the legitimate child of the person adbpting; " except that adoption, by consent, of a child, by the spouse of its sur- viving or divorced or unmarried foster parent, does not make the child's next of kin ahy other than they would have been had adop- tion by such spouse not been had or consented to." So, on the death of an adopted child intestate, leaving his blood but not his foster parents surviving, the persons entitled to take the child's per- sonalty as his next of kin are the relatives of the foster and not of the blood parents." The siibjects of adoption in general and inheritance of real prop- erty by and from adopted persons have been heretofore treated " and reference is made to such treatinent. It must be remembered that adults as well as infants may now be adopted ; and possibly the laws of distribution to and from adopted minors apply to adopts ed majors. . § 83. To Adopted Person.— The question of the right of an adopt- ed child to inherit from a foster parent is determined by ihe Matter of MacRae, 189 N. Y. 142, 81 » Dom. Eels. L., § 114. N. E. 956, 12 Ann. Cas. 505. " Carpenter v. Buffalo General i^Dom. Eels. L., § 114. , Electric Co. 213 N. Y. 101, 106 N. "Dom. Eels. L., § 114. E. 1026 (1914) ; Matter of Cook, 187 On inheritance by or from adopted N. Y. 253, 79. N. E. 991 (1907). child, see note in 17 L.E. A. 435 and " Dom. Relats.' L., §' 114. note in 65 L.E.A. 186 on law gov- "Carpenter v. Buffalo General eming the same. Electric Co. 213 N. Y. 101, 106 N: ' On the descent and distribution of E. 1026 (1914). property ' of an adopted child, see "As to inheritance," see § 62, 63, note in 43 L.E.A.(N.S.) 1056. supra; and as to adoption in gen- "Dom. Eels. L., § 114. eral, see § 29, 30. 77 NEW YORK ESTATES AND SURROGATES § 83 law in force at the tinae of the foster? parent's death.*" A will giving part of the testator's estate to those- who would take in qase of intes- tacj lets in a child adopted under an act which did not give adopt- ed children the right -to, inherit, if the testator was living when an act was later, passed which gave adopted -children the right to in- herit,,^ '- ' . ■ ;. , : After legal adoption of a child,- not only do the latter's; rights of succession from his blood parents remain unaffected, but the child has all rights of succession^ from his or her foster, parent or par- ents, as wells; ^ except first, that such child is not deemed the. child of the foster parent so as to defeat rights of remaimJer under the pro- visions of any instrument rendering the passingand limitation over of personal property dependent upon the foster parent dying with- out heirs; and except, secondly, that it is probable that adoption by the spouse of a surviving parent, a divorced parent or an unmar- ried, foster parent, of a, child, with such parent's consent, does not entitle the child to, succeed to; such spouse's personal estatCi i A child legally adopted J^rpm a .charitable institution may in- herit or succeed to the foster-parent's property like aiiy. other legal- ly adopted child; *., but- there niiist be the statutory, legal adoption.^ A child adopted from an institution, under, a deed of trust leaving, property to the child's foster pai-en^s for life and qn their, death without issue 1^ the phild's, father's (who survived the moither) .n'ext of kin, is entitled to , such property on the father's death without issue.' "" ■ -" - ' ' t, A limitation in a dped or will to a child or children, or condi- tioned tigori the Survivorship of a child oi: children, is^not deemed to include * an adopted , chUd, when the grahtbr or testatoi: is a *" United' States Trust Cb. ' v. succession,' Simmons v, Burrell, 8 Hoyt, 150 A. D. 621, 135 Supp. 849 Misc. 388 (1894), or 28 Supp. 625. ' (1912), see § 62, 63, supra. * Dom. Rels. L., § 114; Compare, On the right ^ota. child adopted in Von Beck v. Thomsen, 44. A. D.- 3,73 another state to' take under local stat- (1899), 'or 60 Supp. 1094Varf'd 167 ute-of descentand distribution, see' N. Y. 601, 60 N. E. 11^1 ;• and Kto^-' notes in 21 L.R.A.(N.S.) 679; 25 v. N. Y. Produce E -change, 34 A. D. L.R.A.(N.S.> rl285; L.R.A.1916A, 175 (1898), or 54 Supp. 678. -i, !- 666. , - On the right ; of adopted child; to ^Dodin V. , Dodin, 16 A. D. 42 inherit property from a relative -fct (1897), or 44 Supp. 800, afi'd 162 N.i its adoptive parent, see: notes in 17 Y. 635, 57 ,N, E. 1107, L. 1873, c. L.R.A.: 435;, 8 L.R.A.(N.S.) 117; 33 S30, L. 1887, e. 7Q3. :,! , ,._ L.R.A.(N.S,);a39. ; On the power to give child uiadfer *Bom.; Rels. L-, § 115. U. S. existing adoption /^right to inherit' Trust Co. v. Hoyt, 150 A. D.- 621 from parent or parent's relatives, (1912), or 135 Supp. 849. , < see note in 35 L.R.A.(N.S.) 216. Mlawkes v. Warren, 140 A. D. 712, .? "Inheritance" ,. used, in ,8tatij.te, 125 Suppi; 820 (1910). Dom. Rels. L., § lllti.but applies to-^ 'United States- Trust Co. v. Hoyt, §§ 84, 85 INTESTATE SUCCESSION stranger to the adoption.'' ' A child adopted by a testator, after he had executed, his will but before his death, caiinot take when the will provides that the children of a deceased child slrall have the share' which such child would have taken if living; as, if such adopted child were allowed to take, it would defeat the provision of the stat- ute relating to adoptions that an adopted child shall not be deemed to sustain the legal relation of child so as to defeat the remainder- men under a previously executed will.* An adopted child living at the' death of the widow of one whose life insurance on the wid- ow's death goes to their children is entitled' to share with the chil- dren of the body of such husband' and wife in such insurance.^ § 84. Id. : To Relatives of Half Blood.— Relatives bf the half blood of an intestate! take 'equally with those of the whole blood' in the' same degree, of the surplus of such intestate's' personalty after pay- ment of debts; and the represehtatives of such 'relatives of the half blood take in the same manner as the representatives 6'f such rela- tives of the whole blood." So, when an intestate leaves as next of kin a mother and a half-sister, the latter takes equally with the for- mer.^* The children of a half-sister of a decedent are not next of kin to the decedent." '' § 85. Id. : To Equal and Unequal Degree. — When the descendadts or next of kin of any intestate, entitled to share in his estate;' are' all in equal degree to hiiii, their shares are' equal.^^ So, when" an intestate leaves as 'next of kin a' mother and /half-sister, the latter takes equally with the former;" and when' ho widOwj' artcestoT, descendant, brother or sister, but uncles, and aunt and first' and sec- ond cousins, survive an intestate, the unoleS and aunt and not the cousins are 'next of kin (the former bein'g of the third and the latter of the fourth degree of kinship). ;^^ and when no widow, de- 150 A. D. 621 (1912), or 135 Suppl.' "Deced. Est. L., § 98, subd. 13. 849, Dom. Eels, L., § 114. ,, , As , to relatives of the half' blood as •^ Matter of Leask, 197 N. Y. 193, ne^t of kin, see note in 15 L.R.A. 301. 27 L.B.A.(N.S.) 1158, 134 Am. gt. On descent and dist/ibution among Rep. 866, 90 -N. E. 652, 18 Ann. Cas. kindred of the half blood, see notes 516 (1910). ' ^ _■ ia 29 L.B.A.. 541; 26 LiR.A.CN.S.) As to whether terms "child," qq^ "children," "issufe" ^&c., in statutes li j^^ ^^ ^^^^,^ Ept., 34,Supp. lai governing distribution o£ deced- • ^^ggg^ .^^^.g^bd. 7, § 98, Deced. Esti ent's estate, include adopted chil- i / . t, >c , , dren, see note in 30 ''L.R.A.(N.S.) 'r.-^^^^^^ ^_ E^e R. R. Co./ 202 'Matter of Hopkins,'43 Misc: 464,' N-J- 242 95 N E 699 (1911).-, 89 Supp. 467 (1904), ■ afiPd 102 A. D. J' Deced. Est. L.y:§ 98, subd. 10.-^ 458, 92 Supp. 463, L. 1873, c. 830. In re Bell's Est., 34 Supp. 191 9 Von Beck v. Thomsen, 44 A; D. (l'S95), and subds.'7 and 13, §98, 373 (1899), or 60 Supp. 1094 aiffi'd Deced. Est L'.- ' 167 N Y. 601v 60 N. E. 1121. " juj^tter of Nichols, 60 Misc.' 299 NEW YORK ESTATES AND, SURROGATES § 86 scendant, brother, sister, descendapt of brother or sister, uncle or aunt, but first and second cousins survive an intestate, the first and, not the second coiisins are uicxt of kin ,(the latter being one degree further removed than the former..)^* , If uncles, aunts, first and secqnd cousins; hut no widosr, acicestor, descendant, brother or sister survive., uncles and aunts, (not cousins) are next of kin; be- cause uncles and aunt are of third, and cousins of fourth degree of kinship." When the descendants or n^xtof kin of an intestate, entitled to share in his estate, are, of unequal degrees of kindred, the surplus of his personalty, after payment of his debts is apportioned among those entitled thereto, according to their respecti'ye stocks; so that those who take in their own right receive equal shares, and those who take by representation receive the share to whi«3h the parent whom, they represent, i if living, would have been entitled.^* So, descen4ants of . brothers aiud, sisters take to the exclusion of uncles and aunts and their descendants.;'' ' , .r § 86. Id.: Representation Among Collaterals, — -No representation is admitted among collaterals, after brothers' and sisters' descend- ants.'"* The brothers and sisters referred to are those, of , the intes- tate.* "The design,, was perfectly <.ftlear to prefer brothers and sis- ters of an intestate, and all the direct lineal descendants of broth- ers and sisters to the- remotest, degree, as distributees over all other kindred, rnot J in closer blopd; relationship to the; intestate, and thus conform the, distfibutipn of personalty to the descent of realty."* "Under thi§ subdivision;, the descendants. of brothers and sisters to the iremptest degree^ by jepresentation, share, in the distribution of an, estate. All collateral relafaves except descendants of brothers and sisters, are precluded from sharing in the decedent's estate by representation." ' Decisions of who aniong collaterals are next of kin to an intestate are collated as ' follows, — according to the persons surviving : — (1908), or 113 Supp. '277 and subd. . ^o Dgged. Est. L., § 98, subd. 12; 12, § 98 Deced. Est. L. " , ' Matter of Bartholick, 141 ¥.i Y. 166, "Matter' 6f Oatley, 83 Misc. 655 36 N. E-. 1 (1894). . ' , (1914), or 146 Supp. ra,6. ^Adee v. Campbell,. .79 N. Y. 52 " Matter of Nifehbls; '60 Misc. 299 (1879); Matter of Oatley, 83 Misc. (1908), or 113 Supp. 27'7^Deced. 655 (.1914), or 146 Supp. 796. Est. L., § 98, subd. 10 and 12. « Matter of Butterfield, 161 A. D. "Deced. Est; Li, § 98, subd. 11; 506 (1914), or 146 Supp. 671; afPd Matter df^ Earmers' Iloan ■& Trust 211 N. Y. 395, 105 N. '^. 830— Co. 68 Misc. 279, 125 Supp. 78 speaking of L. 1903, c. 367, and L. (1910). 1905, c. 539. " Matter of Butterfield, 211 ,N. Y. » Matter of Nichols, 60 Misc. 299 395, 105 N. E. 830 (1914), Deced. ; (1908), or 113 Supp. 277— old Code- Est. L., § 98. § 2732, subd. 12, after 1905 amend't. 80 § 87 INTESTATE SUCCESSION Cousins and descendants of deceased cousins ; but no nearer rela- tives: — cousins, and not descendants of deceased cousins, are next of kin.* First cousins and children of deceased first cousins; but no de- scendants, parents, brother, sister, descendant of brothers or sister, uncle or aunt: — ^first cousins, and not children of deceased first cousins, are next of kin.* Grandnephew, great-grand children and children of deceased uncles (first cousins) ; but no other or nearer relatives : — the first cousins are not next of kin.* Son of deceased sister, two sons of another deceased sister and one son of a son of a deceased sister; but no nearer relatives: — ^the three nephews and the child of the deceased nephew each get one- quarter of the estate.''. The next of kin of a decedent survived by a paternal grandmother, his father's sister, a son of his father's deceased sister and a half-brother of his mother as his only relatives, is the gran4™other.* § 87. Id. : Advancements. — ^When there is no real property of an intestate to descend to his heirs, and the intestate has advanced to any child of his, by settlement or portion, any real or personal prop- erty, its value must be reckoned with that part of the intestate's personal property which remains to be distributed among his chil- dren ; andj if the advancement be equal or superior to the amount which would be distributed under the statute to the child to whom the advancement was made as hi^ share of such surplus and ad- vancenlent, such child and his descendants are excluded from any share in the distribution of such surplus ; but if such advance- ment be not equal to the amount of such child's statutory share of such surplus and' advancement, such child or his descendants are entitled to receive so much only of the distributable surplus of the intestate's personalty as is sufficient to make all the shares of ♦Matter of Barry, 62 Mise. 456 161 A. D. 506, 146 Supp. 671* (1914), (1902), or 116 Supp. 798. aff'd 211 N. Y. 395, 105 N. E. 830. SAdee v. GampbeU, 79 N." Y. 52 « Matter of Blake, 60 Misc.! 627 (1879)— 2 n. S. 96, § 75, suM. 11, (1908), or 113 Supp. 944. like Deced. Est.,,L., § 98, gubd. 12, ''Matter of Nichols or Prote, 54 except that "children" instead of Misc. 495 (1907) or 104 Supp. 581, "descendants" of brothers and sisters aff'd 133 A. D. 928 or 118 Supp, 1136 used; Matter of Schlosser, 63 Misc. —old code, § 2732, subds. 5, 10, 11, 166 (1909), or 116 Supp. 796; afE'd- like Deced. Est. L., § 98. 120 Supp. 1145; Matter of Barry, 'Matter of Davenport, 36 Mis& 62 Misc. 456 (1909), or 116 Supp. 475, 73 Supp. 810 (1901), old Code 798; Compare Matter of Butterfleld, § 2732, subds. 5, 10, 11 and 12. N. Y. E. & S.— 6. 81 NEW YORK ESTATES AND SURROGATES § 87 all the children in such surplus and advancement to be eiqual, as near as can be estimated.* '. Set-offs against shares of estates are allowed to children or de- scendants only, and not to a widow of the decedent.^" Descendants of an intestate's child, who d;ed befqre the intestate, on settlement of the lattpr's estate,, can claim the benefit, of adytincement made by the intestate to his children." . , Maintaining or educating a child ; or .giving him money without a view to a portion or settlement in life is, not deemed an advance- ment." A gift to one entitled as a child to share in the donor's estate will not be held an advancement when it expressly appears to have been the father's intention that the gift should hot be con- sidered as such.*' When money is given by a parent' to a child, resort must be had to the attendant facts and., circumstances to de- termine if the gift is an advanceineht, i. e., a payment or appropria- tion of money or a settlement of real estate to or for the child by the pareht in advance or anticipation of the distributive share to which such child would be entitled after the parent's death: e. g., inconsiderable sums of money occasionally given to spend, or to defray traveling and like expenses, or a riiortgage taken from a child on a patent for which a purchase price is paid, are not ad- vancements, while a considerable sum given a child to enable him to start in business will be deemed an advancement." The value of an advancement, whether of real or. personal prop- erty, made to a child, is deemed th^t value, if any, .which was acknowledged by the child by an instruiiient in writing ; otherwise it must be estimated according ito the worth, of the .property when given.*' The subject, of advancenaients h^ been iheretoforfs , considered in conneption with the Statute of Descents, to which consideration reference is made." j .tj , 9 beced. Est. L., § 99. " Matter ' of tlie Accounting of " Matter of the ' Accounting of Morgan, 104 N. Y. 74, 9 N. E. 861 Morgan, 104 N. Y. 74, 9 N.E. 86i (1887). - .■: . ' "(1887)... ■ "Bruce v.. Griscomy 9 Hun, 280 "Beebe v. Estabrook, 79 N. Y. (1876), afE'd 70 N. Y.. 612. 246(1879). ■ « Deced. Est. L., § 96. "Deced. Est. L., .§'99.- . ;» See § 68, supra. ' On support Of an adult child as an advancement, see note in 22 L.B.A.. (N.S.) 1165. 82 CHAPTER III. ADMINISTEATOES. AND EXECUTGES, TESTAMENTARY TRUSTEES AND GUARDIANS, ON CERTAIN SECTIONS COMMON TO THEM AS WELL AS ADMINISTRATORS. A. Definitions, Powers, Duties and Liabilities: 1. In General: a. Administrators in Chief, § 88. b. Administrators c. *. a., § 89. c. Administrators d. b. n., § 90. d. Limited Administrators, § 91. e. Temporary Administrators, § 92. f. Ancillary Administrators, § 93. g. Ancillary , Administrators, c. t. a., § 94. E. "Foreign A'-^ministrators, § 95. ' ' i. Surviving, Successor and Successive Administrators, § 96. j. Co-Administrators, § 97. k. Administrators for Different States, § 98. 1. County Treasurers, as Administrators, § 99. m. Public Administratbrs, § 100. 2. Before Letters, § 101. 3. Pending Appeal, § 102. 4. Debts, Contracts and Agreements, § 103:' 6. Intestate's Partnership : a. Rights of Administrator, § 104. b. Liabilities of Administrator, § 105. c. Good Will, § 106. .. ; , . d. Liabilities of Surviving Partner, § 107. 6. Liability for Interest, § 108. 7. Personal Purchase, Profit and Liability, § 109, , 8. Taxes, Mortgages and Bepcui^s,, § 110. 9. Investments, § 111. 10. Transfer Tax {as it Affects Executors, Testamentary Trustees and Guardians, also) : , , , a. In General, § 112. , b. Appraisal, Order Fixing Tax and 'Appeal, § 113. c. Exemptions, § 114. d. Rate of Tax, § 115. B. Actions By and Against (Administrators and Executors) : 1. Pleading and Practice: a. In General, § 116. aa. Actions By, § 117. bb. Actions Against, § 118. 83 NEW YORK ESTATES AND SURROGATES B, 1 — continued. b. Survival and Revivor: aa. Actions By, § 119. bb. Actions Against, § 120. c. Counterclaim, § 121. d. Abatement, § 122. 2. Foreign Administrators (and Executors), § 123. 3. Temporary Administrators, § 124. 4. Co-Administrators (and Executors),.^ 125. 5. Public Administrators, § 126. ' ' 6. Actions for Death, § 127. 7. Actions for Improper Payment or Distribution, % 128. 8. When Barred, § 129.' 9. Judgment and Execution,' f 130. 10. Costs, § 131. C. Appointment amd Letters : 1. What Jurisdiction Surrogate Has, § 132. 2. TTfcat Surrogate Has Jurisdiction, § 133. 3. Persons Incompetent: a. Jw General, § 134. b. Infants, § 135. e. Adjudged Incompetent, § 136. d. XKews ajicJ Non-Inhabitants, § 137. e. FeioKs, § 13&. f. Drunkenness, Dishonesty, Improvidence, Want of Understand- ing, ^ 139., , g. Death, § 140. h. Renunciation, Refusal: Retraction, § 141. 4. Preferences: a. 2Vea;t o/ 7f »« Entitled to Take, § 142. b. Men to Women, § 143. c. Whole to Half Blood, § 144. d. Unmarried to Married, § 145. e. Estates of Illegitimates, § 146. f . Consuls, § 147. ' g. Discretionary Preferences, § 148. 5. TFfeew Appointed and Who Preferred: a. -rltimJwistraiors iwCMe/,' §\149. b. jidmiwistrafors c. t. a., § 150. c. Administrators d. b. n., § 151. d. Limited Administrators, § 152. e. Ancillary Administrators, § 153. f. Ancillary Adrninistrators c. *. a., § 154. g. Successor Administrators, § 155. h. Temporciry Administrators, § 156. i. Public Administrators, § 157. 6. Petition: a. jl(?,mimistrai' , , . a. Appraisers' Ap:p ointment, Oalhs and Duties,. § 243. b. Notice of, § 244. e. Appraisers' Compensation, § 245. 6. Inventory:. a. Making and Filing, § 246. b. Effect, § 247. e. Compulsory, § 248. 86 ADMINISTBATOKS H — continued. 7. Disposition of: a. In General, § 249. b. By Temporary Administrator, § 250. e. By Court Ad,vice, § 251. I. Debts of and Claims Against Decedent {hofh as to Administrators and Executors) : 1. Notice to Creditors to Present, § 252. 2. Presenting: a. When, § 253. b. Manner, § 254. c. What Presentable, § 255. 3. Admission, § 256. 4. Com,promise: a. Without Court Authority, § 257. b. By Court Authority, § 258. 5. Rejection, § 259. 6. When Barred : a. 1« Genera?, § 260. b. When Notice to Present Published, § 261, c. When Objection Sustained on Accounting, § 262. d. Representative's Claim, § 263. ' 7. Revivor, § 264. 8. Proof of: a. In' General, § 265. b. By Relatives, § 266. c. By Legatees, § 267. d. By Representatives, § 268. e. Burden Of Proof, % 269. 9. Payment: a. Duty and Order of: aa. In General, § 270. bb. Debts Entitled to Preference By Law, § 271. cc. Taxes Assessed Before Death, § 272. dd. Judgments Docketed and Decrees Entered, § 273. ee. Misrellaneous' Debts, § 274. b. Source of Payment, § 275. ' 10. Interest, § 276. 11. Compulsory Payment .• ■'''■- a.. In General, § 277. b. By RepHsentatives in Surrogate's Court, § 278. e. By Action: aa.. In General, § 279. bb. Against Intestate's Husband, 'Wife and Kin, § 280. ec; Against Intestate's Heirs, % 281. ■ ' ■ dd. Agains't Testator's Legatee's, Kin, Husband or Wife, § 282. ee. Against Testator's Devisees or Heirs, § 283. J. Disposition of Realty {both by Administrators and Executors) : 1. Surrogate's jurisdiction, % 284. 2. Power Over, In General: a. Of Administrator, § 285. b. Of Executor, § 286. 3. Fulfilling Decedent's Contract to Convey, §'287. 4. Decedent's Contract to Buy, § 288. 87 NEW YOEK ESTATES AND SURROGATES J — continued. 5. Taking Possession and Collecting Rents, § 289. 6. Sale, Mortgage or Lease to Pay Debts, etc.: . a. When Possible, In General, § 290. b. Insufficiency of Personalty, § ,291. 6. When Power of Sale, etc., Gi/joen By Will, § 292. d. When Exempt from Levy, § 293. e. To Pay What Debts, § 294. . f. To Pay What Liens, Funeral and Administration Expenses, Transfer Tax, Legacy, Charged Debts, § 295. g. To Distribute, When Possible, § 296. h. What May Be Sold, § 297. . i. Who Have Notice, § 298. j. Hearing and Order or Decree, § 299. k. Adjournment of Accounting,, % 300. 1. Representative's Bond, % 301. m. Execution, Report and Court's Determination Thereon, § 302. n. Supplemental Account and Decree, § 303. o. Creditor as Purchaser; Effect of Sale on Title of Purchaser or Mortgagee or Heir or Devisee; Guardian for Infant Party, §304. 7. Under F'ower in Will: a. Who May Execute, § 305. b. When Extinguished, § 306. c. Manner of Exercise, § 307. d. When Imperative and Discretiorwry , omd Equitdbh Conversion, § 308. e. Rights of Beneficiaries, § 309. K. Accountings {of Executors and Testamentary Trustees as WeU as Ad' ministrators) : 1. Jurisdiction, § 310. 2. Definitions, § 311. 3. By Parties Interested Inter Sese, § 312. 4. In Court: a. Voluntary, Intermediate, Without Settlement, § 313. b. Voluntary, Intermediate Settlement, § 314. c. Voluntary, Final Settlement: aa. Petition: aaa. Of Executor or Administrator in Chief, § 315. bbb. Of Limited Executor or Administrator, § 316. ccc. Of Testamentary Trustee, § 317. bb. Citation: aaa. When Issues, § 318. bbb. Who, to Have Notice : aaaa. Of Administrator in Chief, § 319. bbbb. Of Limited Executor or Administrator- § 320. ceec. Of Executor in Chief , § 321. dddd. Of Testamentary Trustee, § 322. ccc. Form, § 323. ee. Hearing and Decree, § 324. d. Compulsory, Intermediate: aa. When and By Whom Compellable, Petition, § 325. bb. Order to Account, § 326. ee. Proceedings on Order's Return, § 327. 88 ADMINISTRATORS K, 4 — continued. e. Compulsory, Final Settlement: aa. Petition: aaa. Who May Make and When: aaaa. Of Administrator, § 328. bbbb. Of Executor, § 329. cccc. Of Testamentary Trustee, § 330. bbb. Form, § 331. bb. Citation, § 332. ce. Proceedings on Citation's Betum, § 333. 5. When Barred, § 334. 6. The Account, § 335. 7. Contest and Objections: a. Who May Make, § 336. b. When May Be Made, § 337. c. How Made, § 338. d. Burden of Proof, § 339. e. Hearing or Trial, § 340. 8. Decree: a. In General, § 341. b. Distribution, Payment, Delivery and Set-Off, § 342. e. Retention, § 343. d. Adjusting Advancements, § 344. e. Surcharging Accountant, § 345. f . Crediting Accountant, § 346. g. Revoking Letters or Permitting Resignation^ § 347. h. Discharging or Reducing Bond or Surety, § 348. i. Costs, Allowances and Commissions, § 349. j. Effect: aa. TT^o Bownd, § 350. bb. As to What Bound, § 351. L. Distribution: 1. TF?jat Law Determines, § 352, 2. Jurisdiction, § 353. 3. Kme o/, § 354. 4. Compulsory, § 355. 5. TTfeem Barred, § 356. 6. Jo TF/iom ilfode, § 357. 7. Set-Of , § 358. 8. Receipt for Payment, § 359. M. Compensation {of Executors, Testamentary Trustees and Gtuirdiatts, m well as Administrators) : 1. Commissions: a. In General, § 360. b. Amount, § 361. c. Of Public Administrators, § 362. d. Of County Treasurer as Administrator, § 363. e. Double, § 364. f . FmH to Three or Less, § 365. g. Withholding, § 366. h. Waiver, § 367. i. Successive Representatives, § 368. 89 XEW YORK iiSTAT'KS AN-B.SUHUOti.\TI-:s §88 M, 1 — co)itinued. j. On What Computed: ■.■,•■ aa. On Principal: aaa. In General, § 369. ;: bbb. On Specific Bequests, § .370. ccc. Ok Realty, § 371; '.}:_: ' ddd. When .Payuble, % -.372, bb. Otc Income, § 373. 2. Other Compensation: a. J.S Attorney, §. 374., ^^ . ' b. 0>i Accounting or Disposition of Bealty, § 375. e. By Agreement, § 376. d. For Extra Services, § 377. e. By Will, § 378. f. Of Guardians: aa. 7jj Surrogate's Court, § 379. bb. In Supreme Court, § 380. A. Definitions, Powees, Duties and Liabilities. § 88. Administrators in Chief. — An administrator is a person cliarged by law with the duty of collecting the property of a dece- dent ; and of securing to anybne having a clalim in or right to such property so much of such claim or right as the law prescribes. He must collect! his decedent's property, pay from it the expenses of the deceased's burial, the expenses of administering the estate and the decedent's debts, and' then distribute what is left among those entitled under the Statute of Distribution (or, if an administrator c. t. a., under the decedent's will) .^ The duties of executors and of administrators are the same in general until the balance of the estate in hand for payment of dis- tribution has been ascertained : then the executors pay or deliver under the will while the administrators distribute under the law.^ Administration is not necessary and will be refused when there are no debts, no suits to be brought and no property remaining to be distributed.^ An administrator will not be appoiiited on motion of the next of kin of a decedent, made on the judibial settlement of his executor's accounts, oii the ground thai the testator made no dispo- sition of the residuum of his estate; because it is the executor's duty to distribute this residuum, as no administrator can be appointed except in case of intestacy.* iHasbrouckv. Hasbrouck,'27N."Y. (1905), or 94 Supp. 1082:'aff'd 119 182 (1863). . A. D. 107, 104 Supp. 1132. 2 Matter of Union Trust Co. 70 * Matter of HaughiaH, 37 Misc. 457 A. D. 5 (1902), or 75 Supp. 68; dis- (1902), or 75 Supp. 932, old Code missed 172 N. Y. 494, 65 N. E. 259. §§ 2660 and 2662, new Code §§ 2588, 3 Matter of Losee, 46 Misc.' 363 2603. 90 ^ S9 v^ ADMI^USTBATORS An executor, administrator or trustee may, for the benefit of creditors or others interested ijj real or personal property held in trui^^t, disaffirm, treat as void and resist any act done, or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate or, property; and the person who fraudulently receives, jtakes, or in any manner interferes with' the real or personal property of a deceased person, is liable to such exe- cutor, administrator or trustee for the same or the value, thereof, and for all damages caused by such act to the trust estate.*^ § 89. Id. : Administrators c. t. a. — An administrator with the will annexed is a person designated by law to administer the estate of a testate decedent in accordance with the directions of the 'decedent's will. The neled for such an administrator arises either from the failure of the testator to appoint someone by his will to execute it, or from the failure of such an Appointee to fulfil the duties cast upon him. The nonfulfilrnent of his appointment may be either involuntary Or voluntary: involuntary because of death or incom- petency or revocation of letters; voluntary because of refusal to act. The rights and powers of an administrator with the will annexed are the same as if named as executor in. the. will; and he is subject to the same duties. When letters of administration with the will annexed are granted, the will of the decedent must be observed and performed.* "The position of a general administra- tor and an administrator c. t. a. differs in this: that in the latter case, the will, so far as it is consistent with law, is the rule for the management and distribution of the estate, and in the former the ultimate right to the personal, assets is regulated by the statute of distributions. . . . When the appointment of the executor fails, either by his renouncing, or his neglect to qualify, or by reason of his being legally incompetent to act, letters of administration with the will annexed are to be issued, and also when his authority has been revoked or terminated after he has cominehced the executiOii of the trust. "^ Administration cannot be granted when the petition for letters states that the decedent left a will; but relief is obtain- able by a petition' for letters of administration c. t. a? ^ Powers granted or duties imposed,, which irnply a personal con- fidence reposed in the individual over and above that ordinarily implied in the selection of an executor, do not pass to an-adminis- tra:tor c. i. a.,^ e. g., active duties such as a trustee's; * or a power to *»Pers.'Prop. L. § 519; Real Prop. Apr. 28, 1915 '(Bronx Surr.), C. C. L. § 268. P., §§ 2589, 2603. * C^ C. P.. § 2695. " 8 Greenland v: Waddellj 116 N. Y. ^Casoni v. Jerome, 58 N. Y. 315 234, 15 Am. St. Rep. 400, 22 N. E. (1874). ■ ■ ' ' ■' 367 (1889). ' ' Matter of Haroxhurst, N. Y. L. J. * Greenland v. Waddell, supra. 91 NEW YOEK ESTATES AND SURROGATES § 89 determine the object, conditions, etc., of a charitable trust that is unenforcible without such determination.*' On the death of a trustee of an express trust, an administrator c. t. a. has no power under it; bult it vests in the supreme court." Administrators c. t. a. appointed in proceedings for removal of executors instituted before but concluded after affirmance by the appellate court of a surrogate's decree directing the executors to pay certain legacies, must fulfil the decree notwithstanding they have successfully in the surrogate's court resisted the legatees' application for payment, from the estate assets, of such Ifegacies; because the decree of pay- ment is not personal to the executors but is binding also on the executors' successors in office.*' An ajdministrator c. t. a. cannot as such renew a lease which was made by a lessor with his decedent as lessee, unless it gave the lessor the option to compel a renewal." An administrator c. t. a. may sue for an indebtedness incurred to executors authorized by the will to continue the testator's business; because the debt is owing to the executors as such.** An administrator c. t. a. is personally chargeable with the full amount of a judgment by his testator which was a lien on laud encumbered by three prior judgments greater in their aggregate than the value of the land, which three judgments, however, ex- pired during his incumbency without his knowledge through the running of ten years from the time of their docket; because for a time that judgment was a first lien on the land and cdllectible.*® The only kihd of an administrator who can sell, mortgage or lease a testator's real estate under a power in the latter's will is an administrator c. t. a., who now has been given by statute power so to do in any case in which the executbr named in the will could execute the power, unless contrary to the will's express provisions." Prior to this statute it was held that, an administrator c. t. a. could only exercise such a power vested by will in an executor when the *" Beckman v. Bonsor, 23 N. Y. a first lien for eight months hefore 298, 80 Am. Dec. 269 (1861). it expired. ". Horsfleld v. Black, 40 A. D. 264 " C. C. P., § 2695. (1899), or 57 Suppi 1006. : As to whether special power, other '^Bowers v. Emerson, 14 Barb, than power of sale, conferred on 652 (1853). executor by, will, will pass to an ad- ** Chisolm V. Toplitz, 82 A. D. 346 ministrator with the will annexed, see (1903), or 82 Supp. 1081, aff'd 178 note in 29 L.R.A.(N,S.) 264. N. Y. 599, 70 N. E. 1096. The right of an administrator c. t. ** Varnum v. Taylor, 59 Hun, 554, a. to carry on business, under testa- 14 Supp. 242 (1891). mentary power is discussed in note in "HoUister v. Burritt, 14 Hun, 40 L.R.A.(N.S.) 208. 291 (1878) -^testator's judgment was 92 § 89 ADMINISTRATORS direction in the will to sell, mortgage or lease was imperative," and not when it was discretionary,*^ Examples of when a power in a will is imperative and when discretionary are collected in the note,*" and hereinafter.* The reason for the distinction was that a dis- cretionary power grows out of a personal discretion confided by the testator to the executor, while an imperative power belonged to the office of executor.* The design of the statute seems to be to have it assumed that a testator intends to give to an administrator c. t. a. the right to exercise any power to sell, mortgage or lease which the testator's will gave the executor named therein, unless the express terms of the will show that such was not the testator's intent. If only the time of sale is discretionary, but the direction to sell is imperative, the administrator c. t. a. may of course exercise the power of sale.' It would seem that imperative powers to sell, mort- gage or lease given by will to one or more executors who do not qualify for any reason, are equally valid if exercised by such administrators c. t a. as may qualify.* If the administrator c. t. a. cannot execute the testamentary power of sale, the supreme court may probably appoint a trustee to execute it, on making the heir at law in whom title is vested a party to the action in which the appointment is made.* A power of sale in a will is inapplicable when the testator in his lifetime had executed a deed of the prop- *' Cooke V, Piatt, 98 N. Y. 35 remainder, without discretion, thus (1885). creating an equitable conversion of *' Cooke V. Piatt, supra ; Mott v. the land into money, McGarry v. Me- Ackermann, 92 N. Y. 539 (1883) ; Mahon, 124 A. D. 607, 109 Supp. 61 Carpenter V. Bonner, 26 A. D. 462 (1908); (d) when the will gives pow- (1898), or 50 Supp. 298; Clifford v. er of sale to an executor for the pur- Morrell, 22 A. D. 470 (1897), or 48 pose of paying .debts and legacies, Supp. 83 ; Baker v. Baker, 18 A. D. Matter of Chrystie, 59 Hun, 153, 13 189 (1897), or 45 Supp. 870, app. Supp. 202 (1891), af d 133 N. Y. dism'dl57 N. Y. 671, 51N. E. 1089; 473, 31 N. E. 515. Discretionary: Greenland v. Waddell, 116 N. Y. 234 (e) when the power is given the exe- 15 Am. St. Rep. 400, 22 N. E. 367 eutor to carry out the intent of the (1889) . will upon such terms and at such *' Imperative — (a) when no ele- times as to him shall seem meet and ment of discretion is involved by a proper, at any time he may deem it fair construction of the will; Ayeirs v. for the best interests of the estate, Courvoisier, 101 A. D. 97 (1905), or Simmons v. Taylor, 19 A. D. 499 91 Supp. 549; (b) when will gives (1897). use of realty to tenant for life and * See "Executors," § 469, infra, directs that on his death it fall into *Mott v. Ackermann, 92 N. Y. 539 a general fund established by the wiU (1883) . which the executor is to keep invested ' Carpenter v. Bonner, 26 A. D. 462 on bond and mortgage and to pay the (1898), or 50 Supp. 298. income, Bingham y. Jones, 25 Hun, 6 * C. C. P., § 2694. (1881) ; (c) when will directs sale of » Room^ v. Phillips, 27 N. Y. 357 realty to pay bequests and divide the (1863). 93 NEW YORK- ESTATES AND SURROGATES §§ 90, i)! erty "pursuant :to a contract for its sale,^ had offered it at thex'losing, birt the buyer had not appeared.^ An administrator c. t. a. may exercise a po\VeT and requirement of saie given by will to persons named as. its executors but who renounced, when the will provides that if the real. estate should not happen to be sold by such persons or their surviv(;r the. same power is given to such persons as may be appointed administrator C; t. a.'' An administrator c. t. a., on the death of the executor before exercising it, may execute a power of sale over realty devised the testator's wife sov long as she should live, and directed toi be , sold' after her death, and the proceeds- divided among the children.' '■ ,■ , ' , ; § 90. Id.: Administrators d. b. n. — An administrator of goods un- administered is one charged by law with the task of finishing the administration of the estate of a decedent' because of the failure of the executor of the decedent's will to complete )his duties as such; or because of the failure of a prior administrator to fully administer the estate.^?' If i the administrator of goods- unadministered is ap- pointed of the estate of' a testate decedent becatise of the failure of the executor of the wilLto- complete his duties, such administrator must necessarily also be ah a4ministrator with: the will. annexed, and has the same rights and powers,- .and is subject to the same duties. ;If an. administrator of goods unadministered is ' appointed because of the failure of a prior administrator fully to administer the estate, however, ; he is not an administrator, with the will an- nexed unless his predecessor was an administrator with the will' an- nexed. The rights, powers and duties of an administrator' of goods unad minister ed\are the sanie as, those of an' administrator in chief. An administrator d. 6.,n. may, sue to recover goods unadministered; but cannot overhaul his predecessor's accounts: as the; latter is liable to the c]*editors and flbi^tbf'kin;* '.''"!• _ ■: § 91. Id. : ,Limite(i ' Adini5iistrators.^A limited aflmihistrator is a person appointed by law tq^proseci^te a cause of action existing on behalf of a decedent or, granted, an administrator by special provi- sion of law, and, generally, prohibited from compromising the ac- tion or enforcing any judgment recovered therein until authorized by court order.; The prohibition; pyt upon a limited, adrninistratop from compromising! the action or .enforcing any judgment reeov- ^ Roome V. Phillips, supra. ' On the liability of an administra- '' Fi^h V. Coster, 28 Hun, 64 for de' Boms maw foi* debts contracted (^8,82), aff'd 92 N. Y. 627. , ^ while eari-yihf on busiriess under tes- ' Willianls v. Williams, 152 A. 1). tstmentary' powef, see note in 40 323 (1912), or 136 Supp. 990.; ' ', ' ' L.R.A.'(N.S.) 216. " '".On what, assets pass t6 adminis- , *Yale v. B3,rker, 2 Hun, 468 tjatbr de*oo'M!s' '»». except as to the sale, mortgage or lease oi his decedent's real prop- erty to pay debts, etc., and as to matters for which provision is either specifically made by statute or a contrary intent is therein expressed or plainly to be irif erred." An ancillary administrator, like a domestic administrator in chief, has title to his decedent's assets, and; in the exercise of his duties, may pledge them for the purposes of the estate. ^^ But an ancillary administrator who has not observed the statiitory prerequisites to his appointment has na standing in this state. '^ In fulfilment of his task to assist in the administration of the estate, the ancillary administrator must trans- mit to the state, territory or country in which the principal letters wef e :granted, for disposal pursuant to law, not only the money and other personal property received by him after letters are issued to him, but also any money or other personal property of the decedent which he had in his handsJin any capacity: at all when' letters were issued to him ; unless he be otherwise directed by the court.^* Such direction may be (a) in the decree awarding the ancillary letters; (b) in a decree inade upon an accounting by the ancillary admin- istrator; (c) by. an order of of thei estate; or (d) by the judgment or oi'der of a court of record in an action to which the ancillarj^ administrator is a party." The common court direction to an ancil- lary administrator is to pay creditors or next of kin of the deicedent in New York fi*om the assets which the ancillary -administrator has- collected,; before transinitting them to the state,' territory or country from which the principa;l'lettej's were issued,' and so putting them beyond tho oonvenientreach' 6i the New York creditors. When a^ direction to- an ancillary administrator to pay creditdrs or next of kin residing in New York is made, the ancillary administratoi' must pay debts' of the decederit due such creditors, arid the distributive "C. C.P.,§ 2636; Lockwoodv. U. 62 N. E. 577' (1902) ; Bingham v. S. Steel Corp.., 209 N. Y. 37,5, L.K.A. Marine Nat. B'k, 112 N. Y.. 661, 19 1915C, 471> 103 N.,E. 697 (1,913) : N. E. 416 (1889), "Ancillary administralion in this On the right of domiciliary execu- state is regulated by statute and an tors and administrators, or their ailciUary e^xecutor or administrator nominees, to ancillary letters, see has the same general powers as a do- note in 48 L.R.A.(N.S.) 858. mestic fexeeutor or ii'lminist!fator ex- ^i Smith v. 2d Nat. B'k, 169 N. YL cept in disposing of the ' decedent's 467, 62 N. E. 577 (1902). real property for the payment oI his ^* Baldwin v. Rice, 183 N. Y. 55,, debts and funeral expenses ■ (cita- 75 N. E. 1096 (1905)'. tions). Ancillary letters are not less ' *^ C. C. P., § 2634. See Parsons- in their effect than other letters." V. Lyman, 20 N. Y. 103 (1859).: . • Smith V. 2d Nat. B'k, 169 N. Y. 477, '* C. C. P., § 2634. • ' 98 §§ 94, 95 ADMINISTRATORS shares due sucli next of kin, out of the naoney or the avails of tlie property received by him under the ancillary letters and with which he is chargeable upon his accounting.^' If the amount of all the de- cedent's debts (here and elsewhere) exceeds the total of the dece- dent's personal property applicable to the payment of such debts, the ancillary administrator must pay each New York creditor such a sum as equals his share of all distributable assets of the decedent." The ancillary character of an administration is not necessarily deter- mined by the letters issued to the administrator or the decree grant- ing them ; for although neither the decree nor the letters describe the letters as ancillary, they nevertheless are so, and can be nothing else, if the will of the decedent was not admitted to probate in New York state, but was only recorded in the office of a New York surro- gate upon production of an exemplified copy of its probate in an- other state, as in such a case letters in chief cannot be granted.^* § 94. Id. : Ancillary Administrators c. t. a.— An ancillary admin- istrator with the will annexed is a person appointed in New York state by a, surrogate thereof to administer witliin New York state the personal property in such state of a testator who resided without the state when he died or executed his will of personal property ; and whose will has been admitted to probate or established in the jurisdiction where the testator died or executed it." One granted- ancillary letters of administration c. t. a. on the will of a resident of a foreign country, by designation of the non-resident trustees and executors, cannot administer a testamentary trust here under the trustees' power of attorney." § 95. Id.: Foreign Administrators. — A foreign administrator is one appointed in another state. The authority of a foreign admin- istrator to collect assets in this state js hereinafter discussed." The remedy against a foreign administrator as such to charge his intestate's assets with a debt or liability of the latter is governed by the law of the jurisdi-ction of the foj-pier's appointment and m^st there be pursued;*" "C. C. P., § 2635. . "C. C. P., § 2629. Op distribution of assets to, next of , On ancillary probate at testator's kin or beneficiary under will in juris- domicil after probate in another ju- diction of ancillary administration, risdiction, see note in 1 L.R.A.(N.S.) see note in L.R.A;1915A, 431. 996. On the rights oi foreign creditors " Bonilla v. Mestrey 34 Hun, 551 iirider ancillary ' administration, see (1885). note in L.R.A.1915F, 1041. " See § 241, infra. "Baldwin V. Rice, 100 A. D. 241 2" Lyon v. Peck, 111 N. Y. 350, 1& (1905), or 91 Supp. 1086 and 89 N. E. 863 (1888). Supp. 738, aff'd 183 N. Y. 55, 75 N. E. 1096. 99 NEW YORK ESTATES AND SURKOGATES §§ 96, 97 § 96. Id.: Surviving, Successor and Successive Administrators. — If one of two or more administrators dies or has his letters revoked, the survivor or survivors may proceed to complete the administration of the estate pursuant to the letters issued, and may continue any ac- tion or special proceeding brought by or against all the administra- tors.* A successor to a sole administrator may complete the execution of the trust committed to his predecessor, continue in his own name a civil action or special proceeding pending in favor of his predeces- sor, and enforce a judgment, order or decree in favor of his predeces- sor.* A person to whom letters are first issued, from a surrogate's court having jurisdiction to issue them, has sole and exclusive au- thority pursuant to the letters until the letters are revoked, and is entitled to demand and recover from any person to whom letters are afterwards issued, by any other surrogate's court, the property in the second appointee's hands belonging to the estate or fund; but the acts of a person to whom letters were afterwards issued, done in good faith, before -notice of the letters first issued, are valid ; and an action or special proceeding commenced by him may be con- tinued by and in the name of the person or persons to whom the letters were first issued.' An act which must or may be done within a specified time after letters are issued must be done within such time when reckoned from the issuance of the first letters, although successive or supplementary letters are issued upon the estate ; ex- cept when the first or any subsequent letters are revoked by reason of the want of power in the surrogate's court to issue the letters for any cause, e. g., the admission to probate of a decedent's will and the issuance of letters testamentary thereon after letters of adminis- tration had been granted on his goods, etc., on the ground of in- testacy.* § 97. Id.: Co-Administrators. — ^A co-administrator is a person ap- pointed to administer an estate in conjunction with another. An administrator is liable for the consequences of acts of his co- administrator when he had means of knowing of them and assented to or acquiesced in them.* One holding a position of trust cannot remain, passive while irregular acts of his co-trustee are going on, and still save himself from responsibility.* An administrator who, after receiving estate assets, either voluntarily delivers » C. C. P. § 2563. * C. C. P. §§ 2561, 2624. On the right of continuing or sur- On revocation of letters of admin- vivii^ executor or administrator istration upon discovery of will, see against former executor or coadmin- note in 49 L.R.A.(N.S.) 894. istratoT or latter's representatives, * Matter of Niles, 113 N. T. 547, see note in 47 L.R.A.(N.S.) 995. 21 N. E. 687 (1889). « C. C. P. § 2563. « Matter of Niles, supra. » C. C. P. § 2561. 100 § 98 ADMINISTRATORS them over to an associate or does any act by which they are brought under his associate's sole control and management, if the latter would not otherwise have received such assets, is liable for any loss that may be sustained as a consequence of such act.' Even though as an original question an administrator would not have been held exonerated from a liability imposed on the co-ad- ministrator alone by the surrogate's decree, if the court had had to decide the matter instead of the surrogate, yet if no appeal was taken from the surrogate's decision, it will not be upset.' Sureties cannot hold an administrator for the defalcation of his co-adminis- trator when they agreed, if he would consent to take letters jointly, that his conduct should be passive and his co-administrator's active, and they told him all he need do would be to sign papers brought to him by his co-administrator ; because he was guilty of no default as- to them.® One of two administrators holding notes of doubtful and litigative value, claimed by him to be his personal property and by his co-administrator to be that of the estate, is not properly sur- charged with their amount as converter thereof, because a claim of personal ownership in assets equally in the possession of the claimant (whether individually or as representative) when no act as to them inconsistent with his duty as representative is shown, does not constitute conversion ; and their value is not yet shown." § 98. Id.: Administrators for Different States. — Sometimes dif- ferent persons are appointed in divers states to administer the same estate. When administration on one estate is granted in different states, the effects are to be administered under the authority of the locality where they are situated; but as to payment of debts each jurisdiction should be auxiliary and pay attention to the others so as to marshall the aggregate assets with a view to equality among all creditors, foreign as well as domestic.*^ One appointed in this state administrator c. t. a. of an estate, of which the testator and executor were resident and appointed in another country, should disburse so much only of the estate in his possession as is necessary to pay those creditors who present their claims to him, and should send the surplus to the foreign executor; because if he distributed the estate funds he has in his hands according to the will and irre- ' Thompson v. Hicks, 1 A. D. 275 » Palmer v. Ward, 91 A. D. 449, 86 (1896), or 37 Supp. 340. Supp. 990 (1904). On the liability of coexecutor for i" Matter of Niles, 142 A. D. 198 default of one permitted to manage (1911), or 126 Supp. 1066. estate, see note in 11 L.R.A.(N.S.) ^* Lawrence v. Elmendorf, 5 Barb. 296. 73 (1848). * The People v.'Townsend, 37 Barb. 520 (1862). 101 NEW YORK.ESTATES AND SURROGATES §§ 99,, 100 speetive of the foreign executor, legacies might be paid twice, cred- itors deprived of their 4ues, etc.^^ § 99. Id.: County Treasurer as Administrator. — A county treas- urer may be appointed administrator in certain cases. He is vested with all the powers and rights of other administrators; and is sub- ject to the same duties and obligations." A county treasurer who has taken a mortgage as an investment of moneys received by him under decree of court, directing, him to invest money so received, has lawful authority to, sell and, transfer the mortgage." .., . § 100. Id.: Public Administrators.^A. Public Adnainistrator is a person designated by the legislature or a surrogate to administer the estate of a decedent because of the absence, unwillingness or incompetence of some other person, given by law a; prior right to administer. Public Administrators have been specihcally- provided by law for several of the populous counties of the state. The stat- utes and decisions relating to the particular appointment, powers, duties, liabilities and procedure of public administrators in various counties of the state are treated in the note "under.a separate head- ^* Cummings v. Banks, 2 Barb. 602 iJeath occurs and the decedent's effects (1848). are at certain places, dependent iipon *^ C. C. P. § 2593. whether or not the decedent was a ** County of Tompkins v. Ingersoll, citizen of the United States. 81 A. D. 344 (1903):; or 81 Supp. The Public Administrator has such 242, afi'd 177 N. Y. 543, 69 N. E. authority over a deceased citizen's 1132. , estate: ^^ New York County: — The text of (1) Whenever the deceased citizen the law governing New York County at death left any goods, chattels or public administrators is found in effects within New York county, "Public Administrators" Law, §§ 1 wherever he may have died; to 35 (L. 1898, c. 230, §§ 1-35). See (2) Whenever the deceased citizen, §§ 4, 5, 6, 11, 12, 32, 33 and 34 for coming from any place outside New powers, etc. York state in a vessel bound for the The P;ublie Administr;ato:^ of New port of New York: York county, in the right of his office, A. Arrives at the quarantine near (except when he has notice tbat the the city of New York and dies there widow or ^ny next of kin entitled to a leaving any effects anywhere; or distributive share in a decedent's es- , B. Dies on his passage and any of tate resided in New York county at his effects arrive at t&e quarantine decedent's death) has authority (a.) near the city' of New York, to collect and take charge of the goods, ' The Public Administrator has such chattels, personal estate, and debts of authority over a deceased alien's es- persons, dying intestate (or testate, tate *heiieyer the deceased , alien when an executor named in a will at death left: any goods, chattels or refuses or neglects to act or is dead) effects, wherever he may have died, and (b) to maintain, as any executor provided he or some part of his efr might by law— -but as Public Admin- feets shall have landed , either within istrator — ^such suits as may be neees- New York county or at the quaranr. sary or proper for such collection and tine near the City of New York ; or taking charge, when the decedent's provided he left' personal property 102 §100 ADMINISTRATORS ing for each county; while principles applicable to public adminis- trators in general, only are discussed in the text. , A public either ■within New York county or when, in case of the latter's sickness which has since his death come with- or other disability, the Public Admin- in New York county, and which, in istrator or either of the surrogates either alternative, , remaihs unadmin- of the county shall designate him so istered. But the Public' Administra- to act. (L. 1898, c. 230, § 2; "Pub- tor's authority extends only to the lie Administrators" Law.) effects of a deceased alien which have Kings County ; — The text of the landed in New York county or at law governing th? Kings County Pub- quarantine, when such effects alone lie Administrator is found in § 2594, are what give him jurisdiction; and C. C. P. it does not extend to the collection The Public Administrator of Eings and taking charge of the wages and County has the right and authority effects of seamen d3dng, aboard ves- prior to any one: else to (a)' collect, sels of a foreign country, the laws (b) take charge of, and .(c) adminis- of which entrust the custody and dis- ter upon, the goods, chattels, personal position of such wages and effects to property and debts of persons dying their respective consuls or consular intestate, and for that purpose to officers. (L. 1898, C; 230, §§ 4 and 5; maintain such suits as Public Admin- "Public Administrators" Law.) istrator as any executor or adminis- If the Pubhe Administrator is pre- trator might maintain by law, in the vented from interfering with the ef- following cases : fects of a decedent i because he has (1) Whenever a person dies in- received notice that a widow or any testate leaving any assets or effects of the next of kin of the decedent, in Kings county, and there is no entitled to a distributive share in his widow, husband or. next of kin en- estate, reside in New York county at titled to a distributive share in the the time of his death, he may never- estate of the intestate who is entitled, theless obtain an order of the surro'- competent or willing to take out let- gate to take charge thereof upon (1) ters of administration on the intes- making application therefor; (2) tate's estate. making due proofs by affidavit, that (2) Whenever assets or effects of the effects of the decedent are in dan- any person dying intestate come aft- ger of waste or embezzlement, or er the intestate's: death into Kings that for any other reason it would be County; and there is no widow, hus- f or the benefit of the estate to have band or next of kin entitled to a dis- such effects, or some part of them, tributive share in the estate of the seized and secured. (L. 1898, c. 230, intestate who is entitled, competent § 6; "Public Administrators" Law.) or willing to take out letters of ad- Intestacy is presumed until a. will ministration on the intestate's estate. is proved and letters testamentary (C. C. P. § 2594.) , are granted thereon^ in all the cases Intestacy is presumed in . such: case above discussed. (L. 1898, c. 230, § until a will is proved and letters tes- 4, subd. 5; "Public Administrators" tamentary are issued thereon. (C. C. Law.) ' P. § 2594.) , , , The duties and powers of the As- The Public Administrator of Kings sistant Public Administrator of New County can act as administrator only York county are fixed by the Public when no next of kin. of the intestate, Administrator. In addition he pos- willing and competent, to serve, is res- sesses every power and must perform ident of the state at , the time letters all and every duty belonging ito the are granted (whether resident at the oifice ■ of the pnblie administrator time of death or not.) Matter of Ar- 103 NEW YORK ESTATES AND SURROGATES § 100 administrator who takes property believing it to have been property of the intestate at the latter's death, if it was not, buckle, Jarvie or Kelly, 77 Mise. 309, public administrator, except as specif- 137 Supp. 683 (1912), old Code § ic provision otherwise is made by law. 2669, new Code § 2594. (L. 1910, e. 412, § 2.) All provisions of law conferring Erie County : — The text of the law jurisdiction, authority or power on governing the Erie County Public the Public Administrator of the Administrator is found in § 2595 C. county of New York, or otherwise re- C. P. lating to his oflSee and the ofQce of All provisions of law conferring Public Administrator in the several jurisdiction, authority, or power on, counties of the state of New York, or otherwise relating to the offices of apply to and are conferred on the Public Administrator of the City of office of Public Administrator of New York, Public Administrator of Kings County, as far as applicable, the County of Kings, and in the sev- (C. C. P. § 2594.) eral counties of the state, apply to Biehmond County: — The text of and are conferred upon the Public the law governing the Richmond Administrator of Erie county. (C. County Public Administrator is C. P. § 2595.) found in "Public Administrators" Bronx County: — The text of the Law, §§1 and 2 (L. 1899, c. 486, §§ law governing the Bronx. County Pub- 1 and 2, as amended L. 1910, c. 412, he Administrator is found in "Bronx § 2). County" Law, §§ 3 and 11. (L. 1912, The Public Administrator of Rich- c. 548, as amend'd L. 1913, c. 825.) mond County has the prior right and The Public Administrator of Bronx authority to collect, take charge of County has all the authority and pow- and administer upon the goods, chat- ers within such county as are con- tels, personal property and debts of ferred by law on the public admin- persons dying intestate, and for that istrator of the county of New York, purpose to maintain suits (as such (L. 1912, c. 548, §§ 3 and 11; "Bronx public administrator) as any executor County Law.") or administrator might by law, in the The Code provisions relative to the following cases : public administrator in the city of (1) When the intestate decedent New York apply to the public ad- left any assets or effects in Richmond ministrator of Bronx County. Mat- County, and there is no widow, hus- ter of Kroog, 84 Misc. 676 (1914), or band or next of kin entitled to a dis- 147 Supp. 887 and 152 Supp. 553 ; tributive share in the decedent's es- Matter of MeMuUen, 85 Misc. 661 tate who resides in the state and is (1914), or 148 Supp. 1092). entitled, competent and willing to ad- In counties wherein provision is minister it; not speeifically made for a public ad- (2) When after an intestate's ministrator and the office of county death any of his assets or effects come treasurer has been abolished, the into Richmond County and there is county judge, surrogate and sheriff, no widow, husband or next of kin within ten days after c. 501, L. 1900, entitled, competent or willing to ad- was passed, were required to appoint minister them. (L. 1910, c. 412, § 2; a public administrator to take office "Public Administrators" Law.) immediately and hold it for five years The Public Administrator of Rich- from January 1 succeeding his ap- mond county possesses all the powers pointment unless sooner removed for and jurisdiction and is subject to all cause. The appointment was re- the duties, liabilities and responsibil- quired to be in writing, signed by the ities of a county treasurer acting as county judge and filed in the office of 104 § 101 ADMINISTEATORS may be held personally by the true owner for detaining it.'® The Public Administrator caimot, by bringing into the state a decedent's watch, obtain jurisdiction thereby to sue a corporation, resident in the same foreign state as the decedent, for the former's negligence in causing the latter's death, on the claim that the watch is assets arrived in the county after the decedent's death, or is property which has since the decedent's death come into the state, as such assets must arrive or come into the state in good faith.*'' § 101. Id.: Before Letters. — Grant of administration has relation to the intestate's death and legalizes all intermediate acts by him who is appointed administrator ; so that if, without fraud or deceit, such an one before his appointment settles and adjusts with a claim- ant against the decedent his claim, the claimant's later application to equity to set aside the settlement will be denied.*' Acceptance of money by one later appointed the decedent's ad- ministrator, and its application to the expenses of the decedent's funeral, may be shown by him who paid the money, upon subse- quent qualification of the payee as administrator and suit against the payor, in mitigation of damages in the suit.*' Payment by a bank to the widow of its depositor of the amount to his credit, be- fore her appointment as administratrix, is good, if she be later ap- pointed, as against any claim for the amount by an administrator d. b. n. on the administratrix' death.*' "The rule which legalizes by relation the acts of a person afterwards appointed executor or administrator has application only to those cases where money is obtained without any coercive proceedings, and where the proper- ty of the estate shall have been wrongfully appropriated, and not to illegal coercive acts against third persons and their property ; " e. g., an order for leave to issue execution granted, and execution issued, when the plaintiff in the judgment had been dead over 2 years and no executor or administrator of the estate had been ap- pointed, is not good, though the executor or administrator is later appointed.* The powers, etc., of the various public administrators, the clerk of the county. AU provi- *' Hoes v. N. Y., N. H. & H. R. R. sions of law conferring jurisdiction, Co. 173 N. Y. 435, 66 N. E. 119 authority or power on a county treas- (1903), L. 1898, e. 230, § 4, subd. 2, urer relating to the of&ee of public old Code § 2476, new Code § 2515. administrator in the several counties *' Bennett v. Lyndon, 8 A. D. 387 of the state were made applicable to (1896), or 40 Supp, 786. and were conferred upon the ofBce *' Stuber v. McEntee, 142 N. Y. thus created. L. 1900, eh, 501. See 200, 36 N. E. 878 (1894). Consolidated Laws, "Public Admin- '"'Whitlock v. Bowery Savings istrators." Bank, 36 Hun, 460 (1885). *« Levin v. Russell, 42 N. Y. 251 * Bellinger v. Ford, 21 Barb. 311 (1870). (1856). ^ 105 NEW YORK ESTATES' AND SUKKOGATES §§ 102, 103 before letters, are found in the statutes the text of which is referred to in the note.^ ' § 102. Id.: Pending Appeal. — Letters of administration issued by order of the surrogate, pending an appeal either from his decree granting letters of administration or from an order or judgment of the appellate division of the supreme court affirming such decree, on the ground that the' estate's preservation i'equii^eS their issue, confer on the persori or persons named therein all thepOwfets and authority and subject him or theih to iall the duties and liabil- ities of ah administrator whose appointment is not disputed ; except that, letters so issued do not iihtil after the final determination of the appeal confer power to distribute the unbequeathed assets of the decedent, or, if the administijatqr is appointed with the will annexed, to pay or satisfy a legacy giyen by the will or sell real property by virj,ue of a provision in tlie will.' If the appeal is not taken ujitil after the letterg have been, issued, the adnjiiiistr,ator may neverthe- less exercise the s£ime powers which he coi^ld exercise if the |e^t^rs had been, granted hini pending the appeal, provided he has a, like order of the surrogate to, such effect.* In the exercise of guch pow- ers the administrator is subject to the duties, liabilities and excep- tions which wpi^ld, bind him if; the. letters were issiied pending an appeal.* 'Letters of administration, as distingiiishedi from letters of temporary administration, may be issued , by the surro,gate pend- ing, appeal to .the court of appeals from his decree admitting a will to, probate, .wfh,en tjie, , estate; consists l^gely of securities of such fluctuating. market value ,as, to, retake it extremely hazardous to tip uptheir disposition, till the, determination of the, pending appeal, and( if a temporary administrator only were appointed, .he, could sell. but could not invest the; proceeds, except by direction of the surrogate j thereby vesting in the surrogate .the discretion to sell vest- ed ;by>.,the will ip the executors.* ,,,; ■,.. .^ ',y, § 103., Id.: Debts, Contracts and Agreements.— For debts incurred subsequent to his intestate's death, even though in re.spect of the administration of -the estate, an administrator is, liable only a§ an ^New Torre'Cownty-.—'TuhlicM- Law, § 3 (L. 1912, c. 548, § 3, as .ministrators" Law, § 18 (L. 1898, e. amend'd L. 1913, C. 825), 230, § 18). Other Counties: — "Public Admin- Ki^gs. County:— C. C. P. § 2594. i^tratdrs" Law, § 3 (L. 1900, c. 50i> Bichmond County: — "Public Ad- § 3). ' ■ ; ;. ministrators" Law, § 2 .(L. 1899, c. * C. C. P. § 2560. 48'6,'§''2, amend'd L. 1910,'c. 412, § «C.'C. P. § 25G0. 2). '• 5 Matter of Gihon, 48 A. D. 598, Erie County:— C. C.V:%2mb. 62 Supp. 426 (1900), old Code § Bronx County:— "Bionx County" 2582, new Code §§ 2557 and 2560. 106 §103 ADMINISTRATORS individual and not in his representative capacity.* "The adminis- trator himself will be personally liable for the value of service ren- dered at his instance for the benefit of the estate, where there is no agreement on the part of the creditor to look to or confine his claim for compensation to the estate itself, or to the defendant in his of- ficial capacity. Where services are rendered under such an em- ployment or agreement, then the party rendering them will not be at libei'ty afterwards to resort to the personal representative, indi- vidually, but he will be confined to the rights or remedies existing for the enforcement of the agreement, as it has been made by him -f and if by the agreement he has confined himself to the estate of his debtor, or the personal representative administering it, he will not be permitted to maintain an action for the recovery of his demand against the personal representative himself, individually. To pro- duce this result the agreement of the plaintiff may be established as other agreements are allowed to be proved in courts of justice. That may be done by the language used on the occasion when the agreement is alleged to have been made or by circumstances dis- closing its nature and effect . . .a mere intention to look to the estate or the defendant as administrator is not sufficient to ex- clude his individual liability.'" One employing an attorney is per- sonally liable to him for his services, although acting as a trustee or in a representative capacity in the business in which he employs him.* The surrogate is not bound by an agreement of a legal representative to compensate an attorney prosecuting an action to recover damages for negligence causing his decedent's death; but may, on the reprasentative's accounting for the proceeds, determine what amount is, reasonable to be allowed for such expenses.'* An equitable action may be maintained on behalf of a creditor against an estate on an executory contract between him and the administrator or. executor based on a new or independent consider- ation, though for the estate's benefit, only in case of the fraud or in- solvency of the representative, or when the representative is au7 thorized to make the expenditure on which the claim is based for the estate's protection and has no fund from which to defray it, in which case he may charge the estate in favor of whoever makes the expenditure ; but in all other cases the creditor must rely on the * Murphy v. Naughton, 68 Hun, On the liability of estate to at- 424, 23 Supp. 52 (1893). torney employed by personal repre- ■^ Foland v. Dayton, 40 Hun,' 563 sentative, see note in 25 L.Il.A.(N.S.) (1886) ; Divane V. MUler, N. Y. L. J. 72. Feb. 1, 1915 (City Court). '* Matter of Meng or Bisehoff, N. SMygatt V. Wilcox, 45 N. Y. 306, Y. L. J., June 2, 1916 (N. Y. Surr.) 6 Am. Rep. 90 (1871). 107 , NEW YORK ESTATES AND SURROGATES § 103 represejitative's personal responsibility.' If a stipulation be entered in the minutes, on a reference by a surrogate, that the stenogra- pher's fees and allowance "be made part of the referee's fees and paid out of the estate on the taking up of the referee's report," nei- ther the referee nor stenographer can recover from the representa- tives as individuals (especially if the referee failed to file his report within the time provided by law, as this forfeits his fees, and, the stenographer having consented that his fees be made part of the ref- eree's fees, the stenographer's fees too).^" That one who is an in- testate's administrator gives his individual note for the charge of a tombstone he orders for the deceased, 'is not conclusive that he is not liable as administrator.*^ A bank loaning an ancillary ad- ministrator in anticipation of income, and taking his note and a New York bond, cannot recover on the note or sue on the bond, be- cause his sole duty is to transmit the estate to the administrator in chief unless the decree appointing him directs him to retain some part of the estate to pay debts due resident creditors, and anything beyond this is ultra vires.^ The general rule that a person appoint- ed administrator cannot question the validity of agreements made by him in good faith before his appointment concerning the prop- erty and debts of the intestate does not apply to an agreement by a widow with her son before she was appointed administratrix of her husband's estate to give him all the intestate's personal property in consideration of his maintaining her for life; be- cause it must be presumed that the son knew the widow had no right to bind the intestate's heirs not present at the time of the agreement, and also that the son knew that before her appointment as administratrix the widow had no title to the property.** A mi- nor appointed administrator (though his appointment is void), who attempts as administrator to enter into a contract, is bound indi- vidually if he does not repudiate it within a reasonable time after he becomes a major." It is a presumption of law that the legal rep- resentatives of a guarantor are bound by the guaranty even though there be no express words to such effect.** When a decedent in life 'Oleott V. Jorrin, 36 Misc. 735, 74 70 Hun, 230, 24 Supp. 64 (1893), Supp. 393 (1902). old Code, §§ 2700, 2701, 2702, new *» Bottome v. Neeley, 124 A. D. 600, Code, §§ 2634, 2635, 2636. (1908), or 109 Supp. 120, afE'd 194 " Duteher v. Butcher, 88 Hun, 221, N. Y. 575, 88 N. E. 1115. 34 Supp. 653 (1895). "Lavid V. Arnold, 25 Hun, 4 "Knox v. Nobel, 77 Hun, 230, 28 (1881). Supp. 355 (1894), old Code, § 2660, On the liability of an executor or new Code, §§ 2588, 2603. administrator for funeral expenses, *' Kernochan v. Murray, 111 N. Y. see notes in 33 L.R.A. 663 ; 52 L.R.A. 306, 2 L.R.A. 183, 7 Am. St. Rep. (N.S.) 1152. 744, 18 N. E. 868 (1888). ** Smith V. Second National Bank, 108 § 104 ADMINISTRATORS never became liable on a guaranty agreement, his administrator cannot create a liability on the part of the estate by agreeing to con- tinue what he assumed was a liability under such agreement.^® An administrator of an intestate who held a lease for years containing an option of purchase not exercised at his death may exercise the option for the estate's benefit, as leases for years are personal prop- erty and belong to the personal representative and the covenants therein do also and the option is a covenant running with the land." A representative of a deceased lessee who had agreed to re- build in case of fire is bound to fulfil such agreement." A dece- dent-lessee's estate is liable for rent for the unexpired term during which decedent died.*' § 104. Id.: Intestate's Partnership, Rights of Administrator.— The right of a surviving partner to deal arbitrarily with the partner- ship assets in closing up the partnership afl^P-i^'s is absolute; the right of the legal representative of the deceased partner is simply a contingent, equitable interest in the distribution of any surplus remaining after payment of the partnership debts ; and the surviv- ing partner may make a general assignment for the benefit of firm creditors without the assent of the deceased partner's legal repre- sentatives.^" From the time of the death of a deceased partner his interest in the partnership is limited to his share of the net pro- ceeds after its liquidation by the surviving partners.* The only right of the representative of a deceased partner is to have the part- nership affairs liquidated within a reasonable time and to compel the surviving partner to account therefor.* On the death of a part- ner the title to the partnership property is in the surviving partners as legal owners and not as trustees in the strict sense of the term, though the law imposes on them certain duties of a fiduciary char- acter; and such title is in the firm as an entirety (and not in its individual members) subject to the right of the partners to have " Metropolitan Trust Co. v. Truax, 333, 4 Am. St. Rep. 460, 16 N. E. 365 154 A. D. 442 (1913), or 139 Supp. (1888). 181, aff'd 210 N. Y. 528, 103 N. E. The respective powers of surviving 1131. partner and personal representative *'' Walker v. Bradley, 89 Mise. 516, of deceased partner are treated in or 153 Supp. 686; C. C. P. § 2672. note in 28 L.E.A. 136. 18 Chamberlain v. Dunlop, 126 N. ^ Gayer v. Snyder, 140 N. Y. 394, Y. 45, 22 Am. St. liep. 807, 26 N. B. 35 N. E. 784 (1893). 966 (1891). On when partnership in land con- 1* Pugsley v. Aiken, 11 N. Y. 494 tinues after death of partner, see (1854), — Please for one year and in- note in 28 L.R.A. 106. definite period thereafter; expired * Reinhardt v. Rheinhardt, 134 A. April first; testator died in April; D. 440 (1909), or 119 Supp. 285. Miller v. Knox, 48 N. Y. 232 (1872). The rights of an executor or ad- *" Williams v. Whedon, ,109 N. Y. ministrator as to partnership real es- 109 NEW YORK ESTATES AND SUBROGATES § 105 it applied to the payment of the debts of the firm aiid the equities of the partners ; and the surviving partners succeed to the exclusive possession of and control of the assets and the right;; within the limits of good faith, of disposing of the assets and closing the part- nership affairs.' The representative of a deceased partner may call the surviving partner to account for his conduct and administration as to the firm assets, and compel; the application of such assets to the payment of firm debts, and the payment of the remainder to such representative insofar as his decedent was entitled, to share therein.* An administrator has no right' to an order restraiiiihg a bank from paying to anyone but him funds deposited in it as prop- erty of a partnership in which the intestate was a member, because the surviving partner has legal title to such a fund and a reasonable time in which to liquidate the firm affairs and to account, and dur- ing such time the deceased partner's legal representative has no right to interfere.^ As the sole interest of the personal representa- tive of a deceased partner is in the surplus of the partnership assets after payment of all its obligations, if persons have possessed them- selves of such assefe without right, he can only call the surviving partners to account and cannot himself niaintain anaction against such persons.^ The representatives of a deceased bankrupt partner have the right to share in the profits of all the partnership business unfinished at the partnership's dissolution but completed ; after.'' The administrator of a sole surviving partner who receives partner- ship effects which his intestate has contiiiued to use in'' the' firm business as though his own property, and who continues the busi- ness in good faith as administrator, for the benefit of the estate, is liable in his representative capacity and not personally.' The ad- ministrator need not sell his intestate's interest in a partnership, but may allow the surviving partner, if perfectly solvent and re- .sponsible, to wind up such interest ; although, if he entertains any ■doubt, his duty is to apply for a receiver.* §105. Id. : Intestate's Partnership, Liabilities of Administra- tor. — In continuing his intestate's business, an adrhinistrator indi- tate are discussed in notes in 27 'King v. Leightqn, 100 N,; Y. 386, L.R.A. 340; 28 L.B.A. 99, 105, 136- 3 N. E. 594 (1885). ' CosteUo V. Oostello, 209 N. Y. 252, ' Skidmore v. Collin, 8 Hun, 50 103N.E. 148 (1913). (1876). , . * Preston v. Fitch, 137 N. Y. 4i, ,33 On the power of personal repre- N. E. 77, (1893). sentative to carry on business, see * Wilson V. International Bank, 125 note in, 40 L.R,.A.(N.S.) 201. A.,.D. 568 (1908), or 109 Supp. 1027. » Hasbrouck v. Hasbrouek, 27 N. ^Seeor v. Tradesmen's National Y. 182 (1863). Bank, 92 A. D. 294 (1904), or 87 , .S.upp.181., 110 § 105 ADMINISTEATORS vidually assumes all risks and must account to the estate for all profits.^* An administrator c. t. a. continuing a decedent's business a year after the will authorized him so to do, with the consent of the beneficiaries, does not thereby make the latter, partners or in- dividually liable to those dealing with the administrator as such, even for the time he continued it after he was authorized so to do.*^ An exclusive agreement or right to an intestate personally, to make and uge, and sell to others for use, a certain machine within a cer- tain state, is a chose in action which goes to his administrator as assets ;, but the latter can Only carry on business under such agree- ment so far as is necessary to complete machines begun by the in- testate in his life and unfinished at his death, and cannot use ma- terials provided by the intestate in his life under the contract.'^ The representative of a deceased partner is liable to a creditor of the partnership for a judgment debt returnedunsatisfied on execu- tion against. the surviving partner; because the creditor's legal reme- dy against the survivor has been duly exhausted and he is entitled to an equitable lien upon the estate of the deceased partner." But a deceased partner's estate cannot be charged with a partnership debt until the remedies of the creditor against the surviving partners and the partnership property have been exhausted, or it is made to appear that an eifort to collect the debt from either would be fruit- less, e. g., that execution has been returned unsatisfied or that in- solvency exists.^* A creditor cannot claim the benefit of the m\e that the; Statute of Limitations does not begin to run against a de- ceased partner's estate until his remedy has been exhausted against the surviving partners, when he is guilty of laches in seeking to hold the surviving partners.", The estate of a general , partner can be held for the partnership debts by showing by any common law proof th,at the surviving partner is without means, without the need of first exhausting the remedies of the law against the surviving part- ner.^^ The general rule is that the separate creditors of a decedent, "Estate of Munzor, 4, Misc. 374 "Hoyt v. Bonnett,; 50 N. Y. 538 (1893), or-25 Supp. 818. (1872).,,; On the liability of an executor or i* Matter of Nehrer, 57 Idisc. 527 administrator while carrying on busi- (1908), or 109 Supp.'lOQO; afE'd 128 ness on behalf of estate, see note in A. D. 882,112 Supp. 1138,— fourteen 44 L.R.A.(N.S.) 211. years' wait;before attempting to en- 11 Manhattan Oil Co. v. Gill, 118 force claim.' A D. 17, 103 Supp. 364 (1907). " Van Ripen v. Poppenhaiisen, 43 12 Pitts v. Jameson, 15 Barb. 310 N. Y. 68 (1870); but see Richter v. (1853). Poppenhausen, 42 N. Y. 373 (1870) ; IS Pope V. Cole,, 55 N. Y. 124, 14 see also Voorhis v. Child's Ejiecutor, Am. Rep. 198 (1893),— in spite of 17 N. Y. 354 (1858). return of e-\ecution unsatisfied, sur- vivor had assets. Ill NEW YORK ESTATES AND SURROGATES g 106 who had partnership creditors also, are entitled to be first paid out of his estate, on the ground that their debts were contracted on the- credit of the decedent's separate estate ; while the partnership debts are created primarily on the credit of the joint, partnership estate." Testimony is proper that the deceased' was the only person in a firm and conducted business solely in its name, when claims against his estate were rendered in such firm's name during the decedent's lifetime.^* The estate of a deceased partner is not released from liability to a creditor of the partnership unless the transactions show ill at the creditor has accepted the liability of the partnership.^* ± artnership realty retains its: character on the death of a partner and the deceased partner's share descends to his heirs, subject to the equity of the surviving partner to have it appropriated to adjust the partnership obligations and affairs.^ § 106. Id.: Intestate's Partnership, Good Will. — The right to use a llrm name on the death or retirement of all the partners without assigning or appointing it, dies with last surviving partner and does not pass to his personal representative as assets.^ But the good will of the firm goes to the estate of the last surviving partner, so that while his representatives cannot assign the firm name, they can sell the good will, which includes the right to the purchaser to hold himself out as the successor of the former firm.* No good will can exist apart from some tangible thing, such as an established business ; and if there is no such business, no good will exists as an asset for which a representative may be accountable.* The good will of a partnership of which a decedent was a member is property in wiiich his representatives participate.* The title to the subject of a joint venture by several, taken in the name of one of them, on such one's death vests in his legal representatives.* A fair way to ascertain good will's value is to take three times the average of the annual profits for the three years preceding the- "Matter of Gray, 111 N. Y. 404, *Fisk v. Fisk, 77 A. D. 83 (1902),, IskE. 719 (1888). or79Supp. 37. " Matter of Dusenberry, 106 A. D. On the name of business establish- 235, 94 Supp. 107 (1906). "^e^t as part of good -will on dissolu- i^Beardslee v. Hemingway, 65 ^°^°^ P?^'i«^'^^"P ^y "^eath, see note- Hun, 400, 20 Supp. 214 (1892). ^si^h-J^^' 1 Darrow v. Calkins, 154 N. Y. 503, I ^^f. ^- % ^"P'/- , ^ ,,, tl KV?i8?7.^°^- ''■ ^''- '''' lOe SU?^ i'ri9'07? ^- °- '^'■ Ju ■• u/ fl' ■ fA A "Kirkman V, Kirkman, 20 Misc. The rights of heirs of deceased gu (1897), or 45 Supp. 373; aflE'A partner in partnership real estate as 26 A. D. 395 49 Supp. 683. against personal representatives of e j^gg ^_ Willett, 76 Hun, 211, 27" deceased partner are taken up in 27 Supp. 785 (1894) L.R.A. 352. 112 § 107 ADMINISTRATORS death of him whose interest in the good will is to be computed (unless one of such years is a phenomenal one for exceptional rea- sons) ; and then to deduct from the three years' profits the interest on capital annually advanced or withdrawn.'' The rule that three times the average annual profits represent the value of the good will of a partnership of which a decedent was a member does not mean that the profits for the last three years must be taken when one of such years is abnormal.' When the conditions of a partner- ship of which a decedent was a member are unusual in one year, it is proper, in order to fairly average the net profits, to compute them for five years, so that the bad year at one end may be. offset by a good one at the other, leaving three intermediate years showing about equal net profits; and the decedent's share in the average net profits so gotten at, based on his interest in the partnership, less the interest he was to receive on capital invested by him, is a fair esti- mate of the value of his interest in the good will.^ The firm name of a partnership of which the decedent was a member is part of the partnership good will and assets in which the deceased partner's estate is entitled to share on the sale of the partnership business.^" § 107. Id.: Intestate's Partnership, Liabilities of Surviving Part- ner. — A surviving partner is entitled to no commissions for winding up the partnership ; but neither, ordinarily, is interest allowed on the share of the deceased partner in the firm's capital — certainly not on an amount retained by the survivor to meet a claim in liti- gation against the partnership.^^ A surviving partner, in the ab- sence of an express or implied agreement, is not entitled to com- pensation for winding up the partnership affairs (although he may be entitled to remuneration for continuing the firm business, either pursuant to the partnership articles or with the consent of the per- sonal representative of the deceased partner who receives profits from the business)." In the absence of some provision in the part- nership articles, the surviving partner has no right to appropriate to his own use firm assets, even though willing to pay their value; because he is trustee for the estate of his deceased copartner and is bound to liquidate the partnership and dispose of its assets like ' Matter of Welch, 77 Misc. 427, " Johnson v. Hartshome, 52 N. Y. 137 Supp. 941 (1912). 173 (1873). ' Matter of Welch, supra. On the right of surviving partner 9 Matter of ' Ball, 161 A. D. 79 to compensation, see note in 17 (1914), or 146 Supp. 499. L.R.A.(N.S.) 399. " Slater v. Slater, 175 N. Y. 143, »* Burgess v. Badger, 82 Hun, 488, 61 L.R.A. 796, 96 Am. St. Rep. 619, 31 Supp. 614 (1894). 67 N. E. 224 (1903). N. Y. E. & S.— 8. 113 NEW YORK ESTATES AND SUBROGATES § 108 other trustees. '* The burden is on a surviving partner purchasing the interest of his deceased partner to show that the .purchase was in every way fair.^* The administrator of a deceased partner, who had by agreement bound his estate to a continuance of the, partner- ship, is responsible only, for the amount of interest at which the de- cedent put out on loan to the partnership naoney of his." § 108. Id.: Liability for Interest. — An executor or administrator is not chargeable with interest not received by him unless it appears either that he has used the money himself or that by reasonable diligence interest might have been received.^® A teniporary ad- ministrator is properly charged with such interest oil moneys com- ing into his hands as they would have earned had he not failed to deposit them in a trust company; but not with any larger amount, unless he was guilty of misconduct." An administrator who, be- ing also a private banker, deposits in his bank, estate moneys re- ceived by him, to the credit of the estate, stands in the same posi- tion as any private individual who has received estate moneys and mingled them with his own, and must pay interest thereon at the legal rate." Interest should not be charged against an administra- tor on distributive shares when there was a delay of fifteen years after the estate should have been closed in bringing him to ac- count, and the fund had almost wholly been paid out on claims he thought just.*' A surrogate naay properly direct an administra- tor c. t. a. to pay not only the principal but the iri,terest on a legacy, when he delayed, for six years after, the admission of the will, to ac- count;, and only did so then by compulsion; even though he had filed a bill, and an action was pending in ,ihe supreme court for construction of the will; because this was a mere delay which could 1* Joseph V. Herzlg, 19S N. Y.' 456, On the effect of appQintinent of 92 N. E. 103 (1910). ' detftor as executor or administrator On position and powers of surviv- on interest on debt, see note in 26 ing partner in partnership real estate, L.R.Ai(N,S.) 416. ,,' , see note in 28 L R.A. 129. On the allowance of compound ia- ** Bauchle v- Smylie, 104 A. D. 513, terest agaiiist executors, trustees, etc., 93 Supp. 709 (1905). see note in 29 L.R.A. 612. i^ldatter: of Laney, 50 Hun, 15, 2 "Matter of Philp, 29 Misc. 263 Supp. 443 (1888). , ,, (1899), , or ,61 Supp.. 241. 18 Shuttleworth V. Winter, 55 N. Y. "Matter of Thorp, 31 Misc 581 624 (1874). (1900), or 65 Supp. 575. As to the liability for interest ' of . The rate of interest allowed against personal representative carrying on executors is treated in note in 29 business on behalf of estate, see note L.R.A. 651. ': in 40 L.R.A.(N.S.) 220. 19 Clock v. Chadeague, 10 Hun, 97 The right to recover interest on (1877). claim for default of . co-executor is On the. persbnal liability of ext!cu- discussed in note in 11 L.R.A.(N.S.) tor or administrator to distributees 346. for interest where . settlement of es- 114 § 109 ADMINISTEATORS have been obviated by a construction of the will in the accounting proceeding.^" § 109. Id. : Personal Purchase, Profit and Liability. — An adminis- trator using his intestate's business and its assets to carry on his own enterprise directly or through an agent is accountable to parties interested in the estate, on demand, either for the net profits (as distinguished from the gross returns) of the business, or for the sale price bf the business with legal interest from the date of sale.' So, too, the law is that an administrator will be personally charged, for the benefit of the estate, with moneys received from a source independent of the estate for refraining from doing an act as administrator which it would have been detrimental to the estate to have done, e. g., a weekly remittance of $100 or $50 from the owner of 40 per cent of the class of stock controlling a corpora- tion 60 per cent of which the decedent owned, when the corpora- tion was a large debtor of the estate.^ An assignment by an admin- istrator to a stranger, of letters, without consideration, followed by a reassignment by the stranger to the administrator's wife, and a suit by the wife and the administrator in his individual capacity to re- cover the letters, is a fraud on the estate by which the administra- tor seeks to assign trust property for his own benefit.^ No admin- istrator can purchase from ;himself securities in which he invests trust funds which he holds for investment.* An administrator of an intestate who held the administrator's note as an individual, secured by a mortgage on real estate, although he as administrator forecloses and buys in the property, may thereafter as an individual buy the land, credit the estate with the amount paid, and retain it as his owni in spitei of the fact that the note was not paid or credited to the estate at the time of the foreclosure; because his right as debtor to redeem the mortgage on payment of the debt did not cease upon foreclosure sale and purchase by him as administrator.* A person to whom letters of administration are issued is liable for money or other personal property of the estate which was in his hands or under his control when his letters were issued.* The capac- ity in which the money or other personal property was received by tate is delayed, see note in 31 L.R.A. ' Eyre v. Higbee, 35 Barb. 502 (N.S.) 350. (1861). 8" Matter of Estate of Scheideler, * Deced. Est. L., § 111. 75Hun, 185, 27Supp. 7 (1894),a£E'd » Matter of Gilbert, 39 Hun, 61 142 .N, Y. 668, 37 N.'E. 571. . (1886), afE'd 104 N. Y. 200, 10 N. E. 1 Matter of Suess, 37 Misc. ' 459 148. (1902)j or 75 Supp.938. « C. C. P. § 2582. ^.Matter Of Sehroeder,^ No. 1, 113 A. D. 204 (1906), or 99 Supp. 176, aff'd 186 N. Y. 537, 78 N. E. 1112. 115 NEW YORK ESTATES AND SURROGATES § 110 such administrator or came under his control is immaterial to his liability.'' If received by him or coming under his control by vir- tue of letters previously issued to him in the same or another capac- ity to that in which the new letters are issued, an action to recover the money, or damages for failure to deliver the property, may be maintained upon his official bond under the new letters and also upon his official bond under the former letters.' The sureties upon the new or subsequent bond are liable over to the sureties upon the former or earlier bond.* No administrator is charge- able, upon any special promise to answer damages or to pay the debts of the intestate, out of his own estate, unless the agreement for that purpose or some memorandum or note thereof be in writing and signed by such administrator or by some other joerson by him thereunto specially authorized." A person acting as executor, administrator or guardian, appointed by will, deed or other instrument, or by order or judgment of a court or officer, who secrets, withholds, or otherwise appropriates to his own use or that of any person other than the true owner or per- son entitled thereto, any money, goods, thing in action, security, evidence of debt or of property, or other valuable thing, or any proceeds thereof, in his possession or custody by virtue of his ofiice, employment or appointment is liable to fine and imprisonment.*"'' § 110. Id.: Taxes, Mortgages and Repairs.^ — Every person having under his control personal property as administrator is taxable in the tax district where he resides when the assessment for taxation is made.** When taxable personal property is in the possession of two or more administrators residing in different tax districts, each must be taxed for an equal portion of the vajlue of such property so held by them." Administrators should be allowed credit for the amount paid by them for taxes on real and personal property of their intestate, assessed before his death ; because his liability to pay was fixed.*' Administrators are personally liable to pay a tax imposed on property in their hands as such, when such property became subject to , taxation : and they distribute the estate after notice of such tax at their peril.** Administrators cannot pay taxes assessed on their in- testate's realty after his death, or niortgages which he was under no personal obligation to pay; because such taxes and mortgages ' Id. *« Id. ' Id. *' Matter of Steward, 90 Hun, 94, 9 Id. 35 Supp. 366 (1895). *<>Deced. Est. L., § 113. **City of New York v. Goss, 124 *»» Penal Law, § 1302. A. D. 680, 109 Supp. 151 (1908). ** Tax Law, § 8, as amend'd L. 1916, c. 323. 116 i 110 ADMINISTRATORS are charges on the real estate over which administrators have no control.*' Adniinistrators c. t. a. are subject to taxation as such for property not turned over to them on the day when the tax be- came a lien." The land of a decedent which is mortgaged is pri- marily chargeable with payment of the mortgage debt; and his personalty carinot be used to discharge the mortgage unless the mortgaged land is insufficient." A claim for interest paid on a mortgage on land owned by a decedent, made against his estate by one who paid it after his death, cannot be allowed when the mort- gaged land was conveyed to the claimant; because the land is the primary fund for the payment of the mortgage.** A deceased mortgagor's representatives are only bound to pay the mort- gage debt (so far as they have personal property of the decedent applicable to such payment) if the testator so directs ; or the mort- gaged premises are insufficient to pay the bond on which the de- cedent was bound.*' Although a decedent's heir is required to sat- isfy a mortgage on the decedent's realty, yet an administrator is properly allowed amounts paid by him on the mortgage when he made such payments to prevent a foreclosure, and to permit the sale of the equity in the land to pay debts."" The rule that the dev- isee of land subject to a mortgage must pay off the mortgage rath- er than the testator's personal estate does not apply to the case of a mortgage by the maker, to an accommodation endorser of the mort- gagor's note as security for the endorsement, when the maker of the notes never paid them: such a note is properly payable from the mortgagor's personal estate.* An administrator cannot be allowed amounts paid from the intestate's estate for instalments of interest on a mortgage on realty owned by the decedent, or taxes on such realty, paid after the decedent's death.* A mortgagee in another state of realty in such state will not be allowed to demand its pay- ment from the personalty of a deceased New York resident in the hands of his executors in this state, under a will showing an intent to have all the testator's property, real and personal, converted into money and paid to legatees; because when a claimant has two *6WiIlcox V. Smith, 26 Barb. 316 *' Matter of Wilbur v. Warren, (1858). 104 N. y. 192, 10 N. E. 263 (1887). ** People ex rel. Avery v. Purdy, *' Murdook v. Waterman, 145 N. Y. 155 A. D. 607 (1913), or 140 Supp. 55, 27 L.R.A. 418, 39 N. E. 829 614, aff'd 209 N. Y. 575, 103 N. E. (1895). 1129. Tax Law, § 8. "" Stilwell v. Melrose, 15 Hun, 378 *'Erwin v. Loper, 43 N. Y. 521 (1878). (1870) ; Murdock v. Waterman, 145 * Cochrane v. Hawver, 54 Hun, N. Y. 55, 27 L.R.A. 418, 39 N. E. 556, 7 Supp. 907 (1889). 829 (1895) ; Van Vechten v. Keator, " Matter of Swarthout, 38 Misc. 56, 63 N. Y. 52 (1875). 76 Supp. 961 (1902). NEW YOBK ES-TATES AND' SURROGATES §§ 111, 112 funds to which he may resort, both real and personal, to answer his demand, while another has only one, the latter may compel the former to take satisfaction out of that fund on which he has ho lien.* § 111. Id.: Investments. — ^An administrator holding trust funds for investment may invest thern in the Same kinds of- securities as those in which savings banks of this state are by law authorized to invest the money deposited therein, and the income derived there- from; and in bonds and mortgages or unincumbered real property in this state worth fifty per centum (50%) more than the amount loaned thereon.* Any administrator holding trust funds may re- quire such personal bonds or guaranties of payment to accompany investments as may seem prudent, and all premiums paid on such gua;ra.nties may be charged to or paid out of incbme, providing that such charge or payment be not more than iat the rate of one-half of one per centum (^ of 1%) per annum on the par value of such in- vestments.^ An administi^ator cannot purchase from himself se- curities in which to invest trust funds.® An adnaihistrator who in- vests funds and property received from the estate of any deceased person, or deposits them, with any person, association or corporation doing business under the banking law, or other person or institu- tion, in his own name, iS guilty of a misdemeanor.'' Air transac- tions had and done by him must be in his name as administrator.* For loss arising froni investments of trust funds on the sole security of individual Or personal i-fisponsibility administrators are personal- ly responsible.*" § 112. Id.: Transfer Tax, in General.*" — A tax is imposed by law upon the transfer of any tangible property within the state and of * Riee v. Harbeson, 63 'N. Y. 493 "* On some important matters re- (1875). , . .spectiflg transfer taxes the iolloving *Dece4. Est., L. § 111.,. , annotatio^is may be found valuable: Securities in which savings banks On the constitutionality of sueces- may invest are listed in §§'239 and sion taxes, notes in 33 L.R.A.(N.S.) 239a of the Banking Law (L. 1914, 592, 50 L.R.A.(N.S.) . 991; c. 369 & L. 1915, c. 269), as amended On the power to impose such tax by L. 1916, c. 363. The text of this retrospectively, notes jn., 8 L.R.A. law is given in § 586, infra. (N.S.) llSO, 33 L.R.A.(N.S.) 602, 44 5 Deeed. Est. L. § 111. L.R.A.(N.8.) 419. , ^ Id. , The classification of an inheritance '' C. C. P. § 2664-a; added by L. or gift for the purposes of a ,succes- 1916, c. 588. sion tax, on the basis of ampunt, is *Id. set forth in note in '6 L.R.A.(N'.S.) «» Matter of Krisfeldt, 49 Misc. 26 7§2. (3905). On inheritance or succession tajf on On personal liability for losses to property covered by antecedent pow- estate from investments, see note in er of appointment, see note in. 33 44 L.R.A.(N.S.) 873. L.R.A.(N.S.) 236. 118 § 112 ADMINISTRATORS intangible property (or any interest therein or income therefrom) in trust or otherwise, to 'persons or corporations, in certain cases and subject to certain exemptions and limitations.* This is known as the "Transfer Tax." The tax is on the clear market value of the property." The tax is payable at the time of the transfer, except that on estates limited, conditioned, dependent or determinable on the happening of arty contingency or future event, by reason of which the fair market value cannot then be ascertained, the tax ac- crues when the transferee comes into actual possession or enjoy- ment.*^ The tax is payable to the state comptroller in counties in which the office of appraiser is salaried; and elsewhere to the county trea.surer, who must give (and every executor, administrator or trustee must take) duplicate receipts.*^ If the tax is paid within six months of its accrual, a discount of five per cent must be al- lowed' and deducted therefrom.'* If not paid within eighteen months from accrual, interest is chargeable and collectable at ten per cent per annum from accrual, xinless it cannot be determined and paid because of claims made on the estate, necessary litigation or oWier unavoidable c^use of delay. When interest. at six per cent per annum only is chargeable from its accrual till the cause of delay is removed, after which ten per cent is charged.'* The tax remains a lien upon the property transferred till paid ; and the transferee and executors, administrators and trustees are personally liable for the tax until its payment.'* The administrator, executor or trustee can sell so much of the property as will enable him to pay the tax, as he might to pay debts. He must deduct the tax from the property transferred and pay it over.'* If the property transferred is not in money, he must collect the tax on such property's appraised value, from the transferee.''' He ctonotbe compelled to deliver any specif- ic property subject to tax to the transferee till he has collected the On the repeal of statute imposing 'Tax Law, § 220 (amended by L. sufJcession tax as affecting estate of 1916, c. 323). one who died before the repealing act, '" Id. took effect, see note in 8 L.RiA.CN.S!) " Tax Law, § 222. 1210: ' ^ ''''" '^Tax Law, § 223. ' The validity of a discrimination '* Id. against aliens; by iaheritaJLCe tax law '* Id. as affected by a treaty with foreign '* Tax Law, § 224. government is discussed in notes in On the personal liability of execu- 33' L.R.A.(N.Si) 632, L.R.A.1916A, tor or administrator for the sueces- 474. sion tax, see note in L.R.A.1915C, On whether exacting succession tax 615. in two or more states is double tax- '* Id. ation, see note in 15 L.R.A.(N.S.) '''Id. 150. 119 NEW YORK ESTATES AND SUBROGATES § 1J.2 tax.^' If the tax is on a legacy charged on realty, the tax remains a lien on the realty till paid and the heir or devisee, must pay it to the executor, administrator or trustee, who may enforce its pay- ment as payment of a legacy might be enforced.^' If any such legacy is given for a limited period, the executor, administrator or trustee must retain the tax on the whole amount, and, if not in money, apply to court to make an apportionment of the sum to be paid to him by the legatee.^" Eefund may be had of the tax if erroneously paid.* If a testator bequeaths or devises property to executors or trustees in lieu of statutory commissions or allowances, or of value exceeding such commissions or allowances, the excess is taxable.^ Banks, safe deposit companies, etc., cannot deliver or transfer to personal representatives their decedents' assets, money, securities, etc., in such depositaries' possession or under their control unless notice of the time and place of the intended delivery or transfer is served on the state comptroller at least ten days in advance, and un- less they retain enough of such assets, money, securities, etc., to pay any tax (and interest) thereafter assessed, unless the state comp- troller assents in writing.* It is customary to secure such assent, commonly called a waiver, by applying to the attorney for the state comptroller in the county, if such there be, and if there be none, to the state comptroller (at Albany) direct. A form of such an application is given in the forms below.* A transcript of the letters of the deceased's personal representative should be presented with the application. An appointment will then be made with the state comptrol- ler's representative (box-opener") at the bank or other deposi- tory, when the safe-deposit box of the decedent is opened and the comptroller's representative li^ts its contents and gives the deposi- tary his waiver of the notice required by the statute and his consent to the transfer or delivery of the contents of the box. If securities in a decedent's name have to be transferred from such name to his personal representative's name, or otherwise, a similar application (about in the form given below®) should be made to the state comptroller, or his attorney, and a transcript of the letters should be furnished him, and consents to the various corporations will be given by the state comptroller to transfer the securities. No rep- resentative of the state comptroller need go to such companies, be- " Id. * Tax Law, § 226. " Tax Law, § 224. ' Tax Law, § 227. "» Id. * See Form No. 26-7, infra. 1 Tax Law, § 225 (as amended L. ^ See Form No. 26-7, infra. 1911, c. 308). 120 § 113 ADMINISTEATORS cause the comptroller's consent is in this case only to the transfer of assets of the existence of which he is fully aware through their list- ing in the deceased's personal representatives's application for the consent. If the transfer of securities is sought before letters have been issued, the comptroller may demand an affidavit showing what the estate consists of.** If the securities are those of a foreign state, or the decedent is a resident of such state, the provisions of the laws of such state must be examined to see if waivers from its state comptroller or other official are not required before such securities can be transferred out of the decedent's name; as there may be a tax imposed by the laws of such state on the transfer on death of such securities. For the just imposition of the transfer tax, every person is deemed to have died a resident, and not a nonresident, of the state of New York, if and when such person has dwelt or has lodged in this state during and for the greater part of any period of twelve consecutive months in the twenty-four months next preceding his or her death ; and also if and when by formal written instrument executed within one year prior to his or her death, or by last will, he or she has de- clared himself or herself to be a resident or a citizen of this state, notwithstanding that from time to time during such twenty-four months such person may have sojourned outside of this state, and whether or not such person may or may not have voted or have been entitled to vote or have been assessed for taxes in this state ; and also if and when such person has been a citizen of New York sojourning outside of this state.* The burden of proof in a trans- fer tax proceeding is upon those claiming exemption by reason of the alleged nonresidence of the deceased.® The wife of any person who would be deemed a, resident under this section is also deemed a resident and her estate subject to the payment of a transfer tax un- less such wife has a domicil separate from him.* § lis. Id.: Appraisal, Order Fixing Tax, Appeal.'' — The surro- gate granting letters or appointing a trustee has jurisdiction to hear and determine all transfer tax questions.* On his own motion or on application of any interested person, the surrogate must direct '" See Form No. 26-7, infra. computing succession tax, see note in 6 Tax Law, § 243, as amended L. 16 L.R.A.(N.S.) 329. 1916, c. 551. The basis and method of comput- ' As to whether the exempt portion ing the value of a life estate or an- of the estate is to be included or ex- nuity for the purposes of a succession eluded in determining amount for tax are set forth in note in 46 L.R.A. purpose of fixing rates, see note in (N.S.) 714. 51 L.R.A.(N.S.) 1075. « Tax Law, § 231, as amend'd L. On the deduction of mortgage in 1916, c. 550. 121 KEW YORK ESTATES, AND SUREOGATES § 114 an appraiser to fix the fair market valiie of property subject, to the transfer tax.^ The appraiser must mail nojtice of the time and place hp will" appraise the property to a,ll persons known to have or claipqi an. interest in the property and to such others as the. surrogate di- rects.^" He must then appraise it at its fair market value. ^^ The representative (of the transferrer) sliould make an affidavit, for submission to the appraiser, of the value of the, estate, attaching af- fidavits of experts as to the value ,of any property he is not himself qualified to appraise. To enable the appraiser to make the ap- praisal he. may subpoena witnesses and tEuke testimony.** He iflust make report thereof and of such. value in writing to the surrogate, together with the testimony.*' The value of future and limited estates, incomes, interests or annuities dependent upon lives, is de- terminable by the standard of mortality employed by the superin- tendent of insurance in ascertaining the value of life insurance policies, except that the rate of interest must be five per cent per annum.** Methods of calculating other interests are stated in the statute.** The surrogate must, from the appraiser's report, etc., forthwith, as of course, determine the cash yalue;of the estate and the amount of tax, unless he ddes so without appointing an ap- praiser; and give notice thereof to all persons known to be interest- ed, and appoint a special guardian for an infant whose presently involved interest is adverse to that of any other^ interested person.*^ The state comptroller or any person dissatisfied with the appraise- ment, assessment or determination may appeal therefrom to the surrogate within sixty days from the fixing, assessing and deter- mination of tax by the suri:ogate, upon filing in the latter's office a written notice of appeal stating the grounds upon which the appeal is taken.*' No costs are allowable on such, appeal.** Your surro- gate's court's rules may provide for objections, notice of appear- ance,*^ and hearing in transfer tax proceedings.'" The rules of various surrogates' , courts proyide for the entry of the order. deter- mining the transfer tax, as of course, on the filing of the appraiser's report.* ,, § 114. Id.: Exemptions.*-77,The following property of a dece- dent, grantor, donor or vendor is exempt from the' transfer tax-. 'Id., § 230. " *■? Tax Law, § 232. I'or foim of *° Id., § 230. notice of appeal, see 29, infra. **Id., §230. *8Id. ,. *'Tax Law, §230, as amended L. *' See e.,g., these Rules: N. Y. 23. 1916, c. 550. 80 See e.g., Cattaraugus Rule, 15. *= Id. * See e. g., these Rules:, N. Y. 23. ** Id. , . ).j « *A more extended diseussion of ** Id. .. ..;' various .questipns involving sijccession *^ Tax Law, § 231, as amended L. tax exeinptions will be found in the 1916, e. 50. following annotations. 122 §114 .ADMINISTRATORS (1) All property (or any beneficial interest therein) not exceed- ing $5000 in amount transferred to a father, mother, husband, wife, widow, child,, or child adopted as such in conformity with the laws On exemption from liability to sue- The doctrine of equitable conver- cession tax generally,, see notes in 33 sion in relation to succession tax is L.R.A.(N.S.) 595, 50 L.R.A.(N.S.) discussed in notes in 1 L.R.A.(N.S.) 992. 400, 19 L.R.A.(N.S.) 290. The applicability of general tax On succession tax on gift in con- exemptions to inheritance or sucees- templation of death, see notes in 18 sioR tax is discussed in notes in 23 L.R.A.(N.S.) 458, 46 L.R.A.{N.S.) L.R.A.(N.S.) 1208, 48 L.R.A.(N.S.) 760. 3*73. The applicability of succession tax As to whether a general exemption to property conveyed, or agreed to be from taxation comprehends death du- conveyed, in consideration of support ties, see note in 1 B. R. C. 877. of grantor during his life is discussed As to whether property out of the in notes in 18 L.R.A.(N.S.) 226, 52 state must be included in fixing ex- L.R.A.(N.S.) 211. emptions under inheritance tax, see On whether money set aside under note in 39 L.R.A.(N.S.) 1024. will, or otherwise for purposes of car- The exemption of bequest to gov- ing for grave, erection of tomb or ernment from succession tax is dis- monument, is subject to inheritance cussed in note in 23 L.R.A.(N.S.) tax, see note in 23 L.R.A.(N.S.) 1209. , _ _ 474. The right of charitable, education As to inheritance or succession tax or religious institutions to exemptions on money or property of estate, from taxation as affected by the ge- which has been lost or misappropriat- ographical field of operation is taken ^^l gingg decedent's death, see note in up in note in 51 L.R.A.(N.S.) 817. 32 L.R.A.(N.S.) 1167. The effect on transfer tax of ap- q^ ^^^ liability of insurance policy portioning property of nonresident j^^^^^^ ^ domestic corporation upon decedent within the state to payment ^^^ j^^/^^ ^ nonresident to a local of debts or legacies which are ex- ^ j?, ^ ■ -m t n ^ empt or subject to a reduced rate is *"^^ Sec. 200. That -when use^ in this title — / ' The I term "peteon" includes partnerships, corporations, and' associations; The term "United States" .means only the States, the Territories of Alaska and Hawaii, and the. District of Colmnbia; ^ ' The term "executor" means the executor or administrator of the decedent, or, if there is no executor or adminiatratprj any person who takes posses-' sion of any property of the decedent; and ' The term "cdjleetor" means the ctfllector of internal revenue of the dis- trict in which was the domicile of the decedent at the time of his death, ;or, if there was no such .domicile in the United States, then the collector of the district^ in which is situated the part p£ the gross estate of the decedent in the United States, or, if such part of the gross estate is situated in more than' one district, then the collecfor of internal revenue at Baltimore, Mary- land. . . / Sec. 291. That a tax (hereinafter in this title referred to as the tax), equal to the following percentages of the value of the net eState, to be. ■determined as- provided in section two hundred and three, is hereby imposed ' upon the transfer of the net estate of every decedent ^dying after the pas- sage of this Act, whether a resident or nonresident of the United States : One per centum of the amount of such net estate not in excess of $50,000; Two per centum of the amount by which such 'net estate exceeds $50,000 and does not exceed, $150',000; ' / , Three per centum of ;the amount by which such net estate exceeds $150,000 and does not exceed $250,000; '' , Four per centum of the amount by which such net estate exceeds $250^000 and does not exceed' $450,000; Five per centum of the' amoufat by which such net estate exceeds $450,000 and does not exceed $1,000,000; . ' Six per centum of the amount by which such net estate exceeds' $1,000,004 and, does not exceed $2,000,000; ' Seven per' centum, of , the* amount by which such net estate exceeds $2,- 000,000 and does not exceed $3,000,000; , Eight per centum of the amount by which such net estate exceed j $3,000,009 and does not exceed. $4,000,000; 1 I Nine per centum of the amount by which such net estate exceeds $4,000y000 and does not exceed $5,000,000; and Ten per centum of the aindunt by which siieh' net estate exceeds $5,000,000. Sec. 202. That the value of the gross estate of the decedent shall be determined by including the value at the- time of his death of all property, real or personal, tangible or intangible, wherever situated : ■ (a) To the extent of the interest therein of the decedent at the time of his destth which after his death is subject ta the payment, of the charges against his estate and. the expenses, of its administration and is subject to d^tiibntion as part of his estate. _ • (b) To the extent of any interest therein of which the decedent has at any time made a transfer, or 'with respect to' which he has created a trust, \ 126a' FEDERAL TAX inVcontemplatibn of or intended to take effect in possession or enjoyment at or aftet his death, except in case of a bona fide sale for a fair consideration in money or money's worth. Any transfer of a inaterial part of his prop- erty in the nature of a final disposition or distribution thereof, made by the ,decedeiit ■within two years prior to his death without such a' consideration, shall, unless' shown to the contrary, be deemed to have been made in contem-^ plation of death within the' meaning of thisiitle; and (c) To the extent ot the interest therein held jointly or as tenants in the ehtirety by the decedent and any other person, or deposited in banks or other institutions in their joint names and payable to either or the survivdlr, ; except such part thereof as may be shown to haye originally belonged to such other person -and never to have belpnged to the decedent. "^ " Por the purpose of this title iioek in a domestic corporation owned and held by a nonresident decedent ^hall be deemed property within the XJnited ' States, and any property of which the decedent has ma^e a transfer or with ' respect to which he has created a tn^t, within the meaning of subdivision (b.) of this section, shall be deemed to be situated in the United. States, if so situated either at the^time of ^the transfer or the creation of the trdst, or 9A the time of the decedent's death. , ; Sec. 203. Tha,t for the purpose of the tax the value of the net estate shall be determined— y • . ' (a) In-the ease of a residpnt, by-deducting from the valup of the gross '.estate^- ' , , ' (1) Such amounts for fiineral expehses, administration expenses, claims against the estate, -unpaid mortgages, losses incurred during tfe settlements, of the estate arising from fir^s, storms, shipwreck, or other casualty, an,d from theft, when such losses are not Compensated for by insurance or other- wise, support during the settlement of the estate of those dependent upon the decedent, and such other charges against the estate, as are allowed by the laws of the jurisdiction,, whether within or without the United States, under which the estate is Wng administered; and (2) An exemption of $50,000;' ^. (b) In the case of a nonresidient, by deductmg from the valn« of that "part of his gross estate which at the time of his death is .situated in the United States that gropoi^ion of the deductions specified in paragraph (1) of subdivision (a) of this section which thi^ value of such part bears to the value of his entire gross estate, wherever situate^d. But no deductions shall be allowed in the case of a nonresident imles^ the executor includes in the return required to be filed under section two* hundred and five the value''' at the time of his death of that part of the gross estate of the nonresident ■ not situated Jn the United States. Sec. 204. ' That the tax shall b^ due one yeat after the decedent's death. If the tax is paid bef oite it is due a discount at the rate of five per centum per annum, calculated from the tipie p'ayment is made to the date when the tax is due,, shall be deducte'd. If the tax is not paid within ninety days after it is due interest at, the rate of ten per centum per annum from the time of the decedent's death shall be^added as part of the taXj unless because of claims against the estate, necessary litigation, or other unavoidable de- lay the collector finds that the tax can not be determined, id which case the .interest shall be at the rate of six per centum per annum from the'time of the decedent's death until the cause of such deliiy is removed, and there- after at the rate of ten per centum per annuOi. Litigation^ to defeat the payment of the tax Shall not be deemed necessary litigation. , Sec. 205. That the executor, within thirty days after qualifying as such, > ( ■ '> 126b ■- . FEDERAL TAX or after ■ coming into possession of any property of, the decedent, which-.- ever event first occurs, shall give written notice thereof to -the collector. The executor, -shall, also, at such times and in such manner as may be re- quired, by the riegnlations made under this title, file v?ith the collector a return under oath in duplicate, setting forth (a) the value of the ;gross estate of the decedent- at the time of his death, or,, in case of a nonresident, ■jof that pftrt.of his gross estate situated in the tJnited States;' (b) the de- ductiJDns allowed under section two hundred and three; (c) the value of the net estate of the decedent as defined in section two hundred and three ; and (d) the'jtax paid or payable thereon; or such part of such information, as may at the time be ascertainable and such siipplemental data as may be necessary to establish the correct tax. Return shaE"be made in all cases of estates subject to the tax or where .the ^ross estate at the death of the decedent exceeds $60,000, and, in the case of --the estate of every nonresident any part of whose gross estate- is sit- uated in theiJUnited States. If the executor is unable to make a complete- Return as to any part of the gross estate of the decedent, he'shall include i in his return' a description of, such part and the name of every person ' holding a/legal or beneficial interest therein, and upon notice from the col- ■ lector such person shall in like manner make a return as to such part of ■ the gross estate. The Commissioner of Interna,l Revenue shall make, all' assessments of the tax under the authority of existing'' administrative special and general pro^isidns- of la*. relating to the assessment and collection of Sec. 206. That if no administration is granted upon the estatp of a deeedentj or if no return is filed as pjovided in section two hundred and five, or -if a return contains a false or incorrect statement of a inaterial. fact, the collector or deputy collector shall make a return and the Com- missioner of Internal Revenue shall assess tlje ta;x thereon. ' / Sec. 207. That the executor shall pay the tax to the collector or dep/iity .eoUector. If "for any reason the amount of the tax can not be determined, the payments of a sum of money sufficient, in the opinion of the collector, to discharge the tax shall be deemed payment in full of the tax, except as in this section otherwise provided. If the amount so paid excee4s the amount of the tax as finally deteifained, the Commissioner of Internal Revenue shall refund such excess to the executor. ' If the' amount of tjie tax as. finally determined exceeds the amount so paid the commissioner shall ' notify the executor of the amount' of such excess. Prom the time of such notification to the time of 'the firia! payment of such excess part of the taix,/ interest shaU. be added thereto it the rate of ten per centum per annum, and the amount of such excess Shall be a lien upon the entire gross estate, except such part thereof as may have been sold to_a bona fide purchaser 'for a fair consideration in money or money's worth. ' The collector shall grant trf the person paying the tax duplicate receipts, either of- which shall be sufficient evidence of suph payment, and shall.entitle the executor to be credited and allowed the amoiint thereof by iiiy court having jurisdiction to audit or settle "his accounts. \ ■ Sec. 208. That if the tax herein I imposed is not paid within sisty days after it is due, the collector shall, unless there is reasonable^ caiise'-for fiu:- ther delay, commence a{>f)ropriate proceedings in any court of the United States, in the name of t^e United States, to subject the property of 'the decedent to be. sold under the judgment or decree of the court. From the proceeds of such sale the amount of the tax, together with the costs and ■ ,126o • rEDEKAL TAX .^ expenses of every description to -he allowed by the court, shall be first pai3, and the balance shall be deposited according to the order of the court, to be paid under its' direction to the person entitled thereto,' If the tax dr any part thereof is paid by, or collected out of that part of the estate pass- ing to or in tne possesion of, any person other than the executor in his , ejpaeity as such, such person shall be entitled to reimbursepient put of any '■■pSiT^ of the estate still undistributed or by a jtist and equitable' contribu*. tibn by the persons "whose interest in the estate of the decedent would have been reduced if the tax had been paid before the distribution, of the estate or whose interest is subject to equal or prior liability for the payjnent of ttaes, debts, or other tharges against the estate, it being the purpose and intent of this title that so far as is practicable and unless otherwise directed "by the WiU of the decedent the tax shall be paid out of the esfate before its distribution. - ' Seo. 209. That unless the tax-ds sooner paid in full, it shall be a lien for ten years "upon the gross estate of the decedent, except Ijliat such part of the gross estate as is used for the paymeht of charges against the estate and expenses of its administration, allowed by any court having jurisdic- tion thereof, shall be divested of such lien. ' ' \ ■ If the depedent, makes a transfer of, or creates a trust with respect to, any (property in contemplation of or intended to take effect in.^ssession or enjoyment at or after his ^eath (except in the case of a-bona fide sale for a fair consideration in money or money's 'worth)' and if the tax in respect thereto is not' paid when due, the transferee or trustee shall be personally liable for such tax, and such property, to the extent of the; decedent's inter- est therein at the time'of siich tranlsfer, shall be subject' to a like lien equ^I to the amount of such tax. Any part of sucli property sold by such trans- feree or trustee to a bona fide purchase]^ for a fair consideration in money or money's worth shall be divested of the lien and a like Ue^ shall wen attach to all the property of such transferee or trustee, except any psat sold to a bona -fide purchaser for a fair consideration in iSoney or money's worth. Sst!. 210. That whoever knowingly makes any false statement in any notice or return required to be filed by this' title shall be liable to a penalty of not exceediog $5,000, or imprisonment not exceeding one year, or both, in the discretion of the court', , Whoever fails to comply y/nth , any duty imposed upon him by Section two hundred and five, . or, having in his. possession or control any record, file, or paper, containing or supposed to contain any inforpiation concern- ing the estate of ^e decedent, fails to exhibit the same qpon request to the Commissioner of Internal Kevenue or any collector or law officer of the "United. States, or his duly authorized deputy or agent, who desires to exam- ine the skme in the performance of his duties under jthis title, shall be liable to a penalty of not exceeding $500, to be recovered, /with costs of suit, ili a civil action in the name of the United States. ' , • Sec. ,211. That all administrative, special, and general provisions of law, including the laws in relation to the assessment and collection of taxes, not heretofore specificfilly repealed are hereby made to apply to this title, so far as applicable and not inconsistent with its provisions. Sec. 212. That the Commissione;r of Interaa.1' Revenue^, with the ap- proval of the Secretary of the' Treasury, shall make such regulations, and prescribe and require the use of suc^ books and fbrms, as he may deem ileeessary to carry out the provisions of this title. • 126d § 116 ADMINISTRATORS 4 per cent on any amount from $100,000 to $200,000 ; and 5 per cent on any amount from $200,000 up.^^ The rate when the trans- feree is a person or corporation other than those persons or corpora- tions previously discussed as exempt in whole or in part is 5 per cent on any amount to $25,000; 6 per cent on any amount from $25,000 to $100,000 ; 7 per cent on any amount from $100,000 to $200,000 ; and 8 per cent on any amount from $200,000 up.'^ Of course, there is no need of considering the rate of tax if the value of the property ■ is within the exemption ; and reference is made to the last section for a discussion of the statutory exemptions. § 116. Id.: Actions By and Against (Administrators and Execu- tors) ; Pleading and Practice, In General. — The general rule is that actions by an administrator or executor may be brought either in his ofiicial or individual capacity ; while actions against him should be brought against him in his individual capacity only, because the beneficiaries of the estate he represents are hot concluded by his acts until they have been passed upon on his accounting.^* An action brought against an administrator or executor may, hoAvever, be against him both personally and in his representative capacity.^* In determining, whether actions involving the acts of executors or administrators, and the estates they represent, should be brought or defended by the representatives as such, .or as individuals, it is neces- sary to ascertain iij ea,ch case whether the action was brought by or against such representative as such .or as an individual; because _ wheji the action is against the representative on a claim not existing . at the decedent's death, the action lies against, the representative in his individual capacil^y only and the judgment is de bonis ^ropriis (except in an equitable suit to charge the estate to which the bene- ficiaries ;0f the estate are parties), while when the action is by the representative it is immaterial whether he sues as such or individ- ually, as the recovery in either event is assets for which he must account, and the defendant is not concerned with the form of the action, as his liability and defenses are the same in either case.^* •^ Tax Law, § 221a, as amend'd L. On the executor or administrator 1916, c. 548. as the real party iu interest by whom 18 j,j_ , an action/ must be brought, note in « Leavitt V. Scholes Co., 210 N. Y. 64 L.R.A. 611. 107, 103 N. E. 965. • On who may sue or take other pro- 1* Murphy v. Naugbton, 68 Hun, ceedings to set aside a judgment af- 424 (1893), or 23 Supp. 52, C. C. P. fecting decedent's estate, note in 54 § 1815. ■ L.R.A. 761. 1* Leavitt V. Scholes Co., 210 N. Y. In what capacity an executor or 107, 103 N. E. 965 (1913). administrator may be sued for per- In general as to actions by or sonal tort is discussed in note in 51 against an estate, see the following L.R.A. 261. notes. On the right of the next of kin to 127 NEW YORK ESTATES AND SUEEOGATES § 117 § 117. Id.: Actions By. — ^An action or special proceeding by an executor or administrator upon a cause of action belonging to him in his representative capacity must be brought by him in his repre- sentative capacity.^® An action on a contract made by a decedent must be brought in the name of his executor or administrator ; but an action on a contract made by the executor or administrator must be brought by the latter in his individual capacity.^'' The omission to put the word "as" before the word "Executor" in an action by an executor is waived if not raised at the trial, especially when it appears in the summons.^' The omission in the title of an action by executors. of the word "as," between the name of the plain- tiifs and the words descriptive of their representative capacity, does not prevent them from claiming that the action is brought and the recovery is to be had in their representative capacity, when the aver- ments of the complaint fix their representative character and show the cause of action devolved upon them as such.^' Suit on a note to one as executor of the estate of another may be brought in the payee's name as an individual or as executor: if the only reference to the representative capacity is the declaration that he "executor of," etc., "complains," the suit is in the plaintifP's individual capac- ity.*' The personal representative of one deceased of several part owners of a vessel is entitled only to be paid the value of his dece- dent's share by the others for injury to the vessel, as they are ten- ants in common and the right of action for the injury survives to the living part owners.* The nonjoinder as plaintiffs of co-admin- istrators c. t. a. with the one plaintiff-administrator c. t. a. is waived by failure in the answer to show it.* An amendment to a com- plaint so as to describe the plaintiff as administrator c. t. a. instead of as executor is properly allowed, as it does not change the rights of the parties or mislead the defendant.' maintain an action in behalf of the *' Pryor v. Milburn, 51 Misc. 596, estate, note in 22 L.E.A.(N.S.') 454. 101 Supp. 34 (1906). As to admissions and waivers by '* WMets v. Haines, 96 A. D. 5 executors or administrators in ac- (1904), or 88 Stipp. 1018; aff'd 182 tions, note in 32 L.R.A. 687. N. Y. 543, 75 N. E. 1135. On waiver by legal representatives On the effect of qualifying words or heirs of privilege as to eommuni- "as executor," "as administrator" in cation between physician and patient, pleading, see note in 15 L.R.A. 851. note in 48 L.E.A.(N.S.) 420. *» Merritt v. Seamen, 6 N. Y. 168 On the right of a domiciliary ad- (1852). ministrator to sue on a judgment in * Bucknam v. Brett, 35 Barb. 596 another state, see note in 39 L.R.A. (1861). (N.S.) 430. * Risley v. Wightmau, 13 Hun, 163 18 c. C. P. § 1814. (1878). " Rhrman v. Bassett, 159 A. D. ^ Risley v. Wightman, supra, C. C. 752, 144 Supp. 976 (1913). P. § 732. 128 § 118 ADMINISTRATORS ' § 118. Id. : Actions Against. — ^An action or special proceeding commenced against an executor or administrator, except when it is brought to charge him personally, m,ust be brought against him in his representative capacity.* A judgment recovered in an action against an executor or administrator without describing him in his representative capacity cannot be enforced against his decedent's property except by special direction of the court contained therein.* "For all causes of action arising upon a contract made by the tes- tator in his lifetime, an action can be sustained against the execu- tor as such, and the judgment would be de bonis testatoris. . . . In all causes of action, when the same arise upon a contract made after the death of the testator, the claim is against the executor, per- sonally, not against the estate, and the judgment must be de bonis propriis." ' Suit may be brought against the executors, devisees, leg- atees, heirs at law or next of kin of a testator, whose note the payee had exchanged after the testator's death for one by the testator's executors as such for the same amount and for a period less than the time within which he could have held the estate on the debt represented by the testator's note, when the evidence shows there was no intent to substitute the individual liability of the executors for the liability of the estate.'' An executor or administrator may state an account on which an action may be had against him for a claim ascertained or adjusted thereby — in his representative char- acter when the account relates to transactions of the testator or In- testate, and personally when the account relates to dealings between the executor or adniinistrator and another party on claims not ex- isting at the death of the decedent, although growing out of matters connected with the administration.' An action brought against de- fendants "as executors," on agreement by them "as executors" to pay for services rendered, and demanding judgment against them "as ex- ecutors", is not against them as individuals but as representatives, and the judgment recovered would be levied de bonis testatoris.^ In suing executors it is not necessary in the complaint to allege more than their investiture in ofhce, their acceptance by taking the oath of office ; or to negative every cause that could divest them of office ; because their letters are conclusive evidence of their authority till revoked, or till the decree granting them be reversed, and their con- tinued life and exercise of their executorial duties is presumed.". A representative who while acting within the assumed scope of his * C. C. P. § 1814. 8 Sehutz v. Morette, 146 N. Y. 137, 5 Id. . 40 N. E. 780 (1895). *Ferriii v. Myriek, 41 N. Y. 315 ^ Austin v. Muuro, 47 N. Y. 3bO (1869). (1872). ' Glenn v. Burrows, 37 Hun, 602 ^^ Seaman v. Jamison, 146 A. 1). (1885). 428, 131 Supp. 155 (1911). N. Y. E. & S.— 9. 129 NEW YORK ESTATES. AND SUEEOGATES § US authority commits an act equivalent -to a conversion, e. g., selling estate securities and distributing the proceeds, is then liable to suit individually ; but may plead . the three years' Statute of Limita- tions.^^ An action may be brought against an executor or admin- istrator personally and also in his representative capacity when the complaint (1) sets forth a cause of action against him in both capacities; or (2) states facts which render it uncertain in which capacity the cause of action exists against him; or (3) sets forth two or more causes of action against the defendant in different capacities, all of which (a) grow out of the same transaction, or transactions connected with the same subject of action, (b) do not require different places or modes of trial, and (c) are not inconsist- ent with each other. ^^ Executors holding property in trust for a debtor are not liable at the suit of a receiver, in supplementary pro- ceedings against such debtor, unless the existence of a surplus over the amount necessary for the debtor's support is shown in the fund held by the executors." In an action against an executor or admin- istrator in his representative capacity wherein the complaint de- mands judgment for a sum of money, the existence, sufficiency or want of assets cannot be pleaded by either party, and the plaintiff's right of recovery is not i affected thereby (except with respect to the costs to be awarded as prescribed by law) ; and a judgment in such an action is not evidence of assets in the defendant's hands. ^* If an executor or administrator is defendant in an action or special l^roceeding which is pending when his powers: cease, the plaintiff', in a proper case, may proceed therein against him, to charge Mm ]:)ersonally ; but a judgment or other determination thereafter ren- dered or made against him is not of any force as against the estate of the decedent, or a person succeeding to the administration of such I estate.^'' An executor or administrator cannot be made per- sonally liable to the adverse party for a debt or for damages by reason of his having made a false allegation in pleading.'* Upon an action l>y one partner for an accounting, in the absence of an allegation of the insolvency of the firm, it is not proper to make the ]iersonal representatives of the deceased copartner parties, even though the entire assets of the firm have been sold and the plain- tift''s interest is antagonistic to that of the estate of the deceased partner." When the personal representatives of a joint debtor are directly proceeded against at law, the plaintiff should allege and " Morales v. Klopsch, 158 A. D. " C. C. P. § 1824. 824, 143 Supp. 922 (1913), C. C. P. " C. C. P. § 1830. S 383, subd. 4. « C. C. P. § 1831. 12 C. C. P. § 1815. " Parry v. Parry, 92 Misc. 490, 155 "Graffi V. Bonnett, 31' N. Y. 9 Supp. 1072 (1915). (1865). 130 § 119 ADMINISTRATORS prove the insolvency or inability to pay of the surviving joint debt- or or debtors." § 119. Id.: Survival and Revivor (Actions By Executor or Ad- ministrator). — In general an action does not abate by any event if the cause of action survives or continues.^' In the case of the death of a sole plaintiff, if the cause of action survives or continues, the court, upon a iliotion, must allow the action to be continued by his representative.^" In case of the death of two or more plaintiffs, if the entire cause of action survives to the others, the action may pro- ceed in favor of the survivors.^ At any time after the death of the plaintiff, when it affects the rights of either party, the court may in its discretion, upon notice to such persons as it directs, and upon the application of the adverse party or of a person whose interest is affected; direct that the action abate, unless it is continued by the proper parties within a time specified in the order, not less than six months, nor more than one year after the granting thereof.^ Actions of account and all other actions upon contract may be maintained by executors and administrators in all cases in which such actions might have been maintained by their respective dece- dents.* An action to compel an accounting survives the death of the would-be accountant; but a ihotion to revive it, based solely on an attorney's affidavit, is not proper unless the affidavit shows the executors authorized, him to make the motion and the complaint is annexed, or the affidavit fully shows the nature of the action, for 1' Potts V. Bounce, 173' N. Y. 335, The following notes on the matter 66 N. E. 4 (1903), C. C. P. § ,758, de^ of garnishment as it affects executors ceased was one of several makers of and administrators may prove to be note. of value. "'"-'■ Various phases of actions against Generally on garnishment against executors or administrators will be an executor or administrator, note in found collated in the following notes. 47 L.R.A. 346. On necessity of consistency in com- On the right to garnish an executor plaint with respect to representative or administrator for a siim due from or individual capacity of party, note the estate to himself in his own right,, in 1 L.R.A.(N.S.) 161. note in 5 L.R.A.(N.S.) 1072, On the right of surety of personal On the right to garnish or attach representative' to intervene in action a fund in hands of personal repre- against principal or vice versa, riote sentative after direction to pay same in 68 L.R.A. 744. , , to party, notes in 13 L.R.A. (N.S.) On the right of a representative of 759, 30 L.R.A.(N.S.) 720. decedent's estate to interplead claim- On the garnishment of distributive- ants, note in 37 L.R.A. (N.S.) 986. shares and residuary legacies before. As to whether an administrator or settlement, note in 59 L;R.A. 387. executor is in such privity wifli a *' C. C. P. § 755. legatee or distributee or creditor, that ^^ C. C. P. § 757. he may assert a personal defense of * C. C. P. § 758. the latter to a claim against the estate, * C. C. P. § 761. notein8L.R.A.(N.S.) 212. SDeced. Est. L. § 116. 131 ' NEW YORK ESTATES AND SURROGATES § 119 upon its nature depends the court's authority to, decide whether the action survives.* Administrators may bring actions to demand and recover debts due to their intestate, and the personal-property and effects of their intestate ; and are ansvirerable and accountable, to others to whom the intestate was h^ld or bound, in the same manner as executors.* For wrongs done to the property, rights or interests of another for which an action might be maintained against the wrongdoer, save actions for libel, slander, criminal conversation, seduction, malicious prosecution, assault, battery, false imprisonment, and for other actionable injury to the person either of the plaintiff or of another, such action may be brought by the person injured, or, after his death, by his administrators or executors, against such wrong- doer; (and after the latter's death, against his executors or admin- istrators) in the same manner and with the like effect, in all re- spects, as actions founded upon contracts.^ The right of action to recover damages for injuries resulting in death is included among * Robinson v. Thomas, No. 7, 123 On abatement of an action against A. D. 411 (1908), or 107 Supp. 1110. pbysician or surgeon by death, see «Deeed. Est. L. § 117. note in 37 L.R.A. 838. ® Deeed. Est. L. § 120 ; and C. C. On survival of infant's right to dis- P. § 3343, subd. 9. aflflrm a contract, see note in 43 On survival of a cause of action L.R.A.(N.S.) 714. and abatement and revival of action On survival of right to sue for in- for malicious prosecution, false im- jury from damming back water of prisonment, or libel and slander upon stream, see note in 59 L-R.A. 903. death of a party, see note in 52 On abatement of bill for alimony L.R.A.(N.S.) 1215. by death, see note in 2 L.R.A. (N.S.) Comprehensive discussions of case 242. involving the survival, abatement and On abatement by death of party to revival of actions of various kinds suit for libel or slander by wife, see will be found in the following notes, note in 30 L.R.A. 529. On the exclusiveness of particular On abatement of bastardy proceed- statutory method for revival of ac- ing by death, see note in 30 L.R.A. tion, see note in 33 L.R.A.(N.S.) (N.S.) 1167. 576. On abatement by death of an ac- Por the law governing survival of tion for fraudulently inducing void cause of action for personal injury, marriage, see note in 33 L.R.A. 411. see note in 5 L.R.A. (N.S.) 404. On survival, after death of prom- Law governing revival of cause of isor, of contract to pay for personal action for personal injury, see note services rendered to third person, see in 5 L.R.A.(N.S.) 756. note in 13 L.R.A. (N.S.) 6431 On survival of action against On whether the grantor's, right to township for injury by defects in rescind for breach of condition as to highway, see note in 13 L.R.A. (N.S.) support descends to his heirs or rep- 1243. resentatives, see note in 23 L.R.A. Qn survival of right of action un- (N.S.) 232. der the Federal employers liability On whether contractual obligation act, see note in 47 L.R.A. (N.S.) 66. or provision in decree of divorce or ^132 § 120 ADMINISTEATORS those which survive.' An action for damages for wrongful death through negligence survives.* An action to recover on a policy of fire insurance issued to a decedent for loss to the real and personal property covered by the policy resulting from a fire happening after his death, is properly brought by his administrators.® An ac- tion to recover damages for injury to an intestate's buildings can be brought after his death only by his heirs and not by his admin- istrator." Executors and administrators have right of action of trespass against any person who has wasted, destroyed, taken or carried away, or converted to his own use the goods of their testator or in- testate in his lifetime; and against any person who has committed a trespass on their testator's or intestate's real estate in his lifetime." If one of two or more administrators or executors dies or has his letters revoked, the survivor or survivors may proceed to complete the administration of the estate pursuant to the letters issued and may continue any action (or special proceeding) brought by all the administrators or executors.^* A successor to a sole administra- tor or executor may complete the execution of the trust committed to his predecessor, continue in his own name a civil action or special proceeding pending in favor of his predecessor, and enforce a judgment, order or decree in favor of his predecessor.^' The assignee of the foreign administrator or executor of deceased party plaintiff may revive and continue an action in this state in his own name." § 120. Id.: Survival and Revivor (Actions Against). — The question of the survival of a cause of action against the personal rep- resentatives of a defendant or of its abatement is- determined by the statutes in force at the time the question arises, viz., on the death of separation for the support of a child Revivor of action for death or survives the death of the obligor, see bodily injury in other state, see note note in 48 L.R.A.(N.S.) 429. in 56 L.R.A. 222. On survival of cause of action on On whether statutory action for liquor dealers bond after death of wrongful death survives to personal licensee, see note in 47 L.R.A.(N.S.) representatives of original benefiei- 183. ary, see note in 24 L.R.A.(N.S.) 844. ' Deced. Est. L. § 120 ; C. C. P. § * Lawrence v. Niagara Fire Insur- 1902 et seq. ance Co. 2 A. D. 267 (1896), or 37 8 Matter of Meekin v. B. H. R. R. Supp. 811. Co. 164 N. Y. 145, 51 L.R.A. 235, 79 i» Reilly v. Erie R. R. Co. 63 A. D. Am. St. Rep. 635, 58 N. E. 50, 8 415, 71 Supp. 551 (1901). Am. Neg. Rep. 490 (1900), C. C. P. "Deced. Est. L. § 118. § 1902 et seq. '^ C. C. P. § 2563. Survival of action, or cause of ac- *' C. C. P. § 2563. tion, for wrongful death upon de- "McNulta v. Huntington, 62 A. cease of wrongdoer, see note in 11 D. 257 (1901), or 70 Supp. 897, C. L.R.A.(N.S.) 1157. C. P. § 756. 133 NEW YOEK ESTATES AND SUBROGATES § 12C the de^eiidant." The general : rule is that an action does not abate Jdj any event if the cause of action survives, or coji- tinues.*^ vin case; of the death of a sole defendant, , if the cause of action survives or continues, the court, upon a motion, must compel or, allow -thei adtion to be, continued' .against his representative," In case of tho; death ■ of one of two , or more defendaints, if the entire cause of action survives, against the others, the action may proceed against the survivors.''' But the estate of a person or party jointly liable upon contract with others is not, dis- charged by his death, and thei court may make an order to bring in the proper representative of the decedent when it is necessary so to do for the proper disposition of the, matter; andj when the lia- bility is several as, well as Joint the court may order a severance of the action so that it may proceed separately against the representa- tive of the decedent and against the surviving defendant or defend- ants.^* When an applicatiqiiiisi made by: a plaintiff to bring in a person as ; defendant the court may direct that a supplemental sum-; mons issue and supplemental pleadings be made ; when made by a defendant to bring in another person as defendant the court may (and whCjU the protection of the applicant's rights requires, must) permit the defendant to commence a cross action for [that purpose.^" The statutory provision that, on the death of a sole plaintiff or defendant, if the cause of, action survives, the action may be contin- ued against the representative, relates only to those representatives over whom jurisdiction exists in the action, and does not apply to foreign representatives in actions at law.^ ', , ■:.:, Evens though a foreign representative of a deceased defendant in an action in this state submit to the Jurisdiction of the courts of this state and ask that an order be made reviving the action, the courts have no authority so to do, if the subject matter of the action is a transaction with the testator in his lifetime.^ , > ,' ■ Actions of account and all Other actioijis tipon contract may be maintained against administrators or executors in, all cases in which such actions might have been maintained against their respective decedents.' An action for breach of proniise of marriage, though ^5 Gorlitzer v. Wolffberg, 208 N. Y. 90 Supp.'420 (1904)^ C. C P § 757 4*75, 102 N. E. 5^8, Ann. "Gas, 1914D, ? Flancjrow v. Hammond, 13 A. D 357(1913). ., , ■;:. 325 ■(1897.),, or 43 Supp., 143. • ' l^C. C. P. ,§ 755, , On right tp revive suit and continue "C. C. P. .§ 757.( , . same against, foreign representative 1* C. C. P. § 758, of a deceased defendant over whom " C. C. P. § 758.- jurisdiction was oJ?tained in his life- 2»C. C. P. ,§ 760. time, see. note ina5JL.Il.A.(N'.S.) 632. 1 McGrath v. Weiller, 98 A. D. 291,; ^ Deced. Est. L..^! 116. 134 ' 1-120 : ADMINISTRATORS founded on a civil contract, is not one maintainable, as are ordi- nary actions on contract, against the legal representatives of the ■promisor on his decease, as they represent property only.* For wrongs done to the property, rights or interests of another for which an action might be maintained against the wrongdoer, save actions for libel, slander, criminal conversation, seduction, malicious prosecution, assault, battery, false imprisonment, and for other actionable injury to the person either of the plaintiff or of another, such action may be brought after the wrongdoer's death against his executors or administrators in the same manner and with the like efifect in all respects as actions founded upon con- tracts.® An action for damages for fraud in the sale of lands survives against the personal representative of the defrauded.* An action to recover damages for fraudulent representations may.be revived against the legal representatives of a deceased defendant; and if there are other defendants, it is proper to continue the suit in two branches, one against the deceased defendants representatives and the other against the surviving defendants.' An action by a husband for loss of his wife's services and liability for expenses incident to her injuries, resulting from the negligence of a defendant, involves wrongs done to his property, rights or in- terests and would survive against the wrongdoer's representatives but for the fact that the statute limits such survival so that it does not extend to an action for personal injuries to the person either of the plaintiff or of another.* The representatives of a deceased partner mdy be sued for a part- nership debt at law and substituted in place of their decedent in an action already begun even though the surviving partner bo not insolvent or the remedy against him exhausted.' Any person, or his personal representatives, has a right of action for trespass against the executor or administrator of any testator or * JS/'ade V. Kalbfleisch, 58 N. Y. 282 deceit or false representations upon (1874), § 121 C. C. P. death of party, see note in 52 L.R.A. On abatement of action, or cause (N.S.) 885. of action, for breach of promise of ' Gorlitzer v. Wolffberg, 208 N. T. marriage by death, see note in 9 475, 102 N. E. 528, Ann. Gas. 1914D, L.R.A.(N.S.) 1020. 357 (1913), Deeed. Est. L. § 120; C. SDeeed. Est. L. § 120; and C. G. C. P. § 3343, subd. 9. P. § 3343, subd.' 9. On whether husband's action for See L.R.A. notes supra, § 119. damages sustained by him on account * Haight V. Hayt, 19 N. Y. 464 of personal injury to wife abates by (1889). ' his own death or that of the wrong- ■'Bond V. Smith, 4 ' Sun, 48 doer, see note in 17 L.R.A. (N.S.) 570. (1875). 'Hentz v. Havemeyer, 132 A. D. On survival of cause of action alid 56 (1909), or 116 Supp. 317; C. C. abatement and revival of action for" P. § 758. 135 NEW YORK ESTATES AND SUBROGATES § 121 intestate who, in his lifetime, wasted, destroyed, took or carried away, or converted to his own use the goods or chattels of any such person, or committed any trespass on any such person's real estate." A landlord accepting administration of the estate of his deceased tenant cannot be allowed to distrain upon the tenant's goods for rent due ; because, as representative of the estate, he is bound to protect its interests,'* nor can the executor of a legatee of an obligee of a bond sue at law the obligor if the latter is the obligee's administra- tor; but he may in equity compel payment by the obligor of the bond." No person is liable to an action, as executor or 'administrator of his own wrong, for having received, taken or interfered with the property or effects of a deceased person; but is responsible as a wrongdoer in the proper action to the executors, or general or spe- cial administrators of such deceased person, for the value of any property or effects so taken or received ; and for all damages caused by his acts, to the estate of the deceased.*' If one of two or more administratoi-s or executors dies or has his letters revoked, the survivor or survivors may proceed to complete the administration of the estate pursuant to the letters issued and may continue any action (or special proceeding) brought against all the administrators or executors.** On foreclosure of realty mortgaged by a decedent it is the duty of his executors to defend the estate's iitle and urge any available counterclaim against the mortgagee, as, if the real estate is saved from foreclosure, it is available to creditors just as much as any amount realized on the foreclosure would be." § 121. Id. : Counterclaim. — A counterclaim must tend in some way to diminish or defeat the plaintiff's recovery, must be against the plaintiff or the person whom he represents; must be in favor of the defendant (or of one or more defendants) between whom and the plaintiff a separate judgment may be had in the action; and must be either (1) a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plain- tiff's claim, or connected with Uie subject of the action; or (2^, in an action on contract, any other cause of action on contract existing at the commencement of the action." "Deeed. Est. L. § 119. Bratt, No. 2, 119 A. D. 685 (1907), **Hovey v. Smith, 1 Barb.; 372 or 104 Supp. 350; C. C. P. § 505|, (1847). counterclaim for injury to mortgaged ** Hudson V. Reeve, 1 Barb. 89 premises because of theit overflow by (1847). reason of dam built by mortgagee. " Deeed. Est. L. § 112. " C. C. P. § 501. 1* C. C. P. § 2563. On set-off as between debt due *' Fort Miller Pulp & Paper Co. v. from decedent and claim arising aft- 136 § 121 ADMINISTRATORS If the plaintiff is a trustee for another, a demand against the plaintiff cannot be allowed as a counterclaim ; but so much of a de- mand existing against the person whom he represents as will satisfy the plaintiff's demand must be allowed as a counterclaim if it might nave been so allowed in an action brought by the person beneficially interested." In an action brought by an executor or administrator ' in his representative capacity, a demand against the decedent, be- longing at the time of his death to the defendant, may be set forth by the defendant as a counterclaim as if the action had been brought by the decedent in his lifetime ; and if a balance is found to be due the defendant, judgment must be rendered therefor against the plaintiff in his representative capacity, although execution cannot be issued thereupon except when it could on a judgment in an action against the executor or administrator.** "Claims against an executor or administrator individually cannot be offset against the claims in his favor in a representative capacity as trustee for the estate." *' In order that a demand may be set off against an execu- tor or administrator in an action by him, it must have been due and payable from the decedent to the defendant in the former's life- time.^" In an action by executors against an alleged debtor of their testator, the defendant cannot counterclaim for securities deposited with the testator in the latter's lifetime, upon a claim of conversion thereof by the executors; because the counterclaim is based on the wrongful act of the executors and not of the testator.* In an action by executors for goods of their testator sold after his death the de- fendants cannot counterclaim causes of action accruing prior to the testator's death, as the allowance of such offsets would inequita- bly defeat the pro rata distribution of the decedent's estate among his creditors.* A lessee cannot set off a breach of his deceased les- sor's promise to repair in an action by the latter's executors to recov- er rent accrued after their testator's death ; because the rent accrued after the testator's death goes to his heir or devisee, while the testa- tor's promise is enforceable only against the decedent's personalty and executor.* As contracts made by a legal representative, which never existed in the decedent's favor, are only properly sued on in er decedent's death out of transac- * Wakeman v. Everett, 41 Hun, 278 tion with executor or administrator, (1886), afE'd 110 N. Y. 675, IS N. E. see note in L.R.A.1915A, 299. 481. " C. C. P. § 502, subd. 3. « gross v. Gross, 26 Misc. 385 " C. C. P. § 506. (1899), or 56 Snpp. 219, C. C. P. §§ " Starke v. Myers, 24 Misc. 577, 449 and 1814. 53 Supp. 650 (1898), C. C. P. § 502, " Jay v. Kirkpatrick, 26 Misc. 550, subd. 3. 57 Supp. 476 (1899). *" Jaeger v. Bowery Bank, 8 Misc. 150 (1894), or 29 Supp. 53. 137 NEW YORK ESTATES AND SURROGATES § 122 tlie representative's individual name (e. g., a suit to recover on a sale by a representative of estate property on credit), a debt against the decedent cannot be made the subject of a counterclaim in the action.* A debtor of a decedent is not precluded from counterclaim- ing any demand he has against the decedent, in an action by the decedent's legal representative against him on the debt,' by reason of the fact that his demand has been rejected by the legal represen- tative on its presentation prior to the latter's action dn the debt.* In an action against an executor or administrator (or other per- son sued in a representative capacity), the defendant may set forth as a counterclaim a demand belonging to the decedent or other per- son whom he represents, when the person so represented would have been entitled to set it forth in an action aigainst him.? The admin- istrator of a deceased mortgagor sued for the amount of the deficien- cy on a foreclosure sale of the mortgaged premises may counterclaim a note held by the mortgagor against the mortgagee.'' An admin- istrator cannot set off against a claim on the estate a joint obligation on which the claimant is one of those bound; because a joint debt cannot be set off against' an individual debt and vice versa.' § 122. Id.: Abatement. — ^An executor's or administrator'^ death or removal does not abate an action or special proceeding which the law authorizes or directs him to bring; but it may be continued by his successor, who must, upon application, either by himself or a party interested, be substituted for that purpose by the order of the court, a copy of which must be annexed to the judgment roll.* When a;dministration of the effects of a deceased person; which have been left unadministered by any previous executor or' administrator of the same estate, isgrant^ to any person, such person may appeal from any judgrtient obtained against sucK previoiis executor or ad- ministrator of .the same estate, or against the original testator or intestate; andjnust defend any appeal from any such judgment; and has, the same remedies in the prosecution or defense of any action by or against such previous executors or administrators, and for the collection and enforcing of any judgment obtained by.thena, as they liFpuld liaye by. law,^" An execution may b^ issued in the name of an executor or administrator in his representative capacity upon a judgment recovered byany person who preceded him in the * Thompson v. Whitmarsh, 100 N. ' Thornton v. Moore, 26 Misc. 120 T.;35, 2 N. E. 273 (1885). (1899), or 56 Supp. 1100, aff'd 41 5 Carpenter v. Newland, 92 Misc. A. D. 617, 58 Supp. 1150, C. C P 596, 156 Supp. 438 (1915), decided §§ .506 and 506; .under C. C. P: § 2681, before the * Matter of Miller, 23 Misc. 319, 52 1915 amendment and not pertinent Supp. 245 (1898). in the totality of the decision. '^ C. C. P; § 1828. 6 C. C. P. § 505. "Deced. Est. L. § 115. 138 § 123 ADMINISTRATORS administration of the same estate, in any case in which it might have been issued in favor of the original plaintiff, and without a substitution.^^ § 123. Id. : Foreign.— An administrator or executor duly appoint- ed in any other state, territory or district of the United States, or in any foreign country, may sue or be sued in any court of this state in his capacity as administrator or executor in like manner and under like restrictions as a nonresident, if, within twenty days after he commences, or appears in, any action or proceeding in any court in this state, or is required or directed by summons or otherwise to appear therein, there is filed in the office of the Clerk of the Court a copy of the letters of 'administration or testamentary issued to him, duly authenticated as prescribed in section 45 of the Decedent Estate Law; and in default of this aiU proceedings in such action or pro- ceeding may be stayed until such duly authenticated copy of such letters is so filed.^^ Either as administrators or as individuals, persons appointed ad- ministrators in a foreign state before making a deposit in a bank in this state and receiving a certificate of deposit to themselves as ad- ministrators, who are appointed ancillary administrators in this state after making such deposit, may bring an action in this state to recover the amount of the deposit and interest.^* The rule that a resi- dent of New York state may sue in its courts a foreign corporation for any cause of action; applies to a person resident in this state who was appointed in another state executor of a resident of such state and secured letters in this state on production of an authenticated copy of the non-resident decedent's will appointing him executor.^* One appointed legal repi'esentative in this state of a deceased non- resident, if himself a non-resident, comes within the rule that an action by a non-resident plaintiff- 'against a foreign corporation can be maintained in this state only in the cases specified by statute, and in no ease for a cause of actioil which arose outside this state's lim- its.^^ Foreign executors may assign, in their own jurisdiction, claims, to residents of New York qualified to sue here on them, if the assignments are sufficient in the plase where they are made to " C. C. P. § 1829. "Bingham v. Marine Notional 18 C. C. P. § 1836a. ; i Bank, 41 Hun, 377 (1886), aff'd 112 On the right of foreign reprasecta- N. T. 661, 19 N. E. 416. tive to maintain an action for death i* Palmer v. Phoenix Mutual Life of decedent under statute of another Insurance Co. 84 N. Y. 63 (1881). state which provides that action shall ,i^ Robinson v. Oceanic .Steam Nav- be brought by the personal represen- igation Co., Ltd. 112 N. Y. 315, 2 tative, see note in 18 L.R.A.(N.S.) L.R.A. 636, 19 N. E. 625 (1889) ; C 1252. C. P. § 1780. 139 NEW YORK ESTATES AND SURROGATES § 123 pass legal .title to the claims.^® The assignee pf a chose in action from a foreign executor may sue thereon, in New York although the foreign executor could not, and made the assignment to obviate this disability." Foreign executors cannot be sued as such in this state for liabil- ities resting on them wholly in their representative capacity; but for individual liabilities they can be, e. g., on an agreement by them to sell a judgment in decedent's fayor which passed to them under his will.** The general rule that an action cannot be maintained in New York against a non-resident administrator of a non-resident decedent does not hold when the action is founded on a contract, made by him for the purpose of recovering estate assets, which binds him personally, and of which the courts of this state have jurisdic- tion." An action at law as distinguished from a suit in equity can- not be maintained in this state against a foreign executor.^" An action at law for a money judgment cannot be brought in New York against a foreign executor as such.* A foreign executor or adminis- trator cannot by mere virtue of his office prosecute or defend actions in the courts of this state; so that an action commenced here against a grantor in a deed, for damages for breach of his covenant against encumbrances, cannot be continued against his executors, when he resided, his will was probated and letters were issued in a foreign state, even though his will was proved and recorded here, if no let- ters were issued here and no assets of the testator were brought into this state." The courts of this state have jurisdiction of an action by a resident infant legatee to compel one, resident of the state and appointed executor of the non-resident testator's estate in the state of the testator's residence, to pay interest on such legacy under these circumstances : — there are no creditors to be protected, the executor is a resident of this, state, the executor personally has title to the real and personal estate of his testator as executor, and the sole question, viz., whether the legacy draws interest, is determinable in this state according to the laws of the state of the testator's domicil.' An "Gay V. Craighead, 6 A. D. 463 ^"Metealf v. Clark, 41 Barb. 45 (1896), or 39 Supp. 688. (1864). The effect of ancillary appointment * Field v. Gibson, 20 Hun, 274 after commencement of action by for- (1880) — ^for rent on lease by dece- eign executor or administrator is dis- dent or for use and occupation, cussed in note in 4L.R.A.(N.S.) 657. "Matter of Webb, 11 Hun, 124 "Petersen v. Chemical National (1877). Bank, 32 N. Y. 21 (1865). 'Brown v. Knapp, 17 Hun, 160 "Johnson v. Wallis, 112 N. Y. (1879), rev'd on other grounds, 79 230, 2 L.R.A. 828, 8 Am. St. Rep. N. Y. 136. 742, 19 N. E. 653 (1889). "Murphy v. HaU, 38 Hun, 528 (1886). 140 § 123 ADMINISTRATORS exception exists to the rule that suit will not lie against foreign exec- utors to enforce a debt due by their testator, to charge the estate in their hands with a contract liability of their testator, when the cred- itor is a resident of this state seeking to reach a trust fund in thii? state in which the testator was interested, and the foreign executors had refused to take out ancillary letters here, and the decedent's interest in such fund had been assigned by him to hinder creditors ; because a domiciliary creditor of a non-resident decedent will not be compelled to go to a foreign jurisdiction if there is property in this state applicable to the satisfaction of his claim, even though the foreign executors are necessary parties in order to prove the indebtedness.* The general rule that no action will lie against a foreign executor has an exception when the executor, being the ab- solute owner of all property left by a judgment debtor, removes to this state without having rendered his account as executor; for in such a case the courts of this state have jurisdiction of the persons and subject-matter and will direct satisfaction to a sole judgment creditor (entitled to preference in payment over general creditors) out of the property in this state, in order to prevent a failure of jus- tice.* The courts of equity of this state will entertain jurisdiction of actions against executors appointed in a foreign country, resident here, for their own liability for wrongful use or misapplication of trust funds which have come into their hands; and no proceedings before the surrogate are necessary as a preliminary, when the estate has been collected, and there are no debts owing from the estate or to the estate here.* A foreign executor cannot be sued in this state in the absence of some allegation that he has assets of the estate in his possession in this state: and then only in equity on the theory that he is trustee for creditors.'' Although the general rule is that an action will not lie against a foreign executor in his representative capacity, yet this is not true of suits in equity when it is necessary for the court to assume jurisdiction in order to prevent a failure of justice, e. g., to foreclose, a chattel mortgage on property in this state.* An administrator appointed in a foreign state who brings, from the state of his appointment, estate assets into this state, is lia- ble to suit here by a creditor here and is responsible prima facie for the amount of assets in his possession here.' An attachment by a resident plaintiff against personal property in New York belonging ♦Montgomery v. Boj^d, 78 A. D. ''Vermilya'v. Beatty, 6 Barb. 429 64 (1903), or 79 Supp. 879. (1848). ' Bergman v. Lord, 194 N. Y. 70, ' Callanan v. Eeenan, 158 A. D, 84, 86 N. E. 82S (1909^. 142 Supp. 561 (1913). 8 Montelvan v. Clover, 32 Barb. 190 » Gulick v. Guliek, 33 Barb. 92 (1860). (1860). 141 NEW YORK ESTATES AND SURROGATES §§ 124, 125 to O; non-resident decedent whose administrator was appointed in the foreign state is unauthorized-^' i : § 124. Id. : Temporary Administrators. — A temporary administra- tor may maintain any action (or special proceeding) for the pur- pose of taking into his possession, securing and preserving personal property;, collecting choses in action; and determining the title to personal property in his possession.**, A tempprary administrator, as mere collector and, conservator of an; estate, can only prosecute (without special order of the surrogate) such actions as are neces- sary to reduce to possession the estate's assets, and cannot bring an action to have; it adjudged that the estate is owner of a share of corporate stock and that the corporation be required ito transfer it on its, books to the estate, when he has possession of the certificate for such stock, as the estate's right to possession would not, be added to by such transfer, especially if before judgment a general execu- tor had been appointed, as such appointment ipso facto extinguished any authority in the temporary administrator.** An action may be maintained against a temporary administra- tor only by leave of the surrogate, upon a debt of, the decedent or absentee he represents, or upon any cause of action to which the decedent or absentee would have been a party, in like manner and with like, effect as if he were an administratoi;-in-chief.*^ A cause ■of action to which, a decedent orabsentee "would have been a party" is one that accrued in the decedent's or absentee's lifetime.** § 125. Id.: Co-Executors and Administrators. — In an action or special proceeding against two or more executors or administrators representing the same decedent all are considered as one person; those first served with process, or first appearing, must answer the plaintiff; separate answers by different administrators cannot be required or allowed, except by direction of the court ; and judgment in plaintiff's favor may be entered, and, in a proper case, execution may be issued, against all the defendants, as if all had appeared.** The plaintiff may, however, bring; into court all the administrators or executors who are parties.** Although one executor cannot bring an action at law against his coexecutor to establish a debt owing by the latter to their testator and to. determine the disposition of the fund thus created, because, each is at law equally entitled to the *» Bostwick V. Carr, N. Y. L. J. is C. C. P. § 2597. Bee. 31, 1914 (App. Div., 2d Dept.), **Est. of .Colaizzi, N. Y. L. J., C. C. P. § 1836a. May 29, 1915 (N. Y. Surr.), C. C. ** C. C. P. §, 2597. P: § 2597. *2 Hastings v. Tousey, 123 A. D. ' *6 C. C. P. § 1817. 480 .(1908), or 108 Supp. 526; old *6Id. Code § 2672, new Code § 2597. , 142 §§. 126, 127 ADMINISTEATORS fund, yet he may do so in equity." To compel delivery of choses in action or securities for payment of money, formerly the property of a testator but claimed to have been assigned and given over by him, the alleged assignee or donee may sue an executor who quali- fied, even if he himself was named as an executor, if he did not qual- ify ; because this is not claiming a debt due him from the estate and he, not being executor, has no power to prove such a debt according to the statute.^' An executor may as such, as trustee of an express trust, sue in equity his coexecutors, and stockholders in a corporation to which property of the estate was conveyed by one to whom the ex- ecutors had sold it, under, what the complaining executor claims was a fraudulent scheme to get it into the control of one of his coexecu- tors by his ownership of a controlling interest in the corporation's stock; and the suit is not solely maintainable by the cestuis que trustent.''' § 126. Id.: Public Administrators. — Statutory provisions relative to actions to which public administrators are parties are referred to in the note.^* § 127. Id.: Actions for Death. — The executor or administrator, duly appointed in this state, of a decedent who has left him or her surviving a husband, wife or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default by which the decedent's death was caused, against a natural person who, or a cor- poration which would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.^ The decisions of the courts as to the intepretation of the statute giving a recovery to next of kin of one killed through negligence of another have been reviewed by the Appellate Division as follows: "(a) A cause of action for the recovery of damages for the pecuniary injury result- ing from death is purely a statutory one. . . . Hence, as a general rules, no action will lie for a wrong committed out of this state which resulted in deiath (citation) but if a statute of the for- eign state authorizes a recovery upon grounds substantially similar to our own, the courts of this state will entertain such action in a spirit of comity (citations). This statute, therefore, is more than *'' Rogers v. Rogers, 75 Huny 133 Richmond County: — "Public Ad- (1894), or 27 Supp. 276. ministrators" Law, §§ 1 and 2 (L. "Hunter v. Hunter, 19 Barb. 631 1899, c. 486, §§ 1 and 2, as amend'd (1855). L. 1910, c. 412, § 2). ; ^^ Smith y. Stevenson Brewing Co. Erie County: — C. C. P. § 2595. 117 A. t). 690, 102 Supp. 672 (1907). Bronx County :— "Bronx County" ^"New Y.ork County :^"Fnhli(i Law, §§ 3 and ,11 (L. 1912, c. 548), Administrators" , Law, §§ 23 and 24 as amend'd L. 1913, e. 825. (L. 1898, c. 230, §§ 23 and 24). ^ C. C. P. § 1902. ' Kings County:— C. C. P. § 25M. 143' NEW YORK ESTATES AND SURROGATES § 127 a statute regulating a remedy: it both creates a right and imposes a liability, (b) This cause of action is in the nature of a property right arising out of the interest which one has in the life of another upon whom one is or may be dependent or to whose services he is entitled. It is a 'pecuniary right; a right having the essential atr tributes of property, so that when it is taken away, compensation is due. (citation) . . . (c) This right of action belongs to the persons named in the statute as the beneficiaries of the proceeds of the judgment, and not to the administrator, (citations.) (d) This action is not brought to recover for personal injuries done to the beneficiaries, although arising out of a personal injury to another. . . ." ^ An action to recover damages for death cannot be begun until an administrator has been appointed.* "The general scheme of the act may be briefly stated . . . : An executor or admin- istrator can sue only where decedent leaves husband, wife, or next of kin ; when the action is brought it is for the exclusive benefit of husband, or wife, or next of kin ; the proceeds of the recovery are to be distributed among the class named, as if they were unbe- queathed assets remaining after payment of debts and expenses; the statute providing for the distribution of personal property is to govern." * An executor or administrator duly appointed in any oth- er state, territory or district of the United States, or in any foreign country, of a decedent who has left him or her surviving a husband, wife or next of kin, may maintain the action.* An administrator ap- pointed in a foreign state may maintain an action in New York to recover damages for the intestate's death resulting from negligence.'' • Administrators appointed in this state of the estate of one resident at death in this state may here sue for damages for alleged negli- gence causing their intestate's death as the result of an accident in another state, under a statute of the foreign state similar in principle to the statute in this state affording a similar remedy.* The courts of New York will entertain an action brought under a foreign statute by an administrator of a decedent who was a resident of this state to recover damages for neghgence resulting in the latter 's death even " C. C. P. § 1902. (1912); or 136 Supp. 654; aff'd 208 ' Matter of Brennan, 160 A. D. N. Y. 635, 102 N. E. 1112, C. C. P. 400, 145 Supp. 553 (1914), C. C. P. §§ 1902 and 1836a. § 1902 et seq. ' ' ' Loucks v. Standard Oil Co. 92 *Boffe V. Consolidated Telegraph Misc. 475, 156 Supp. 7 (1915). & El. Subway Co. 171 A^ D. 392, 157' On the right of domestic represen- Supp. 318 (1916). ta;tive to maintain an action for the ^ Matter of Snedeker v. Snedeker, death of the decedent under a statute 164 N. Y. 58, 58 N. E. 4 (1900). of another state which provides that 6 C. C. P. § 1902. the action shall be brought by the ' Provost V. International Giant personal representative, see note ia Safety Coaster Co. 152 A. D. 83 18 L.R.A.(N.S.) 1252. 144 § 127 ADMINISTRATORS though no next of kin of the decedent be a resident of this state.' That the widow and next of kin for whose benefit an action is brought by an administrator are nonresident aliens is no bar to the action.^' Such an action must be commenced within two years after the decedent's death. ^'^ No action can be maintained by an executor or administrator to recover damages for a wrongful act, neglect or default causing the decedent's death unless the decedent at the time of his death could have maintained an action, e. g., when the decedent's right of action had been barred in his lifetime by the statute of limitations.^^ If a person having a claim for dam ages for injury due to another's negligence during his life permitted the statute to become a bar to his claim, no cause of action for his death, though due to that injury, survives or accrues to his repre- sentative.** To avoid the presumption of a bar arising from such lapse of time, the representative must show that the statute of limita- tions was in fact not a defense available to the defendant at the date of his decedent's death.** An action by an administrator to recover damages for negligence causing his intestate's death, brought within the statutory limitation of time, in which the complaint was dis- missed at the trial, may again be brought for the same cause within one year from the final decision in the first action, even though more than three years after the intestate's death.** When the husband, wife or next of kin do not participate in the decedent's estate under a will appointing an executor other than such husband, wife or next of kin, who refuses to bring such action, then such husband, wife or next of kin are entitled to have an administrator appointed to prosecute it for their benefit." The statutory action to recover damages for an intestate's death can only be prosecuted by the ad- ministrator of the intestate: the next of kin cannot prosecute it." ' Zeikus V. Florida East Coast Ry. jured person of his claim against a Co. 153 A. D. 345 (1912), or 138 tort feasor precludes an action for Supp. 478, Florida statute giving death resulting from the injury, see recovery to next of kin (if no hus- note in 27 L,R.A.(N.S.) 176. band, wife or minor chUd, or persons ** Kelliher v. N. Y. C. & H. R. R. dependent on them for support) sub- R. Co. 153 A. D. 617 (1912), or 138 ject to creditors' claims, complaint Supp. 894, C. C. P. § 1902, aff'd 212 alleging no creditors. N. Y. 207, L.R.A.1915B, 1178, 105 i« Alfson V. Bush Co. 182 N. Y. N. E. 824. 393, 108 Am. St. Rep. 815, 75 N. E. ** Casey v. Auburn Telephone Co. 230 (1905), C. C. P. § 1902 et seq. 155 A. D. 66 (1913), or 139 Supp. "»C. C. P. § 1902. 579. "Kelliher v. N. Y. C. & H. R. R. ** Hoffman v. Delaware & Hudson R. Co. 212 N. Y. 207, L.R.A.1915E, Co. 85 Misc. 535 (1914), or 147 1178, 105 N. E. 824 (1914), C. C. P. Supp. 475; C. C. P. §§ 1902 and 405. §§ 1902, 380, 383. « C. C. P. § 1902. On whether a settlement by an in- *« C. C. P. § 1903. N. Y. E. & S.— 10. 145 NEW YORK ESTATES AJ^D SURROGATES § 127 When an administrator or executor, suing to recover damages for negligeiice resulting in his intestate's or testator's death, dies, the proper practice is to have a successor appointed to continue the ac- tion in his representative name : the personal representatives of the deceased administrator or executor cannot continue the action, even though the deceased administrator or executor was individually en- titled to any recovery had." The damages or settlement recovered are exclusively for the benefit of the decedent's husband, wife or next of kin.^^ An action for injuries to the person in another state may be maintained in this state on a statute, if similar to the statute in this state in general, e. g., that by the foreign, only the widow, while by the domestic statute, the executor or administrator, can sue, or that by the foreign law the amount of damages recoverable is un- restricted while by the domestic law it is restricted, does not bar the domestic courts from jurisdiction.^' Damages are distributable as unbequeathed assets in the repi^esentative's hands after payment of all debts and expenses of administration, except that if a wife or husband but no child survives, the wife or husband gets all ; if a mother, and a father who has abandoned decedent or left their child's maintenance and support to the mother, but no husband, wife or issue, survives, the mother gets all; and if a mother (or a father entitled to recover but who dies prior to the recovery or verdict) but no husband, wife, issue or father, survives, the mother gets all if then living.^" The reasonable expenses of the action, set- tlement, decedent's funeral and his representative's or plaintiff's commissions may be fixed by the surrogate on such notice to such persons as he deems proper, or on judicial settlement of, the plain- tiff''s,or representative's accounts, and may be deducted from the re- covery.* The daniages awarded may be such suni as the jury upon a writ of inquiry or trial, or the court or referee, deems a fair and just compensation for the pecuniary injuries resulting from the de- cedent's death to the persons for whose benefit the action is brought.* If the decedent leaves surviving a father and mother, the death of the former before verdict does not affect the amount of damages recoverable.^ When final judgment, for plaintiff is rendered, the " C. G. P. § 1903. ; Navigation Co. 84 N. Y. 48, 38 Am. "Mundt V. Glokner, 24 A. D. 110 Rep. 491 (1881). (1897), dism'd 160 N. Y. 571, 55 N. » C. C. P. § 1903, E. 297. ', ' ''C. C. P. § 1904. 1' Hodges V. Webber, 65 A. D. 170, On the recovery of administrator 72 Supp. 508 (1901), C. C. P.i § in an action for benefit of estate of 1902. probable accumulations of deceased *" Wooden v. W. N., Y. & P. R. R. as damages for his death, see note in Co. 126 N. Y. 10, 13 L.R.A. 458, 22 15 L.R.A.(N.S.) 451. ' Am. St. Rep. 803, 26 N. E. 1050 » Id. ,(1891); Leonard v. Columbia Steam 146 § 128 ADMINISTEATORS clerk must add to the sum awarded, interest from decedent's death, and include it in the judgment.* The inquisition, verdict, report or decision may specify the day from which interest is to be com- puted, and if it omits to do so, the day may be determined by the tjlerk upon affidavits.' The next of kin for whose benefit the action is given include all those entitled to share in the uube- queathed assets of a decedent, after payment of debts and expenses, under the provisions of law relating to the distribution of personal property, except that if decedent leaves surviving a father and mother but no widow, child or descendant, next of kin means both the father and the mother.^ The proceeds of an action by a person- al representative to recover damages for the death of his decedent caused by the negligence of another are distributable to the dece- dent's grandchildren and widow, if he have no children, as the word "children" in the statute means descendants generally and not immediate offspring only.*" § 128. Id.: Actions for Improper Payment or Distribution. — Im- proper administration by an executor of estate assets which have come to his possession creates an indebtedness by him to the estate and renders him liable to an action by a legatee of his testator, or, on his death, renders those liable to such an action into whose hands his estate had passed.'' A legal representative paying a creditor in full thinking the estate solvent may recover by action against such creditor the amount in excess of the latter's pro rata share, if he moves seasonably after judicial ascertainment that the estate is not large enough to pay all debts in full, whether or not the overpaid creditor shares the erroneous belief of the representative that the estate is solvent.* Money, paid under a surrogate's decision, later re- versed, may be got back on indebitatvs assumpsit; and that the pay- ment should have been coerced by execution is unnecessary, though *Id. . tion for death by beneficiaries with- ' C. C. P. § 1904. out the consent of the executor or * C. C. P. § 1905. administrator, see note in 35 L.R.A. 8" Matter of Heng, or Bischoff, N. (N.S.) 207. Y. L. J., June 2, 1916 (N. Y. Surr.), On the contributory negligence of C. C. P. § 1903. parent as a bar to the action by the On questions involving an action administrator for death of a child for death as brought ,by the executor non sui juris, see note in 18 L.R.A. or administrator of the decedent, see (N.S.) 328. the following notes : '' Trustees of M. E. Church v. On the compromise by personal Reeve, 79 A. D. 65, 79 Snpp. 1102 representative of a suit for damages (1903), C. C. P. § 1837. for causing death, see note in 21 ' Woodruff v. Claflin Co. 198 N. Y. L.R.A. 58. 470, 28 L.R.A. (N.S.) 440, 91 N. E. On a settlement of a cause of ac- 1103, 19 Ann. Cas. 791 (1910). 147 NEW YORK ESTATES AND SUBROGATES § 128 a demand before suit is necessary.' Improper distribution can be regulated on an administrator's accounting ; so that if an executor, after appealing from a judgment on a referee's report against the estate on a claim against it, has the appeal dismissed and pajj^s the claim, next of kin claiming fraudulent connivance by him cahnot legally get a court order bringing them in as parties to the action, and on motion get another order setting aside the judgment, the referee's report and the order appointing him and granting a new trial; because if they were necessary parties the judgment did not bind them, and if they were not, they have no standing." A legatee asking and getting a prepayment on account of his legacy before settlement of the executors' accounts does so at his own risk insofar as he subjects himself to the same liability to refund as if he had received the money with knowledge that the other legacies and the debts had not been provided for, although, if such provision were not made because of the executors' fault, the legatee is under no liability to respond to them ; but they are not insurers or guarantors of the funds they held when they paid his legacy; and meet the measure of care imposed on them if they temporarily deposited the funds in a going bank.*^ An action for reimbursement by an heir or devisee of a decedent, or other person aggrieved, may be maintained when, after a decree has been made by the surrogate's court for the application of the proceeds of real property or real interest of the decedent^ assets of the decedent, which should have been applied to the objects to which the proceeds of the real estate or real inteiest were applied, are discovered; or money or oth- er personal property of the decedent, which should have been so applied, for any; other reason comes to the hands of the executor, administrator, legatee or next of kin. The reim- bursement of the heir, devisee or other person aggrieved may only be from the assets, money or other personal property in the hands of the executor, administrator, legatee or next of kin.** When a will directs executors to pay debts out of the testator's personal property, a devisee, part of whose devise was sold by court order to pay the testator's debts, is entitled to recoupment against personal property of the testator discovered after the sale of the realty.*' A person en- titled by a surrogate's decree to a sum of money may maintain an action on the decree to collect it against the accountants, even though he had the more summary remedy by execution or contempt pro- 9 Scholey v. Halsey, 72 N. Y. 578 " C. C. P. § 2718. (1878). " Coueh v. Delaplaine, 2 N. Y. 397 "Riley V. Ryan, 103 A. D. 176, 93 (1849). Supp. 386 (1905). " Clark V. Truslow, 161 A. D. 675 (1914), or 146 Supp. 750. 148 § 129 ADMINISTRATORS ceeiiings." When a widow's election to take her dower, instead of a Hfe estate devised her, necessitates the appropriation of part of the proceeds of the sale of real estate devised to others in order to satisfy her dower, the devisees despoiled of their devises should be compen- sated out of the property of those persons who profited by the wid- ow's election.^^ § 129. Id. : Actions, When Barred. — In computing whether an ac- tion is brought within the limitations of the statute, the day on which the act complained of was done should be excluded and the other days should be included.^* One receiving money in his own right, who is later by evidence or construction changed into a trustee, may insist on the same statute of limitations in an action to recover the money as obtained in his favor individually." The term of eighteen (18) months after the death within this state of a person against whom a cause of action exists, is not a part of the time limit- ed for the commencement of an action against his executor or ad- ministrator; and if letters upon his estate are not issued within this state at least six (6) months before the expiration of the time to bring the action, the term of one (1) year after such letters are is- sued is not a part of the time limited for the commencement of such an action.^' If the person against whom the cause of action exists dies without the state, the time which elapses between his death and the expiration of eighteen (18) months after the issuing within the state of letters, is not a part of the time limited for the com- mencement of an action therefor against his executor or adminis- trator." Unless a claimant whose claim has been presented to and rejected by an executor or administrator (by written notice) com- mences an action to recover the claim within three months after the rejection (or within two months after a part of the claim be- comes due), he and all claiming under him are forever barred from maintaining an action upon it, and it must be tried and determined on the judicial settlement of the executor's or administrator's ac- counts.** By statute it is provided that certain actions must be commenced within certain periods "after the cause of action has accrued." * "The term 'cause of action' includes not only the "Koenig v. Wagener, 126 A. D. " C. C. P. § 403. 772, 111 Supp. 116 (1908), C. C. P. " C. C. P. § 391. This does not § 1819, old Code §§ 2554, 2555, new hold true if the full period of limita- Code §§ 2553-4. tion has expired before the letters is- 1^ Matter of Lawrence, 36 Misc. sued. Hall v. Brennan, 64 Hun, 394, 275 (1901), or 73 Supp. 414. 19 Supp. 623 (1892), afC'd 140 N. Y. i^Mygatt T. Washburn, 15 N. Y. 409, 35 N. E. 663. 316 (1857). ^^C. C. P. § 2681. " Price V. Mulford, 107 N. Y. 303, » C. C. P. § 380. 14 N. E. 298 (1887). 149 NEW YOEK ESTATES AND SURROGATES § 129 right proper, but the existence of ja person by or against whom proc- ess can issue. A cause of action cannot accrue or exist unless there is a person in esse against whom an action can be brought, and the right of action enforced . . . the statute does not commence to run against the representatives of a deceased creditor upon an ob- ligation incurred, or debt becoming due after his decease, until ad- ministration is granted upon his estate, there beiiig no cause of ac- tion until there is a party capable of suing. . . . But if the statute has once begun to run in the lifetime of the testator or in- testate, it does not cease running during the period which may elapse between his death and the gfahtihg of administration upon his estate, and there is an executor or administrator qualified to act, except that by the sta,tutes . . . the time of eighteen (18) months after the death of any testator or intestate is not deemed any part of the time limited by law for the commencemeiit of ac- tions against his executors or administrators." * It would seem that a suit against the administrator of the maker of a promissory note is properly brought within seven and a half years from its due date, as the eighteen months after the maker's death are not part of the statute of limitations of six years on such a claim.' The lia- bility of an executor to account to the beneficiaries under the will for the amount uncollected of his testator's estate is fixed at the date when the statute of limitations runs 'against him on a possible suit by him against the debtor ; and an action commenced against him (or his legal representative if he be dead) by the beneficiaries under the will less than six years from the time the statute ran iii the debtor's favor is well brought.* An action by a creditor against the personal representatives of |iis deceased debtor does not come within the shadow of the statute of limitations until the representa- tives' accounting had; and is, therefore, not barred till six years after the completion of the accounting.* Although there is a limit of ten years within which an equity suit may be revived against a " Sanford v. Sanford, 62 N. Y. 553 running of the statute of limitations, (1895). see note in 38 L.R.A.(N.S.) S24. On whether the statute of limita- * Scovil v. Scovil, 45 Barb. 517 tions is suspended during the period (•'^°°°'' allowed an administrator to bring an ^q"™^'?"^ ^- Keteltas, 92 N. Y. action, see note in 13 L.R.A.(N,S.) ^",1^^°^)- ^ ,. lonn 'Mead v. Jenkins, 95 N. Y. 31 mu fl- + * 1 4. ii, r (1884), claim due Feb; 11, 1871; The conflict of laws a^ to the lim- debtor died Mch. 19, 1871; letters on itation of actions affecting a dece- his estate, issued Apr. 14, 1871 ; cred- dent's estate is discussed in note m itors began proceedings Feb. 6, 1880 ; 48 L.R.A. 634. debtor's administrators accounted As to the effect of appointment of Oct. 17, 1877; six year statute held a temporary administrator on the not to bar claim. 150 § 130 ADMINISTRATORS defendant's legal representatives, th^re is no time fixed within which a motion to revive an action at law is barred; but the court is justi- fied in denying the application when laches is shown ; and waiting till the demand would be barred by the statute of limitations is such laches as, unexplained, justifies denial of the application.® An executor simply taking the commissions allowed him by a court, not knowing they were excessive, is guilty of no fraud and is safe from suit for their recovery when the statute of limitations has run from the date of his account and dischargeJ The six year statute of limitations will be held applicable to bar a suit by a legatee to com- pel an executor to exercise a power of sale given by the will in order to secure funds to satisfy the legacy, although such an equitable suit would ordinarily be held controlled by the ten year statute, when the legatee has several other equally efficient remedies of a legal nature to collect the legacy to which the six year statute applies, e. g., a surrogate's proceeding to compel payment of the legacy or an accounting; a simple accounting action, or action for payment of the legacy ; or such an action with a prayer that the executor be made to exercise his power of sale over the realty if there should not be enough personalty to pay the legacy.' A final judgment recov- eried against a devisee or an heir, for a debt or legacy or distributive share expressly charged on the estate devised or descended, bai"s ab- solutely an action against the executor of the testator, or the ad- ministrator of the intestate, for the same cause, and every other rem- edy to enforce payment thereof out of the decedent's property ; and a final judgment against a devisee or an heir for a debt or legacy or distributive share, not so expressly charged, bars in the same way, unless an execution against property, issued upon the judgment, ha? been retiirned wholly or partly unsatisfied, or sufficient real proper- ty to satisfy the judgment has not been devised to the judgiiient debtor.' An administrator or executor, at his peril, as against heirs or devisees, waives any legal defense either under the statute of limitations or frauds." § 130. Id.; Judgment and Execution. — Aii execution cannot be issued, upon a judgment for a sum of nioney, against an executor or administrator in his representative capacity until an order per- mitting it to be issued has been made by the surrogate from whose court the letters were issued, and such order must specify the sum « Washington Trust Co. v. Bald- « gutler v. Johnson, 111 N. Y. 204, win, 118 A. D. 186 (1907), or 102 18 N. E. 643 (1888). Supp. 1105, afPd 189 N. Y. 543, 82 ' C. C. P. § 1821. N. E. 1134. " Matter of O'Rourke, 12 Misc. ''Spallholz V. Sheldon, 15JI A. D. 248, 34 Supp. 45 (1895). 367 (1913), or 143 Supp. 417; afi'd 216 N. Y. 205, 155 Supp. 363. 151 NEW YOEK ESTATES AND SUBROGATES § 130 to be collected, and the execution must be endorsed with a direcr tion to collect that sum.^^ At Ifeast six days' notice of the applica- tion for the order must be persqnally served upon the executor or administrator unless it appears that geryice cannot be so made with due diligence, when notice must be given to such persons and in such manner as the surrogate directs, by an order to show cause whj' the application should not be granted.** When it appears that the assets, after payment of all sums chargeable against them for ex- penses and for claims entitled to priority as against the plaintiff, are not, or will not be sufficient to pay all the debts, legacies or other claims of the class to which the plaintiff's claim belongs,, the sum directed to be collected by the execution cannot exceed the plain- tiff's just proportion of the assets; but one or more orders may be afterwards made in like manner, and one or more executions may be afterwards issued, whenever it appears that the sum directed to be collected by the first execution is less than the plaintiff's just pro- portion." When a judgment has been rendered against an execu- tor or administrator for a legacy or distributive share, the surrogate,, before granting an order permitting an execution to be issued there- upon may, and in a proper case must require the applicant to file in his office an undertaJdng to the defendant, in such sum and with such sureties as the surrogate directs, to the effect that if, after col- lection of any sum of money by virtue of the execution, the remain- ing Eissets are not sufficient to pay all sums for which the defendant is chargeable for expenses, claims entitled to priority as against the applicant, and the other legacies, of the class to which the appli- cant's claim belongs, the plaintiff will refund to the defendant the .sum so collected, or such ratable part thereof, with the other lega- tees or representatives of the same class, as is necessary to make up the deficiency." Real property which belonged to a decedent is not bound or in any way affected by a judgment against his execu- tor or administrator, and is not liable to be sold by virtue of an execution issued upon such a judgment, unless the judgment is ex- pressly, by its terms, made a lien upon specific real property therein described, or expressly directs the sale thereof.*' A. judgment for a plaintiff for a sum of money in an action against an executor or administrator, personally and also in his representative capacity, must distinctly show whether it is awarded against the defendant personally or in his representative capacity; and so much of the judgment as awards money against him personally (or an award of costs to be collected out of his individual property) may be separate* " C. C. P. § 1825. 1* C. C. P. § 1827. 12 C. C. P. § 1826. " C. C. P. § 1823. 13 Id. 152 § 131 . ADMINISTRATORS ly docketed, and a separate execution issued thereupon, as if the judgment contained no award against him in his representative ca- pacity." If an administrator or executor is defendant in an action or special proceeding which is pending when his powers cease, the plaintiff, in a proper case, may proceed therein against him, to charge him personally; but a judgment or other determination thereafter made or rendered against him is not of any force as against the estate of the intestate, or a person succeeding to the ad- ministration of such estate." One seeking execution upon a judg- ment against an administrator must show either that the adminis- trator has funds on hand applicable to its payment which he re- fuses to apply, or that funds of the estate which ought to have gone to pay the judgment have been misapplied.^' Property of a non- resident decedent in New York for whose estate none but a foreign administrator has been appointed cannot be attached here by a creditor, because such administrator holds the property for the bene- fit of all creditors of the decedent, and if a creditor could attach it, he would take trust property for many unto himself alone." § 131. Id.: Costs. — ^When a judgment for a sum of money only is rendered against an executor or administrator in an action brought against him in his representative capacity, costs cannot be awarded against him except when the plaintiff's demand was pre- sented within the time limited by a notice published as prescribed by law, requiring creditors to present their claims, and the payment of such demand was unreasonably resisted or neglected: when the court may award disbursements alone, or disbursements and costs, against the executor, to be collected either out of his individual prop- erty or out of the property of the decedent, as the court directs, hav- ing reference to the facts which appear upon the trial; and when the action is brought in the supreme or any county court the facts must be certified by the judge or referee before whom the trial took place.^" Costs cannot be allowed in an action against an executor ^* C. C. P. §§ 1815, 1816. resentative on confession, see note in " C. C. P. § 1830. 30 L.R.A. 241. 1' Matter of Gall, 40 A. D. 114 On injunction in favor of or (1899), or 57 Supp. 835. against an executor or administrator ^' Bostwick V. Carr, 165 A. D. 55 to prevent execution sales, see note (1914), or 151 Supp. 74, C. C. P. § in 30 L.R.A. 121. 1836a. The effect of a foreign judgment Of general interest in regard to against an executor or administrator judgments and executions against ex- is discussed in note in 27 L.R.A. 101. eeutors or administrators of dece- On injunction as to claims in for- dents' estates, see the following eign jurisdiction, see note in 21 notes: L.R.A. 73. As to an injunction against a judg- ** C. C. P. § 1836. ment entered against a personal rep- 153 NEW YORK ESTATES AND SURROGATES § 132 or administrator as such unless the claim was duly presented, . un- reasonably resisted or rejepted.^ The subject. of costs in actions by and against executors and administrators is mainly trea-ted herein- after.^ I ■ ,, < § 132. Appointment and Letters: What jurisdiction Surrogate Has. — Each surrogate's court has jurisdiction in the cases and man- ner prescribed by statute to grant letters of administration.^ E,ach surrogate has jurisdiction in the cases and manner prescribed by statute to appoint a successor in place of an administrator whose letters have been revoked.* The surrogate has the same power to appoint a successor to a sole, deceased administrator or a sole ad- ministrator whose letters have been revoked as if letters had never been issued.* This power to grant administration is general, and there is no valid ground for assuming that letters so issued are un- authorized, so long as ; the authority vested in the court to grant them is not exceeded.* The surrogate's court has no discretion as to granting administration : all it has to do is to follow the mandate of the statute.'' . The statutory provision for grant of administration in case of intestacy refers to intest^-cy of the person and not of speci- fic property, i. e., that the decedent left no will and not that he failed to dispose of some of his property by his ^ill.' There is no intes- tacy necessitating administration when the deceased before death gave to a donee money under an agreement that the latter should from such money pay the donor's debts, funeral expenses and a sum 'Schen v. Blum, 119 A. D. 825 cussed in notes in 24 L.E.A. 684; (1907), or 104 Supp. 887, C. C. P. L.R.A.1915B, 836. §§ 1835, 1836. On the appointment of an admin- ^ See'§§ 912, 913, infra. istrator for the sole purpose of bring- On the personal liability, of an ex- ing an action under the Federal em- ecutor or administrator, for costs, see ployers' liabilitv act, see note 'in 47 note in 14 L.R.A. 696. , L.R.A.(N.S.) 78. On allowance of attorney's fees in The collateral inipeaehability of suit for the administration of dece- findings as to jurisdictional facts on dent's estate, see note in 54 L.R.A. which the administration of a deee- 820. , dent's esta,te is based is discussed in On the right of executor or admin- note in 18 L.R.A. 242. istrator to sue, defend, or appeal in ® Martin v. Dry Dock, East Broad- forma pauperis, see note in, 68 L.R.A. way and Battery R. R. Co. 92 N. Y. 418. . 70 (1883), holding that though stat- On costs in a suit by or against an ute did noti authorize surrogate to executor or administrator to enjoin limit letters to right of prosecution execution sales, see note in 30 L.R.A. only, he could nevertheless do so. 122. ■'Matter of Wolff, 161 A. D. 255 3 C. C. P. § 2510, subd. 2. , (1914), or 146 Supp. 498; Matter of *C. C. P. § 2510, subd. 2, Campbell, 192 N. Y. 312 (1908). « C. C. P. § 2563. , , « Matter of Maccaffll, 57 Misc. 264 What assets will give jurisdiction (1907)^ or 107 Supp. 1115; a,ffl'd 127 to appoint an administrator are dis- A. D. 21. 154 § 133 ADMINISTRATORS lo one of his children, and hold the balance for any of his children who should be sick; ^ or when a. testator, whose executor is account- ing, did not dispose of the residuum of his estate, as the executor lan distribute such residuum." The jurisdiction of a surrogate's court to issue letters of administration depends on particular facts brought before him; and while it cannot give itself jur- isdiction by erroneously deciding that a fact essential to its jurisdiction (e. g., death) exists, yet when evidence of death is presented to it, it must act upon such evidence, and its determination (e. g., that death occurred) is conclusive of its juris- diction until such determination is revoked, reversed or vacated, in- sofar at least as to protect the legal representatives of the decedent and all other innocent persons who act upon faith in such determin- ation.^^ A surrogate's court has no power to appoint any person to represent the estate of a deceased administrator who died out of the state when the executor of his will refuses to apply for ancillary letters here or to consent to the appointment here of another as ancillary administrator.^^ § 133. Id.: What Surrogate Has Jurisdiction. — To enable any surrogate's court to grant administration of the estate of a decedent it is essential that decedent should have either died in the county of that court's jurisdiction; or left in such county personal property; or left in such county, and no other, real property subject by law to sale, mortgage or lease for payment of his debts, funeral or adminis- tration expenses, etc. ; or left personal property which since his death has come into such county.^* That surrogate has jurisdiction, ebcclusive of any other surrogate, to grant administration of the estate of such a. decedent, who can answer affirmatively any of the following questions : Did decedent at death reside in my county (no matter where he died) ? ^* Did decedent though a nonresident, die in my county leaving personal property either in the state at his death, or which since his death has come into the state, and re- mains unadministered? ^* Did decedent, though he both resided and died outside the state, leave personal property which either at death was in my leounty: and no other county, or since death has come into my county and no other, and remains unadministered? " ^ Casey v. Casey, 161 A. D. 427, ^' Roderigas v. East River Savings 146 Supp. 348 (1914), held a valid Institution, 63 N. Y. 460 (1875). trust to accomplish all purposes of ^^ Matter of McCauley, 49 Misc. administration and enforceable in 209, 99 Supp. 238 (1906). equity by next of kin. i^ q c. P. § 2515. "Matter of Haughian, 37 Misc. i« Id. 457 (1902), or 75 Supp. 932; old "Id. Code §§ 2660, 2662, new Code §§ " Id. 2588, 2603. 155 NEW YORK ESTATES AND SUBROGATES § 133 Did decedent, though a nonresident, leave in my county, and in no other county, real property subject by law to sale, mortgage or lease for payment of his debts, funeral or administration expenses, etc. ; and is it a fact that no petition for grant of administration of his estate has been filed with any other surrogate of the state upon the ground that, though a nonresident, decedent died in such surro- gate's county leaving personal property either within the state at his death, or which has since come into the state, and remains unad- ministered ; or upon the ground that, though decedent both resided and died outside the state, he left personal property which either at his death was in such surrogate's county (and no other county) or since has come into such county (and no other county) ? " When the right of a surrogate to grant administration of a dece- dent's estate is made dependent upon the existence in his county of "unadministered" personal property, it is not meant merely that the personal property be unadministered in New York state, but that it be unadministered anywhere, so that though personal property of a deceased nonresident owner be temporarily in New York in the pos- session of the administrator of the decedent appointed in the state of the latter's domicil; no jurisdiction is thereby conferred upon the surrogate of New York to grant administration of such decedent's estate.^' For the purpose of conferring upon a surrogate's court jurisdic- tion to grant administration, a debt owing to a decedent by a resi- dent of New York state is regarded as personal property situated within the county in' which the debtor resides; or in which either of two, or any of more than two debtors reside ; unless the debt is evidenced by a bond, promissory note, or other instrument for the payment of money only, in terms negotiable or payable to the bear- er or holder.^® A debt so evidenced, for jurisdictional purposes, is regarded as personal property at the place where the bond, note or other instrument is, either within or without the state, irrespective of whether the debtor is a resident or nonresident of the state, or a domestic or foreign corporation, association, government, state, county or public officer.*" If the debtor whose debt is not evidenced by such bond, note or other instrument, is a domestic corporation, the debt, for jurisdictional purposes, is regarded as personal proper- ty situated within the county in which the principal office of the corporation is.^ A mortgage containing a covenant to pay is a debt and property in the county in which the deceased mortgagor was.* " C. C. P. § 2515. " C. C. P. § 2517. " Matter of McCabe, 84 A. D. 145 «" Id. (1903), or 82 Supp. 180; aff'd 177 » Id. N. Y. 584, 69 N. E. 1126. * Czech v. Bean, 35 Misc. 729 156 § 134 ADMINISTRATOES A claim in a surrogate's county against a domestic corporation for services performed by an intestate resident of a foreign country, by the laws of which all his personalty devolved on his heirs at law, gives the surrogate jurisdiction to appoint an administrator d. b. n.* A surrogate may grant administration of the estate of a nonresi- dent, deceased intestate who died outside -the estate, on the strength of the irregular bringing into the state of assets after his death, and may decree final distribution thereof ; because it is in his judicial dis- cretion to direct the ancillary administrator here to remit the assets to the state of the intestate's domicil for distribution — which it should do when the assets have been illegally removed here to the prejudice of domiciliary creditors or others interested in the estate, but should not do, if it would be but an idle show of curtesy.* When a nonresident decedent leaves personal property which at death is, or later comes in two or more counties of the state, or leaves real property in two such counties, under such circumstances that the two or more surrogates of such counties would both or all have jurisdiction to grant administration of his estate, such surrogates have concurrent jurisdiction, to the exclusion of any other surrogate of the state, to grant such administration.* But if a petition for such administration has been duly filed in either or any of such surrogates' courts, the jurisdiction of that court in which the peti- tion has been filed is exclusive of any other court's jurisdiction.* When there is no direct evidence of an intestate wage-earner's domi- cil of origin, that surrogate has jurisdiction to grant administration on his estate in whose county the intestate had lived for eight years, whence he went to another state (where his wife joined him) to work, living in a boarding house both before and after his wife joined him, even though the intestate kept no physical home in the county of the surrogate's jurisdiction.' § 134. Id.: Persons Incompetent, In General. — No person is competent to serve as administrator who is (1) under the age of twenty-one years; (2) an adjudged incompetent; (3) an alien not an inhabitant of New York state; (4) a felon; or (5) incompetent (1901), or 72 Supp. 402; old Code " C. C. P. § 2516. §§ 2476 and 2478, new Code §§ 2515 « Id. and 2517. ' Webster v. Kellogg Co. 168 A. D. *Homans v. N. T. Life Ins. Co. 55 443, 153 Supp. 791 (1915), G. C. P. Misc. 574, 106 Supp. 929 (1907), old § 2515. Code §§ 2476, 2478, new Code §§ On the jurisdiction of the estate of 2515 and 2517. an inmate of a Federal home or in- * Matter of Hughes, 95 N. Y. 55 stitution, see note in 39 L.R.A.(N.S.) (1884), see, however, Hoes v. N. Y., 586. > liT. H. & H. R. R. Co. 173 N. Y. 435, C6 N. E. 119 (1903). 157 NEW YORK ESTATES AND SURROGATES § 135 to eiecute the duties of his trust hy reason of (a) drunkenness, (b) dishonesty, (c) improvidence or (d) want of undeTStanding ; * (6) dead. The surrogate has discretion to refuse to grant ad- ministration to any person who either (a) is unable to read and write the English language, or (b) does not file in the surrogate's office an instrument, duly acknowledged or proved and certified, designating the' clerk of such surrogate's court, and his successdr in office, as' the person upon whom service may be made of any process issuing from such court in like manner and with like effect as if it were sensed personally on the individual seeking administration, whenever the latter cannot be found and served within the state of New York after the use of due diligence.^ A corporation can only be appointed administrator when it is a trust company or other cor- poration authorized to act as such.^" It seems that of corporations, at present only trust companies are authorized by law to act as ad- ministrators.^* § 135. Id.: Infants.^--No person is; competent to serve as adminis- trator who is under the age of twenty-one years.''* In consonance with the law's, reasonable belief that an estate is best managed for all concerned by a person having a financial interest in its preserva- tion, if the one person entitled Hy himself to take all the intestate's personal property is incompetent because of infancy to accept ad- ministration, his guardian has a right to letters in the - infant's place and stead which is prior to the right of all other persons." If all of several persons entitled to take all of the intestate's person- al property are infants, the general guardian of. one of them may be granted administration in such infant's stead." If one of sever- al persons entitled to take the intestate's personal property is an in- fant and none of the others, though adult, and competent, will ac- cept administration of the estate, it may be granted the general guardian of the infant, in such, i,nf ant's stead." If neither a com- petent adult nor the guardian of a legally interested infant will ac- cept administration, and no appointment as administrator is made by consent, lettere must be granted either to the public adminis- trator; to the county treasurer; or to the person applying for let- ters; in the surrogate's discretion; or to any other person^" There- fore, if all persons entitled to letters are infants without general * 0. C. P. § 2564. " C. C. P. § 2588. 9 C. C. P. § 2565. " id_ ■ "> C. C. P. § 2588. « Id. " Banking Law, §§ 185 and 188. " C. C. P. § 2588; Matter of Mc- On a foreign corporation as ex- Donald, 211 N. Y. 272, 105 N.iE. 407 ecutor or administrator, see note in (1914), old Code § 2660, new Code^ 24 L.R.A. 291. § 2588; Matter of Elder, 87 Misc. 79 " C. C. P. § 2564. (1914), or 150 Supp. 114. i.58 §§ 136, 137 ADMINISTRATORS guardians, and none who make application for letters is appointed, the public administrator is preferred to a sister of decedent not en- titled to share in his personal property.^' A guardian of one of several infant sons will be preferred as administrator of the estate of the intestate parent to the public administrator.^^ On appoint- ment of a general guardian as administrator, the affidavit must show the value of the decedent's personalty so that the bond of the general guardian as administrator may be fixed.^" § 136. Id.: Adjudged Incompetent. — No person is competent to serve as administrator who is an adjudged incompetent.^ Follow- ing out the common-sense practice of the law to grant administra- tion to those financially interested in the safety of the estate, in the event that one person solely entitled to take all the decedent's per- sonal property is unable to fulfil the task of its administration be- cause of adjudged incompetency, administration will be granted his committee in his place in priority to every one else.* If all of several persons having the right to all decedent's property are ad- judged incompetents, administration of such property may be granted to the committee of one of the incompetents, in the latter's stead.' If one of several, persons having title to decedent's person- alty is an adjudged incompetent and none of the others, though adult and competent, will accept administration of such personalty, letters may be issued to such incompetent's committee in his place.* If neither a competent adult nor the committee of a legally inter- ested incompetent will undertake administration, and no ap- pointment as administrator is made by consent, the appointment must go either to the public administrator ; to the county treasurer or the person applying for letters, in the Surrogate's discretion; or to ahy other person.* § 137. Id.: Aliens and Non-Inhabitants. — No person is competent to sei^e as administrator who is an alien not an inhabitant of New York state.® An alien is incompetent to receive grant of adminis- tration.'' The question of alienage has been heretofore treated and i« Matter of Elder, supra; C. C. P. * C. C. P. § 2564. § 2588. 2 C. C. P. § 2588. 19 Matter of Hudson or Winke- ' Id. meier, 37 Misc. 539, 75 Supp. 1053 *Id. (1902), old Code §§ 2660 and 2669, « C. C. P. § 2588. new Code §§ 2588 and 2594. « C. C. P. § 2564. The right of a committee of a lun- On non-resident as administrator, atic or the guardian of an infant to see note in 1 L.R.A.(N.S.) 346, as appointment as administrator or ex- executor, p. 341. ecutor is discussed in note in L.R.A. ''Matter of Wolff, 161 A. D. 255 19150,581. (1914), or 146 Supp. 495; Matter of 2" Est. of Moore, N. Y. L. J., Oct. Kroog, 84 Misc. 676 (1914), or 147 31, 1914 (N. Y. Surr.) Supp. 887. 159 NEW YORK ESTATES AND SUEROGATES §§ 138, 139 reference is made to that treatment for a general discussion of the subject.' Nonresidence of one otherwise entitled to administration is no bar.' Administration granted to one of inferior right to a nonresident of superior right without notice to the latter is regular only so long as it remains unrevoked; but is subject to the nonresi- dent's right at any time to superseding letters on proper application unless such right has been waived by laches or otherwise.^" Non- residence excludes from appointment as administrator only when the claimant is not a citizen of the United States. ^^ The topics of residence and domicil have been discussed elsewhere in their general aspect. ^^ It has been held that the husband of an intestate's grand- child, resident of the state and of full age, is preferred as adminis- trator to three males of the same degree of kindred as his wife, non- residents of the state, and minors, when the citation was issued to guardians of the latter appointed before the citation issued.^' § 138. Id.: Felons. — No person is competent to serve as an ad- ministrator who is a felon. ^* The incompetency of a felon to ad- minister probably is removed by a pardon of the crime for which he was convicted, granted before decedent's death and the issue to the pardoned felon of adminstration on the decedent's estate." Conviction and fine in a Federal court for a misdemeanor because of violation of the excise law,^* or conviction and fine in the court of special sessions (Albany county) for a crime punishable by im- prisonment and fine, or both," probably is not sufficient to disquali- fy the person convicted, as a felon, from administration. A felony, in order to determine if the one guilty of it is disqualified from becoming an administrator, probably must be a crime in which presentment or indictment by grand jury is a prerequisite to conviction.^' § 139. Id.: Drunkenness, Dishonesty, Improvidence, Want of Understanding. — No person is competent to serve as administrator who is incompetent to execute the duties of his trust by reason of ' See §§ 34-36, supra. . ogy. Statute construed provided that ^ Matter of Campbell, 192 N. Y. "no person is competent to serve as 312, 18 L.R.A.(N.S.) 606, 85 N. E. an executor who at the time the will 392 (1908). is proved . . . shall hav* been con- ^^ Matter of Campbell, supra. victed of an infamous crime." " Libbey v. Mason, 112 N. Y. 525, " Matter of Greene, 48 Misc. 31 2 L.R.A. 795, 20 N. E. 355 (1889). (1905), or 96 Supp. 98. By analogy. ^^ See §§ 8-12, supra. Statute used words "infamous crime," 1' Wickwire v. Chapman, 15 Barb, instead of "felony." 302 (1853). "Matter of O'Hare, 60 Misc. 269, 1* C. C. P, § 2564. 113 Supp. 281 (1908). By analogy; 1^ Matter of Raynor, 48 Misc. 325 in construction of "infamous crime." (1905), or 96 Supp. 895. By anal- "Id. 160 § 139 ADMINISTRATORS drunkenness, dishonesty, improvidence or want of understanding.^' The incompetency which disqualifies a would-be administrator from appointment is not moral delinquency, but such habits of mind and conduct as have become part of the man and render it likely that he is generally and under all ordinary circumstances unfit to exer- cise his trust and protect the estate from loss.^° "Moral guilt or de- linquency is not a ground for excluding a person from receiving letters, unless he has been convicted of an infamous crime. Im- providence such as to exclude a party from administration is a want of care and forecast in the acquisition and preservation of property. And it has been held that vicious conduct, improper and dishonest acquisition of property, and even loose habits of business, did not constitute improvidence within the meaning of the statute, nor the fact that the petitioner was indebted to the estate." ^ For example, proof of illiteracy or small pecuniary means does not necessarily constitute such incompetency,* while proof of gambling presump- tively does.' The reason the vice of improvidence is made by law to disqualify its possessor of his rights to administer is, not that it is of itself proof of incompetency, but that its existence in the one who is to manage an estate subjects the estate to one of those very chances of loss which the restrictions, placed by law on the right to adminis- ter seek, to avoid. Therefore, the fact that the improvident would-be administrator can give a surety company's bond, as security for the faithful performance of his trust, does not fit him for appoint- ment, as what the law seeks to secure is not a recovery after he has done wrong, but a protection against his doing wrong.* The vice of improvidence is not, however, so great a disqualification for a would-be administrator as for a would-be executor; because the former must always give a bond, while the latter need not.* A ^' C. C. P. § 2564. ternal papers, who had borrowed ^^ Emerson v. Bowers, 14 N. Y. 449 from relatives and been unable to (1856) ; McMahon v. Harrison, 6 N. support his family, held so improvi- Y. 443 (1852). dent as to be barred from administra- On the moral qualification requisite tion. to appointment as executor or admin- * Matter of Brinckermann, 89 Mise. istrator, see note in 16 L.R.A. 538. 41 (1915), or 152 Supp. 542. Broth- ^ CoggshaU V. Green, 9 Hun, 471 er against whom judgments were out- (1876). standing; who had never been in busi- * Emerson v. Bowers, supra. ness other than small stationery one ; ' McMahon v. Harrison, supra. who had borrowed from decedent * Matter of Ferguson, 41 Misc. 465 $100.00, and large amounts secured (1903), or 84 Supp. 1102, dictum, by second mortgages rendered value- A former lawyer (principally as less by foreclosure of first mortgages, clerk at moderate salary) stenogra- held barred from administration. pher, book agent, editor of small fra- N. Y. E. & S.— 11. 161 NEW YORK ESTATES AND SURROGATES §§ 140, 141 gambler is presumed incompetent to administer.* The drunken- ness which disqualifies from appointment as administrator is not intoxication simply, but such intoxication as renders the applicant for letters incompetent to execute the duties of his trust, as what the law looks to is the safety of the estate and not the moral qualities^ of the representative.'' Past intoxication is pertinent only as evi- dence of present incapacity.* Dishonesty is not so strong a ground for refusing letters to an administrator as to an executor (however- strong a reason it may be for revoking letters once issued) , because an administrator must in any event give bond to protect those in- terested in the estate while an executor need not.® Want of under- standing as a cause for incompetency to administer means lack of intelligence.'" § 140. Id. : Death.— No person who is dead can, of course, serve as administrator; but the practice of granting administration only to persons financially interested in the estate demands, if one per- son by himself is entitled to take all the decedent's personalty and has become incompetent to fulfil the duties of administration be- cause of his death after the decedent but before administration has issued, that his legal representative have a right to letters in priority to all other persons.*^ If no such legal representative will accept such letters of administration, then, unless an appointnlent of an administrator is made by consient, letters must be granted to the public administrator ; to the county treasurer ; or to a person apply- ing therefor, in the surrogate's discretion; or to any other person.*' § 141. Id.: Renunciation or Refusal and Retraction.— -No man can be made, against his will, to act as administrator of another's estate.'^ Any person who has by law a right prior or eqUal to that of another to administer the estate of a decedent may renounce such right; unless he be either a public administrator or a county treas-- urer.'^ A public administrator or county treasurer may only be excused from acting as administrator upon an order duly made and entered by the surrogate on the unwilling candidate's own motion." A renunciation of a right to "administration by anyone except a public administrator or county treasurer must: — (a) be in writ- ing; (b) be acknowledged or proved; (c) be duly certified; and! (d) be filed in the surrogate's office." A renunciation of adminis- *By analogy; McMahon v. Harri- "Matter of Greene, 48 Misc. 31 sou, 6 N. Y. 443 (1852). (1905), or 96 Supp. 98. ■^ Matter of Reichert, 34 Misc. 288 " C. C. P. § 2588. (1901), or 69 Supp. 644. By analogy to Beekman v. Bon- 8 ,, ' f -r, ■ ^ ^ sor, 23 N. Y. 298 (1861). 'Matter of Reichert, supra. is c_ GPS 2690 9 Matter of Greene, 48 Misc. 31 ' " c! g! p] § 259o' , (1905), or 96 Supp. 98. " C. C. P. § 2590. 162 ^ 142 ADMEnISTEATORS tration made in the state of the decedent's domicil before adminif=- tration is there taken out on his estate relate only to assets which had there to be administered.^* The filing of a retraction of a re- nunciation to administer can become effective only by permission of the gfurrogate and in his discretion, upon consideration of all the facts ; and it will not be allowed when the would-be retractor waived his right to administer and sold his interest in the intestate's per- sonalty for a valuable cash consideration." Application for administration by one other than the intestate's widow, on the ground she had not apphed, will be denied when she got administration under a different spelling of the intestate's name ; " and if the f prmer letters bore an improper name, it is proper to institute a proceeding to amend them.'' When an intes- tate's sister and widow alone are interested in his estate, adminis- tration will be granted the sister on her application unless the widow either offers for probate within twenty days a will by her husband which she claims gives her all, or herself takes out administration."" § 142. Appointment and Letters: Preferences; Next of Kin En- titled to take. — ^When a decedent fails to name by will any person whom he wishes to act as manager of his estate, the law makes the nomination for him. If a testator names as executor one who could have nothing to do with specifically devised realty and directs that he be allowed to act without bonds though he became nonresi- dent, but the will fails to bequeath any of the deceased's personalty, the letters testamentary issued wiU not be revoked, because of the presumed intent to give such person administration of the person^ alty ; and if anyone is appointed to administer except the executor it should be an administrator c. t. a*' By statute certain persons iU'e arbitrarily declared to be incompetent to administer, and others are equally arbitrarily designated to administer decedents' estates; while discretion is given the law's agent, the surrogate,. to refuse ad- ministration upon certain grounds, and to appoint certain persons administrators, if those arbitrarily designated' by law fail either to act, or to consent to the appointment of someone other than them- selves. There is no inherent right in anyone to administer : neither relationship nor pecuniary interest gives such a right; btit the stat- ute uses these and other tests to determine the priority of right.* The '* Sulz V. Mutnal Reserve Fund *" Matter of Carter, 74 Misc. 1 Life Assn, 7 Misc. 593, 28 Supp. 263 (1911), or 133 Snpp. 720. (1894). 1 Matter of Maccaffil, 57 Misc. 264 "Matter of Clute, 37 Misc. 710 (1907), or 107 Supp. 1115; aff'd 127 (1902), or 76 Supp. 456. A. D. 21, 111 Supp. 315. ^' Matter of Siriski or Zerwinski, * Matter of d'Agostino, 88 Misc. 51 Misc. 661, 102 Supp. 203 (1906), 371 (1914), or 151 Supp. 957. 1' Matter of Siriski, supra. 163 NEW YORK ESTATES AND SURROGATES § 142 theory of the law in .giving certain classes of people priority- of right to administer, is that it is not only a natural, but a legiti- mate assumption, practically, that peraons attached to a decedent by ties of marriage and consanguinity and personally, actively and financially interested in his estate, will better care for it than anyone else.* Therefore, administration in case of intestacy can be granted only to persons entitled to take or share in decedent's personalty ; unless such persons either (a) are incompetent, or (b) will not accept administration, though competent, or (c) consent as a whole to grant of administration to one not entitled to take or share in decedentfs personalty.* The arbitrary statutory order in which administration must be granted to those entitled to take or share in a legitimate decedent's personal property, who are competent and will accept administra- tion, is as follows: 1. To the surviving husband or wife, as the case may be, of the decedent; 2. To the children of the decedent; 3. To the grandchildren of the decedent; 4. To the father of the de- cedent; 5. To the mother of the decedent; 6. To the brothers of the decedent ; 7. To the sisters of the decedent ; 8. To any other next of kin of the decedent entitled to share in the distribution of the estate, preference being given to the person entitled to take the largest share in the estate.* ^If several persons have an equal right to administration, it must be granted to men in preference to women, to relatives of the whole, in preference to those of half blood ; ® to unmarried, in pref- erence to married women.' The preference given by statute to one class over another is absolute, as are the preferences given to men over women, relatives of the whole blood over relatives of the half blood,' unmarried women over married women.^ The surrogate has discretion to grant administration to more than one per- son either when two or more persons are equally entitled to the grant, or when a person entitled to letters applies for their issue to another person or other persons jointly with himself.^* "Administration by relatives in case of intestacy is to be given only to those relatives of the deceased having an actual right at the time of his death to share in the distribution of the estate, in the order in which the relatives so sharing are named" in the statute.** 8 Matter of Campbell, 192 N. Y. « c_ c. P. § 2588. 312, 18 L.R.A.(N.S.) 6,06, 85 N. E. 'Id. 392 (1908); Matter of Patten, 80 'Id. Misc. 482 (1913), or 142 Supp. 452; 'Matter of Davis, 48 Misc. 489 Matter of Kroog, 84 Misc. 676 (1905), or 96 Supp. 1106. <1914), or 147 Supp. 887. *" C. C. P. § 2588. * C. C. P. § 2588. " Matter of Patten, 80 Misc. 482 'C. C. P. § 2588. (1913), or 142 Supp. 452; old Code 164 § 142 ADMINISTRATORS The words "entitled to share in the distribution of the estate" and "entitled to succeed to his personal property," in the statutory provi- sions granting administration "to any other next of kin" of a de- cedent, are words of qualification ; so that to entitle an applicant to letters it must appear not only that he is a relative of the deceased but also that he is entitled to succeed to the personal property.^^ A person interested in an estate includes every person entitled either absolutely or contingently to share in the estate, or the proceeds thereof, whether as husband, wife, next of kin, assignee, grantee, or otherwise; except as a creditor.^* The requirement of an interest in the distribution of the estate of an intestate as a qualifica- tion for appointment as administrator contemplates a present and not a future interest; so that the father of an intestate leaving a widow and infant child both dying after the intestate and the child before the widow, whereby the whole personalty of the intestate passed directly to the widow, has no claim to administra- tion.^* When a father who would be entitled to administration is disqualified by reason of alienage and nonresidence, the public ad- ministrator will be granted administration in preference to a brother. ^^ A guardian of infants who are the only surviving next of kin of an intestate is entitled to letters of administration on the intestate's estate; *^ and if there be no such guardian existing or ap- pointed who applies for administration, the public administrator is entitled to letters." A guardian of one of several infant sons will be preferred, as administrator of the estate of the intestate par- ent, to the public administrator.** A half-sister of a decedent should be preferred as grantee of letters of administration of his estate to a maternal uncle.*' An only son of a wid- ower is preferred to anyone else as administrator of the lat- ter's estate.^" A niece who is a citizen of the United States § 2660, new Code § 2588; Matter of Gilchrist, 37 Misc. 543 (1902), or 75 Wolff, 161 A. D. 255 (1914), or 146 Supp. 1055. Supp 495. "Matter of McDonald, 211 N. Y. « Matter of Wolff, supra. 272 105 N. E. 407 (1914), old Code 13 Q c p 8 2678 8 2660, new Code § 2588 ; Matter of On ihe payment or tender of debt f^'^'^^, ^^"^ ^^ ^^^^^^' """ ^'^^ due from estate as affecting the cred- 'i? jV i.i. ' f -pi j itor's right to letters of administra- i« Matter °of HudsZ'or Winke- ^'Z'^r^^ }\ ^-^-^X-^ ^oJt" "^eier, 37 Misc. 539, 75 Supp. 1053 ,.„3"^''£^o^*"'^'oo^^'f''>,^? (1902), old Code §§ 2660 and 2669, (1900), or 68 Supp. 638, old Code new Code §§ 2588, 2603 and 2594. § 2660, new Code § 2588. w Matter of Sanford, 100 A. D. "Matter of Kroog, 84 Misc. 676 479 (1905), or 91 Supp. 706. (1914), or 147 Supp. 887; old Code 20 Est. of Heitshusen, N. Y. L. J., § 2660, new Code § 2588; Matter of Meh. 17, 1915 (Bronx Suit.) 165 NEW YORK ESTATES AND SURROGATES § 143 is entitled to administration in preference to the public administra- tor; and letters granted the latter will be revoked when the niece was not cited in the proceeding in which they were issued, did not tile; a renunciation of letters, and is not guilty of laches.^ A sister of an intestate who leaves a father cannot have letters of adminis- tration because she is not entitled to share in the estate.^ If an intestate leave no husband or wife, children, representatives of a child, next of kin, or child of his (intestate's) wife or her (intestate's) husband, surviving, then the next of kin of the intes- tate's husband or wife, as the case may be, are deemed the next of kin of the deceased for all the purposes specified in chapter 18 of the Code of Civil Procedure,^ which probably gives such next of kin, under such circumstances, the right to letters of administration on the decedent's estate. § 143. Id. : Men to Women. — As, if several persons have an equal right to administration, it must be granted to men in preference to women,* a father is preferred to a mother as administrator of their son's estate; ^ a brother to a sister as administrator of their brother's ■ or sister's estate ; * a son to a daughter as administrator of their par- ent's estate.' When next of kin of different degrees of kindred are entitled to share in the estate, the rule that men shall be preferred to women, applicable when several persons of the same degree of kindred are entitled to administration, does not hold, and a woman of nearer kindred than a man will be preferred as administrator, e. g., a niece to a grandnephew ; ' or a half-sister to a maternal uncle.* It has been held that an adult daughter of an intestate is entitled to administration in preference to the guardian of a minor son." As, if several persons have an equal right to administration, the preference of men to women precedes that of relatives of the whole to those of the half blood, a half brother of an intestate is lEst. of De; Stoeekl, N. Y. L. J., view for April, 1916. The reasoning Sept. 22, 1914 ^N. Y. Surr.) on which it is based is unsatisfactory. « Matter of O'Leary, N. Y. L. J., * C. C. P. § 2588. Dec. 14, 1914 (Bronx Surr.) Deced; ^Matter of Murphy, 87 Misc. 564 Est. L. § 97, subd. 7, C. C. P. §§ 2589 (^^If)' ^"^ 151 Supp. 475. and 2768 Matter of Brinckman, 89 Misc. 41 3 Decedent Estate Law, § 98, subd. ^^^\^/>°'' ^^1 ^"PP- 542. 16 (L. 1913, c. 489). Suiogate nl^.f^'' oL^*^^l'.^ ^'''- ^^ Fowler of New York county has held ^TmI'hII If w ^^i' o^ tit- onrr i-j. i- 19m £ A. r, J Matter of Hawley, 37 Misc. 667 unconstitutional § 91 of the Deced. (1902), or 76 Supp. 461, old Code § Est. L. which applies to real property 266O, new Code §§2588 and 2603 as subd. 16 of § 98 applies to per- scatter of Sanford, 100 A D sonalty. The decision has been eriti- 479 (1905), or 91 Supp. 706. cised in Harvard Law Review for i" Cottle v. Vanderhayden 56 Barb March, 1916, and Columbia Law Re- 622 (1870), 166 §§ 1-1J-14G ADAIINISTRATORS entitled to priority in the grant of letters of administration as against a sister of the whole blood.*^ § 144. Id.: Whole to Half Blood. — ^If several persons have an •c-qual right to administration, it must be granted to relatives of the whole, in preference to relatives of the half blood.^" But the rule that if several persons have an equal right to administration rela- tives of the whole are preferred to relatives of the half blood must yield to the other rule that if several persons have an equal right to administration men are preferred to women, e. g., a half brother is entitled to letters before a sister of the whole blood.'* A mother, nonresident in the state, is preferred to a half brother, resident in the state, in the grant of administration on the estate of a nonresi- dent decedent leaving assets in the state.'* The true test in deter- mining whether two persons are relatives of the whole or half blood is to go back to the same couple of ancestors, e. g., grandparents, and if such persons proceed from the same couple, e. g., the same grand- father and grandmother, rather than from the same husband (or wife) but from different wives (or husbands), e. g., from the same grandfather but from different grandmothers, they are rela- tives of the whole rather than of the half blood.'* § 145. Id. : Unmarried to Married. — The rule that, if several per- sons have an equal right to administration, it must be granted to unmarried, in preference to married women,'* holds notwithstand- ing a statute making married women as capable of acting as admin- istratrices as unmarried women, so as to continue the preference of an unmarried woman over a married woman in the same class.''' The preference of unmarried to married women is deferred always to the preference of men to women and relatives of the whole to relatives of the half blood. § 146. Id.: Estates of Illegitimates. — The arbitrary statutory order in which administration must be granted on the estate of an illegitimate intestate or decedent is as follows : 1. To the surviving widow or husband; 2. To the children of decedent; 3. To the •descendants of decedent ; 4. To the mother of decedent ; if living ; 5. To the relatives of the decedent on the part of the mother in " Estate of Moran, 5 Misc. 176, 25 '* Matter of Taton, 81 Mise. 83, Supp. 702 (1893), old Code § 2660, 141 Supp. P27 (1913), old Code § subds. 5 and 6, and 8, new Code § 2660, new Code § 2588, so held in 2588. determining whether cousins were '^ C. C. P. § 2588. jointly or one only entitled to admin- 's Estate of Moran, 5 Mise. 176, 25 istration. Supp. 702 (1893), old Code § 2660, '« C. C. P. § 2588. subds. 5 and 6, new Code § 2588. ''' Matter of Curser, 89 N. Y, 401 '* Matter of Williams, 44 Hun, 67 (1882). (1887), aff'd 111 N. Y. 680, 19 N. E. 284. 167 NEW rOEK ESTATES AND SURROGATES § 147 the same order as if the decedent had been legitimate, if the mother be dead.^' Letters of administration issued to one claiming to be a son of the intestate will be revoked when the grantee was the il- legitimate son of the woman who became the intestate's wife after the grantee's birth; unless it is proven that the intestate was the grantee's father ; because issue, illegitimate of birth, are only legit' imate by the marriage of the parents.^* The general subject of legitimacy and marriage has been heretofore treated.*" § 147. Id.: Consuls. — The functions of consuls under established international usage are to preserve derelict estates of their deceased countrymen in foreign lands.^ If there are legally constituted rep- resentatives, a consul's duty is one of co-operation only ; but if there are none such, it is his duty, so far as he is able, to administer the estate to the extent of gathering it in and transmitting it to the jurisdiction of the decedent's domicil, quite aside from his appoint- ment as administrator.* The rules of various surrogates' courts prescribe that notice must be given to the consul of the country of a deceased, intestate foreigner on any application for administration on his estate.^ The notice which must be given the consular rep- resentatives in New York city of that country of which a decedent was a citizen and of whose estate the public administrators seek to obtain administration, and such consular representative's rights in the course of such administration, are referred to in the note.* Under a treaty of the LTnited States with a foreign country giving the consular representatives of the latter the right "so far as the laws of each [this] country will permit and pending the appoint- ment of an administrator and until letters of administration have been granted [to] take charge of the property left by the deceased [citizen of such country] for the benefit of his lawful heirs and creditors, ajid, moreover, have the right to be appointed as adminis- trator of such estate," such consular representatives are simply add- ed to the list of those eligible as administrators so as to enable them to administer upon the estates of their fellow-citizens when no one "Deced. Est. L. § 98, subd. 9. 12; Kings, 7; Bronx, 5; Queens, 12; "Matter of Pfarr, 38 Misc. 223, Chautauqua, 3. 77 Supp. 326 (1902), L. 1896, c. 272. *New York County .-—"FTihlie Ad- *» See §§ 13-18, supra. ministrators" Law, § 19 (L. 1898, c. 1 Matter of D'Adamo, 212 N. Y. 230, § 19). 214, L.R.A.1915D, 373, 106 N. E. 81 Kings Coimty:—C. C. P. § 2594. (1914). Bichmond County: — "Public Ad- «Id. ministrators" Law (L. 1910, e. 412, On the jurisdiction and powers of § 2). consuls to administer an estate, see Bronx County: — "Bronx County" notes in 45 L.R.A. 496; 37 L.R.A. Law, §§ 3 and 11 (L. 1912, e. 548, §§ (N.S.) 549. 3 and 11). ^ See e. g., these rules : New York, 168 § 147 ADMINISTRATORS having a prior right under the local law is competent or williug to act.* In other words, the consul has no right to be appointed ad- ministrator unless no one else has by law the right to be appointed and is available.' Under such a treaty the public administrator has a right prior to the consul to administer the estate of an intestate citizen of the foreign countiy dying here without leaving next of kin entitled to administer;' whether the question is raised by a resident brother ' or a creditor ' of the intestate. It would seem that the consular representative of a fqreign country must give the security required of any other person seeking administration and must be comjjetent to act as administrator.^" Some decisions prior to the D'Adamo case and the amendments effective Sept. 1, 1914, to the surrogates' code, are collected in the note, as bringing out the effect of the D'Adamo decision and the amendments.^* ® Matter of D'Adamo, 212 N. Y. most favored nation, (viz. "to inter- 214, L.E.A.1915D, 373, 106 N. E. 81 vene in the possession, administration (1914). Convention between United and judicial liquidation of the estate States and Sweden, 1911, article of the deceased . . . for the bene- XIV., as applied with reference to fit of the creditors and legal heirs") "most favored nation" clause in preferred as administrator to credi- Italy. tor. See also Matter of Silvetti, 66 «Id. Misc. 394 (1907), or 122 Supp. 400; 'Matter of d'Agostino, 88 Misc. Matter of Riccardo or Baccelli, 79 371 (1914), or 151 Supp. 957; Mat- Misc. 371 (1913), or 140 Supp. 606: ter of Comparetto, 88 Misc. 369 Treaty U. S.-Italy, May 8, 1878, giv- (1914), or 151 Supp. 961; C. C. P. ing Italy benefit of most favored na- il 2564, 2588 : — decedent was unmar- tion clause (viz. that of March 20, ried, left father competent to admin- 1911, Convention, U. S.-Sweden, "in ister but also a brother barred be- the event of any citizen of either of cause of being non-resident alien: the two contracting parties dying public administrator preferred to without will . . . the consul gen- Italian consul. eral . . . shall . . take charge 'Matter of D'Adamo, 212 N. T. of the property left by the deceased 214, L.R.A.1915D, 373, 106 N. E. 81 . . . and . . . have the right (19l4). to be appointed as administrator. ' Matter of d'Agostino, supra. . . .") Consul preferred as admin- *" Matter of D'Adamo, 212 N. T. istrator to resident uncle and credi- 214, L.R.A.1915D, 373, 106 N. E. 81 tor who was not entitled to take dis- (1914) ; Matter of Logiorato, 34 tributive share because intestate's Misc. 31 (1901), or 69 Misc. 507. father, his sole next of kin, lived Contra, and overruled by the d'Ad- abroad. See also Matter of Mada- amo case, supra, is Matter of Tattos- loni, 79 Misc. 653 (1913), or 141 simi, 33 Misc. 18, 67 Supp. 1119 Supp. 323— brother living here and (1900). father abroad; and Matter of Lom- " Matter of Seutella, 145 A. D. 156 bardi, 78 Misc. 689 (1912) ; Matter (1911), or 129 Supp. 20. Treaties: of Riccardo, 79 Misc. 371 (1913), or United States-Italy, 1878, art. 7 ; 140 Supp. 606 ; Matter of Tattossimi, United States- Argentina, 1853, art. 33 Misc. 18 (1900), or 67 Supp. 1119: fl; U. S. Const, art. 6, § 2. Consul IJ. S.-Italy Treaty, and U. S.-Argen- by treaty given same rights, etc., of tina treaty, giving consul right to ad- 169 NEW YORK ESTATES AND SUKEOGATES § 148 § 148. Id. : Discretionary Preferences. — The discretion given the surrogate to appoint certain persons administrators is this : To ap- point certain persons equally entitled by statute to letters ; to appoint as administrator or administrators, one or more persons not entitled to administration if those entitled to administration consent. In other words, while certain classes of persons are arbitrarily preferred by statute to certain other classes in the grant of administration, the preference does not hold as to the persons in any one of such classes,^^ and the surrogate h'as discretion as to whom of the various people in any one class he will grant administration.'* The same rule obtains in the appointment of administration with the will annexed as in* the designation of administrators in chief." The exercise of the surrogate's discretion in awarding letters to one of two or more persons to whom he might issue them will not be re- viewed on appeal.'"* A surrogate will exercise his discretion so as to issue letters of administration to an intestate's son rather than his widow when she cannot read, write or count money, is dense and de- ficient in her capacity to managie or her ability to perform duties, and is lacking in the understanding necessary to intelligent direc- tion in her duties.'* If all the persons entitled to take or share in decedent's personal property are competent and within the state, administration inay be granted to a competent person or persons not entitled so to take or share,, if the written consent of those persons who are competent and entitled is filed in the surrogate's ofhce." The consent, it is to be noted, must be (a) written, (b) made by all persons entitled to share in decedent's estate, (c) filed in the surrogate's office; and (d) is valid only when by all the, persons in New York entitled to share in the estate. The consent must name the person to whom it is ■ minister "conformably with the laws (1905), or 96 Snpp. 1106. 'Grand- of the country, for the benefit of cred- nephew preferred to niece as adiirh- itors and legal heirs." Consul pre- istrator c. t. a. when he was business ferred when no next of kin resident man favored by several parties whose here. Matter of Logiorato, 34 Misc. total interest equals niece's, and 31 (1901), or 69 Supp. 507: U. S. niece not business woman and was Italy treaty, giving consul right "to administratrix of estate in which de- intervene in the ... administra- cedent was the only beneficiary, tion . . . conformably with the '* Id. laws of the country, for the benefit '^ Matter of Goddard, 94 N. T. 544 of the creditors and legal' heirs." (1884). Consul preferred when no relative, " Matter of Haley, 21 Misc. 777 guardian of minor relative, creditor (1897), or 49 Supp. 397; old Code § or public administrator consented to 2612, subd. 5, new Code §§ 2564, act. 2565, 2655. '8 C. C. P. § 2588. " C. C. P. § 2588. "Matter of Davis, 48 Misc. 489 170 § 149 ADMINISTRATORS consented that letters shall issue ; " so that one secondarily entitled to letters cannot be appointed when the mere renunciation by the one primarily entitled is filed, as the renunciation should name the person secondarily entitled in order to authorize the issue of letters to him.^^ A consent may be withdrawn, with the surrogate's ap- proval, though not evidenced or filed as required by law.^" The provisions as to notice, etc., to be given on an application to revoke an administrator's letters do not apply to a co-administrator ap- pointed by consent of the administrator legally entitled to appoint- ment ; so that on withdrawal of such consent and revocation of the letters of the administrator legally entitled to them, the surrogate may in his discretion revoke the letters granted the co-administrator and issue them to another person legally entitled to them.* If it is desired to retract a consent to the issue of letters to one not legally entitled thereto, it is possible that an oral statement so retracting the consent, if acted on by the parties, would suffice and bind/ but a retraction made with the same formalities as the consent would seem more proper. The method by which letters of administration may be granted on consent to persons not of right entitled to letters, applies to grant of administration with the will annexed as well as to grant of administration in chief. If, therefore, the consent is that letters of administration with the will annexed issue to three persons not entitled of iright thereto, upon the death of one of such three, a new consent that letters issue to the remaining two must be filed before they can be appointed.^ Letters of administration c. t. a. may be issued to one not otherwise entitled to them in con- junction with one entitled.* § 149. Appointment and Letters: When Appointed and Who Pre- ferred, Administrator in Chief. — The surrogate cannot grant gen- eral letters of administration pending appeal from his decree deny- ing probate tc the decedent's alleged will.* Letters of administration, as distinguished from letters of tempotary administration, may be issued by the surrogate pending appeal to the court of appeals from his decree admitting a will to probate, when the estate consists largely of securities of such fluctuating market value as to make ' "Matter of Murphy, 87 Misc. 564 * Matter of Stallo, 82 Misc. 135 (1914), or 151 Supp. 475. (1913), or 143 Supp. 775. 19 j^ * Matter of Sanford, supra. On tLe right of one first entitled to g " Matter ofFaile, 89 Misc. 682, 152 administration to nominate a third ^^j^-^tter of Moehring, 24 Misc. 418 person to exclusion of those next en- ^^ggg) ^^ 53 g -^'g^ ^j^ ^^^^ titled thereto, see note m 22 L.R.A. §g 2643, 2660, 2661, new Code §§ (N.S.) 1161. 2588 and 2603. 20 Matter of Sanford, 100 A. D. 6 Hicks v. Same, 12 Barb. 322 479 (1905), or 91 Supp. 706. (1851). 171 NEW YOEK ESTATES AND SURROGATES § 150 it extremely hazardous to tie up their disposition tQl the determina- tion of the appeal, as if a temporary administrator only were ap- pointed, he could sell, but could not invest the proceeds, except by direction of the surrogate, thereby: vesting in the surrogate the dis- cretion to sell vested by the will in the executors.® An appeal from a decree admitting a will or granting letters testamentary or of ad- ministration (or from an order or judgment of the appellate divi- sion affirming such decree) does not stay the issuing of letters .testa- mentary or of administration when, in the surrogate's opinion, manifested by an order, the preservation of the estate requires that the letters should issue.'' Letters so issued confer upon the person named therein all the powers and authority and subject him to all the duties and liabilities of an executor or administrator in an ordi- nary case, except that they do not confer power to sell real property by virtue of a provision in the will, or to pay or to satisfy a legacy, or distribute the decedent's unbequeathed property until after the final determination of the a.ppeal; and in case letters were issued before such appeal, the executor or administrator, on a hke order of the surrogate, may exercise the powers and authority, subject to the same duties, habilities and exceptions.* The rules of various surrogate's courts prohibit a petition for administration if a prior proceeding therefor is pending.? § 150. Id. : Administratots C. T. A. — Administration with the will annexed is granted upon the same principle as is applied in the grant of general administration, viz., that those persons should be appointed administrators who are personally and directly interested in the estate to be managed. Principal letters of administration cannot be issued by a surrogate unless the will is produced and proven before him, either in person or to commissioners represent- ing him and appointed to take proof of the will, if it is filed and remains in another state. ^^ The statute therefore enacts that let- ters of administration c. t. a. must issue in the following order: (1) to an executor or administrator of a sole legatee and devisee named in a will; (2) to. one or more of the residuary legatees qualified to act as administrators, or to a corporate residuary legatee, even though it be not specially authorized by its charter or any provision of law to act as administrator; *^ (3) to one or more of the principal 6 Matter of Gihon, 48 A. D. 598, (1905), or 93 Supp. 728; old code § 62 Supp. 426 (1900), old Code § 2476 subd. 4, new codes § 2515, subd. 2582, new Code, §§ 2557 and 2560. 4. ■^ C. C. P. § 2557. *^ Ordinarily the only corporations ' C. C. P. § 2560. which can be appointed administra- ' See e. g., these Rules : N. Y. 21 ; tors are trust companies, C. C. P. § King's 8; Bronx, 17; Queens, 11. 2588, Banking Law, §§ 185 and 188. "Sprett V. Syms, 104 A. D. 232 172 § 150 ADMINISTRATORS or specified legatees qualified to act as administrator, if there is no residuary legatee or none willing to accept administration c. t. a.; (4) to the husband or wife, or one or more of the next of kin, or one or more of the heirs or devisees of the decedent, qualified to act as administrators, if there is neither such residuary, principal or specified legatee, nor one who will accept administration c. t. a. ; (5) to the public administrator of the county, if any; and if none, to the treasurer of the county, or to the person petitioning for the grant of administration c. t. a., in the surrogate's discretion; (6) to any creditor or competent person designated by the surrogate, if the county treasurer or person petitioning for letters, in a county in which there is no public administrator, will not accept adminis- tration; provided, however, that the surrogate may grant adminis- tration c. t. a., in preference to the public administrator, county treasurer, creditor or other competent person, to the guardian or committee, as the case may be, of an executor or administrator of a sole legatee and devisee named in the will, or of one or more of the residuary, principal or specified legatees, or of the hus- band, wife or one or more of the next of kin, heirs or devi- sees, if such sole legatee and devisee, one or more of such residuary, principal or specified legatees, or husba^nd, wife, or one or more of the next of kin, heirs or devisees, is barred from administration solely because of his or her infancy or adjudged incompetency, as the case may be.^^ If several per- sons have an equal right to administration with the will annexed, men must be preferred to women, relatives of the whole to relatives of the half blood, and unmarried women to married women, just as in the case of general administration.^* But if several persons have equal right to appointment as administrators c. t. a., the surro- gate has discretion to grant letters of administration c. t. a. to one or more of them.'* The surrogate also has discretion to grant administration c. t. a. to one or more competent persons who are not of right entitled to the grant, in conjunction or jointly with a person who is entitled of right, if the latter applies to the surrogate so to do.'* Likewise the surrogate may grant administration with the will annexed to one who is competent but not entitled to such grant if all those persons entitled to take or share in the decedent's estate who are in the state of New York and competent file their written consent in the surrogate's office.'* Letters of administra- tion with the will annexed may be granted to a trust company or other corporation authorized to act as administrator with the will »« C. C. p. § 2603. »Id. " C. C. P. § 2603 and 2588. '6 Id. "Id. 173 NEW YORK ESTATES AND SUBROGATES § 151 annexed, as well as to a natural individual." The priority- given by statute in the grant of administration c. t. a. to persons enumerated in one class over those named in another is absolute and controlling upon the surrogate.^' A legatee is, there- fore, preferred to the husband or wife, or one or more of the next of kin of a testator.*^ But a beneficiary of a trust created by the will is not a "legatee" so as to be preferred in the grant of administration c. t. a.^" A general legatee will be preferred as administrator c. t. a. to a trust company which is guardian of a sole infant residuary leg- atee and next of kin of the testator.^ Administration c. t.|a. should not be granted — especially after a great lapse of time — ^unless it ap- pears there are assets unadministered and the petitioner has stand- ing to ask their grant.^ When the petitioner's right to institute the proceeding is challenged the surrogate should take evidence and decide the question; and when the existence of assets unadminis- tered is also challenged, he must do the same : he cannot accept the allegations of the petition, when put in issue, as proof.* When a will names one person sole executor, and three others executors in the event of such one dying before the testator "and not otherwise ; and a first codicil names a fifth person in place of one of the group of three named in the will; and a second codicil named a sixth in place of such fifth person (who had died), stating the testator's desire that such sixth person be substituted "in the pla,ce and stead" of such fifth person, "and I do hereby make, constitute and appoint the said" sixth person "one of the executors ... of my said will and codicil" — on the death of the person named sole executor, after the testator's death and his appointment as executor, an administra- tor c. t. a. must be appointed.* § 151. Id.: Administrators d. b. n. — Letters of administration of goods unadministered (de bonis non) must be granted by the sur- rogate either (a) when all the administrators to whom letters have been issued die; or (b) when all the administrators to whom letters have been issued become incapable; or (c) when letters issued to ad- ministrators have been revoked as to all to whom issued.* The pro- ceedings to procure the grant of letters of administration de bonis " C. C. P. § 2603. 59 Supp. 910 (1899), old Code, § " Matter of Blauvelt, 72 Mise. 287, 2643, L. 1893, c. 781, new Code, § 131 Supp. Ill (1911), old Code § 2603. 264'3, subds. 2 & 3, now in new Code, " Matter of Bedford, 130 A. D. 642, § 2603. 115 Supp. 472 (1909). ■ ^^ Matter of Blauvelt, supra. : ' Matter of Bedford, supra. 2" Matter of Ferguson, 41 Misc. 465 * Matter of Robitscher, 92 Misc. (1903), or 84 Supp. 1102; old Code, 653, 156 Supp. 265 (1915). § 2643 like new Code, § 2603. « C. C. P. § 2606. 1 Matter of Milham, 28 Misc. 366, 174 §§ 152, 153 ADMINISTRATORS non are the same as upon an original application for letters of ad- ministration, except, in the surrogate's discretion, in one instance, viz., as to the security required of the grantee.® The exception is the case in which the estate had been partially administered upon by the former representative or representatives, when the surrogate has discretion to fix the penalty of the bond to be given by such succes- sor or successors at a sum not less than the value of the assets of the estate remaining unadministered.' When a father entitled to all of an intestate's estate as next of kin died after being appointed administrator, the public administrator will be preferred in the grant of administration d. b. n. both to the deceased's father's ad- ministrator and the original intestate's brother; because the broliier was not entitled to share in the original intestate's estate at the lal- ter's death and in such event the public administrator is preferred to relatives.' When a widow entitled to all her deceased intestate husband's estate died after being appointed administratrix, her brother, as her sole next of kin, will be preferred as administrator d. b. n. of her husband's estate to her husband's sister, who, though his heir at law, is not his next of kin.' § 152. Id.: Limited Administrators. — Letters of limited adminis- tration to prosecute a claim for damages for negligence causing the death of a decedent residing in a county of this state leaving a widow and minor children residing in a foreign country may be granted his nearest friend on the ground that the widow and children are incompetent to receive letters.*" § 153. Id. : Ancillary Administrators. — ^Ancillary letters can only be granted in this state to the person entitled to possession of the decedent's personalty in the state or land of his domicil.** One en- titled in the country of a decedent's residence to possession of his personal property is entitled to ancillary letters in the county in JSIew York state in which personal property of the decedent is.*^ Eefore ancillary letters can issue on the estate of a deceased resident 6 Id. (1901), or 73 Supp. 1062; old Code, 'Id. § 2660, new Code, § 2588, C. C. P. 'Matter of Hogan, 78 Misc. 322 § 1902. (1912), or 139 Supp. 463; old Code, "Matter of Connell, 92 Misc. 324, §§ 2660, 2669, embodied in new Code, 155 Supp. 397 (1915), old Code §§ §§ 2588, 2603, 2596:— if a creditor 2695 et seq.; new Code § 2630 et seq. liad applied he would probably have On the right of domiciliary exeeu- heen preferred to the public admin- tors and administrators or their istrator. nominees to ancillary letters, see note 9 Matter of Briaseo, 69 Misc. 278, in 48 L.R;A.(N.S.) 858. 126 Supp. 1001 (1910), old Code, § ^^ Ross v. Willett, 76 Hun, 211 2660, in new Code, § 2588; Deced. (1894), or 27 Supp. 7^5; old Code Est. L. § 98, subd. 3. § 2696, new Code § 2631. "•Matter of Paola, 36 Misc. 574 175 NEW YORK ESTATES AND SURROGATES § l54 of a foreign countiy in which no letters are granted, it must be shown who is entitled therein to the possession of such decedent's personal property, unless another applies for ancillary letters and files an instrument by the person entitled in such foreign country authorizing the issue of the ancillary letters to the applicant.^' § 154. Id.: Ancillary Administrators C. T. A. — Ancillary admin- istration with the will annexed issues in the following order: (1 ) To the person named in the foreign letters as the duly appointed, legal representative in the foreign jurisdiction of the testator's es- tate; or (2) to the person otherwise entitled to the possession of the personal property of the decedent.'* If two or inore persons are named in the foreign letters, the ancillary letters of administration c. t. a. may be directed to either or any of them, without naming the others, if the others fail to qualify, or if, for good cause shown to the surrogate's satisfaction, the decree so directs.'^ No other per- son can be granted ancillary letters of administration c. t. a. unless at the time he applies for them he files with his petition an instru- ment executed by such foreign legal representative or person other- wise entitled, or, if there are two or more, by all who have qualified and are acting, authorizing the petitioner to receive such ancillary letters.'* If such an instrument is so filed, the surrogate must issuiB ancillary letters of administration directed to the petitioner, if he is a fit and competent person." If two or more persons are named in such instrument, the ancillary letters may be directed to either or any of them without naming the others, if the others fail to quali- fy, or if, for good cause shown to the surrogate's satisfaction, the decree so directs." The instrument authorizing the petitioner to receive the ancillary letters must be acknowledged or proved, and duly certified." Statutory authorization for the issuance of ancil- lary letters of administration with the will annexed is given when a will of personal property made by a person who resided without the state at the time either of its execution or his death has been pro- bated or established in the foreign country where he resided or it was executed, or has been probated in the state or territory of the United States where he resided or it was executed.^" The statutory right to issue ancillary letters to a person not named in the foreign letters but otherwise entitled to possession of the decedent's personal estate, or to such person's delegate or nominee, was intended to meet cases i« Est. of Prevost, N. T. L. J. Mch; aff'd 183 N. T. 55, 75 N. E. 1096 15, 1915 (N. Y. Surr.), C. C. P. § (1905), reargument denied 184 N. Y„ 2631. 523, 71 N. E. 1088. " C. C. P. § 2631. " C. C. P. § 2631. i«C. C. P.t§ 2631. "Id. « C. C. P. § 2631 ; Baldwin v. Riee, " Id. 44 Misc. 64, 89 Supp. 738 (1904) ; «" C. C. P. § 2629. 176 §§ 155, 156 ADMINISTRATORS in which no letters testamentary or of administration c. t. a. are issued but the right of possession to the personal estate of the dece- dent passes directly to the legatees or beneficiaries under the will.^ An administrator c. t. a. appointed in another state in which the will of his testator — ^who was executor and sole legatee under a cer- tain will probated in Ireland — was probated, is not entitled to ancil- lary letters here on the Irish will.* § 155. Id.: Successor Administrator. — A successor to an adminis- trator may be appointed when (1) the administrator dies or his let- ter's are revoked and when (2) the administration of the estate is not ended and when (3) the deceased administrator was the sole administrator of the estate.* The surrogate has the same power to appoint a successor to a sole, deceased administrator, or sole admin- istrator whose letters have been revoked, as if letters had never been issued.* When the letters of one of two or more administrators or executors are revoked, or such an one dies, there should be no ap- pointment of a successor to the one whose letters are thus revoked or who dies except when necessary in order to comply with the ex- press terms of a will.' § 156. Id.: Temporary Administrator. — When teinporary admin- istration is proper there is no definite rule as to who shall be ap- pointed, but each case must be decided on its own facts.* In issuing letters of temporary administration to one or more persons qualified and competent to serve as executors, under the statute, the surro- gate is not limited to those who possess the qualifications and are entitled to act as general administrators, e. g., relatives and cred- itors, but may grant the letters to whoever is qualified to act as exec- utor.' Ordinarily it is proper to name as temporary administrator a person appointed executor in the contested will, in order to save expense; but when the widow is named executor, has a substantial interest under the will and also under an alleged later will, and contests a trust company may be appointed temporary administra- tor.' Although mere geiieral allegations or charges of fraud and undue influence against an executor named in a will will not bar him from acting as temporary administrator, yet a stranger will be 1 Matter of McShane, 73 Mise. 146 * Matter of Lowen, N. Y. L. J. (1911), or 132 Supp. 470, old Code Apr. 23, 1915 (Bronx Surr.), C. C. § 2697, new Code § 2631. P. § 2596. 2 Id 'Matter of Plateh, 56 Hnn, 223 8 C C. P. § 2563. (1890), or 9 Supp. 251; old Code § 4 Id. 2668, new Code § 2596. 5 Matter of McDonald, 211 N. Y. * Matter of Lowen, N. Y. L. J. Apr. 272, 105 N. E. 407 (1914) ; C. C. P. 23, 1915 (Bronx Surr.), C. C. P. § § 2563. 2596. N. Y. E. & S.— 12. 177 NEW YORK ESTATES AND SURROGATES § 156 appointed to act with him.^ The fact that a person named execu- tor in a will gets no commissions as temporary administrator, if appointed such, is good ground, other things being equal, for his selection as temporary administrator.^" One interested in an estate in which there are conflicting interests should not be appointed tem- porary administrator.-'^ The person named executor of an estate is not barred from receiving letters of temporary administration be- cause charged with unduly influencing the execution of the will when the estate is of great magnitude and complicated; so that it is highly improbable that anyone not having an intimate knowl- edge of it could successfully administer it and save it from serious impairment ; the temporary administrator is willing and able to act as executor; the allegations of undue influence by him are general, remotely inferential or conjectural and wholly denied, and a person named as co-executor is appointed as joint temporary administrator who is familiar with a large part of the estate.^^ Temporary admin- istration can be granted in cases of death, i. e., viz., when the person whose estate is to be administered is known to have died, only if de- lay necessarily occurs for sorne cause in the grant of letters or the probate of a will : there is no such thing as the appointment of a tem- porary administrator when there is an executor or administrator whose right to letters appears and who asserts such right, nor doe? the pendency of an appeal from the decree which recognizes such right afford any reason for delay in granting general letters. ^^ A surrogate cannot issue letters of temporary administration unless some proceeding is pending in his — as distinguished from some other surrogate's — court for probate of a will or grant of letters of administration in chief." When over one third of the personalty of an estate consists of unendorsed and unsecured promissory notes, there is warrant for the appointment of a temporary administrator who can collect such notes and properly invest the collections, pend- ing a delay in probate or issue of letters, due to a contest.^* A tem- porary administrator may be appointed, on the ground of necessary delay in the probate of a will, after the entry of an order on the re- mittitur of the court of appeals on its reversal of the order of the 9 Est. of Hamilton, N. Y. L. J. ^^ Matter of Judson, 92 Mi;3c. 136. July 14, 1915 (N. Y. Surr.). , 156 Supp. 270 (1915). "Matter.of Ashmore„48Mise. 312 " Matter of Hill, 43 Mise. 583, Si) (1905), or 96 Supp. ,772. Supp. 552 (1904), old Code § 2670, " Matter of Eddy, 10 Misc. 211, 31 new Code § 2596. Supp. 423 (1894). i^ Matter of Eddy, 10 Misc. 211, 31 18 Matter of Hilton, 29 Misc. 532 Supp. 423 (1894), old Code § 2070, (1899), or 61 Supp. 1073. new Code § 2596. 178 § 157 ADMINISTRATORS appellate division and the decree of the surrogate admitting a will to probate. ^° § 157. Id.: Public Administrator. — The method of appointment and preferences of public administrators is treated in the note" under separate headings for the various counties of the state. ^* Matter of Hopkins, 95 A. D. As public administrator of and for, 57 (1904),or 87 Supp. 793; old Code Erie County, the surrogate of Eric § 2670, new Code § 2596— ordering county was required, by chapter jury trial. 443, L. 1914 (in effect Sept. 1st, ^'"'Public Administrators" Law, § 1914), being also § 2595 of the Code 2 and 15 (L. 1898, c. 230, § 1). of Civil Procedure, to appoint witliin (a) New York County: — The pub- ten (10) days after the passage of lie administrator of New York coun- such chapter, a suitable person. Tlie ty is a person appointed (and remov- public administrator so appointed able) by the surrogate of such took office immediately, ami lie is to c>. anty. He is assisted by an assist- hold office for the term of live (5) ant public administrator appointed years from the first day of .January, (and removable) by the public ad- 1915, unless sooner removed for ministrator. (L. 1898, c. 230, § 2.) cause. In case a vacancy or vacan- (b) Kings Co.: — As public ad- cies occurred in the office before ministrator of King's county a suit- January 1st, 1915, by reason of the able person must be appointed by the death, resignation or otherwise, the surrogate of King's county to hold surrogate of Erie county was to fill office for the term of five (5) years the vacancy by appointment and unless sooner removed for cause. The qualification. He holds office for the first appointment was made on or be- term of five (5) years from the first fore the 19th day of October, 1911, day of January succeeding his ap- and a new appointment must be made pointment unless sooner removed for every five years thereafter unless a cause. vacancy occurs in the office before the (e) Bronx Co.: — "Bronx County expiration of the five years, whether Law," § 3 (L. 1898, c. 548). The sur- by reason of death, resignation or rogate of the County of Bronx must otherwise. In case of such a vacancy appoint a public administrator, L. in such office the surrogate shall fill 1912, c. 548, § 3. it by appointing a suitable person as (f) In Other Counties :^-Whevem public administrator for the full term the office of county treasurer is abol- of five (5) years from the date of ished and no provision is specifically such appointment and the qualifica- made by statute for the appointment tion of the appointee. (C. C. P. § of a public administrator the county 2594.) judge, surrogate and sheriff within (c) Richmond Co.: — "Public Ad- ten days from the passage of ch. 501, ministrators" Law, § 1 (L. 1899, c. L. 1900, were required to appoint a 486, § 1), amended L. 1910, c. 412, public administrator to take office im- § 3. By c. 486, L. 1899, the surro- mediately and hold it for five years gate, within twenty days after the act from Jan. 1, succeeding appointment, took effect, was required to appoint a unless sooner removed for cause. The person as public administrator in and appointment must be made in writ- for the County of Richmond, to hold ing, signed by the county judge and office for five years unless sooner re- filed in the office of the clerk of the moved for cause. county. See § 3, same law also. (d) Erie Co..— C. C. P. § 2595. 179 NEW YORK ESTATES AND SURROGATES § laS § 158. Appointment and Letters: Petition, Administrator in Chief. — The general requirements of a petition in any ptoceeding in a surrogate's court have been fully discussed elsewhere.^^ Only the questions of who may make petitions for grant of various kinds of administration and the contents of such petitions will be here treated. The rules of various surrogate's courts prohibit a petition, for administration if a prior proceeding therefor is pending:*® The persons who may petition a surrogate's court for ,a decree awarding letters of administration in chief are (a) a creditor of the intestate; (b) a person interested in. the estate of the intestate; (c) a person interested in an action brought in which the intestate, if living, would be a proper party; and (d) a person interested in an action about to be brought in which the intestate, if living, would be a proper party. ^'' The public administrator may apply for ad- ministration even when there are persons willing, competent and qualified to take out letters; ' and if no application is made by such persons withiii a reasonable time, the public administrator should make it.* A person interested in an esta,te includes every person entitled either absolutely or contingently to share in the estate, or the proceeds thereof, whether as husband, wife, next of kin, assignee, grantee, or otherwise ; except as a creditor.* A creditor includes any person having a claim for funeral or administration expenses or a claiiii pr demand upon which a judgment for a sum of money or directing the payment of money could be recovered in an action.^ A non-resident, alien assignee of all the interest of a riext of kin of a resident decedent cannot petition to have the public adrainistrator appointed administrator of the decedent's estate because he could not himself obtain letters.* A petition for the appointment of an administrator in chief inust show the facts which bring the case within the jurisdiction of the surrogate to entertain the petition.* When administration in chief is sought it must be clearly alleged that the decedent died intestate, i. e., that he left no will.' An allegation by petitioning next of kin that decedent died "without leaving any valid last will and testament to my knowledge, information, or belief" suffices to give the court jurisdiction to inquire what the:fact ds, as death without leaving a valid will is equivalent to death intestate.' A general allegation that " See § 787, infra. * C. C. P. § 2768. " See e. g., these Rules: N. Y. 21; * Matter of Flynn, 92 A. D. 379. King's 8; Bronx, 17; Queens, ll. 87 Supp. 18 (1904). 20 C. C. P. § 2589. « See C. C. P. §§ 2588 et seq. 1 Matter of Page, 107 N. Y. 266, 14 '' C. C. P. § 2589. N. E. 193 (1887). « Matter of Cameron, 47 A. D. 120, 2 Matter of Page, supra. or 62 Supp. 187; aff'd 166 N. Y. 610, 8C. C. P. § 2678. 59 N. E. 1120 (1900). 180 § 159 ADMINISTRATORS the intestate "died possessed of certain personal property in the state of New York," etc., without stating its particular situs, though defec- tive, cannot be collaterally attacked when, before letters were issued, further facts were alleged by affidavit of petitioner showing the existence of assets in the surrogate's county, as thereby the record showed facts justifying the exercise of jurisdiction by the surrogate,' A petition for letters of administration must allege that the petition- er is entitled to an interest of the necessary kind, viz., a title to share either absolutely or contingently in the estate or its proceeds as husband, wife, next of kin, assignee, grantee or otherwise, except as a creditor.*' A public administrator or other qualified person cannot be appointed on the petition of one not interested so as him- self to be entitled.'* A petition purporting to be verified in one county while the venue of the affidavit of verification is laid in an- other county is an unverified petition ; but the venue is prima facie the place where it is taken and suffices to give the surrogate jurisdic- tion.*^ The petition must state who the persons are of whom the court must have information, or who must be cited.*' The prayer of the petition must be for a decree awarding letters of administration either to the petitioner or another person.** The rules of your surrogate's court may require an affidavit of the value of the estate to be filed with a petition for administration.** § 159. Id.: Administrator C. T. A. — ^Application for the issuance of letters of administration with the will annexed may be made (1) by a creditor of the decedent; (2) by a person interested in the estate of the decedent; (3) by a person having a lien upon any real property upon which the estate of the decedent has a lien.** A half- sister and next of kin of a decedent may petition for appointment as administrator c. t. a. when the grounds alleged for the petition are (1) that she has commenced an action in the supreme court to pet aside the will as a forgery and (2) that there is no executor or administrator to join as defendant in such action ; because she is a person interested as one having an interest dependent on such pos- sible relation to the estate as may accrue to the decedent's next of kin if the established will should fail.*'' A person interested in an SQ'Conner v. Huggins, 113 N. Y. R. R. Co. 101 A. D. 246 (1905), or 511, 21 N. E. 184 (1889). 91 Supp. 746. *" Matter of O'Leary, N. Y. L. J. " See C. C. P. § 2588 et seq. ; and Dec. 14, 1914 (Bronx Surr.), C. C, § 1^6, infra, giving the persons who P. §§ 2589 and 2768; Matter of Mo- "^•^^^''^'''0*^8 o-on Uno, N. Y. L. J. 6 Dec. 16, 1914 :a L'^e.^g. K 14, Chautauqua. (Bronx Surr.) *« C C P § '^603 ** Matter of Molino, N. Y. L. J. i7 Matter of B"'rown, 60 Misc. 628, Dec. 16, 1914 (Bronx Surr.). 113 Supp. 937 (1908)— old Code § *8 Shaw V. N. Y. Central & H. R. 2643, new Code § 2603. 181 NEW YORK ESTaT.es A.ND SURROGATES §§ 160, 161 estate includes every person entitled either absolutely or contingent- ly to share in the estate, or the proceeds thereof, whether as hus- band, wife, legatee, next of kin, devisee, assignee, grantee, or other- wise; except as a creditor." A creditor includes any person having a claim for funeral or administration expenses, or a claim or de- mand upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action.^® A surrogate can only issue letters of administration with the will annexed when the fact is, and so appears from the petition, either that no person is named as executor in a will offered for probate ; or that no person has been selected as executor of the will by virtue of a power so to do therein contained ; or that there is no executor or administrator qualified to act when the petition is presented.^ An allegation in a verified petition for the appointment of an adminis- trator c. t. a. that the executors have died leaving certain estate assets unadministered is sufficient to confer jurisdiction to issue letters of administration c. t. a., as prima facie evidence of such facts is all that is needed." A petition for letters of administration c. t. a. must show what relationship the applicant for letters sustains to the decedent's estate as, if he is a stranger, he cannot be appointed without citation or renunciation of all legatees, devisees, next of kin, heirs and creditors.' The petition should give the names of all creditors of the testator and persons inlerSsted in the estate; so that the surrogate may give them such notice as he deenas proper.* The notice to be given on application for administration c. t. a. is such only as the surrogate deems proper,^ § 160. Id.: Administrator D. B. N. — A surrogate cannot grant letters of administrator d. b. n. on the petition of a non-resident alien either for himself or another.^ Such letters can only be grant- ed when the fact is and the petition alleges that all the administra- tors to whom letters have been issued have died or become incapable, or the letters have been revoked as to all of them.'' § 161. Id.: Limited Administrator. — The persons who may peti- tion a surrogate's court for a decree awarding limited letters of ad- ministration are the same persons as niay apply for an award of let^ ters of administration in chief.* So, a son of a decedent whose widow has renounced her prior right to letters may apply for let- " C. C. P. § 2678. * C. C. P. § 2603. 19 C. C. P. § 2768. ' Id. 1 C. C. P. § 2603. 8 Matter of Ferrigan, 92 A. D. 376 ^Pumpelly v. Tinkham, 23 Barb. (1904), or 87 Supp. 16; old Code 321 (1857). §§ 2661, 2662, new Code § 2606. » Matter of Sheldon, 118 A. D. 488, ' C. C. P. § 2606. 103 Supp. 518 (1907), old Code §§ « C. C. P. §§ 2589, 2592 and 2559. 2643 and 2644, new Code §§ 2603. 182 § 162 ADMINISTEATORS ters.' The surrogate can only grant limited administration when the fact is (and the petition should so allege) either that a right of action is granted by special provision of law to the person who may be appointed administrator of the decedent's estate, or that a cause of action exists in behalf of the decedent.^" Furthermore, the peti- tion should show that it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered in addition to the existing personal estate of the decedent.^* For example, a statement that decedent was plaintiff in an action to recover posses- sion of real estate and damages for withholding its possession is ground for asking leave to revive and prosecute it.^^ The purpose of the statement in the petition relative to the impracticability of giving a sufficient bond is to enable the surrogate either to dispense with the bond or to fix its penalty at such sum as he deems suffi- cient.^* The same rule applies, as to the statement of persons re- quired to be cited or concerning whom the court must have infor- mation, as though the application were for administration in chief. § 162. Id.: Temporary Administrator. — ^A person interested in the estate or a creditor of the decedent or the county treasurer of the county where the person whose estate is in question last resided, or, if not a resident, of the county where any of his property, real or personal, is situated, may apply for temporary administration,'* unless an application for letters of administration is pending, pur- suant to notice of intention to make such application — ^in which event no temporary administrator can be appointed except on the petition of the decedent's next of kin." A person interested in an estate includes every person entitled to share either absolutely or contingently in the estate, or the proceeds thereof, whether as hus- band, wife, next of kin, assignee, grantee, or otherwise; except as a creditor.'® A creditor includes any person having a claim for funeral or administration expenses, or a claim or demand upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action." A petition for appoint- ment of a temporary administrator may be made by the special guardian of the infant who is the sole heir of the decedent." The surrogate may appoint a temporary administrator although no petition for such appointment is made if a proceeding either for grant of letters of administration or for probate of a will is pending 9 Matter of Belotti, 87 Mise. 81 '* C. C. P. § 2592. (1914), or 150 Supp. 421; new Code " C. C. P. § 2596. §§ 2559, 2592. « C. C. P. § 2591. " C. C. P. § 2592. '* C. C. P. § 2678. " Id. " C. C. P. § 2768. i« Matter of Belotti, 87 Misc. 81. "Matter of Chase, 3i Hun, 318 150 Supp. 421 (1914). (1884). 183 NEW YORK ESTATES AND SUBROGATES § 163 in his court and there is necessary delay in the grant or probate.^* Otherwise than this, however, temporary administration, whether needed because a person is dead, missing or disappeared,, can only be had on petition. A petition, for temporary administration be- cause of death is only necessary, however, when there is necessary delay in beginning a proceeding to probate a will or secure letters of administration ; ^^ because if a proceeding to probate or secure administration is pending, and temporary administration is neces- sary, the surrogate can in the pending proceeding give the desired relief by order.^ The petition must show that no proceeding is pending for pro- bate of a decedent's will or grant of administration on his estate; and that necessary delay is occurring in grant of letters testamen- tary, or of administration; and what causes such delay.^ Or if temporary administration is sought on the estate of a missing or disappeared person, the facts showing that he is missing or dis- appeared must be alleged in the petition.^ If no proceeding is pend- ing, the same persons must be named as entitled to be cited as would be entitled to letters of administration in a case where no will is known to exist ; and if a will has been filed, it is proper to name the executor, executors, trustee, or trustees,' if any, and the legatees and devisees, so that the surrogate may direct them to be cited, if he •wishes.* If the application is for appointment as administrator of the estate of a missing or disappeared person, the names of such persons must be given, as entitled to notice or citation, as would be entitled to it on application for administration in case of intestacy.^ § 163. Id.: Ancillary Administrator. — ^A petition for ancillary letters of administration may be made only either by the party en- titled to the ancillary letters or his duly authorized attorney-in- fact; ^ unless another person applies therefor and files with his petition an instrument executed by all competent, qualified and act- ing persons entitled to the ancillary letters, authorizing the petition- er to receive such letters.'' A New York surrogate can only issue ancillary letters of administration when the fact is, and the petition for the letters so states, that the decedent at the death resided either outside the state and within the United States, or outside the United States; except under certain peculiar circumstances.* The petition must also state the amount of security given by the administrator on his original appointment.^ If the decedent died outside New 19 C. C. p. § 2596 & 2602. Bid. 2»Id. 8 C. C. P. § 2630. m. ' C. C. P. § 2631. 2 C. C. P. § 2596. » C. C. P. § 2630. 'Id. 9 C. C. P. § 2632. * C. C. P. § 2596. 184 § 163 ADMINISTRATORS York state but inside the United States, the petition must be accom- panied by an authenticated copy of the foreign letters of adminis- tration." If the decedent resided at death outside the United States, the petition must be accompanied by proof satisfactory to the surrogate's court that the person applying for letters (personally or by attorney-in-fact) is entitled to the possession in the foreign country of the personal estate of the decedent." The peculiar cir- cumstances under which ancillary letters of administration will not issue although decedent at death resided either outside the state, or the United States, are that original letters testamentary have been previously issued or the application therefor has not been finally disposed of ; or that ancillary letters upon foreign probate have been previously issued, or the application therefor has not been finally disposed of; or that original letters of administration upon the es- tate have been previously issued to a person entitled to them who is legally competent to act, or the application therefor has not been finally disposed of.^* The petition must set forth the name and residence of each creditor, or person claiming to be a creditor, re- siding in New York state; and the amount, so far as it can be ascertained, of the claim of each such creditor or person claiming to be one.^* The prayer of a petition for ancillary letters of administration should be that the letters issue to the petitioner. The authentication of the letters of administration granted in any state other than New York, or in any territory of the United States must be (1) by the seal of the court or officer by which or whom such letters were granted or which or who has the custody of such letters or of the record thereof, and (2) by the signature of a judge of such court or the signature of such officer, and by the sig- nature of the clerk of such court or officer, if any: and further (3) by a certificate under the great or principal seal of such state or ter- ritory and the signature of the officer who has the custody of such seal to the effect (a) that the court or officer by which or whom such letters were granted was duly authorized by the laws of such state or territory to grant letters of administration and to keep such let- ters and records thereof; (b) that the seal of such court or officer affixed to such copy is genuine; (c) that the officer making such certificate under seal of such state or territory verily believes that each of the signatures attesting such copy is genuine." Every peti- tion for ancillary letters of administration must set forth the name lo C. C. P. §§ 2630 & 2632; Bald- i« C, C. P. § 2630. win V. Rice, 183 N. T. 55, 76 N. E. " C. C. P. § 2632. 1096 (1905), old Code § 2697, in new " C. C. P. § 2630 & 2632 and § 45 Code § 2630. Deced. Est. L. " C. C. P. §§ 2630 & 2632, 185 NEW YORK ESTATES AND. SURROGATES § 164 of the state comptroller as a person to be cited and a true and correct statement of all the decedent's property in this state and the value thereof, and upon the presentation thereof the surrogate must issue a citation directed to the state comptroller ; and upon the return of the citation the surrogate must determine the amount of the trans- fer tax, and his decree awarding letters may contain any provision for the payment of such tax or the giving of security therefor which might be made if the state comptroller were a creditor of the dece- dent.'* § 164. Id.: Ancillary Administrator C. T. A. — ^A petition for ancil- lary administration with the will annexed may be made (a) by the person, persons or any one or more of the persons named in the foreign letters as the duly appointed representative or representa- tives in the foreign jurisdiction of the testator's personal estate; (b) by the person, persons or one or more of the persons otherwise en- titled to the possession of the personal property of the testator ; and (c) by any fit and competent person, or one or more of several fit and competent persons, who files or file with his or their petition for the letters an instrument, acknowledged or proved and duly certified, executed by the foreign representative or person otherwise entitled to possession of testator's personal property, or, if there are two or more such, by all who qualified or are acting, authorizing the petitioner to receive such ancillary letters.'^ A petition for ancillary letters of administration with the will annexed may be made, probably, only either by the party entitled to the ancillary letters, or his duly authorized attorney-in-fact; ''' unless another person applies therefor and files with his petition an instrument executed by all competent, qualified and acting persons entitled to the ancillary letters, authorizing the petitioner to receive such letters. *' A petition for ancillary letters of administration c. t. a. must con- form in general to the standard petition in any surrogate's court proceeding. '* It must, in particular: (1) show that a will of per- sonal property has been admitted to probate or established in a for- eign country or has been admitted to probate in a state or territory of the United States other than New York; "" (2) show that such will was made by a person who at the time either of its execution or of his death resided in such foreign country, or other state, or terri- tory ; * (3) be accompanied by a copy of the will and of the foreign letters, if any have been issued ; ^ authenticated as prescribed by i« Tax Law, § 228. " See § 787, infra. i« C. C. P. §§ 2631-2. 2" C. C. P. § 2629. " C. C. P. § 2632; and by analogy, ' C. C. P. § 2629. § 2630. 2 C. C. P. § 2629, " C. C. P. § 2631. 186 S 104 AUiUixNiSlKATUKIS law ; ^ (4) state tlie person to whom the letters are to be issued, i. e., (a) if the will especially appoints one or more persons as the execu- tor or executors thereof with respect to personal property situated within this state, that such person or persons cannot receive ancil- lary letters testamentary for some good and legal reason;* (b) if the will makes no such appointment or those appointed are incom- petent, and someone is named in the foreign letters or is othen\'ise entitled under the foreign laws to possession of the decedent's per- sonal property, that the last-mentioned person cannot receive ancil- lary letters-testamentary or of administration with the will annexed for some good and legal reason ; ' (c) if a person not of classes "(a)" and "(b)" is the petitioner and files with his petition an instrument, executed by the foreign executor or person otherwise entitled, or by all those who have qualified and are acting if there are two or more, acknowledged or proved, and duly certified, au- thorizing the petitioner to receive such ancillary letters of adminis- tration c. t. a., that the petitioner should be granted the ancillary letters; ^ (5) set forth the amount of security given on the original ' appointment;' (6) set forth the (a) name, (b) residence and (c) amount of claim, so far as it may be ascertained, of each creditor of the decedent residing within the state; ' (7) set forth the (a) name, (b) residence and (c) amount of claim, so far as it may be ascer- tained, of each person claiming to be creditor residing within the state.® A surrogate cannot issue ancillary letters of administra- tion upon a will admitted in a foreign state unless the petition is accompanied by a copy of the will and of the foreign letters, if any have been issued.^" The authentication of the copy of the will and the foreign let- ters, if any, accompanying a petition for ancillary letters of admin- istration c. t. a. must be made as follows : The copy of the will admitted to probate or established, and the . foreign letters granted in a foreign country must: (1) be authen- ticated in the manner prescribed by the laws of such foreign coun- try, and (2) be further authenticated by a certificate of a judge of a court of record, or by the chief officer of the department of justice of such foreign country, to the effect that such authentication is in conformity with the laws of such foreign country and that the court by which or the officer by whom such will was so admitted to pro- bate or such letters were granted was duly authorized by the laws of »C. C. P. § 2629; Deced. Est. L. « C. C. P. § 2632. § 45; See below. » C. C. P. § 2632. * C. C. P. § 2631. " Baldwin v. Rice, 183 N. Y. 55, 75 *C. C. P. § 2631. N. E. 1096 (1905), old Code § 2695, 6C. C. P. § 2631. new Code § 2629. ■^ C. C. P. § 2632. 187 NEW YORK ESTATES AND SURROGATES §§ 165, 166 such foreign country to admit wills to probate or to grant letters of administration and to keep such wills and letters and records there- of ; and (3) the signature of such judge or court of record or chief officer of the department of justice must be attested by a consular officer of the United States, resident in such foreign country, under the seal of his office.^* The copy of the will admitted to probate, and the letters granted, in any state other than New York or in any territory of the United States must: (1) be authenticated by the seal of the court or officer by which or whom such will was admitted to probate or such letters were granted, or which or who has the custody of such will and letters or of the record thereof, and (2) the signature of a judge of such court or the signature of such officer, and (3) the signature of the clerk of such court or officer, if any; and (4) be further authen- ticated by a certificate under the great or principal seal of such state or territory and (5) the signature' of the officer who has the custody of such seal to the effect that (a) the court by which or the officer by whom such will was admitted to probate or such letters were granted was duly authorized by the laws of such state or territory to admit wills to probate or to grant letters testamentary or of ad- ministration and to keep such wills and letters and records thereof ; (b) the seal of such court or officer affixed to such copy is genuine ; (c) the officer making such certificate under seal of such state or territory verily believes that each of the signatures attesting such copy is genuine.^^ § 165. Id.: Successor Administrator. — ^When letters are revoked, letters to a successor can only be granted as if the former letters had not issued, i. e., on a petition showing the applicant's rights to let- ters and citing others having equal rights.''' When all the admin- istrators to whom letters have been issued die or become incapable, or the letters are revoked as to all of them, the surrogate must grant letters d. b. n. to one or more persons as their successors in like man- ner as if the former letters had not been issued, and the proceedings to procure the grant of such letters are the same as upon an original application (except as to security).^* § 166. Appointment and Letters: Citation, Administrator in Chief. — ^A citation. on an application for letters of administration in chief will only be issued by the surrogate : (1) after the application has been duly made; (2) when the petitioner has shown to the sat- isfaction of the surrogate that the decedent l§ft no will; (3) when " C. C. P. § 2639; Deeed. Est. L. " Belden v. Belden, 118 A. D. 296, § 45. 103 Supp. 346 (1907), old Code §§ i^C. C. P. § 2629; Deced. Est. L. 2662, 2663, 2693, new Code § 2606. § 45. " C. C. P. § 2606. 188 i 166 ADMINISTRATORS .he petitioner has shown to the satisfaction of, the surrogate that all he jurisdictional facts exist; and (4) when a citation is necessary.^^ Upon a petition for letters of adminigiration in chief, a citation 'if issued) must issue: (1) To every person who has a right to ad- ninistration prior or equal to that of the petitioner ; provided such jerson (a) is a resident of the state; (b) is competent; and (c) has lot renounced his right to letters of administration; and (2) to all nfants and adjudged incompetents if they are residents of the state md entitled to share in the distribution of the estate, unless the peti- ioner is entitled to share in such distribution when such in- fants and incompetents need not be cited. ^^ In other words, if ,he petitioner is not entitled to share in the distribution of the estate, iuch infants and incompetents must be cited. In addition, the cita- iion may, in the surrogate's discretion, issue: (1) to persons who lave a right to administration prior or equal to that of the petition- er, although such persons (a) are nonresidents of the state, or (b) lave renounced their right to administration ; and (2) to any or all )ther persons interested in the estate." The persons entitled to jriority in the grant of administration are elsewhere considered." The husband of a deceased sister of a decedent may be appointed administrator without citing anyone, when he died without child, ■ather or brother; and his widow, though she survived him, died aefore any proceedings for the appointment of an administrator 3. t. a. d. b. n. of his estate were begun, because it is shown that ;here is none entitled to letters in priority to such sister.^' An ap- pointment as administrator of one legally competent is not irregu- lar or invalid because a corporate, sole creditor was not cited, as such i creditor need not be cited.^" The rules of various surrogate's jourts prescribe that notice must be given to the consul of the coun- ;ry of a deceased, intestate foreigner, of any application for admin- stration on his estate.^ The general contents of a citation in any proceeding in a surro- gate's court have been set forth elsewhere.^ The only item in a jitation on petition for letters of administration in chief which aeeds to be particularly referred to is the statement of the object " C. C. P. §§ 2590, 2589. » Cobb v. Beaxdsley, 37 Barb. 192 " C. C. P. § 2590. (1862). " Id. *" Matter of Giotto, 105 A. D. 143, " See § 149, supra; and C. C. P. § 93 Supp. 973 (1905), old Code §§ 5588. The public administrator and 2660 and 2663, new Code § 2590. iounty treasurer and petitioner are ^ See e. g. tbese Rules : N. T. 12 ; lot now subordinated to creditors, to Kings 7; Bronx, 5; Queens, 12; jyhom, therefore, citation need not is- Chautauqua, 3. lue, even though there be no next of ' See § f 99, infra, rin. 189 NEW YORK ESTATES AND SURROGATES §§ 16T-1VS of the proceeding — in regard to which the persons cited are re- quired to show cause. The citation should particularly state that the persons to whom it is addressed are by it required to show cause why a decree should not be made awarding letters of administration of the estate of the decedent named in the citation to the person seeking them. § 167. Id. : Administrator C. T. A. — Upon an application for let- ters of administration with the will annexed, the citation (if issued) must issue to every person who has a right to administration with the will annexed prior to the right of the person applying for let- ters ; unless a renunciation, acknowledged or proved, and duly cer- tified, by every person having such prior right is filed in the surro- gate's court.* In addition, citation may issue to a person equally entitled with the applicant, in the surrogate's discretion.* The surrogate may require such notice to creditors and persons interested m the estate, other than the applicant for issue of letters c. t. a., as he deems proper.' The provisions of the statute as to who has pref- erence in the appointment of an administrator in chief apply to an application for letters of administration with the will annexed ex- cept as to the right of priority specifically prescribed by statute in the cases of administrators c. t. a.' The persons required to be cited by reason of their prior right to letter^ of administration c. t. a. are tabulated above.'' The form and contents of the citation and the proceeding after issue of citation, on an application for grant of letters of administration with the will annexed, are the same as upon an application, for administration, upon the estate of an in- testate.' , , , § 168. Id.: Administrator D. B. N. — Letters of adnainistration de bonis non are granted in like manner as if the former letters had not been issued ; and the proceedings, as to citation, to procure the grant of such letters, are the same asupoii an original applica- tion,* § 169. Id. : Limited Administrator. — A citation on an application for limited letters of administration must issue under the sarhe cir- cumstanees that a citation on petition for letters of administration in chief must issue.*" Upon an application for limited letters of administration a citation (if issued) must issue to the same persons who would be entitled under like circumstances to notice on application for administration in chief." ;The con- s 0. C. P. § 2604. « C. C. P. § 2604. *M. 9 C. C. P. § 2606. * C. C. P. § 2603. !» C. C. P. §§ 2589-90. «C. C. P. §§ 2603 and 2588 " C. C. P. § 2590. '' See 150, supra* c 190 § 170 ADMINISTEATORS tents of a citation in general have been fully recited else- where.'^ The only respect in which the contents of a citation on an application for limited letters might differ from the standard form of citation is the statement of the object of the proceeding— in regard to which the persons cited are required to show cause why such object, viz., the grant of limited letters, should not be attained. There is, however, no statutory requirement that the citation in the proceeding under discussion should state that only limited admin- istration is sought.** § 170. Id.: Temporary Administrator. — Unless the surrogate ap- points a temporary administrator, when no petition for such ap- pointment is made, on the ground of delay in a proceeding pending before him either for grant of administration in chief or for pro- bate of a will, notice of the application for temporary administra- tion must be given: — (1) If the application is because of delay in grant of administration in chief or probate of a will, to each party to the delayed proceeding who has appeared; (2) if no proceeding for administration in chief or probate of a will is pending, to the persons entitled to letters of administration in a case in which no will is known to exist; (3) if a will hai? been filed, to the executors and trustees, if any, and such legatees and devisees as the surrogate may direct to be cited; (4) if the temporary administration is sought of the estate of a disappeared or missing person, to the per- sons entitled to letters of administration in a case in which no will is known to exist.** Wheii a will has been filed with a petition for its probate and citation thereon has been duly issued, temporary administration will be granted the person named as executor in the will and the widow, on their petition therefor, although no notice of the application has been given the heirs and next of kin of the decedent: if the executor (the only person entitled to notice as hav- ing appeared in the proceeding for probate of the will) was present in court when the application for temporary administration was made, and consented to act.*° A surrogate has discretion to appoint a temporary administrator, before application is made for administration in chief or probate of a will, without notice to anyone, as 'notice is only required to those who have appeared.*® If temporary administration is sought because of delay in the grant of administration in chief or probate, ten days' notice of the application must be given, unless the surrogate is satisfied by proof ^ See § 799, infra. (1905), or 96 Supp. 772; old Code § 13 p p p 8 QKon 2670, new Code § 2596. ,* ^' ^' T, o „/„^" i«Matter of Chittenden, 76 Misc. C. C. P. § 2596. 92^ 136 Supp. 953 (1912), old Code *5 Matter of Ashmore, 48 Misc. 312 § 2670, in new C#de § 2596. 191 NEW YORK ESTATES AND SURROGATES §§ 171, 172 that the safety of the estate requires the notice to be shortened, when he may shorten the time of service to not less than two days." In all other cases in which notice is required, the usual time for service of a citation applies.^' § 171. Id.: Ancillary Administrator. — ^Upon an application for ancillary letters of administration, citation issues after the petition therefor has been made to the surrogate setting forth the requisite matters (which have been stated above ).^^ Upon an application for ancillary letters of administration a ci- tation (if issued) must issue: (1) To the state comptroller; (2) To each creditor residing within the state; (3) To each person claiming to be a creditor residing within the state.^" In addition, the citation may issue generally to all creditors or persons claim- ing to be creditors whether residing within the state or not.^ The statutory provisions relative to ancillary letters are intended for the protection of the interests of local creditors and not of next of kin of the decedent; and no notice of application therefor need be given the latter.* If ancillary letters are sought without security, citation to possible creditors must be pubhshed.* The contents of a citation on a petition for ancillary letters of administration are the same as the contents of a citation in gen- eral, which have been fully stated, elsewhere.* The only part of the citation which needs especial mention is the statement of the object of the proceeding — in regard to which the parties cited are required to show cause. The citation should particularly set forth that those to whom it is addressed are by it required to show cause why ancillary letters of administration on the estate of the decedent named in the citation should not by decree be awarded to those seeking them. § 172. Id.: Ancillary Administrator C. T. A. — ^A citation must is- sue, on presentation of a due petition for ancillary letters of admin- istration with the will annexed, to the state comptroller and to the persons named in the petition as creditors of the decedent, resident in the state.° It may also issue generally to all creditors of the decedent or persons claiming to be such.* Its contents are in gen- eral those of a standard citation in any proceeding in a surrogate's "C. C. P. § 2596. 2695 et seq.; new Code § 2629 et " C. C. P. I 2596. seq.; Deeed. Est. L. § 45. 19 C. C. P. § 2632; See § 163, su- ^ Est. of Hanlon, N. Y. L. J. Apr. pra. 15, 1915 (King's Surr.), C. C. P. § ^OC. C. P. § 2632; Tax Law, § 2633. 228. 4 See § 799, infra. 1 Id. 5 C. C. P. § 2632. 2 Matter of Connell, 92 Misc. 324, « C. C. P. § 2632. 155 Supp. 397 (]il5),.old Code §§ 1fl2 §§ 173, 174 ADMINISTRATORS court.' The object, must be stated tp be that the persons cited show cause why ancillary letters of administration with the will annexed should not be granted. If it is desired that such letters issue with- out bond and there appear to be no creditors or transfer tax, either in the citation issued on the petition for , letters, or by a separate citation, demand may be made that cause be shown why such let- ters should not issue without a bond ; but any citation to this effect must be directed generally to all creditors within the state and must be served by publication.' § 173. Id.: Citation, Public Administrators. — The rights of public administrators in the various counties of the state to arbitrary pref- erence in appointment over other persons has been discussed here- tofore.^ When a public administrator seeks administration the no- tice which he must give is discussed in the note,*" under a separate heading for each county. The attorney-general is not entitled to notice of a proceeding by the public administrator of Kings county for appointment as administrator of a decedent, on a petition show- ing the decedent died, leaving assets in such county, but. no widow, descendanls or next of kin residing in the state." § 174. Appointment and Letters: Objections. — Objections to the grant of letters of adiuinistration may be filed by any person in- terested in the estate.** The persons who may make objections to grant of administration to the public administrators of the various counties is discussed in the note.*' A person interested in an estate includes every person entitled either absolutely or contingently to share in the estate, or the proceeds thereof, whether as husband, wife, next of kin, assignee, graLntee, or otherwise; except as a credit- or." Objections may be filed at any time before the letters are granted.** The time when bbjections may be made to grant of ' See §- 799, infra, ** Matter of Davenport, 142 A. D. * C. C. P.: § 2633. 41, 126 Supp. 693 (1910). • See §. 157, supra. • , *» C. C. P. § 25^6. *'Ar. r. Co.:— See "Public Admin-, " ^- '^- Co--'— Seie "Public Admin- istrators" Law, §§ 12, 16 and 19 (L. istrators" Law, §§ 13 and 19 (L. 1898, c. 230, §§ 16 and 19). 1898, c. 230, § 19). Kings Co. .— C. C. P. § 2594. ^^"ff^ ^o. .-— C. C. P. § 2594. T). I, -, >, tt-a 1,1 • Aj • ■ Biehmond Co.: — "Public Adminis- It^chmond Co .--"PubUe Adminis- „ ^aw, § 2 (L. 1899, c. 486, § trators" Laws § 2 (L 1899 c 486 § ^ ^^ amended L. 1910, c. 412, § 2) 2, as amended L. 1910, c. 412, § 2). '^^^^^ Co. .-"BronxGOunty" Law, Bronx Co.:— "Bronx County" Law, § 3 (l. 1912, c. 548, § 3^. § 3 and 11 (L. 1912, c. 548,, §§ 3 and ErieCo.:-C. C. P. § 2595. ■'■•*■)■ no Other Counties Where No Coun- Erie Go.:—C. C. P. § 2595. ty Treasurers:— "V-ahMe Administra- In Other Counties WhereNo Coun- tors" Law, § 3 (L. 1900, c. 501, § 3). ty Treasurers:— "Public Administra- " C. C. P. § 2768. tore" Law, § 3 (L. 1900, e. 501, § 3) J is C. C. P. § 2566. N. Y. E. & S.— 13. 193 NEW YORK ESTATES AND SURROGATES § 175 administration to the public administrators of the several. counties is set forth in the note.^^ The objections must (1) show the interest of the objectant in the estate; and (2) set forth specifically one or inore legal objections to granting letters to one or more of the would-be administrators.*' An allegation of a person interested, duly verified, who objects to ain appointmejit, of his' interest, suf- fices, although his interest is disputed, unless he has been excluded by a judgment, decree or other final determination' and no appeal is pending therefrom.*" The filing of objections to grant of letters to, or to qualification and service of, the administrator necessitates a stay by the surrogate of such grant until the bbjectiolis are dis- jDosed of.*' § 175. Id.: Hearing and Decree. — Before issuing a citation on an application for grant of administration, the surrogate determined whether he had jurisdiction of the subject-inktter of the proceeding. Citation having issued, he must now decide if he has obtained ju- risdiction of the parties to the proceeding, as a prereqiaisite tO ren- dering a decree which shall bind them. If he has jurisdiction to make a binding decree, by the existence of the jurisdictional facts and by citation of or appearance by thes necessary parties,^" he must determine whether by it he will refuse letters or grant them. The surrbgate's determination of whether or not he has acquired ju- ri'sdictibii of the parties to the proceedings depends upon proper service, or waiver of service, of the process which he has caused to is- sue to them, or their binding appearance before his court. These questions have been fully treated elsewhere.* The surrogate, if he has jurisdiction both of the subject-jnatter of, and the parties to, the proceeding, must , decide whether .to grant, or withhold letters. If he discovers that adrpinistration b,as already been; had of decedent's assets ; that decedent left no assets to be administered ; or that pre- sumption arises from lapse of time that there are no assets, in ex- istence which can be identified or reached by an administrator ; and no claim in resp6ct to them which can be enforced, the surrogate must withhold letters, because there is no reason for issuing them.* ^'N:T. Co.: — "Public. Administra- ty Treasurers :—"F\xh\ie Administra- tors". Law, §§ 13' and 19 (L.^ 1898,, c. tors" taw, § 3 (L. 1900, e. 501, § 3) 230, §§ 13 and 19). "" C. C. P. § 2566. Kings Co.:^C. C. P. § 2594. *' C. C. P. § 2768. JRichmond Co. .■—■"Public Adminis- *9 C. C. P. § 2566. trators" Lawj § 2 (L. 1899, c. 486, ^^ Matter of Ashmore, 48 Misc. SI'' § 2, as amended L. 1910, c. 412, § 2). (1912), or 96 Supp. 772. Bronx Go. : — "Bronx County" Law, * See § 815, infra. § 3 (L. 1912, e. 548, § 3). "Van Geissen v. Bridgford, 83 N. Erie Co..-— C. C. P. § 2595. Y. 348 (1880). In Other Counties Where No Court- > 194 § 175 ADMINISTRATORS Or if the surrogate holds the objections filed against grant of ad- ministration to be good, he must refuse letters. The surro- gate must be satisfied of the death of the person upon whose estate administration is sought.' He will not accept proof of absence for upwards of seven years as equivalent to proof of death.* In the use of the presumption of death from continued absence as ground for grant of administration, it is probable that it obtains more' strongly when temporary administration only is sought thau when general administration is asked.* The subject of proof and presumption of death are generally discussed elsewhere.^ On the return of a citation issued on a petition for ancillary letters of administration with the will annexed, the surrogate must as- certain, as nearly as he can do so, the amount of debts due or claimed to be due from the decedent to residents of the state ; '' and issue the letters if proper to do so.''* If at the time specified in the notice of the ptiblic administrator of New York county of appli- cation for letters of administration on any estate it appears that the deceased 1-eft any will of his personal property by which any executor is appointed who is competent to act, or that there is any widow or relative entitled to share in the estate who is willing, com- petent and qualified to take out letters c. t. a. (if there be a will) or of administration (if there be no will), then letters testamentary or of administration must be granted such executor, widow or rela- tive, as ill other cases.' Upon such letters being granted, all con- trol and authority of the public administrator over the estate ceases, and every order previously granted to him in relation to the estate is revoked.'* If no exectftor be allowed and no letters be granted to any other person (at such time or at other appointed times), then, unless letters have already been granted on the estate, the surrogate must grant letters of administration (with the will an- nexed or otherwise as the case requires) to the public adminis- trator.' For the statutory provisions relating to the public admin- istrators of other counties, see note.*" ' Sheldon v. Wright, 5 N. Y. 497 « "Public Adhiinistrators" Law, § (1851). , 13 (L. 1898, c. 230, § 13). 4 Matter of Jones, 70 Misc. 154 8a «pui,iie Administrators" Law, § (1910), or 128 Supp. 477. The al- 13 (L. 1898, e. 230, § 13). leged decedent was a woman of 34, in 9 "Puhlic Administrators" Law, § good health, seen in another state six ^5 (L 1898 c 230 § 15) years after disappearance' but hot 10 j/.-^ (^^^^^ ,^C. C.'p. § 2594. thereafter heard from for over seven ^^.^ Sounty:-G. C. P. § 2595. ^^8 Matter of Jones, supra. ^''"^^ ComwJj/ .—"Bronx County" 8 See § 2 et seq., supra. Law, § 3 (L. 1912, e. 548, § 3). 'C. C. P. § 2633. Richmond County: — "Public Ad- '^See § 132 et seq., supra. ministrators" Law, § 2 (L. 1899, c. 195 NEW YORK ESTATES AND SURROGATES §§ 176, 177 A surrogate, having reached his determination either to issue or not to issue letters of administration, must enter a decree accord- ingly. A decree awarding ancillary letters may provide for pay- ment of the transfer tax or the giving of security therefor.^* No provision can be made in a decree or order appointing temporary administrators limiting or determining the amount of their com- missions unless the appointment of one was agreed to on condition that he serve without compensation, and then only after his con- sent so to serve has been filed. '^ Nor is it proper to insert in such a decree an authorization to the persons appointed temporary ad- ministrators to take possession of the personal property, as it is merely declaratory of the law ; ^' or a direction that the appointees afford contestants of the will opportunity to inspect the books, papers, etc., of the decedent, as this chance is obtainable only on an application to compel production and give discovery.^* § 176. Id.: Letters, Form. — Letters of administration may be granted by the surrogate's court and the supreme court. Letters granted by a surrogate (1) must be in the name of the people of the state; (2) must be attested in the name of the officer granting them; (3) must be signed either by the officer granting them or by the, clerk of the surrogate's court; and (4) must be sealed with the seal of the surrogate's court.** Letters to the public administrator of New York county must briefly state that the administration of the goods, chattels, credits and effects of the deceased has been granted to him according to law.** For the statutory provisions relative to public administrators in other counties, see note." § 177. Letters: Force and Effect. — l C. C. P. § 2597. '■' "Public Administrators" Law " C. C. P. § 2597. (L. 1899, c. 486, § 1, and L. 1910, c. 12 C. C. P. § 2594. 412, § 2). '3 "Public Administrators" Law, § " C. C. P. §§ 2633, 2591. 156 (L. 1898, c. 230, § 15), '» C. C. P. §§ 2633, 2591. »*L. 1912, c. 1912, § 548. 203 NEW YORK ESTATES AND SURROGATES §§183, 184 bond are governed by the same principles as obtain in the case of the bond of an administrator in chief. ^^ Security may be, required such as the surrogate prescribes for payineiit of the transfer tax by an ancillary administrator.' § 183. Id.: County Treasurer. — "When a county treasurer is ap- pointed to adniinister an estate the necessity, penalty and contents of his bond are governed by the same rules as if he were an unoffi- cial individual acting as an administrator in chief.^ This is true also when he is appointed teraporary administrator.^ § 184. Id. : Public Administrator. — The qualification of public ad- ministrators in the various counties of the state is treated in the note* under a separate heading for each county. 2" C. C. P. §§ 2633, 2591. upon the performance of the duties * Tax Law, § 228. of his office. It must be executed : «C. e. P. §§ 2593, 2591. (1) by such administrator; (2) with ' C. C. P. §§ 2597 and 2591. two sureties to be approved by a jus- * (a) N. Y. Co.;— Before any per- tice of the supreme court; (3) to the son appointed to the office of public County of Kings; (4) in a penal administrator of New York county sum of fifty thousand dollars; (5) enters upon the duties of his office, he conditioned for the faithful discharge must execute a bond to the city of of all the duties of his office and the New York, with such sureties as full and correct accoimting according shall be approved by its mayor, in to law for all moiieys and property the penal sum of $50,000, con<£tioned that may come into his hands as pub- for the faithful discharge of aU du- lie administrator. It must be filed ties enjoined on him by law, and par- with the clerk of the County of ticularly that he will account for, and Kings. (C. C. P. § 2594). pay over all moneys, and property (e) Bichmond County: — The pub- that may come into his hands as such lie administrator of Richmond coun- public administrator, according to ty before entering upon the duties of law (L. 1898, c. 230, § 2; "Public his office must execute a bond to the Administrators" Law)* Before the people of the state, with sufficient assistant public administrator of New sureties, to be approved by the surro- York county acts under the designa- gate of that county, in the penal sum tion and authorization of the public of $5,000, conditioned for the faith- administrator , or either of the surro- ful discharge of the duties of his of- gates of such county he must , give a flee, and that he will fully and cor- bond in the penal sum of $25,000 to reetly account for and pay over all the City of New York, with such moneys and property that may come sureties as are approved by its mayor, into his hands as sttch public adminis- conditioned for the faithful discharge trator according to law, which bond of all duties enjoined on him by law, may be filed with the clerk of the and particularly that he will account county. L. 1899, c. 486, § 1 (Con- for and pay over aU moneys and soKdated Laws, tit. "Public Adminis- property that may come to his hands trators"). as such public administrator, accord- (d) Erie County: — The public ad- ing to law. (L. 1890, c. 232, § 2; ministrator of Erie county must al- "Public Administrators" Law). ways execute a bond before entering (b) Kings County: — The public upon the performance of the duties administrator of Kings county must of his offiQe. It must be executed : always execute a bond before entering ,,(a) by such administrator; (b) with 204 §§ 185, 18G ADMINISTRATORS § 185. New Bond, Grounds. — The reasons set forth for requiring a new bond or sureties or additional sureties of the principal in such bond must be one (cr more) of the following: (1) That a surely on the bond is insufficient; (2) that a surety in the bond has re- moved from the state of New York; (3) that a surety on the bond is about to remove from the state of New York; (4) that a surety on the bond is dead; or (5) that a bond is inadequate in amount.^ § 186. Id.: Petition. — A new bond from tlie principal (adminis- trator) on it may be required in certain cases by order of the surro- gate, either on the petition of the sureties to be released, or the peti- tion by parties interested in the estate or creditors of the decedent, or the petition of the principal himself.* A person interested in the estate which the bond and sureties protect or a cred.itor of the dece- dent may present a petition for a new bond in any case in which there is ground therefor.' A person interested in an estate includes every person entitled either absolutely or contingently to share in the estate, or the proceeds thereof, whether as husband, wife, next of kin, assignee, grantee, or otherwise; except as a creditor.* One or more of the sureties on an administrator's bond may present a petition praying to be released from responsibility on account of any future breach of the condition of such bond, and that the ad- ministrator be required to give new sureties, render and settle his account, and that a citation issue to the executor to show cause why the application should not be granted.® The administrator who is principal on a bond which he has been required to file may ask for sufficient sureties to be approved by pointment of public administrators, a justice of the supreme court; (c) the public administrator before en- to the County of Erie; (d) in the tering on the; duties of his office must penal sum of ten thousand dollars; execute a bond with sureties in a sum (e) conditioned upon the faithful dis- fixed and to be approved by the coun- charge of the duties of his office and ty judge not less than $2000 nor more the full and eon-ect accounting ac- than $5000, conditioned for the faith- cording to law for, and payment over f ul discharge of all duties of his of- of all moneys and property which fice, and that he will fully and cor- may come into his hands as such ad- reetly account for and pay all moneys ministrator. It must be filed with and property that may come into his the clerk of the county of Erie. (C. hands as such, according to law, C. P.i§ 2595.) which bond must be filed with the (e) Bronx Cpunty: — Probably the clerk of the county. L. 1900, c. 501, law applicable to the public adminis- (Consolid. Laws, tit. "Public Admin- trator of New York county applies istrators")! to the same official in Bronx Co. L. * C. C. P. § 2577. 1912, c. 548, § 3 and 11. « C. C. P. §§ 2579, 2577, 2581. (f) In Other Counties:—Wh.eTem ' C. C. P. § 2577. the office of county treasurer has ' C. C. P. § 2678. been abolished and no provision is ® C. C. P. § 2579. specifically made by statute for ap- 205 NEW YORK ESTATES AND SURROGATES § 187 leave to file a new bond or for a new surety in a proceeding which is pending for the intermediate judicial settlement of his account, upon good cause shown.^" No formal petition is necessary. , The form of a petition by a person interested in an estate or a creditor of a decedent must in general conform to that of the stand- ard petition in any proceeding in a surrogate's court." The peti- tion must state the facts upon which depend the court's jurisdiction, viz., that a surety on the existing bond of the adniinistra:tor is in- sufficient; or has removed or is about to remove from the state; or is dead; or that the bond is inadequate in amount.'^ It must state who is required to be cited, viz., the administrator. '' It must state the relief sought, viz., that the administrator ]De required to give a new bond, in a larger penalty or new or additional sureties, as the case requires ; and that, in default of so doing; the letters issued to the administrator may be revoked." If increased security is sought, an allegation of a person interested applying therefor, duly verified, of his interest, suffices, although his interest is disputed, unless he has been excluded by a judgment, decree or other final determina- tion and no appeal therefrom is pending.'* The form of a petition by any or all of the sureties on an existing bond of an administrator must, in genetal, be that of the standard petition in any proceeding in a surrogate's court.'^ The petition must state the facts upon which- depend the court's jurisdiction, viz., that the petitioners are sureties on an existing, bond of an admin- istrator." It must state who is required ito be cited, viz., the admin- istrator.'* It must state the relief sought, viz., that the sureties be released from responsibility on, account of any future breach of the condition of the bond; that the administrator on the bond be re- quired to give new sureties and to render and settle his account; that a citation issue to the administrator to show cause why the ap- plication should not be granted.'' , § 187. Id. : Citation. — ^If the application for leave to file a new bond or sureties is made by the administrator himself; as principal, in a pending proceeding for the intoniediate judicial settlement of his account, no citation is necessaryp^" If a petition for a new bond by an administrator , is presented by a person interested in the estate or a creditor of the decedent a citation issues when it appears to the surrogate that theire is reason to believe that the allegations of the petition are true.' The citation issues to the administrator '» C. C. P. 2581. 18 See § 787, infra. " See § 787, infra. " C. C. P. § 2579. '2 C. C. P. § 2577. '8 C. C. P. § 2579. '3 C. C. P. § 2577. 's C. C. P. § 2579. '* C. C. P. § 2577. 20 c. c. P. § 2577. '6 C. C. P. § 2768. ' C. C. P. § 2577. 206 § 188 ADMINISTEATORS ■r who is principal on the existing bond.* Its contents are in general similar to those of the standard citation in any proceeding in a surrogate's court ; ' and it should require the administrator to show cause why the prayer of the petition should not be granted.* If a petition for new sureties, etc., by an administrator is pre- sented by the sureties on the administrator's existing bond a citation must issue.* The citation issues to the administrator who is prin- cipal on the existing bond.* Its form is in general that of the stand- ard citation in any proceeding in a surrogate's court.' It should require the administrator to show cause why the application should not be granted.* § 188. Id.: Hearing, Order and Decree. — When the request for leave to file a new bond or give a new surety is made by the admin- istrator himself in a proceeding pending in a surrogate's court for the intermediate judicial settlement of his account, upon good cause shown for the request, the surrogate may grant or deny it; and if he grants it, he must fix the penalty of the new bond or the amount in which the new surety must justify ; and, on the filing and approv- al of the new bond or the undertaking of the new surety, may pro- vide in the decree of judicial settlement that the former bond or surety be discharged, from and after the date of such decree, from all liability, except upon appeal therefrom, as to all matters embraced in the account and decree.* When the petition for a new bond or new or additional surfeties is made by a person interested in the estate or a creditor of the decedent, : the sur- rogate, on the return of the citation, must hear the parties' allegations and proofs, and, if any of the allegations are found to be valid, must ;make an order requiring the administrator to give new or additional sureties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding twenty (20) days, as the surrogate fixes, and directing that in de- fault of so doing, the administrator's letters be revoked." When the petition is by any or all of the sureties on an adminis- trator's bond to be released from responsibility on account of any future breach, etc.,, the surrogate, if the administrator on the return of a citation, does not file a new bond in the usual form with new sureties to the surrogate's satisfaction, must make an order requir- ing the administrator to file such new bond within such reasonable time, not exceeding twenty (20) days, as the surrogate fixes." If «C C P. §2577. . ■' See § 799, infra. 8 See § 799, infra., , « C. C. P., § 2579. . * C. C. P. § 2577. 9 C. C. P. § 2581. 8 C. C. P. § 2579. " C. C. P. § 2578. 6 C. C. P. § 2579. " C. C. P. § 2580. 207 NEW YORK ESTATES AND SDRROGATES § 189 the administrator, however, files such new bond on the return of the citation, or even within the time fixed by tlae'brder made on his failure to file the bond of such return day, the surrogate must make a decree releasing the petitioning surety or sureties from pliability upon the bond for any subsequent act or default of the administra- tor, and requiring the administrator to render ahd settle his account to and including the date of such decree ahd to file his account with- in a fixed time, not exceeding twenty days from the date of the de- cree. ^^ If the administrator does hot file the new bond within the time fixed by the order of the surrogate made on the return of the citation, the surrogate must make a decree revoking the administra- tor's letter.** A surrogate is not limited to making the penalty of an increased admii^istrator's bond double the value of the inven- toried estate but may, if claim is made that certain claims were ijot listed, fix the penalty ii; his discretion." A decree on petition by sureties for release should contain a direction requiring the admin- istrator to render and settle, his accounts to and including the date of the decree, and to file such accounts within 20 days of the de- cree's date." , . ,^; ; § 189. Term of Office: Surrogate's Jurisdiction. — Each surrogate has jurisdiction to revoke letters of administration.*^ Denial by an administrator that one petitioning as creditor for his removal is such is no bar to the surrogate's jurisdiction to try and determine the issue." The surrogate has discretion to refuse to entertain a proceeding to revoke letters of administration already granted and to grant new letters to him who seeks revocation of the old; and he will so refuse when the estate is small, the existence of new assets is not alleged, and no good can be accomplished by acceding to the applibation, while harm will accrue to the estate 'through the addi- tional cost entailed." Although the surrogate has authority to deny an application for letters of administration by one not entitled in Conjunction with' one entitled, yet he cannot remove such an one on the sole ground thsLt' the letters of the one entitled haVe been revoked, but only for a cause specified by statute as a ground of revocation.*' i^C. C. P. § 2580. " ''Matter of Wheeler, 46 Hun, 64 "C. C. P. 2580. ,; , ,. ,(;1887). ** Matter of Goundoz, 57 A. D. 232 , "Matter of Baldasarro, 92 Misc. (1901), or 68 Supp. 155; old Code 627, 156 Supp. 175 (1915), C. C. P. § 2597 new Code § 2577. §§ 2569, 2570. *5 Matter of Conroy, N. Y. L. J., " Matter of McDonald, 211 N. Y. Nov. 17, 1914 (Bronx Surr.), C. C. 272, 105 N. E. 407 (1914), old Code P. § 2580. § 2685, new Code § 2569. " C. C. P. § 2510, subd. 2. ' 208 §§ 190, 191 , ADMINISTRATORS § 190. Id.: Revocation Per Se. — Immediately on the appointment of an executor or administrator c. t. a. the authprity of a temporary administrator is terminated — ^without formal revocation of the lat- ter's letters, accounting by him or order by court to the latter to deliver over property to the executor or administrator c. t. a,."" The powers of a temporary administrator are terminated on probate of a will of his decedent and issuance of letters testamentary there- under ; and he may be discharged on judicial settlement being had of his, account.^ The appoiiitment of an administrator c. t. a. ter- minates the authority of a temporary administrator.^ The cases in which the powers and authority of the public ad- ministrators of the various counties in relation to the estate of any deceased person are superseded are stated in the references.* The right of one to whom letters of administration (to which he was not alone or of right entitled) have been issued on consent of and in conjunction with one entitled to act as administrator, does not ipso facto end upon the revocation of letters of administration issued to the entitled co-administrator ; nor does such right become voidable at the election of the decedent's next of kin upon the revo- cation of the letters issued to the entitled co-administrator; nor is the surrogate authorized to revoke the letters of one not legally alone and of right entitled for no other reason than that the letters to the one entitled had been previously revoked,* Letters of administra- tion granted to one not entitled on consent and as co-administrator of one entitled may be revoked on withdrawal of such consent and revocation of the letters of the one entitled, without proof of the statutory grounds fqr reyocation of letters.* § 191. Id.: Revocation without Petition or Citation. — The surro- gate only can revoke letters of administration without a petition therefor or a citation thereon.^ The surrogate may revoke an ad- &* 2" People ex rel. Avery v. Purdy, Richmond Co.: — (L: 1910, e. 412, 155 A. D. 607 (1913), or 140 Supp. § 2). : ' 614; aff'd 209 N. Y. 575. Bronx Co.:— {L. 1912, c. 548, §§ lEst. of Solomon, N. Y. L. J., 3 and 11). Mch. 11, 1915 (N. Y. Surr.) ; Est. of Erie Co.:— C. C. P. § 2595. Yoiing, N. Y. L. J., Sept.' 24, 1915 In Other Counties Where No (N. Y. Surr.). ^ - County Treasurers: — "Public Admia- Revoeation of letters of adminis- istrators" Law, § 3 (L. 1900, c. 501, trator upon discovery of will is taken § 3). up in note in 49 L.R.A.,(N.S.) 894. , * Matter of McDonald, 211 N. Y. 8 Matter of Goetz, 120 A. D. 10 272, 105 N. E. 407 (1914), old Code (1907) or 104 Supp. 832; old Code § 2660,, new Code §§2588, 2603. S 2670, new Code, § 2596. * Matter of Stallo, 82 Misc. 135 ^N Y Co .-—"Public Administra- (1913), or 14:2 Supp. 328 and 145 tors" 'Law, §§ 13, 14, 20, 21, 22 (L. Supp. 947; old Code §§ 2685 and 1898 c 230, §§ 13, 14, 20, 21, 22). 2660, new Code, §§ 2588, 2603, 2569. idngs Co.:-C. C. P. § 2594. " C. C. P. § 2574. N. Y. E. & S.— 14. 209 NEW YORK ESTATES AND SURROGATES . § 191 ministrator's letters: (1) when the administrator is riot a resident of, or is absent from the state, and neglects, upon being duly cited to account, to appear on the return day of the citation without giv- ing a satisfactory excuse for such neglect, and the surrogate has riot sufficierit reason to believe that such ari excuse can be riiade; (2) when a citation issued to the administrator in a case, prescribed by law cannot be personally served on him by reason of having ab- sconded or concealed himself; (3) when the administrator has re- mained' committed to jail for thirty days by reason of his default in returning an iriventbry or his neglect or refusal to obey an order; (4) When the administrator has failed to give the bohd required to sell real estate ; a new bond ; or a new surety, when required to do so by an order or decree of the surrogate's court; (5) when the ad- ministrator has been convicted of a felony ; arid, if the administra- tor is one with the will annexed; (6) when the will under which letters were issued to him has been declared invalid by the judg- ment of another court of competent jurisdiction ; ' (7) when the administrator mingles the trust funds of the estate with his own, or deposits them with any person, association or corporation authorized to do busiriess under the baiiking law' in an account other than as such adffliriistratbr,' The decree must revoke the letters, if the surrogate finds statutpry caus6 therefor.® It riiay, in his discretion, require the administi^atorto account fqr all money and other prop- erty received by him and pay over and deliver all of it in his hands to the suri-ogate's court,' his successor in office, or such other per- son as is authorized by law to receive such iriohey or property. The decree may also, in the surrogate's discretion, be made without prejudice to ari action Or special proceeding then pendiiig or there- after to be brought for the purpose of requiring the administrator to account for and pay or deliver over money or the property re- ceived by him and in his hands." The effect of, the entry of a decree revoking letters of administration , is. to terminate the administrator's powers;" The entry of the decree does not affect the. validity of, nor is the administrator liable for any .act of the administrator within the powers conferred . on him -by 'law done in good faith before revocation of his letters." , ■' C. C.P. § 257f , " C. C. P. § 2555. On revocation of probate as ter- " C. C. P. §§ 2555 and 2574. mination of appointment of adminis- On tte validity of act doiie by an trator e. .t. a., see note in 29 L.R.A. executor or admiiiistrator under let- (N.S.), 975. 'J" , ters testamentary or ' of "administra- ' C. C. P; § 2574, subd. 7, added by tion afterward revoked or held in- Tj. 1916; c. 588. , valid, see notes, in 21 L.R.A. 147; 43 * C. C. P. § 2594. , ' L.R.A.(N.S.) 634. '-» C C. P. §§ 2555-6. 210 §§ 192, 193 ADMINISTRATORS But, anyone to whom the administrator (or administrator c. t. a.) has paid or delivered over money or other property of the decedent is liable to respond to whoever is lawfully entitled thereto, if the ground on which his letters are revoked is that a supposed decedent is living or that the will under which they were issued has been declared invalid by the judgment of another court of competent jurisdiction." § 192. Term of Office: Revocation on Petition, Grounds, In General. — A person who has been given authority by law to admin- ister ah estate may have his authority taken away because of unfit- ness further to exercise the trust reposed in him. An application for revocation of such authority may be made by those who are en- dangered through the unfitness of the administrator to continue in his position of trust. Certain grounds are given by the law as suf- ficient to accomplish the deposition of the administrator ; and must be advanced by whoever seeks revocation of the administrator's letters at the lime the petition therefor is made. The grounds for which, and the cases in which, a petition may be pre- sented for revocation of letters of administration will be sep- arately stated and considered. Failure of an ancillary administra- tor to transmit moneys of the estate to the domiciliary administra- tor is not sufficient to warrant revocation of the former's letters when his answer to the petition for revocation alleges that a creditor in this state is entitled to payment from funds of the estate in this state." That a person nominated as executor and appointed as tem- porary administrator was scrivener of the will, proponent of the will, legatee and charged in the probate proceeding with unduly influencing the testator, besides being named as executor in the will, might be ground for preventing the grant of temporary adminis- tration, but is not ground for revocation of letters of temporary ad- ministration." Letters of administration granted one to whom the intestate had transferred all her property and on whom she was physically and morally dependent are properly revoked." § 193. Id. : Legal Incompetency or Disqualification. — Legal in- competency or disqualification on appointment of, or on issue of letters to, an administrator, is ground for petition for revocation of the letters ; provided the ground for the objection did not exist be- fore the letters were granted or was not put forward then by the petitioner or a person irepresented by him." "C C. P. §§ 2555 and 2574. " Matter of iKirschuer, or Gimpel, "Est. of Dunlap, N. Y. L. J., Dec. 89 Misc. 717 (1915), or 153 Supp. 4, 1914 (N. Y. Surr.). 1094. w Matter of Ashmore, 48 Misc. 312 " C. C. P. § 2569. (1905), or 96 Supp. 772; old Code I 2685, new Code § 2569. 211 NEW YORK ESTATES AJ^D SURKOGATES . § 191 Legal inconipetency or disqualification since appointment of, or issue of letters to, an administrator is also ground for petition to- revoke his letters.^' Letters to a resident creditor will tlleref9re b& revoked on subsequent petition for letters by decedent's non-resident brother who had no notice of the proceeding in which the creditor was appointed." § 194. Id.: Unfitness for Office. — Unfitness for the due execution of his office is ground upon which to petition to revoke an .admin- istrator's letters.^" What constitutes such unfitness is particularly discussed and stated below. In general, however, it should be borne in mind that if the administrator has made a fault which constitutes a statutory ground for application' to have his letters revoked, the surrogate must revoke his letters, and the fact that his continuance in office as administrator can do no harm is foreign and immateirial to the question of his fitness.^ The reasons given by statute for un- fitness by an administrator for the due execution of his office are (a) waste or improper application of money or other assets in his hands, (b) investment of money in securities unauthorized by law,, (c) other improvident management or injury of the property com- mitted to his charge, (d) other misconduct in the execution of his office, and (e) dishonesty, druiikenness, improvidence or want of understanding.* Among the grounds upon which petition may be made for revo- cation of an administrator's letters are that, by reason of his having wasted or improperly applied the money oi* other assets in his.hajids or invested money in securities unauthorized by law, or otherwise imprpyidently managed or injured the property committed to his charge, :he is unfit for the due execution of his office. * The waste or improper application by an administrator of money or assets in his han,ds which is ground for revocatipn of, his letters refers to a squandering or misapplication of esta.te funds whereby, the estate is lost pr diminished, in value; and the; idea of the phrase "improp- erly applied" is akin to that; of the word "wasted." * The mere fact that administrators paid out of estate funds certain amounts for legal services in the administration of the estate is no gromncl for "C. C. P. § 2569. , tor: if also trustee, fact that snrro- ,*' Matter of Tyers, 41 Misc. 378 gate ina,y not remove as tr,ustee if (1903), or 84 Supp. 934. fund in no danger, has no bearing on "" C. C. P. § 2569. removal as executor. The effect of infirmity or mental * c_ q_ p § 2569, subd. 2. incompetency of executor or adininis- ' C. C. P. § 2569, subd. 2. ' trator is discussed ia note in 45 * Matter of Doscher, 165 A. D. 193, L.R.A.(]sr.S.) 1073. 151 Supp. 76 (1914), old Code § 1 Matter of Enfeel, 83 Misc. 675 2685, new Code § 2569— executor. (1914), or 146 Supp. 793;— execu- 212 § 194 ADMINISTRATORS revocation of their letters when the services were necessarily ren- dered, the amount thereof was not excessive and three times the amount was in the treasury of the estate to the credit of the individ- uals (personally) who were the administrators.* A petition seeking to revoke the letters of administration c. t. a. granted to one on the grounds of waste by the administrator, undue influence of the attor- ney of one having large claims against the estate upon the admin- istrator, concealment of himself by the administrator, and conniv- ance by the administrator with such attorney in obtaining the court's opinion on an agreed case, is properly denied when the evi- dence as to the value of the property the administrator sold is con- flicting, the attorney was such for both sides on the agreed case but the court's decision was recalled by it because the case was not one contemplated by the statute, and there was no proof of the admin- istrator's concealment.* Among the grounds upon which petition may be made for revo- cation of an administrator's letters are that, by reason of other mis- conduct (than waste or improper application of assets, unauthorized investments, and improper management or injury to property) in the execution of his office, or dishonesty, drunkenness, improvi- dence or grant of understanding, he is unfit for the due execution of his office.'' The misconduct and incompetency which are grounds for revocation of letters have no technical meaning; but are intend- ed to embrace all the reasons for which letters may be revoked.' Claims by an administrator, who has no interest in the estate to pro- tect, that in his personal capacity he owned substantially the whole estate and that decedent had no property at death, when decedent really had large deposits in her name in various banks, is ground for revocation of the administrator's letters although the adminis- trator has given adequate security and his claim of ownership can be settled on his accounting; because those interested in the estate are entitled to an impartial administrator to control the estate and to a jury trial of the question of ownership.' A representative who gets his coTrepresentative to draw a cheque on the purported vouch- er of a third person for services rendered and, when the cheque had come back to the co-representative through the post, procured it with other cheques to use as vouchers, but did not return it when he returned all the others of such cheques, is properly removed for mis- * Matter of Doscher, supra. ' Matter of Cohn, 78 N. Y. 248 6 Matter of Estate of Wood, 70 (1879). Hun 230 24 Supp. 64 (1893), old ^ Matter of Wallace and Matter of Code' § 2685, new Code § 2569. Gorman, 68 A. D. 649 (1902), or 74 » C. C. P. § 2569, subd. 2. Supp. 33. 213 NEW YORK ESTATES AND SURROGATES §§ 195, 196 conduct.^" A co-administrator's personal interest is so antagonistic to that of the estate that its letters should he revoked when it sold estate collateral, paid therefrom a debt due it from the decedent, credited the residue to itself as administrator and denied a next of kin's claim that it as creditor has agreed to extend the time of the estate to pay the debt due it.*^ § 195. Id.: Refusal to Obey Direction or Law. — ^Wilful refusal, or (without good cause) neglect to obey any lawful direction of the surrogate contained in a decree or order or any provision of law, relating to the discharge of his duty, is ground for petition to re- voke an administrator's letters.''^ But the letters of one granted limited administration to prosecute an action cannot be revoked because he declined to verify papers so that he might be substituted as plaintiff in the action, and to authorize an appeal ; when his dec- lination was by request of all decedent's next of kin.*' It is improp- er to seek to terminate an administrator's authority by a mere mo- tion in the proceeding in which he was appointed.** § 196. Id. : False Suggestion of Fact, — False suggestion of a ma- terial fact to obtain letters is ground for revocation of such letters.** To warrant revocation of letters for a false statement of a fact in the petition on which they were granted, it rhust appear not only that the statement was false, but material, e. g., an erroneous statement as to the value of the estate is immaterial.*^ OUei who is granted administration on the allegation in her petition therefor that she is widow of decedent is liable to have her letteK revoked when the fact is that the intestate had a wife living, both when he married the petitioner and when he died; even though petitioner believed intestate had no wife ; *®* or when the fact is that the petitioner had a husband living when she married the intestate, even though such husband had been declared insane and been incarcerated before the petitioner married decedent ; *' or even though such a husband had not been heard of for over seven years before petitioner remar- ried.*' When revocation of letters granted an alleged widow is based on the ground that she was not legally divorced from her then husband when she married the intestate, the objection will be *» Matter of Patterson, 41 Misc: 66 *« Est. of Quinlan, N. Y. L. J., (1903), or 83 Supp. 649— executor. Apr. 12, 1916 (N. Y. Surr.), C, C. P. ** Matter of Stallo, 82 Misc. 135 §'2568, subd. 4. (1913), or 143 Supp. 775. *8»Kerr v. Kerr, 41 N. Y. 272 *2 C. C. P. § 2569, subd. 3. (1869). *» Matter of Hill, 166 A. D. 303 *' Matter of Ward, 50 Misc. 483, (1915), or 141 Supp. 791; afli'd 215 100 Supp. 634 (1906). N. Y. 694, 109 N. E. 1078. *« Matter of Kutter, 79 Misc. 74, ** Matter of Hill, supra. 139 Supp. 693 (1913). *5 C. C. P. § 2569. 214 § 196 ADMINISTRATORS sustained when the foreign divorce decree recited that the summons in the divorce action was served by publication, and, the defendant had failed to appear.^' Letters of administration, granted in this state to a woman as widow of an intestate will be revoked as granted on a false suggestion of a material fact when she was married to the decedent in a state in which the common law prevails that a mar- riage by a woman while she had a husband living is void ab initio, if such was the fact ; even though the later marriage took place after the former husband had disappeared and Jaeen absent for over seven years unheard from by the woman.^" A statement in a petition for administration that one haying a prior right to letters is a nonresi- dent alien, when such is not the case, is a false suggestion which is material and requires revocation of the letters.^' Letters of adminis- tration are properly revoked as obtained by a false suggestion of a material fact when issued to one who was not entitled to them but procured one entitled to have himself associated with such one in the administration by stating there would be no conflict of interest as to, the estate, and who. was so associated, to preserya peaceful rela- tions in the estate : but who thereupon absolutely refused to allow the estate to be appraised. on the day set for its appraisal, claimed a large part of the estate as his own under the will of another, and used uncalled for and disrespectful language to his co-administra- tor.* The revocation of letters for false suggestion of a material fact is based on the falseness of the suggestion alone, and not on whether the person making the statement of fact was honest or dishonest in making it.* The omission of material facts, which would have made it apparent to the surrogate that the allegedl non-execution of a testamentary power of sale was the cause for the existence of un- administered personal estate by reason of the power having been absorbed in a definite estate of a beneficiary, is equally a false sug^ gestidn as if an affirniatively untrue statement had been made in the petition for letters of administration c. t. a.* Omission to state in a' petition for letters of administration by an' unmarried sister the name of a married sister is ho ground for the revocation of the letters as a false suggestion of a material fact when neither the peti- tioner nor the married sister was entitled to letters, but the petition- er only' secured them , on renunciation of the person entitled ; "Matter of Higgins, 65 Misc. 415 (1886), ,aff'd 111 N. Y. 687, 19 N. E. (1909), or 124 Supp. 1005. 286, old Code §§ 2685 and 2687, new . "0 Matter of Kutter, 79 Misc. 74, Code § 2569 and 2571. 139 Supp. 693 (1913). ^jyi^tter of Rathgen, 115 A. D. "Matter of Keoleian, N. Y. L. J., 644 (1906), or 101 Supp. 289. May 11, 1916, (Bronx Surr.). ' Matter of Rathgen, supra. 1 Matter of West, 40 Hun, 291 215 NEW YOEK ESTATES AND SURROGATES §§ 197-199 because, as ueither sister had the' right to administratioh, the un- married sister was properly preferred.* , § 197. Id.: Happening of Contingency. — The happening of a contingency upon which administration was to cease by the terms of an order or will is ground for revocation of the letters of adruin- istration.^ ' § 198. Id.: In Case of Temporary Administration. — In the case of temporary administration of an absentee's estate, grounds for revo- cation of the letters of administration are: (a) that the absentee has returned; (b) that the absentee is living and capable of return- ing and resuming the management of his affaii^sj (c) that an exec- utor or administrator in chief or with the will annexed has been appointed of the absentee's estate; or (d) that a committee of the absentee's property has been appbinted.by a competent court of the state.* An absentee who is found to be alive and capable of return- ing is not incompetent to ma!nag6 his affairs because he is lacking in the capacity that makes for success in business.'' § 199. Id.: Petition. — ^The petition praying for a decree revoking letters of adininistration may be presented to the court by (a) a creditor of decedent; (b) a person interested in the estate of dece- dent; or (c) a sUWty on the administrator's bond.* A person in- terested in an estate includes every person entitled either absolutely or contingently to share in the estate, or the proceeds thereof, whether as husband, wife, next of kin, assignee, grantee, or other- wise ; except as a creditor.* A creditor includes any person having a claim for funeral or administration expenses, or a claim or de- mand upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action.*" The public administrator has standing to initiate a proceeding to revoke let- ters of administration on the ground that the appointee was in law incompetent and disqualified to act when, issued if he would be appointed administra,tor if his application is granted.**, The contents of a petition for revocation of an administrator's letters are in geneml the same as the contents of a standard petition in any proceeding in a surrogate's court. *^ The points in the peti- tion under discussion which require particular mention are the statement of the facts upon which depend the jurisdiction of the court to entertain the petition and grant the relief asked for ; and * Matter of WaUace, N. T. L. J., » C. C. P. § 2678. Moh. 14, 1916. " C. C. P. § 2768. 5 C. C. P. § 2i569. " Matter of McMullen, 85' Misc: 6C. C. P. § 2569. , 661 (1914), or Supp. 1092, old Code ''Matter of Case, 214' N, T., 199, §§ 2685, .2686, new Code §§2569, 108 N. E. 408 (1915). 2570. , " , 8 C. C. P. § 2569. - , ^^ See § 7^7, infra. 2l6 §§ 200, 201 ADMINISTRATORS the request for either the rehef from, or action by, the court, to which the petitioner deems himself entitled. The facts showing the court's jurisdiction should include a recital of the appointment of the administrator by such court and the circumstances which show the case to come within one of the provisions authorizing the surrogate to act, i. e., the grounds advanced as reason for the revo- cation of his letters.^' These grounds are treated one by one else- where." The relief asked should be by way of a prayer that the administrator's letters be revoked by decree of court and that he be cited to show cause why such a decree should not be made." A petition alone is not sufficient to authorize a surrogate to issue a citation in a proceeding to revoke letters of administration; and affidavits on information and belief are sufficient only if the sources of the information and the grounds of the belief are stated. ^° An application for a decree revoking letters must be begun by a peti- tion and not by a notice of motion." § 200. Id. : Citation.^ — The issuance of a citation on a petition to revoke adnainistration depends upon the attitude of the surrogate in entertaining or declining to entertain the proceeding. i* The ad- ministrator or administrators whose letters are sought to be revoked must be cited. The contents of a citation issued on a petition to revoke an administrator's letters are in general the same as the standard citation in any proceeding in a surrogate's court.*' The object of the proceeding should, of course, be stated, and that the citation is served upon the administra-tor so that he may show cause why his letters should not be revoked by a decree of the surrogate.*'* It must be served like a citation in any other proceeding. § 201. Id.: Order Suspending Administrator. — The surrogate has discretion, if he decides to entertain a proceeding to revoke an ad- • ministrator's letters and has issued a citation in such proceeding, to make an order suspending the administrator wholly or partly from the exercise of his powers and authority during the pendency of the proceeding.*" If such an order is made, a certified copy of it must accompany the citation and, be served with it upon the admin- istrator.^"" From the time it is made, without service, the order binds, the administrator and all other persons.* The making of *«C. C. P. § 2570; Matter of En- Mch. 22, 1916 (Bronx Surr.), C. C. glebrecht, 15 A. D. 541 (1897), or P. § 2569. 44Supp. 551. " C. C. P. § 2570. 14 See § 192, et seq. . " See § 799, infra. 15 Matter of Englebrecht, supra. "" C. C. P. § 2570. 16 Matter of McMuUen, 85 Misc. «" C. C. P. § 2570. 661 (1914), or 148 Supp. 1092; old «"» C. C. P. § 2570. Code § 2685, new Code, § 2569. i C. C, P. § 2570. "Matter of Peine, N. Y. L. J., 217 NEW YORK ESTATES ANI) SURROGATES §202 such an order, however, does not affect the validity of any act with- in the administrator's legal powers done by him before service of the order and citation if the petsohs as to whom the act was done acted in good faith.^ The adniiiiistrator is not liable for such ah act so done in good faith.' The fact that the validity of an act of an administrator done between the making and service of an order suspending him from the exercise of his duties is not affected, by the mere making of such order does not relieve any person to whom he has paid or delivered money or other property, as husband, wife, next of kin, or legatee of his decedent, from liability to respond to the person lawfully entitled thereto if the administrator's letters are revoked because his supposed intestate is found toi be alive or to have left a will.* § 202. Id. : Hearing, Decree and Effect. — On return of the citation issued on a petition to revoke an administrator's letters, the surro- gate must give the administrator a hearing.* The letters cannot be revoked ex parte.® The surrogate may make a decfefe either re- voking the letters of administration; ot disriiissing the proceeding upon such terms as justice requires.'' The decree revoking letters of administration may be, primarily, a decree granting probate, i. e., a decree granting probate must revoke letters of adininistration formerly granted oh the ground of the decedent's siip^ppsed in- testacy.' ' "The surrogate has discretion by his decree to require the administrator to accohnt' for all' moneys and other property re- ceived by him, and to pay and deliver over such money or other property in his hands either to the surrogate's court, the adminis- trator's successor in office, or such other person as is authorized to receive the inoney or property. The surrogate may also make such decree without' prejudice to an action or special proceeding then pending or thereafter to be brought for the purpose of requiting the ' administrator to account arid pay and deliver over the money or property to thei proper depositary.* The revocation of letters of administration in a proceeding there- for does not affect the validity of any act by the administrator within the powers conferred by law on him, or make hini liable for any such act done by him in good faith, if the act is done— 2 C. C. P. §§ 2555, 2570. « Matter of Englebreeht, 15 A. D. 3 C. C. P. §§ 25^5, and 2570. 541 (1897), or 44 Supp. 551. * C. C. P. §§ 2556 and 2570. ' C. C. P. § 2571. 5 C. C. P. § 2570; Matter of Mc- • « C. C. P. § 2624; Matter of Blau- Donald. 160 A. D. 86 (1914), or 145 velt, 72 Misc. 287, 131 Supp. Ill Supp. 267, aff'd 211 N.Y. 272, 105 (1911). N. E. 407— revoking coadm^riistra- » C. C. P. § 2555. tor's letters because administrator's revoked. 218 § 202 ADMINISTRATORS before service of citation in the proceeding, and the party to whom the act relates acted in good faith; or if the act was done after service of the citation but before entry of tlie decree revoking his letters, and no order was made suspending his powers; or if the surrogate, notwithstanding the pendency of the proceeding, per- mitted him so to act.^" Though acts of the administrator pending a proceeding to revoke his letters are valid, yet any person to whom he has paid or delivered money or other property as being the hus- band, wife, next of kin or legatee of the decedent is liable to re- spond to the person lawfully entitled to such money or other property if the grounds upon which the revocation is based is either that the supposed decedent is alive, or that a will of decedent is discovered (when decedent was believed intestate or) which re- vokes a prior will on which letters of administration etc., were granted. ^^ If the administrator is also a testamentary trustee of his decedent's estate, the decree revoking his letters of administra- tion does not afifect his power or authority as trustee unless the peti- tion praying for revocation also sets forth facts sufficient to entitle the petitioner to present another petition praying for his removal as testamentary trustee and so prays.^^ A decree denying a peti- tion to revoke the appointment of one other than the petitioner as administrator on the ground that the petitioner as decedent's widow was entitled to the appointment and asking that she be so appoint- ed is conclusive against her right to object to the administrator's subsequent accounting on the claim that she is entitled as decedent's widow to an interest in his estate.*' "C. C. P. § 2555. D. 312 (1908), or 108 Supp. 934, On jurisdiction in case of acts done app. dism'd 192 N. Y. 565, 85 N. E. by executor or administrator under 1112, the surrogate's decree on the letters testamentary or of adminis- application for administration was tration afterward revoked or set affirmed by the appellate division, aside, see notes in 21 L.R.A. 151; 43 On the reimbursement of expendr- L.R.A.(N.S.) 634. ture of administrator for the protec- The validity of an act done by ex- tion of decedent's character, see note ecutor or administrator under letters in 16 L.R.A. 743. testamentary or of administration On the right of an administrator to afterward revoked or held invalid is credit for amount paid to surety discussed in notes in 21 L.R.A. 147 ; company for bond, see note in 48 43 L.R.A.(N.S.) 634. L.R.A. 591. The effect of removal of resigna- The right of personal representa- tion of personal representative on the tive to indemnity from estate for (liability of an estate to an attorney debts contracted, is , taken up in note employed by him is discussed in note in 40 L.R.A. (N.S.) 232. in 25 L.R.A.(N.S.) 74. The right of creditors to subroga- *i C. C. P. § 2556, tion to personal representative's ^'^ C. C. p. §§ 2640, 2570. right of indemnity is discussed in 13 Matter of McGoughran, 124 A. note in 40 L.R.A.(N.S.) 233. 219 NEW YOKK ESTATES AND SUBROGATES § 203 § 203. Administration Expenses, In General and What Are. — The expenses of administering an estate consist of such just, rea- sonable and necessary outlays as an administrator may lawfully make in the management of his decedent's estate. They include the reasonable expense of obtaining and continuing his bond ; such compensation for lega,l services rendered him in connection with his official duties as are just and reasonable ; and his commissions.^* Upon his accounting the surrogate may allow an administrator a reasonable sum not exceeding ten dollars for each day necessarily occupied in preparing the account and decree thereon." This is in the nature of an expense of administration. "Expenses of ad- ministration include such disbursements as a reprasentative is called upon to make in securing the proper and orderly settlement of the affairs of the decedent. The commissions of the representative are not to be included, for these rather constitute, in part, at least, the pay of the representative for seeing that the expenses of admin- istration are incurred and paid." '° The distinction between costs and expenses of administration is that costs come into existence only under a decree or order while expenses of adxninistration are paid before the accounting when the decree is rendered." A stipu- lation as to "administration expenses" does not apply to costs.*' Administration expenses must be paid before funeral expensed. ** Expenses allowed an administrator for his attorney's services and disbursements, and for his own administration and traveling ex- penses must be reasonable and necessary ones ; ^nd the surrogate, because of his familiarity with the facts, must judge of this to a great extent.^" It is probable that when an administrator is re- quired to expend money in the proper administration of the estate he may disburse and use estate funds for purposes authorized by law, but may not bind the estate by executory contracts and thus create a liability not founded on contract or on obhgation of the decedent, i. e., necessary expenses of administration are regarded as a charge upon though not as a debt against the estate.* A claim on a judgment for costs recovered in an action by ah administra- tor, on a clftim alleged, to be due his intestate in the latter's lifetime is payable, in preference to claims of general creditorsj as a, proper 14 C. C. P. §§ 2692, 2753. " Est. of Zunkler, N. T. L. J., " C. C. P. § 2747. Oct. 20, 1914 (N. Y. Surr.) ; C. C. " Matter of Pray or Swezey, 40 P. § 2686. Misc. 516, 82 Supp. 807 (1903)— 2" Matter of Spooner, 86 Hun, 9» construing expression in will. (1895), or 33 Supp. 136. " Matter of BrOwer, 71 Misc. 398, * Matter of Ddscher, 165 A. D. 193 130 Supp. 191 (1911). 151 Supp. 76 (1914), dictum on C. 1' Matter of Brower, supra. C. P. § 2692 — executor. 220 ' §1 204, 205 ADMINISTEATORS and necessary expense of administration.* A judgment against executors in their unsuccessful attempt to make a lessee pay rent is not a debt of the decedent but an expense of admin- istration, payable if they have enough in hand to pay, al- though the estate be insolvent.' Statutory provisions peculiar to the expenses of public administrators are cited in the note.* Ref- erence is made to the discussion of this subject in the chapter on "Executors." ^ The public administrator of Bronx county, when acting as administrator of an estate, is entitled to be allowed, on his accounting, for stenographic work needed in the course of the ad- ininistration.* § 204. Id.: Services Which Administrator Should Have Per- formed. — ^Administrators cannot employ to act as agent of the es- tate in performing administrative duties either a stranger or one of themselves; although circumstances may render it wise and pm- dent for them to employ a stranger or even one of themselves, to perform nonadministrative services for the estate.' An account- ant cannot be allowed as an actual, necessary, just and reasonable expense on his accounting, for counsel fees, for services which the accountant should himself have rendered, or proof of which is given as mere generalization.* An administrator cannot be al- lowed a fee paid counsel for work he could himself render or for necessary services.* Reference is made to the discussion of this subject in the chapter on "Executors." " § 205. Id.: Traveling Outlays.— Outlays by an administrator in traveling cannot be allowed unless shown to have been necessary in « Matter of Mahoney, 37 Misc. 472 c. 825, old Code § 2668 and new (1902), or 75 Supp. 1056. Code § 2692. » C. C. P. § 3246; Matter of Pried- '' Russell v. Hilton, 80 A. D. 178 lander, 160 A. D. 475 (1914); or 145 (1903), or 80 Supp. 563; aff'd 175 Supp. 679. N. Y. 525, 67 N. E. 1089; Matter of *N. Y. Co..— "Public Administra- Wagner, 40 Misc. 490, 82 Supp. 797 tors" Law, § 14 (L. 1898, c. 230, § (1903)— payments at usual rate to 24). executor's son for managing real es- JTiw^s Co.;— C. C. P. § 2594. state. Erie Co..— C. C. P. § 2595. np^f*""" fa ^"^''So^ ^jf P^f ^ _ „T5 r( i » T (189o), or 40 Supp. 732; old Code Bro^a; Co .—"Bronx County" Law, ^ 2730, new Code, § 2753. §§3 and 11 (L. 1912, c. 548, •§§ 3 ^^^^ttev of Van Nostrand, 3 Mise. ^S^.,^' .^ «T> ui- Aj ■ • 396 (1893), or 24 Supp. 850, not al- Bzchmond Co .—"Public Admims- j^^^^ ^^^^ ^^ counsel for searching trators" Law, § 2 (L. 1910, c. 412, ^^^ ^yj^ ^^ ^^^^ ^^ ^^^ ^^^^ ^^^ ^^^ 3 2). as administrator, or taking decedent's * See § 533, infra. papers to : administrator's: ofSce, but * Matter of Molino, N. Y. L. J., allowed for preparing petition for March 24, 1916, Bronx Surr., L. administrator's appointment. 1912, c. 548, § 3, as amend'd L. 1913, i" See § 534, infra. 221 NEAV YORK ESTATES AND SURROGATES § 206 the performance of his duties as such.** Reference is made to the disctission of this subject in the chapter on "Executors." *^ § 206. Administration Expenses: Legal Services, In General.— Reasonable counsel fees incurred hy an administrator in the course of the administration of the estate are proper expenses of adminis- tration and must be allowed him on his accounting, from the es- tate." The allowance must be to the administrator— not directly to his counsel ; ** arid the amounts soiight to be allowed for counsel fees must be set forth in the administrator's account as already paid in order that they may be allowed by the surrogate.** Fees paid for legal services to an administrator by a lawyer employed as soon as summons was served on the administrator in an action .against him in his representative capacity up to the tiriie it could be known with due diligence that the estate's interests no longer needed pro- tection must be allowed the administrator.*^ Legal expenses are properly allowed if incurred in resisting unsuccessful attempts to revoke letters ; *'' and in an accounting proceeding.*' An adminis- trator must exercise a reasonable measure of intelligence in selecting counsel and if, because he retained an incompetent attorney, he had to get in two other attorneys to help out his first choice, after refusing the plaintiff's offer to have the surrogate determine his claim on the representative's accounting, he can be allowed, only taxable costs in an action for legal services.*' An administrator of an estate having no assets, save a litigation on the policies of insur- ance on the d.ecedent's life, has the right to, give his attorney a claim to part of the proceeds of the, action for his compensation if he succeeds in it, and to exempt himself (the administrator) in- dividually, and. the estate, from any charge if he is unsuccessful.^" The question as to legal services rendered an administrator, pre- sented on the latter's accounting, is not f)rimarily the value of the services but whether they were a necessary expense on the part of ** Matter of Biggars, 39 Misc. 426 *« Matter of Ordway, 196 N. Y. 95, (1902), or 80 Supp. 214. 89 N. E. 474 (1909). *8 See § 535, infra. " Ma;tter of Higgins, 80 Misc. 609, *SC. C. P. §§ 2692, 2753. 142 Supp. 1029 (1913); revocation ** Seaman v. Whitehead, 78 N. Y. s(>ught of letters granted widow on 306 (1879). ' ground not widow, though success al- On the doctrine that a probate so got her a widow's share in estate court may make allowance direCtly to as well as right to administer. attoi'ney for fees, see note in 25 *' Matter of Mitchell or Silliman, L.R.A.(N.S.) 75. 39 Misc. 120 (1902), or 78 Supp. ** C. C. P. § 2692; Matter of Mit- 976. chell or Silliman, 39 Misc. 120 (1902) *» Matter of Wick, 53 Misc. 211, or 78 Supp. 976; but see Matter of 104 Supp. 7l7 (1907). O'Brien, 145 N. Y. 379, 40 N. E. 18 2" Kennedy v. Steele, 35 Misc. 105 (1895). (1901), or 71 Supp. 237. 222 §§ 207, 208 ADMINISTRATORS the administrator.* While an adopted daughter of an intestate's wife who has not been adopted by him cannot, share in the latter's estate, yet, if she is in office as administratrix and her account is ready for settlement, she, as administratrix de facto, no objections being filed to her account, is entitled to credit for counsel fees.^ The surrogate properly orders an administrator to pay from the estate the amount of a judgment recovered against him for services ren- dered as counsel to his predecessor (as executor of the estate) .' Ref- erence is made to the discussion of this whole subject in the chapter on "Executors." * An amount which an administrator agrees to pay counsel from his recovery in an action for the decedent's death is properly allowed on his accounting as an administration ex- pense.^ § 207. Id.: To Administrator Individually .^Ari administrator's counsel cannot be paid from the estate for services rendered in es- tablishing the administrator's personal claim against the estate.^ The fact that in successfully resisting an attempt to have her letters revoked on the ground that she was not the intestate's widow, the widow obtained a finding which established her right to an interest in the estate, does not disentitle her to reimbursement from the estate for the whole expense of resisting the attempt.'' In determin- ing whether or not a representative successfully resistiiig an attempt to revoke his letters should be allowed the expense entailed or not, the test is not his success or failure, but whether at the time the ap- plication for removal was made there was ground for the attack upon him: if thete was, he should not be allowed the expenses; if there was not, hp should.* § 208. Id. : How Fixed. — In judging the value of legal services it is proper to consider' (1) the time occupied; (2) the difficulty of the (juestions involved; (3) the nature of the services Tendered; (4) the amount involved in the litigation; (5) the professional standing of the counsel,; and (6) to a less exteht, the result reached.' Amounts considered : reasonable fees under various circumstances 1 Matter of Van Buren or Brod- '' Matter of Higgins, 80 Mise. 609, head, i9 Misc. 373 (1896), or 44 142 Supp. 1029 (1913). Supp. 357, old Code § 2730^ iaew Code ' Matter of Titcomb, 80 Misc. 612, § 2753. , , 142 Supp. 1030 (1913), expenses of *In re Whittemore (Brower), N. resisting disallowed when revocation Y. L. J., Nov. 9, 1914 (Kings Surr.). sought for unauthorized investment * Matter of Thompson, 41 Barb, which trustee sold without loss during 237 (1864). the trial. * See § 536, infra. ' Gross v.' Moore, 14 A. D. 353 ■ 5 Matter of D'Adamo, 94 Misc. 1, (1897), or 43 Supp. 945; Matter of 157 Supp. 374 (1916). Wick, 53 Misc. 211, 104 Supp. 717 6 Matter of Seigler, 49 Misc. 189 (1907) ; Matter of Ogden, 41 Misc. (1906), or 98 Supp. 929. 158 (1903), or 83 Supp. 977. 223 NEW YORK ESTATES AND SUBROGATES § 209 are set forth in the note." Not only the ability of counsel and their success in the litigation, but the size of the estate must be con- sidered in determining their legal fees; so that if attorneys accus- tomed to receive large fees care to engage in litigation concerning a small estate, they must be satisfied with correspondingly small re- muneration.^^ Reference is made to the discussion of this whole subject in the chapter on "Executors." ^^ § 209. Id. : To Temporary Administrator. — The surrogate may by order authorize a temporary adpiinistrator to pay funeral and ad- ministration expenses or stenographer's or referee's fees on contest of a will or adrniriistration.^* It is doubtful if a surrogate's court can compel a temporary administrator to pay administration ex- penses." The proper time to dispose of an application for pay- ment by a temporary administrator of his decedent's funeral bill and of the fee to his attorney is on his accounting.** An order *' Probating will : objection filed Foreclosure proceeding : $65. Mat- on ground lack testamentary capaci- ter of Wagner, 40 Misc. 490, 82 Supp. ty; testimony took twenty-two days; 797 (1903). oral argument two days ; : briefs ; ap- Accounting : Estate between one peal to General Term; amount in- and one and a quarter millions; es- volved $100,000; will probated; $5,- tate about equally real and personal; 000 limit of fee. (Gross v. Moore, expert accountant prepare^ flglires 14 A. D. 353 (1897), or 43 ^upp. aind his bill paid by executoi*; hiimber 945.) Another case: no objections, of bequests in will; fee of $1,500. $50. Matter of Wagner, . 40 Misc. Matter of Mitchell or Silliman, 39 490, 82 Siipp. 797. (1903). . Misc. 120 (1902), or 78 Supp. 976. Resisting claim against estate: 3 Another case: — trust estate $30,000; trials, 3 appeals to General Term, mortgages, stocks and real estate ; two and one to court of appeals^ — nothing trustees; accounting on end of one of allowed after first trial granted plain- trusts ; $150 fee. Matter of Roberts, tifE on appeal to court of appeals 40 Misc. 512 (1903),, or 82 Supp. 805. when plaintiff won ^uch trial, be- A counsel fee of $250 for probate, cause law then settled and verdict transfer tax and accounting proceed- protected f epi-esentative in making ings is proper in an estate of $18,- payment; $1,250 allowed; amount of 653.50. Matter of Mulligan, 82 Misc. estate $1,000,000 and of claim $1,100. 336 (1913), or 143 Supp. 686, and Gross V. Moore,,. 14 A. D.,353 (1897), 149 Supp. 1098. or 43 Supp. 945. "Matter of Jones, 28 Misc. 599 Construing ,Y?ill by action: when (1899), or 59 Supp. 1020; estate of legal representative interested only $8,000, $4,000 fee for executor's at- as individual, only allowed amount torneys put to $2,000 although $4,000 proper, if construction had on final held not too much if work, ability accounting, as this would have been and success alone considered, necessary in any event; $1000 al- *^ See § 538, infra. ' lowed; estate $100,000. Gross v. " C. C. P. § 2597. Moore, 14 A. D. 353,(1897), 43 Supp. "In re Gragan, N. Y. L. J., Feb 945. 10, 1915 (Kings Surr.^. Transfer ,tax proeeecjing: , $50. ,}^ Est. of Becker, N. Y. L. J. Feb Matter of Wagner, M Misc. 490, 82 9, 19l5' (Bronx 8urr.). Supp. 797 (1903). " 224 § 210 ADMINISTRATORS may be made before then allowing payment bj'^ a temporary admin- istrator of the premium on his bond." The practice is to defer al- lowances to a temporary administrator for counsel fees till his ac- counting." The surrogate may properly direct payment by temporary administrators to counsel employed by them in the course of the administration of reasonable counsel fees, as a temporary has the same power as a general administrator to employ counsel" A petition for payment of counsel to a temporary administrator must be made by the administrator himself by verified petition and on notice to the proponent's attorney and to all other parties who have appeared in the probate proceeding." The application is sub- ject to any objection as to its reasonableness and necessity which may be taken on settlement of the temporary administrator's ac- counts, and a provision that it is so subject must be put in any order permitting withdrawal of estate funds for the purpose of making the payment.^' § 210. Court Expenses. — The general rule is that trust property should reimburse a trustee for all his charges and expenses properly incurred in the execution of the trust, including the cost of litiga- tion in relation to the trust fund, when there is no evidence of bad faith on his part.^ An administrator's, reasonable disbursements in taking, bona fide, on the urging of all the next of kin, an appeal on questions of sufficient doubt to warrant the hope of a reversal, should be allowed him.' An administrator in an action to recover damages for negligence causing the death of an intestate may prop- erly on accounting have credit, as part of the expenses of the a,ction, for an amount paid a dpctor to work up the case and testify in court as to the results of his work.* An administrator is properly allowed all the reasonable legal expenses incurred by him in an action to recover, as belonging to his irirestate, a bank deposit, wherein on the first trial he had judgment, which was reversed and a new trial ordered for improper exclusion of evidence (one judge dissenting), on the second trial he lost, but the judgment was re- versed as against the weight of evidence and a new trial ordered; on the third trial he lost, the judgment was afiirmed (one judge dissenting) both in the appellate division and the court of appeals.* 16 Id. 1 Young V. Brush, 28 N. Y. 667 " Est. of Harris, N. Y. ,L. J., June (1863). 15,1915 (N. Y. Suit.). » Matter of Ritch, 76 Hun, 36 "Matter of King, 122 A. D. 354 (1894), or 27 Supp. 613. (1907), or 106 Supp. 1073. * Matter of Snedeker, 95 A. D. 149 "Matter of Marcellin, 25 Misc. (1904), or 88 Supp. 847. , 260, 55 Supp. 425 (1^98). » Matter of Hoffman, 136 A. D. 20 Id. 516, 121 Supp. 184 (1910). N. Y. E. & S.— 15. 225 NEW YORK ESTATES AND S10RROGATES § 2ir The decision by the court of appeals that a will was improperly probated aiid that an allowance to the person named executor for moneys spent in litigating the validity of .the will was too large precludes such person, subsequently appointed administrator, on his accounting as such, from again going into his claim for such allowance.^ A bill for costs incurred in an unsuccessful attempt- by an estate to eject one from the possession of premises claimed by the estate, and a bill for a stenographer in attendance at the trial of an action against the estate on a bond by the decedent, are- proper expenses of administration.'' Reference is made to the dis- cussion of the whole subject in the chapter on "Executors." * § 211. Last Illness, Burial and Funeral Expenses, In General.— It is a dictate of public policy that the dead should be buried.* The right to the possession of a dead body for the purpose of preser- vation and burial is a legal right.^" The right of the widow of a, deceased married man to her husband's body is paramount to that of his next of kin, prior to interment.** In the absence of any testamentary provision the right to the possession of a dead body for the purpose of preservation and burial belongs to the surviving husband or wife or next of kin; and this right the law will protect by awarding damages for any unlawful mutilation of the remains by way ' of compensation to the injury to the feelings, and the mental suffering of the husband, wife or next of kin, even thougli. no pecuniary damage is alleged or proved.*^ The law requires the' burial of the dead, and although no statutory duty is imposed \\]Hm children to bury their parents, yet that duty falls on the husliand or wife or other relative, or on a stranger under whose roof deatli came." ' It is the duty of a representative of a decedent leaving an estate to bury him," an^ if he has sufficient assets in his hands, the representative is personally, liable to pay the funeral expenses.*^ * Matter of Blair, 34 .Misc., 444 "Matter of Moran, 75 Misc. 90 (1901), or 69 Supp. 1013; aff'd 67 (1911), or 134 Supp. 968; Matter of A. D. 116, 73 Supp. 675. Viles, 86 Misc. 170 (1914), or 149 'Matter of Young, 17 Misc. 680 Supp. 121 ; aff'd 155 Supp: 401 ; Mat- (1896), or 41 Supp. 539. ter of Tiemey, 88 Misc. 347 (1914), 'See§ 539, infra. or 151 Supp. 972; Matter of Poiv- ' Patterson v. Patterson, 59 N. Y. ers, 75 Misc. 85 (1911), or 134 Supn 574;17 Am. Rep; 384 (1894). 967. 10 Foley v. Phelps, 1 A. D. 551 « c_ c_ p § 2g86. (1896), ox 3'7 Supp. 471. On the primary liability as b3!v,ecn ** Foley V. Phelps, supra. executor or administrator aud tlis es-- **Davey V. Presbyterian Hospital, tate for funeral expenses, see iiotos- 202 N. Y. 259, 95 N. E. 695, Ann. in 33 L.R.A. 663; 52 L.R.A (\ R i. Gas. 1912D, 1238 (1911). 1156. "Matter of Van De Walker, 79 Misc. 661 (1913), or 141 Supp. 325. 226 § 212 ADMINISTRATORS , "At common law ... if a poor person of no estate die.'^. it is the duty of him under whose roof his body lies, to carry it de- cently to the place of burial." ^^ The final disposition of the remains of a man may be made to await the upshot of an action by his children against their stepmother (his widow) to get custody of his body, when he made no direction as to his burial and liis children and second wife disagree." Once buried, the remains of a decedent will not be removed from the place of sepulture for light reasons ; but if the body was buried in one place by the deceased's child not knowing of the deceased's expressed desire in his will to be buried elsewhere, the exectitor may disinter the body and bury it as the will says, because the wishes of the decedent himself carrj' the greatest weight.^* Unless on interment an agreement is made that the body cannot be removed from the cemetery it can be at the instance of the heirs and next of kin, of the decedent, irrespective of the ecclesiastical doctrines of the nation using such cemetery as to the right of such removal. ^^ The heirs of a decedent or he who rightfully erected it can recover damages from one who wrongfully injuries or removes a monument on the decedent's grave, or may re- strain by injunction one who threatens without right to injure or remove it, even though the title to the ground in which is the grave be in another.*" A, deed of a specific piece of ground in premises belonging to a church, to be used solely as a place of burial, im- pliedly gives the right of burial only so long as the premises are uged for a church yard.^ A corporation incorporated under the Religious Corpoi'ations Law is not, in the absence of a contractual obligation, responsible in damages to a relative of one whom it buried, pursuant to a sale of a burial lot under the statute, for theft of the body.* § 212. Id.: WTiat Are. — The burial expenses of a decedent are the expenditures necessary to carry the body, decently covered, to a place of rest; to mark the spot where the body rests; and to defray charges for mourning or ceremony — all viewed in the hght of their "Patterson v. Patterson, 59 N. Y. Supp. 732; aff'd 189 N. Y. 528, 82 574, 17 Am. Rep. 384 fl894) ; Pache .2" Mitchell v. Thome, 134 N. Y. V. Oppenheim, 93 A. D. 221 (1904), 536, 30 Am. St. Rep. 699, 32 N. E. or 87 Supp. 704. 10 (1892). " Butler V. Butler, 91 A. D. 327 i Richards v. The Northwest Prp- (1904), or 86 Supp. 586. testant Dutch Church, 32 Barb. 42 18 Cooney v. English, 86 Misc. 292, (1859). 148 Supp. 285 (1914), year after * Coleman v. St. Michael's Prote^- death before will presented for pro- tant E. Church, 170 A. D. 658, 155 bate. Supp. 1036 (1915), Religious Cori>s. 18 Cohen v. Congregation Shearith L. § 7. Israel, 114 A. D. 117 (1906), or 99 N. E. 1125. 227 NEW YORK ESTATES AND SURROGATES § 213 reasonable appropriateness to the faith and station in hfe of the decedent.' Moneys advanced to bring home the remains of a de- cedent are not a claim against his estate biat part of his funeral expenses.* The reasonable charge, for a suitable headstone is prop- erly allowed as part of the decedent's, funeral expenses.' Tomb- stones form part of burial or funeral expenses,* An executor cannot charge against the estate of a testajtor, the cost of a burial lot when the testator left one, to his interment in which none objected.'' A representative should not be allo'nred the amount of expenditures for a burial lot and monument for his decedent when the latter had provided both in his life.* A reasonable expenditure for mourning apparel: for a widow and minor daughter is a legitimate part of the funeral expenses of a deceased husband and father.' It is probable that the moderate sum paid by a decedent's representatives, on proper evidence of the amount used and how expended, for mourn- ing clothes of the widow and members of the family of a decedent for whom he was bound to provide will be allowed as part of the decedent's funeral expenses, because of the almost universal custom of wearing mourning." An item in an executor's accounts for mourning clothes for his testator's widow will be disallowed when no vouchers are filed showing its payment either by the widow or the executor. ^^ Disbursements for luncheon or refreshments at the cemetery, included in the funeral bill, will' be disallowed.'* § 213. Id.: Whence Payable. — ^lieasonable funeral expenses of a decedent are preferred to all debts and claims against the decedent, and eveiy administrator and executor must pay them out of the 'Patterson v. Patterson, 59 N. Y. *Emans v. Hickman, 12 Hun, 425 574, 17 Am. Rep. 384 (1894); Me- (1877). CuUough V. McCready, 52 Misc. 542 'Matter of CaldweU, 188 N. Y (1907), or 122 Supp. 633; aff'd 106 115, 80 N. E. 663 (1^07), Supp. ll35 — expenses for meat, 'Matter of Woodbury, 40 Misc. ■wines, liquors, cigars and other re- 143, 81 Supp. 503 (1903). freshments at wake; Matter o£ Win- On allowance for burial lot against gersky, 75 Misc. 79 (1911), or 134 deceased's estate, see note in 28 Supp. 877; Matter of Powers, 75 L.R.A.(N.S.) 572. , Misc. 85 (1911), or 134 Supp. 967. . T*^® ^ahdity of a testamentary pro- On the items and amounts ttUowed vision for the erection of n,onument, under funeral expenses, see notes in f ^^^ *^« ?f^ ^^ mamtenaiice ol 33 L.R.A. 665; 28 L.R.A.(N.S.) 572; '"^/^'.^"f .grounds etc., is dis- CO T T> A c-NT c! \ niKQ cussed lu uote in 1 B. R. C. 931. 4M ;r^ rlr I Q« ^/r- 717 «MatterofWachter,16 Misc. 137 ,,!^?^*^' >°o^c^^\i? ^'■^- ^'^^ (1896), or 38 Supp. 941. (1902), 6r 78 Supp. 292. lo Matter of Meus?hke, 61 Misc. 9, 5 Matter of Shipman, 82 Hun, 108 114 gupp. 722 (1908), dictum. (1894), or 31 Supp. 571; estate $17,- " Matter of Meuschke, supra. 000; amount paid for vault or tomb '^ j]g^._ ^f Partlin, N. Y. L. J., Mch $2,000; cut down to $1,000. 10, 1915 (N. Y. Surr.)! 228 § 213 ADMINISTRATOES first moneys received.^* They are not, however, preferred to ad- ministration expenses. Moneys received from the sale of a de- cedent's real property, as well as from his personal property, are "first moneys received" applicable to payment of funeral expenses.** A surrogate may make an administrator pay the reasonable ex- penses of the burial oif his intestate from the proceeds of a recovery in an action by him for negligence causing his intestate's death.*' When the representative has recovered damages for the act, neg- lect or default causing the decedent's death, the surrogate may fix the reasonable funeral expenses of the decedent to be deducted therefrom.** But such deduction cannot be made if the will of the decedent directs payment of his funeral expenses, because they are thereby charged on his estate bequeathed ot devised, and not on the increment thereto from his statutory cause of action given for the benefit of the husband or wife or next of kin of the deceased." A representative is not entitled to be allowed the amount of interest on an undertaker's claim.** If the decedent left an estate "the rea- sonable and necessary expenses of the interment of the dead body . . . are a charge against his estate, though not strictly a debt due from him. The ground of this is the general right of every one to have a decent burial . . . which implies the right to have his body carried, decently covered . . . to a cemetery." *® "An executor or adininistratbr . , , is liable for the suitable and reasonable burial expenses of the testator or intestate if he have assets sufficieiit for that purpose, and if such personal representa- tive, by reason' of absence or neglect, fail to furnish such burial in the first instance, he is liable to the one who incurs such expenses, so far as he has assets of the decedent in his hands." '"' "Whoever, relative or stranger j does the service of burial, or has it done, pro- vided he be not a meddler or has not done it upon a special contract with someone to pay for the same, has a legal claim therefor, not against the solvent or insolvent individual who may qualify as executor or administrator, but against the estate ; " because, the service is a charge against the estate which arises by operation of *8 C. C. P. § 2686; Benedix3t v. Fer- *« C. C. P. § 1903. guson, 15 A. D. 96 (1897), or 44 *'' Matter of Huth, 88 Misc. 458, Siipp. 307. . 152 Supp. 215 (1914). On the matter of preference in *' Matter of Woods, 55 Misc. 181, payment of funeral expenses, see 106 Supp. 471 (1907). notes in 33 L.R.A. 665; 52 L.R.A. *» Matter of Caldwell, 188 N. Y. (N.S.) 1157. 115, 80 N. E. 663 (1907)-; Patterson ** Matter of Tierney, 88 Misc. 347 v. Patterson, supra. (1914), or 151 Supp. 972. "" Kittle v. Huntley, 67 Hun, 617 15 Matter of McDonald, 51 MiSc. (1893), or 22 Supp. 519. 318 (1906), or 101 Supp. 275; C. C. P. § 1903. 229 NEW YORK ESTATES ANI3 SPRROttATES § 213 lavv against the estate itself . and is not created by the executor or adpainigtrator ; and the action, therefore; for recovery of the ex- penses of burial, is properly brought against, the representative as such.^ A stranger, i. e., a person not a representative of decedent, can recover from such representative, expenses reasonably an,d neces- sarily incurred in burying dece4ent, although the administrator made no express, contract to pay them, on the theory of ,an implied promise, to pay them; and because they are a direct cliarge aga-inst the estate.^ , If an administrator pays part only of' a claim for funeral expenses and the surrogate's court finds . such amount a reasonable charge against, the estate, the undertaker may never- theless hold anyone who contracted for the expenses at a larger amount, for the difference,' A nejxt, of kin of a decedent who buried him may recover from the estate the reasonable and neces- sary expenses of the burial ; and the one who agreed to bury the de- cedent on such kin's agreement to pay therefor may, on assignment by such kin of his interest in the estate, establish the assignment in equity and enforce the claim against such interest : he is not confined to his action at law against the representative individual- ly.* One telling him who buries a decedent that the one burying should try to get payment from the decedent's son, but that if the son did not pay, he would, is liable for the burial expenses; and especially if he had possessed himself of money of the decedent sufficient to pay the bill.* An undertaker who buries a decedent against the warning of a person named as executor in, one of two testamentary scripts before either of them is proven, although the • will naming such person is later proven, and such person becomes executor, may nevertheless recover the amount of the funeral ex- penses from such executor.* For a monument purchased by one while acting as administrator c. t. a. the purchaser is personally responsible.'' An uncle of an infant who was an undertaker and 1 Riley V. Waller, 22 Misc. 63 Supp. 1119; Riley v. Waller, 22 (1897), 48 Supp. 535. Misc. 63 (1897), or 48 Supp. 535; The ultimate liability for expendi- Kittle v. Huntley, 67 Hun, 617 tures by one not the executor or ad- (1893), or 22 Supp. 519. ministrator without approval or rat- ' Ruggiero v. Tufani, 54 Misc. 497 ification by him is discussed in notes (1907), or 104 Supp. 691. in 33 L.R.A. 660; 52 L.R.A.(N.S.) * Congregation S. L. A. Sakoler v. 1153. Sindreck, 15 A, D. 82 (1897), or 44 ' Patterson v. Buchanan, 40 A. D. Supp. 295. 493 (1899), or 58 Supp. 179; Matter * Griffin v. Condon, 18 Misc. 236, of Moran, 75 Misc. 90 (1911); or 41 Supp. 380 (1896). 134 Supp. 968; Matter of Wingersky, * Est. of McManemee, N. Y. L. J. 75 Misc. 79 (1911), or 134 Supp. June 25, 1915 (Bronx Surr.). 877; Matter of Elynn, 75 Misc. 85 '' Hector v. Lavery, 51 A. D. 74, 64 (1911), or 134 Supp. 867, aff'd 141 Supp. 518 (1900). 230 § 214 ADMINISTRATORS furnished the infant's funeral and was later appointed his admin- istrator will be surcharged the amount of his claim for funeral ex- penses beyond what -was necessary for an infant in the condition in life and of the estate of the infant.' If an undertaker thinks the expense of a funeral ordered from him is beyond what the sur- rogate will allow, his remedy is to bind the person who orders the funeral by a personal contract.' An undertaker cannot maintain an equitable suit to impress a trust on the realty of the intestate he buried when he was not employed to do so, even though the intes- tate's husband is insolvent and no administrator of her estate has been appointed.^" § 214. Id.: Of Married Woman. — A husband appointed execu- tor of his wife's will may pay from her separate estate the expenses attending her decease and burial." A husband: who is executor of his wife's estate can on his accounting be allowed for her funeral expenses, but not for medicines and medical services for her, unless she assumed to pay for them; because the primary liability rests on a husband to provide a wife with necessaries suitable to her station in life.^^ A husband appointed executor of his wife's sepa- rate estate cannot charge against it the expenses of medical services to her during her last illness, because he is legally bound to pro- vide her with what is necessary and suitable for her condition in life." The funeral expenses, of a married woman, though ordered by the executor in her husband's presence and with his approval, are a charge against her estate; so that it cannot be distributed nor the executor discharged till the charge is satisfied; but for medical services to his wife her husband and not her estate is liable unless she, by express admission, makes such services a charge against her estate, by herself ordering them.^* Not only his own but his wife's funeral expenses are a charge on an intestate's estate, if she died in his life.^* ' A surviving husband, even though being apart from his wife of separate estate, is liable to bury his wife's remains, and may be sued for the reasonable value of performing such ob- 8 Matter of Kiernan, 38 Mise. 394, L.R.A.(N.S.) 754; 52 L.R.A.(N.S.) 77 Supp. 924 (1902). . 1154. 9 Matter of Primmer, 49 Misc. 413, *^ Matter of Very, 24 Misc. 139 99 Supp. 830 (1906). (1898), or 53 Supp. 389. i»Oroen v. Krouse, 89 Hun, 1 4 S'f,'"^^ /• cF°.\*i ^7/\V- -,00 (1895), or 34 Supp. 1004. n8q^W% c;^"^* i'oqI ^'''- ^^^ 11 Ti A -I- tv7 TT A»n (1896), or 41 Supp. 1093. ,/ocofTn^- ^°A' ^.T'tt^^ "Dalrymple v Arnold, 21 Hun. (1882); McCue v. Garvey, 14 Hun, ^10 (1880). 562 (1878). On the liability of estate of hus- On the liability of a wife's sepa- band for wife's funeral expenses, see rate estate for her funeral expenses, notes in 33 L.R.A. 662, 52 L.R.A. see notes in 6 L.R.A. (N.S.) 917; 37 (N.S.) 1154. 231 NEW YORK ESTATES AND SURROGATES § 215 ligation by anyone who performed it, e. g., undertakers who buried the wife at the request of her friend; but the husband has the right to reimbursement from his wife's separate estate if she left any.^* He is not liable for a sum paid by the undertakers who buried his wife to another undertaker to get the latter to release the body to them." "When a husband knowingly leaves an indigent widow and a will giving her the hfe use of all his property and providing "if at any time the income of same is insufficient for her support, then she is to have as much of the principal, each year, as is neces- sary for her maintenance, including the income, as aforesaid," her reasonable funeral expenses should be paid by his representative out of his estate." An administratrix of her father's estate cannot be allowed from the estate the amount she paid for the funeral expenses of her mother, the intestate's wife, who survived the in- testate several years.^* The remains of a widow; may be buried in a burial lot of which her husband died possessed and in which his heirs continue to have an estate or right of burial without the con- sent of any person whomsoever claiming any interest in such lot.*" § 215. Id.: How Fixed.— What is a reasonable amount' to spend for the burial and funeral expenses of a decfedent depends on the attendant circumstances^-among others, the deceased's age, standing, property and habits of life.^ An extravagant mode of life does not justify an extravagant burial if the estate is poor; and an intestate's brother who brought the body firom Texas and paid for its interment in New York cannot recover his expenses from the estate when it is very poor.* For however expensive a funeral a person may contract, he can only recover from the estate such a sum as the surrogate : deems reasonable considering the amovint of the decedent's estate,. and his position in life.* If a rep- resentative bury his decedent lavishly, this, is a devastavit, and he must suffer the loss of the unreasonable outlay, and not the credi- to];s, next of kin or legatees.* Illustrations of proper and improper burial expenses are as follows: (1) Estate of $342,000, $2,000 for " Watkins v. Brown, 89 A. D. 193 ^ Emang v. Hickman, 12 Hun, 425 (1903), or 85 Supp. 820. (1877). ^'' Id. On amounts allowable for funeral "Matter of Van De Walker, 79 expenses, see notes in 33 L.R.A. 665; Misc. 661 (1913), or 141 Supp. 325. 28 L.R.A.(N.S.) 572; 52 L.R.A. "Matter of Swarthout, 38 Misc. (N.S.) 1158. 56,: 76 Supp. 961 (1902). '^Ua.ttev of Moran, 75 Misc. 90 2° Membership Corporations Law, (1911), or 134 Supp. 968. § 69 (L. 1895, c. 559, § 51, as amend- * Id. ed, L. 1909, c. 715) ; Matter of Cald- * Matter of Powers, 75 Misc. 85 well, 188 N. Y. 115, 80 N. E. 663 (1911), or 134 Supp. 967. (1907). 232 § 216 ADMINISTRAJORS monument allowed;^ (2) Estate of $2,410, $1,050, not allowed/ (3) Estate of $500, only $150 allowed (although $329.50 had been expended) ; ^ (4) Estate $27,000, $600 for headstone, allowed ; ' (5) Estate of $6,000, expense of original, inexpensive tombstone and later one costing $300 (on removal of body), allowed (rights of creditors not being impaired;^ (6) Estate quite large, $495 al- lowed for cemetery, carriages, flowers, music,, casket, etc.*° Though a suitable headstone is a proper funeral expense, the duty of the executor or administrator is to do only those things which are proper for their deceased's decent burial : they have no right to do anything for ostentation.^^ When a will directs the execu- tor to spend the money left him for funeral expenses and a monu- ment, but neither directs that all such money be so spent nor puts any bounds to the executor's discretion as to the amount to spend, the court may fix a limitation in accordance with justice.^^ A testamentary direction that the balance of money of decedent on deposit in bank "shall be used to defray funeral expenses and the erection of a monument over my grave" does not require that all the balance be so expended but means that so much of the balance as would be reasonable, having in mind the testator's station in life and the amount of his estate, should be so used." § 216. Id.: Compulsory Payment. — A petition praying the cita- tion of an administrator or executor to show why he should not pay his decedent's funeral expenses may be made if they are not paid within sixty (60) days after the grant of letters of adminis- tration or testamentary.** A petition praying that an administra- tor or executor be cited to show cause why he should not be re- quired to pay the funeral expenses of his decedent may be made by the person having a claim therefor.** A proceeding for pay- ment of funeral expenses can only be begun by petition.** Claim or claims for funeral expenses must be directed by the surrogate * Matter of Barnes, 7 A. D. 13 funeral expenses are cited in Matter (1896), or 40 Supp. 494; aff'd 154 of Young, 92 Misc. 633 (1915). . N. Y. 737. " Owens v. Bloomer, 14 Hun, 296 * Matter of Smith, 75 A; D. 339 (187i8), $500 monument too much for (1902), or 78 Supp. 130. $8000 estate. ' Matter of Primmer, 49 Misc. 413, ** Emans v. Hickman, 12 Hun, 425 or99Supp. 830 (1906). (1877). » Est. of Mitchell, N. Y. L. J. June *' Matter of Young, 92 Mise. 633, 23, 1915 (N. Y. Surr.) 157 Supp. 494 (1915). 9 Matter of Howard's Estate, 3 " C. C. P. § 2686. Mise. 170 (1893), or 23 Supp. 836. " C. C. P. § 2686. *» Matter of Ogden, 41 Misc. 158 . "Est. of Sheridan, N. Y. L. J. (1903), or 83 Supp. 977. Mch. 25, 1915 (Bronx Surr.) ; C. C. Cases discussing the amount of es- P. §§ 2686 and 2518s tates to be applied toward decedent's 233 NEW YORK ESTATES AND SURROGATES § 216 to be heard upon the judicial settlement of the accounts of the de- cedent's executor (or administrator) if the executor (or administra- tor) (a) files an answer to the petition setting forth the facts, and (b) disputes in the answer either the validity of the claim or claims, or the reasonableness of the amounts thereof.*'' The form of a petition for payment of funeral expenses is in general the same as that in the standard petition in any proceeding in the surrogate's court.** It should of course show that the petitioner has paid the funeral expenses of the decedent and that sixty days have passed since letters testamentary or of administration have been granted without the petitioner having been paid back for his outlay. The prayer should be that the administrator or executor be cited to show cause why he should not be required to pay the funeral expenses.*' The surrogate must issue a citation if the jurisdictional facts are properly alleged in the petition. An order directing paj'^ment of funeral expenses of a decedent within ten (10) days after the making of the order, or of such part of the funeral expenses as the surrogate may specify,' must be made by the surrogate if it appears upon ' the return of a citation issued to an administrator or execiitor (1) that he has received moneys be- longing to the estate; (2) that the moneys so received are appli- cable to the payment of the claims for funeral expenses; and (3) that the administrator or executor admits the validity of the claim or claims and the reasonableness of the amount thereiof.* Pro- ceedings to compel payment of funeral expenses shall be dismissed if it shall appear that no money has come into the hands of the administrator or executor, without either costs, or prejudice to a further application or applications showing that since such dismis- sal the administrator or executor has received money belonging to the estate.^ A further petition for payment of, funeral expenses of a decedent may be made: — (1) .When on the former petition an order was made either dismissing the proceeding or directing that the claim be heard on the judicial Settlement of the administrator's accounts; (2) when three Ep.dhths have passed' since the date of such prder; and (3) wbeii no answer was filed to such former pe- tition disputing the claim therein made.* A further petition for payment of' funeral expenses may be made by the person having a claim therefor.* The contents of a further petition for payment of funeral expenses should be the same as the contents of the origi- " C. C. P. § 2686; Matter of West- " C. C. P. § 2686. field, N. Y. L. J. Mch. 25, 1916 * C. C. P. § 2686. (Bronx Surr.) ; Est. of Galvin, N. Y. « q q p_ § 2686. L. J. Dec. 23, 1914 (N. Y. Surr.). » C. C. P. § 2686. " See § 787, infra. * C. C. P. § 2686. 234 §§ 1217, 218 ADMINISTRATORS nal petition/ except that it should show that three months have passed since the date of the order on the former petition; that no answer was filed to it disputing the claim it made ; and facts upon which is based the petitioner's belief that there are moneys in the administrator's or executor's hands applicable to the payment of the petitioner's claim.* The issuance of a citation upon the fur- ther application for payment of funeral expenses is in the surro- gate's discretion.'' Its contents are like to those of the citation on the former like petition.' The surrogate may by order authorize a temporary administrator to pay funeral expenses.® His claim for funeral expenses is provable on his accounting and not on a prior application to pay administration expenses.*" The right to resort to a decedent's real estate for payment of his funeral expenses is treated elsewhere, and reference is made to that discussion.** An undertaker cannot maintain an equitable suit to impress a trust on the realty of the intestate he buried when he was not employed to do so, even though the intestate's husband is insolvent and no ad- ministrator of her estate has been appointed.*^ § 217. Assets and Personalty, In General. — The assets of a dece- dent are his personal property which is applicable U Jie payment of his debts.** , The duty of the administrator or executor to collect them and apply them according to law has elsewhere been dis- cussed.** Those assets of a decedent which go to his administrator or executor to be applied and distributed and paid as part of the decedent's personal property are hereafter named and considered in separate classes. The rights of public administrators over cer- tain assets are; referred, to in the note.*' The subject of assets with relation to executors is also here discussed> father than separately in the chapter on "Executors." § 218. Id.: Leases. — Leases for years are assets.*' A lease to a de- cedent having several months to run is an asset of his estate.*' A 'See above. ** See § 240 et seg., infra. 'C. C. P. § 2686. *6iVe«! York County: "Public Ad- ' C. C. P. § 2686. ministrators" Law, §§ 7, 8, 9, 10, 17, 8 See above. 25 (L. 1898, c. 230, §§ 7, 8, 9, 10, 17, 9 C. C. P. § 2597. 25). See also general statutory pro- *• Est. of Harris, N, Y. L. J. June visions governing public admiiiistra- 15, 1915 (N. Y. Surr.). tors of Kings County. C. C. P. § i*.See § 284 et seq., mfra. 2594; Erie County, C. C. P. § 2595; 12 Van Orden v. Krouse 89 Hun, ^^^^^ bounty, L. 1912, c. 548, § 3; ' il'lk R f 276rsubT2. ' f •^--^ C°-*^' ^- 191«' - 412, § On what are assets under testamen- • jg tarv trust for payment of debts, see /^- ^- ^- 8 ^o'^- notein5L.R.A.(N.S.) 358. I'MiUer v. Knox, 48 N. Y. 232 235 NEW YORK ESTATES ANP SURROGATES § 219 leap^hgld estate is ^sets." A lea5e,,on the, lessee's, death, passes to his administrators, as assets; and they niust sell the lease or collect the rents.^* An administrator ^ho. takes, possession, of a lease in which his intestate was lessee, and of the, leased prerpises, under tjie. lease, and continues in actual occupation under the leage, is per- sonally; liable for the rent accruing under the covenants of the lease.^" As administrator he is boiind by those covenants.^. An administrator is chargeable with a lease conveyed by, his ijntestate while insolvent in fraud of his creditors, when such adrninistrator knew of the insolvency and the conveyance.^ A lease in me form of a grant of the use of the premises provided the grantee-lessee erect on them a factory within two years an,d for so long as the pi'emises are used for such factory is not assets but descends to the grantee-lessee's heirs.' Chattels real are so called because they savor of the realty, e. g., leases for years.* § 219. Id.: Interests, Estates and Contracts in Land. — Land held by a decedent from year to year; * estates held by a decedent for the life of another person ; * the interest in a term of years remaining in a decedent at the time of his death after the expiration' of any estate for years! in such term granted by the decedent or any other per- son;' the interest in lands devised to an executor for a term of years for the payment of debts; ' and moneys unpaid on contracts for the sale of lands' — all are assets. Land of an intestate appropriated by the state before his death descends to his heir together with the claim against the state for the ap- propriation; because, though the owner of land has a right to prefer a claim for damages as soon as the land is taken possession of by the state, the title does not vest in the state, till the amount of the damages becomes fixed by appraisement.'" If, however, one in whom title to land is vested makes the claim and is awarded dam- ages during his life, the amount of the award is an asset at his death (1872) ; Walker v. Bradley, 89 Mise. ' Leggett v. Pelletreau, supra. 516, or 153 Supp. 686. * Matter of Hart, 60 Hun, 516, 15 "Walther v. Reynault, 56 Hun, Supp. 239 (1891). 560 (1890), or 9 Supp. 849. » Stilwell v. Melrose, 15 Hun, 378 On oil or gas lease as real proper- (1878). ty, see note in 42 L.R.A.(N.S.) 472. * Warren v. Leland, 2 Barb. 813 "Miller v. Knox, 48 N. Y. 232 (1848). (1872). sc. C. P. § 2673. «» Leggett V. Pelletreau; 213 N. Y. « Id. 237, 107 N. E. 509 (1914) ) Miller v. ' Id. Knox, 48 N. Y. 232 (1872). « Id. On executor or administrator of ' C. C. P. § 2672, subd. 9. lessee as an assignee of the lease lia- '"• Ballpu v. Ballou, 78 N. Y. 325 ble for rent, see note in 52 L.R.A. (1879). (N.S.) 987. 236 § 220 ADMINISTRATORS which goes to his personal representative.^^ The surrogate's court may compel an executor or trustee to account, as part of the estate assets, for real estate in which moneys of the estate have been in- vested, if the facts surrounding the investment are such that it may be treated as personalty." An executor has no claim to the sur- plus funds of a partition action when the realty partitioned was directly devised to one for life with remainder to another and the executor was given no control or power over it.** The proceeds of the sale of realty under a power for the purpose of paying legacies, insofar as they exceed the legacies, are not assets but pass as realty." The interests of pewholders to their pews in a church is merely a right to use such pews when the church is open for services, which exists only so long as the church is fit for its puiposes.*^ "The sale of a pew in a church is the sale of an interest in real estate." *' A contract for the purchase and sale of real estate is real estate and goes to the heirs." § 220. Id. : Fixtures. — Things annexed to the freehold or to any bixilding for the purpose of trade or manufacture, and not fixed in- to the wall of a house so as to be essential to its support, are assets." ''The true criterion of a fixture is the united application of three requisites: First. Actual annexation to the realty, or something appurtenant thereto. (2) Application to the use or purpose t-o which that part of the realty with which it is connected is appro- priated. (3) The intention of the party making the annexation to make a permanent accession to the freehold." *' Cases showing what are and what are, Aot considered fixtures and assets axe dis- cussed in the note, the facts of each case being given.^" . ;^ ^^Ballou V. Ballou, supra. On whether the interest of vendor ** Matter of Leonhard, 86 Hun, 289 or vendee in a land contract is real or (1895) , or 33 Supp. 302 ; modified personal ' property, see note in 57 152 N. Y. 645, 46 N. E. 1145. [ ' L.R.A- 643. 13 Matter of Gedney, 33 Mise. 160, The right of children as against 68 Supp. 627 (1900), seb same ease executor or administrator in home- 30 Misc. 18, 62 Siipp. 1023; C. C. P. stead of deceased parent is discussed § 1538. in note in 56 L.R.A. 63. 1* Matter of Weinstein, 43 Misc. The question whether purchase of 577 (1904), or 89 Supp. 535, testa- standing timber to be removed with- tor died intestate as to such excess, in a specified time, is a purchase of 1' Wheaton and The Trustees, etc. realty or of personalty is discussed V Gates, 18 N. Y. 392, 72 Am. Dec. in note in 13 L.ll.A.(N.S.) 278. 526 (1858) ; Witthaus v. St. Thomas' " C. C. P. § 2673. Church, 161 A. D. 208, 146 Supp. ** Potter v. Cromwell, 40 N. Y. 287, 279(1914). 100 Am. Dec. 485 (1869). i^Vielie v. Osgood, 8 Barb. 130 ^'Valuable and salable looms in, (1849). but unconnected with a factory, are " Grifflth V. Beecher, 10 Barb. 432 assets. (Mui-dock v. Gifford, 18 N. fl851) Y. 28 (1858) and (Potter v. Crom- ^' 237 NEW YORK ESTATES AND SURROGATES § 221 § 221. Id.: Secured Debts. — Debts secured by (a) mortgages, well, supra) — Salt kettles, though so Machines attached by braces and attached to the land that several nails to a building when it was put bricks have to be removed to detach up solely to a,ccommodate them and each kettle, are nevertheless personal always, continuously so attached are property and probably assets. (Ford fixtures, and not assets (Laflin v. V. Cobb, 20 N. Y. 344 (1859)— Assets Griffiths, 35 Barb. 58 (I860)).— Gas include a planer not fastened to any- ranges connected with a building by thing, held in place by its own weight, , the usual service gas pipe and a, stove- connected with machinery by a belt pipe flue, the former of which could that can be slipped off, and which be severed by simply upscrewing a can be taken up and set to one side coupling and the latter by lifting it (Wells v. Maples, 15 Hun, 90 out of the aperture made for it, are (1878) ) ; or a shingle machine not not so attached to the building as to framed or fastened to the floor except become as a matter of law part of it for a strip on one side to prevent (Central Union Gas Co. v. Browning, slipping and a portion of a post in 210 N. Y. 10, 103 N. E. 822 (1913) ). the building, wherein the space so Plate-glass' mirrors erected by a formed it is wedged, even though put lessee in premises leased for a in place for permanent use. (Wells bar-room, extending- the whole V. Maples, supra). — A wooden struc- length of a wall, 5 or 6 feet ture on a foundation sunk on above a wooden band on a wain- three sides in the ground and made scoting, and having above them a of brick and stone, which has one brick wall plastered with eomiee and side wall higher than the others be- frescoing, with blocks inserted be- cause built on the side of a hill, and tween the bricks on which the mir- has the earth within its walls level rors' frames were screwed and the with the outside surface, and a din- mirrors' glass set in the frames back ing room built within the waljs and against the walls, with the joints below the, wooden structure in which around the edges ceniented, so that are ranges, boilers, gas-fittings and the mirrors form a part of the finish other fixtures, on a floor laid above of ^he room, are removable during the ground's surface, and used in a the lease of the tenant or his repre- tenant's business, are removable by sentatives, as trade fixtures (Robin- him (Livingston v. Snlzer, 19 Hun, son v. Pratt, 151 A. D. 738, 136 Supp. 375 (1879)),— Priina facie a pump 98 (1912)). and pipe, balances, seals and a beer On gas stoves as fixtures, see note pump are personalty and assets, and in l7 Ii.R.A.(N.S.) 699. whether they are annexed to the free- Wheth|er a heating apparatus is hold so as to become realty is a ques- part pf realty, where rights of heir tion of fact (Hovey v. Smith, 1 or devis,ee are involved, is taken up Barb. 372 (1847)).— A machine for in 1 B. R. C. 982. carding, spinning, twisting, balling. On window fronts as fixtures, see preparing and packing cottoji yarn note in 41 L.R.A.(N,S.) 1022. As to and twine, standing on a mill's floor, whether storm windows and doors over openings for the passage of and screens are fixtures, see note in leather /belts by which it is moved, not 30 L.R.A.(N.S.,) 1189. On a cold fastened to the building or otherwise, storage plant as fixture, see note in except in a few cases of cleats tacked 30 L.R.A.(N.S.) 576. On engine as to the floor to make it level, which is flxture when placed upon tbe land by conveniently removed without injury the owner of the realty, see note in to itself or the building, is not a fix^ 8 L.R.A.(N.S.) 376. On show cases, ture, but an asset. (Vanderpoel v. shelving, ete^, as fixtures, see note in Van Allen, 10 Barb. 157 (1850)).— 43 L.R.A.(N.S.) 675. 238 § 222 ADMINISTRATOES (b) bonds, (c) notes, or (d) bills,^ are agsets. Land bought in by a representative on foreclosure of mortgage held by his decedent is held as personal property which the representative may sell.^ The surplus from a foreclosure sale of mortgaged lands made after the mortgagor's death is deemed real estate over which the administra- tor has no jurisdiction.* § 222. Id. : Crops and Produce. — Assets include crops growing on the land of the deceased at the time of his death,* and every kind of produce raised annually by labor and cultivation except growing grass and fruit ungathered.^ Growing grass partakes of the nature of the realty and is not assets, but follows the land ; while corn, and other annual crops produced by care and cultivation, which do not grow spontaneously are chattels and assets for the payment of debts,^ even as against the devisee.'' Growing crops of grain and vegetables, such as wheat, corn and potatoes, the annual produce of labor and of the cultivation of the earth are chattels which go to executor, while growing trees, fruit and grass, the natural produce of the earth, which grows spontaneously and without cultivation, are parcel of the land and go to the heir.' The latter may be severed in law from the land and become personal property without actual severance, e. g., by the owner of the land in fee selling trees or grass to a third person or selling land and reserving timber, trees or grass.' If the land on which the crops are growing has been devised in such form as to convey it- to the devisee, the crops are like chattels specifically bequeathed, cannot be sold to pay general legacies and can be sold to pay debts only after the other assets, not specifically bequeathed, have been applied.^" A sale by a repre- sentative of growing crops, is presumptively regular; so that pur- 1 C. C. P. § 2673. Sherman v. Willett, 42 N. Y. 146 "Haberman v. Baker, 128 N. T. (1870); Bradner v. Faulkner, 34 N. 253, 13 L.R.A. 611, 28 N. E. 370 Y, 347 (1866). (1891) — intestate ; Lockman V. Reilly, On classification of growing fruit 95 N. Y. 64 (1884) — intestate. as real property, see note in 16 ' Dunning v. Ocean Nat. Bank, 61 L.R.A. 103. N. Y. 497, 19 Am. Rep. 293 (1875) ; ^ C. C. P. § 2673. Matter of Knapp, 25 Misc. 133, 54 « Matter of Chamberlain, 140 N. Supp. 927 (1898). Y. 390, 37 Am. St. Rep. 568, 35 N. Whether surplus realized on fore- E. 602 (1893). closure sale of real estate after '' Matter of Chamberlain, supra, mortgagor's death is to be deemed ' The Bank of Lansingburgh v. real or personal property is dis- Crary, 1 Barb. 542 (1847) ; Warren cussed in note in 19 L.R.A. (N.S;) v. Leland, 2 Barb. 613 (1848). 723. ' The Bank of Lansingburgh v. * C C P. § 2673; Matter of Cham- Crary, supra; Warren v. Leland, su- berlain, 140 N. Y. 390, 37 Am. St. pra. Rep.' 568, 35 N. E. 602 (1893) ; Stall " Stall v. Wilbu;r, supra; Bradner V Wilbur, 77 N. Y. 158 (1879) ; v. Faulkner, supra. 239 NEW YORK ESTATES AND SURROGATES § 223 chasers need not show, to make their purchases valid, that the sale was necessary for payment of debts.^^ § 223. Id. : Rents. — Rents reserved on any lease made after June 17th,' 1875, on the death of a decedent interested in such rents or in the estate or fund from or in respect to which such rents issue or are derived, in a proportion determined according to the time which shall have elapsed from the coriimencement or last period of payment thereof, as the case may be, including the day of the death of the decedent, after making allowance and deductions on account of charges on such rents/^ are assets. Eents becoming due under leases by decedent of lands owned by him on a day certain, at one o'clock in the morning of which the decedent died, go to his estate because the decedent was alive and 'in possession of such lands on the day on which the rents accrued, and the law takes no account of fractions of a day.** Eents reserved to the deceased which had accrued at the time of his death ** are assets. So, rents due in advance on leases by decedent of realty which he at death owned, payable on the day at one o'clock in the morning of which he died, are assets ; because the law takes no account of fractions of a dsiy, and the decedent was alive and in possession of the property on the day the rents accrued.** The proceeds of a dairy farm which a per- son was entitled to receive under a contract for jointly working the farm with another on such person's death are not rent, but simply earnings of such person's personal property (his cows) and must be so accounted for.*^ The proceeds of milk to which a decedent would have been entitled if living under an agreement with another to work a farm are assets of his estate.*'' An administrator, widow of the intestate, who lives in the latter's leased house after his death for seven months is not chargeable with rent for the period, when she used reasonable efforts. to rent it and stayed in it to help rent it, against her own wish.*' Bent for a quarter year of land of 'which a decedent was life-tenant dpes not go to the latter's legal represen- tative if, the life-tenant died however short a time befojre the quar- ter ended.*^ A claim fori rent accrued and fully due during an intestate's life, in whichhe had an undivided interest, is a personal asset which his administrators can sell.^" The statutbry right of an ** Sherman v. Willett, supra. *' Matter of Strickland, 10 Misc. *2 C. C. P. § 2674. ■' 486 (1894), or 32 Supp. 171. ** Matter of Hegen, 40 Misc. oil *" Matter of Schroeder, No. 1, 113 (1903), or 82 Supp. 791. A. D. 204 (1906), or 99 Supp. 176; *4 C. C. P. § 2673; Ely v. Ely, 163 afi'd 186 N. T. 537, 78 N. E. 1112. A. D. 320,148 Supp. 691 (1914). *» Marshall v. Moseley, 21,N. Y. 16 Ely V. Ely, supra. 280(1860). 16 Matter of Ellis, 78 Misc. 589 «" Matter of Eoulds, 35 Misc. 171, (1912), or 139 Supp; 1011, executor. 71 Supp. 473 (1901). 240 . §§ 224, 225 ADMINISTRATORS adnlinistrator or executor to collect rents of his decedent's realty is discussed elsewhere.^ § 224. Id.: Payments Due at Fixed Periods. — All annuities, divi- dends and other payments of every description made payable or becoming due at fixed periods under any instrument executed after June 17th, 1875, on the death of a decedent interested therein or in the estate or fund from or in respect to which such annuities, dividends and other payments issue or are derived, in a proportion determined according to the time which shall have elapsed from the commencement or last period of payment thereof, as the case may be, including the day of the death of the decedent, after making allowance and deductions on account of charges thereon,^ are assets. Dividends declared after the death of one to whom all dividends were to go, by agreement, during his life, are not assets.^ Alimony, whether accrued or not at a wife's death, is not an as- set of her estate.* The reason is that "a decree for alimony . '. . does not create, but rather defines and makes specific, the husband's original obligation, which continues notwithstanding the divorce. It does not . . . create a debt ... it does not change the character of the obligation, which is purely personal and solely for the support and maintenance of the wife . . . upon the death of the wife . . . the obligation of support and maintenance ceases." * Alimony which accrued prior to the wife's death is not a personal claim that dies with her, but a right which survives in favor of her personal representative.* § 225. Id.: Accounts and Circulating Medium. — Accounts, money, bank bills and other circulating medium — all are assets ; '' except that money.or other personal property not exceeding in value $150 is exempt to a widow or husband or minor child or children from * See § 289, infra. titled by wiU or statute to an aUow- * C. C. P. § 2674. ance for support and maintenance to On apportionment of income upon accumulations undrawn and unex- death of life beneficiary between dis- pended at the time of her death, see tribution periods, see note in 27 note in 9 L.R.A.(N.S.) 997. L.R.A.(N.S.) 449. *Faversham v. Faversham, 161 A. On apportionment of annuities in D. 521 (1914), or 146 Supp. 569. absence of statute, see notes in 63 ^ paversham v. Faversham, supra. L.R.A. 616; 29 L.R.A.(N.S.) 775. * Van Ness v. Ransom, N. Y. L. J. On the right as between life ten- Aug. 4, 1915 (Court of Appeals), ant and remainderman, in dividends On abatement by death of bill for or distributions made by corpora- ahmony, see note in 2 L.R.A.(N.S.; tions, see notes in 45 L.R.A. 394; 12 242. L.R.A.(N.S.) 768; 35 L.R.A.(N.S.) ^ C. C. P. § 2673. 563; 50 L.R.A.(N.S.) 510. On the question of validity of pro- 3 Matter of Kane, 64 A. D. 566, 72 vision that money shall be payable Supp. 333 (1901). to obligee only and not to his estate, On the right of estate of one en- see note in 17 L.R.A.(N:S.) 1239. N.'Y. E. & S.— 16. 241 NEW YORK ESTATES AND SUBROGATES § 226 being deemed assets.' Commissions due a testator as trustee on a fund collected by his executor, awarded to the latter on his account- ing as "executor's commissions" are assets of the testator.® Costs awarded against an executor "personally" by a surrogate's decree and payable from his own estate are not a fund or assets in his hands as executor." A deposit made by a husband in his life in a savings bank in the joint names of himself and his wife with the intent that either might draw the whole or any part of it during their joint hves and that, on the death of either, the survivor should own it, is not assets on the husband's death before his wife, but goes to her." The title to bank deposits in the name of a testator bequeathed to his executor is vested in such executor-legatee subject only to payment of the testator's debts so that on the death of the executor-legatee intestate the title to the deposits passes to his administrator.*^ Money of a hus- baAd invested by him in securities in his own and his wife's name, in the absence of explanation belongs to her on his death.** Execu- tors are not chargeable on their accounting for moneys assigned and transferred by their testator before death to one in trust for his children." One named executor who was given, on the day the will was executed, an order on a bank for an amount in his testa- tor's name, drew it out, redeposited it the next morning on the af1>- ernoon of which the testator died, and makes no claim to it as a gift, holds it not as debtor but as executor and must account for it as such.*^ § 226. Id.: Corporate Stock.: — Stock in any corporation or joint stock association*' is assets. One named executor need not account for a certificate of stock which the testator had once owned but which the executor possessed at the testator's death, even though he had once been agent of it for the testator and had afterwards given it back to the testator, who had then for a time kept it in his (the testator's) box with other securities; but for stock put in his hands to sell when he sold his own, and which he did sell after the testa- tor's death but before he was granted letters, he is chargeable at its highest market value after the date of sale." ' See § 228, infra. " Matter of Debbe or Rapelje, 66 9 Matter of Butlfer, 66 Misc. 409, Misc. 414 (1900), or 123 Supp. 287. 123 Supp. 279 (1910). ** Matter of McAleenan, 53 A. D. "Matter of Feehan, 36 Misc. 614, ^93 (1900) or 65 Supp 907, afE'd 70 Q „ 110R nQm^ 1^5 N. Y. 645, 59 N. E. 1125. upF^; n^ KK^1 TT AA^ "Matterof Toohey or Brintnall, /-.cJn ^- ^'^^^' ^ ^"°' ^' 40 Misc. 67 (1903), or 81 Supp. 250 (1886). « c. C. P. § 2673., 12 Hauptmann v. First National i7 Matter of Mitchell, 36 A. D 542 Bank, 83 Hun, 78, 31 Supp. 364 (1899), or 55 Supp. 725; aff'd 161 (1894). N. Y. 654, 57 N. E. 1117. 242 § 227 ADMINISTRATORS § 227. Id.: Claims Owing Decedent by Representative, Legatee, etc. — Any. just claim against a person named as executor in a testa- tor's will, whether due or to become due, must be included among the credits and effects of the deceased in the inventory; and the naming of the debtor in the will does not operate as a discharge or bequest of such claim, but the executor is liable for it as for so much money in his hands at the time the debt or demand becomes due, and must apply it and distribute it in the payment of debts and legacies, and among the deceased's next of kin, as part of the de- ceased's personal property.^' Even a discharge or bequest in a will of a debt or demand of the testator against either an executor named in the will or any other person is not valid as against the creditors of the deceased, but must be construed only as a specific bequest of such debt or demand ; and its amount must be included in the in- ventory and, if necessary, must be applied in payment of the dece- dent's debts, and, if not necessary for that purpose, must be paid in the same manner and proportion as other specific legacies.*^ The claim of an estate against an executor must be tried by the surro- gate in the same way as the claim of an executor against his testa- tor; because the executor as the testator's representative cannot sue himself individually on such a claim, which must in some way be decided before the estate can be settled.^' Although the appoint- ment by a creditor of his debtor as executor does not discharge the debt, yet the liability of the executor is not such that he can be attached for contempt if he cannot, because of insolvency, pay the money pursuant to the surrogate's decree on his accounting, as he could be if he had actually received payment from another debtor ; or that he can be held for embezzlement under the same circum- stances.^ Executors should not pay from estate assets an indebted- ness of one of their number, claimed to be that of the estate, until its character as an estate debt has been established judicially.* Payment by an executor from his individual property of the amount due by him to the estate in discharge of decedent's debts and legacies avoids On personal liability of executor Gregor v. McGregor, -35 N. Y.: 218 and administrator on corporate stock (1866). belonging to estate or trust standing On the question of debt as asset on in his name, see note in 30' L.R.A. appointment of debtor as e ecutor or (N S 1 1092 administrator, see note in 26 L.R.A. On the liability of corporation 19 A p p s ortq transferring stocks on books at re- 20 E'verts V. Everts, 62 Barb. 577 quest of personal representative or n862) deceased owner, see note in 45 L.R.A. 1 Baiicus v. Stover, 89 N. T. 1 (N.S.) 1079. (1882). "C. C. P. § 2673; SoverhiU v. z Matter of Titus, 86 Misc. 375, 148 Suydam, 59 N. Y. 140 ,(1874) ; Mc- Supp. 359 (1914)'. 243 NEW YORK ESTATES AND SURROGATES § 228 and nullifies his indebtedness to the estate arid any liens on his in- dividual property by which the debt may have been secured ; but if his debt is payable at a future time he remains liable until maturity So that a lien for the indebtedness on his land cannot be effected in the meantime so as to allow subsequent incumbrances to acquire a priority over it.' Clear evidence must be presented to justify a finding that a debt of a legatee to a testator is released by a bequest by the latter to the former, made either without mention of the debt or with such mention of it that the intent to release it is doubtful, if the security for the debt is found after the testator's death un- cancelled among the testator's properties.* ' § 228. Id,: Goods, Wares and Merchandise and Exemptions, In General. — Goods, wares and merchandise, furniture, cattle and pro- visions — all are assets ; ° except that these articles, if in the aggre- gate they are five hundred dollars or less in value, are not deemed assets of a decedent who has a family and leaves a widow or husband or minor child or min6r children! — (1) All house- keeping utensils used in and about the house and premises; (2) all musical instruments used in and about the house and premises ; (3) all sewing machine (s) used in and about the house and prem- ises; (4) all household furniture used in and about the house and premises ; and in addition these articles, whatever their value, are not deemed assets of such a decedtent: (5) the family Bible, family pictures and school books used by or in such family; (6) books not exceeding fifty dollars ($50.00) iri value which are kept and used as part of the family library; and, (7) domestic animals with their necessary food for sixty (60) days, not exceeding in value one hundred arid fifty dollars ($150.00) ; and (8) money or other per- sonal property not exceeding in value one hundred and fifty dollars ($150.00) ; and this last is the whole allowance of exemption which can be allowed in money or other property; so that if there be no housekeeping utensils, musical instruments, sewing machine, household furniture, fuel, provisions, clothing, family Bible, family pictures, school books or domestic animals with their food, no al- lowance can be made in money for them.° A cash allowance can- not be substituted for non-existing articles allowed by statute to be set off to a husband.'' Cows cannot be set off as furniture, etc., to the widow to make up the amount of furniture, etc.,' allowed her as » Soverhill v. Suydam, 59 N. Y. 140 (1908), or 110 Supp. 708; old Code (1874). § 2713, new Code, § 2670. * Matter of Foster, 15 Misc. 175. 'Matter of Griffin, 118 A. D. 515, (1895), or 37 Supp. 36. 103 Supp. 345 (1907): by analogy 6 C. C. P. § 2673. from old to new Code; the ease hold- ^ C. C. P. § 2670. ing that when household furniture is 'Matter of Baird, 126 A. D. 439 worth less than $150, cows cannot, 244 § 229 ADMINISTRATOES exemptions. A widow may maintain conversion to, recover prop- erty of, her husband reserved to her by statute, as it never becomes assets or subject to the administrator's possession although he must inventory it; and she cannot, therefore, reduce it to possession or enjoyment through administration in the surrogate's court.' The right of statutory exemptions to a widow passes on her death after her husband, but before accounting had of his estate to her repre- sentatives, as the policy of the statute is not confined to giving her specifically certain articles but to set off a certain valuation of her husband's estate to her.*" A claim for allowance of her statutory exemptions is not waived by a widow who returns an inventory of her deceased husband's estate without mention of set-off, unless proof shows she intended thereby to waive.** A widow's claim for set-off to her of statutorily exempt property is lost if on a proceed- ing before the surrogate, which showed all the estate had been used up by the administrator, her attorney called the court's attention to the omission of any set-off to her, even though the widow was out of the country when administration was granted a creditor.*'' Al- though an administratrix who is also the intestate's widow does not set aside her statutory exemption and claims no credit therefor on rendering her account, nevertheless the court may set it aside for her on such accounting.*' § 229. Id.: Compulsory Setting Apart of Exemptions. — A hus- band, wife, or child of a decedent may make a petition when (1) an administrator or executor has failed to set apart articles for hirft or her or (2) such articles have been lost or disposed of or (3) such articles have been injured,** conforming in general to the standard petition in any proceeding in a surrogate's court,** praymg that a citation issue to such administrator or executor to show, cause why a decree should not be made requiring him (a) to set apart prop- erty for the petitioner; or (b) to pay the petitioner the value of such property ; or (c) to pay the petitioner the amount of the in- jury to such property — as the case may demand.*^ A cita- tion requiring an administrator or executor to show cause why he should not set apart or pay the value of property or the in- Tinder the old Code, be set off to the ** Matter of Campbell or Rdcco, 55 widow to bring the exemption to Misc. 469, 106 gupp. 677 (1907) — «150 old Code § 2481, subd. 6, in new Code 9 Crawford v. Nassoy, 173 N. T. § 2490. 163 65 N. E. 962 (1903), old Code i^j^atter of Shanley, N. Y. L. J. § 2713, new Code § 2670! May 18, 1916 (Bronx Surr.) ; C. C. *<> Matter of Hulse, 41 Misc. 307 P. § 2735. (1903), or 84 Supp. 220; old Code ** C. C. P. § 2671. § 2713, now in new Code § 2490. ** See § 787, infra. **M:atter of Hulse, 41 Misc. 307 *« C. C. P. § 2671. (1903), or 84 Supp. 220 245 NEW yOEK ESTATES AND SURROGATES §§ 230, 231 jury thereto, must issue, if the surrogate is of the opinion that sufficient cause is shown, to the administrator or executor." The citation must conform in general to the standard citation in any surrogate's proceeding" and must require the administrator or ex- ecutor to show cause .why he should not set apart the property, pay its value or the amount of the injury thereto.'® A surrogate's de-' cree in a proceeding to compel an administrator or executor to set apart or pay to a husband, wife, or child of a decedent exempt property, , its value, or the arriount of injury thereto may, in a proper case, require the administrator or executor personally to pay the value of the property or the amount of the injury thereto.^" § 230. Id.: Other Personalty, In General. — Things in action' and every other species of personal property except (a) things annexed to the freehold or to any buildings for some purpose other than trade or manufacture, and fixed into the wall of a house so as to be essential to its support, and (b) such things as descend' to the heirs or devisees with the freehold, and (c) any property, not here- inbefore enumerated, to which an heir has a right and which by the common law would descend to him,^ are assets. Money received by a representative under an agreement by his testator with another by which the latter worked the former's dairy, they divided ex- penses and profits, represents simply the earnings or avails of the personal estate of the testator and must be disposed of iii the same manner as any other increase of personalty coming into the execu- tor's hands.^ A claim against a resident of another state long enough here to be sued in good faith by an administrator here ap- pointed is assets here if the clEiim was not paid elsewhere before letters were taken out and suit was begun here.* A note taken in the individual name of an executor for a note, due his testator (in order to escape a transfer tax) is nevertheless an asset of the estate.'' A note taken jointly in the name of husband and wife, the whole consideration for which was paid by the husband, is nevertheless hers on his death and not assets of his estate. unless it is shown that a legacy by him to her was in lieu of the note.' § 231. Id.: Proceeds from Action for Death.— The damages re- covered in. an action to recover damages for a wrongful act, neglect or default by which a decedent's death was caused, or obtained " C. C. P. § 2671, * Matter of Ellis, 78 Misc. 589 " See § 799, infra. (1912), or 139 Supp. 1011. " C. C. P. § 2671. * Fox V. Carr, 16 Hun, 434 (1879). «» C. C. P. § 2671. 5 Matter of Butler, 66 Misc. 409, 1 C. C. P. § 2672, subd. 8. 123 Supp. 279 (1910). On a liquor license as asset, see ' Sanford v. Sanford, 45 N. Y. 723 note in 4 L.R.A.(N.S.) 626. (1871). « C. C. P. § 2673. 246 § 232 ADMINISTRATORS through settlement without action, are exclusively for the benefit of his or her wife, husband and next of kin.'' The damages recovered in an action therefor for injuries received by a decedent which re- sulted in his death are not assets of the estate ; because the cause of action from which they flow did not exist as decedent's death and they are of purely statutory origin, for the benefit of the deceased's husband, wife or next of kin only ; and are not subject to the pay- ment of his debts.* The judgment collected by a personal repre- sentative in a statutory action to recover damages for the death of a decedent is not general assets so as to be subject to the payment of debts, etc., but goes to the next of kin as prescribed by statute as unbequeathed assets.' A recovery in England of damages for the death of an intestate on the administrator's accoimting here will not be considered part of the intestate's general estate, but as be- longing to those for whose benefit the action was given ; and, in the absence of any division by the statute of the amount of recovery, those entitled will get equal shares, at least when they are the in- testate's wife and child.^" The proceeds of an action for the death of a nonresident testator dying in another state will be distributed in this state according to ite statute, not as general assets of the de- cedent, but for the benefit of those named in the statute, when the decedent left personalty in this state and his will was proven here,^ but the proceeds will be given to the husband, when the foreign statute so prescribes, even though he was divorced by the decedent in such foreign state, if the proceedings did not bind him under New York law, because he was not served personally and did not appear.^ § 232. Id.: Insurance, Fire.— A fire insurance policy, after a loss has occurred, is a chose in action.' The right to collect on it is in the legal representative.* But if on real estate, as the heirs alone of the intestate are damnified, they are entitled to the indemnity recovered.' The proceeds of a policy of fire insurance on buildings ' C. C. P. § 1903. " Matter of Olsen, 89 Misc. 719 8 Stuber v. McEntee, 142 N. Y. 200, (1915), or 153 Supp. 1094; 9 and 10 36 N. E. 878 (1894). Victoria, c. 93, § 2. Whether administration based on ^ Matter of Degaramo, 86 Hun, right of action for negligent killing 390 (1895), or 33 Supp. 502. of a person is an asset, see note in 1 * Matter of Degaramo, supra. L.R.A.(N.S.) 885. » Matthews v. American Central » Mundt V. Gloken, 24 A. D. 110 Ins. Co. 154 N. T. 449, 39 L.R.A. 433, (1897), or 48 Supp. 940; dism'd 61 Am. St. Rep. 627, 48 N. E. 751 160 N. Y. 571, 55 N. E. 297; Matter (1897). of Snedeker v. Snedeker, 47 A. D. * Matthews v. American Central 471 (1900), or 63 Supp. 580; aff'd Ins. Co. supra; Wyman v. Wyman, 164 N. Y. 58, 58 N. E. 4; C. C. P. § 26 N. Y. 253 (1863). 1902. * Wyman v. Wyman, supra. 247 NEW YOEK ESTATES AND SURROGATES § ,233 which belonged to an intestate and which have come to the admin- istrator's hands are not assets but are held by the administrator in, trust for the intestate's heirs, unless, the personal estate of the intes- tate is insufficient to pay his debts.* The proceeds of a policy of fire insurance on a decedent's buildings with loss payable to his estate are assets even though the decedent's son (later appointed administrator) insured the buildings by reason of the intestate's in- solvency and claims the making of the policy payable to the estate was the insurance agent's errorJ § 233. Id. : Insurance> Life. — By statute,' the amount of life in- surance bought by the excess of the premium over five hundred dollars, is assets distributable to the insured's creditors, if the de- ceased insured's estate is insufficient to pay his just debts ; ® but is distributable in the course of administration as a fund for all cred- itors, so that it cannot be reached by one creditor, or any number of creditors by action, until such administration shows there are no other assets sufficient to satisfy creditors.^" The interest in an in- surance policy on a husband's life payable and issued originally to his legal representatives and later assigned to his wife, on her death intestate goes to her representative and may be collected on the husband's death by such representative's assignee.^* An insurance policy payable to the insured, his legal representatives and assigns, means his executors or administrators.^^ Premiums paid by a de- cedent for life insurance in fraternal benefit societies or benefit or assessment associations as distinguished from "old line" insurance corporations are not to be computed or considered in determining whether the surplus of insurance purchased by an insolvent dece- dent on his life in excess of annual premiums of $500 goes to cred- itors or not, e. g., if the total premiums for all life insurance exceed $500, but those for insurance in the "old line" companies are under $500, the creditors can get nothing." Premiums over $500 paid for life insurance on an intestate's life are not assets unless it is 6 Matter of Kane, 38 Misc. 276 558, 72 Supp. 328 (1901)— adminis- (1902), or 77 Supp. 874. trator. ' Matter of Estate of O'Connell, 1 ^'^ Leonard v. Harney, 173 N. Y. Misc. 50, 22 Supp. 914 (1892). 352, 66 N. E. 2 (1903). Policy pay- ' L. 1896, c. 272, § 22. able to insured's testamentary nomi- ' Battel V. Domeyer, l75 N. Y. 205, nee, at all times assignable, is prop- 67 N, E. 433 (1903) — intestate, erty of insured's estate on decease The question as to the right of and one specifically bequeathed it beneficiary as against estate of in- takes except as to insured's creditors, sured to proceeds of endowment in- ^' Dominick v. Stern, 79 Misc. 271 surance is taken up in note in 52 (1913), or 139 Supp. 59; afE'd 142 L.E.A.(N.S.) 689. Supp. 1115, Dom. Rels. L. § 52, In- 1" Id. surance L. §§ 212 and 238. 1* Morchauser v.. Pierce, 64 A. D. > ^ 248 § 234 ADMINISTRATORS proven that $500 was paid in any one year out of the intestate's funds.^* A sum to which an intestate is entitled from an account in his name as agent for a company for services rendered is not assets when it is all used to pay for the expenses of the intestate's last sickness and funeral." A creditor seeking to reach as assets of a decedent the amount of insurance upon his life purchased with premiums exceeding $500 a year cannot proceed directly against the insurance fund without regard to the condition of the estate generally, but must have ascertained that the assets of the estate are insufficient to satisfy creditors' claims (the insurance fund not being assets).*' The orderly procedure is by a representative action to establish the lien after the assets of the estate have been exhausted and the amount required to pay the remainder of the husband's debts has been established by a decree of the surrogate." The amount payable on a policy of insurance of a decedent's life "to the said assured, his executors, administrators or assigns ... for the benefit of his widow, if any," is not, if the widow survive, assets of his estate though paid his executor, as it belongs to the widow by the contract and the executor simply holds as trustee for her and not as testamentary trustee.*' A widow antenuptially agreeing not to demand any interest in personalty left by. her husband is not estopped from claiming the proceeds of a policy of insurance on his life payable to him, his executors, etc., "for the benefit of his widow, if any ; " because such proceeds never belonged to her husband's estate and his personal representatives received it only as trustees for her benefit.*' The exemption from creditors' claims against a decedent in favor of his wife of insurance on his life purchased with premiums not exceeding $500 a year is by a statute which relates to the remedy ; so that the state has a right to change the exemption before the fund reaches the wife; and, therefore, the proceeds of policies issued before the statute's enactment are subject to its pro- visions.*". A fund given by a decedent to one by designation, pur- suant to the charter of an organization of which he was a member, is not assets of his estate, even though he later by will gives the same fund to the same person,* § 234. Assets and Personalty; Discovery: In General. — To assist an administrator or executor in his bounden duty to collect the ** Matter of Goss, 71 Hun, 120, 24 *' Van Dermoor v. Van Dermoor, Supp, 623 (1893), L. 1870, c. 277. 80 Hun, 107 (1894), or 30 Supp. 19. ^5 Matter of Goss, supra. »» Matter of Thompson, 184 N. Y. *6 Matter of Thompson, 184 N. T. 36, 76 N. E. 870 (1906). 36, 76 N. E. 870 (1906). *Bown v. Catholic Mutual Bene- i' Matter of Thompson, supra. fit Association, 33 Hun, 263 (1884). *' Matter of Van Dermoor, 42 Hun, 326 (1886). 249 NEW YORK ESTATES AND SyRROGATES § 235 assets of his deeedent, assistance is given him to discover whether such assets exist and where they are,^ so that he may then collect them. The method of seeking assistance is by a petition praying an inquiry respecting money or other personal property which should be delivered to the administrator or executor, and an order requiring the person who has the property, or information about it, to attend the inquiry for examination, and requiring such per- son to dehver the property if in his control.' It is to be noted that the proceeding for a discovery is available not only when personal property of a decedent is in the possession of a person who with- holds it from the administrator, but also when such person has knowledge or information of personal property of a decedent which should be delivered to the administrator or executor or included m an inventory or appraisal.* It may be that proceedings for a dis- covery in surrogates' courts do not contemplate summary collec- tion of a debt * or an accounting by or examination of a debtor to ascertain his liability, to the estate® but are designed for the dis- covery of specific property or money belonging to the decedent and withheld from his representatives ; '' yet the statute now directs the surrogate, if issue is raised by answer as to the title or right to posses- sion of the respondent, to the property involved, to hear and deter- mine the issue, and to make a decree directing that the property, be delivered to the petitioner or that the petitioner or respondent have possession of the property, according to the determination reached on this issue.' The statutory provisions dealing with the possession of articles sought to be discoveredby legal representatives as belonging to their decedents do not conflict with the due process of law or jury sections of the Constitution.* § 235. Id. : Petition and Affidavit. — A petition in a discovery pro- ceeding can be presented only to the court from which the letters «C. C. P. § 2675. (1896), or 42 Supp. 346;. under old - ' Id. . , Code, holding no decree could be en- * Matter of O'Brien v. Baker, 65 tered when the party examined testi- A. D. 282 (1901), or 72 Supp. 1001; fled he had no account of the amounts under old Code § 2707, similar to new paid by him from moneys he had Code § 2675 in this respect. received from the decedent but did ? Matter of White, 119 A. D. 140^ have a certain sum left which the de- 103 Supp. 868 (1907), old Code § cedent had told him he was to keep. 2707 et seq., a deposit in a bank by ' Matter of White, supra, decedent; Matter of Stewart, 77 Hun, « C. C. P. § 2676. 564 (1894), or 28 Supp. 1048; old » Matter of Curry, 25 Hun, 321 Code § 2709, money given by dece- (1881), old Code §§ 2706 to 2714, dent in lifetime to a third person for which, however,' did not permit the which latter became indebted to es- trial of any issue of title raised in tate. the proceeding in any event as does 6 Matter of Carey, 11 A. D. 289 new Code § 2675 et seq. 250 § •■^30 ADMINISTRATORS of the admiiiistrator or executor of the estate regarding which the proceedings take place issued; and by such administrator or execu- tor, i" The general form of a petition in a discovery proceeding is like that of a standard petition in any proceeding in a surrogate's court." From the very purpose of the proceeding, the petition need not be very definite.*^ It must state, on knowledge, or information and belief: (1) The issuance to the petitioner by the surrogate's court tq which the petition is presented of letters testamentary or of administration on the estate as to assets of which discovery is sought ; (2) any facts tending to show that money or other personal prop- erty which should be either delivered to the petitioner or included in an inventory and appraisal is in the possession or under the con- trol of a person, or that such person has knowledge or information thereof; and that such person withholds such money or property from the, petitioner or refuses to impart his knowledge or informa- tion thereof or to disclose any other fact which will aid the petition- er in making discovery thereof; (3) the prayer for the relief sought, viz;, an inquiry respecting the money or other personal property ; an order to the respondent to attend such inquiry and be examined accordingly ; and an order requiring respondent to deliver the mon- ey or other personal property, if in his control. ^^ Accompanying the petition may be an affidavit or other written evidence tending to support the allegations of the, petition.^* A petition for exami- nation to discover estate assets is properly dismissed which does not show (if such be the fact) that there were two administrators, but shows only one.^^ § 236. Id.: Order. — Citation does not issue in discovery proceed- ings ; but an application for a citation may be granted with the mod- ification that the usual order be entered and served according to law.^^ The procedure is by an order to attend, not by citation.^'' A subpoena will issue if desired.'* An order according to the petition- er's prayer must be issued by the surrogate if he is satisfied from the papers presented i. e., from the petition and accompanying affidavit or other written evidence, that there are reasonable grounds for the inquiry soughf An order will not, however, be granted simply " C. C. P. § 2675; see L. 1898, c. i*Id. 230, §§ 7, 8, 9, as to discovery, etc., "Matter of Slingerland, 36 Hun, by Public Administrator. "Public 575 (1885). Administrators" Law, §§ 7, 8, 9; and '^ Est. of Sciacca, N. Y. L. J. Jan. § 230 infra. " 6, 1915 (Bronx Surr.), C. C. P. § " See § 787, infra. 2675. i« Matter of Gick or Stumpf , 49 " Est. of Molostowsky, N. Y. L. J. Misc 32 (1905), or 98 Supp. 299; Oct. 29, 1914 (Bronx Surr.). afi'd 113 A. D. 16, 98 Supp. 961. " Id. 13 C. C. P. § 2675. 19 C. C. P. § 2675. 251 NEW YORK ESTATES AND SURROGATES § 237 to secure to the petitioner information which he needs to describe the property in a complaint in an action which he has begun to recover it.^" The order inay be made returnable either forthwith or at a future time fixed by the surrogate.^ It may be served at any time before the hearing. The service must be made by delivery of a certified copy to the person or persons named therein and by pay- ment or tender to such person or each such persons of the sum re- quired by law to be paid a witness subpoenaed to attend a trial in a surrogate's court.^ § 237. M. : Hearing or Trial. — The person directed to appear on an examination in discovery proceedings must be sworn to answer truly all questions put to him touching the inquiry prayed in the petition if such person (a) submits an answer denying any knowl- edge concerning, or possession of any property which belonged to the decedent in his lifetime; or (b) makes default in answer; or (c) submits an answer which alleges title to, or right to possession of, any property involved in the inquiry.' If issue is raised by answer to the title, or right to possession, of the respondent,' to the property involved, the issue must be heard and determined.* The ordinary rules of evidence govern.' If the "answer simply alleges that a third party claims an interest in the property, an issue is hardly raised" between the legal representative arid the respondent, of which issue only it would seem the surrogate has jurisdiction.® If the answer denies possession in the respondent, the latter must be examined, but before the surrogate alone until he is satisfied there is a genuine issue of legal title.'' Then, if the controverted issue is' one of which any party has a constitutional right of trial by jury and any party appearing in the proceeding seasonably demands a 2" HaUenbeck v. Parr, 65 A. D. 167 Supp. 299, afE'd 113 A. D. 16, 98 (1901), or 72 Supp. 488. Supp. 961; Matter of McGee, 63 1 C. C. P. § 2675, Mise. 494, 118 Supp. 423; Matter of 2 Id. KeUogg, 72 Misc. 303, 131 Supp. 203 ; 8 C. C. P. § 2676. Matter of BeniofE, 73 Misc. 493, 133 *C. C. P. § 2676; Estate of Supp, 413; Matter of Stiens, 60 Schwartz, 87 Misc. 559 (1914), or Misc. 631, 113 Supp. 1105; Matter 151 Supp. 374. The old Code (§§ of Lynch, 83 Hun, 39, 31 Supp. 767; 2707 et seq.) and the decisions there- Matter of Peyser, 35 A. D. 447, 54 under divested the surrogate of ju- Supp. 832; Matter of O'Brien v. risdiction, if the issue of title was Baker, 65 A. D. 282, 72 Supp. 1001; raised, by a statement in an answer Matter of Haniman, 50 Misc. 245, 100 put in, of facts showing possession Supp. 481 ; Matter of Scott, 34 Misc. which the testimony supported. See 446, 70 Supp. 425. Matter of Packard, 53 Misc. 163, 104 * Matter of BeniofE, 73 Misc. 493, Supp. 474; Matter of O'Brien, 34 133 Supp. 413 (1911). Misc. 436, 69 Supp. 724, aff'd 65 A. « C. C. P. § 2538. D. 282, 72 Supp. 1001; Matter of '' Matter of Silverman, 87 Misc. 571 Gick or Stumpf, 49 Misc. 32, 98 (1914), or 151 Supp. 382. 252 § 238 ADMINISTRATORS jury trial the surrogate must, by order, ; direct it; or, the surrogate may, order such a trial, whether or not a party demands it and whether or not a party has a constitutional right of trial by jury.* If no allegation is made in an answer in a discovery proceeding of title to or right of possession of the property involved, the matter proceeds as an examination only and not as a trial, and in such case the surrogate's jurisdiction to direct delivery of the property should be exercised with the greatest caution.' When the answer to an administrator's petition for a discovery does not allege title to or the right to possession of the property involved, the matter proceeds before the surrogate as an examination and not as a trial. ^'' On a discovery proceeding by an administrator the surrogate may try the title to moneys deposited in bank claimed by the decedent's daughter.*^ If the respondent by answer claims title to goods sought to be discovered as surviving partner of the decedent the surrogate's determination will only go to the extent of deciding whether or not a partnership exists: if it is the affirmative, he will not take a partnership accounting and settle the division of the property the title to which is in issue, but will dismiss the proceed- ing.** If the answer of the person alleged to have the custody, pos- session or control of the property not only alleges such possession and custody but also title in the answerer, and sets forth his claims so fully as to do away with the need of his examination, and re- quires — for a proper determination of the questions raised — a deci- sion as to the validity and effect of assignments of the property (e. g., a mortgage on realty), no, jury trial can be had, as such a deci- sion would require equity jurisdiction and powers which the surro- gate does not have.'* A corporate bank in which a testator made deposits may be compelled by the surrogate to inform the executor as to what the testator's assets were, a son having from time to time had the custody of such assets deposited as security for loans." § 238. Id. : Decree. — A decree must be made directing delivery of the money or other personal property to the petitioner, if it appears that he is entitled to its possession ; or directing that the petitioner or respondent have possession of the money or other personal prop- erty, according to the determination reached on trial of the issue « C. C. P. § 2538. , i*Est. of Capria, 89 Misc. 101 9 Matter of Lowen, N. Y. L. J. May (1915), or 151 Supp. ,385. 6 1916 (Bronx Sijrr.) C. C. P. §§ i* Matter of Higgins, 91 Misc. 387, 2675-6. 154 Supp. 670 (1915), C. C. P. §§ io Est. of McKay, N. Y. L. J. Dec. 2675, 267.6. 11 1915 (Bronx Surr.), C. C. P. §§ "Matter of Richardson, 31 Misc. 2675 and 2676. 666 (1900), or 66 Supp. 94; old Code " Est. of Delmore, N. Y. L. J. Nov. § 2707. 24, 1915 (N. Y. Surr.), 253 NEW YORK ESTATES ■ AND '■ SURROGATES § 239 raised as to title ot right of possession.** When a deposed adminis- trator shows on examination in discovery proceedings that he has expended, for funeral services ■ a!nd counsel fees, moneys sought to be obtained from him, no order can be made that he turn such mon- eys over to the petitioner, as he has not got such moneys in his possession or under his control.** When, in a discovery proceed- ing, the most that appears is that the respondent was indebted to the intestate at the latter's death, no direction can be made that h6 de- liver the amount of the debt.*'' § 239. Id.: By Public Administrator. — Discovery by public ad- ministrators is treated in the note.*' ** C. C. P. § 2676. quest of the public administrator's *® Est. of Fiiikel, N. Y. L. J. May affidavit must be issued by the sur- 15, 1915 (N. Y. Surr,). rogate under his seal of office (or by *'' Matter of McMahon, N. Y. L. J. any justice of the supreme court or Apr. 3, 1916 (Kings Surr.). the recorder of the city of New York *' New York County : "Public Ad- if both the surrogates be absent from ministrators" Law, §§7, 8, 9 (L. the city), if he is satisfied that there 1898, c. 230, §§ 7, 8, 9). are reasonable grounds for suspect- The a,ssistanee of the surrogate or ing that any of the decedent's effects a justice of the supreme court or the are concealed or livithheld. (L. 1898, recorder of New York City to dis- c. 230, § 7; "Public Administrators" cover assets is obtained by the public Law). Tte time and place for ap- administrator of New < York coiinty pearance before the surrogate must by means of an affidavit which must be , stated in the subpoena ; and it show: (1) That the affiant is a,uthor- must be served in the same manijer ized to take charge of the efEects of as in civil causes. (L. 1898, c. 230, §§ the decedent; (2) that any goods, 7 and 8; "Public Administrators" chattels, credits or effects; of the de- Law.) ceased, or of which the dejeeased had ■ , Upon the appearance of anyper- posse'ssion at the time of his dea,th son subpoenaed before the surrogate or within twenty days previous there- (or justice or recorder), he must be to, have not been delivered to the sworn truly to answer all questions affiant,, nor satisfactorily accounted concerning the estate and effects of for to him by the persons who were the deceased; and must be examined about the deceased in his last sickness fully and at large; by the public ad- or in whOsfe hands any of the de- ministrator in relation to such ef- ceased's effects may be supposed at feetS; (L. 1898, c. 230, § 8. "Pub- any time to have fallen; (3)ithatthe lie Administrators" Law). If, upon affiant, has instituted an. inquiry con- any ,iiigfliry,,it appears to the surror cerning sucb effects; (4) that the gate (justice or recorder) that any affiant wants a subpoena to such per- of the deceased's effects are concealed sons as the affiant designates reqiiir- or withheld, he must issue a warrant ing them to appear before the surro- directed to the sheriff, marshals, and gate, at the time and place therein to constables of the city and county be specified, for the purpose of being where such effects may be, command- examined touching the estate and ing them to search for and seize siiph effects of the deceased. (L. 1898, c. effects, and for that purpose to break 230, § 7; "Public Administrators" open, if necessary any house in the Law.) day time; and to deliver the seized A subpoena according to the re- property to the public administrator; 254 § 240 ADMINISTRATORS § 240. Assets and Personalty, Collection: In General. — It is the duty of the administrator or executor to collect the assets of his in- testate or testator, as he alone has the right of collection.^** Claim to funds which belonged to the intestate can be made for the bene- fit of the' next of kin only through the administrator.^' No one has the right to the personalty of an intestate save his administrator in whom, on his appointment, it becomes vested by relation from the instant of the intestate's death.^" When a next of kin seeks to have distributed part of the estate claimed and held by another next of kin, he should not sue the latter and demand a money judgment for his share of the estate in his hands, but should have an adminis- trator of the estate appointed, who could then by suit collect from such, next of kin and distribute.' An executor who has notice of a claim in favor of his testator when he undertakes the office of exec- utor is under a plain duty to reduce the debt to his possession as part of the assets of the estate; and if he takes no steps to that end and allows time to run in favor of the debtor he becomes liable as for a devastavit, and if he dies his estate should make good the loss.^ If an administrator whose duty it is to sue to recover assets of the estate refuses to do so a beneficiary of the estate may brmg action to compel delivery of the assets or payment of their except that if the person in whose manner as for disobedience of any possession such property may be, or citation on subpoena issued by a sur- any one in his behalf, eAecutes a bond rogate in a ease within his jurisdic- with such sureties and in such pen- tioh.' (L. 1898, c. 230, § 8 ; "Public alty as shall be approved by the sur- Administrators" Law), rogate (justice or recorder) to the Kings Co.: — C. C. P. § 2594. public administrator, conditioned that Erie Co. : — C. C. P. § 2595. such obligors will account for and Bronx Co.: — "Bronx County" Law, pay to the former the full value of § 3 (L. 1912, c. 548, § 3). the property so claimed and withheld Richmond Co. : — "Public Adminis- ( to be enumerated in such condition), trators" Law, § 2 (L. 1910, c. 412, whenever it shall be determined in § 2). any suit to be brought by the public *'"• See § 88, supra, administrator that it belongs to the '^ Berkeley v. Kennedy, 62 A. D. estate of any deceased person which 609 (1901), or 70 Supp. 899; Hom- such administrator has by law au- ans v. N. Y. Life Ins. Co. 55 Misci thority to collect and preserve, such 574, 106 Supp. 929 (1907). warrant shall not be issued. (L. ^^ Rockwell v. Saunders, 19 Barb. 1898, c. 230, § 8; "Public Adminis- 473 (1854). trators" Law). On when the personal representa- If any person subpoenaed on a tive is not entitled to possession of public administrator's request refuses personal assets of estate, see note in or neglects to obey the subpoena or to 3 L.R.A.(N.S.) 709. answer touching the subject matter of ^ Palmer v. Green, 63 Hun, 6 the inquiry he must be attached and (1892), or 17 Supp. 441. committed to prison by the surrogate * Harrington v. Keteltas, 92 N. Y. (justice or recorder) in the same 40 (1883). 255 NEW YORK ESTATES AND SURROGATES § 240 value to tihe administrator.' The onv^ is on an executor to show a fair reason why he did not commence a proceeding to collect a debt, and it is only necessary in the first instance for him who insists upon a devastayit, tq show the existence of a debt and that the executor has taken no steps to collect it.* An executor whp seeks credit for assets not collected by him has the burden of provirig their worthlessness, as solvency, or ability to pay is presumed on the part of debtors of a decedent ; but if an executor in good faith seeks and abides by the advice of corapetent and reputable counsel as to the possibility of collecting a note and the wisdom of waiting, he is protected by acting on the advice of his counsel that he must wait before he can legally collect the note, even though, had he gone to other counsel and the latter had thought of it, he might have tried an untested legal method of protecting the note.' Executors should not take land in payment of debts if money can be had : and if they take unmarketable land when they eould have collected cash, with- out looking into the land's marketability, they are properly sur- charged with the amount thereby lost to the estate.* Executors may collect a sum furnished by their testator to his son not as a gift but as a debt either by treating it as a loan or an advancement'; but they can only have interest on it from the time they elect which remedy they will pursue." An ^executor is excused for failure to take legal steps to collect assets when there is reasonable ground to believe they would have been ineffectual, e. g., because .of the ab- solute and hopeless insolvency of a debtor ; or entire ignorance of where to find the proof to maintain the action.* An executor will not be charged with the amount of a note made by the attorney employed and trusted by him to the testator, on the theory that he was legally chargieable with notice of its existence at a time when it was collectable, because the attorney was solvent/if he actually had no knowledge of it.^ An administrator accepting administration is charged with the amount of indebtedness to the estate represented by notes and cheques of a firm of which he is a member, as so much money in his hands for the usual purposes of adniinistration ; and 8 Randal v. Dyett,. 38 Hun, 347 Trust Co. or Northrup, 92 A. D. 5 (1885)— admimstrator, pledged certif- (1904), or 87 Supp,. 318. ... icate belonging to estate with stock- '' Cole v. Andrews, 176 N. Y. 374, brokers as margin for his individual 68 N. E. 641 (1903). accou^t with their knowledge and re- ' O'Conner v. GifEord, 117 N. Y. fused to sue them when the margin 275,, 22 N. E. 1036 (1889); Matter was lost and they k;ept the certificate. of;Hosford, 27 A. D. 427 (1898), or * O'Conner v. Giflord, 117 N. Y. 50 Supp. 550— mote found in dece- ,275, 22 N. E. 1036 (1889). , dent's assets. = Matter of Joost, 50 Misc. 78, 100 » Matter of Guldenkirch, 35 Miso Supp. 378 (1906). , 123, 71 Supp. 310 (1901). ^ Matter of Long Island Loan & , , 256 § 240 ADMINISTRATORS the fact that his letters are revoked before conclusion of the admin- istration and he turned them over to his successor, who accepted them, does not affect his liability, as his personal liability therefor can be discharged only as provided by law." The administrator of a deceased assignee of a firm does not succeed to the latter 's title to the assigned estate.^^ A compromise of an interest in a real estate syndicate, equal to one-half of what the decedent would have gotten in the annual distribution of profits for the three succeeding years, will be approved by the surrogate on the executor's petition, when no one objects, even though the executor was a member of the committee of the syndicate and thereby received a certain percentage of sales and leases. ^^ A payment by a bank of a cheque after the death of the drawer if in good faith, without knowledge either of the death or of facts sufficient to cause inquiry, is a valid payment.'^ Although a savings bank's by-laws legally require production of a pass book as a condition to withdrawing deposits, yet if it provides no by-law to cover the case of a lost pass book or to demand a bond of indemnity in such case, it cannot legally refuse to pay the ad- ministrator of a depositor whose pass book has been lost the amount of the deposit unless he give such a bond.^* A person to whom let- ters are issued is liable for money or other personal property of the estate which was in his hands or under his control when his letters were issued.^^ The capacity in which such money or property was received by such executor or came under his control is immaterial to his liability.** If received by him or coming under his control by virtue of letters previously issued to him in the same or in an- other capacity to that in which the new letters are issued, an action to recover the money or damages for failure to deliver the property may be maintained upon his official bond under the new letters and also upon his official bond under the former letters.*'' The sureties *" Matter of Ablowieh, 118 A. D. pay his cheques so long as his de- 626, 103 Supp. 699 (1907). posit is sufficient for the purpose; ** Hayne v. Sealy, 22 Misc. 243 (2) that for failure to pay such (1898), or 48 Supp. 769; aff'd 35 charges the bank is liable for any in- A. D. 633, 55 Supp. 1141. jury to the depositor's credit; (3) the ** Matter of McCabe, 55 Misc. 484, impracticability of doing business on 106 Supp. 679 (-1907). any other rule. 1' Glennan v. Rochester Trust & S. ** Mierke v. Jefferson Co. Savings D. Co. 209 N. Y. 12, 52 L.R.A.(N.S.) Bank, 208 N. Y. 347, 46 L.R.A.(N.S.) 302, 102 N. E. 537, Ann. Cas. 1915A, 194, 101 N. E. 889, Ann. Cas. 1914D, 441 (1913). The reasons given are: 21 (1913). (1) That the liability of a bank to a ** C. C. P. § 2582. depositor is greater than that of the ** Id. ordinary debtor to a creditor because *' Id. its contract with its depositor is to N. Y. B. & S.— 17. 257 NEW YORK ESTATES AND SURROGATES § 241 upon the new or subsequent bond are liable to the sureties upon the fc!r,mer or earlier bond. ^' : „ ■ § 241. Id.: Collection, By Foreign Representative. — A foreign ad- ministrator may collect in this state debts or property due his de- cedent if the debtors or holders thereof voluntarily pay or deliver such debts or property, because the laws of this state are not then invoked; but when such administrator s,eeks the aid of the laws of this sta,te to collect debts or property owing or belonging to his de- cedent, he must do so through letters issued in this state.*' Payment of a debt owing by a debtor in this state to the representative of the creditor appointed in another state protects, the debtor in the ab- . sence of any notice that another claims the amount of the debt.^° Payment by a New York bank to the, administrator fippointed in the jurisdiction of the residence, of a deceased depositor, made on presentation of the pass-book and a certified copy of the foreign letters is good and protects the bank, even though before such pay- ment another person had been appointed in New York administra- tor of the deceased depositor arid guardian of his children, if the bank did not know of this dotoestic appoihtmeht and the decedent liad no creditors in New York.* A foreign adriiinistrator cannot enforce his remedies in thib state to collect' debts or securities due his intestate unless he procures Ancillary letters here or has a new administrator appointed here.* Administrators or executors ap- pointed in New York of the estate' of one domiciled in New York Avho take out letters in a foreign state in order to get property there iimst account for such property here, being protected, however, foi- anything they had to do by the laws of the foreign state in order to secure letters there.* A depositary in this state of a resident of this state cannot be made to pay the amount of the deposit to his administi'ators, appointed' in another state ^there he left no proper- ty, solely under a statute presuming the death of one not heard of for seven years ; because there was no actual proof of his death ; and ]3ayment before such proof is no' protection to the payor as it w^uld deprivb the depositor of his property without due, process of law.* An administrator appointed in a foreign state on,;the estate of a "Id.> : 73 A. D; 524; 77 Supp. 256 (1902),. 19 Parsons v. Lyman, 20 N. Y. 103 afe'd 176 N. Y. 377. ■" ' (1859); Maas v. German' Savings * Matter of Prout, 128 N. Y. 70, Bank, 176 N. Y. 377' 98 iAm. St. Rep. 13 L.R.A. 104, 27 N. E. 948 (1891) 689, 68 N. E. 658 (1903). ^Matter of Newell, ' 38 Misc. 563, ""Schluter v. Bowery Savirigs' 77 Supp. 1116 (1902), executors. Bank, 117 N. Y. 125, 5 L.R.A. '541, * Marks' v. Emigi-ani Industrial 15 Am. St. Rep. 494, 22 N. E. 572 Savings Bank, 122 A. D. 661 (1907), (1889) — savings bank deposit. or 107 Supp. 491. 1 Maas v. German Savings Bank. 258 §242 ADMINISTKATOES , resident of tlii.s state who there pays tc an insurance company the amount needed to redeem its policies on the intestate's life assigned to it as security for a loan to the decedent, is entitled to keep the proceeds as against an administrator appointed in New York state ; because the obligation evidenced by a life insurance policy is a simple contract debt and assets where the debtor resides, viz., in the case of an insurance company where it is represented by an agent on whom process can be served.^ Although the assignment of a policy of insurance on the life of another is found in New York among the effects of' a deceased resident of New York, if both the assignor-insured and the policy are in another state, the adminis- trator c. t. a. appointed in that state rather than the executor aji- pointed in New York takes title; because if the assignment was only as security for a debt, the debt was the asset and could be enforced only where the debtor resided, while if the assignment was ab- solute,, the policy (and not the assignment of it) is the asset.^ § 242. Assets and Personalty: Custody. — Every administrator, executor, testamentary trustee or guardian muist keep the funds and property received from the estate of any deecased person separate and distinct from his own personal fund and property, and if he does not, he is guilty of a misdemeanor.'' He must not invest sucli funds and property or deposit them with any person, association or corporation doing business under the banking law, or with any other person or institution, in his own name; but ail transactions had and done by him must be in his name as such administrator, executor, testamentary ;truSt6e or guardian and if he does invest or deposit or transact in ,his own name, 'he is guilty of a misdemeanor.* An executor or administrator is paid for managing the estate, and is liable for lack of care through which loss results to the estate, e. g., an old administratrix, unaccustomed to business, will be sur- charged for $1660 belonging and lost to the estate, kept by her in her sick son's bedroom for ah' unreasonable time after she could have deposited it in a bank two 'miles away.' One administrator haB on general principles an equal right with a co^administrator to the manual custody of the estate's assets.'" ' If one administrator is properly in possession of' the assets, all that the other can with just reason require is that they be produced whenever any step in the settlement or administration of the estate is to be taken which 6 Steele v. Com. Gen. Life Ins. Co. ' C. C. P. § 2664— added by L. 22 Misc. 249 (1898), or 49 Supp. 1916, c. 588. 647; aff'd 160 N. Y. 703, 37 N. E. « Id. 1125. ' Cornwell v. Deck, 8 Hun, 122 ^ Holyoke v. Mutual Life Insurance (1876) . Co. 22 Hun, 75 (1880), aff'd 84 N. i" Burt v. Burt, 41 N. Y. 46 (1869). Y. 648. 259 NEW YORK ESTATES AND SURROGATES § 242 calls for them, or be open to Ms inspection when the estate's con- venience or exigency so demanded.^^ A co-executor is not entitled to joint custody of an estate of personalty ' the income of which another, appointed executor, is given for life with the right to use the principal if the latter may need it.^* A court may take such action as is necessary in directing the method of holding funds due on a mortgage because of the hostility of an executor (who is also the mortgage debtor) to collecting the amount due as assets of the estate.** The surrogate has power, under his statutory right to con- trol and direct the conduct of executors and administer justice in all matters relating to the affairs of deceased persons, to order execu- tors to deposit in a trust company until his further order securities, readily disposable, of a large estate, practically in the custody of one of the executors who was not sufficiently responsible to be en- trusted with such a large amount of property and whose wife was entitled to share therein, when the co-executors fail to cooperate and delayed filing their inventory and account till compelled to do so by surrogate's order,.** Disagreement as to the custody of money or other property of an estate between the co-administrators or co- executors to whose joint chiarge it is committed may be solved by the surrogate's order on petition therefor.*^ A petition to settle a con- troversy as to the custody of money or other property of an estate may be presented to the surrogate by (a) any of two or more of the co-administrators or co-executors to whose charge the estate is com- mitted; (b) a creditor of the decedent; or (c) a person interested in the decedent's estate. *° The form of the petition is the same in general as the standard, petition in any proceeding in a surrogate's court." It must be supported by proof, by affidavit, of the facts upon which the relief depends.*' The petition itself may doubtless contain those facts if they are wholly within the petitioner's ken. The prayer for relief in the petition should be according as the petitioner seeks one or the other or all these things: — (1) That the surrogate by order direct that the propei^ty of the estate the custody of which is disputed be deposited in a safe place in the joint custody of the administrators or executors; or (2.) subject to their joint or- der; or (3) that the money of the estate be deposited in a specified safe bank or trust company to their joint credit, and to be drawn out upon their joint order.*' An order requiring the adpainistrators ** Burt V. Bu3lt,;.supra. *^ C. C. P. § 2698. *2 Matter of Trelease, 115 A. D. **Id. 654, 100 Supp. 1051 (1906). " See § 787, infra. *» McGregor v. McGregor, 35 N. Y. *« C. C. P. § 2698. 218 (1866). *' C. C. P. § 2698. ** Matter of Gilman, 41 Hun, 561 (1886). 260 § 243 ADMINISTEATORS or executors to show cause why the surrogate should not give direc- tions as to the custody of the money or other property may be made by him upon (1) proper petition therefor, and (2) proof, by affi- davit of the facts. ^^ Upon the return of the order to show cause the surrogate has discretion to direct nothing or to direct by order: — (a) that the property as to the custody of which there is controversy be deposited in a safe place either in the joint custody of the admin- istrators or executors or subject to their joint order; or (b) that the money as to the custody of which there is controversy be deposited in a specified safe bank or trust company to the administrators' or executors' joint credit, and to be drawn out upon their joint order. ^ The surrogate properly exercises his discretion by requiring one of the representatives, who was neither a resident nor householder in the state, to deposit estate funds in a bank subject to all three's joint order when the other two, as well as all parties interested in the es- tate, so wish, and expressed grave doubts as to the non-resident's responsibility.* § 243. Assets and Personalty: Appraisal, Appraisers' Appoint- ment, Oath and Duties. — Two disinterested appraisers to appraise a decedent's personal property must be appointed on the ap- plication of an administrator or executor as often as may be necessary by order entered in the surrogate's court.' These appraisers are an entirely different body of men from the ap- praisers appointed in the proceedings to determine the trans- fer tax on a decedent's estate; and are appointed solely to appraise the value of the estate and not to fix any tax there- on. It is very customary to use the appraisal made of an estate by a transfer tax appraiser as the ofKcial appraisal of the estate, upon which the accounting of the administrator or exec- utor is based, his commissions ascertained, etc. ; and so to avoid the entirely distinct appraisal now being discussed. The transfer tax appraisal is nearly always essential, while the one under discussion is not. An oath must be taken and subscribed by the appraisers now being considered before they make the appraisement.* It must be that they will truly, honestly and impartially appraise the per- sonal property exhibited to them, according to the best of their knowledge and ability.* It must be inserted in the inventory of the decedent's personal property made by the administrator or exec- 20 C. C. P. § 2698. 1916, c. 624. Prior to this amend- ' C. C. P. § 2698. ment this section required that the * Matter of Hoagland, 51 A. D. order appointing appraisers be made 347 (1900), or 64 Supp. 920 and 79 by the surrogate by writing. Supp. 58; aflf'd 164 N. Y. 573, 58 «C. C. P. § 2665. N. E. 1091 (an executor). * Id. »C. C. P. § 2665, as amend'd L. 261 NEW YORK ESTATES AND SUKROaATES § 244 \itor.* The appraisers must estimate and appraise the decedent's personal property eixhibited to them.'' It is not, however, a con- dition to the exercise: of their power :of appraisement that the prop- erty be exhibited to the appraisers; or true that they may not ap- praise it unless actually produced.* Such appraisal and estimate milst be in the presence of such of the parties interested as attend at the time and. place of appraisal.'- Each. article must be set down separately by the appraisers and its value in dollars and cents must be distinctly set down in figures opposite it." In stating the secur- ities owing decedent the appraisers must give the sum boUectible on each security in their judgment.^^ The appraisers rnust sigii dup- licates of the inventory made.*^ ;Personal property of the decedent in places difficult or distant from that where the origirtal appraise- ment takes place may be appraised either by the same appraisers on adjournment or by other appraisers appointed for the purpose by the surrogate on application duly iliade.** If the property is not actually situated in any county of the state, the mode of procedure is in the surrogate's discretibii.^* Whenever, by Reason of the pro- visions of any law of this state, it becomes necessary' to appraise in whole or in part the estate of any deceased person, the persons whose duty it is to make such appraisal must value the real estate at^ its true value, taking iiito consideration actual sales of neighbor- ing real estate sinailarly sitiiated during the year immediately pre- ceding the date of such appraisal, if any; and must value all such property, stocks, l^onds, or securitieS| as are customarily bought or sold in open markets in thpiCity of New, York or elsewhere, for the day on which such, appraisal or report may be required, by ascer- taining the range, of the markpt and the average of prices as thus found, running through a reasonable. period of timc:^* § 244. Id. : Appraisal,, Notice of. — Notice specifying the time: and place at which, the appraisement of a decedent's personal property will be made must be given such of decedent's legatees and next of kin as reside in decedent's' county, whether such appraisement be the original one at one place in which the, property may be," or an adjourned or second one in a different or distant 'place." In either case the notice must be given at least five days before the date set 6 Id. " C. C. P. § 2666. 7 C. C. P. §,2665. ' .: 14 Matter of Butler, 38, N. y. 397 8 Matter: of Butler, 38 N. Y. 397 (1868). (1868). , . (-"Deeed. Est,:L. § 122. 9C. C. JP. § 2665. ... > ■ "G. C. P. § 2665i as amend'd L. " C. C. P. § 2665. 1916, c. 624. .. . ,; " C. C. P. § 2667. " C. C. P. § 2666. « C. C. P. § 2668. ... 262 § 245 ADMINISTRATOES for the appraisement.^' When 'the notice is of an original appraise- itient at one place where the property may be, not ' only service of the notice by mail or personally is necessary, but ' by posting a notice in three public places of the town or city in which decedent resided ; ^' while if the notice is of an adjourned or second appraise- ment at a different or distant place, the notice by posting is unnec- essary.^" The rules of your surrogate's court may provide , for the filing, with each inventory, of the proof of the notice required to be given- that it is to be made.^ § 245. Id. : Appraiser's Compensation. — An appraiser's compensa- tion is: (1) His actual expenses; and (2) a sum to be fixed by the surrogate, hot exceeding five dollars, ($5.00) for each day actually and necessarily occupied by him in making the appraisal-inven- tory.^ The number of days' service and expenses, if any, of an ap- praiser, must be proved by his affidavit, and the sums payable there- for taxed by the surrogate and paid by the executor or administra- tor.* Appraisers are officers of the eouii;, appointed by it, and they cannot receive greater compensation than the fees allowed by stat- ute, viz., $5 for each day actually and necessarily occupied by theni.* When the inventory was prepared by others than the appraisers and all the latter did was to examine the furniture, compare it with the list made, and examinei the securities entered in the inventory, and attach the values (ascertainable in a day's time in any stockbrok- er's office) the court of appeals will review the question of fact de- termined by the surrogate that 50 days were occupied by the ap- praisers.* A payment of $20 to an appraiser for appraising items numbering 232, in 11 roomsj each room being separately inven- toried^ besides some securities and articles of personal property at a distinct place, each item being, described and its value given, i is *' C. C. P. § , 2665 as amend'd L. ing paper in the proceeding, or, if 1916, e. 624; and C. C. P. § 2666. ' no. such designation had been made, *' C. C. P. §'2665 as amend'd L. at the place of his residenbe or offlde, 1916, c. 624, and. G. C. Pi § 2666. according to the best information ^^ C. C, P. §,,2666. Prior to. the which pould be conveniently pbtsiined amend't by L. 1916, c. 624, to C. C. P. concerning such place of residence or § 2665,' service of the notice of ap- oflBce. By such amendment of 1916, praisal might be either personal or in this provision was stricken • from C. the manijep prescribed by § 797, subd.. C. P. § 2665. i < . . 1, and §798,, C,,,C. P., i. e., by: de- * See e, g., Rule 12, . Cattaraugus, positiiig the notice properly enclosed * C. C. P. § 2752. in a post-JDaid' iwi-apper' in the poSt- **C. C. P.' § 2752. office, or any postoffice box regularly * Matter of Harriot, 145 N. Y. 540, maintained by the ' Federal govern- 40 N. E. 246 (1895), old Code § ment, and directod'to the person to be 2565, new Code §2752. served at the address in the ' sfate ^ Matter of .Harriot, supra., designated by him, upon any preced- ..,■.' - •. 263 NEW YORK ESTATES AND SURROGATES § 246 not excessive when the personalty inventoried amounted to $8,987- .72.° The rules of your surrogate's court may provide for the al- lowance to appraisers.'' § 246. Id.: Inventory, Making and Filing. — Personal property coming to the possession or knowledge of an administrator or ex- ecutor not mentioned in any inventory, must be caused by him to be duly appraised and an inventory thereof returned within one month after its discovery.' An administrator or executor must make a true and perfect in- ventory of all the personal property of his decedent within three months of his qualification.^ (The wording of the statute is man- datory; but very often the representative uses the inventory and appraisal made at the time of the fixing of the transfer tax as the basis of his accounting, distribution, etc. ) If personal property of his decedent which he had not mentioned in the inventory now being discussed comes into the administrator's or executor's posses- sion or knowledge, he must; cause it to be duly appraised and an inventory of it returned within one month of its discovery by him.^" An inventory may be returned by any one administrator or execu- tor on the neglect of the others so to do." An administrator or executor returning an inventory on the neglect of his coadministra- tors or his co-executors has the whole administration of the dece- dent's personal property,^* and the delinquent administrators or ex- ecutors cannot thereafter interfere with the administration or have any power over the decedent's personal property until they verify and return the prescribed inventory." The contents of an inventory are a particular statement of all (1) bonds, (2) mortgages, (3) notes, (4) other securities for the payment of money, (5) moneys, and (6) debts of the administrator or executor to the decedent, which bonds, mortgages, notes, other securities, moneys and debts belbng to the decedeiit or are known to, or have to the hands of, the, administrator or executor." Articles not legally deemed assets must nevertheless be included and stated in the inventory as proper- ty set off or apart to the widow or husband or minor children or child,** and are the property of the surviving husband or wife ; or of the minor child, or children equally, if there be no surviving husband or wife.*' The name of the debtor in each security, the date, the sum originally payable, the amount due at decedent's death, and the sum which, in.the judgment of the appraisers, is col- 6M&,tter of Bielby, 91 Misc. 353 " C. C. P. § 2668. (1915), or 155 Supp. 133. « C. C. P. § 2668. ' See e. g., Rule 13, Chautauqua. " C. C. P. § 2668. « C. C. P. § 2666. 1* C. C. P. § 2667. s C. C. P. § 2665. » C. C. P. § 2670. 1" C. C. P. § 2666. 18 C. C. P. § 2670. 264 § 247 ADMINISTRATORS lectible thereon, must be particularly stated." Duplicates of the inventory must be made and signed by the appraisers: one to be retained by the administrators or executors and the other to be filed in the surrogate's office within three months of the date of the let- ters of administration or testamentary." An oath must be taken and subscribed by the administrator or executor and endorsed upon or annexed to the inventory on returning it, stating: (1) that the inventory is in all respects just and true ; (2) that it contains a true statement of all the personal property of the deceased which has come to his knowledge; (3) that it contains a true statement of all just claims of decedent against the signer, according to the best of the latter's knowledge; and (4) particularly that it contains a true statement of all money belonging to the deceased.^ A representa- tive of a resident of this state may be required to include in his inventory assets belonging to his decedent though situated in an- other state.^ An inventory must show that notice of the time and place of appraisal was served and posted.* [t must include mort- gages.* The oath must include money in the property inven- toried.^ § 247. Id. : Inventory and Appraisal, Effect. — The inventory and appraisal are not conclusive of the extent or value of the assets, al- though prima facie evidence, and the creditors on an accounting may show that articles were omitted or that they realized a larger sum than the appraised value." Statements in a legal representa- tive's inventory are only presumptive evidence against him and of the value of the assets listed, and may be explained.' An in- ventory is priTna facie correct and CAridence of assets though made without proof of notice given of the time and place of the appraisal, if no question as to this is made until requests are made on settle- ment of the case on appeal, and as to which no point is raised for over twenty years.* The value of the investments sworn to by the administrator in his inventory determines the extent of his liability : he cannot show their value to be less at the time of sale than at the time of inventorying; though he can show their uncollectability.* " C. C. P. § 2667. » Id. C. C. P. § 2668. " C. C. P. § 2668. « Matter of MuUon, 145 N. Y. 98, 1 C. C. P. § 2668. 39 N. E. 821 (1895). ^ In matter of inventory of Est. of '' Matter of Maaek, 13 Misc. 368 Butler, 38 N. Y. 397 (1868)— execu- (1895), or 35 Supp. 109; G. C. P. § tor. 1832. 8 Est. of ShufSey, N. Y. L. J. June * Matter of Shipman, 82 Hun, 108 25, 1915 (Bronx Surr.), C. C. P. § a894), or 31 Supp. 571. 2665. *Hasbrouck v. Hasbrouck, 27 N. 4 Id. C. C. P. §2667. Y. 182 (1863). 265 NEW YORK ESTATES AND: SUEEOGATES §§ 248, 249 § 248. Id. : Inventory, Compulsory. — A pfetition showing that an administrator or executor has failed to return an inventory, or a sufficient inventory, within the time prescribed by law, may be pre- sented to the surrogate's court by either a creditor or a person in- terested in the estate." An allegation of a person interested, duly verified, of his interest, who applies for an inventory, sufficesy al- though his interest is disputed, unless he, has be^n excluded by a judgment, decree or other filial; determination and no appeal there- from' is pending.'^ A: proceeding to coinpel an executor to file an inventory must be instituted, by a petition in form made by a credit- or, although sometimes it may be verified by an attorney of a creditor; it cannot be instituted by an agent of a creditqr.^^ An order requiring^ an adniiniistrator or executor to returii an inventoiry or a further inventory must be made by the surrogate if he ig satis- fied that the administrator or executor is in default in filing an in- ventory or a sufficient inventory.'* The order- must require the administrator, or executor if he does not file the inventory, or fur- ther inventory, to show cause at a time arid place specified in the order why his letteirs should' not be revoked or he be punished." The making of an inventory and return of personal property com- ing to the possession or knowledge of an administrator or executor after the original inventory and appraisement maybe enforced or compelled in the same manner as in the case of an original in- ventory." An order to shtfw cause as a method to compel an in- ventory to be filed should require that it be donfi' before a certain date, and that, in default thereof, the respondent should' show cause why he should not 'be' removed or punished. ^^ When the uncon- tradicted affidavit of an administrator whom it is sought to compel to file an inventory; states there^is no estate, no appraisal' or in- ventory can be compelled." ' •' § 249. Assets and Personalty: Disposition of, In General. — An administrator or executor may sell the^ personal property of the de- ceased at anytime for the payment of debts or legacies or for mak- ing distribution." The sale may be public or private, and may be on credit, not exceeding one year, with .approved security." Arti- cle's not necessary for the support and subsistence of the family of "C. C. P.i§ 2669. ; ' ' 16 In re Hershko'witz, N. Y. L. J., "C. C. P. § 2768; Forsyth v. Nov. 9, 1914 (Bronx Surr.), C. C. P. B.UJr,37Barb. 540 (1862). §2669. "Matter of Lowenthal, 148 A. Di " Matter of Lowenthal, 148 A D 487 (1911), old Code § 2716, new 487, 132 Supp. 994 (1911). Code §-2669. " C.C. P. § 2684; Hiick v. Kraus, " C. C. P. § 2669. 50 Misc. 528, 99 Supp. 490 (1906). 14 C. C. P. § 2669. "C. C. P. § 2684; Hasbrouek v "C. C. P. § 2666. Hasbrouek, 27 N. Y.= l82 (1863)— 266 § 249 ADMINISTEATOBS the deceased, or not specifically bequeathed, must be first sold, and articles so bequeathed must not be sold until the residue of the personal estate has been applied to the payment of debts.^" When the value of the personal property is uncertain or is dependent upon the time and manner of its sale and it is necessary or prop- er to sell it, the administrator or executor may apply by petition to the surrogate for advice and direction as to the propriety, price, manner and time of its sale.^ Unless, on distribution, all interested parties consent to take personal property in lieu of its money value, or a specific distributee consents to accept personal property at its appraised value, or sale of personal property would cause loss to an infant or incompetent distributee,* the administrator must convert into money the assets of his intestate as soon as reasonably possible, not only if such conversion be necessary to pay debts or burial ex- penses, but in order to distribute the assets in money form to those entitled.* Executors may sell their testator's personal property to pay burial expenses and debts, and also administration expenses; and to distribute the residue among the legatees as prescribed by the willj unless the will shows' the testator's intent: that the legatees should be paid in kind or the legatees elect to receive in, kind their legacies.* The administrator represents the creditors as well as the estate; and the administrator of a chattel mort- gagor may disaffirm the mortgage if made in fraud of the creditor's rights, take possession 'of the property mortgaged, sell it, and give good title to the purchaser, when the mort- gage provided that; it gave the right to the mortgagor to re- main in possession and sell for his own use ; ^ and the adminis- trator may insure his intestate's realty against fire for the creditors' benefit.^ A chattel mortgage , of a, testator's furniture executed by his executor in his individual character passes no title. ^ An admin- istrator's duty is, to foreclose a mortgage held by his intestate if he cannot collect the money otherwise ; and he may, on the sale, buy in the property and hold, it till he can sell it, if such a course is needed to save the estate from Iqss,' An executor has no right to sell assets upon credit except to pay* debts and legacies of his testa- sale of intestate's partnership interest * Hanger v. Hacbemeister, 114 N. held unauthorized and administrator Y. 566, 5 L.R.A. 137, 11 Am. St. charged with whole pureHase price. Rep. 691, 21 N. E. 1046 (1889). 2»C C. P. § 2684. 6 Herkimer v. Rice, 27 N. Y. 163 1 C. C. P. § 2685. (1863). *C. C. P. § 2736. ' ' 'Clark v. Coe, 52 Hun, 379, 5 » Matter of Thompson, 41 Misc. Supp. 243 (1889). 420 or 84 Supp. 1111; afE'd 87 A. D. ' Valentine v. Belden, 20 Hun, 537 609 and 178 N. Y. 554. (1880). * Matter of Titus, 86 Misc. 375, 148 Supp. 359 (1914). 267 NEW YORK ESTATES AND" SURROGATES § 249 tor.^ An administrator can convey to ; sureties on his bond a title (on which they may sue) to! notes by the maker to the administra- tor's decedent, even though the transfer of the notes was made to secure the sureties on their Hability and for a judgment or claim against the estate which they had paid — -the administrator, how- ever, always remaining accountable forany diversion ,of the estate funds of which he may have been guilty.*" One taking corporate stock as executor can transfer it by an assignment in his individual name.*' Immediately on a stockholder's death title to stock held by him in his own name vests in thosei of his executors who qualify, and they can be divested of such title only by a transfer on the books of the company at the instance of one or more of them ; but, as one of two or more coexecutors has power to dispose; of the testa- tor's assets, the company is justified in recognizing a direction for transfer of the stock given by one only of the executors, even though a forged signature of a coexecutor is also on the direction for trans- fer.*^ The surrogate will not compel a legal representative to de- liver to one who had bought securities on margin from the decedent, certificates equal to the number of shares which such one had bought, on tender by such one of the balance due, when such one cannot identify the particular certificates representing his stock, and other customers of the decedent lay claim to certificates of stock in the same companies in the representative's possession ; as if such delivery were compelled it might result in preferring the petitioner to other creditors of the estate.*' When a decedent dies leaving a stock certificate in this state evidencing ownership of stock in a foreign corporation which maintained an office in this state, the stock can be transferred here.** Executors who do not sell their testator's stock exchange seat as soon after his death a^ possible and pay the proceeds to that one of their number who was decedent's partner for liquidating purposes, pursuant to directions so to do in the will, are chargeable with the loss from failure so to do, even though the seat was bought with the partnership funds and it is claimed the surviving partner, if anyone, is liable for any loss sus- tained.** Brokers selling bonds first presented to them, registered 'Matter of Woodbury, 13 Misc. of personal representative of owner, 474, 35 Supp. 485 (1895). see note in 45 L.R.A.(N.S.) 1079. *" Rogers v. Squires, 26 Hun, 388 ** Matter of Boericke, 93 Misc. 410 (1882),aff'd98 N. Y. 49. (1916). **Mahaney v. Walsh, 16 A. D. 601 ** Lockwood v. U. S. Steel Corpora- (1897), or 44 Supp. 969. tion, 209 N. Y. 375, L.R.A.1915C, *8Pearse v. Natural Lead Go. 162 471, 103 N. E. 697 (1913). A. D. 766, 147 Supp. 989 (1914)., ** Matter of Heams, 214 N. Y. 426, On the liabUity of corporation 108 N. E. 816 (1915). transferring stock on books at request 268 § 249 ADMINISTRATORS in an executor's name, later discharged from registry and payable to bearer, who had, no knowledge of the executor's death or the con- dition of the estate, had a right to assume that the change of regis- try was proper and maQe by the executor on his authority.^' Execu- tors are justified in selling even extraordinarily good securities of the estate to pay its debts, even though the condition of the estate strongly bespeaks the advisability of securing loans to pay the debts by reason of the probable serious loss through the immediate reduc- tion of the property to cash ; because it is never executors' duty to get advancements for the estate." What is a reasonable time with- in which an administrator must convert his intestate's assets de- pends upon the circumstances peculiar to each case in which the question arises.'' Eighteen months from the date of his appoint- ment serves as a standard period within which an administrator must convert the assets.*^ Ordinarily, if an administrator does not sell within that period, he is responsible for any depreciation in the value of the property.^" The test of what is a reasonable time must remain the diligence and prudence of intelligent men in the man- agement of their own affairs.' Especial leniency should be shown in judging an executor as to his diligence and prudence in selling property of an estate having a narrow range of possible purchasers, e. g., a large country seat.* And directions among testator's papers as to the retention of his property, while not binding upon his ex- ecutors because not in the will, justify them in taking the advice into account, e. g., a memorandum to hold stock' "firmly; a divi- dend expected in 2 years." * Executors and trustees are never in danger in adhering to the rule enabling them to dispose of property within eighteen months at its market price if they sell in good faith; but a failure to sell after the eighteen months have passed requires an explanation by them, which, however, need only be such as reasonable men would accept in considering the management of their own afilairs.* It is always the safe course to ask the court when, how and on what terms to sell.* The rule requiring an administra- tor to exercise such care only as would an ordinarily prudent man in his own affairs will not save an administrator from liability for '* Cooper V. Illinois Central R. R. '^Matter of Thompson, supra; Co. 3S A. D. 22, 57 Supp. 925 (1899). Matter of Weston, supra. '■^ Matter of Fidelity Loan, Trust *" Matter of Thompson, supra. & Guaranty Co. 23 Misc. 211 (1898), 'Matter of Weston, 91 N. Y. 502 or 51 Supp. 1124. (1883). "Matter of Thompson, 41 Misc. * Id. 420, or 84 Supp. 1111; a£E'^ 87 A. ^Id, B. 609, 83 Supp. 1117, and 178 N. * Matter of Fargo, 20 Misc. 137, 45 Y. 554; Matter of Weston, 91 N. Y. Supp. 732 (1897). 502(1883). * Matter of Fargo, supra. 269 NEW YORK ESTATES AND SUBROGATES § 250 6 per cent interest on the cash balance between what he would have had on hand had he sold his intestate's stock at the end of eighteen months from the grant of letters and what he did have on hand, plus the loss in principal resulting frond holding the stock after such period in the hope of a rise.* It seems that private letters are not such assets in an administrator's hands as to be salable to pay debts." "Any person receiving from an executor, the assets of his testator, knowing that such disposition of them is a violation of the execu- tor's duty, is to be adjudged conniving with the executor to work a devastavit, and is accountable to the person injured by such dispo- sition, for the property thus received, either as purchaser or a pledgee." * The rule that knowledge by a depositary of the trust nature of deposits deposited by the trustee-depositor in his individ- ual account does not charge the depositary with liability for the trustee's acts in dealing with such deposits is not of any help to the depositary if it participates in a diversion of such trust funds either by acquiring a benefit directly through the diversion, or joining in a diversion in which it was not interested with actual notice or knowledge that the diversion was intended or was being executed.' § 250. Id. : By Temporary Administrator. — A teniporary adminis- trator cannot sell his decedent's or absentee's personalty without authority from the surrogate. An order of a surrogate authorizing a temporary administrator to sell, after appraisal, personal property of the decedent or absentee whom he represents' (1) must specify such personal property of the decedent or absentee to be sold as it appears to be necessary to sell for the benefit of the estate; and (2) must be made upon at least ten (10) days' notice to all the parties who have appeared in the special proceeding for the appointment of the temporary administrator unless it appears that the safety of the estate requires that the notice be shortened, when the notice may be shortened to not less than two (2) days.*" The notice must be served upon the attorney or attorneys of the party or parties to whom notice is to: be given, or upon the party himself or parties themselves, if he or they has or have not appeared by attorney, in like manner as a notice may be served upon an attorney in a civil action brought in the supreme court, unless the attorney, attorneys, •In re Swanson, N. Y. L. J., Jan. —'-holding bank chargeable with notice 7, 1915 (Kings Surr.). of diversion of trust fjinds when it . 'Eyre v.' Higbie, 35 Barb. 502 received payment on account of in- (1861) — letters by Geo. Washington dividual note of executor to it from to his secretary. ' funds deposited with it in his indi- * Sacia v. Berthoud, 17 Barb.' .15 vidual name from estate deposits (1853); with it. 9 BischofE v. Yorkville Bank, N.'Y. " C. C. P. § 2597. L. J., May 16, 1916 (Ct. of Apps.) 270 §251 ADMINISTEATORS party or parties to be served does or do not reside in the surrogate's county, or the attorney has or attorneys have died and no other appearance for the party he, or the parties they, represented has been filed in the surrogate's office, when the surrogate by order may either dispense with notice to such party or may require notice to be given him in any manner which he thinks proper.^^ An order is not necessary to enable the public administrator to sell such prop- erty as he deems necessary for the preservation and benefit of the estate.^^ ■ § 25L Id.: By Court Advice. — An administrator or executor may apply by petition to the surrogate having jurisdiction of the settle- ment of his decedent's estate for advice and direction as to the sale of personal property of which the estate consiste.^^ The form of the petition is in general that of the standard petition in any pro- ceeding in a surrogate's court.^* It must, in particular, show: (1) that the assets of the estate consist of personal property which it is necessary or proper to sell; (2) that the value of such personal assets is either uncertain or dependent upon the time and manner of their sale; (8) that the petitioner applies for advice and direction as to the propriety, price, manner and time of their sale.^* The same application may be made by an executor as to real property which he is authorized to sell. ^* When a petition by an administrator for advice as to the manner of selling his decedent's business which he has continued does not contain sufficient facts to enable the surro- gate to determine at what price the business should be sold, the surrogate will hold the mofet advantageous manner of sale to be by public auction, with advertisement once a week for four successive weeks in a periodical published in the county and devoted to the interests of the particular business or one closely allied to it." The surrogate has discretion either to entertain or refuse to entertain an administrator's or executor's application for advice as to the sale of 'his decedent's property.^' If the surrogate entertains the appli- cation, notice of it must be given either to all persons interested or to such persons as the surrogate by. order directs to have notice in such manner as the surrpgate prescribes.^* The surrog^ite, must in- quire into the facts and circumstances; may, hear the opinions of witnesses as to the value of the property and the best manner and time of its sale; and may give such advice and direction as shall ' " C. C. P. § 2602. ' "Id. "Matter b£ Hahn, N. Y. L. J., "Est. of Volk, N. Y. L. J., Jan. Dec. 24, 1915, Bronx Surr. L. 1898, 20, 1915 (N. Y. Surr.), C. C. P. § c. 230, § 18. 2685. is C. C. P. § 2685. 18 Q Q p |: 2685. ■' 1* See § 787, infra. i' Id. 15 C. C. P. § 2685. 271 NEW YORK ESTATES AND SURROGATES § 251 seem to him for the best interest of the parties.'"' A substantial compliance with the authorization so given relieves the administra- tor or executor from any charge or objection that the estate or per- sons interested suffered a loss on account of the time or manner of sale or the price realized.* An application to sell assets will be de- nied (with leave to renew if necessary) as unnecessary for the preservation of the estate when made by a temporary administrator, opposed by the widow, and made shortly before the, time when a per- manent representative will probably be appointed ; * or to sell stale claims if the widow, named as sole legatee in the paper propounded for probate, opposes.' When the surrogate fixes the manner of service of notice of an application for advice and direction as to the sale of property by directing the issuance of a citation, it must be rterved like any other citation ; and an order directing service "per- sonally or by mail in the manner prescribed by sections 796 and 797 of the Code of Civil Procedure" is bad, because they relate sole- ly to service in an action; and service of the citation on creditors resident in the state by mail, and on creditors resident outside tlie state by mailing, without publication, is not sufficient to give the surrogate jurisdiction.* The surrogate will not advise or direct as to a sale by an administrator of the intestate's property when all the facts are in the representative's knowledge, e. g., the sale for a stated price of a second mortgage when the first had been foreclosed and a deficiency judgment had.* Of an application by an administrator for an order authorizing the sale of a business conducted by the intestate at his death all creditors and, next of kin must be given notice— T-by personaL service if residents of the dounty and by mail if nonresidents.* An application by an administrator c. t. a. for an order authorizing him to sell certain real estate of his testator in a certain manner and on certain terms will only be entertained when exceptional circumstances exist ; otherwise the sale will be left to the administrator's discretion.'' After sale of a decedent's realty under a testamentary power the proceeds are assets in the execu- tor's hands to pay debts and legacies and to account for the surplus to the devisees, to whom they may legally pay such surplus without any 6rder, on satisfaction of the claims presented.' 1,1 «»Id. 23, 1916 (N. Y. Surr.), C. C. P. § 1 Id. 2685. 2 Est. of Caflisch, N. Y. L. J., Jan. « Est. of Datesgold, N. Y. L. J., 19, 1916, Bronx Surr. Mch. 23, 1916 (N. Y. Surr.). ' Est. of Caflisch, supra. ' Est, of Goldlarb, 93 Misc. 401, «Est. of Smart, 92 Misc. 402, 157 157 Supp. 137 (1916). Supp. 143 (1916), C. C. P. §§ 25, 26, « Erwin v. Loper, 43 N. Y. 521 2525, 796, 797, 3333, 2685. (1870). 5 Est. of Sauter, N. Y. L. J., Mch. 272 § 252 ADMINISTRATOES § 252. Debts of and Claims against Decedent; Notice to Creditors to Present. — An administrator or executor may ascertain claims against his decedent by publishing a notice requiring persons hav- ing such claims to exhibit them to him at a place and on or before a day specified in the notice.' The notice is for the protection of the administrator or executor and there is no legal obligation to give it.^" The time when the administrator or executor may pub- lish such notice is any time after letters were granted him.^^ The time set in such notice before which the claims must be presented must be at least six months from the day of the first publication of the notice. ^^ The time the notice must be published is once in each week for six months.'^ The place where such notice must be pub- hshed is in such newspaper or newspapers published in the county, the surrogate of which has jurisdiction of the estate, as such surro- gate directs.*^ The administrator or executor by such notice or otherwise may require: (1) Satisfactory vouchers in support of any such claim presented to him; and (2) the affidavit of the claimant that the claim is justly due; that no payments have been made thereon ; and that there are no offsets to it to the claimant's knowl- edge.^* The object of such an affidavit is to prevent or check the presentation of unfounded claims and not to prove the existence of the debt. Statements in the affidavit do not take the place of testimony." The omission of the middle letter of decedent's name in such notice is immaterial, as the law recognizes only one Chris- tian name.^* "Claims of every name, nature and description which exist or are likely to exist against an estate, should be presented as required." " Publication of the notice is "notice to all the world without personal service on any one." ^' The effect of publication according to statute by an administrator or executor of notice to creditors to present their claims is to absolve him from all hability to any claimant who does not present his claim, within the time limited in the notice, for any assets which the administrator or ex- ecutor may have paid or distributed, after the time limited by such notice for presentation of claims had expired, to satisfy claims of inferior degree, legacies or distributive shares.*' In other words, an 9 C. C. P. § 2677. 1* Comes v. Wilkin, 14 Hun, 428 10 Fliess V. Buckley, 90 N. Y. 286 (1878), afE'd 79 N. T. 129. (1882) ; Field v. Field, 77 N. Y. 294 " Cornes v. Wilkin, 79 N. Y. 129 (1879) ; Brinker v. Loomis, 43 Hun, (1879). 247 (1887), dictum. " Erwin v. Loper, 43 N. Y. 521 "C. C. P. § 2677. (1870). 12 Id i*C. C. P. § 2678. Erwin v. Lo- is id. per, 43 N. Y. 521 (1870) ; Mayor v. 14 Id. Gorman, 26 A. D. 191 (1898), or 49 15 Matter of Goss, 98 A. D. 489 Supp. 1026; Olmstead v. Latimer, 9 (1904), or 90 Supp. 769. A. D. 163 (1896), or 41 Supp. 44; N. Y. E. & S.— 18. 273 NEW YORK ESTATES AND SURROGATES § 253 administrator or executor giving the prescribed, statutory notice may proceed in the disposition and distribution of the assets as if no claim other than those presented existed.^" The action of the administrator or executor in paying out or distributing all of the estate's assets must, in order to protect him from liability, be in good faith and witho\it knowledge of a claim not presented to him.* The publication of the notice is notice to all the world without per- sonal service on any one that claims must be presented.* The cred- itors who may have omitted to present their claims within the time limited in the notice may however, sue the next of kin or legatees to whom any personalty of the decedent may have come, or the heirs or devisees to whom any realty of the decedent may have come, to get satisfaction of their claims.* The right of an administrator to make distribution of assets after the . expiration of the statutory time for presentation of claims without being chargeable to persons whose claims were not presented does not hold good as to his reten- tion of assets when he is also next of kin and has not been dis- charged by and upon judicial settlement of his accounts.* A notice by an administrator or executor to creditors to present their claims does not enable him to avail himself of the short statute of limita- tions unless it require then! to exhibit or present their claims to himself as executor or administrator, as he is the one to pass on them.* Publication by a temporary administrator of a notice to creditors to present claims has the same effect with respect to the temporary administrator, and an executor or administrator subse- quently appointed upon the same estate, as if the temporary admin- istrator were the executor or administrator in chief and the person to whom the subsequent letters are issued were his successor.* § 253. Id.: Presenting, When. — Claims against an estate may be presented at any time aiter the qualification of the administrator Bank of PougKkeepsie v. Sasbrouek, mortgagee who made no claim against 6 N. Y. 2i6 (1852)'. , ' mortgagor's administrator, though *" Erwin V. Loper, supra ; Bank of mortgaged premises less valuable Poughkeepsie v. Hasbrouek, ' supra ; after mortgagor's deathj because Olmstead v. Latimer, supra; Mayor v. burned. Germany supra. • * Matter of Bingham, 127 N. Y. 1 Matter of GiU, 199 N. Y. 155, 92 297, 27 N. E. 1055 (1891). N. E. 390 (1909)/ — when executor The remedy w^ere estate has been stated existence of unpaid claim in distributed before claim accrued is account. discussed in note in L.R.A.1916A, * Erwin v. Loper, supra. 1185. 8 Erwin v. Loper, 43 N. Y. 521 * Hardy v. Ames, 47 Barb. 413 (1870) ; Olmstead v. Latimer, 9 A. D. (1867), e hibit of claim to legal ad- 163 (1896), or 41 Supp. 44; — theirs viser of executor or administrator in- of deceased mortgagor leaving assets sufficient, insufficient to pay debts , liable to * C. C. P. § 2598. 274 § 254 ADMINISTRATORS or executor and entry by him upon the discharge of his duties as suchj Though a creditor omits to present his claim pursuant to notice published by an administrator or executor, he may never- theless establish it and demand an accounting of the administrator or executor at any time before the latter is formally discharged.* A claim may be presented at any time, before or after notice to creditors to present their claims ; and need not be verified unless the representative of the deceased debtor requires.^ It seems that a claim may be submitted for the surrogate's determination on judi- cial settlement of the representative's account even though it has not been presented to the representative or its validity has not been determined by a competent court.^" If a claim against a deceased person be not presented to the executor or administrator within six months from the first publication of the notice to creditors, or, if no notice be published, within one year from the date of issue of letters, the executor or administrator is not chargeable for any assets or moneys that he may have paid in satisfaction of any lawful claims or of any legacies or in making distribution to the next of kin be- fore such claim was presented.^^ § 254. Id. : Presenting, Manner. — The proper method of present- ing a claim against a decedent's estate is to do so in writing, support- ed by satisfactory vouchers, and by the claimant's affidavit that the claim is justly due, that no payments have been made thereon and that there are no off-sets to it to the claimant's knowledge.** The object of such an affidavit is to prevent or check the presentation of unfounded claims, and not to prove the existence of the debt ; ^ and statements in the affidavit do not take the place of testimony.*^ The claim need not be stated with legal precision ; it is sufficient if the transaction out pf which the claim arises is identified and its general character indicated, without technical formaUty, and the amount of the claim is stated.*^ If, however, this inethod is not followed but an informal form of claim is advanced, e. g., a letter, which is adopted, as the basis of a proper claim, the claimant is en- titled to recover his demand if he prove it." Service of the claim, as required by published notice, on one of two or more administra- 7 Field, V. Field,. 77 N. T. 294 30, 1915 (N. Y. Surr.) C. C. P. § (1879). 2510. The contingency of claim as affect- " C. C. P. § 2678. ing time for presentation is discussed ** C. C. P. § 2677 ; Matter of in note in 58 L.R.A. 82. Goss, 98 A. D. 489 (1904), or 90 8 Matter of Mullon^ 145 N. Y. 98, Supp. 769. 39 N. E. 821,(1895). "Titus v. Poole, 145 N. Y. 414, 9 Russell v. Lane, 1 Barb. 519 40 N. E. 228 (1895). (1847). , , "Merino V. Munoz, 99 A. D. 201, 10 Est. of Mulier, N. Y. L. J., Meh. (1904), or 90 Supp. 985. 275 NEW YORK ESTATES AND SURROGATES §§ 255, 256 tors or executors is enough, especially if such one was designated to receive it.^* The representative, in hiS' notice to creditors to pre- sent claims, or otherwise, may require satisfactory vouchers in sup- port of any claim and the claimant's affidavit that it is justly due, that no payments have been made on it and that there are no offsets to it, to the claimant's knowledge." Knowledge by an administra- tor of a claim does not avoid the necessity of duly presenting it.*' § 255. Id.: What Presentable. — "Claims of every name, nature and description, which exist or are likely to exist against an estate, should be presented. . . . They embrace those which are due, as well as such as are contingent and likely to become due, or which by any possibility may be established." *' Only claims against the estate or the administrator as such should be presented.*' Persons from whom executors borrow to pay judgments against the estate are subrogated to the executors' rights to compel reimbursement from the estate ; because it is as though the executors had used their own money for the purpose.* The fact that a claim presented after a debtor's death is double the amount of a bill for the same services rendered in his life does not prevent recovery of the actual value of the services.* An order to a husband to pay a sum to his wife to enable her to carry on an action for a separation from him is not enforceable by her attorney from his estate ; because the order fell on the husband's death and the sum is for the wife and not for the attorney.' . , • .■ § 256. Id.: Admission.^When a claim against a decedent's es- tate is presented to his administrator or executor, the latter may ad- mit it or reject it.* It is solely a claim aginst an estate of the adminr istrator or executor as such which can be so dealt with : — an admin- istrator or executor cannot convert a claim against himself as an individual into one against the estate he represients by presuming, as administrator or executor, to admit or reject it.* An administra- *5 Lambert v. Craft, 98 N. Y. 342 ness, see note in 40 L.R.A.(N.S.) (1885). 233. *6 C. C. P. § 2677. ^ Harrison v. Ayres, IS Hun, 336 "Matter of Est. of Morton, 7 (1879). Misc. 343, 28 Supp. 82 (1894). » Kellogg v. Stoddard, 89 A. D. 1* Coines V. Wilkin, 79 N. Y. 129 137 (1903), or 84 Supp. 1015. (1879). * Matter of Hoes, 54 A. D. 281 *9 Matter of Van Slooten v. Dodge, (1900), or 66 Supp. 664; Matter of 145 N. Y. 327, 39 N. E. 950 (1895). Scheetz, 62 Misc. 166 (1909), of 166 * Hamlin v. Smith, 72 A. D. 601 Supp. 428. (1902), or 76 Supp. 258. * Matter of Van Slooten v. Dodge, On the right of creditors to sub- 145 N. Y. 327, 39 N. IJ. 950 (1895) rogation to persohal representative's — holding that no claim exists right to indemnity from estate for against an estate or its administra- debts contracted in carr5'ing on busi- tor because administrator refused to 276 § 256 ADMINISTRATOES tor or executor is. en titled to a reasonable time in which to examine into and decide upon the justice of a claim presented to him.^ The rejection of a claim by the administrator or executor at once starts running against the claim the short statute of limitations.'' A claim against an estate by some one other than the administrator or ex- ecutor may be admitted by him, so as to establish it, either before his accounting, or upon it.' In order that an admission made be- fore his accounting shall establish it, the admission must be in writing.^ This is not so of an admission upon an administrator's or executor's accounting.'* It is only a claim against the decedent which can be allowed or admitted by the decedent's administrator or executor : and no act of the administrator or executor can convert a claim against him individually into one against the decedent." Receipt and retention of a claim by the administrator or execu- tor; ^'^ or a mere silence by administrator or executor'^ for long time after presentation of claim," does not establish its validity. Fail- ure to reject a claim until more than a year after its presentation does not establish it.'° An admission duly made by one of three administrators or executors, though he be dead, binds the other two.'® An admission made by one appointed an administrator be- fore he received letters as to a claim on behalf of the estate is inad- missible as evidence against him as administrator, because not made in the performance of his duties as administrator, e. g., the surren- der to a mortgagor by the widow of the mortgagee of the bond and mortgage and an admission that she had found from an examina- tion of her husband's papers that nothing was due on the bond and mortgage, all before her appointment as his administratrix, is not return to claimant a ring which (1908), or 109 Supp. 1090; aff'd claimant alleged decedent had given 128 A. D. 88 (executor), her while alive and which claimant The effect of retention of account had merely handed to administrator by executor or administrator as ren- te inspect. dering it an account stated is dis- 6 Field V. Field, 77 N. Y. 294 cussed in note in 29 L.R.A.(N.S.) (1879); Matter of Scheetz, supra; ^^O. Lambert v. Crabt, 98 N. Y. 342 ,/'^,^"^^°« T''"''"'.'.^^ ^^ .^- *^? ,-,Qcc\ (1897), or 46 Supp. 557; Matter of ^ vStter of Scheetz, supra. Jff fss""" ""• ''' ^''°'^' '' s n n -D R ORon °° supp. 166. » O. 0. 1-. S ^b»U. 14 Matter of Callahan, 152 N. Y. j/a. 320, 46 N. E. 486 (1897)— (9 months' I'^- r n -, silent retention of claim). " Matter of Van Slooten v. Dodge, is -^m^j. ^ Longshore, 147 A. D. 145 N. Y. 329, 39 N. E. 950 (1895) 214 (1911), or 131 Supp. 1041. —ring claimed as gift in life by de- is Matter of Prince, 56 Misc. 222 cedent retained by executor when (1907), or 107 Supp. 296; but see given him to inspect. contra Schutz v. Moretta, 81 Hun, 12 Matter of Nehrer, 57 Misc. 527 518, 31 Supp. 39 (1894) (executors.) 277 NEW YORK ESTATES AND SURROGATES § 257 evidence against the' estate.^'' Whatever effect silence by an execu- tor to and including his accounting as to; a claim presented to him pursuant to statute may have on its' presumed admission, the silence of an executor after rendition to him of a Were bill leads to no pre- sumption or pnma facie evidence of the justice of the claim repre- sented by the bill ; because the principle of admission being implied from silence rests on the knowledge of him to whom it is presented as to the facts concerning the claim, and no such knowledge by an executor can be implied;^' Even though a;ny claim other than his own be admitted before or on his accounting by an administra;tor or executor,- or judgment has been had on a claim against his dece- dent, objections to it may be filed'by ally party adversely affected thereby, whether the claim, debt or judgment has been paid or nOt.^* The burden is' on the party objecting to the claim' or debt to show that it was fraudulently or negligently allowed or paid, or that the judgment thereo'n was obtained by fraud, negligence or collu- sion ; ^^ as due admissibh of its' validity pfirria facie establishes it.^ § 257. Id.: Compromise) Without Court Authority. — An admin- istrator or executor may settle of compromise any debt, claim or demand against his decedent whether' due or to become due either of his own unaided initiative^' or by authorization of the surrogate. An "administrator has the power to settle or cbmpromlise clainls for or against the estate and a settlement made by him can be set aside only upon proof of bad faith' or fraud." * So an arnount paid by administrators or executors in coinpromisb of an action against them based upon a claim against their decedent will be allowed them on their accounting if paid in good faith and from reasonable fear that the action might go against them, or that their success might prove mole costly than a partial iiurrender, even though the cause of ac- tion be shown on thp accounting to, be without foundation.* A set- tlement of a claim against an estate induced' by an erroneous state- ment in the administrator's inventory, suppressing a large portion of the estate^ is equivalent to legal fraud by- the administrator and mistake by the claimanit,! and furnishes good ground for vacating 1'' Pitzmahoney v. Caulfield, 87 ing claim, against estate is taken up Hun, 67 (1895), or 33 Supp. 876. in note in L.R.A.1915C, 737. "Coombs v. Joerg, 125 A. D. 615 ^ Matter of Warrin, supra. (1908), or 110 Supp. 6. ^ Clouteau v. Suydam, 21 N. Y. 179 "C. C. P. § 2680. (1860). 3" C. C. P. § 2680; Matter of War- * Scully v. McGrath, 201 N. Y. 61, lin, 56 A. D. 414 (1900), or 67 94 N. E. 195 (1911). Supp. 763. ' ' * Matter of Baruth, Ketcham or The manner of raising question, Lublin, 62 Misc. 596, 116 Supp. 1125 to charge executor or administratbr (1909)^-(exeoutor). personally, of collusion in establish- 278 §§'258, 259 ADMINISTRATOES the settlement.' An executor not only has the power, but it is his duty to compound and release a debt due the decedent if the estate's interest demands it; he must act as a discreet and prudent man would if the debt were his own.* § 258. Id.: Compromise, By Court Authority. — Compromise or composition by an administrator or executor of any debt, claim, or demand due or to become due from the estate may be authorized by the surrogate upon these conditions: (1) That application for leave to compromise or compound be made by the administrator or executor; (2) that good cause for the compromise or composition be shown ; (3) that it be necessary to settle, adjust or liquidate such debt, claim or demand in connection with the settlement of the de- cedent's estate.'' The object of the statute allowing an administra- tor or executor to secure the surrogate's authority to compromise a claim was not to confer powers on him which he did not already have, but to give him additional protection.' Any person interested in the final settlement of the administrator's or executor's account may then show that any debt or claim compromised or compound- ed by the administrator or executor by authority of the surrogate was fraudulently compromised or compounded.^ The granting of an order authorizing composition of a claim is discretionary with the surrogate; and the representative should not in every case apply to the surrogate, but should himself exercise the responsibility of his office; if he does wish the surrogate's order, he should present, with his application the consents of all who take under the will (if he is an executor or administrator c. t. a. ) or show that notice of the application was given them.^" § 259. Idi : Rejection. — The time at which a claim against a de- cedent is deemed rejected is important because from that time be- gins to run the ■ statute which limits the claimant's time within which to begin an action to recover the amount of his claim. A claim inay be rejected either by the administrator or executor; or the surrogate. ^^ If the administrator or executor doubts the justice 8 Bloodgood ■ V. Sears, 64 Barb. 71 * Chouteau v. Suydam, 21 N. Y. (1872). 179 (1860); see Matter of Gilman, SLelandv. Manning, 4 Hun, 7 92 A. D. .462 (1904), or 87 Supp. (1875). 128,; aff'd 17'8 N. Y. 606, 70 N. E. ' C.C. P. § 2683. 103, for history of statutes giving On compromise by personal rep- surrogate authority to permit com- resentative of claim due estate, see promise, note in 14 L.R.A. 414. The binding ^ C. C. P. § 2683. effect of settlement by sole heir or i" Matter of Bohmer, N. Y. L. J., distributee of claim belonging to Dec. 1, 1914 (Bronx Surr.). estate upon administrator is dis- ^^ C. C. P. §§ 2681, and 2680. cussed in note in 11 L.R.A. (N.S.) 148. 279 NEW YORK ESTATES AND SURROGATES § 259 or validity of any claim presented to him' he must serve a written notice upon the claimant that he rejects the claim or some part of it specified in the notice.** Even though the administrator or ex- ecutor before or on his accounting admits or allows a claim or debt, or a judgment has been had against him on it, any party adversely affected by the allowance or judgment may file objections thereto on such accounting, whether the claim has been paid or not; and the surrogate, if such party shows that the claim or debt was fraud- ulently or negligently allowed, or paid, or the judgment on it was obtained by fraud, negligence or collusion, must sustain the objec- tions.*' If the claim or debt has not been paid, it is deemed reject- ed by the administrator or executor at the time of the surrogate's determination sustaining objections to it.** "The action of . . . the administrator in disputing or rejecting claims . . . should be such an act or declaration as will admit of no reasonable doubt that the claim is definitely disputed or rejected, so that the claim- ant will be without excuse for not resorting to his action within the time required to save his claim . . . if in the . . . notice or declaration or at the same time, he does or says anything from which the claimant may reasonably infer that the determination to dispute or reject the claim is not final, but that it will be further examined or considered . . . the claim is not 'disputed or re- jected' within the statute." *° If a claim is rejected on the ground that it is barred by the statute of limitations, the administrator or executor is not bound so to state in his notice of rejection, but can claim this defense at any time before or at the trial of the claim's validity.*® There is an express and sufficient dispute of a claim, invoking the operation of the short statute of limitations by a no- tice : "You will please take notice that I doubt the justice and va- lidity of your claim of $748.00 against the above named estate, and I hereby dispute the same and offer to refer it under the statute to some suitable and proper person as referee, to be approved by the surrogate, to hear and determine the same." *'' If the representative directs an attorney to reject; which the attorney does, the rejection is effective.*' A legal representative is estopped from insisting on his alleged rejection of a creditor's claim so as to start running the short statute of limitations when negotiations for its final adjust- *« C. C. P. § 26'81. *' VanNess v. Kenyon, 208 N. Y. 1' C. C. P. § 2680. 228, 101 N. E. 881, Ann. Gas. 1914D, **C. C. P. § 2680. 221 (1913), old Code §§ 1822 and *=Hoyt V. Bennett, 50 N. Y. 538 2718, new Code §§ 2680-1: under (1872) ; Matter of Scheetz, 62 Misc. the new Code no offer to refer is 166 (1909), or 116 Supp. 428. necessary to bar the claim. *® Fabum v. Dimon, 20 A. D. 529 *' Wintermeyer v. Sherwood, 77 (1897). Hun, 193, 28 Supp. 449 (1894). 280 § 260 ADMINISTRATORS ment continued after the alleged rejection." Service upon a claim- ant of notice of rejection by the administrator or executor of his claim is sufficiently made if the claimant really is notified by such rejection, e. g., by notification to his counsel.^" It has been held that if service of notice of rejection is made by mail, the claimant has double the time prescribed by statute within which to bring his ac- tion on the claim.^ A notice of rejection addressed to a claimant and delivered to a member of the firm of his attorneys at their office is sufficient when the claim is signed by him and is endorsed by such firm, which served it on the personal representative, and no address of the claimant is given save that of the attorneys in the endorse- ment.* A notice of rejection sent by executors to an attorney sign- ing the letter mailed to and received by the executors which present- ed a claim and asked if the executors approved of it, is sufficient, if received by the attorney, to put in operation the short statute of lim- itations.' A claim against a deceased mother's estate for the main- tenance of an adult, unmarried child in an insane asylum is proper- ly rejected by the mother's executors when no order has been made establishing the mother's remissness in supporting her indigent, insane daughter and directing the confinement of the patient at the mother's charge in the state institution.* § 260. Id.: When Barred, In General. — The surrogate's court has jurisdiction to determine whether a claim is barred by the statute of limitations.' As it is the law's policy that claims against an es- tate should be presented and adjusted without unreasonable delay, the executor or administrator may and should, as the representative of the decedent, make all defenses, including that of the statute of limitations, which the decedent could make.® As against an estate, a debt barred by the statute of limitations must be held no debt, be- cause an executor or administrator not only must set up the statute as a bar but cannot be allowed on his accounting any sum paid on a debt barred by the statute at the time he paid it.' A creditor's statute of limitations is not diminished from what it was when the decedent Hved unless his claim is presented and rejected.' When "Calanan v. McClure, 47 Barb. * Matter of WiUis, N. Y. L. J., 206 (1866). Feb. 3, 1916; Insanity Law, § 86, 2" Matter of Edmonds, 47 A. D. Code of Criminal Procedure, § 914. 229 (1900), or 62 Snpp. 652. « Matter of Doig, 125 A. D. 746, 1 Matter of Smith, 58 Misc. 493 110 Supp. 93 (1908). (1908), or 111 Supp. 1085. *Ludington v. Thompson, 153 N. 2Loekwood v. Dillenbeck, 104 A. Y. 499, 47 N. E. 903 (1897). D 71 (1905), or 93 Supp. 321. 'Butler v. Johnson, 111 N. Y. 204, s Heinrich v. Heidt, 106 A. D. 179, 18 N. E. 643 (1888). (1905), or 94 Supp. 423 — decided 'Bank of PoUghkeepsie v. Has- under C. C. P. § 1822, now super- brouck, 6 N. Y. 216 (1852). seded by C. C. P. § 2681 in part. 281 NEW YORK ESTATES AND SURBOGATES S 260 services are rendered year after year under a general employment, without any express agreement, for compensation as to time or amount, the law assumes, for the purpose of determining when the statute of limitations begins to run, that the hiring is from year to year, and not that payment is postponed till the end of the employ- ment.' The statute of limitations on a claim for services and board to a decedent on:the latter's, promise to compensate therefor by will does not begin to run until the death of the decedent.^" The stat- ute of limitations does not begin to run against a claini for legal, professional services rendered and disbursements incurred in a pro- ceeding on behalf of a trustee until the final end of the proceeding unless sooner terminated^ by act of one of the parties.'* , The statute of limitations does not begin to fun against a claim for, rent against an estate under the decedent's agreement that the estate should pay the difference between the agreed rental and what the decedent paid during life until the decedent's death.*^ The claim of a creditor fixed by a decree of sale of his debtor's realty, pursuant to which no distribution is had, is not barred by the expiration of any time men- tioned in a statute of limitations, because decrees of a court of equity do not expire by lapse of time ; but the question of the en- forcement of the claim after a long time is for the court to decide on considering all the'facts.'^ The statute of limitations runs in favor of an executor of one with whom a person deposited money to draw interest subject to the latter's call, as no trust but the simple relation of debtor and creditor is created.'*" A receiver and admin- istrator of a next of kin has isueh an equitable interest in the estate of him of whom his intestate is next of kin as to enable him to plead the statute of limitations as a bar against a claim allowed in full by the administrator of the deceased debtor. '^ The statute of limita- tions bars a claim against a decedent six years aind eighteen months from its maturity, though preisented to and admitted by the 'dece- dent's personal represefi'tative.'* A life tenant to whom reversioiiers and executors have quitclaimed so. as to give him a fee, on condition that he make no claim against the estate, is estopped in pais from so claiming, as all the essential elements of estoppel are present : an 9 Matter of Stewart, 21 Misc. 412 i» Matter of Bradley, or , Arm- (1897), or 47 Supp. 1065-, Davis v. strong, 25 Misc. 261 (1898), or 54 Oorton, 16 N. Y. 255 (1857).. Supp. 555, afE'd, 42 A. D. 301, 59 1" Bair v. Hayer, 97 A. D. 358 Supp. 105. (1904), or 90 Supp. 27. . ^*BuM v. Walker, 113 N. Y. 637, "Mygatt V. Wilcox, 45 N. Y. 306 21 N. E. 72 (1889). (1871). . 15 Matter of Estate of Rainey, 5 f2 Matter of Neil, 35 Misc. 254, 71 Misc. 367 (1893), or, 26 Supp. 892. Supp. 840 (1901), agreement be- .'^ Matter of Estate, of Ro.bbins, 7 t-ween brother and sister. Misc. 264 (1896), or 27 Supp. (1009 282 § 261 ADMINISTRATORS admission inconsistent with the claim, action by the executors and reversioners on the truth of the admission^ damage to the executors and reversioners if the claim be allowed.^'' A claim presented short- ly before the statute ran against it, which is allowed, will be deemed allowed before it was barred and as of the date of presentation, al- though the petition for settlement of the representative's account and the account itself were filed after the statute had run ; because there is nq. burden Upon the representative to show that the claim was allowed before the statute ran.^' If a claim against a deceased person be not, presented to the executor or administrator within one year frorn the date of issue of letters, if no notice be published to present claims ; or within six months from the first publication of the notice to creditors, if such notice be published, the executor or administrator is not chai'geable for anj^ assets or moneys he may have paid in satisfaction of any lawful claims or legacy or distribu- tive shares before such claim was presented.^' § 261. Id.: When Barred, When Notice of Rejection Given. — The effect of, rejection of a claim against a decedent's estate depends upon whether made by his administrator or executor or by the sur- rogate. If the rejection i@ made by the administrator or executor, unless the claimaiit commences an action to recover his claim against the administrator or executor within three (3) months after the rejection,, the clairparit; and aU, persons claiming under him, are forever barred from maintaining such action, and the claim must " Crawford v. Orm§1:|ee, 6 A. D. corporations for unpaid stock sub- 50 (1896), or 39 Supp^ 740. scription, see note in 1 L.R.A.(N.S.) " Matter of Nelson, 6S' Misc. 627, 913. 118 Supp. 673 (.1909). The statute of nonclaim as equiva- "C. C. P.. §;2678." lent of limitation within rule that A number of notes involving the runniijg of the latter against debt se- statute of limitations as applied to cured will bar remedy on the mort- claims against decedent's estate are gage is discussed in note in 31 L.R.A. as foUows: .■ (N.S.) 1013. Whether statute of limitations is „ Whether proceedings for sale of suspended during period allowed ad- decedent's real property fall within mihistrator to bring action is dis- "omnibus" provision of statute of cussed in note in 13 L.R.A. (N.S.) limitation is discussed in note in 25 1200.' ■' L.R.A. (N.S.) 1304. On the effefet of failure to present The effect on running of limita- claim within the time allowed by the tions of appointment of temporary administration statute of the domicil administrator is discussed in note in as a bar to its: allowance in the state 38 L.R.A. (N.S.) 824. of the ancillary administration, or Waiver or tolling of , the statute vice versa, see note in .19 . L.R.A. of limitations or nonclaim by person- (N.S.) 553. • ,i al representative as to an indebted- As to when limitations begiii to ness of the estate is discussed in note ran in action against representatives in L.R.A.1915B, 1016. of de'eoased stockholder in insolvent 283 NEW YORK ESTATES AND SURROGATES § 261 be tried and determined on the judicial settlement of the adminis- trator's or executor's account.^" If no part of the debt for which the claim is presented is due at the time of its rejection by the adminis- trator or executor the action for its recovery must be brought by the claimant within two (2) months after any part of such debt does become due, if he would escape the bar of the statute.'"' If a claim filed by an infant be rejected by the administrator or executor, the time within which action on the claim must be brought begins to run only from the attainment by the infant claimant of his major- ity.*^ If an action on a rejected claim is brought within the statu- tory time limit and ends in a nonsuit, a new action may be brought after the expiration of the statutory time limit, provided it be begun within one year of the nonsuit.* If the claim is such that no part of it will be due for several years (e. g., notes of decedent due years from his death only) the claimant, if the administrator or execu- tor does not admit the claim, probably can maintain a suit in the supreme court to establish the validity of his claim and to be de- clared a creditor entitled to share in the distribution of the estate, because the claimant would otherwise be in the position of seeing the estate distributed to his prejudice, as the statutory provision requiring an administrator or executor to retain from distribution sufficient funds to satisfy a claim not due and on which action is pending is inapplicable in view of the inability of the claimant to start a suit for several years.* A claimant cannot escape the effect of a rejection of his claim by an administrator or executor by suc- cessive presentations of claims founded on the same transaction as that involved in the rejected claim, but varying in form or detail.' But if the administrator or executor and all others interested in the estate expressly agree and consent that a claim against the estate, barred by the statute of limitations, be paid, such consent avoids the effect of the statute, as the statute acts only on the remedy and not on the obligation itself.* The short statute 06 limitations should be strictly construed because it is penal in character.^ The short stat- ute of limitations applies to claims on which the testator's liability ""C. C. P. § 2681; Clark v. Sco- * C. C. P. § 405; Titus v. Poole, vill, 191 N. Y. 8, 83 N. E. 659 145 N. Y. 414, 40 N. E. 228 (1895). (1908) ; Matter of Clarke, 57 A. D. * Bankers' Surety Co. v. Meyer, 430 (1901), or 68 Supp. 243. 205 N. Y. 219, 98 N. E. 399, Ann. «1C. C. P. §§ 396, 2681; Matter Cas. 1913D, 1218 (1912). of Cashman or Shepard, 62 Misc. * Titus v. Poole, 145 N. Y. 414, 598, 116 Supp. 1128 (1909); Mat- 40 N. E. 228 (1908). ter of Brooks, 65 Misc. 439, 121 * Spicer v. Raplee, 4 A. D. 471 Supp. 1092 (1909) ; Matter of Beebe (1896), or 38 Supp. 806. or Brooks, 71 Misc. 102, 121 Supp. " Prentice v. Whitney, 8 Hun, 300 1092 (1911). (1876). 284 § 262 ADMINISTRATORS is only determined after his death as well as to those on which his responsibility is known before his death, e. g., if he was co-surety on an appeal bond in a case in which the judgment was affirmed after his death, a claim by the other surety for contribution is with- in the operation of the short statute.^ In order that the short stat- ute of limitations may be availed of by a representative to bar a claim against the estate he represents, not only must a notice re- quiring presentation of claims have been published, but a claim in writing must have been presented to and rejected by him — other- wise an unscrupulous representative might reject a claim in the course of conversation with a claimant.'' A claim against an estate founded on a judgment against a decedent in his lifetime cannot be barred by the representative's defense of the short statute of lim- itations even if he rejected it on presentation : such a claim need not be sued over again in order to authorize a decree by the surrogate for its payment.' Once the short statute of limitations has become operative against a claim against an estate it not only prevents the claimant from instituting affirmative proceedings for the enforce- ment of his claim but prevents him from utilizing it pro tanto as an offset for the purpose of extinguishing claims asserted by the estate against him.* A creditor who does not present his claim till after the expiration of time required by published notice to creditors to present their claims is nevertheless entitled to share pro rata with other creditors in the decedent's personalty when the latter's repre- sentative knew of the claim before such time was up and had never- theless paid out all the assets of the estate to other creditors before the time was up.^" If a claim against a deceased person be not pre- sented to the executor or administrator within six months from the first publication of the notice to creditors, if such notice be pub- lished ; or within one year from the date of issue of letters, if no notice be published to present claims, the executor or adminis- trator is not chargeable for any assets or moneys he may have paid in satisfaction of any lawful claims, legacies, or distributive shares before such claim was presented.*^ § 262. Id.: When Barred, When Objection Sustained on Account- ing. — ^If a surrogate sustains objections to a claim against an estate « Comes V. Wilkin, 14 Hun, 428 » VanNess v. Kenyon, 208 N. Y. (1878), affi'd 79 N. Y. 129. 228, 101 N. E. 881, Ann. Cas. 1914D, ''Ulster Co. Savings Institution v. 221 (1913). Young, 161 N. Y. 23, 55 N. E. 483 i« Matter of GiU, 42 Misc. 457 (1899), C. C. P. § 1822, but good on (1904), or 87 Supp. 252; aff'd 101 the point for which cited. A. D. 607. 8 Matter of Lyman, 60 Hun, 82 " C. C. P. § 2678. (1891), or 14 Supp. 198; aff'd 128 N. Y. 614, 28 N. E. 252. 285 NEW YORK ESTATES AXD SUBROGATES §§ 263, ^iU on the administrator's or executor's accounting, the claim is deemed rejected by the administrator or executor at the time of the surro- gate's determination; whether the administrator or executor has paid the claim or not.^^ The time between the presentation of the claim, or the commencement of an action on it if it was not pre- sented, and the time of the surrogate's determination, is not a part of the time limited for commencing an action on it." § 263. Id.: When Barred, Representative's Claim.-^The running of the statute of limitations against either a debt due from the de- cedent to the accounting party or against any other cause of action in favor of the accounting party against the decedent is suspended from the death' of the decedent until the first judicial settlement of the executor's accounts ; unless he was appointed on the revocation of former letters issued to another person, in which case the running of the statute is suspended from the grant of letters to the account- ing party until the first judicial settlement of his account.** It is the first judicial settlement, by an executor of' his accounts, which relieves the statute of limitations from its suspension in its applica- tion to his claim as relates to the time within which he may prove and establish it in the surrogate's court, and not : the grant of let- ters." The statute of limitations begins to run against a debt, due an executor or administrator from the decedent, or against any oth- er cause of action, in an executor's or administrator's favor against the decedent, after; the first judicial settlement of such executor's or administrator's accounts.-'^ , , § 264. Jd.: Reviypr. — An executor or adnainistrator cannot either by his prqmise or acknowledgment, whether oral or written, revive a debt against the, est^-te of his testator , or . intestate barred; by the statute of limitations; and against ^ claini, so barred, he , is bound. to plead the , statute." Although, a representative cannot revive ,an indebteidness against his decedent which -hjad been, extinguished by the statute of limitations he can, acknowledge and keep in force, by making payments from tipae to time on principal or interest, a subsisting obligation.*' Although an administrator cannot revive a .claim against his intestate .barred by the statute of limitations, yet when one administrator (probably with the consent of hi& co- administrator) makes a payment on a past due note of his intestate 12 C. C. P. .§ 2681. " Sehutz V. Morette, 146 N. Y. " Id. 137, 40 N. E. 780 (1895) ; Balz v. 14 C. C. P. § 2679. ' Underbill, 19 Misc. 215, or 44 Supp. I "Matter of Powers, 124 N. Y. 41'9, aff'd 16 A. D. 635, 46 Supp 361, 26 N. E. 940 (1891), old Code 1089. § 2740 — 14 years before executor ac- *' Holly v. Gibbons, 176 N. Y counted. ■ 520, 98 Am. St. Rep. 694, 68 N. e' "C. C. P. § 2679. 889 (1903). 286 § 264 ADMINISTRATORS before the statute has run against it, the claim is kept outside the statute.^^ Payment regularly by an administrator of the interest on a note given by his intestate precludes him and the next of kin from setting up the statute of limitations against a claim on the note.^" The passage of more than six years between an admission by a decedent of an indebtedness to one whom he named his execu- tor and the testator's death would bar the claim.^ An admission by a debtor sufficient to take his debt outside the operation of the statute of limitations occurs when the debtor, as one of several ex- ecutors of the creditor, states it in the inventory signed by all of them with the usual affidavit annexed; because the admission is voluntary, unqualified, unconditional, sufficiently signed by the one to be charged with it and is made — not to a stranger but — to the estate of the deceased creditor.^ The listing by an executor in his verified inventory as assets of notes of his testator is such an acknowledgment of the notes and of willingness to pay them as to take them out of the statute of limitations.* The inclusion by a surviving partner of a note made by his deceased partner in a list of the firm showing its debts and liabilities is not, from the fact that the surviving partner is the deceased partner's administrator, , to be construed as a recognition by him as administrator of the note" as a valid obligation of the estate of his deceased partner.* An admission by a surviving partner of the existence of a debt against the partnership on a partnership note signed by a deceased member does not take the obligation out of the statute of limitations so as to render liable the deceased partner's estate.* The inclusion by an administrator in his inventory, sworn to by him in the usual form, of a note due by him to his intestate, though it be barred by the statute of limitations, constitutes a sufficient acknowledgment to take it out of the statute.^ Although the statute of limitations had attached on a claim for board against a decedent, yet payments made on account of it before his'death tolled the statute; so that a limitation of recovery on it to six years prior to the debtor's death is wrong.'' One who is surety on notes on which a decedent is prin- ts Matter of Bradley or Armstrong, ' Ross v. Ross, 6 Hun, 80 (1875). 25 Misc. 261 (1898), or 54 Supp. *Keyes v. Metropolitan Trust Co. c55; aff'd 42 A. D. 301, 59 Supp. 169 A. D. 765, 155 Supp. 888 105. (1915). 20 Hamlin v. Smith, 72 A. D. 601 * Bloodgood v. Bruen, 8 N. T. 362 (1902), or 76 Supp. 258. (1853). 1 Matter of Narganes, 161 A. D. ^ Matter of Daggett, 1 Misc. 248 563 (1914), or 146 Supp. 922; afE'd (1892), or 22 Supp. 911. 213 N. Y. 659, 107 N. E. 1082. "^ Gilbert v. Comstock, 93 N. Y. 484 2 Morrow V. Morrow, 12 Hun, 386 (1883). (1877) — ^the debtor was the creditor's son. 287 NEW YORK ESTATES AND SURROGATES § 265 cipal which mature after the principal's death only has to make good his claim against the principal's estate within the period of the statute of limitations from the time he pays the notes, and the period between the maturity of the debt and the appointment of a legal representative of the principal is no part of the time limited by the statute.* § 265. Id.: Proof of, In General. — Public policy requires that claims against the estate of a decedent should be established by very satisfactory evidence and the courts should see to it that such estates are fairly protected against unfounded and rapacious raids.' Espe- cially when the claims are in favor of near relatives of the decedent should they be very carefully examined and allowed only on most satisfactory proof. ^" It is suJficient to make out a prima jade case for allowing an administrator or executor the amount of claims paid by him that they were presented to him by persons claiming to be creditors of the decedent; that they had performed services for the decedent ; and the administrator or executor paid them after examination and being satisfied of their correctness.^^ Claims with- held during the life of an alleged debtor and sought to be enforced when death has silenced his knowledge and explanation are always to be carefully scrutinized and admitted only on very satisfactory proof.** That a claim presented to a decedent's representative was never presented to the decedent in his lifetime alone suffices to cast suspicion on its validity ; and the court cannot sanction its payment except on satisfactory proof of its validity ; " and, if made for serv- ices rendered, on the testimony of disinterested witnesses that such services not only were rendered but were accepted with the inten- tion of paying for them." Claims against estates which cover a long period of time and are unsupported by written evidence should be carefully scrutinized and allowed only when establisned by evi- dence satisfactory both as to the extent and value of the services.''^ Contracts alleged to have been made by a decedent and to be en- forced after his death are to be regarded with grave suspicion and enforced only on strong, convincing evidence, and seldom on un- * Matter of Howard, 11 Misc. 224 or 33 Supp. 138; Matter of Wilmot, (1895), or 32 Supp. 1098. 39 Misc. 686 (1903), or 80 Supp. 9 Van Slooten v. Wheeler, 140 N. 651; Matter of Est. of Smith, 1 Y. 624, 35 N. E. 583 (1893). Misc. 253 (1892), or 22 Supp. 1085; ' "Matter of Goss, 98 A. D. 489 Winne v. Hills, 91 Hun, 89, 36 Supp (1904), or 90 Supp. 769. 683 (1895). " Matter of Myers, 36 A. D. 625 " Maisenhelder v. Crispell, 105 A (1898), or 55 Supp. 107. D. 219 (1905), or 94 Supp. 707. 12 Kearney v. McKeon, 85 N. Y. "Rock v. Rock, 105 A. D. 157 136 (1881); Rowland v. Howard, 75 (1905), or 93 Supp. 646. Hun, 1 (1894), or "26 Supp. 1018; i« Matter of Hart v. Tuite, 75 A. Ellis V. Filon, 85 Hun, 485 (1895), D. 323 (1902), or 78 Supp. 154 288 § 265 ADMINISTRATORS corroborated verbal admissions.** The rule that claims against a decedent's estate withheld during the life of the alleged debtor should be carefully scrutinized has no application when by agree- ment between the claimant and decedent no right of action exists till the debtor's decease." And if the alleged contract which is the basis of the claim is not first asserted to exist after the death of him whose property is sought to be charged with the claim, but such contract was the basis of a claim made against the decedent in his lifetime (so that the decedent had full knowledge thereof), the gen- eral rule as to the cogency of evidence requisite to establish a con- tract with a deceased person is not necessarily applicable.*' ISuits to recover against a. decedent's estate for services rendered the de- cedent in his lifetime under an agreement to make compensation therefor by will or on quantum, meruit depend for recovery upon the establishment of the contract as certain and definite in charac- ter, equitable in nature and proven by clear and convincing evi- dence either shown by writings or by the testimony of disinterested witnesses.*^ Claims against estates for board, attendance and serv- ice to the decedents, resting on oral evidence, are under suspicion from the outset especially when old and stale, and must be proved by clear and convincing evidence of disinterested and unbiased wit- nesses before they can be allowed.^" The rules governing the deter- mination of a claim that a decedent made a given contract to dis- pose of his or her estate at death in a different manner than he or she attempted to do have been recently summarized: "(1) Such a contract must be in writing and the writing produced, or, if ever based upon parol evidence alone, it must be given or corroborated in all essential particulars by disinterested witnesses — 180 N. Y. 121; (2) such testimony must be; of the clearest and most convincing character — 180 N. Y. 121; (3) verbal admissions of the decedent in any event, and especially when uncorroborated by othejr facts or evidence, should always be weighed with very great caution, and such admissions, made in the course of casual conversation, when testified to after a great lapse of time, should be given little proba- tive force— 180 N. Y. 120, 121 ; 194 id. 81 ; (4) the testimony of such a witness should be free from circumstances making it appear like an afterthought— ^194 N. Y. 81; (5) the evidence must estab- lish the .alleged contract in certain and definite terms — 202 N. Y. 18 Roberge v. Bonner, 94 A. D. " O'Brien v. Foley, 150 A. D. 257, 342 (1904), or 88 Supp.' 91; aff'd 134 Supp. 825 (1912); Wildmaii v. 185' N. Y. 265, 77 N. E. 1023. Jones, 150 A. D. 514 (1912), or 135 "Matter of Malloy, 13 Misc. 595 Supp. 428; app. dism'd 209 N. Y. (1895), or 35 Supp. 155. 531, 102 N. E. 1117. " Matter of McMillan, 218 N. Y. 8" Dueser v. Meyer, 129 A. D. 598 64 (1916). (1908), or 114 Supp. 64. N. Y. E. & S.— 19. 289 NEW YORK ESTATES AND SURROGATES §265 70 ; (6) tlie admissions should be recalled and expu'essed' by the wit- ness in substantially the; exact languEtge* of : the decedent and' not merely according to the witness' understanding — 127 App. Div. 97 ] 194 N. Y. 81,; and i(7) the alleged contract, or what it would ac- complish, should seem to be eqmtabl6WTl77 N. Y. 48." • A claim against .an estate to recover on the decedent's express contract to give the claimant the decedent's ;property on the latter's death must be established by evidence clear and convincing, and the contraxit must be definite and certain.' If there be nO' relationship between a decedtotand one claiming to recover for services rendered, the rendition of the services implies a promise to pay for them; and a promise in writing to pay an amount after death which is out of all proportion to the services is i nevertheless- a good foundation for a claim, even though the promisor heads his promise "Unique Char- ity." ' One rendering services and board to a decedent on the lat- ter's promise to compensate therefor by will is entitled to recover therefor as a creditor of the estate whether, the decedent^s failure to so compensate arose fDom design or accident.* The claim of an attorney for professional! services land loans to a testator in the lair ter's lifetime must be proven by high evidence when the attorney's wife is. the testator's executrix.* .The rule that a fact testified to by a disinterested witness who is not discredited, ' not in confiict with other evidence offere.d on the trial, is to be taken as legally estab- lished, has no application to claims sought to .be recoiered from the estates- of deceased persons.^ When the only evidence of a claim against a deoedent, is the .claimant's own testimony his credibility is for the isurrogate to : pass upon.'' No claim can be (made by one partner against the estate of his deceased partner till the partner- ,ship: affairs have been liquidated, as not till then can the amount dueS the claimant be known." A' strong piesumptioA arises from finding an evidence of debt in' the debtor's possession that the debt has been canceled eitheir by payment or gift.' A beqtiest by a mort^ iWallacfev. Wallace, 158 A. D. *Bair v. Hayer, 97 Ai D. 358 273, 143 Supp. 1148 (1913),''aff'a ■ (1904),'or 90 Supp. 27; 216.N. Yi:28,;109,N. E, 872. ,: , ,?Ma)>ter of Mulligan, 82 Misc. 336 'Ap thorp V. Thurston, 153 A. D. (1913), or 143 Supp. 686 and ,149 67^ (1912), or 138 Supp. 41; eWim Supp. 1098. . based on letter of decedent to claim- ® WalTiaum'v. Heaney, 104 A. D. ant stating "what I don't use of my 412 (1905), or 93 Supp. 640. things while I' live will be yours &hd "Matter of Marcellus, 165 N. Y. your fatnily's after I am gone. 70, 58 N. E. 796 (1900). ' :: . . ; ." 'Arnold Y. Arnold,. 90 N. Y. 580 » Matter of Todd, 47 Miso. ;35 (1882). . , i, (1905), or 95 Supp. 211; Leahy v. » Hall v. O'Brien^ 160 A;. D. 851, CampheUj 70 A. D. 127, 75 SupJ). '72 146 Supp. 551 (1914). - (1002). .: , : 290 § 2fifj ADMINISTRATORS ^ag'ee to the mortgagor of the mortgage with a provision that iii- terest due at the testator's' death and to become diae' during his wid- ow's hfe should go to her does 'not extinguish the debt and the iribrt- gage until the widow's death, as the debt' Was divided between the mortgagor and the widow, the' former gdttiiig the principal and tlie latter the Interest.'" An agreemfent that k disputed claim by an ex- ecutor against the estate shall be heard by a referee, approved by the surrogate, waives an objection that such a claim must be heard by the surrogate in person and cannot be referred." § 266. Id.: Proof of, By Relatives. — "Between persons living to- gether as members of the same faniil'y, beating towards each other a faniily relation, no promise to pay will be implied, and no action will lie unless the services were rendered at the request of the party receiving them under a promise to pay therefor, or under such cir- cumstances as show that the party receiving' them expected to pay, and the other to receive pay, therefor, or ' that the services were repdered with the undei'staiicling between the parties that compen- sation therefor would be made by will . '. . the courts make a distiriction between cases where the child has become of age, been away frorn hom6, established a business, arid' supported him- self, and then returns up6n the request of the parent, and one where "the' child has contracted tolive with the parent after arriving at age, and has never had any other home." '^ '\\''hen the relation- ship between the parties, is that of parent and child the la;W pre- . sumes, if there be iio proof of a contract under which the' services were performed, that there was, no agreehlent to pay for them and that, they were rendered gratuitously." A daughter properly sues to ree,over for services in taki'iig' cafe of a' sick motner when the daughter lived in her own household awa!y from her mother, biit came to the mother's hoipe at the latter's request tti take care of her, upon the mother's repeated statements that the daughter should be rcM'arded." There is no presumption that the services of a niece' to a deceased uncle were gratuitous.*^ Claims by near r'elatives for personal and domestic services to a decedent are to ^l Hancock v. Hancock, 22 N. Y. see extensive note in 11 Ij.R.A. 568 (i860).' , ,. (N.S.) 873., , ■• ' ' ^ , '* Weller v. Waller, 4 Hun,, ; l95 ^^ the burden of proof in action C1875^ ' ' for sjpeCiflc ,perforiliance of contract « Marion v. Farman, 68 Hun, 383 *? ^^^X^ P^^PfT*^ ,*?. ''^'^^,,'^ ''"S" n.sqq^ nV- -'2 Snr>n 946 • sideration of his living with proiB- (1893), or .2 bupp. 94b. ^ • ^ee note in 44 'L.R.A.(N.S.> ''Seamen v. Jamison, 188 A. D. ^gg - ' 832, 144 Supp. 209(1913). "Markey v. Brewster, 10 Hun, On the: implication of an agree- 16 (,1877), aa'd,70 N. Y. 607., '', ' ment to pay for services rendered ' i* Matter of Siitton', 159 A. D. 21, by relative or member of household, 143 Supp. 1072 (19l3). 291 NEW YORK ESTATES AND SUBROGATES § 266 be regarded with suspicion and require to establish them stronger proof than ordinary claims by strangers.^' Claims first presented after a decedent's death, resting on oral evidence of witnesses re- lated by blood or marriage to the claimaint, without written evi- dence to support or corroborate them, and fortified by no admis- sion of the decedent as to his liability thereon cannot be deemed meritorious except upon a large measure of proof." A child can- not recover for services rendered its dece,a,?ed parent in the absence of some express or implied contract as to compensation." As be- tween father and daughter living in the same family, a claim against the former's representatives by the latter for board of the father, first presented after the father's death, cannot hold except by clear and convincing proof of a direct contract.*^ A daughter who continues as a member of her parent's family after she be- comes of age and is supported by them cannot recover against her parent's estate for services she renders in the household unless there is some understanding or agreement to pay her.^" A niece is properly allowed her claim for services in taking care of her de- ceased aunt though there was no express agreement for compensa- tion when she went to the aunt's hppae to take care of her at her request, had always supposed her aunt would pay her by her will, and her aunt's residuary estate -n^as left her by the will but the entire estate was exhausted by pa,yment of the general legacies; because there will be implied a contract to .pay for the services and the relationship is not so close as to rebut the implication.* A sister, unable to pay boEird to her sister with whom she boarded, who agrees with the latter to leave l^er all she had at her death in consideration of , continued, hoard,, entitles the promisee to all the promisor's residuary estate.* A, claim for services by one who be- gan residing with the decedent when a year and a half old ; who, though never adopted by the decedent, took the latter's name ; who lived with the decedent till the latter's death, and between whom and the decedent the practical relation of pa-rent and child existed, comes within the scope of the presumption that services by one in the family are gratuitous ; though the presumption is overcome by "Matter of Liddle, 35 Misc. 173 "Matter of Duseriberry, 10 Mise. (1901), or 71 Supp. 474;, Matter of 633 (1894), or 32 Supp. 820; dism'd Warner, 39 Misc. 432 (1902) ; or 88 Hun, 618, 34 Supp. 1138. 79 Supp. 363; Matter of Draper, % ^^ Conway v. Cooney, 111 A. D. Misc. 335, 134 Supp. 236 (1911); 864 (1906), or 98 Supp. 171. Matter of Grogan, 82 Mi^c. 555, 145 '"' Green v. Roberts, 47 Barb. 521 Supp. 285 (1913); Marion v. Far- (1867). man, 68 Hun, 383 (1893), or 22 > Matter of Duffy or, Gal way, 19 Supp. 946. , Misc. 92 (1896), or 43 Supp. 970. ^TMcDemiott v. Conlon, 153^ A. D. ; "Matter of Mallory, 13 Misc. 595 69 (1912), or 137 Supp. 1105. (1895), or 35 Supp. 155. 292 §§ 267, 268 ADMINISTEATOBS frequently repeated statements of the decedent of intention to pay therefor, made to or in the presence of the claimant, and satis- factorily proved by persons other than the claimant.' § 267. Id.: Proof of, By Legatees. — A legacy by a debtor to his creditor equal to or greater than the debt is considered in satisfac- tion of it.* But any circumstances to repel the presumption are eagerly seized upon.* A legacy in lieu of any dower or exemption to which the claimant might be entitled in the testatrix' personal property or household goods, when the claimant was the testatrix' husband repels any intent that the legacy was in satisfaction of the claim.* A legacy by a testator indebted to the legatee will not be presumed to be in payment of the debt when the debt is due and the legacy is payable two years after the testator's death.'' A legacy to a creditor will not be deemed in satisfaction of his debt unless the will in words extinguishes directly or by inference such debt.' § 268. Id.: Proof of, By Representative. — Proof of a debt owing an executor or administrator by his decedent may be made by such executor on the judicial settlement of his account only.' A contest arising between the accounting party and any of the other parties respecting a debt alleged to be due by the decedent to the account- ing party must be tried and determined on the judicial settlement of the accounting party's accounts, in the same manner as any other issue arising in the surrogate's court." The requirement that a cla;im by an executor against a decedent must be passed" uport and allowed judicially before it can be paid applies equally whether the claim be in the representative's own right or in his representa- tive character as exectitor or administrator of another estate ; be- cause the reason, viz., the incongruity of his suing himself, is as sound in the one case as in the other." It is legally presumed (though the presumption may of course be rebutted) that, one who holds money or property as executor, administrator, testamentary trustee or guardian cannot dispose of it in payment of his own debt.^* The surrogate has no jurisdiction to entertain a proceed- ' » Matter of Dailey, 43 Misc. 552 Surr.) ; Matter of Smith, 75 A. D. (1904), or 89 Supp. 538. 339 (1902), or 78 Supp. 130, old * Matter of Cole, 85 Misc. 630 Code § 2731, like new Code § 2679. (1914), or 148 Supp. 1099. i" C. CP. § 2679. 6 Matter of Cole, supra. " NeiUey v. Neilley, 89 N. Y. 352 6 Matter of Cole, supra. (1882). ''Phillips V. McCombs, 53 K Y. '^ Gerard v. McCormick, 130 N. 494 (1873). Y. 261, 14 L.R.A. 234, 29 N. E. 115 « Sheldon v. Sheldon, 133 N. Y. 1, (1891)— stock certificate to "A. B., 30 N. E. 730 (1892). trustee" or "A. B. in trust," though 8 C. C. P. § 2679; Est. of Baker, it does not disclose names of bene- N Y L J. June 15, 1915 (N. Y. flciaries or particulars of trust, is 293 NEW I'OKK ESTATE8,ANI)',STJRR0GATES , § 269 ing by an , executor, or ad,mipjstrgtor solely .to prove his claim, against, tljeegta/te' other: than on, th^ , ocQasion of tjje judicial settle- ment of his account^,^' ..The, rjgjit of .^n executor tq have his claim; passed upon by the. surrogate ba,rs' him from going into equity in, a suit individually against (himself as executor, on such a claim." .'But it does not prevent the assignee of one who is not, oreditorbut executor of his deceased' testator from suing the. as-, signing creditor and the latter 'scoexecutor for the debt .in the su- preme court. ^* An executor cannot pay the claim of 'his coexecu- tot on its mere presentation.*® The proof of an execiitor's claim agkinst his testator before the surrogate must be by testimony of witnesses and all or any of the evidence knowii to' the common law.''* ' Claims by executors 'against the estates of their testators shoilld not be allowed except upon thfe clearest legal proof and when thei facts on Which the claim is based are established by very satis- factory evidence. ^^ An adininistrator's, claim, against his intestate will be allowed, reliactantly,'when he positively sweats to' it, a wit- ness corroborates the fa,ct of a loan by him to the intestate, the ad- ministrator lias ibrought. ^11 the, evidence he could, and there is no evidence against the claini.^ Possession hy an execufor of an un- dated cheque in his testa,tor'g h^dwT'iting is not suiScient to prove his claim for its aniount againsij; the estate when the account of the decedent on which the cheque was drawn was insufficient for its payment, no explanation or inference as, to hojy the cheque was received was advanced* no evidence was given' that the claim- ant had performed any sery ices with the knowledge; or. at the re- quest of the decedent or had acknowledged- any indebtedness to the claimant* . .• .'' i . . § 269. Id.: Burden of Proo-f, — ^When an administrator or execu- tor pleads the statute' of limitations to a claim* the claimant must show that a payment was made thereon within the statutory limita- notice to purchaser that .^'A. B.." . "Kyle v. Kyle,,,, 67 N. Y. 400 holds not in his own right but as (1876). trustee. ,■ , " Matter of Humphreville, 6 A. " Matter of Estate of Ryder, 129 D. 535' (1896), or '39' Snpt). 550; N. Y. 640, 29' N. E, 309 (lS9l). |Hatter qf Cole, 85 Misc. ' 630, 148 "Starbuck v. Farmers' Loan . & Supp; l099, (l9l4), or 148 Supp. Trust, Co. 28 A. 'D. 3'08 (,1898), or 1099; Matter of Mar.eellus, , 165 N. 51 Supp. 8. ' Y. 70, 58 N. E. 796 (1900)— execu- .15 Snyder v. , Snyder, 96 N. ,Y. 88 top.,, . . ,, (1884) executor. , ; , ^ Matter of Van teuren or Bi-od- '!« Matter of ,, Burr, 48 Mise. , 56 hpad, 19,, Misc. 373, (1890), or '44 (190S), or 96 Supp.; rev'd on otiier Supp. 357. point 118 A. p. 48,2,, 104, Supp. 29!, *, Matter of Humpl/revillc. (i A. D. old Code §,?719, new Code § 2682-3, 535 (1896), or 39 Supp. i35(): 294 §26') .. ;,■ .ADMINISTRATORS tion.' Tt i" not neeefsairy,' to enable: an .administrator or, executor to set up the defense of the statute of hmitations at a hearing on a claim, that he have ipl^ad it.* When an administrator or execu- tor denies > by written answer the validity of ' claims presented on "the ground (and so proyes) that they were provable in a bapk- ruptcy proceeding in which his decedent; was dischargedj. the onus is on the claimant to show that, his claim is within one of the excepted classes and not, therefore, released, by .the discharge in bankruptcy.* In proving a claim for moneys paid for an estate the claimant need only offer evidence sufficient tp show that he had advanced moneys and made expenditures uppn the request and; for the benefit of the decedent, and it is then the duty of the repre- sentative of: the (. E. 263,, (1889). died after annual record of assessed ,* Matter of Balacock, supra, valuatioii of re&l and personal estate ' * Matter of Gill, 199 N. Y. 155, 92 and time when application could be N. E. 390 (1909); old Code §2719, made for. correction,, cancelation or : new Code §., 2682. : , • , . revision of assessment roll, but be- '' C, C. P. § ,2682., fore delivery of rolls by board of * Matter of "Williams, 208 N. Y. taxes and assessments to board of 32, 46 L.R.A.(N.S.) 719, 101 N. E. aflidermen; Kelly v. Pratt, • 41 ' Misc. 853 (1913)— for alimony, although 31 (1903), or 83 Supp. 636;' Conir'a hlisband' later 'went through bank- Matter of Hewitt or Goodheart, 40 ruptcy prdceedings in which judg- Misc. 322 (1903), or 81 Supp. 1030. ment listed. 298 §§ 274, 275 ADMINISTRATORS there are no specific liens, the judgments docketed against their testator according to their priority;® Judgments docketed and de- crees enrolled are entitled to preferenee in payment out of the personal estate of a deceased debtor according to the priority in point of time of docketing the judgments or enrolling the decrees, without reference to any supposed lien of the judgments or decrees upon the teal estate of the decedent.^" A judgment recorded against a decedent in his life is a debt the validity of which has been established by a court of Competent jurisdiction and not a mere claim against the esta!te which may be rejected;*^ § 274. Id.: MisceiUaneous Debts. — After administration and bur- ial expenses; debts preferred under the Federal or state laws; taxes assessed on decedent's property before death ; arid judgments dock- eted and decrees entered against the decedent, have been paid, recognizances, bonds, sealed instruments, notes, bills, and unliqui- dated dernands and accounts must be paid.^^ ■ § 275. "Id.: Source of Payment. — The persoiial estate of a de- cedent is deemed the natural primary fund to be first applied in discharge of his personal debts.^* The Answers to what personal property is available for payment of debts will be found in that part of the chaptet on "Administrators" which deals with what are assets. ■'^ "The rUle for the marshaling' of the assets of a decedent's estate for the payment of debts of a decedent, in the absence of an express testamentary direction to the contrary, is as follows: First, the persdnal estate, and of this (a) the personal' estate not be- queathed; (b) the personar estate generally bequeathed; (c) the personal estate specifically bequeathed; and second, the real estate, and of this (a) 'property which has descended to the heirs at law; (b) that which is generally devised, and (c) that which is the subject of a special devise."^^ i Assets of- a testator are applicable to the payment of debts and administration expenses in the following order: unbequeathed personalty of which he died intestate,^^ gen- eral legacies; and specific legacies. General legacies must be sold 9 Matter of Poster, 8 Misc. 344, 39; 266, 85 N. E. 59 (1908)— (testator). Supp. 316 (1894). "See § 217, et seq. supra. 10 Matter of Townsend or SJier- "Duck v. McGrath, 160 A.. D. wood, 83 Hun, 200, 31 Supp.. 409 ^^^ ^^t\on ^%^oW'\^%^ '^n^ (1894), old Code § ,2719, new Code 1^0 S'upp. 490 afPd 212 N. Y. 600, ee OfiQO— Q -LUp JN. Jjj. J.Uo^. , ^t -KT ^^' n -D or TVT- ofio Order of abateinent to pay debts, ," Matter of Browne, 35 Misc. 362, ^^ ^^^^^^ demonstrative legacies or 71 Supp. 1034 (1901). devises is discussed in note in 4 18 C. C. P. §2682. L.R.A.(N.S.) 922. 13 Hoes V. Hoesen, 1 N; Y. 120 is Matter of Klatte, 92 Misc. 651 (1847) (testator) ; Farmers' Loan (1915). ■' ' ' and Trust Co. v. Kip, 192 N. Y. 299 NEW YOUK ESTATES AND SUREOGATES §§276, 277 before specific legacies , if , necessary to pay debts an,d funeral and administration expenses." When acaisK sum is undisposed of by will, it and a general bequest ,must be applied to the payment of debts and funeral and, testamentary expenses before a specific be- quest,^' Any surplus of income pf a trust fund,, the trustee- of which is to receive the rents and profits^ not necessary for the main- tenance and support of the, beneficiaxy, is liable to payment of creditors' claims like other property which cannot be reached by execution, and a complaint seeking to reach such surplus must af- firmatively show, that it exists.^* If a surviving husband does not take out letters of administration on the estate of his deceased wife, he is presumed to have assets in, his hands sufficient to satisfy her debts, and is liable therefor.^" A husband is liable as adminis- trator for his wife's dpbts only to the extent of the assets received by him.^ If he dies leaving any assets of his wife unadministered, except as otherwise provided by law, they pass to his executors or administrators as part of his personal property, but are liable for her debts in preference to his, creditors.^ The liability of a dece- dent's realty for payment of his debts is treated elsewhere.' § 276. Id. : Interest. — Interest should be allowed on unliquidated claims established against an estate for services rendered the dece- dent, not from the date of the decedent's death, but from the date the claim was presented to the decedent's legal representative.* Interest is allowable on a claim from the date of its rejection if it does not show the date of its presentation.^ An unliquidated claim intended to be paid in the course of administration as a claim against the estate does not draw interest. ° § 277. Id.: Compulsory Payment, In General. — While ordinarily an administrator cannot retain from estate moneys in his hands the amount of a debt due him from his intestate until it has been legally established and allowed, yet he may do so if all the persons interested in the estate assent thereto; and need not then make formal proof of his claim, because the assent takes its place.'' By voluntarily filing their account in a sm?rogate's court before claims of creditors presented to them and not disputed by them had been "C. C. P. § 2684; Est. of Werle, «Id. N. Y. L. J. July 14, 1915 (Bronx « See § 284 et seq., infra. Surr.) * Matter of Cowen, 130 A. D. 364, 1? Matter of Werle, 91 Misc. 398 114 Supp. 888 (1909). (1915), or 155 Supp. 262. ^ Tyndell v. Van Auken, 106 A. D. "Keenly v. Morse, 34 Mise. 114 238, 94 Supp. 269 (1905). (1901), or 69 Supp. 535; afiE'd 71 « Matter of Hartman, 13 Misc; 486 A. D. 104, 75 Supp. 728. (1895), or 35 Supp. 495. '"'Deced. Est. L. § 103. ''Ledyard v., Bull, 119 N. Y. 62, lid. 23N.E. 444 (1890). 300 § 278 ADMINISTRATORS outla«-c(l, admiiiislrators lose the protection of the statute of limita- tions, even though no .citation was issued in such accounting pro- ceeding until after the statute had t-u^ against such claims; be- cause by liquidating the estate, collecting its assets, and bringing the estate into court for distribution, the administrators made it a trust fund in which creditors were preferred, and no presumption of their payment could arise.' An executor or trustee may apply to the payment of the expense incurred in the employment of a debtor of the estate to perform proper, necessary services for the estate, the demand which he has' in his .representative capacity against the debtor.' Executors of a deceased mortgagor may be compelled by a surrogate to file an inventory and account so that he may decree payment by them of any money shown thereby to be in their hands for the balance of the mortgage debt due on fore- closure begun after their testator's death; because if the mort- gagor had been alive the' deficiency judgment would have been against him personally atid on his death his estate is liable.*" § 278. Id.: dpmpUlsory Payment by Representative in Surro- gate's Court. — Each surrogate's court has jurisdiction, in the cases and in the manner prescribed by statute, to enforce the payment of debts.*' The fact that an executor is jointly interested in a demand against an estate or owns part of it by assignment does not aflfect the surrogate's jurisdiction to pass on its validity.*^ The surrogate can try its validity equally as if wholly owned by the exe'cutot.*' The sUrrbgate has jurisdictibn to order payment of a claim of a creditor' only if he be a creditor of the decedent and not if he be creditor under a claim created by an executor.** The procedure which governs the collection of a claim against a dece- dent's estate is that' which is' in force when the proceedings to col- lect are begun, without regard to the time when the claim matures.*' A petition' may be presented' by any creditor of the deceased having a claim, to the surrogate's court, if such claini has not been rejected by the administrator or executor of the decedent, when (1) the adrainistrator or executor has not begun publication of the notice to creditors to present their claims, and (2) three months have. elapsed since the grant of letters testamentary or of adminii?- • Matter of Hannon, 46 Misc. 229, *» Boughton v. Mint, 74 N. Y. 476 93Supp. 207 (1905).' ' (1878). 'Davis V. Stover, 58 N. Y. 473 ** Matter of Hyatt, 80 Misc. 467, (1874). 14-2 Supp. 455 (1913), old Code, " Glacius v. Fogel, 88 N. Y. 434 § "2722, new Code, § 2687. n882) ** Matter of Lucas, 92 Misc. 85, " C.'C. P. § 2510. 155 Supp. 1017 (1915). i« Shakespeare v. Markham, 72 N. Y. 400 (1878). 301 NEW YORK ESTATES AND SURROGATES § 278 tratiqn." The forrp of thft petition is in general that of a peti- tion in any surrogate's court proceeding." In particular it must set forth the facts and pray, that the adminis-trator or executor be cited to. show cause, why he, should not pay the claim. ^' It has been held that, one petitioning, against an administrator that he show cause why. he , should not pay the petitioner's cla,im must be a creditor to whom the decedent was indebted in his lifetime.^® But the statute defines a, .creditor not only as every person having a claim or demand upon, which a judgment for a sum of money (or directing the payment pf money) could he recovered in an action, but as any person having a claim for expenses of administration or funeral expenses.^" An assignee of a claim .against a deceased debtor of his assignor may petition the surrogate's court to com- pel the administrator to pay his claim.* The surrogate's court has no jurisdiction of a petition for payment by an executor of a claim on an order by the , executor after the testator's, death : . be- cause the creditor referred to in the statute ^ as,entitle(i to make such a petition is a creditor of the, estate, i. e., one having a. claim against the decedent, and not, one having a claim against the decedent's representative.'' , On presentation pf. a petition .showing the existence of ithe f^cts required to authorize the issuance of. a citation the isurrogate must issue such citatioii* It must issue to thq administrator , or execu- tor.* Its forni is like that of , the standard surrogate's citation,* and it must require the , administrator or executor to show cause why he should not; pay the claim.^ If , the administrator has be- gun the publication pf: notice to creditors.to .present their claims, there seems to.be no provision in ;tbe law authorizing the issuance of a citation tP him tp show cause why a creditor should not be paid.* : On the return of a.citatipnto compel payment of . a claim the administrator or executor may either reject it or show good and suffi,cient cause why he s!hould,not ,pay;itJ The surrogate may « C. C. P. §. 2687, ... , , ^Matter of Modems, 63 Hun, 261, " See § 787, infra. 17 Supp. 781 (1892), old Code, " C. C. P. § '2687. § 27l7, new Code,' §§ 2684, 2733. J'Hall V. Dilsenberry, 38 Mil;' * Matter of Hyatt, SO' Mis6. 466 125 (1885), old Code, §§ 2717, 2718, (1913), or 142 Supp. 455; old Code, new Code, §§ ; 2684, 2733, ,2677^8, §; 2722, new Code, § 2687, petition by attorneys of defendants * C." C. P. § 2687. in action against tjbem; by adminis- f See § 799, infra, tratpr, to recover moneys in defend- ' C. C. P. § 2687. , , ant's hands, to haye paid costs aA- * Est;, of Klatzko,. N. T. L. J; Bee. judged ilfP defends-flts against the 19, 1914 (N. Y. Surr.), C. C. P, administrator , on; the defendant's §2687. success in the "action. ' C. C. P. § 2687, ^ C. C. P. § 2768. 302 § 278 ADMINISTRATORS either dismiss the -petition or direct immediate payment or satis- faction of the claim in whole or in part.* He should inquire into the estate's condition and grant the relief only if it can be given without prejudice to other creditors than the petitioner.? An ad- ministrator or executor paying by surrogate's order a creditor's claim is protected eveni if it finally turns out that the estate is in- sufficient to pay other creditors." If, after the surrogate's direc- tion to the administrator or executor to pay but before payment, the supreme court has removed the administrator or executor and appointed a receiver, the creditor whose claim was directed to be paid is not preferred." The surrogate properly disregards an an- swer by executors to a petition requiring them to pay a claim when it shows no fact tending to establish a defense to the claim, even though the petition does not show: there is money applicable to payment of the claim without injuriously affecting the interests of others, if an, inventory of the estate shows this ; because the records of a surrogate's pffice are before him, whether used in some former proceeding in the administration of the estate or in the pending one.^^ A creditor's, application to compel an administrator to pay his claim will be denied when the administrator's account included the claim at its full amount and alleged it had been paid, if the creditor xelies on such account and the decree entered upon it to establish the existence of his clajim, but desires not to consider, its statement that his claim was paid, even though thP creditor was not brought into the accounting proceeding ; because the creditor must take the whole djec^ee or nqne of it." His proper procedure is to move to make the decree conform to the truth, if he can establish that his, claim was unpaid." A creditor, by petition, rnay cause a citation to issue to a tem- porary administrator of his debtor to sh,ow cause why the : ad- ministrator should no,t pay the debt,, (1) at any time after the completion of publicatiori of a notice by such an administrator to creditors to present their claims, (2) upon proof to the surro- gate's satisfaction that the assets exceed the debts. When such a petition is presented the proceedings are the same in all respects as in a case in which a creditor presents a petition prayiiig for a decree directing an executor or administrator to pay his debt.^* 8 C. C. P. § 2687. " Matter' of Murphy, 59 Misc. 131, 'Thomson v; Taylor or Matter of ^2 Supp. 220 (1908), old Code, Thomson, 71 N. Y. 217 (1877). § 2722, new Code, § 2687. 1' Thomson v. Taylor, supra. ^* Matter of Mm-phy, supra. " Thomson v. Taylor^ supra. *? C C. P. ,§ ^2599. 18 Matter of De Forest, 119 A.D. : 782 (1907), or 104 Supp. 343, aff^d 189 N. y. 544, 82 N.' E. 1125. ... 303. NEW YORK ESTATES AND SURROGATES §§ 279, 280 An order of a surrogate permitting a temporary administrator to pay the wliole or any part of a debt due a creditor of tie decedent or absentee whom he represents maybe made (1) at any time after the completion of the publication by the temporary adminis- trator of notice to creditors to present claims; (2) upon proof to the surrogate's satisfaction that the assets exceed the debts.** It need not be upon notice. § 279. Id.: Compulsory Payment by Action, In General.-^When a jieriod will elapse before a claim against a decedent becomes due within which under ordinary circumstances the estate will be dis- tributed, and the claim cannot be passed upon on the accounting of the decedent's representatives and no retention of funds to pro- vide for the claim as one riot due can be ordered because the claim is not admitted and no action is or can be for some time pending on it, the supreme court will entertain an action of the claimant to establish the validity of his claim and that the claimant is a creditor of the estate and entitled' to share in its distribution.*' A judgment creditor of a decederit whose executor had knowledge of the claim although it was not presented pursuant to a duly pub- lished notice by the executor to creditors, after an agreement be- tween the decedent's testamentary beneficiaries and the executor that the latter should hold the former's share in trust for them, cannot enforce his claim against the beneficiaTies, because no part of the fund has been paid or .distributed to them; but the fund nevertheless remains intact, and is, in equity, so far as' concerns creditors, subject to be followed and impressed with a lien on their behalf." § 280. Id.: Action for Intestate's Debt against Husband, "Wife and Kin. — An actiorl may be maintained against the surviving hus- band or wife and next of kin of an intestate to recover, to the ex- tent of the assets paid' or distributed to them for a debt of the in- testate upon which the action might have been maintained ^.gainst his' administrator; aiid the neglect of the creditor' to present his claim to the admiiiistrator within the time prescribed by law for that piirpose does not inipair his right to maintain such an action." Such an action must be brought, alt the plaintiff's election, either jointly against the surviving husband or wife and all the next of kin, or against one of theni only.*" When a joint action is brought, the whole sum whiph the .plaintiff is entitled to recover iixust be " C. C. P. § 2599. " - ' Co. 78 A. D. 366 (1903). or 79 Supp. "Bankers Surety Co. V. 'M^er, lOlf! nffi'd 178 N. Y. 551, 70 K E. 205 N. Y. 219, 98 N. E. 399, Ann. 1097. Cas. 1913D, 1218 (1912). " C. C. P. § 1837. " City of New York v. U. S. Trust ^o c_ q p_ § ^ggg^ 304 § 280 ADiVrmiSTEATORfe apportioned among the defendants in proportion to the distributive share received by each of them, and the final judgment must award against each defendant separately the proportionate sum thus as- certained.^ If the plaintiff is entitled to costs they must be appor- tioned ill like manner ; except that the expenses tii serving the summons upon each defendant must be taxed against him only, and one sheriff's fee for returning an execution may be taxed against each defendant agaitist whom any sum is awarded.^ When the action is brought against the surviving husband or wife, or against one only of the next of kin, the sum Avhich the plaintiff is entitled' to recover cannot exceed the sum which he would have beeii entitled to recover from the same defendant.^ "When the sur- viving husband or wif^, or next of kin are liable for demands against the decedent, they inust give preference in the payment thereof, and they are so liable therefor, in the order prescribed by law for the payment of debts by an executor or administratoir.' Preference of payment cannot be given to a demand, over another of the same class, except when a similar preference by an executor or administrator is allowed by law.* The commencement of an action does not entitle the plaintiff's demand to preference over another of the same class, except as otherwise specially prescribed by law.' When there are unsatisfied dehiands against the dece- deht's estate of a class prior to that of the plaintiff's demand, the defendant is ehtitlied to judgment if the value of the property which was received by the class to which he belbngs does not exceed the amount of the valid claims of a prior class. If such value does exceed the amount of those dema-rids, the judgment against the defendant cannot exceed such a Jiroportion of the plaintiff's de- ihand as the total amount of the valid demands of his class bears to the excess.' When a defendant or a person belonging to his class has paid a deniand against the decedent's estate of a class prior to that of the plaintiff's demand, or has paid a deimand of the same class, the amount of the iiemand so paid must be estimated in as- certaining the amount to be repovered, as if it, was outstanding and unpaid.' When a person who taJces personal property' as next of kin, and also as legatee ; or who takes both, real and personal prop- erty as heir or devisee fin^ next of kin or legatee ; or who i^ executor or administrator, and also takes in either of such capacities would be liable ip one capacity fpf a demand against the decedent, after the exhaustion of the remedy against him in another capacity; the ^ C. C. p. § 1839. Md. * C. C. P. § 18^9, "Id. »C. C. P. § 1840. ■ ' "> C. C. P. § 1856. *C. C. P. § 1855. ' ■ «C. C. P. § 1857. N. Y. E. & S.— 20. 305 NEW YORK,. ESTATES AND SURROGATES § 281 plaintiff, in any,|action to charge hirp., ^hich can ,be .niaintairied without, joining with hina any other perspn, except a, person, whose liability is in all respects the same,' may, recover any sum, for which he|,is liable, although the remedy against, him in another, capacity was not exhausted;, but thp sum which,, the plaintiff is entitled, to recover against him in, the ;capacity in ,which he is actually liable cannot in such way Idc increased,;, nqr does a defendant thereby become charged individually, lyho .is liable only in a representative capacity.* A posthumqus child of a tpstfttoi;, entitled to ghare in the estate though not meptjioried in the, will is, liable to, cre4itors of the testator, pro rata, .with, devisees und^r, the .will."" It ,is ;no bar to an taction by a decedent's judgment creditor against l^be dece- d^t's surviving widow and next of kin to recover, the amount re- raaiping due on the judgment that th,ere has been had no judicial settlement of the accounts ,of, the depeased's ,adminjistratior in. the surrogate's court; beqauses the supreme court, can require such, an account as . incidental to the action." .But if the judgment credi- tor's claim was not presented pi^irsuant; to published notice by the adniinistrator to cj:editors, to. present thpir claims, and the wi.dqw and next, of kin only knew of it several years after the .stat,utory period for presentation of i^laipis had passed, the creditor, cann,ot asjc th^t, there be considerp^, as assets applicable to his claim the .excess, pveir a reasonable,, amount paid for a moi)um{ent, for.the .de- cedent (as he could if such amount,, had been assets actually dis- tributed to the widow, aiid next of .kln),.^^ , § 281. Id, : Action for, intesta)te,'s Debt against Heirs. — The heirs of an intestate. ai^e li,a|3le for his !deb|t^ arising by, simple contract or by specialty ,to the extent of the estate, interest aii.d right : in the real property which, .descended to.tbem frqm the decedent,*^ .The statutory cause of .aqtion against hpirs or devisees, to recover an in- debtedness existing against' the pei^on from whqm they acquired the property can only be mainta,ined against the direct heirs and devisees and not against the heirs or devisees of such heirs and .devisees.^* An action by a qreditor to charge the heirs of the de- Ceased -debtor with the debt ^ill not fail merely because the prop- erty came to thfe defendants as deviseSs instead of heirs, and vice versa; because in either bi|)acity' the defendants fiiust Respond to the claim. ^* N6 action to enforce this liability can' be maintained 9C. C. P.'i 1860. ' ■ i^beced. Est. !,.'§ 101. ' I J" Rockwell v.GfeaTy, 4 Hun, 606 .," Green v. Dunlop, 136 A: D. 116 (1875). (1909), or 120 Supp. 583, C. C. P. "Miller V. Morton, 89 Hun,; 574, § 1843. 35 Supp. 294 (1895), C. Ci.^P. § ^^ Matteson v. Falser, 173 NY 1837. 404, 66 N. E. 11^. (1903), C. C P. 1^ Miller v. Moptf)i:i, supra. . • § 1837 et seq. ••; ;, ,30^ OC- .? '■ § 281 ADMINISTRATORS unless (1) one year has elapsed since decedent's death, .and no letters; on his estate have been .granted within the state; or (2) eighteen months have elapsed since letters upon his estate were granted within the state.^° If a proceeding is pending in,- a sur- rogate's court having jurisdiction at the time of the commence- ment of such an action, in which an order may be made disposing of the decedent's real property for payment of his debts, the pro- ceedings in the action subsequent to the complaint must be stayed by the court until thft surrogate's proceeding is disposed of, unless the plaintiEf elects to discontinue the action ; and if an order to dispose of real property is granted, the action must be dismissed unless the plaintiff has alleged in his complaint or alleges in his supplemental complaint that real property other than that included in the decree descended to the defendants, in which case the plain- tiff is entitled to a preference in payment out of the real property with respect to which the allegation is made; but he cannot share, as a creditor, in the distribution of the money , arising from the disposal of the real property described in the order and the judg- ment in the action does not charge or in any way affect, that prop- erty." An action .against: heirs must be brought jointly against all the heirs to whom any real property descended from the dece- dent.** The sum which the plaintiff is entitled to recover for dam- ages and costs must be apportioned among all the defendants in proportion to the value of the real property descended to each heir ; the final judgment must award against each defendant' separately the proportionate sum. with which he is chargeable; and the costs to which the plaintiff is entitled must be apportioned against each of the defendants, separately according to the proportionate sum with which he is chargeable, except that the expenses of serving the summons upon each defendant must be taxed against him only; and one sheriff's fee for returning an execution may be taxed against each defendant against whom any sum is awarded.'^ The plaintiff must show in an action against heirs either (1) that the decedent's assets, if any, within the state, were not sufficient to pay the plaintiff's debt, in addition to the expenses of administration and debts of a prior class, or (2) thai the .plaintiff has beon unable, or will be unable, with due diligence to collect his debt by proceed- ings in the proper surrogate's court, and by action against the ad- ministrator or executpr and against the surviying husband or wife, next of kin and legatees ; and the administrator's or executor's accounts as rendered to, and settled by the surrogate, may be used 18 C. C. P. § 1844. " C. C. P. §1846. " C. C. P. § 1845, as amended " C. C. P. §§ 1847 and 1839. L. 1916, c. 4M.;-.:' ■ 307 NEW YORK ESTATES AND SURROaATES § 281 as presumptive evidence of any of these facts.*" When the assets applicable to the plaintiff's debt were sufficient to pay a part there- of, or a part thereof has been collected from the executor or admin- istrator, or from the surviving husband or -wife, next of kin, or legatees^ the plaintiff can recover only for the residue, remainder unpaid or uncollected.^^ The complaint must describe the real property descended to the defendant with common certainty and must speicify its value.** If any of the realty which descended to a defendant has not been aliened by him at the action's commence- ment, the final judgment must direct that the plaintiff's debt, or that proportion of it which he is entitled to recover against that defendant, be collected out of that realty; and such a judgment is preferred, as a lien upon that property, to a judgment obtained against the defendant for his individual debt or demand.^ But such a judgment does not bind, nor can execution thereupon in any way affect the title of a purchaser in good faith and for value acquired before a notice of the pendency of the action is filed or final judgment is entered aiid the judgment-roll filed.* If the de- fendant, '• before the commencement of the action, • or afterwards and before the filing of a notice of the pendency of the action, aliened the realty descended to him, or any part thereof, the plain- tiff, at his election, may take a final judgment against him for the value of the property so aliened or so much thereof as may be nec- essary, as in an action for the defendant's own debt.' When heirs are liable for demands against iheir decedent they must give pref- erence in the payment of such demands and' are so liable therefor in the order prescribed by law for the pkyment of debts by an exec- utor or administrator.* Preference of payment cannot be given to a demand, over another of the same class, except when a similar preference by an executor or administrator is. allo\ , iADMINISTEATOBS , , , , is liable only in a representative capacity.* A plea by one who is administrator c. t. a. ^d sole de\ise,epf a d^cedpnt in an, action against, hijn to. enfoi^ce payment of his decedent's debt that the remedy against himself ^ssuch adn(iinistrator was not exhausted before, ihe was siied, as devisee is, not good; because of the identity ,o,f the adrc^inistrator c. t. ; a, and devisee . who alone need be party to such an: action.'' An actioji to establish the liability of a devisee of a stockholder who, ^ied- pending an aiCtion against, him to enforce his personal liability on the bank in which he held stock becoming insolvent is not barred by the statute of limitations until ten ,years after a fin^l judgment had been made in the action against the de- cedent ,(or against his representative as s,ubstituted defendant) ; be- cause not till the decedent's contentions against, his liability had been determined did a cause of action arise against his devisee; and because, further, ;the .,c,i;edit,q)r's action to.,fin;force the liability of a stockholder is in equity arid the enforcement against his devisee of his liability is also in equity.' The proper basis of apportioning the sharing ,by devisees of the claim of a creditor of their testator is tlie, value of their respective devises at the time of their, tes- tator 's,,(ieath.' § 284. Disposition of Realty: Surrogate's Jurigdiction.^?jach surrogate's court has jurisdiction in'the cases and manner prescribed by sta:tute to direct the disposition of real property, interests in real property and proceeds thereof, of decedents." Before the surrogate can grant, a valid order or decree for sale of a decedent's realty to pay debts, etc., he must have obtained jurisdiction of the persons whose rights will be affected thereby ; because no man can be di- vested of his rights until lie has had opportunity of being heard." An application to sell realty of a decedent to pay his debts shovild be made to the surrogate of the county in which his will was pro- bated ^^ (or letters of administration on his estate were granted). A surrogate's court had no power (on motion of an administrator who has sold his decedent's land) — before the iiew code became ef- fective — to set aside the sale, direct a resale and repayment to the purchaser of his earnest money; even though the circum- stances be such that the application should be granted. ^^ It was 6C. C. P. § 18(30'. ■ 10 C. C. P. §,2510, subd. 5.. ■'De Crans v. Moore, 3Q jflisc. 303 " Sh,eldon v. Fright, 5,,N. Y. 497 (1909), or 63, Supp. 585; C. C. (1851); P. §§ 1843 and 1860. i^Bostwick v. Atkins, 3 N. Y. 53 'Richards' V. Gill;, 138 A. D. 75 (1849),, ,, (1910), or 122 Supp.' 620; § 101, i^ Matter of , Prown, 79 Misc. 675, Deced. Est. L., § 52 Banking Law. 141 Supp. 318 (1913), old Code, or "SRookwell V. Geary, 4 Hun, 606 141 Supp. ,318. See C. C. P. § 2709. (1875). , ;' 315 NEW YORK ESTATES AND SUBROGATES § 285 also held that a surrogate's court had no jurisdiction to order an administrator, who had refused to convey to a purchaser lands of the intestate, bought on their sale to pay the latter's debts, to repay the sum put down on account of the purchase price, auctioneers' fees, counsel fees and expenses of examination of title.** The sur- rogate has no power, in a proceeding to sell a decedent's realty to pay debts, to order a person in possession of the lands sold to sur- render their possession to the purchaser.*' In determining the necessity of a sale to pay debts the surrogate may determine the validity of a claim though rejected by the legal representative.** The supreme court has no jurisdiction on an application by an as- signee of executors, for the benefit of creditors, to approve his sale of the testator's real estate, when the will gave no power to continue the decedent's business." § 285. Id.: Power Over, of Administrator. — An administrator proper has no authority or control over the real estate of his intes- tate; assumes no obligation in reference to it; and owes no duties to the intestate's heirs.** An administraitor who is mortgagee of land which his intestate owned is not, therefore, precluded from purchasing such land on foreclosure of the mortgage, or from hold- ing it ill' his own right.*' No cyiveyance of a decedent's land sub- sequent to his death can impair the statutory lien thereon of his creditors, because it attaches at his death.^" Administrators and executors have no authority over property descending to heirs of their intestate or passing by devise to devisees of their testator; and if they a^ume possession of such property, and collect its rents, the remedy of those entitled to the possession and the rents is by an action at law, as the surrogate's power over adniinistrators and ex- ecutors is limited to property to which they have the right of posses- sion.* The rule that an administrator cannot be allowed for ex- penditures of estate personalty on his intestate's realty is subject to the exception that payments by the administrator frpm the per- sonal estate to keep intact realty to the advantage of the heirs, when no other source is available from which to get the necessary funds, ** Matter of Bridgeport Brass Co. 484, 37 N. E. 517 (1894) ; Dunning 77 Mise. 69 (1912), or 137 Supp. v. Ocean Nat. B'k, 61 N. Y. 497, 418, old Code, § 2761; Matter of 19 Am. Rep. 293 (1875). Brown, supra. See C. C. P. § 2709. *» Matter of Monroe, supra; Dun- ** Matter of Georgi, 37 Mise. 242, ning v. Ocean Nat. B'k, supra. 75 Supp. 256 (1902). *'' Rosseau v. Bleau, 131 N. Y. 177, *« Matter of Eychner, 65 Misc. 86, 27 Am. St. Rep. 578, 30 N. E. 52 120 Supp. 1110 (1909). (1892). *'' Matter of Praetz, 87 Misc. 128 * Matter of Speftrs, 89 Hun, 49 (1914), or 150 Supp. 221. (1895), or 35 Supp. 35. *' Matter of Monroe, 142 N. Y. 316 § 286 ADMINISTRATORS are approved if the next of kin are the same persons as the heirs.' An administrator of a decedent who bid in his own name and bought, on foreclosure, realty on which the decedent held a mort- gage, in order to protect the estate from loss, can convey good title to the realty, as he is held to hold the property for the estate's ben- efit.* An order of a surrogate conferring upon a temporary admin- istrator authority (1) to lease any or all of the real property for a term not exceeding one (1) year; or (2) to do any other act with respect to the real property, except sell it, may be made when the lease or other act is necessary in the surrogate's opinion either for the execution of the will or the preservation or benefit of the real property.* § 286. Id.: Executor's Power Over. — A testator may, of course, give his executor power over his realty by his will. A court of equity will not advise a life tenant and executor given a naked, dis- cretionary power of sale and full power to, collect the rents and in- come of lands, whether he may accept an advantageous offer for such lands when all debts and legacies have been paid, no land has been sold over which dispute has arisen, no contract has been made dependent upon his power to sell, no one is claiming in hostility to him — ^in fact the order of the court would be purely ex parte} An executor who intermeddles with the real estate of his testator and assumes its management without authority has not only no right to compensation even for valuable services rendered as such, but is subject to personar liability.* An executor's disbursements for managing and leasing real property of his testator whose will gave him no power over such realty cannot be allowed on the ac- counting.'' Though expenditures for the preservation of realty coming to an executor's possession which his duties bind him to care for may be allowed him, a mere naked power of sale does not vest him with such possession or control as to permit of such allow- ance.* An executor directed by the will to convert the testator's realty into personalty for all purposes is entitled to the possession of the realty from the date of the testator's death for the purpose of conversion, and to its rents, issues and profits as though con- verted ; and may sue in his representative capacity for injury to it by trespass.® ' A power to sell at public or private sale whenever the * Matter of Higgifibotham, 51 Misc. * Myers v. Bolton, 157 N. Y. 393, 158, 100 Supp. 414 (1906). 52 N. E. 114 (1898). 3 Valentine v. Belden, 20 Hun, 537 ^/^Matte^^ g Ogden,^^^ Misc. 158 ("^^^)- 8 Matter of Johnson, 32 A. D. 634, «C. C. P. §2600. 52 Supp. 1081 (1898). 5 Voshall V. Clark, 123 A. D. 136, » Qgsbury v. Ogsbiiry, 45 Hun, 388 108 Supp. 313 (1908). (1887). 317 NEW YORK feSTATES ANO SURROGATES § 287 executors judge it' for the best interest of the 'estate is fiofa power to 'sell to pay debts but a general power ; bo 'that when' the proceeds of its exercise are in 'their hands, the executorS; before distributing the proceeds to the' residuaty devisees, lahj pay the balance of the testator's debts, or what is 'the same thing, reimburse, themselves for the debts they have paid in excess of the personalestate that came intotheirhands.'"' ''■ § 287. Id.: Fulfilling Decedent's Contract to Convey. — An ad- ministrator or executor liiay bj'^ deed convey lands, of which his decedent died seised after he had ddntracted to convey them, either (1) voluntarily, i. e., without compulsion or authorization of the surrogate; (2) voluntarily, but after authorization of the surrogate, and (3) by order of the surroigalie obtained 6ii"applicati6^ therefor by soineone other than the administrator or eiiecutor.^* The deed must recite the contract of the decedent.^^ "The vendor ih agree- ing to sell his land intends that his property shall Assume the char- iicter of the property iiitci which it is to be, converted," and if the vendor die prior to the completion of the barga.iiji the proceeds of the sale by administrator or executor will be^ personal property sub- ject to adrainistration.^' , The executors of oiie who has cqaljracted to seli real estate but has. diefi before the timp arrivesi f or the comple- tion of , the;, contract may extend the, time.. in. order .that , the pur- chaser may fulfil the agreement; and the vendor '§ .heirs, capinpt object.^* The executors of one who hadi contracted^ ,to sell land;raay enforce, the, contract; land when they do, they hold, the proceeds for the testator's creditors if, there be' not sufficient other personal property to pay his debts,: or for the testator's devisee if. he shall have devised it and there' be sufficient other personalty to pajiihis debts." ,■,■,- ,1 i . .•,,-. •■ ' ■ ,;; ■ An administrator or' executor who does wish to fdlfil' his dece- dents contract of sale of lands, but not till he has the dourt's authorization ' to make the deed, may file a petition solely for the purpose of securing such authorization or may incorporate in his petition for judicial settlement of his account a prayer for sudh authorization.*' The form lof the petition is in general the same as thiat'of the' standard petition in any proceeding' in the surrogate's ■ "Matter of Boltoii, 146 N; Y. 429 (1894), or;29 Supp. 199, aff'd 257 40 N. E. 737 (1895). 145 N. Y. 144, 39:N. E. 825;— eon- *^ C. C. P. § 2697. tract prpvided its ; stipulations, bound *' C. C. P. § 2697. the heirs, executors, administrators . '*' Williams v. Haddock, 145 N. and assigns of each party. Y. 144, 39 N. E. 825 (1895); Roome " jjcCarty v. M^ers, 5 Hun, 83 V. Phillips, 24 N. Y. 463 (1862). (1875)! " Williams v. Haddock, 78. Hnn, »« C. C. P. § 2697. 318 §287 ' ADMiSriSTRATORS coui't.^'' It sliould, of c6urse,'show the making of a contract of sale by the decedeiit of land of which he died seised, and the fact that no deed of such land vi^as executed by the decedent. The prayer of the petition should be for a decree that the necessary deed be made and delivered. ; The deed, when made, should recite the contract of sale and 'the court's order authorizing its fulfilment by delivery of the administrator's deed. An adihinistratbr or executor, as has been said, may of his own initiative and without seeking court authorization convey land which his decedent had contracted to convey, if his decedent still owned the land at death. The deed must recite the contract of sale." After 'the deed has passed, confirmation of the administra- tor's or eixe'cutor's act may fee Sought either by' the administrator or executor himself or the vendee, his heirs and assigns, by filing a petition solely for such jJUrpose in the surrogate's court praying for confirmation of the iadmijiistrator's or execiltor's act in deliver- ing the deed.'* The administrator or executor may obtkin the same end by incorporating in a petition for the judicial settlement of his accounts a prayer for confirmation of his act in delivering fhe deed.^" The'contents of the petition 'are the same as those of a petition praying for authorization to make such a deed except that its prayer should be for confirmation of the Act in delivering the deed rather than for authorization to deliver ' it.' " If an administrator or executor of a decedent who died seised of lands he had c6ntracted to convey dftesnot voluntarily deliver to the coiitractee a deed of the lands, the vendee; his heirs or as- signs, may tile in the surrogate's court a petition, praying for a decree that the deed be made and delivered.^ The contents of the petition are the saliie as those Of a voluntary petition by the admin- istrator or executor himself for authorization to make and deliver the deed,* except for the prayer.* Upon filing of a petition for confirmation (not authorization) of the conveyance by an administrator or exfecutor of rear property which his decedent had contracted but failed to convey, whether siich petition be filed by the adininistrator or executor of the ven- dee, his heirs or assigns, a citation must issue to all persons inter- ested.* The foriri of such a citation is in general the same as that of a" standard citation in, any proceeding in a surrogate's ^court,* except tbat it should^ require the persons interested to show cause " See § 787, infra. " C. C. P. § 2697. " C. C. P. § 2697. ' See above. " C. C. P. § 2697. * C. C. P. § 2697. 80 See § 315, inffa. " C. C. P. § 2697. 1 C C P. § 2697. • See § 799, infra. 319 NEW YORK ESTATES AND SUBROGATES § 288 why a decree should not be made confirming the jnaking and dp- livery by the administrator or executor of the deed to the property in questionJ Such a decree must; be made upon the return of a citation issued on a petition to confirm the delivery of a deed by an administrator or executor of real property which his: decedent had contracted but failed to convey, as justice requires.' The effect of a decree confirming such delivery is to make the deed effectual to convey all the right, title and interest which the decedent had at his death in the lands conveyed.* § 288. Id.: Decedent's Contract to Buy. — It has, been held that an heir or devisee can cpmpel the ; decedent's adnunistrator or ex- ecutor to pay from estate assets the amount unpaid of the purchase price of his inheritance or devise which the decedent, had bought in his .lifetime.^" But it has also been held that no allowance can be made administrators for amounts paid by them on .contracts by their intestate to buy realty as such contracts are real estate going to the heirs, over which the administrators have no control. ^^ The interest which a decedent has in real property under an un- fulfilled contract made by him to buy such rea,l property may be conveyed by his administrator or executor in whole or in part." A conveyance by the adniinistrator or executor of the whole of his decedent's interest operates; as an assignment of the contract of purchase to the grantee,^* The lattei;, his heirs and assigns, there- fore, acquire all the right, title and interest in decedent's interest in the, real property ■vyhich any person had at the time of the sale; and has, upon fully complying with the contract of purchase, the same right to enforce performance thereof as the decedent would have.haii if living." A conveyance by the administrator or execu- tor of a part only of his decedent's ijiterest tra^isfers to the grantee (1) all 4ecedent's right, title and interest in and to such, part; and (2) all rights which would be acquired to such part by perfecting the title to the .property uiider the contract of purchase either by the administrator or executor or any person entitled to decedent's interest at the time of, its sale." The grantee has the sanie right to enforce performance of, the contract of purchase, so far as the part conveyed to him goes, as the decedent would have had if liv- ing." *rhe administrator or execu,tor, or his assignee, has the same '''C. C. P. § 2,697. '■ law, Palmer v. Morrison, 104 N. Y. « C. C. P. § 2697. 132, 10 N. E. 144' (1887). » Id. IS Id. 1° Lamport v. .,Beeman,; 34 Barb. "Id. 239 (1861). , »c. c. P. § 2715 (see for old " Matter of Roberts, 72 Misc. 625, law, Palmer v. Morrison, 104 N Y 132 Supp. 396 (1911). 132, 10 N. E. 144 (1887). 12 C. C. P. §.2715 (see for old "Id. 320 § 289 ^ ADMINISTRATORS right, upon fully complying with the contract of purchase, to en- force its performance with respect to the residue, as the decedent would have had if living; but any title acquired by such adminis- trator or executor or his assignee must be held in trust for the use of the persons entitled to the decedent's interest, subject to the dower of the widow of decedent, if any." § 289. Id. : Taking Possession and Collecting Rents. — Aside from statute or will an administrator or executor has no power to enter into possession of his decedent's real estate, rrianage it or receive its rents.^' A petition to enter into possession of real property left by his decedent, to manage such real property, and to receive the rents thereof may be presented to the surrogate's court by an adminis- trator or executor.** The form of the petition is in general the same as that of the standard petition in any proceeding in the sur- rogate's court.^" The items to which particular attention is to be paid are the statement of facts on which the court's jurisdiction depends; of the names of the persons interested; and of the relief asked. To show the court that it has jurisdiction, it should be alleged "that a mortgage, lease or sale of the realty will be necessary, if the petition be not granted, in order to pay funeral and admin- istration expenses, debts, transfer taxes assessed on the transfer of the realty in question, any debt or legacy charged on such realty, or shares of infants, incompetents, absentees or unknown persons.* The names given as those of the persons interested who are en- titled to be cited are the names of all known persons within the state who have legal title to the realty in question by descent or de- vise, as the case may be.* The relief asked should consist of a prayer for leave to enter into possession of the realty, to manage and control it, and receive the rents thereof.^ If it appears to the sur- rogate from the petition that a mortgage, lease or sale of the realty will be necessary — unless some other way, viz., the way proposed in the petition, be adopted — to pay funeral and administration expen- •.«es, debts, transfer taxes assessed upon, or debts or legacies charged, against such realty, and shares of infants, incompetents, absentees or unknown persons, he must issue a citation to all known persons in the state who have legal title to the realty by descent or devise, to show cause why the prayer of the petition should not be grant- ed.* The form of the citation is in general the same as that of a 17 Id • 1 C. C. P. §§ 2701, 2703. " See §§ 285-6, supra. * c. C. P. § 2701. " C. C. P. § 2701. « C. C. P. § 2701: "• See § 787, infra. * C. C. P. § 2701. On the right to rents on lease of intestates' property, see note in 40 L.R.A. 321. N. Y. E. & S.— 21. 321 NEW YORK ESTATES AND SUREOGATES § 290 standard citation in any proceedinig in the surrogate's court.' , The items of, the citatiqn, to, which especial attention should be paid are the names of all persons to be cited and the, object of the proceed- ing. The former item is satisfied by a statement of the names, etc., of all known persons within the state who Shave legal title to the realty by descent or devise.^ The latter item of the citation should be a statement that the parties cited are required to show cause why an ordftr or decree of; the: surrogate should not be made granting the petition of the administrator or executor to enter into posses- sion of the real property, to manage it, and to receive the rents thereof.'' Qn the return of a citation issued upon a petition to enter into possession of realty left by a decedent,: to manage it and receive its rents,' the surrogate has discretion to grant or refuse the peti- tion; a..nd,to do so upon such terms and. conditions as justice re- quires.' ,If he grants the, petition, the- net rents collected by the administrator or executor by the surrogate's leave must be held by him till the judicial settlement of his accounts ; whereupon he must bring; them into court for such disposition thereof by the surrogate as j.ustice requires." ' An order of a surrogate appointing a temporary administrator may also confer upon him authority to take possession of real prop- erjty and receive the rents and profits thereof which is affected by a will, fctr probate of which a proceeding is pending, or on which there is delay in the grant of letter^, or under which there is delaj^ in the qualification ;0f a trustee in it named.^* An order of the sur- rogate may also cqnfer upon, a temporary administrator authority to lease any or all of the realty for not more than one year or to do' any other act with respect to it except .sell it, if necessary in the sur- ]-()gate's opinion either for the, execution of the will or the preserva- tion or benefit of the realty. ^^ § 290. Id.: Sale, Mortgage or Lease, To Pays Debts, etc.. When Possible, In General.^Pour questions .must be answered negatively and one affirmatively before a decedent's realty or his interest in realty can be sold, mortgaged or leased to pay his debts, hens there- on (except mortgager liens), his funeral or administration expen- ses, transfer taxes assessed on the transfer of, or debts or legacies changed against. it. ^' These questions are: First (to be answered ° See § 799, infra. ments; a profit both certain and is- e n n p i 8 97ni suing at fixed periods. iC r P S 97ft1 «C. C. P. § 2701. 0. C. J:-. § 2701. 10 c c p §§ 2701 and 2711. 8 Stephen v. Reynolds, 6 N. Y. 454 u C. C. P. § 2600. (1852)^as to what are rents, viz., ^* Id. sums of money or other considera- ^^ C. C. P. § 2702. tion issuing out of lands or tene- The sale of real estate in states 322 § 290 ADMINISTRATORS niegatively) : Is there personar property applicable to. the full pay- ment and discharge of such debts, 'liens, expenses, taxes or lega- cies? ^* Second (to be answered negatively) : Can the realty or interest in it be disposed of, for the same purposes as sale, mortgage or lease thereof is sought, under a valid power contained in the de- ceased owner's will? " Third (to be answered negatively) : 1^ the realty or interest in it exempt from levy and sale bj^ virtue of an execution? ^* Fourth (to be answered afRrmatively) : Has a jiro- ceeding for or to compel a settlement of the acootmts of the admin- istrator or executor of the estate of the decedent owning the realty or interest in it been commenced within eighteen (18) months from the date when' letters first issued to him? " Fifth (to be an- swered negatively) : Has any of the persons interested in the estate or property executed and filed in the surrogate's ofRce a bond in such sum and with such sureties as the surrogate ' directs and ap- proves, conditioned to pay all the charges against such estate or property proved and allowed so far as the goods, chattels, rights and credits of the deceased are insuflficient therefor, within such time as the surrogate may direct." In determining whether a decedent's realty or his interest there- in can be sold, mortgaiged or leased to pay distributees one at least of whom is an infant, a proven .or adjudged incompetent, an ab- sentee or unknown person, the same questions must be answered in the same way except that the negative answer to the first question is not essential.^' In order to secure the sale moii;gage or lease of a decedent's realty or his interest therein to pay dehts, etc., or distribute, it is essential that action be taken within eighteen months from the date when letters were first issued on his estate.*" The acticih so to be taken consists in the filing of a petition by the representative for the ju- dicial settlement of his accounts, or by someone else to compel such settlement.** If letters d. h. n. are later granted, the petition for judicial settlement must be made within eighteen months of ihe graiit of the original administration and not of the administration d. b. n.* Therefore, anyone interested in such §ale, mortgage, or lease must see to it that such a petition is filed either by himself or other than decedent's domieil to pay ** C. C. P. § 2702. debts is discussed in note in L.R.A. " C. C. P. § 2702. ' 1915D, 754. " C. C. P. § 2704. The right of executor or admin- " C. C. P. § 2702-3. istrator to employ broker or auction- *" C. C. P. § 2702. eer is discussed in note in 64 L.R.A. ** Id. 556. *By analogy to Sloeum v. Eng- "C. C. P. § 2703. lish, 62 N. Y. 494 (1895). 15 C. C. P. § 2702. 323 NEW YORK ESTATES AND SURROGATES § 291 someone else. No other proceeding need, be begun, save .the one to judicially settle the administrator's accounts, in order to secure a hearing on the necessity for such sale, mortgage, or lease; as such disposition can be ordered only on such judicial settlement.^ When no proceeding for the judicial settlement of the accounts of an administrator or executor has been commenced within eighteen months from the date when letters issued to him an applica- tion to sell his real property will be denied.* An application by an administrator for a citation to interested parties to. show cause why his decedent's realty should not be sold will be denied, because this relief must be sought by him upon judicial settlement of his accounts.* A proceeding to sell real estate to pay debts may properly be commenced after the realty has been sold by order of the supreme court in a partition action, as the deceased debtor's share in the proceeds of the partition action stand in the place of his interest in the realty, until final distribution; but the surro- gate's court will not itself decree final distribution of the fund, rath- er leaving it to the supreme court and confining itself to determin- ing the liens of the deceased's creditors, relying upon the supreme court to so frame its order as to protect every substantial right which the surrogate's court should assert by its decree.* Substantial com- pliance with the statute authorizing sale, etc., of a decedent's realty to pay debts, etc., is necessary if good title is to be proved.* A sur- rogate may decree sale of realty to pay debts even though it is effectually devised, expressly charged with payment of debts and funeral expenses or is subject to a valid power of sale for their pay- ment, if it is not practicable to enforce the charge or to execute the power, and the creditor has effectually relinquished the same.^ § 291. Id. : Insufficiency of Personalty. — Before authorizing sale of a decedent's real property or interest therein to pay his debts the . surrogate must determine that the decedent's personal property is inadequate for such purpose.' If the decedent's personalty was sufficient, but has been wastqd or squandered by his administrator so that it has become insufficient, the only resort of the creditors «C. C. P. §§ 2702, 2705. N. E. 292 (1893); Personeni v. « Est. of Brodil, N. Y. L. J. Dec. Goodale, 199 N. Y. 323, 92 N. E. 30, 1915 (N. Y. Sum), C. C. P. 754 (1910). § 2702. ^Matter of Wood, 70 A. D. 321 *Est. of Egan, N. Y. L. J. Oct, (1902), or 75 Supp. 272. 9, 1914 (N. Y. Surr.), C. C. P. 'Matter of O'Neil, 49 Misc. 285, § 2705. 99 Supp. 237 (1906) ; Hogan v. 5 Matter of Dusenberry, 34 Misc. Kavanaugk, 138 N. Y. , 417, 34 N 666 (1901), or 70 Supp. 725. E.. 292 , (1893) ; Sheldon v. Wright «Duryea v. MacKey, 151 N. Y. 5 N. Y. 497 (1851) ; Matter of Plop- 204, 45 N. E. 458 (1896) ; Hogan per, 15 Misc. 202, 37 Supp. 33 V. Kavanaugh, 138 N. Y. 417, 34 (1895). 324 § 292 ADMINISTRATORS is to enforce the representative's personal responsibility.' But this is not true of an executor who gives no bond ; as there are no sure- ties then to whom the creditor can resort for recoupment." A creditor of a deceased debtor cannot resort to sale of the latter's realty to satisfy the debt when the latter's personalty was sufficient, but it has been wasted or misappropriated by the decedent's per- sonal representative.^^ Creditors cannot resort to sale of realty of their testate, deceased debtor to pay their debts when the latter's personal estate coming into his executor's hands is more than suf- ficient to pay his debts and funeral expenses, even though misap- plied by the executor.** No decree of sale of a decedent's realty to pay his debts can be made when his administrator, in the pro- ceeding for the sale, concedes he has received more money than the amount of the decedent's debts." An administrator d. b. n. seek- ing sale of his decedent's realty to pay debts must show that his predecessor proceeded with reasonable diligence in converting the personalty into money and applying it to the debts; that it is in- sufficient; and that his predecessor exercised the same diligence which would have been required of him had he been representative originally.,** In determining whether the personal property of an intestate is sufficient or not to pay his debts and funeral expenses, a debt due by his insolvent administrator to him should not be considered an asset.** § 292. Id.: When Power of Sale, etc., Is Given by Will.— The real property, or interest in real property, of which a decedent died seised cannot be disposed of under the statute to pay his debts, etc., when it can be disposed of under a valid power contained in a will for the same purpose.** A power of sale to pay debts in a will, in order to be sufficient to defeat the creditor's right to sale under the statute, must be one the exercise of which is imperative and not » Personeni v. Goodale, 199 N. Y. ** Matter of Very, 24 Misc. 139, 323, 92 N. E. 754 (1910); Kings- 53 Supp. 389 (1898). land V. Murray, 133 N. Y. 170, 30 *3 Matter of Quatlander, 29 Misc. N. E. 845 (1892). '■ 566 (1899), or 61 Supp. 1064. i" Matter of Bingham, 127 N. Y. ** Matter of Kingsland, 60 Hun, 297, 27 N. E. 1055 (1891). 116, 14 Supp. 495 (1891); afF'd 133 1* Moier v. Moier, 17 Misc. 648, N. Y. 170, 30 N. E. 845. 40 Supp. 772 (1896)— at least un- ** Matter of Georgi, 21 Misc. 419 til the creditor has exhausted the (1897), or 47 Supp. 1061. personal liability of the representa- ** Matter of Gantert, 136 N. Y. tive (administrator) and his sureties ; 106, 32 N. E. 551 C1892), old Code, Matter of Meagley, 39 A. D. 83 §§ 2749 to 2801, new Code, § 2702; (1899), or 56 Supp. 503— executor Matter of Noe, 94 Misc. 60 (1916), took testator's place in partnership C. C. P. §§ 2703-3 — sale sought to and paid partnership's debts from pay legacy, estate. 325 NEW YORK ESTATES AND SURROGATES § 292 simply discretionary, because, the .testaraeiitary rerpedy m,n,st be as efficacious, and prompt as the statutory, one — which would .not be true,, if the testamentary power, were merely dasfiretionary.*'' Nothing, excludes an executor fropi; exercising his testamentary power to .sell realty for the purpose of paying an honest' debt of \ his own." The customary testamentary provision that "after the pay- mentiof my debts and funeral expenses I give, devise and bequeath" my property, etc., without any poTFer, being given to the executor to sell, does not charge the debts of the .testator on his real estate.^' A preliminary testamentary direction ithat all the testator's debts be paid does not charge them on the realty so as to prevent a proceed- ing to sell , it to pay debts.^ ,A devise after ,all the testator's debts are paid does not charge the debts on the devised larids.f A mere formal direction in a will to pay the testator's debts does not per se give the executpr the right to sell .the, realty to pay the debts; but he must resort to the statutory prbceedin^s provided for reaching the realty to pay debts.* ,A devise of the income of realty to one for life "after all my .lawful debts are paid and discharged" charges the realty with payment of debts so ias to prohibit its sale therefor under the statute.* A will which does not mention debts. or their payment, or direct the testator's representatives to sell, but directs disposition of his property as though he died' intestate and gives authority to sell, contains a mere discretionary and not an impei'a- tive power of sale, and does not prevent a sale to pay debts, etc.^ A will making no mention of debts and giving only a discretion- ary as distinguished from an imperative power of sale does not pre- vent the creditors from resorting to the statutory proceeding to sell the realty to pay their debts.* A will making various bequests after the tastator's debts and funeral expenses shall have been paid, with a direction to sell the real estate, and, if the amount realised should be enough to pay the bequests, then proportiohally to decrease them, and, if the amount realized should be greater than the bequests, then proportionally to increase them, does not make the realty the primary fund for the payment of the debts and funeral ejxpenses.'' If there has been a sale of a testator's realty under a power in his "Id. * Matter, of, Rowley, or Chase, 38 I'O'Flynn V. Powers, 136 N. Y. Misc. 622 (1902), or 78 Supp. 215. 412, 32 N. E. 1085 (1893), « Pg-rker v. Beer, ; 65 A. D. 598 IS Matter of Van Vleck, 32 Misc. (1901), or 72 Supp. 955, aff'd 173 419, 66 Smpp. 727 (1900). N. Y. 332, 66 N. E. 3, ,1 Matter of Grotrian, 30 Misc. 23 « Matter of Hervy, 67 Hun, 13 (1899), or 62 Supp. 996. (1893), ox 21 Supp. 685. ^ Smith. V. Loper, 32 Hnn, 46 '.Matter of Neely or Maekay, 24 (1884). :, Mise. 355, 53, Supp. 563 (1898). 8 Matter of Liddle, 35 Misc. 173 ., , (1901), or 71 Supp. 474. 328 §§293,294 ADMINISTRATORS' will before commencement of a proceeding to sell the realty to pay his debts the surrogate will not exercise his jurisdiction to compel a sale; because the reason for such exercise is removed and the creditors have power to collect from the proceeds, which are held personalty for the payment of debts.* This is true whether the exercised power of sale is imperative or discretionaiy.® But if the power of sale is only discretionary and has not been used, the cred- itors are entitled to the surrogate's assistance in having the realty disposed of to pay their debts.^" If the realty has been sold and the executors haye squandered the proceeds, the only remedy of. the creditors is against the executors on their personal responsibility;" Creditors are not entitled to a sale by surrogate's order when the power of sale in the will is absolute and imperative, without dis- cretion, except as to the time and manner of sale.^* The subject of equitable conversion of, and imperative and discretionary pow- ers of sale over realty have also been discussed elsewhere.^* § 293. Id.: When Exempt from Levy. — The realty of a decedent, or his interest therein cannot be sold, mortgaged or Jeased to pay his debts, liens thereon (except mortgage liens), his funeral or administration expenses, taxes assessed on its transfer, or debts or legacies charged against it, if exempt from levy, and Sale by virtue of an execution.'* The exemption from liability for debts of real property purchased with pension moneys does not extend beyond the pensioner's death.'^ § 294. Id.: To Pay What Debts.— The debts for payment of which a decedent's real property or his interest therein may be sold, mortgaged or leased are only either his own debts or debts charged upon the specific realty or interest therein to be dealt with.'^ One to whom a mortgagor pays money with which the payee is to extinguish the mortgage debt but does not do so, is liable to have his real estate sold after death on the ground that he was. a debtor ' Personeni v. Goodale, 199 K Y. Matter of Wyekoff, 50 Misc. 190, 323, 92 N. B. 754 (1910). 100 Supp. 417 (1906). Holding 'Personeni v. Goodale, supra. that when sale is sought, of infants' *" Personeni v. Goodale, supra. realty to pay debt to mother for *' Personeni v. Goodale, supra. maintenance and support, mother '* Cooke V. Piatt, 98 N. T. 35 being administratrix in another state (1885). of father's estate, income Of which '* See § 299, infra. belonged to iiifantfe, court will not " C. G. P. § 2702. adjudicate mother's claim beyond *^ Matter of Liddle, 35 Misc. 173 such income, because this would (1901), or 71 Supp. 474, C. C. P. necessitate going into her accounts § 1393; Smith v. Blood, 106 A. D. as administratrix, which can only 317 (1905), or 94 Supp. 667. be done in state of appointment. 16 C. C. P. § 2703. 327 NEW YORK ESTATES AND SURROGATES § 294 of the mortgagor.^'' A judgment recovered against the adminis- trator or executor upon a claim against decedent is prima facie evidence and proof of the claim against the decedent's real prop- erty; and the burden of disproving such judgment, or of proving either that the claim upon which it was rendered is invalid or that the judgment was obtained by collusion, is on the party disputing or objecting to it." Debts in the strict sense of the word only can be paid from the proceeds of the sale of a deceased debtor's realty ; so that a creditor who secured a judgment against the adminis- trator of the deceased debtor after a referee's trial in which there were the referee's fees or disbursement (though no costs) can be allowed from such proceeds the face only of his judgment." When the only debt is one due the legal representative, the surrogate can determine its validity in spite of the statutory provision that such a claim can only be proven on the judicial settlement of the repre- sentative's accounts.** Interest becoming due years after a dece- dent's death is not a debt against him for which his realty may be sold.^ Costs recovered in an action against a surviving partner of a decedent upon a firm indebtedness cannot be allowed as a debt of the decedent in proceedings to sell his real estate to pay debts.* A judgment for costs awarded defendant in an action begun by decedent in life and continued by his executor after the decedent's death, is not a debt of the decedent so that the defendant can sell the decedent's real property to satisfy it when the decedent's per- sonal property is insufficient.* The claim of a widow by acceptance of a legacy in lieu of dower makes her a creditor of the estate so as to make her debt payable like other debts, e. g., if the personalty is insufficient, her claim may be made payable from realty in a partition actiop.* Claims of creditors cannot be paid by executors from the proceeds of the deceased debtor's real estate until the creditors have establisheci their claims by competent evidence be- fore the surrogate, notwithstanding the executors may have ad- mitted the claims to be valid.^ Creditors, in a proceeding to sell realty to pay their claims,, have the right only to present their "Matter of Lowerre, 48 Misc. * Matter of Pfohl, 20 Misc. 627, 317, 96 Supp. 764 (1905). : , 46 Supp. 1086 (1897). "C. C. P. § 2706; O'Flynn v. « Matter of StoweU, 15 Mise. 533 Powers, 136 N. Y. 412, 32 N. E. (1896), or 37 Supp. 1127. 1085 (1893) ; Long v. Long, 142 N. » Matter of Foley, 39 A. D. 248 Y. 545, 37 N. B. 486 (1894). (1899), or 57 Supp. 131. 1^ Matter of Summers, 37 Misc. * Wilmot v. Robinson, 42 Misc. 575 (1902), or 75 Supp. 1050, old 244 (1903), or 86 Supp. 575. Code, §§ 2756, 2757, new Code, § ^ Jouffret v. Loppin, 20 A. D. 455 2707. (1897), or 46 Supp. 810. «» Matter of Williams, 1 Misc. 35, 22 Supp. 906 (1892). 328 § 295 ADMINISTRATORS claims and object to the claims of other creditors; and the surro- gate may determine in such a proceeding the validity of all claims against the estate ; but persoils paying claims of creditors individu- ally and voluntarily, e. g., an administrator in his individual ca- pacity, are not subrogated to the rights of the creditors they pay so as to be able to recover the amount from the estate.' When the only debt of a testator alleged to exist is one due the executor, and a debt by the executor to the estate in a larger amount exists, there is no indebtedness warranting sale of the decedent's realty to pay debts, unless the executor be irresponsible or some other reason is given why his indebtedness to the estate is not an avail- able asset; because a debt due by the executor to his testator is an asset in the executor's hands.'' Although creditors whose debts are expressly charged on real estate cannot resort to the surrogate's court to have it sold to pay such debts, yet they can in equity (the supreme court) establish the validity and extent of their lien, and if their suit and a proceeding in the surrogate's court by other creditors to sell the land are pending at the same time with the same parties the supreme court will hold its suit in abeyance till the other creditors' claims are proven in the surrogate's court.' When a will charges on devises to children, for the benefit of the widow, the redemption of stock owned by the testator on deposit as margin with a broker, the land devised may be sold to secure the needed funds to redeem the stock if there is no other fund or estate to bear the redemption charges and the devises are accepted.' § 295. Id. : To Pay What Liens, Funeral and Administration Ex- penses, Transfer Tax, Legacy, Charged Debt and to Distribute. — The liens for payment of which decedent's real property or his in- terest therein may be sold, mortgaged or leased are only liens (a) ^ther than mortgage liens, (b) on the specific realty or interest therein to be dealt with, (c) existing at the time of decedent's death. ^' The funeral expenses for payment of which a decedent's real property or his interest therein may be sold, mortgaged or leased *^ include suitable church or other services, a burial lot and a headstone erected on such lot.^* Although decedent's legal repre- sentative paid his funeral expenses individually and took no as- signment of the undertaker's claim, yet the amount paid is a fu- « Matter of Rider, 68 Misc. 270, « Dunning v. Dunning, 82 Hun, 124 Supp. 1001 (1910). 462 (1894), or 31 Supp. 719, aff'd T Raynor v. Gordon, 23 Hun, 264 147 N. Y. 686, 42 N. E. 722. (1880). "C. C. P. § 2703. * Little Palls National Bank v. *^ Matter of Liscomb or Bross, 60 King, 53 A. D. 541 (1900), or 65 Misc. 647, 113 Supp. 941 (1908). Supp. 1010 and 62 Supp. 624. i» C. C. P. § 2703. 329 NEW YORK ESTATES AND-i SUBROGATES §§ 296, 297 neral expense for, which the sale may. be had." The subject of what are funeral expenses has been elsewhere considered." The Eidministration expenses for payment of which a decedent's real property or his interest therein may be sold, mortgaged or leased are only such as are (a) reasonable and (b) allowed by the sur- rogate.** What constitute administration expenses has been else- where discussed.*^ The transfer tax: for payment of which a dece- dent's real property or his interest therein may be sold, mortgaged or leased must be one assessed upon, such real property or interest therein." The legacy or charged debt for payment of; which a de- cedent's real estate or his interest therein may be sold, mortgaged or leased is only a legacy or charged debt charged upon such real estate or interest therein.** "What language in a will so .charges a legacy is discussed in the cases cited in the footnote.*® Legacies charged on real estate have been; elsewhere considered..^" § 296. Id. : To Distribute, When Possible. — The sale^, mortgage or lease of real property, or,. an interest in real property, of which a testate decedent died geised may. be had for the payment and distri- bution of their respective ;shares to the parties entitled thereto only; (1) When any or all of the psixties entitled thereto is or are (a) infant, (b) proven or adjudged incompetent, (c) absent or (d) unknown,* (2) When it is not exempt from levy and sale:by virtue of an execution; '^ (3) When it cannot be disposed of, for the same purpose as sale, mortgage or lease thereof was sought, under a valid power contained in the deceased owner's will;' (4) When a pro- ceeding for, or to compel a settlenient of , the accounts of ; the ad- ministrator c. t. ^. or executor of the estate of the decedent owning it has been cdniinenced, within eighteen months from the date when letters of administration c. t. a^ or testamentary were &st is- sued; * (5) When the surrogate, in his discretion, so directs.* v § 297. Id.: What May Be Sold.— It is provided 'by statiute that the i^eal jJroperty, or iilterest in real pi'operty, of which a decedent *^ Matter of O'Brien, 39 A. D. 321, er, 146 N. T. 29, 48 Am. St. Rep. 56 Supp. 925 (1899). ' 765, 40 N. E. 635 (1895); Brill v. **See §§ 211 et seq.,: supra. , Wright, 112 N; Y. 129, 8 Am. St. *=C. C. P. § 2703. Rep. 717, 19 N. E. 628 (1889); *6 See §§ 203 et seq., supra. ]\icCom v. McCorn, 100 N. Y. 511, "C C. P. §-2703. - ' 3 N. E. 480 (1885); KaMeiscli- v. *«C. C. P. § 2703. Kalbfleisch, 67 N. Y. 354 (1876). *3Hoyt V. Hoyt, 85 N. Y; 142 ^o gee § 568, infra. (1881); Matter' of Bingham, 127 N. * C. C. P. § 2703. Y." 297,' 27 N. E. .1055 (1891,); . ,« C. C. P. § 2702. Briggs V. Carroll, 117 N. Y. 288, * C. C. P. § 2702. 22 N. E. 1054 (1889); Hogan v. * C. C. P. § 2702. Kavanaugh, 138 N. Y. 417,, 34 N. * C. C. P. § 2703. E. 292 (1893) ; Cunningham v. Park- 330 § 298 ADMINISTRATORS died seised, may be disposed of to pay his debts, liens (except mort- gage liens) existing thereon at his death, his funeral and adminis- tration expenses, a transfer tax assessed thereon, a debt or legacy charged thereon ; and also to pay to distributees and legatees, one at least of whom is an infant, proven or adjudged incompetent, ab- sentee or person unknown, their respective shares.* Funds in a county treasurer's hands under a decree of a court in a partition action of a decedent's estate are properly reached to pay decedent's debts, etc., on the ground that they constitute real property, or interest in real property, of which he died seised." Growing crops sowed by a ttenant of ' an heir of a deceased debtor may be sold to pay the decedent's debts as well as the land itself; because the lien existed when the tenant entered upon the land just as much as if there had been a mortgaige on the demised premises.* Realty pur- chased by a decedent with pension money may be decreed sold by the surrogate because the protection of the statute does not extend beyond the pensioner's lif e.^ The surplus realized on foi'eclosure of a mortgage after a deceased mortgagor's death is regarded as realty." The proceeds On partition of realty owned in part by a decedent at death ate applicable to payment of his creditors' claims under the statutory proceeding to sell realty to pay debts." In- surance moneys received after a testator's death for the loss by fire of buildings on realty owned by him are realty in the trustee's hands, and subject to payment of debts and funeral expenses.'^ § 29§. Id.: Who to Have Nbtice.^As the question of the sale, mortgage or lease of a decedent's real estate or his interest therein can only be raised on a proceeding for the settlement of his repre- sentative's accounts, all parties interested in such accounting have notice that such question may be raised ; because, although nothing may appear from the citation served upon them in the accounting proceeding to show that the question of sale, mortgage or lease may be brought up, they nevertheless ' cannot support a claim of lack of notice by pleading ignorance of the law, which specifically al- lows such a question; to be brought up on judicial settlement of an account.^* If, however, any person interested in decedent's 8 C. C. P. §§ 2702, 2703. On surplus realized upon f ore- "^ Griswold v. McDonald, 81 Mise. closure sale of real estate after 376 (1913), or 143 Supp. 341. mortgagor's death as real or per- * Jewett V. Keenholts, 16 Barb, sonal property, see note in 19 L.R.A. 193 (1853). (N.8.) 723. ' 9 Smith V. Blood, 106 A. D. 317 " Liehtenberg v. Litehtenberg, 156 (1905), or 94 Supp. 667; Matter A. D. 532 (1913), or 141 Supp. of Liddle, 35 Mipc. 173 (1901), or 356. 71 Supp. 474, C. C. P. § 1393. i^ Matter of Stiles or .Freeman, 64 10 Matter of Knapp, 25 Misc. 133, Mise. 658 (1909), or 120 Supp. 174. 54 Supp. 927 (1898). " c. C. P. §§ 2702, and 2705. 331 NEW YORK ESTATES AND , SURROGATES § 299 real property, or his interest .therein, or in any; question raised with, reference to its sale, mortgage or lease,. is not a party to the pro- ceeding ifor the judicial settleiment of the deceased's representatiy,e's accounts, such person must be brought in by supplemental qitation before the surrogate can proceed further anent th^ mooted sale, mortgage or lease. The citation should issue to thqse persons who are interested in the subject matter or have rights incidental there- to.'* It may be that creditors should be parties to a proceeding to sell the realty, of a deceased, deb tor to pay their claims eve:ti though their claims are admitted, .because their claims must be proven be- fore the court, as an equitable tribunal, can decree that .the pro- ceeds of the sale, after, payment of expenses, shall be. applied to payment of the deceased owner's debts.'° A decree, for sale will, be refused if tenants in possession are not brought in by supplemental citation and the proposed order or decree is not noticed for settle- ment on the attorney for a plaimant whose claim has been reject- ed.** One entitled after the death of a life tenant is bound, though unborn, by proceedings for the sale of the trust realty, as the repre- sentatives of the testator's trust of such realty represent him." § 299. Id.: Hearing and Order or Decree. — The allegations which- must be proved on a judicial settlement of an administrator's or executor's accounts in order to warrant a sale, mortgage or lease of his decedent's realty, or his interest therein, are either, first, that the decedent's personal estate is insufficient for the payment of the jiist demands and charges against it; or, secondly, that the circum- stances are such that the court has jurisdiction to order t"he sale, mortgage or lease for the purpose either, of paying decedent's debts, liens (except mortgage liens) on such realty or interest therein, funeral or administration expenses, transfer taxes assessed on the transfer of, or debts or legacies charged against such realty or in- terest therein; or of securing distribution of shares of distributees one at .least of whom is an infant, a proved or adjudged incompe- tent, absentee; or unknown person. *' The statements in the peti- tion and account filed in the accounting proceeding in which the question of sale, mortgage or lease is mooted. are sufficient proof, so far as they go; unless issue is raised as to them.*^ Any party to the accounting proceeding may allege and show by proof the neces- sary facts.^" The validity and existence of the debts are open to "Griswold V. McDonald, 81 Misc. "Est. v. Drescher, N. Y. L. J. 376 (1913), or 143 Supp. 341. Jan. 20, 1915 (N. Y. Surr.). "Dunning v. Dunning, 82 Hun, .inn^**^"" °^ P"'^''' ^^ ^- ^- ^09 462 (1894), or 31 Supp. 719, dism'd ^ is c C P SS 2703 2705 147 N. Y.'686, 42 N. E. 722; de- w c! C. P. § 2705! cided before new Surrogates' Cocle. '" Id. 332 § 299 ADMINISTRATOKS contest by the. heirs or devisees.* The recovery of a judgment against the representative is only presumptive evidence of the debt, and does not prevent the heirs or devisees from resisting the vahdi- ty of the claim which resulted in the judgment.^ But such a judgment is prima facie evidence and proof of the claim against the decedent; and the burden of disproving such judgment, or of proving either that the claim on which it was rendered is invalid or that the judgment was obtained by collusion, is on the party disputing or objecting to it.' An order or decree directing tlie sale, mortgage or lease of the whole or part of a decedent's real property, or his interest therein, must be made by the surrogate if it appears that it is a proper case for such sale,' mortgage or lease on account of deficiency of his personal estate,* iinless (in every case except to distribute) one of the persons interested in the estate or property executes and files in the surrogate's office a bond in such sum and with such sureties as thie surrogate directs and ap- proves, conditioned to pay, within such tinie as the Surrogate may direct, all such charges against such realty, or interest therein, as may be proved and allowed, so far as the goods, chattels, rights and credits of the deceased are insufficient therefor.^ If a surrogate refuses to order the sale of a decedent's realty or interest therein to pay debts, etc., and an appeal is taken, a purchaser of the realty pending the appeal. takes subject to the risk of an adverse decision by the appellate court.* ' Whether the order or decree of a surrogate be to sell, mortgage or lease, it riiust have for its contents : — (1) A recital of the determination of the court or surrogate that the realty or interest therein be sold, mortgaged or leased,' as the case may be. ■ ' ■ . . , (2) A recital of the amount and general nature of the varioua claims and demands which have been admitted or proved. (3) A description of the property to be disposed of. (4) A direction to the administrator or executor to sell, mortgage or lease the whole or such part of the real property or interest therein as the surrogate statesJ If one or more distinct parcels of which decedent died seised has or have been either devised by him or sold by his heirs, the order or decree must provide that such par- cels be sold in the following order: (a) Property which , descended to the decedent's heirs and has not been sold by them; (b) Prop- lOTlynn v. Powers, 136 N. Y. * C. C. P. § 2707. 412, 32 N. E. 1085 (1893) ; Long = C. C. P. §§ 2704, 2703. V Long, 142 N. Y. 545, 37 N. E. « Olyphant v. Phyfe, 48 A. D. 1 486 (1894). (1900), or 62 Supp. 688; aff'd 166 2 Id. N. Y. 630, 60 N. E. 1117. 8 C. C. P. § 2706. 333 NEW YORK ESTATES AND SURROGATES § 299 erty which descended to decedent's heirs and has been sold by them; (c) Property which has been, devised and sold by the dev- isee.' (5) If an existing or inchoate right of dowei:, a tenancy by curtesy, an estate for life or years exists in favor of any party to the proceeding,, in the real estate or interest therein, the surrogate's court must determine whether the interests of all parties will be better protected or a more advantagequs sale can be had by includ.- ing or not including in the sale such right, tenancy or estate; and if the court's determination is that the inclusion of such right, tenancy or estate is for the better protection of the parties or con- ducive to a more advantageous sale, it may include in its order a di- rection that such right, tenancy or estate be sold with the property or interest.* The practices prescribed by the code of civil procedure in relation to the right of dower, curtesy and estates for life or yeai's in partition actions, govern in, these proceedings in determining the disposition of such of the moneys realized as belong to the doweress, tenant by curtesy, for life or yeairs, so far as applicable.® A, purchas- er, his heirs and assigns, of real estate of a decedent, or his interest therein, under an order of the surrogate's court directing the inclu- sion in the sale of a right of dower, te.naricy by curtesy, estate for life or for years, holds the property free and discharged from any, claim .by yirtiie of such right, tenancy or estate.'® A widow's title to dower is not prejudiced by debts and incumbrances in-: curred by her husband; and on sale of his lands to pay debts, etc., she is entitled to one third of . the gross amount of the, selling- price.^'. The sum intended by gtatute to be ^allowed a widow for her dower interest in realty of ; her deceased husband sold to pay his debts is a fair equivalent of her common law right to on^rthird in value of' her husband's lands set off by^metes and bounds; and such an equivalent is one third of the value df the lands, ascer- tained by offering' them at auction.** It is not proper to include interest accrued on one third of the purchase money from the: day of sale to the time of distribution in the amount to be invested for the widow's benefit: she is entitled to the interest absolutely. *' The subject of dower has been elsewhere treated." (6) In additioii to these requirements, if the sale is direclfed for distribution only, the order or decree must fix and deterftiine the 'C. C. P. § 2707. "Higbie v. Westlake, 14 N. Y. «C. C. P. § 2717. 281 (1856). 9 C. C. P. § 2717. " id. i« C, "C. P. § 2717. 14 See §§ 38 et seq., supra. "Higbie v." Westlake, 14 N. Y. 281 (1856). 334 §§ 300, 301, 302 ADMINISTRATORS rights and interests of the respective parties entitled to distribu- tion.^* (7) If a person entitled to an estate or interest -in the property sold is made a party as a person unknown, the order or decree must provide for the protection of his rights, as far as may be, as if he were known and had appeared. ^^ (8) If proceeds of a sale of. real property of the decedent under judgment of another court have been directed by such court to be paid into the surrogate's court subject to its order, the order or de- cree of the surrogate may direct such proceeds to be paid to the administrator, or executor to be by him brought into his ac- count, judicial settlement of which is pending, and to be disposed of in accordance with the surrogate's decree on such settlement.^' § 300. Id. : Adjournment of Accounting. — After making his order for sale, mortgage or lease the surrogate must adjourn the judicial settlement of the administrator's or executor's account to await the proceedings by the latter under the order. ^' § 301. Id.: Representative's Bond.^Before proceeding to execute the surrogate's order for the sale, mortgage or lease of decedent's real property or his interest therein, the administrator or executor must execute a bond; unless the order directs that the proceeds of ihe sale or mortgage be paid by the purchaser or mortgagee to a bank or trust company to the credit of the administrator, subject to the further order of the court. ^^. The requisites' of a bond given by an administrator or executor before proceeding to execute a surrogate's order to sell, mortgage or lease his decedent's real estate, or interest therein, are: (1) That it be executed by (a) the admin- istrator or executor, with (b) two or more sureties; (2) That it run to the people of the state; (3) That it be filed with the surro- gate; (4) That it be in a penalty fixed by the surrogate; (5) That it be conditioned (a) for the faithful performance by the admin- istrator or executor of the duties imposed upon him by the surro- gate's order, and (b) for the acdounting by the administrator or executor for all moneys received by him Whenever he is required; so to account by a court of competent jurisdiction.^" An insolvent administrator maiy sell his intestate's realty to pay debts if he ^ives a bond.^ § 302. Id.: Execution, Report and Court's Determination There- on, — The administrator' or executor must execute the surrogate's " C. C. P. § 2707. 2" C. C. P. § 2708. 16 C. C. p. § 2707., Waiter of Georgi, 21 Misc. 419 "C. C. p. § 2707. .■': (1897), or 47 Supp. 1061; old Code, "C. C. P. § 2707. . , ' § 2765, new Code;- §2704. 13 C. C. P. § 2708. ' 335 IvEW YORK ESTATES AND SURROGATES § SOS ord^r for the sale, mortgage or lease of his decedent's realty or interest therein, subject to the surrogate court's approval, and must make a report to the surrogatei of his proceedings under the ,order.* Upon receiving the report the surrogate may (a) confirm the sale, mortgage or lease (h) reject the sale, mortgage or lease; (c) extend the order of sale, mortgage or lease to other parcels; (d) require a re-execution of the order on such terms and conditions as he may direct; or (e) relieve a purchaser from his purchase in a case in which he might be so relieved in the supreme court, on such terms as justice requires.* The death, removal or disqualification before the complete execution of an order for sale, mortgage or lease of a decedent's real property, or interest- therein, of all the administrators or executors, does not suspend or affect the execution of the order; but the successor of the person who has died, been removed or become disqualified must proceed to, complete all unfinished matters as his precedessors might have completed them.* Such a successor must give such security for the due performance of his duties as the surrogate prescribes.* § 303. Id.: Supplemental Accoumt and Decree. — A supplemental account setting forth his procieedings under an order for sale, mort- gage or lease of a decedent's real property, or interest therein, must be filed by theadministrator or executor or his successor after the order has been fully executed and on or before the adjourned re- turn, day of the judicial settlement of his accounts. The supple- mental account must set forth* (1) the proceedings under the order; (2) ,the amount of the proceeds of the sale; and (3) the ex- penses incurred under the sale.' The surrogate must continue and complete the judicial settlement of the accounts of the administra- tor or executor upon the filing of his supplemental account; and make such a disposition of the funds in the hands of the adminis- trator, or executor ^s justice requires." The ; decree rendered by a surrogate after the sale, mortgage pr lease of a decedent's real estate or interest therein by the former's order is really a decree judicially settling the decedent's administratpr's pr executor's accounts, al- though it incidentally deals with the, disposition of the proceeds of such sale, mortgage or lease. It will, therefore, more properly be considered further in this work, under the subject of accountings,' except as to matters peculiar to such a sale. ,, A decree of judicial settlement of accounts may establish the rights and interests of the real and true owners of any property devised by will, or who are= 2 C. C. P. § 2709. See § 284, su- « C. C. P. § 2711. pra;. *Id. 'C. C. P..§ 2710. ■'See §§ 341 etseq., infra.. *Id. 336 § 304 ADMINISTEATOES the only lieirs-at-law of the deceased and entitled to succeed to his real estate, and direct a conveyance to them by the executor or ad- ministrator according to their respective rights, in confirmation of their title, when (1) it is not necessary or advantageous to mort- gage, sell or lease the real property of the deceased or of the estate, and (2) the parties interested prove upon the judicial settlement of the accounts who are such real and true owners or heirs-at-law.* When an executor sells his testator's realty to get money with which to pay the latter's debts under a power so to do in the will, it is the executor's duty to bring the proceeds intact into court and to pay them out according to the surrogate's decree after notice to the proper interested parties: and he should not first pay a judgment creditor on the theory that such judgment is a lien on the realty sold.^ § 304. Id. : Creditor as Purchaser, Effect of Sale on Title of Pur- chaser of Mortgagee or Heirs or Devisee; Guardian for Infant Par- ty. — If a creditor of the decedent becomes the purchaser of any of the decedent's real property, or interest therein, upon a sale for any purpose other than the distribution of the proceeds to the parties entitled thereto, the surrogate, upon such creditor's applica- tion, may direct the amount of his claim to be allowed, in the first instance, upon the purchase price, and such purchaser need only pay the balance at. the time of the sale, unless the proceeds of the sale are insufficient to, satisfy the cost and expenses of administra- tion, the debts and funeral expenses of the decedent, in which case the purchasing creditor must be allowed and credited upon the judicial settlement of the accounts of the administrator or executor, only the amount he may be entitled to receive upon his claim, and must needs then pay. the difference between the amount originally allowed and the amount he is entitled to receive." No deed can.be delivered to a purchasing creditor who has credit for his claim on his bid until judicial settlement of the accounts of the administra- tor or executor, nor until he. has paid the entire amount required of him to complete his purchase.*^ The title to a decedent's realty of a purchaser or mortgagee from an heir or devisee of the decedent is not affected by a conveyance of the real property by the decedent's administrator or executor by order of the surrogate or authority of law unless: (1) the pur- chaser or mortgagee from the decedent's heir or devisee is not ' C. C. P. § 2711. of administration under which sale 9 Matter of Van De Walker, 79 had, see notes in 21 L.E.A. 155; 43 Misc. 661 (1913), or 141 Supp. 325. L.R.A.(N.S.) 634. Oh the effect of subsequent rev- i* C. C. P. § 2712. ocation of letters testamentary or " C. C. P. § 2712. N. y. E. & S.— 22. 337 NEW YORK ESTATES AND SURROGATES § 305 such in good faith and for value; or (2) letters of administration or testamentary were granted upon the estate of the decedent by a surrogate's court having jurisdiction to grant them upon a peti- tion therefor presented within two (2) years after the decedent's death." , Due appointment of a guardian for each infant party to a pro- ceeding for the sale, mortgage or lease of a decedent's realty or interest therein is presumed,' and can be disproved only by af- firmative record evidence to the contrary when (1) twenty-five (25) years have elapsed after such sale, mortgage or lease, and (2) records of the surrogate's court have been removed from one place to another, either in the same Or another county, or the records of such a ptoceeding have been, lost or destroyed.^' Proceedings for the sale of a decedent's real estate in which an infant is interested are irregular if no special guardian was appointed for the infant before evidence is taken;" A sale of a decedent's real estate to pay his debts in which service was made on an infant over fourteen in person, but no guardian for him was appointed, nevertheless gives the purchaser in good faith a title immune from collateral attack.^* A surrogate's decree of sale under all jurisdictional cir- cumstances save the appointment of a guardian ad litem is merely voidable and not void." § 305. Disposition of Realty: Under Power in Will, Who May Execute. — An executor given power as such, or as trustee, or as both executor and trustee,'to sell, mortgage or lease real estate of his testator or any interest therein, may of course exercise the power pursuant to the terms of the will giving it. If there be more than one person named as executor and any of the persons so named neglects to qualify, then all sales, mortgages and leases under the pdwer made by the executor or executors who do qualify is equally valid as if the other executors or trustees had joined therein." ^* C. C. P. § 2714. utors named may exercise power of "C. C. P. § 2716. sale, seenotein50L.R.A.(N.S.) 622. ** Pinekney v. Smith, 26 Hun, 524 As . to when power of sale is (1882). deemed to be coupled , with an in- ^^ Jenkins V. Young, 43 Huh, '194 terest, see note in 50 L.R.A.(NS') (1887). . 632. "Smith v., Blood, 10 A. D. 317 As to, when power 'of sale is (1905), or 94 Supp. 667; old Code, deemed annexed to the office, or §§ 2473, 2763, new Code, § 2513^ 'given ratione officii, see note in 50 " C. C. P. § 2694. L.R.A.(N.S.) 643. On whether an executor or ad- The duty of e eciltbr with power ministrator of grantee named may of sale as to land held adversely is exercise power of sale, see. note in discussed in note in 35 L.R.A. (NS ) 50 L.R.A. (N.S.) ,621. 749. On whether less than all the exec- On executing power of sale un- 338 § 306 ADMINISTRATORS The statutory provision that a sale under a testamentary power to more than one executor may be made by one of them who quah- fies applies as well to the case of a discretionary as a mandatory power.*' A will appointing three persons executors and trustees and giving them power of salp, to them and any two of them gives a sole acting executor and trustee the like power.*^ A power of sale may be executed by all those surviving of several executors.^" A power of sale to executors and trustees as they should "jointly consider beneficial" to be exercised by deed "jointly and not singly," ceases on the death of one of them,* One of several execu- tors who alone qualifies in New York may convey realty under a testamentary; direction that they divide the property, as the power to convey arises from the positive necessity, of distribution ; but if the will requires the poncurrence pf all the. trustees to a sale, and the trustees are all dea,d op one of them is dead, the trust vests in the supreme court, and its concurrence to the sale can only be had on hearing of all persons interested.* A life tenant also named execu- tor and given discretionary power to sell realty of the trust fund at public or private sale, can convey good title, though there be no co- trustee appointed ,with him.^ When a will gives an absolute power of sale and shows that no discretion was intended by the testator it is not defeated by the refusal to qualify or removal of the executor ; but the trust vests in the court whose duty it is to appoint some per- son to execute it.* The execution of a discretionary power of sale cannot be delegated by the donee of the power.^ § 306. Id.: When Extinguished,— A power of sale is extinguished and the land descends to the heirs when the purpose for which the power is given fails or is, accomplished without a conversion,* A power of salfs in a will is inappheable when, the testator in his Ufe- der will after discharge, see note in powers given by him but merely 2 L.R.A.(N.S.) 623. prescribes the rule to be applied in On the estoppel of executbr or ad- the absence of testamentary direc- ministrator to deny that he received tions to the contriary. the amount stated in his report of ''Cornell v. Lauterbachj 12 A. D. a sale,see note in ,L.R.A.1916A, 639. 531 (1896), or 42 Supp. 143; affd "Taylor v. Morris, 1 N. Y. 341 ,159 N. Y. 553, 54 N. ^. 1089. . (1848). * Odell v. Claussen, 120 A. D. 535, 19 Draper v. Montgomery, 108 A. 104 Supp. 1104 (1907). D. 63 (1905), or 95 Supp. 904. *Ross v. Roberts, 2 Hun, 90 20 House v. Raymond, 3. Hun, 44 (1874),; aff'd 63 N. Y. 652. (1874). . ^Cooke v. County of Kings, or iHerriott v. ,Prime, 87 I^un, 95 Prince, 97 N. Y. 421 (1884). (1895), or 33 Supp. 970; afE'd 155 « Sweeney v! Warreil, 127 N. Y. N. Y. 5, 49 N. E. 142; old Code, 426, 24 Am. St. Rep. 468, 28 N. § 2642, new Code, § 3694, does not E. 413 (1891). prevent the testator . f rpm limiting ' p 339 NEW YORK ESTATES AND SURROGATES § 307 time had executed a deed of the property pursuant to a contract for its sale, had offered it at the closing, but the buyer had not appeared.' , § 307, Id.: Manner of Exercise. — Sales of Teal estate situate within the state of New York, made by executors in pursuance of an au- thority given by any last will, unless otherwise directed in such will, may be public or private and on such terms £ls in the opinion of the executor shall be most advantageous to those interested therein.^ An executor limited by will to a sale of realty for cash, on credit, or partly for both, cannot exchange the property.'" Ex- ecutors have no authority under a testamentaiy power to sell and mortgage for the purpose of carrying out the provisions of the will, to thortgage in order to raise funds to loan or advance to the heirs, because disbursements to heirs except on final settlement of the estate are clearly not in fulfilment of the provisions of the will.*' An authorization to sell for such prices and upon such ' terms as executofs deem best for the estate's interest only calls for sale when they see that the price and terms are reasonably satisfactory, fair and adequate, and the property is not sacrificed. needlessly for some nominal amount.'^ A discretiOniari^ power to executors to sell does not give them power to inortgagie, and if they deed the realty to a durnmy who mortgages it twi6e, once to a judgment creditor of the estate on a verdict directed against the decedent before, his death on which Judgment was entered after his death, they seek to do precisely what they would' have done had they mortgaged direct to such judgment creditor, and his foreclosure action will be dismissed." Under a naked power of sale at such tiiliei, in siich manner and on such terms as they should consider for the best interests of the estate; Uiicorihected with a trust, executors may sell even just to distribute and escape the expense of partition. '* Ex- ecutors will not be "charged with loss frotn' the delay in selling real estate, but will be allowed the taxes paid on it, and their necessary expenses in managing it, when they acted in good faith with an honest intent to do for the benefit of the estate, and made a mis- take which the wisest business man could make : — to charge executors with loss because of the deferred sale of real estate under a testamentary power, their negligence must actually cause the loss : ■'Roone v. Phillips, 27 N. Y. 357' »* Hancox v. Meekei*, 95 N. Y. 528 (1863). , (1884). SDeeed. Est. L., § 110. "Amour v. Phyfe, 6 A. D. 605 10 rr T • K r ICO A T^ (1896), or 39 Supp. 973; aff'd 159 "•Turco V. Tnmboh, 152 A. D. ;iT y 5^2 54 N F 1(18(1 431, 137 Supp. 343 (1912). '"iinds'v. Murray, 91 Hun, 335 "Smith V. Peyrot, 201 N. Y. 210, (1895), or 36 Supp. 231; aff'd 157 94 N. B. 662 (1911). N. Y. 697, 51 N. E. 1091. 340 § 308 ADMINISTRATORS it is not sufficient that,, loss and negligence concurred if they did not cause the loss.^^ An executor who improperly sells lands under a testamentary power of sale is subject either to have the sale set aside by the beneficiaries or to have them affirm it and charge him with its actual value, i. e., surcharge him with the difference between the land's actual value and the sum it sold for.^® § 308. Id.: Wlien Imperative and Discretionary, and Equitable Conversion. — An equitable conversion of a testator's real property into personal property results when the testator's realty is incapable of division and the w:^ll directs that the residuary estate, both real and personal, be divided into several equal parts.^'' No equitable conversion of land will be decreed when a simple power of sale is given, but its exercise is not necessary or essential to the scope and declared purposes of the will.^* Realty will be deemed converted into personalty if the executor is given power to convert and if the testator's intent can not otherwise be effectuated, e. g., when the will was executed fourteen months before his death, his liabili- ties had not increased within that time, and his debts exceeded his personalty at his death. ^* No equitable conversion will result from a discretionary power of sale unless the testator's purpose will fail without such conversion.*" Realty is converted into personalty as of testator's death under a residuary devise to executors in trust to invest in securities approved by them, pay the income to his wife for life, pay over and transfer the principal on her death to various persons, and without deduction for commissions or trans- fer tax; because in no other way can the testator's intent be ful- filled.^ Creditors cannot claim as personal estate the money from the proceeds of a conversion of land under a direction in the will to sell it for a specific purpose, e. g., for the payment of certain lega- cies, as such a direction does not constitute an equitable conversion so as to make the proceeds general assets; but the surrogate may postpone payment of the proceeds to the legatees until application may be made to sell the real estate to pay debts when it can be de- termined whether any part of such fund is applicable to their pay- is Matter of Brown, 71 Misc. 398, 8' Matter of Tatum, 169 N. Y. 514, 130 Supp. 191 (1911). 62 N. E. 580 (1902). 16 Matter of Vandevort, 8 A. D. i Matter of Taller, 47 A. D. 741 341 (1896), or 40 Supp. 791. (1911), or 133 Supp. 122; aff'd 205 "Utlca Trust & Deposit Co. v. N. Y. 599, 98 N. E. 1116. Thompson, 87 Misc. 31 (1914), or As to what time conversion takes 149 Supp. 392. place under direction to sell real 1* Scholle V. SchoUe, 113 N. Y. property which postpones sale to 261, 21 N. E. 84 (1889). definitely ascertainable time subse- 19 Fraser v. Trustees, etc. U. P. queut to testator's death, see note in Church, 124 N. Y. 479, 26 N. E. 20 L.R.A.(N.S.) 65. 1034 (1891). 341 NEW YOEK ESTATES AND SURROGATES § 308 ment.^ Ah imperative power or direction to sgll, with a conse- quent conversion in law of the testator's realty into personalty as of the date of his death, occurs when the will directs the executors to sell and convey all the testator's real estate and personal property as feoon after his decease as it could properly be disposed of, and to pay the legacies and certain sums of money provided, for in the will;^ or when the power given by the will is not limited, is not in terms made discretionary, and ite existence is rendered necessary by the scope of the will and its declared ptirposes; * or even if the direction to sell has to be implied, when the design and purpose of the testator is unequivocal and the implication is so strong as to leave no substantial doubt, and his intention cannot otherwise be carried out.* A testamentary direction that "the public ad- ministrator" is "to sell out all real and personal estate" is a posi- tive, obligatory direction to sell in any event, and works an equi- table conversion.^ A direction to sell at such tirne as in the execu- tor's judgment shall be for the best interest of all cdncerned'and to hold the proceeds in trust for certain beneficiaries is irilperative ; but the executor's judgment as to the time of sale, iri the absence of bad faith, is conclusive.'' While a simple power of sale, with nothing more, is discretionary and not imperatiyiB, the discretion will be held to relate only to the time, mode arid terms of sale if a sale is imperative to carry' out all the will's provisions.' A devise or bequest of all a residuary estate is not necessarily contradictory to an immediately following absolute power of sale, as it may be- come absolutely necessary to enable the exebtitor to make the dis- tribution required to the residuary legatees,' or it may be inferred that the testator' wished to enable the executor to sell if advanta- geous, and give the beneficiaries the proceeds withoiit the e.tpense of a partition action;^" There is no imperative' power of sale the exer- cise of which a beneficiary can compel when the will merely author- izes and empowers the executors to Sell the testator's realty." Words in a will suggesting the time for its exercise or indicating the testator's wish in that regaird do nbt restrain ot limit the action « Matter of Broderick, 163 A. D. 'Haight v; Brisbin, 96 N. Y. 132 91, 14? Supp. 541 (1914). (1884). ' 8Doane v. Mercantile Trust Co. ' Delafield v. Barlow, 107 N. Y. 160 N. Y. 494, 55 N. E, 296 (1899). ^35, 14 N. E. 498 (1887)— "to pay * Matter of Gantert, 136 , N. Y. oyer .transfer and deUver the prin- ^""^.'J^ ^- ^- f ^ ^^^^^^- "''^'crittenden v. Fair, discussing (1900),ior 65 Supp. 571. Matter of Watson, 215 N. Y. 209, "Matter of Rainaeli, 41 Misc. 78 -^^ij^' ^'- ^^■ (1903), or 83 Supp. 651. ' 2^!?%. ,= ^ ^ nir xt ^ w-Mt t-<. e ci X, n^ k r< ^, Matter .of, Watson^ 215 N. Y. ^"Matter ot behaefer, 65 A. D. 209 109 N IT, Sfi nQTil r r 378 (1901), or 73 S^ipp. 57; afl'd P § 2731 ^ '' 171 N. Y. 686, 64 N. E. 1125, old 'Id. 346 §310 ,, : ADMINISTRATORS to him because lie cannot be both plaintiff and defendant.* , The surrogate's court has jurisdiction to deterraine whether net profits of a testator's business conducted by his executors without author- ity, invested by them in realty taken in the individual name of one, of the exep^tors for the estate's benefit, retain their character as personalty ; and will decide they do.* On an executor's account- ing, , pn allegations in an answer to the petition that such executor received his appointment under the will as well as a legacy upon the faith of hispromise to the testator to turn over to the answerer such portion of the estate as was then agreed upon, the surrogate will hear and determine the point of the constructive trust,® ; The sur- rogate has discretion to determine the reasonableness of an execu- tor's claim for expenses, even if it is not contained in his account,'' Jurisdiction to construe a will,^ or to determine the validity rof its provisions,' in order to decide questions arising on an accounting, attaches as an incident to the jurisdiction to settle executors' ac- counts. A surrogate has power to construe wills so far as needful to determine to whom legacies shall be paid ; ^* or to determine the validity of testamentary provisions.''^ But the surrogate's jurisdic- tion to construe the will' or to define the rights inter sese of bene- ficiaries of a trust created by i't is limited to the necessities of the accounting theh' before .'hini.^^ On an accounting the surrogate's court has jurisdiction to try the issue of whether or not there was an assignment of a legacy by one clairriing to be the assignee to whom the accountant paid it. ^* The surrogate's court probably has jurisdiction on a judicial settlement of an account to settle title to a legacy, an assignment of which is contested on the ground that it was usuriously obtained ; " or to construe an assignment and agreement by those interested under the will and changing the course of a trust fund in order to determine to whom belonged the * Matter of Dummett, 38 Misc. 477 'jyjatter of Est. of Ullmann, 137 (1902), or 77 Supp., 1118. N. Y, 403, 33 N. E. 480 (1893). 6 Matter of Archer, 77 Misc. 288, " Matter of Verplanqk, 91 N. Y. 137 Supp. 770 (1912). 439 (1883)— old Code, ,§§ 2472, 8 Matter of Delgado,, 79 Misc. 590 2481, 2743. (1913), or 141 Supp. 198,, old Code, "Matter of Est. of Ullmann, 137 § 2472a, new Code, § 2510. N. Y. 403, 33 N. E. 480 (1893) — ''Matter of Kane, 64 A. D. 566,, old Code, §§ 2472, 2481, 2743. 72 Supp. 33 (1901); Matter of i^ Matter of Hurlbut, 51 Misc. O'Brien, 5 Miso. 136 (189i3), or 25 263 100 Supp. 1098 (1906). Supp. 704. , 13 Matter of Geis, 27 Misc. 490 ■ sPurdyv. H^yt, 92 N. , Y- 446 (1899), or 59 Supp. 175, (1883) ; Garlocli v. Vandervort, 128 , i* Matter of Thornburgli, 72 Misc. N. Y. -374, 28 JST. E. 5,99 (1891)— 619 (1911), or 132 Supp. 268, old old Code, § 2472, subds. 3,, 4 and Code, | ,2472a, repealed except as 5 : Estate of Metqalf e, ,6 Misc. 524, generally stated , in new Code, , § . 27 Supp. 879 (1894). • 2510. 347 NEW YORK ESTATES AND SUREOGATES § 310 title to such fund.*' On an accounting a surrogate may construe and determine the validity of an antenuptial agreement by the decedent with his fiancee concerning the disposition of his property after his death.** The surrogate's court has jurisdiction on settle- ment of a trustee's accounts to determine the effect of an agreement between life-tenants and remaindermen relating to the holding of the trust fund." The surrogate may question a settlement by an executor of threatened litigation against the estate^ because nec- essarily incident to passing on the executor's accounts." Oh judi- cial settlement of an account the surrogate will neither consider nor determine the question of the death of any person other than the one whose estate is being administered, e. g., he will not go into the question of the death of One of the next of kin of the de- cedent whose estate is being accounted for.*' On an accounting a surrogate cannot determine interests in land ; but he can determine distributive shares in money which is the proceeds ' of land sold under a trust power in the will ; and also whether the will converts real into personal estate.*" Accounting, voluntary or compulsory, may be had by an executor of the proceeds of thp ,sale of realty under a testamentary power.* It is questionable if a surrogate can on settlement of an executor's accounts direct the latter to return to the estate a salary received by him as officer of a coxporation the stock of which was partly, held by the estate, as he has- no jurisdic- tion of the corporation.^ It is proper for a testamentary trustee to account in the surrogate's rather than the supreme court when no reason is shown for an action in the latter rather than a proceeding in the former court for an accounting ; because of the less expense.^ The surrogate's court has jurisdiction to entertain a proceeding for judicial settlement of the accounts of a trustee appointed by the ** Matter of Higgins, 81 Misc. to ieousin in settlement; cousin paid 579, 143 Supp. 552 (1913), old Code, most of amount, with executors' § 2472 as repealed except as general- knowledge, to decedent's son. ly stated in new Code, § 2510. *' Matter of Matthews, 75 Misc, *" Matter of Estate of Jones, 3 449 (1912), or 136 Supp. 636. Misc. 586, 24 Supp. 706 (1893), old ^o Matter of Paile, 51 Misc. 166, Code, § 2471, repealed except as 100 Supp. 856 (1906)— old <:ode, stated in § 2510. decision. " Estate of Bishop, 89 Misc. 355, * Baldwin Smith, 3 A. D. 350 151 Supp. 768 (1915), C. C. P. §§ (1896), or 38 Supp. 299. 2510 and 2731. " * Matter of Brown or Slenson, 78 *« Matter of Meyer, 95 A. D. 443 Misc. -342, 139 Supp. 459 (1912), (1904), or 88 Supp. 798, aff'd 181 old Code, § 2472, repealed except N. Y. 562, 74 N. E. 1120— decedent's , as covered by new Code, § 2510. interest in partnership continued ; ' Eysaman v. Nelson, 79 Misc. 304 decedent's cousin claimed right to (1913), or 140 Supp. 183; aff'd 150 be partner; executors paid amount N. Y. Supp. 1085. 348 § 311 ADMINISTRATOES supreme court as the successor of a deceased trustee named in a will.* § 311, Id.: Definitions. — The expression "intermediate account" denotes an account filed in the surrogate's court for the purpose of disclosing an accountant's acts as such and the condition of the estate in his hands.* The expression "final account" is not adopt- ed in the Code, but denotes an account filed in the surrogate's court with the intent definitely to conclude parties interested for all pur- poses, so that no further account will be necessary. The expression "judicial settlement," applied to an account, whether intermediate or final, signifies the making by surrogate of a decree by which such account is made conclusive upon the parties to the accounting proceeding, either for all purposes or for certain purposes specified by statute.* An account so made conclusive by surrogate's decree is said to be "judicially settled." '' Intermediate accounts are mere- ly "landmarks along the line of the execution of the trust" for the information of the beneficiaries and not of the trustee ; while judi- cial settlements of accounts, had on notice to all parties interested, contemplate a trial resulting in a judgment conclusive on such parties.' Settlement by parties interested may be had of an ac- count by recording in the surrogate's ofiice an instrument executed by at least one accountant and at least one legatee, devisee, distrib- utee or creditor.' The three general classes of accounts are, therefore: (1) Intermediate accounts; (2) Final accounts; and (3) Accounts recorded and settled by interested parties. An account between interested parties settled by their own act in recording an instrument executed by them can, of course, only be a voluntary account. But intermediate and final accountings (and a judicial settlement of an account) may be either voluntary or compulsory : voluntary when on the accountant's own initiative," and compul- sory when by order of coiirt,^* whether made by the surrogate on his own motion or on petition of a person interested in the estate. An intermediate as well as a final account may be judicially settled. An intermediate accounting, which does not seek a judicial settle- ment of the account may be (1) voluntary filed by the administra- tor, executor, guardian or testamentary trustee; ^^ (2) compulsorily filed by the administrator, executor, guardian or testamentary trus- * Matter of Runk, 200 N. Y. 447, » C. C. P. §2919. 94 N. E. 363 (1911). " C. C. P. §§ .2721, 2723, 2729. «C. C. P. § 2768. "C. C. P. §§ 2721, 2724, 2726, « C C. P. § 2768. 2727. 'C. C. P. § 2768. 18 C. C. P. § 2721. "Matter of Hawley, 36 Hun, 258 (1885), rev'd on another point 100 -a. Y. 206, 3 N. E. 68. 349 NEW YORK ESTATES AND< SURROGATES § 312 tee by order of the surrogate either (a) on the 'surrogate's own in- itiative^' or (b) on petition by a person interested.^* § 312. Id.: By Parties Interested Inter Sese.— Those persons who are interested in an estate may agree 'Upon the manner of its dis- tribution so as to avoid the expense and trouble of litigaition ; ^* and such an agreement is not against public policy. An agreement made -between a decedent's sole heir i and one claiming a promise by decedent to give the promisee the promisor's property on the latter 's death for an equal division of the dededent's estate is sup- ported by a sufficient consideration; because made upon a settle- ment of disjautes and to prevent litigation ■ and in settlement of a doubtful claim.** The next of kin of an intestate leaving no cred- itors may settle his estate without taking: out administration, as his personal property was distributable to them as tenants ■ in com- mon." When one of two only next of kin of an intestate Settles an account between the ^ latter and another of which the second uext of kin knew the same day but nevertheless took out adminis- tration on the intestate's estate and sued such other on the account, while the settlement may not be a bar to the action, yet it must stand as against the share in the estate of the one of the next of kin who made the settlement.*' An instrument executed- by persons who besides being legatees were executor and executrix: respectively stating that their accounts were settled "as between themselves, and as between themselves and said estate," and that they mutually released each other from every liability "by reason of anything relating to the estate or the doings or proceedings 'of either df them as executrix or executor of said will" is' a bar to proceedings by the executor before the surrogate to compel the executrix to account.*' If one executor settles his accounts in person with his coexecutor and it was a,djudged and decreed that a legacy to tte latter had been fully paid on his giving the, fornier his notes for its amount, the adjudication conclusively established that the legacy had actually been paid by the executor to the legatee and no suit, lies against such latter executor. by the former executor's representative on the theory that such latter executor while being an executor became " C. d P. § 2721. ' share of the estate to Which he would **C. C. P. § 2721. have been entitled in ease of in- ** Schoomaker . V. ' Gray,' -208 N. T. testaeyj : 209, 101 N. E. 886, Ann. Cas. -19140, "Minehan v. ' HUl, 144 A. D. 910 (1913)— agreement by one next 854 (1911), or 129 Supp. 873. of kin who was a legatee for more *' Harrington v. Lowmstn, 22 A. than his distributive sha*e with an- D. 266 (1897), or 47 Supp. 863. other next of kin that if the latter " Id. ■ '■'''■ would stop his contest of the will, *' Matter of Pruyii, 141 N. Y. etc., the latter should receive the 544, 36 N. E. 595 (1894). 350 §§ 313, 31-t ADMINISTRATORS personally indebted to his coex'ecutor for the payment of the leg- acy.^" In the absence of creditors an administrator is a mere trus- tee for the next of kin, charged with the sole duty of collecting, converting and distributing the estate; so that when one not an administrator stated an account and distributed the balance of the estate, the next of kin who were parties thereto are bound and can- not through administration claim to be paid again, as there is no need of a trustee in the shape of an g,dministrator for whom no trust duties remain.^ Any instrument settling an account in whole or in part, executed by one or more administrators, testamentary trustees, or executors, and any one or more legatees, devisees, dis- tributees or creditors may be recorded in the surrogate's office ; pro- vided it be acknowledged, or proye,d, and duly certified.^ Such record, or a certified copy thereof, is presumptive evidence of the contents of the instrument and its due execution.* § 313. Id.: In Court, Voluntary, Intermediate, Without Settle- ment. — An intermediate account may be filed at any time in the surrogate's court by an administrator, executor, guardian or testa- mentary trustee.* This is the account of which no judicial settle- ment is sought. Statutory provisions governing the accounts of public administrators are referred to in the note.® The contents of an intermediate, voluntary account must relate to the estate of the decedent and the doings of the accounting administratbr, execu- tor or testamentat'y trustee as such; but how much of such estate and doings shall be accounted for voluntarily by the accountant in such an intermediate account,' rests in his discretion.* For what- ever he does account, the accountant intist file the vouchers in sup- port therfeof." The expenses and disbursements, viz., the legal and proper expenses of administration necessarily incurred, including the rea inable expense of obtaining and continuing the bond and reasonable counsel fees necessarily incurred in the administration of the estate, should be set forth in the account.* § 314. Id.: In Court, Voluntary, Intermediate Settlement.— An intermediate accounting, which seeks a judicial settlement of his account, may be voluntarily filed by an administrator, executor, 20 Camp V. Smith, 117 N. Y. i354, Co.: C. C. P. § 2594, subd. 2. Erie 22 N. E. 1044 (1889). Co.: C. ,C. P. § 2595. Bronx Co.: 1 Ledyard v. Bull, 119 N. T. 62, L. 1912, c. 548, § 3. "Bronx Countv 23 N. E. 444 (1890). Law;" § 3. Richmond Co.: "PiibUe 2 C. C. P. § 2719. Administrators" Law, § 1 (L. 1899, SC. C. P. § 2719. e. 486, § 1), as amended L. 1910, * C. C. P. § 2721. c. 412, § 3. ^ New York Co.: "Public Admin- « C. C. P. § 272L istrators" Law, §§ 27, 28, 30 (L. ' C. C. P. § 2721. 1898, c. 230, §§ ,27, 28, 30). Kings » C. C. P. § 2692. 351 NEW YOEK ESTATES AND SURROGATES § 314 testamentary trustee or guardian.' The administrator, executor or guardian or testamentary trustee may file his intermediate ac- count and a petition for its judicial settlement in the surrogate's court having jurisdiction at any time after the expiration of one year from issuance of his letters, his appointment and qualification ; but not oftener than once a year thereafter.*" The contents of a petition for a judicial settlement of an administrator's, executor's, testamentary trustee's or guardian's voluntary, intermediate ac- count are the same in general as the contents of a standard petition in any proceeding in a surrogate's court.** The points to which at- tention must be particularly paid are the facts on which the court's jurisdiction depends, the names of the persons intierested, and the request for the relief asked. The petition should show either that one yeax has passed since the issuance of letters testamentary or ad- ministration or of guardianship and the appointment and qual- ification of the testamentary trustee or guardian, or that one year has passed since the last judicial settlement of the accountant's intermediate account.** The names of the persons interested, who are to be cited, should be those of all who would be required to be cited on a voluntary settlement of the account.*^ The prayer should be that a decree be. entered judicially setthng the account.** A citation on a petition for judicial settlement, of a voluntary, in- termediate account must issue if the surrogate entertains the appli- cation. *° The persons to whom a citation must issue if a surrogate entertains an administrator's, executor's, guardiaii's or testamen- tary trustee's application for judicial settlement of his intermediate account are all those who would be required to be cited upon a vol- untary judicial settlement of the account.** The form of a citation issued on a petition for judicial settlement of a voluntary, inter- mediate account is the same in general as the form of. a standard citation in any surrogate's court proceeding.*'' The point particu- larly requiring attention is the statement of the object of the pro- ceeding in regard to which the persons cited are required to show cause, viz., why a decree should not be made judicially settling the accountant's intermediate account. The proceedings on a proceed- ing for judicial settlement of an intermediate, voluntary account, after citation, are thd same and have the like effect as though the proceeding were for a final judicial settlement of an account.*' 9 C. C. P. § 2723. *« C. C. P. § 2723. *» C. C. P. § 2723. *6 C. C. P. § 2723. ** See § 787, infra. *« C. C. P. § 2723. *" C. C. P. § 2723. *' See § <799, infra. *3 C. C. P. § 2723. *8 C. C. P. § 2723. 352 §§ 315, 316 ADMINISTRATaRS § 315. Id.: Voluntary, Final Settlement, Petition of Executor oi Administrator In Chief. — An administrator or executor may pre- sent to the surrogate's court his voluntary final account and peti- tion praying its judicial Settlement and the citation of all necessary and proper parties to show cause why such settlement should not be had at any time: (1) when notice to creditors to present claims has been duly published and the time for presentation of claims as fixed in the notice has expired; or (2) when no notice to creditors to present claims has been published, but one (1) year has since expired siuce letters were issued to the administrator or executoi or his predecessor in office; or (3) when letters issued to the peti- tioning administrator or executor have been revoked;^* or (4) wheii the administrator or executor seeks to have his letters revoked and to be discharged.**" The form of a petition by a general ad- ministrator or executor for judicial settlement of his volunteiry, final account, when nbt made in connection with his application for revocation of his letters, is in the main the same as the form of the standard petition in any proceeding in a surrogate's court.* In alleging the facts on which depend the court's jurisdiction, the publication of notice to present claims and expiration of the time within which to do so ; or the expiration of one year since grant of letters, if no such notice was published; or the revocation of tlie petitioning administrator's or executor's letters^— as the case may be — should be set forth." , The names of the persons to be cited, giveU below,' should, be stated in the petition.* The relief sought, viz., the judicial .settlement of the account, should be prayed.* A peti- tion by an administrator or executor for judicial settlement of his voluntary, final account, when made in connection with an appli- cation by him for revocation of his letters, must set forth the: facts upon which; the application is founded and must in all other re- spects, conform to a petition praying for a judicial settlement of his voluntary, final account when no decree is asked revoking his let- ters.* § 316. Id.: Petition, Of Limited Executor or Administrator. — An- administrator or executor to whom limited letters have been issued for the prosecution of a cause of action mdy file his petition for judicial settlement of his final account relating to the fUnd at any; time after: (1) a judgment or compromise thereof has been obtained, and the proceeds are ready to be paid Over, and the re- covery is not a part of the estate of the deceased, but goes by special " C. C. P. § 2729. ■ ' ■ » See §§ 319 et seq.', infra. ""C. C. P. § 2572. - " *C. C. P. § 2729. 1 See § 787, infra! ' c. C. P. § 2729. «C. C. P. § 272fl.' - < ■ ^C. ' ~ ' N. Y. E. & S.— 23. 353 NEW YORK ESTATES AND iSjUKKOGATES :' li W provisiou of law to designate^- persona orTclasses of -perspns ;■ (2) a recovery .has beeii;ha . , . ** C. C. P. § 2572. • 354i •• - g§ 318, 3W ■ ■ .r.'.; ADMLXISTRATORB ' witli his applicatidii for revocation of his lettei'S, isili the maiii the •same as other standard petitions in any surrogate's ji)roceeding.^* The facts dn.' which the court's jurisdiction depends should be al- leged, , the names of those to be cited mUst be given and' the relief sought must be prayed.^*' ' , ' A petition by a tiestamentary trustee for judicial settlement of his voluntary, final account, when made in connection with his appli- cation for permiSeioni to resign and discharge must be in like form as a petition when h6 does hot seek permission to resign, save for the prayer." : '. § 318. Id.: Citation, When IssUes.^A citatioii niust be issued by a surrogate to whom is presented ah'^ administrator's or executor's or testamentary trustee's pbtition 'for tlie judicial settlement of his voluntary, final account, if the necessary time has expired, ox the petitioner's letters have been revoked, in the case of executors and administratorei: and if one or more distinct and separate trusts created by the will have been or are ready to 'be' fully executed, in the case of a testamentary trustee. ^* The surrogate Has discretion to either enteTtain or decline to entertain the' petition of an admin- istrator or executor for combined jiidicial settlement of his account and revocation of his letters,' ' or of a testamentaty trustee for such settlement and pa?raission to re'sigm.^' If he entertains the appli- cation, the proceedings must 'be '• the same i as upon a petitioh ■ for judicial settlement of an administrator's or executor's or "trustee's voluntary, final account ; except that the siirtoga:t;e must fii'st deter- mine whether- sufficient reasons exist' for granting the prayei^ of the petition.^" Upon fdll accounting and 'paying over, by ah ad- ministratot or executor, of '&11 money found td be due -from him, and ' delivering over all books, papers and other property in his hands either into the surrogate's court dr in such manner as the surrogate 'directs,!'a decree inay be made i'evdking thd administra- tor's or executor's' letters and discharging him accordingly ; ' and upon such accQimting and paying over and delivery by a testamen- tary : trustee;' a decree may be inade' discharging him accordingly.* §i319. Id;: Citation, Who to Haves Notice, 'Of Administrator In Chief i — The persons who must be cited Upon the judicial settlemWt of, the voluntary final account of an administrator whether' reVo'cia- tion of his lettersds orsig not BOUgM' (eicept 'ft'hen sUch' adminis- trator's letters have been revoked and a sticeessor has bteen appoint- ed), are: (a) All creditors of decedent except sUch as appear,' by i« See § 787, infra. " C. C. P. § 25r2. ' ■ 16 C. C. P. § 2729. 20 C. C. P. § 2573. " C. C. P. § 2572. 1 C. C. P. § 2573. " C. C. P. § 2730. ' :: • «C. C.P. §2573. 355' NEW YOKK ESTATES AND SURROGATES § 319 vouchers filed with the account, to have been paid ; (b) All parties claiming to be creditors of the decedent, except such as appear, by vouchers filed with the account, to have, been paid;' (c) The sure- ties, if any, on the administrq.toi?'s bond; (d) All co-administra- tors of the petitioner who do not join in his petition; (e) The at- torney-general of the state if decedent, died intestate as to any part of his estate^ leaving no known heirs-at-law or next of kin; (f) The widow or husband (as the case may be), if any, of decedent; (g) AH the heirs-at-law of decedent, if he died intesstate as to any real estate; or all his next of kin if he died intestate as to any personal property; (h) If the administr3,tor is one with the will annexed, all devisees; all trustees of any trust created by the will; and all legatees except such as by . voucher and release acknowledged or proved, and duly certified, and filed, appear to have been fully paid;* (i) If any person required to be, cited has died such per- son's executor or administrator, or if none has been appointed, such person's husband or widow, and such person's heirs-at-law or next of kin, or both, who are interested, shall be cited.* : r The contents ,qf; a citation issued on an administrator's petition for judicial settlement of his voluntary final account are in general the same as the contents of a standard citation in any surrogate's court proceeding.* The object of the proceeding in resgard to which the persons cited are required to'show cause should be stated to be judicial settlement;, of the, administrator's, final account." The person who must;be cited, upon the judicial settlement of the voluntary final aqcoui^ting of an administrator whose letters have been revoked is simply his ; successor, if helhas been appointed.'' If no, successor has been appointed, the same persons must be cited as upon a judicial settlemeptl; oi; the, administrator's, voluntary final account when his letters ^aye;iiot.be,en revoked.* The, exception of creditors or persons claiming to be such who; must be cited on judicial settjenient of a voluntaiyaccQuixt, viz., those who appear by vouchers filed, jfith the account to haye beenipaid, requires that the vouchers be;filed , to ,obvia,tew citation of those creditors whose claimS; are thereby shown tff ha^e been paid : the .vouchees cannot be withheld till; demand made, as the vouchers which may be so withheld are only those evidencing payments alleged by the ac-" count to have been made. by the representative (and not vouchers showing payments to creditors! of- the deceased).^' Upon the death of one interested in. an estate pending an accounting therein, whose » C. C. P. § 273a. ■' C. C. P. § 2730, subd. 4.. *C. C. P. § 273<).,. « C. C. P. § 2730, subd. 4. s See § 787, infra. * Est. of Payne;, N. Y. L. J. Jan. 6 C. C. P. § 2729. 19, 1916, Bronx Sum-. 356.: §§ 320, 321 ADMINISTBATOBS will is being contested and who is alleged during life to have as- signed all his interest in said estate, his widow and heirs and next of kin, his alleged assignee and the beneficiary under his contested will must all be cited." Creditors of a decedent who have duly assigned their claims need not be cited because they have no further interest in the estate.*^ On the death of persons interested in an estate their executors or administrators (and not their legatees and devisees or heirs and next of kin) are the proper parties to an ac- counting by the representatives of the original estate.** A mort- gagee of an heir of a decedent under a mortgage made after dece- dent's death and before service in an accounting by decedent's legal representative must be served with citation in the accounting pro- ceeding ; otherwise a purchaser in a proceeding by the representa- tive to sell decedent's realty to pay debts cannot be made to take title." § 320. Id. : Who to Have ^Notice, Of Limited Administrator or Executor. — The surrogatfe must issue a citation on a limited ad- ministrator's or executor's petition for judicial settlement of his voluntary, final account of the proceeds of his cause of action, whenever the requisite jurisdictional facts are alleged; unless all the parties in interest, if of full age and competent waive such is- sue." The persons entitled to notice, if the recovery is part of the estate, are the same ones as on judicial settlement of an administra- tor's or executor's voluntary, final account, or, if the recovery is not part of the estate, those entitled to such proceeds by special pro- vision of law:*' The form of the citation is in general the same as the form of the. standard citation in any surrogate's court proceed- ing," except the statement of the object of the proceeding about which the persons interested are to show cause, which should be said to be to obtain a decree judicially settling the administrator's or executor's accounts, directing payment to the parties entitled, and discharging the administrator or executor from, further liabil- ity as to the cause of action and the prqce^ds thereof," § 321. Id.: Who to Have Notice, Of Executor In Chief.— The persons who must be cited upon the judicial settlement of the vol- untary final account of an executor (except when ^uch executor's letters have been revoked and a successor has been appointed) are: (1) All creditors of the decedent except such as appearj by vouch- 10 Est. of Gordon, N. Y. L. J. Apr. " In re Lindstrang, N. Y. L. J. 7, 1916 (N. Y. Surr.) Apr. 28, 1916 (Kings Surr.) C. C. "Est. of Friedlander, N. Y. L. J. P. §§ 2764, 2705. Feb. 15, 1916, N. Y. <:io. G. G. P. i«G. C. P. § 2720. § 2730. **C. C. P. § 2720. 12 Est. of Gordon, N. Y. L. J. Apr. i^ See § 799, infra. 7, 1916, N. Y. Surr. " G. C. P. § 2720. 357 NEW YORKjESTATgS.iAJirD! SjrRROGATES .;. § 321 eig filQ^rwith.tliei^isount, to have.hs^» paid; (2) All parties claim- iQg. tq be credito:rg- of (the decedent, except such as appear; %= vouch- ers .fijed, with the account, to have beea p^d; (SO The sureties, if any,, oil the ,e;!fe,cuitor's bcind.; (4) AH co-executors of. the petitioning executor ,-jYho do not join in' the Jatter's. petition;- (5) All devisees, except such as by voucher and; ipleas^, acknowledged or proved, and duly certified, appear to;haverbeen fully paid; .(6) All legatees, except sijch.,^s by voucher and. release adinowl^dged or proved, and duly icertifiedjiappear^toihaveibeen. fully paid; (7). All trustees of any I triisfc created by the will^ except such as; by Voucher and. release acknowledged or proved, and. duly certified, appear to have been fully paid; 1,(8) If the decedent died ijitestate, as to .any part of the esta-te: — ^^(a).,The widow or husbaijtdy.if lanyi (b) All the heirs-at- lawjwhenithe integtacy is as to any ri,eftl .property ; (c) AUithe next- of-kin when the intestacy is as to any personal property; (d) The a|torney-genoral when the decedent .left ino known, heir-at-law or next;of kin. . (9) If any person required to be citedhas died, sueh person's; executor or. adfainistratflp;; or, if none has been appointed, such person's liusband or widow; arid heirs-a±-law or next of kin, or both, who are. interested.. I' The person :who must be cited upon the judicial settlement of the voluntary final accounting of an ex- ecutor whose letters have, been revoked is simply his successor, if he has been appointed.*^ If no successor hasj been appointed, the same persons niust.be citeid asiupon a judicial settlelnent of the. executor's voluntary account when his letters had nbt. been, revoked.^" A judgment creditor of, one who, had. conveyed all his interest in an estate after the judgment was had. is not a necessary party in ac- counting proceedings by executors of the debtor estate in order to confer upon the surrogate jurisdictioiitt) make a decree' directing the ; executors to pay oVer to ithe 'judgment-debtor's grantees; be- cause the sole effect of the decree was to discharge the executors from further responsibility as custodians bf the fund and any lien the judgment creditor had remained unimpaired by the change of possession:'^' If- the judgment creditor had filed 'a caveat with the surrogate requesting to be notified '6f all ac'coutiting the surrogate probably would have complied with so reasonable a request.^ A receiver of a, judgment debtor entitled to a legacy is a proper .party to the executor's accounting as an "assignee" to whom the estate is tp be d^tributed.* , The surrogate hag no power in ^an , accounting "C. C. P.'§'273Q. ' ■ 2 ra.,7 .!';,• . '. " C. C. P. § 2730i'subd. 4. . . ^ Monalian V. Fitzpatrick, 16 Mis6J 2»Id. ;- " 508, 39 Supp. 857 (1896), oldiCode, iSayles V. Be?t,.140 N. Y. 368, 35 § ,2743, Jieiiv Code,, § 2730: ,. . N. E. 636 (1893). ,r , _-, . :> 358, •§§322,323 ; ADMINISTEATORS . proceeding to direct that service of citation upon: a person entitled to a spe'cificlegacy 'be :dispensed witli.* That a wife of a testator is cited oh a proceeding for the executor's accounting as legatee and not as doweress is immaterial, when the surrogate decides ^ that the interest of the estatel in the real- property in* question was personalty because it had been bought by the executor with' money of his tes- tator.^ . ■ . '' § 322. Id.: Who To Have Notice, Of Testamentary Trustee:— Those who must be citied on a voluntary judicial settlement' of a tes- tamentary^ trustee's^ account are: (1) The sureties, if any, on his bond; (2) All co-trustees of 'the petitioning trustee who do not join in thelatter's application; (3) All persons- who are entitled, ab- .solutely or contingently, by the terms of the will or by operation of law to share in the fund, or in^ the proceeds of property held by^ the petitioner as a part of his trust; and (4)'If any person required to be cited has' died, ■ such person's executor or administrator, : or, if none has been appointed, such person's husbahd or widow and such i person's heirs-at-law or next of kiny or bothj who are inter- ested.^' Under certain circumstances it may be necessary to cite others, as set forth in section 2703 of the Code of Civil Procedure, i. e. : — (5) All creditors or persons claiming to be creditors of the decedent, except such as by vouchers filed with the accotmt appear to have been paid. (6). The attorney-general inaill cases in which the beieficiary died intestate aS to any part of the fund leaving no known heir-at-law or next of kin. (7) ; Th& widow! or husband, if any, and all the heirs-at-law when the beneficiary died intestate as to any real property; and allthe beneficiary's next of kin whfenhe died intestate as to any personal property. (8) All devisees, all trustees. of any trust created, by the will, and all legateesi except such as by voucher and release acknowledged, or proved, and duly certified and filed,, -appear, torhave been, fully paid,^? The person ^yho mus^Jje cited upon;the judicial settlem,ent of the voluntary final accounting of a testamentary trustee whp.has been removed, is simply his successor, if he has been appointed.'' If no successor has, been; appointed, the same persons must be; cited as upon a judicial settlement of the testamentary trtistee's voluntary final accounting when his letters have not, been revoked.* § 323. Id.: Citation, Form. — The fbirm of a citation issued on an administrator's or executor's or testarneiiiary trustee's petition for jiidicial settlement of his voluntary, final accotlnt is ih general the Upon the: return of the citation or waiver by all parties interest- ed, if of full age and competent, the surrogate may takeand by de- cree settle the limited administrator's or executor's account and direct payment to the parties entitled according to their Respective rights and interest and also direct that on filing receipts for such payments the administrator or executor and the party paying the money shall be discharged from all further liability as to such cause of actioh and fund. Upon so doing, such discharge becomes valid andfinal.^* § 325. Id.: Comipulsory, Intermediate, When and iBy Whom Compellable, Petition. — ; An intermediate accounting by an execu- tor, administrator or testamentary trustee may be compelled at any time when the surrogate deems it discreet to compel such an ac- count by order, either made on the surrogate's own initiative or on the 'petition of ahy pBrfebh interfested.^^ An intermediate account, in which no settlement is' 'sOught, ordered by the surrogate either on his own motion or'ond, petition of a person interested must be judicially Settled if it appears on the return of the order that it can be." Tlie'iorm of a petition for a compulsory intermediate ac- counting is in general the same as that of a standard petition in any proceeding in a surrogate's court." The particular matters which should, be stated are the fgicts upon which the court's juris- 8 See § 799, infra. "C. G. P. § 2720. 1" C. ,C. P. § 2729. « C. C. P. § 2721. " C. C. P. § 2731. "C. C. P. § 2722. 12 C. C. P. § 2731. " See § 787, infra. " C. C. P. § 2731, 300 §§ 326, 327 ADMINISTRATORS diction depends, the names of those interested, and the relief sought. The facts on which the court's jurisdiction rest include the petition- er's interest, the appointment and qualification of the administra- tor, executor or testamentary trustee, and the circumstances which, in the petitioner's opinion, render an intermediate accounting prop- er. The names of those interested should, hut need not, include others than the administrator, eXecutor or testamentary trustee. The prayer should be for an order requiring the administrator, ex- ecutor or testamentary trustee to file in the surrogate's office an in- termediate account. § 326. Id. : Order To Account. — The surrogate has discretion in determining whether or not to' order an administrator, executor or testamentary trustee to file his intermediate account.'' This dis- cretion of course exists when the surrogate is considering of his Own motion whether: or not to require an intermediate accounting; but it exists equally when smch accounting is sought by a party inter- ested in the estate." The appellate court will not interfere with this discretion unless it is abused.*' It is proper to refuse a first intermediate accounting when the claims of the judgment cred- itors who applied for the accounting are then being reviewed by the court of appeals on the administrator's appeal.* A surrogate's order in a proceeding to compel an intermediate accounting by an administrator, executor or testamentary trustee should require the latter to file such accounts.' It may also require an administrator or executor to attend and be examined under oath touching (a) his receipts, (b) his disbursements, (c) any act done by him under color of his letters, and (d) any act done by him after decedent's death and before letters were issued, - (e) any personal property owned or held by decedent at the time of his death and (f) any other matter relating to his administration of the estate.* § 327. Id. : Proceedings on Order's Return. — On the return of an order requiring an administrator, executor or testamentary trustee to file his intermediate account, he may take one of four courses: First, he may obey the order and file the account; Secondlyj he may present a petition for the judicial settlement of his account; Thirdly J he may show good cause why his account should not then be filed; or, Fourthly, he may fall' to appear, file his account or show cause why he should not do so.* If it appears that the account can be then judicially, settled, a supplemental citation niay be is- sued directed to -the persons who must be cited on a petition for a " C. C. P. § 272L 1 Matter of Merritt, supra. " C. C. P. § 2721. « C. C. P. § 2721. 2" Matter of Merritt, 35 A. D. 337 » C. C. P. § 2721. (1898), or 54 Supp. 955. « C. C. P. §§ 2722, 2729. 361 NEW YORK ESTATES AND SURROGATES ; .§ 327 judicial :settlemerLt of his account* When the accounting is^ made a judicial settlement by the issuing of a suppleinental citation or the filing of a: petition by the; administrator, executor or testainen- tary trustee for a judicial 'settlement lof his account, the same pro- ceedings! are had as on a; judicial settlement.^ , , ' The intermediate account filed hy an ^administrator, executor or testamentary, trustee, on order by the surrogate must be accom- panied by the vouchers supporting it.'' If it appears that the account can be then judiqiaJly settled, a supplemental citation may be: is- sued, directed to the persons who must be cited on a petition for a judicial settlemehtof his laccouiit,^. :The same proceedingfe are then had as on a judicial settlement.' .The account should set forth the legal and proper expenses of administration necessarily , incurred, includihg the expense of obtaining and continuing the account- ant's bond and; counsel fees, if ■ the' accountant wishes them settled by! the, surrogate (by a judicial settlement on i supplemental cita- tion)." . :.. • :.'.:. ' _ ' ■ I, . A petition presented! by an administrator, executor or testamen- tary trustee, on: or -before -the return of an order compelling /him to file his intermediate account praying for a judicial settlement: of his account nec'eSsitates a consolidation of the procpeding, pending against him for a' compulsory, intermediate : accounting." with the proceeding so .instituted^ by him for the judicial settlement of his aecount.<^^, sThe subsecjuent steps. are!' the. same as those in a volun- tary proceeding forfthe judicial settlement of am :administrator's, executor's 'or testaiinentary ; trustee's ;accounts,^^ except that, the cita- tion required in the latter proceeding need not be directed to the laetitioner in the jproceeding for the eompulsoiy, intermediate ad- CQunting." '; ■ :• ' ■ On the 'return of an prder that he should file his intermediate accouut, ,the, administrator, executor or , testamentary trustee.- may shQ,\Y- good. cause \\!hy he should not do sq.-^u Such good. cause exists wheij , til Bj claims of th^ petitioneir are, being I'eyiewe.d in an appel^ la;te ,c(ii^rt.,^^/ ■ ^',,u^ ..: . ..,,;r. ■ '.•■ '. ■ If, pn the rp,tifi5;i| p:^; an op^er, requiring h,im,tp„file his interme- diate ,account, .the, ,.a4niiii.istrator, ,exec^jtpr or testampntary, trustee neither .files ^upl?.. -account, lUpr presents, ,^ petition for its judicial set- tlement, npr show^, gpp()[ caupe why his Recount slipuld not be filled, 5C. C'.''R.§'27'2i' ' :■''-■:' ' ?2 C. C. P. § 27.22. ' • \ 8c. c. p:'r2722. "c. c;p.'*§ 27'22: ' ■ ' ■ ■^ C. C. p. § 2721. 1* C. C. P. § 2722. ' C. C. P...§ 2722. .1 16 Matter of Mertitt, 35 A. C; 337 9C. C. P. § 2722.. 1. , (1898), or 54 Supp. 955— claims of " C. C. P. § 2692, petitioning judgment creditors bemg " C. C. P. § 2722. reviewed in court of appeals. 362 §328 ADMINISTEATOES the surrogate mu^t make a second order directing the accountant to account within such a time, and in such manner, as the order prescribes; and tO' attend, from time to time, before the surrogate for that purpose." § 328. Id.: Coihpulsory, Final Settlement, Petition, Who May Make, and When, Of Administrators. — A final account is final only as to the matters accounted for; it is not final in the sense that the accountant can never again be ■ brought to account. The only occasion wheh' a' fihal account can be rendered is when it is to be judicially settled; A judicial settlement of a final account may be either vdluntary or compulsoty: — ^voluntary when had on the ac- countant's' own petition, and compulsory when required by order of the surrogate, either of his own -motion or on petition by a per- son interested.' The judicial settlement of the account may be necessary either because the administrator's or executor's letters have been revoked, or the testaihefntary trustee has designed and seeks dischat-ge,' at his request or by compulsion; or beicause he wishes to be discharged as to the whole or some part of 'his work. A surrogate's court from time to time may, on petition presented to him therefor, compel a judicial settlerhent ;of a temporary ad- ministrator's accounts ; and of any. other administrator's final ac- count: (1) when fifteen (15) days have elapsed sin?e the expira- tion of the time of creditors to, present their claims pursuant to, the statutory, published notice requiring them so to do ; or, if no such notice w.as published, when orie (1) year has expired since letters were granted to the administrator, whether or no the administra- tor hag sold or otherwise disposed of . any of liis decedent's real property, or the .rents,, profits or; proceeds thei^eof,, , pursuant either to an order of the surrogate's court, or, if an administrator, with the will annexed, to a power in the will; (2) when the administra- tor's letters have been revoked; (3) when the administiator's pow- ers have ceased for any teasofl, other than the revocation of his letters." It is noit necessary that, any specified tirne shall have passed since the grant of administration or that a notice, to credi- tors to present claims shall have been published before a proceed- ing can be brought to compel distribution by an administrator of darnages collectefi by. him. , thorough th^^Ji^stitution of aii option for the negligence icaiising his intestate's death; because such a pro- ceeding is not controlled by the ^Itatutory provisions regulating the settlemerlt pf the estates of deceased persons .as-the recovery is no part of the estate, of the decedent." . r, " C. C. P. § 2722. 318 (1906), or 101 Supp. 275, C. C. " C. C. P. § 2726. P. §■ 1903. * - 1* Matter of McDonald, 51 Misc. 363 NEW YORK EIST-ATE&iANBiSlErRilOGATES §^328 A petition; to ;Conipel:judieial|,g^ttleni!i(ent!j of Ijli^i accoimt,pf an, adtainistrator aii4 that hci be eitfed to sjiow cause why he shquld no% render and settle his account may be. presented by:^(l) a credi- tor; (2) a person interested in the estate; (3) a surety on the. ad;^ miDiistrator'^ioffieiat bpn;di; (4). a legal ^representative of -a deceased surety on: the administrator's official bond; (5) the attorney gen- eral of the state 'if; any of thjC. estate, may ;belong to ithe, state be- cause the decedent or a, person interested died either without leav- ing known ; heirs-at-law or .next of .kin .or. leaving heirsrat:law or next of kin .who are unknown;, (^) a successor to : the; adminis;t(ra- tor if the lat-ter's letters haye'been:r,eyDked; (7): a child or on be- half of a child; interested in the estate and born .after, tlie making of the will (if the administrator is. onej with the will aijinexe^)." One of an intestate's next of kin: may i institute proceedings tO; com- pel afl administrator to acfioujit; even though the latter by his an- swer alleges, full payment tO; the; petitioner;, because, though this allegation tnay amount to a denial of.iinterest, a mere appearance of interest is sufficient, to sustain. the application. An allegation by a person interested of his interest duly verified, suffices, although his interest is disputed; unless he has been, excluded by a judgment, decree or other final determination, and no appeal therefrom is pending.*" The surrogate is not bound to entertain an application by one for ah accounting simply because he swears 19 C. G. P. § 2727. 983 (1903), or 83 Supp. 983, afE'd On the right of adnjimstrator de 87 A. D. 609 and 178 N Y. 554, in bonis non to require predecessor to which descendants of decedent's un- account, see note in 40 L.RA. 73. cles and aunts who if living would "" C. C. P. § 2768, subd. 11. The have taken distributive shares in de- old rule that when in answer to a cedent's estate in common with petition for a compulsory accounting nephews and nieces were held not to it, is alleged that the petitioner's in- have standing to intervene on, judi- terest in the estate has been satisfled, cial settlejnent, on the theory that, extinguished or barred by a settle- although persons claiming to be nient, distribution, release or other- creditors, are held to be creditors in wise; in or out of court, thesurro- determining whether they have such gate must deny the petition even if an intqre3t as to have any standing, in reply the petitioner puts( in issue in SuiTogg,te's Courts' ; proceedings, the factum Of th,e settlement, release yet persons claiming to be interested or other act, because the surrogate in an estate are not held to be per- has not the equity jurisdiction neces- sons interested for the' same purpose; sary to nullify and set-; aside for because wihile the surrogate camiot fraud the deeds, of the parties (Mt^t- determipe who. are creditors (as this ter of Wagner, '119 N. Y. 28, 2S N.,'would amourit' to a' decision on the E. 200 (1890), old Code, §§ 2715;' ' validity Of their claims) yet he .can 2726-7, new Code, §§ 2668, 2510, determine who are legatees and next 2535,; 2721-2,. 2726-7-8), seems to of kin, and persons interested as be abrogated. See also Matter of such. ,[ ' Thompson, 41 Misc. 223, 83 Supp. 364 § 328 ADMmiSTBATOES he has an interest, when the papers on their face show hie has none, even thoiigh he has filed a bill in' the supreme court for ah ac- counting/ as if the supreme court should itself refuse an accounting; but decide that the applicant had an interest, it would then be time enough for the surrogate to allow an acbcJUnting proceeding in his court;^ Persons interested in the estate so as to be able to begin a proceeding to compel an administrator to account incltide legatees of next of kin of the intestate.^ A next of kiii may by his peti- tion give the surroga:te jurisdiction to order an administrator to account even though^ stich next of kin had executed a release to the administrator of all his interest in the decedent's personal es- tate and had exempted the administrator from' statutory liability to reinder his account as such; because not only may such next of kin demand an accounting to ascertain the condition of the ac- counts at the time he executed the release, but the court has au- thority to determine the validity of the release, as essential to the making of a decree determining who is entitled to funds in the administrator's lands.' A grandfather of an intestate leaving' a? his only other relative a minor brother cannot petition for a ju- dicial settlement of the administrator's accounts' because he is riot entitled to share in the estate.* An unpaid creditor of an estate, even though he did riot present his claim within the tiine required by the legal representative's published notice to creditors to pre- sent claims, is nevertheless absolutely entitled to petition for arid secure a compulsory account by the' representative of his proceed- ings as such, in spite of th6 latter's statement thathe has paid out all of the estate assets for debts; b^dause' it is neither equitable nor legal that an estate be paid out and wound rip' out Of Court without any chance given creditors to scnitinize the representative's pro- ceedings.® When a surrogate by reference takes evidence to de- termine whether a iperSon is entitled to compel am account which is dependent upon survivorship, hfr 'shall in his order requiring the account recite only that 'a frima facie case of i the interest of the petitioners has been made; out and not a tinding that one person survived another, as the parties to th^aecounting, not yet having been cited, or heard, will not be bonnd ariyway' by such a finding.* An allegation in a petition for an accounting that the petitioner is 1 Matter of De Pierris, 79 Hun, * Matter of Marsh, 5 Misc. 428, 26 279, 29 Supp. 360 (1894).' ' Supp. 718 (1893). Supp. 841 (1889), old^Code, § 2514, 3726, new Code, §§ 2510, 2726. sut)d. 11, new Code, & 4i7t)8.,, : e Matter of Laffargue, 142 A. D. » Matter of Read.- 41 Hun, 95 426 (19*31), or 126 Supp. 965; aff'd (1886). 202 N.Y. 614. 365 NEW YORK EST'ATES AND SURROGATES § 329 a creditor is sufficient! to give juFisdictiom to entertain the appli-* cation,'' ,The assigijee 9I part of; a legacy under, an assignment of which the administrator c. t.. a. 'has notice may compel, the la,tter to account,* ' . : § 329., Id.: Petition, Who May Make, and ,When, Of Executors.— A petition to compel judicial ,se,ttlement of the final account' of an executor and,, that, he l)e,cited to shpw cause ,-v(rhy he should not render and settle his account may be presented by : (1) a creditor; (2) a person interested in thft egtate;, (3,), a surety, on the executor's official bond; (4) a legal representative of a deceased surety; on the executor's official bond; (5) tfia, attorney general ; of the state if any of the estate may belong to the state .because the, testator or person interested died either, withput; leaving; ,knoTvn-;heir3-at7la\^^ or next of kin, or leaving heirs-at-law or next of kin who are un- known; (,6) a successor of the executor. if the latter's, letters; have been revoked; (7) a child or on behalf ., of, a child born after the naaking o^the will, when intwegted in the estate,' An allegation of a person interested, duly; verified, of his interest,, suffices, although his interest,is disputed ;, unlesg he has, been , excluded by a judgment; de(?ree or other final determination, and no appeal therefrom is pending," ; No., good (jause against a, surrogate, ordering a, repre- sentative to file his account is shown by propf that, all claims against the jesJ^tA . have,. be§n paid,, that the executor has. sufficient moneys and stands ready to . pay all just debts and that the petitioner's claim is disputed,*' An. application to compel £in accounting by an executor; who had previously filed :and had settled his ac- count; and. been,4.ischarged is proper if assets have been discovered by the applicant which were not, included; in the, firgt; accounting; and the remedy is: not by motion to open the decree rather than b,y motion to, compel a further, account; because such a decree stands as to the matters passed upon by it, while the ;preseht application relates, to, ite.ms hot included , within it.** Persons entitled to leg- acies only on the death of the i executor: may nevertheless require him to account when he has not accounted for: twertty^seven years since he was granted letters,*' A contestant iof; the account of an executor against whose testator the contestant has a claim for 'Matter of Famam, 75 N, Y, 187 118, 20 Supp. 824 (1892); dism'd (1878), ,;, ,':..->,■■ .,..!,' f l?9iN. Y. 51, 34N,..E. 756,oldCode, * Citizens' Central .National ^ank § 2727, new Code, §:27ti8. V, Toplitz,-113 A,! p. 73 (,1906), or , *«,Matter,of Heaney, 125 A, D. 98 Supp. 826;, .afl'd 188 N, Y. 634, 619 (1908), or 110 Supp.' gO. ' 81 N. E. 1162. "Matter of Jones, 30 Misc. 354 9 C. C. iP. § 2727,, • ;, (1900), or 63 Supp. '726; aff'd 51 loC.-C. P. § 2768,1 subd, 11. A. r),.;420, 64 Supp. 667, old Code, "Matter of Cailahan;. 66 Hun, §§ 2726, 2727, 2514, subd. 11. 366 § 329 ' ADMINISTRATORS moneys received by such testator as administrator of another's es- tate may compel such executor to account in such proceeding if moneys came into his hands as executcir' froni his testator's estate sufficient -to satisfy the contestant's claim.'^* When a legatee thinks that a claim due an estate in which his testator had an interest should be collected his remiedy is Hot to compel his testator's execu- tor to account -therefor when there is no showing that any part of such claim is necessary to pay his testator's interest in such other estate or that the delay of his testator's executor in demanding payment' of such interest has caused any damage to his testator's estate ;' because such a, claim is assets in the hands of such other estate's executor and nbt in the hands of his testator's executor." Such- legatee's remedy is rkther to have appointed an administra- tor d. b. n. of his testator's estate.^" A person" cannot maintain a proceeding for an accounting as one interested or having a claim for expenses of administration when he is executor ' of another^s estate and his- decedent had recovered a judgmeiit against the ad' ministrator c. t. a.' of. another for legal services rendered the estate which such administrator c. t. a. represented; because such judg- ment can only be against the administrator c. t. a. personally, as a contmct for them' made by sucH administratoir could not bind the estate, and the surrogate has no jurisdiction of' the subject matter or persons of claims against representatives personally.*'' When it appears frbm a petition for the compulsory accounting of an ex- ecutor that the' petitioners are the testator's children they have established their right to the accounting as persons interested in the estate.*' The legatee or devisee of a legatee or devisee haS' no' standing to compel the executors and trustees under the will of which the latter legatee or devisee ' is a beneficiary to account; although the legal represeiitative of a legatee or devisee does have such standing.*' A persOu' having a lien upon' a legacy is a "per- son interested" so as to' be able to petition for a compulsory ac- counting of the executor (Jr administrator c. t. a.*" A receiver in supplementary proceedings -Of a judgment debtor' who is lega tee- under a i will may require the executors named in the will to ac- f* Matter of Hull, 9i7 A. D. 258 (1907), or 103 Suppi 410.; a£E?a 195 (1904), or 89 Supp. 939. N. Y. 509, 88 N. 4 .1116., ■ is.Matter of Soutter, 105 N. 'Y. =" Matter' of Wood, 170 A. D. 533, 514, 12 N. E. 34 (1887)'. ' ' ' ' 156 "Supp.'felO' (1915); C. C t>: 16 Id. , §§ 2727; subd. 1, and, 2768, subd. 11, "Matter of SayleS, 57 Mise. ''524, holding' that' ' attorneys clailnihg lien 109 Supp. 972' (1908). ' ''on share of one named sole legatee *? Matter, of ■ Meyer, 98 A. D. 7 and app6inted administrator c. t. a. (1904), or 90 Supp. 185^ afPd ' 181 ' could petition 'to compel him to ac- N. Y. 553, 74 N. E. Il20'.' i " count. (-' ■ 19 Beshe v. Wright, 118 A. D. 320 3<57 NEW YORK ESTATES- A3^D SURROGATES § .33a eount^' One who tias- an unpaid judgment against executors, au- thorized to continue their testator's business, for goods furnished to the business, being entitled to^hare in common, with, other credi- tors of the business, in the assets of ,the, business, inay require a, full accounting from the executqrs of the trausactions of the busi-: ness, or, if the; executors have assigned the business and cannot therefore accQUpt because .the data fojf the account is in the assignee's hands, may have the executors' lettei^e revoked and an , adininistra- tor c, t. a. appointed through whom; the proper proceedings may be instituted; against, the businjess.fund.^ An attorney with whom, an executor and: residuary legatee; agreed that on successfully pro- bating the will he should receivp a. certain, compensation to be- come due and payable upon receipt by the executor and' residuary legatee of any sum by reason of proving the will and collecting his legacy thereunder has no standing to apply for an accounting by such executor; because th§, agreement was not, an assignment but a mere covenant to pay firom,a specified fund after it reached the promisor's hands.^ One entitled contingently to a legacy, is "in- terested in the estate" so as to be competent to compel the executor to account.' § 330. Id.: Petition, Who May Make, and When, Of Testamen- tary Trustee. — A judicial settlement' may be compelled from time to time by the surrogate's court of, the account of a testamentary trustee, jin the following cases: (l)When the trustee, has beep re- moved; or (2) When the powers of the trustee have ceased for any reason, other than his removal; or>(3) When the, persons bene- ficially interasted are entitled) either by the terms of the will or by operation of law, to receive any money or, other personal' prop- erty from the trustee, because (a) AH; the, joint trusts created by the terms of the will have been executed, or (bi) One or more, dis- tinct trusts created, by the terms of the will have been executed, or (c) AH the joint trusts; created by the terms of the will are ready to be executed, or (d) One or more distinct trusts created by the terms of thewill are ready to be executed..*," . ■ . A petition agaitii^t a itestamentary trustee ipraying for the judi- cial settlement of his accounts and that he be cited to show cause why he should not render and Settle his ' accouiit may be presented in a proper .case: — (1) By, any pe;-son beneficially interested in the executibji of any of the, trusts, unless the trustee's account has ".Matter of Beyea, 10 Misc. 198 'Mattfer of. Hunt,, 84 A. D. 159 (1894), or 31 Supp. 200. , ; , (1903), or 82 Supp. 538; aff'd 179 1 Matter of Hickey, 34 Misc. 360 N. Y. 570, 72 N. E. 1143: old Code (19,01), or 69 Supp. 844. §:3514, subd. 11.. 2 Matter of Shafdr, 35 Misc. 371, '» C. C. P. § 2726. 71 Supt). 1033 (1901). 368 §§ 331-333 ADMINISTBATOBS been judicially settled within one year preceding the applicatita ; (2) By any person on behalf of an infant interested in the execu- tion of any of the' trustsy unless the trustee's account has been ju- dicially settled within one year preceding the application; (3) By a surety on the official bond of the trustee; (4^) By the legal representative of 'a' deceased surety on the official bond of the trustee; (5) By the successor of a testamentary trustee who has been renloved; (6) By, the remaining testamentary trustee when another or others have beein removed; (7) By the attorney-general of the state of New; York when any of the property or fund may belong to the state by reason of the death of a!ny testator or per- son interested (a) without leaving known next of kin or (b) leav- ing next of kin who are unknown.* The existence of a fiduciary relation suffices to require an account? "'■■' § 331. Id.: Petition, Form. — ;The form of a petition for' a com- pulsory, final accounting is iri general the same as the form of a standard petition' in any proceeding in a Surrogate'^ court.^ It should show the facts on which depend the court's jurisdiction^ the names of those ' interested and the relief' sought.' A petition to make an executor accouUt headed as "the petition of M. E. H., an infant, by I. G., her general guardian;'''' but simply signed "I. G." is sufficient; because the -signature must, by reference to the peti- tion, be deemed to^ have been made in his capacity as general guardia;n'.* ■ ■ ■ § 332. Id.: Citation. — On 'presentation of a petition to compel j'udicial' settlement of an adniinistrator's, executor's or testamentary trustee's 'final account, a citation must be issued to him requiring him to show cause why he should not render and settle* such ac- count.* The citation is in the standard form.' ' .■ § 333, Id.: Proceedings on Citation's Return. — On the' return of a citation issued on' a 'petftion to compel judicial settlement of his final account the administrator j executor or testamentary. trustee may i. follow one; of four (4) courses; First, he may render and settle his account; Secondly, he may himself ptesent a petition for judicial settlement , of ids aacouni; Tli,irdly, he may show good cause why his account should not be rendered and settled; or, Fourthly, he may fail to appear, file his account or show good cause why he should not do so.^' ■ " ■; i , * C. G. P. § 2727. « C. C. P. §§ 2728, 2727. * Merritt v. Merritt, 33 Misc. 236, * See § 799, infra. 68 Supp. 624 (1900). , , " C. C. P. §§ 2728, 2729. « See § 787, iniffa. , ' Matter of Hurlburt, 43 Hun, 311 (1887). N. Y. E. & S.— 24. 369 NEW YORK; ESTATES :AND SURROGATES ; ' § 334 If an administrator, executor or testamentary tpiinstee cited to show cause why, he. should! ihoti have his fipal. account; judicially settled renders, and f51es his account On: the jeturii of , the , citation, he has satisfied tshe citatioii." ,. I .,•, j:_ ./ - :- A' petition by an administfator, esedutor or testamentary trustee, presented, on or before, the return of a, citationiitO), compel judicial settlement of his account, by which he prays fojia voluntary settle- ment and: that all necessary. and proper parties.be. cited to show cause why, such settlement should not be had necessitates a '■ con- solidation of the compulsory and voluntary, proceedings.^^ j.The subsequent proceedings are like i those on judicial, settlement of an administj-ator's, lexequtor'stor testamentary tJ^istee'e voluntary final account; except that the citation, need, not be directed to the person who has petitioned to compel the settlements^* ,,•,;, . ,If , ^n administrator, . executoi-, or testamentary trustee, cited;,-' to show. cause why :his;finallaccount;should,not compulsorily be ju- dicially settled: does show good cause, he need not, of course,, ac- ccfunt. If fan administrator,' executor, or testamentary trustee^ cited to show: cause why his finaliaccountishiOuldinotcompulfeorily be, ju- dicially settled fails either to appearj file his account or show good cause; why he should not file it, lor to convert the compulsory: into voluntary accounting proceedings, the, surrogate must by order diT rect him to account wjthin such a time and in, such- a manneji as the surrogate prescribes, and to attend from time to time before the surr,Qgate for that ,purp.osei" :, An administrator, executor .QF: testa- mentary itruistee,- is ;b0UJid. by, an order without service thereof." If it appears that ; there is a surplufe; .distributable, to creditors or persons. inte,restBd:. the [surrogate may at any time issue a supple- mental citation directed to the persons who must be eitted on , the petition, for the ij.udiicial settlement of an administratOf's, Execu- tor's ori testamentary trustee's account.*^ :0n a compulsory; ac- countijQg by the legal Tepresentatives of a deceased general assignee, creditofeiinterestediin, the 'trust must be cited if the: surety Ofvthe deceased assignee is ,to be-lawiully discharged ;becaius& the creditors' rights are aft'eeted) by any, ;proceeding in- ..whiohi the balance is; de- termined and .the.' priiiiary and secondary liability of; .the principal and- surety, -itespeGtively, are declared.^'' ■ : :,;,,'! § 334. Id.: When Barred. — "He who has been administrator,, ^ if he is living, is liable to account, though he has been removed. As long as heias^assetsioiithe estate in his hands, or" as lon'g as he is .., , : ..,■-;■, j; ■■'.r.-- ,t;;:r ■. ;?/ '^■- .,;,;■: ' . i-.n "C. C:P.-§ 2t28. ■'' -'^ •'-' '■' '■'" 16 C. C. P. § 27'i8. ,"•' " ' 12 C. C. p. §§ 2728, 2729. i^ C. C. P. § 2728. . " ' ' ' " Id. ' " Mitfei-'-of "fW-iAer, 35 TViisfe.' 150 "C. C. P. § 2728.- ...(1901), or,,71 Supp.,462. . ' '■ " ' S70' •*■'-' ■' " ■■' ' ■" § 334 I ADMINISTRATORS liable for assets that; have come into his hands, he is liable to the process from the surrogate calling him to account." i^: One 'who has as administrator receiyed cash assets for which he has not ac- counted cannot count on the running of the: statute of limitations against a proceeding, ito compel: him to account until he has ac- counted, and may be compelled to account at any time while he still acts as administrator.,^' Once an executor. has transferred to a legatee securities as the share of the latter in the- estate, by agree- ment between' them,; the surrogate cannot compel the executor to account ; in respect ' thereto, because the executor no longer holds them as such..??';' Asurrogate's discretion asito the time of ordering a final accounting should be exercised to deny it on a petition against an executor to compel it when all the esfate: has been dis- tributed except certaini realty, and its inimediate distribution could only be at a sacrifice of the; estate's iiiterest^ A; surrogate cannot compel an accounting by one who was by will made not only execu- tor but life tenant) after such an one has performed all his execu- torial duties.; because he then holds the property as life tenant.* A surrogate can Compel an accounting by an executor, ' of i-ealty sold by him under an :out and out -direction in the will; and' of the rents> and profits received by the executor under such power and before the sale.* A further accounting b}'^ a,n lexecutor: will not be ordered when the petition does; not allege that any further sums have come to his hands and he has previously been discharged on his prior accounting for all moneys and properties which had coine to his hands as executor.* ' : Receipts given on settlement out of court of; an estate thirteen years before any proceeding for an ac- counting was begun, for all claims against the executors, though not under seal; are considered releases.* Executors who have fully accounted to and settled with legatees out of court and been dis- charged by them cannot be compelled 'by a legatee's representative, without proof of fraud, to file an inventory.^ The fact that an executor is not only life 'tenant' of the 'estate but entitled by the will to use as nluch of the principal as he thinks proper for pur- poses mentioned iii the will does not shield him from liability to "Geroujd v. Wilson>81 N. Yi 573 * Stagg v. Jackson, 1 N.Y. 206 (.1880). , .- '' ' .^ (1848). ' . .,'..-. " Matter ; of Taylor, 30 A. D. 213 * Matter of Jenkins, 132 A. D. 339, (1898), or 51 Supp. 609, : . ; 117 Supp. 74 (1909). ; 20 Woodruff V. Young, 31 Hun, ^ Matter of Hodgman, .11 A. 'D. 420(1884),'" 344 (1896), or 42. Supp.. 1004, afE'd , 1 Matter of Withers, 23 A. D. 404, 161 N: Y. 627, 55 N. E. 1096. 48 Supp. 169 (1897). ,...;. ^ Matter of Wagner, 52 Hun, . 23 2 Matter of Comer, 72' Misc. 321 (1889).: or 4 Supp.' 761; aff'd 119 (1911), or 131 Supp. 187. N. Y. 28, 23 N. E. 200, 371 NEW YORK ESTATES 'AND SURROGATES § 334 account as ■executor.'' The fact that an eixeciitbr Is also life-tenant of thei estate does not prevent the' remaindermen from compelling him to settle' i his- accounts: they have no' remedy at' law^ and no plea of the statute) of limitations is good against their petition when no judicial settlement of the executor's; accounts has ever: been had.' A pro(!;eedingi to compel administrators or executors to account is not barred till they either actually discharge their duties or are presumed to have done so, 'through an open repudiation of their trust, followed by the expiration, from the'date of such repudiation to the time when their: compulsory accdutitihg is sought, of the period prescribed by the statute of limitations.' The lapse of the extent of ;.the statute of limitations is ho i protection' for an executor or:testame-ntary trustee against an accounting sought by one other- wise entitled to it; unless the I'epresentative has by some act openly ]:epudiated his trust and- liability.'" The statute of limitations only begins to run in favor of an executor against proceedings against him from the time^ after he 'has qualified and entered on'Hisdutiei? and received possession of his testator's property^ that he rtpudiates his trust:"- The' statute of limitations is not available by a substi- tuted trustee as a defense to his accounting when the requisite time after a repudiation by him of his trusteeship has' not expired.*^ To defeat an application to compel: him to file his accoiant by pleading theistatiaite of limitations ail administrator ralust set up the statute in an anslwer to the petition put in on! the return day.''* If he do not doisd and an order of reference is made, I'the i referee cannot set it aside on the subsequent filing of such 'an answer by the adminis- trator." I But; the referee can consider the plea of the statute at any stage of the proceeding before the close of the evidence on the ques- tion: of ;;Whet.h6r., the administrator is I legally chargeable with money. '^ Advantage must be, taken by ah executor of the plea of the statute of limitations in bjarito a petition to compel ibis account- ,. 'Matter of .Hunt, 84: A. D, 1 159 N.. E. 1099i; Matter of WiUiainsy .57 (1903), or.82,^,upp. 538„,aff'd 179 Mi^c, SSf (1908), or 109 ,Supp. 974, N, Y. 570, 72 N. E. 1143. "old Cpde, § 2727, new Code, §§' 2535, ■•» Matter of Jones, 51 A. D. '420 2721-2, 2727-^8.' (1900), or 64 Supp. 687. "Matter of Meyer, 98 A. D. 7 'Matter of Beyea, 10 Miscw 198 :(1904), or 90 Stipp. 185; afPd l81 (1894), or 31 Supp. 200; 17 years N. Y. 553, 74 N. E. 1120, proceeding after lettets (issued lexecutorfe were to xsoinpel aceountini^ over 13 years compelled to account. , : after issue of letters. ' :" Matter of Aiiderson; 122 A. "D. '^ Matter of Ralph, 91 Misc. 373 463 (19.07), or 106 Supp. 818; Mat- (1915), or 155 Supp. 1471 ler of Wood, 70 Misc. 467, 128 ,; "Matter of Rothschild, 42 Misc. Supp. 1102 (1911); Matter of Ash- 161, 85 Supp. 1084 (1903). hdim,. Ill A. D. 176 (1906), or 97 »*ld. Supp. 607; affl?d 185 N.Y. 609, 78 » Id. 372 1334, , ;.;. , ADMIJ^ISTRATOES ing by answer, ^.jidpot by motion to dismiss the petition and ci- ta,tion;, because aljtbQugh Ihe statute, has apparently, from the num- ber of years th^t: .has , elapsed, run, yet it is always competent to show facts which iwoiild have prevented its running.^* A proceed- ing by, an admii|nistra,tor, d. b.; n. to compel the representeitive of his deceased predecessor to account in the surrogate's court is con- trolled by the ten ypar,s' statute of limitations even though it would have been cpntrolledi Jay the six year statute had he brought it as next of kin, which he ; also was." A proceeding for a compulsoiy accounting is governed by the ten year statute of limitations appli- catile to suit in equity.^* A proceeding, by a distributee. or legatee to corn-pel the administrator or executor to account is barred by the same statute , which bars an action to recover the share or legacy ; so that it cannot .be maintained after six years,. from the time the distributee or legatee became of age.!'' An accounting by execu- tors, whose duty it was to collect a note, invest its proceeds^ pay the income ^o a tenant for life and preserve the corpus for the re- mainderman, at the compulsion of the life tenant, is not barred till the statute of liinitatipns has been running for six years after their final accounting.*' A proceeding for, a compulsory account- ing is limited to six years from the time the right to it accrues, save that the limitation does not begin to run against a minor till he at- tains his majority; so that though six years have elapsed since the right accrued, if he to whom it accrued is still an infant, a pro- ceeding for such a compulsory accounting may be brought in his interest.* , Although the six year statute of hmitations applies to compulsory accountings yet it does not apply to voluntary account- ings,; because the accountants in the latter case, by making the pe- tition and securing a citation, waive their right to plead the statute.^ The death of one voljintarily accounting ends the proceeding.* The successor in office of one occupying a trust relation will not be required in equity to account when the parties have slept on their rights so long as to render uncertain the equity of the result " Matter of Jordan, 50 A. D. 244 55 Supp. 430 (1898), old Code, (1900), or 63 Supp. 911. §^727, and C. C. P. §§ 414,: 3333, " IVfatter of Rogers, 153 N. Y. 316, 3334;, 47 N. E.. 589 (1897), old Code, ^o jj^tter of Campbell, 21 Misc. § 2606, new Code, §§ 2549, 2584, ]33 (1897), or 47 Supp. 29. 2725, 2734, C. C. P. § 414. ' Matter of Pond, 40 Misc. 66, 81 "Matter of Longbotham, 38 A. Supp. 249 (1903), C. C. P. §§ 382, D. 607 (1899), or 57 Supp. 118, 396,414/ overruling Matter of Taylor, 30 A. ^Matter of. Lyth or , Robson, 32 D. 213, 51 Supp. 609> on authority Mi^c. 608 (1900), or 67. Supp. 579; of Matter of Rogers, 153, N. Y. 316. executors., ,, , ' . 47 N. E. 589. , ^ pegge v. GiUette, 10 Misc. 467 19 Matter of .Barnes,, 25 Misc. 279. (1894), or 32 Supp. 102. 373 NEW YORK 'ESTATES AND SURROGATES § 335 soughli and 'difficult th6- determination of the actual facts by reason of 'the death of witnesses and parties.* The compulsory rendition of an account by surrogate's order on his own motion is a special proceeding subject to the operation '.of the ' statute of limitations.* A judgment creditor of executors' is entitled to their accounting even though they claim no asstets' of the estate have existed for twenty years prior to the Oominencement of the preceding.^ A surrogate should not deprive a creditor (.especially a judgment creditor whose Claim ife of record) of an accounting' by the executor or administrator of the debtor because' the representative says' he neverikncw of thd claim till citation was served on hiin in the pro- ceeding 'for his compulsory account, even though four and a half years after the issuance of letters and after he had ■wound up the estate/ if be had never published a notice tO creditors to present their claims or tried to find' out if any claims' were outstanding.' An, infant is ^barred from compelling an administrator c. t. a. to accounfas to^ his estate when after becoming of' age he accepts from his guardian- moneys paid the latter by such administrator.* The fact that th& statute -of limitations has run against any application for an accounting for the' purpose of compelling executors to pay a legacy is no bar' to a surrogate's order directiiig them to'render and file their intermediate aoeounlj in order to ascertain' if there are any assets of their testator in their hands oh application by a judg- ment^legatee for leave to issUe 'eKecution against the executorsy' to which they answer that at no time since thC action to enforce pay- m'eHt''of itheilegaey have they had any such assets, they having been distributed by agreement between the betifeficiaries.*--'' ' . " ' § 335.; Id.: The Account. — No manner is prescribed in which an aceotint by a trustee' must be rendered' to the court. A trustee should keep! cldar and accurate accounts ; if he does not, ' the pre- ,9umiitionsJare all against ;him,: and obscurities and doubts will be resolved- advetsely • to; hiirn, because a trustee ' must ' show the ac- count hei renders and the: expenditures he claims to h-ave lilade to have been correct, just and necessary." In contemplation of law *Keliog'g -V. -follogg, a69 A. D. 148 Supp. S^S (1914), G. C;' P. 395, 155 Supp. 310 (1915), owner'.pf § '37'6. ■ , ' - '' ' ' estate involved died 1836, aCcount'ihg •* Matter of Blum, 83 A.' D.' 161 action brought 1914. ' '' V (190^), or '«2 Supp. 49j:f'pld"bode, s Matter of Hale, 6 A. D. 411, 39 § 2727, new Code, §§ 2535, 2721-22- Supp. 577 (1896), over 'i2 years 27-28.' '' ■'-'- ■ '^ after probate, grant of letters ,a;nd ' Mill^ v. Hoffman, 92 N. Y. 181 distribution' of estate' an'd settleiflent (1883). of accoutit by agreetrieM 'of parties, ^Matter 6f Congregational Unita- is barred by statute, old Code, rian Society, 34 A. D. 387 (1898), § 2725, subd'. 4, new Code, § 2721'. or 54 Supp". 269. 8 Matter of Watson, 163 A. D.' 4i, "White vl' Rankin,- 18 A. D 293 374 § 335 ' ' ADMINISTRATORS all assets of the estate with which the executor is chargeable are pfpsumed to be in his possession eiccept a!s shown to have been law- fiilly paid out ov distributed.^'^ Executors and administrators should (1)' charge themselves with the amount of the inventory at the appraised values given in it, and (2) make themselves debtors for any increase in' such values; and so the' debtor side of the ac- cduht is ma,de;up. . The credit side is made up of (1) bad or doubt- fur debts at the amounts at which they are valued in the inventory; (2) the' sums for which they necessarily sold estate property at less than its appraised v^lue, with a list of the articles sold; (3) airti- cles lost without their fault, with a Statement of 'the cause of IOsh and their appraised value; (4) good debts u:iicollected, sihd the rea- sons why they were not (Collected and their inventoried amount; (5) debts paid^ — when and the atQoutits;'(6) eJxp'en^eS of the trust; (7)' articles unsold; (8) miscellaneous matters.^^ To each account filed in the surrogate's' cburt must be appended the affidavit 'of' the accounting party to the effect that the account coii tains, according to the best Of 'his knowledge 'and belief, a full ahd tru'e Statement of all his receipts and disbui*sfenients on account of 'the estate or fund, and of all money and o'th'ef 'pi-operty belonging to the estate or fund, which have corlie'to his hands, or beeli received by any other pei'sori, bj"^ his order or authority, for his use, and that he does not know of ,any"erfor 6r ornission in the account to the prejudice of ahy creditor of, 'or' person interested in the' estate 'or fund.** Vouchers are required by many surrogates' courts' rules to be 'filed witli t'lie accOuiit."; The 'rules of 'various surrogates' courts call for a statement to be filed with each account, of any claims pre- sented, allowed aiid Unpaid. '^^°, The rules of various surrogates' courts call for accountings as soon as possible.*^ The rules of vari- ous surrogates' courts 'rei^uire " that on an administrator c. t. a's, executor's or testainentary tHi'stee's accounting a copy of the will (usually a sworn copy) be filed." If the rights of infants are af- fectpd an adrbiriistrator's accounts must be duly verified even '('1897), or 46'Supp! '228;'aff'd 162 " See e.' g., these Rules : Queens: N. Y. 622, 57 N. E., 1128. 16; Herkimer, 6 ; Cattaraugus, 5 ''As to accounting by administrator Steuberi; 12 •■ Suffolk, 8; Nassau, 3 for rents of intestate's property, see Chautauqua,, 2. ' note in 40 L.R.A:' 344. *^ See e. 'g., these Rules :' New On duty to account for gold or York, 8; Kings, 10; Bronx, 7; silver, sete note in 29 L.R.A. 523; Queens;' 17. •' "Matter of Lang, 144' N. Y, 275, '* See e. g„ these Rules.- Herki- 39'N. E. 363 (1895)— overpayment nier, 13 ;' 'Cattaraugus, W._ of legacy.' " See e. g., these Rules : New ' 12 Wiltcox V. Smith, 26 Barb. 316 York, 8;.Kiiigs, 9; Bronx, 7; Queens, (1858). 18; Westchester, 11; Steuben, 15. " C. G. P. § 2732. 375 NEW YORK ESTATES 4JS[BStJRR0GATES § 335 tboughj-tbe Piarti^ appearing do not require it.'f . , Payments made by an. executor fqr, which the estate 7y;as ,not,lia,blej, e,.,g., taxes not a lien; on the test,a,tor'Si property or qn property ipbti. owned by the testator, eyen^ though, ma,d,e at. the ,;i?eqijest pf the, testator's heirs, have no placC; in jthe: executor's accounts^ as they constitute a per- sonal transaction between the; executpi: and the heir^ and are not a, legal charge against the fund in the, executor's h^nds." , A^ ac- GQunt of an e^cecuto^^ o^ administrator ,p. ,t. a. shpuld show if , any abatement of legacies is:necessary; because if npproyision is made in the decree, therefor and it proves tp be necessary, jtherepressenta- tive may find himself bovfnd to pay legacies which cannot be fully satisfied from the assets.^", A judgmer^t for costs, in favor of an estate should not be cre t . . ' 378 ■ " " "■■"■' ' ' """ § 337 ,( , ADMINISTRAXORS , . done t^on:^e, work a^,;executor a^^ claiKi,po,mmissions as/matter of law 0,11 the, -basis of the accounjting, a§, made, .and, iconfirined by the referee and surrogate, ^nd. supplemented by his affidayits,' § 337. Id.: When May Be Ma4e. — ''Objections to an, account of an qjfecutor or trustee must be presented and passed upon prior to the entry of a decr,ee, settling theni, or else, a party is thereiaiter precluded from raising any question, with, reference thei^eto. So long as the decree remains in force it is final and conclu^ye, with refeyence to matters embraced within the acpqunting." * A formal, notification by cpunsel fpr objectants at a, hearing before an audi- tor, that certain objections would not be pressed, precludes the ob- jectants or their .subsequent counsel; frqm thereai|tpr objecting to the jtems; waiyed by such notification.' A failure to object to items listed under a wrong h(eading by executors, passes them .insofar as to relieve the ex,ecvUors from liability therefpr,. e. g., when mort- gages on a decedent's real estate are listed ;as payments- to,, credi- tors.*, Although a ilife tenant r did. not on former accountings by a trustee , object to the res§rya,tion of. part of the, income to, make good the amouut paid from, principal for premiums pn investment securities, yet he is not; because, of such failure to object, pre- cluded from making :the same point as to moneys, ini the trustee's hands on a later- accounting." It is entirely in the surrogate's dis- cretion to refuse permission to file additional objections to an ac- count, on the ground of laches or delay, to a person who had op- portunity fto file objections to the account but allowed the chance to pass without taking advantage. of it, when the time in which oh-: jections could be filed as matter Of right has. passed.* Amendments of lobjections nunc 'pro tunc are made only for the purpose of af-; firmanee of a judgment and i never for reversal.^ A motion to strike out objections to an executor's; accounts should be granted when in a prior accounting by the same executor -the same object- ant filed objections which were ndt' sustained after a full hearing, the estate's condition has not changed, and the two accounts are alOiost identical ; because it must be presumed the objectant made ^ Matter of Boyle, 151 A. D. 568; 865^^t6iiiporary administrator's ac^ 136 Supp. 96 (1912). counts filed 1890, executors, 1895, * Childs V. Childs, :150 A. D..656, including . hi§, accounts as temporary 135 Supp. 972 (1912). .;:. , •., administrator, and 'in l8E)9 ' petition '.Matter of Weston, 91 N. Y., 502 presented , for setllenient of ' tempp- (1883). ., , I ... •. ...xi . raiy adininiStrator's adoounts and *. Matter of Wes-tpn, supija.; ,. motion mad6 for leave to file sami' ^Matter of Hoyt, 160,.N, ,Y. 607, objections: as were filed to eseeutor's 48 L.R.A. 126, 55'. N„,Ej'. 282 (1899). accounts. ■; ■ * Matter of . Jones or Von Glahn, .^'Muttst of ,HEirt, ' 60 Hun, 516 53 A. D. 164 (1900), oir 65.. Supp. (1891), or 15 Supp. 239. 379 NEW YORK ESTATES AND SUBROGATES §§ 338, 339 all the objections that could be made oh the prior accounting." It is in the suiTogate's discretion tb allow beneficiaries tinder a will to file objections to the executor's accounts after the time for filing them has expired; and he may impose conditioris.^^ § 338. Id.: How Made. — Objections to an account form the plead- ings and the objectants are as much bound to set up in such objec- tions any claims they propose to make as are defendants to set up in their answers any defenses' they propose making. ^^ Objections to an account, whether they be made by a special guardian or another, must set out any claims proposed to be made against the accountant; but if this is not' done the court must independently act as to any items called to its attention beforb approving them." It is not necessary in order to charge an executor with an indebted- ness by him to his testator to make the claim in objections filed to his account; because he is in any event bound tb account for what- ever he owed the testator at thei latter's death.^* When no objec- tions were filed as to certain matters presented in an administra- tor's account, as to which, however, he was examined, a rehearing should be granted, as objections constitute the pleadings' which de- termine the issues to be tried and the administrator' should have opportunity to prepare his explanation to anything objected to.^* The proper way for a special: guardian to call the court's attention to questions in an accounting is to make formal objections: not to make a detailed report and approve the questioned expenditures as a charge against principal, for instance; although once the surro- gate's attention has been I called to mooted points in^ the account it is his duty to act independently before approving it.^° The proper practice is to state objections to an account in the form of distinct and specific allegations and to give proof thereof, as an executor's verified account (with vouchers): raises a presumption that pay- ments vouched for were properly, made, and the objectant must establish more assets than are acknowledged. by the account or in- ventory." § 339* Id.: Burden of Proof. — On adjustment of an administra- tor's or executor's accounts, legal as well as equitable principles govern, and he may at all times, unimpeached by; technical rules, "Matter of Clapp, 30 Misc. 395, "Matter 6f Gonselus, 95 N. Y. 36 Supp. 1096 (1900). 340(1884). "Matter of . Turfler, 78 Hun, 258 ,;;„^^**^^ °* ^euser 87 Hun, 262 ^894), or 29 Supp. 1151. ^ ?6^^',f ^^^'g'P- ^^1^ at- «. i2Ti/r ij. * -a- 1- en TT Kic "Matter of Parr, 45 Misc. 564 12 Matter of Hart, 60 Hun, 516 (^qq^) „^ gg Supp; 990; aff'd 113 (1891), or 15 Supp. 239. a. D. 921, 100 Supp. 1133. "Matter of Bielby, 91 Misc. 353 "Bainbridge v. McCullough, 1 (1915), or 155- Supp. 133. ' ' Hun, 488 (1874). ' ' ■380 § 339 ADMINISTRATORS show the fairness of his dealings and the real nature of his trans- actions and the amount for which he should be held liable.^' An objectant to an executor's account on the ground that assets are not inventoried or accounted for must affirmatively establish their ex- istence with reasonable certainty ; and cannot leave the showing of their existence to' mere conjecture or suspicion.^® Though no in- ventory was filed before the accounting, yet if the objectant, about a year after the decedent's demise, had a list of the latter's property, as claimed by the executors, on which the assets he claims exist were not listed, and he took no steps to compel an inventory, his case falls.^" Property in deposit on judicial settlement of an execu- tor's account, not inventoried or accounted for by him, must be proven as assets by the contestants.^ The burden is on a contestant of an executor's account to show what assets are improperly exclud- ed from the account if all inventoried and appraised in the statu- tory way are included, because the inventory is prima' facie cor- rect.* Exceptants to executors' accounts on the ground of omis- sion therefrom of items of property of the testator have the burden of proving that the testator owned such property at death.* The burden of establishing the existence of more assets than are ac- knowledged by an inventory and account rests affirmatively upon the contestant and their existence must be established with rea- sonable certainty ■ and not left to mere conjecture or suspicion.* The burden is very strongly on objectants to an executor's accounts who allege tha.t the inventory or schedule of the accounts does not contain property which is part of the estate to prove their allega- tions; because' the inventory or account presumably contains all the personal property for which the executors are chargeable." The burden is on the contestants of an account to prove that an admin- istrator is liable for the amount with which they seek to surcharge him, and when the will places the residuum of an estate so corn- pletely at the disposal of the executor (since deceased) for his life that so much of it as ihay have been consumed by him would not properly be chargeable against his estate, contestants of his ad- ministrsttor's accounts must hot only show the ftmbunt of the estate whichj came to the haJids of the deceased executor but also the "Matter of Woodward, 69 A. D. 'Matter of Peixy, 129 A. D. 587 286 (1902), or 74 Supp, 755. (1908), or U4 Supp. 246, and 131 "Matter of Stevenson, 86 Hun, Supp. 284. 325 (1895), or 33 Supp. 493.. * Matter of Baker, 4^ A. D. 370 20 Matter of Stevenson,, supra, i ■ (1899), or 59 Supp. 121. ■' 1 Matter of Herringtony 73 Misc. * Matter of Watsdn, 86 Misc. 588 182, 132 Supp. 486 (1911). (1914), or 148 Supp; 902. ,* Matter of, Van Sise,.38Mi?c. 155, "- ■, i ;.■; 77 Supp. 266 (1902). ".„■ .:. , - 381 NEW YORK ESTATES- >A.ND SUBROGATES § 340 amount remaining in his' hands undisposed of at his death.* The burden is on bhe contesting ah account to show; that debts stated in the account to. have been incurred by the' decedent did not exist or iwere' not paid in good faith.'' The burden is on acdntestant to show that! payments made by an adtninistrator in the discharge of his duties are improper charges against the'estate.*" One attacking, on an administrator's accounting, a claim allowed but not paid by the; latter, .assumes 'the burden of establishing its invalidity.^ "When a representative hf an estate on final. 'accounting pro- duces vouchers for sums paid out by him for. which he seeks credit in his aecdunt, and which account is sworn to,i the burden is cast upon tlie contestants tolshow that thei items paid by the: representa- tive, rand, represented by the Vouchers, were not just debts or claims against the estate.i" ^^ A .testamentary trustee is held to no more stiingent; rules than an executor in being 'allowed payments he has made, without producing vouchers for them ; and i will be allowed them without vouchers if he satisfactorily proves them by any com- petent evidence other than the oath of himself or ibis wife." The production by an administrator on his accounting of vouchers cov- ering all items for which lie asksi credit ;puts oh a contestant the burden. of showing that the items paid and represented by the vouchers were not just debts: or claims against the estate.:^^ The burdeiijis on. a coiltestant to show that debts as claims against an o.-"tate listed as paid in an executor's, sworn account ■ an d' for which he. produces, vouchers on his accounting are not- just.*'! §-340.' Id.: Hearing or. Trial; — On the return of the citation the .surrogate must take the account and hear, the allegations and proofs of the -parities; respecting it, and must make suchorder 6t. decree as justice; requires.** Thie; aGCQUjutant may be examined under oath as to- any naatter relating to 'his administration of theiestate or fund by. any. party. to the proceeding.*^; The time, fot filing objections in a contested accounting ; .tM, .examination of the accountant:; the cpnfiiL^ment of the contest to items objected; to, etc:-— all are jofte.n cpverefi by surrogate's courts' rules.*' ,The.rUfl^&of an executor's or administrator's account to try and determine a contest' respect- ing prop'ert^- alleged to 'belong to the estate extends' only to a con- test over property which may be deemed assets.^ It does riot give the surrogate authority to determine a claim :made 'directly ' by a creditrir againsti the insurance j f^ndf realized on i decedent's vdfeath from an annual : premium .of- Over' $5.00.' ■ The court will not, dis- turb a legal, fee paid by one executor on the abjection o.f his coexfecu- tor, if it was, made ha'na fide, and- is shown by a reasonable prepon- derance of the evidence to, be reasonable in amount.* Affidavits on issues and objections, to, an accOunt-.arenoti evidence unlessstip- ulated as such.,* ■ , , ■:',-\-\'^h. •:',ii,;-;j"-i" ,:■ L '■' :''' ..:' -,,', ;;^. .1 ■»■ ■, ', § 341. Id.: Decree, In General. — On the return of the citation the surrogate must take the account and hear the allegations and proofs "See e. g., these Rules! Kings, 36, 76, N, B. 870 (1906), 'old Code, 14; Bronx, 8; Chaititauqua, 7. , § 2'73l', in New Code, § 2679. "C. C. P. § 2679, ■"' '" ' sjvE^tter of. Thompson, supts and expenses |3f administration have been paid, and the surrogate cannot correct' their mistake in distributing too soon by decreeing that the nejft of kiji. individually pay the estate's debt* and liabilities.^ The surrogate's iCO^rt has no power upon a motion to order an advance payment in a pending accountiijig proceeding.'" § 355. Id.: Compulsory. — Distribution by an administrator may be compelled either by action or special proceeding.^' If an admin- istrator refuses uppn demand, tx) pay a i distributive share after the expiration of one year from the gxantipg of letters of administra- tion, the pprspn entitled thereto may maintain such an action against him, as the case requires.'* , For the purpose of computing the time, :within which suchi-^n action must be commenced the cause of action is deemed to ^ccrue whep the adnjinistrator's ac- count is judicially settled, and ,flot before." If thp distributee is aninfaut and his guardian ad literrjb'kvings the action for him, the guardian ad, Ziier^ (unless he be alsptlie, general, guardian) must execute and ijle with the clerk, before the commencement of the action, a bond, to the. infant with at,lpa^t two sufficient sureties (or a corporate surety's bond) in a penalty fixed by a judge of the- coiirt, conditioned that^ tihe guardian will duly account to the infant when he attains full, age, , pr,, in pase of his death, to his personal representatives,, for all jjioney or property which the guardian may receive by reason of the distributive share." A widow is not next of kir^ to her hiishqind SO: as to.t^ke as distribut,ee of his estate; but she is, such next pf kin;PO as to ,h,aye the statutory righ.t. given to next of kiu ; to bring a,n, ap^ion to recover , the distribiitive shai-e which the statute gives her.'" When an a,drninistrator has not begun the publication of the notice to creditors to present their, clainis and three (3,) months «C. C. P. § 2688. "C. C. P. §§ 1819 and 2687 and 9 Matter of Keef, 43. Hun, 98 2691. (1887). "? C. C. P. §, 1819. '» Est. of Heert, N. Y. L. J. Apr. '» Id. 15, 1916 (N. Y. Surr.) citing matter '* C. C. P. § 1820. of McQuade, 157 , A. D.. 34^, 142 '" Betsinger v. Chapman, 24 Hun- ■Supp. 493. 15 (1881); afE'd 88 N. Y. 487. 400 § 355 ADMINISTEATOBS have elapsed since the grant of letters of administration, any per- son entitled to a distributive share of an estate may present to the surrogate's court a petition setting forth the facts and praying that the administrator be cited to show cause why he should not pay such share.^^ Upon the citation's return the administrator may reject the claim or show good and sufficient cause why he should not pay or satisfy such share in whole or in part." The surro- gate may dismiss the petition or direct immediate payment or sat- isfaction in whole or in part with or without the giving to the ad- ministrator by the distributee of a bond with two sufficient sureties conditioned that if debts ageiinst the deceased duly appear and there are not other assets to pay them the distributee will refund his share with interest, or such notable portion with the other distribu- tees as may be necessary for the payment of such debts and the costs and charges incurred by reason of the payment to such distribu- tee.^' Whenever a distributee is in actual need of his distributive share, or a part of it, for his support or education, he may seek its payment at any time by petition to the surrogate's court setting forth the facts ; whereupon the surrogate has discretion to cite the administrator to show cause why the petition's prayer should not be granted.** If it appears on the citation's return that the amount of money and the value of the other property in the respondent's hands applicable to the payment of debts and expenses exceeds by at least one-third the amount of all known debts and claims against the estate and of all distributive shares of the same class as the pe^ titioner's, and that payment or satisfaction of any distributive share, or some part of it, is necessary for the support or education of the petitioner (whether adult or infant), or of his family, the surrogate may in his discretion make a decree directing payment or satisfaction, accordingly on the filing of a bond by the distribu- tee, with two sufficient sureties, conditioned' that if debts against the .deceased duly appear and there are not other assets to pay them, the distributee will refund his share with interest, or such ratable portion with the other distributees as may be necessary for the payment of such debts and the costs and charges incurred by reason of the payment to such distributee."' An application for an ad- vance on account of a distributive share is a special proceeding and must be by petition and citation and not by motion.* A petition demanding distribution to the petitioner by the ancillary admin- i« C. C. P. § 2687. * Matter of Moran, 58 Misc. 488 "M. (1908), or 111 Stipp. 630 and 112 " C. C. P. §§ 2687-8. Supp. 207; old Code, § 2722 et seq. " C. C. P. § 2691. new Code, § 2687. *" C C. P. §§ 2691 and 2688. N. Y. E. & S.— 26. 401 NEW YORK ESTATES AND SURROGATES §§ 356, 357 istrator of one resident in a foreign country is properly dismissed when the ancillaxy administrator answers that next of kin in such foreign country claim the petitioner is indebted to the estate in a sum larger than any interest- he has in it; * or when the adminis- trator alleges that a petitioner's distributive share has been paid — without prejudice, however, to a compulsory accounting in which the question can be determined, as the issue of fact thus raised can more conveniently be tried on an accounting.* An assignee of a legacy or distributive share cannot maintain a proceeding to re- quire the surrogate's court to decree that an administrator execute to the petitioner an assignment of all the property constituting the decedent's residuary estate, even though the administrator consents to the decree.* Presentation to the comptroller of the City of New York for adjustment of a demand for a claim by alleged next of kin to have paid to them moneys paid the comptroller by the pub- lic administrator on his accounting of the estate of the intestate is a prerequisite to an application by such next of kin to the surro- gate's court for payment to themselves of such moneys.' § 356. Id.: When Barred.-T-One giving a release of all claims to an estate, in consideration of the deeding to him of a farm, will be estopped from claiming a share to such estate on his grantor's death, on the theory that the deed was an advancement only.* A person consenting to a diversion of his share of his deceased debt- or's assets, as creditor and next of kin, to purposes other than pay- ment of his claim, and to changing the liability of the administra- tor to him for his share from a representative to a personal liability, is estopped: from claiming such share against the administrator as such.'' Next of kin are not bound by an allowance to an adminis- trator of their shares, which he testified had been verbally assigned to him, on a hearing by an auditor to which they were not cited.* § 357. Id.: To Whom Made. — Although the mother of an infant is by statute the joint guardian of such infant with hbr husband, with equal powers, rights and duties in regard to him, she is not a person authorized to receive a distributive share of the infant on the death of the latter's father.* The persons to whom distributive * Matter of Dunn, 39 A. D. 510 ,,«Kmyon v. Kinyon, 6 Misc. 584, (1899), or 57 Stipp. 444; old Code, 27 Supp., 627 (1894). §■2722; see new Code, § 268'7. "'Moyer v. Moyer, 17 Misc. 648, * Est. of Caillas, N. Y. L. J., Sfept; 40 Suppi 772 (1896). 25, 1915 (N. Y. Surr.) ' Clock v. Chadeayne, 10 Hun, 97 ..* Matter of yfopd, 38 Misc. .fi4 (1877). (1902), or 76 Supp. 967;, old Code, 'Matter of S'ehuler, 46 Misc. 373 12722, See new. Code; § 2687. (1905), or 9^. Supp. 1063; Dom. ■5 Matter of Roon^y, 26 Misc. 106. Rels. L. § 51, old Code, §i 2746, new 56 Supp. 855 (189'9), § 261 greater Code, §§ 2664, 2669, 2739. - , N. Y. charter. ,.,(. 402 §§ 358-360 ADMINISTRATORS shares may be paid have been elsewhere considered." Creditors of a partnership which had assigned and the assignee of which had been discharged are entitled to participate ratably with individual creditors of a deceased partner who became such before the assign- ment in the proceeds of the sale of real estate of the deceased partner acquired by him after the discharge of the assignee; because after the partnership assets were exhausted the partnership creditors could rightfully go against the individual assets of the partners.*^ Amounts directed on an administrator's accounting to be paid sub- jects of foreign coiintries residing abroad as next of kin may be paid over to the consuls of such countries for them.'* § 358. Id.: Set Off. — An administrator may set off against a leg- acy or distributive' share any debt or obligation of the legatee or next of kin to the decedent, contracted during the latter's life.'* An administrator entitled to a distributive share must charge him- self with interest on a bond and mortgage on which his liability was past due when he was appointed: not only to the date of his appointment but to the date of distribution.'* The subject of set- off against distributive shares has also been elsewhere considered. '^ § 359. Id.: Receipt for Payment. — Any instrument acknowledg- ing payment of moneys pursuant to the provisions of a decree for the judicial settlement of the accounts of an administrator may be recorded in the surrogate's office as follows: (1) application must be made by some one person interested; and (2) the instrument to be recorded must be acknowledged, or proved, and duly certi- fied." The record of such instrument, or a certified copy of the record, is presumptive evidence: (a) of a satisfaction and discliarge of the decree as to any payment of money or delivery of property acknowledged in the instrument, (b) of the contents of the instru- ment; and (c) of the due execution of the instrument." , § 360. Compensation: Commissions, In General. — Commissions are not a matter of right, but rest in discretion." Commissions are '"See §§ 638, et seq., infra; ' - estate, see notes in 4 L'.R-.A.(N.S.) On distribution of estates in which 189, L.R.A.1915A, 1179. persons not in being may have an . '* Matter of Davis, 37 Misc. 326 interest, see note in =8, L.R. A. (N.S.) (1902), or 75 Supp. 493. 69. '^ See § 571 infra. ii Matter of Striker, 24. Misc. 422y '^ C. C. P. § 2553. ' 53 Supp. 732 (1898). ■ ' " C. C. P. §^2553. '2 Matter of D'Adamo, 94 Misc. 1, '» Flynn v. Judge, 149 A. D. 278, 157 Supp. 374 (1916). 133 Supp. 494 '(1912). '* Matter . of Robinson, 45 Misc. The effect of allowance of broker- 551, 92' Supp. 967 (1904). age upon executor's commissions is On indebtedness of heir to estate discussed in note in 64 L.R.A. 55. asVuConnlerclaim or Bet offiagainst ' The right of a surviving copartner distributive share in proceeds of real acting as executor to compensation 403 NEW YOEK JESTATES AKP SUBROGATES § 361 compensation, not for the service of receiving and paying out mon- ey of the estate, but for the whole services rendered by the repre- sentative to the estate, measured, however, by a, fixed standard based on the amounts received and paid out in order, that there should be no possible temptation of pecuniary interest to influence the con- duct or mislead thp discretion of the administrator, executor, guard- ian or trustee.": Commissions are not. subject to the representa- tive's disposal until ascertained and liquidated at the times and in the manner authorized by law, and are inchoate and unassignable on grounds of public policy.*" An assignment by an officer of his unearned fees or salary is, against : pubhc .policy.^ The commis- sions to which a testamentary trustee is entitled are determined by the law in force at the time of the settlement , of his accounts.* Beneficiaries who expressly consent in writing to- an informal ac- counting and acquiesce in a decree granting each of several execu- tors and testamentary trustees full commissions in each capacity without filing any objections or appealing are bound by their acts.^ A person who is party to a proceeding in which a surrogate's decree is made, directing executors to transfer the estate, to themselves as trustees, is bound to the extent that he cannot thereafter dispute the right to double commissijons.*' When the executors and tpsta- mentary trustees under a will directing that their compensation be paid out of the testator's estate, without indicating whether it should be paid from principal or income,, agree with all the partis interest- ed as to the , compensation, but without ,dete;?mining;it-s apportion- ment between principal and. income, each, part of the estate should bear ifs sha.re of. the burd|en of administration, and, if an .exact computation of the,b|Urde.n be impossible from the, accounts sub- mitted, the (jompensation will be apportioned equally between the principal and income,* ; ; § 361. Id.: CommissioHs,, Amount. — The commissions of an exec- utor, administrator^ guardian, or testamentary triistpe, for his serv- ices in such official capacity are fixed at a percentage of all sums of money r^c^ived and paid out by him ; thp percentage is gradu- for. services is taken! up in 17 L.R. A. 'Bowery National Bank v. Wil- (N.S.) 406. , son, 122 N. Y. 478, 9 L.R.A. .706^ 19 "CoUier v. Munn, .41 . 1?, Y. 143 Am. St. Rep. 507, 25 N. E. 855 (1869), holding executor coul.d not (1890), sheriff's fees. ' be paid, in addition to pommissions, *Naylor v. Gale, 73 Hun, 53 for legal services rendered estate at (1893), or 25 Supp. 934. request of coexeeutors (before stat- * Matter of Martin, 196 N. Y. ute allowed such additional compen- 415, 90. N. E. 46 (1909). sation for legal services) . ** Matter of Garth, 10 A. D. 102 20 Matter of Worthington^ 141 ,N. 41 Supp. 1022 (1896). ' Y. 9, 23 L.R.A. 97, 35 N> E. 929 ^ Matter ot Fmgo, 68 Misc. 273. (189*). .^ . : 125 Supp. 156 (1910). 404 § 361 ADMINISTRATORS ated according to the sums so received and paid out; if there be more than one executor, administrator j guardian or testamentary trustee, only the percentage is allowed which would be granted if there were but one : and this percentage must be apportioned among them according to the services rendered by them respectively; un- less the gross value of the estate or fund accounted for amounts to one hundred thousand, dollars ($100,000) or more, when each of them is entitled to the full compensation on principal and income allowed if there were but one, except in a case in which there are more than. three (3) of them, when the commissions to which three (3) would be entitled must be apportioned among the four or more of them according to the services rendered by them re- spectively.^ An executor, administrator, guardian or testamentary trustee is entitled, for receiving and paying out all sums of money from one dollar ($1) to one thousand dollars ($1,000), at the rate of five per centum (5%) ; For receiving and paying out all sums of money from one thousand and one dollars ($1,001) to eleven thousand dollars ($11,000), at the rate of two and one-half per centum (2^%) ; for receiving and paying out all sums of money from eleven thousand and one dollars ($11,001) up, at the rate of one per centum (1% ) .* On the death of one of two executors of an estate consisting of $100,000 of personalty over debts, the surviv- ing executor gets on his accounting the same commissions as if he were sole executor and also one-half commissions on all personalty undistributed on the death of his co-executor; while the executor of the deceased executor, gets for the latter's estate, full commis- sions on all personalty received, paid out and distributed by both executors up to the time of the death of the deceased executor, and also one-half commissions on all personalty undistributed at the time of such death — ^thus making up two full commissions in all.' All commissions on an estate for which there are several executors should not be paid to one of them when all their acts except formal ones (in which all participated) were done by their accountant and attorneys.' When equitable conversion is needed to make an estate amount to $100,000 so as to give each of several executors full commissions it will npt be held that there is such conversion when it is not essential to carry out the testator's intentions and the will contains no imperative direction to sell.* There is no reason why a life tenant of a trust fund who is also one of several trustees there- 5 C C. P. § 2753. » Matter of Arnton, 106 A. D. « C. C. P. § 2753. 326 (1905), or 94 Supp. 471. ' Matter of Estate of Newland, 7 » Matter of Hardenbrook, 23 Misc. Misc. 728 (1894) or 28 Supp. 496; 538 (1898), or-52 Supp. 845. But old Code, § 2736. see note 1 to § 371, infra. 405 NEW YORK ESTATES AND SUBROGATES § 362 of should not receive the same commissions as her cotrustees upon the corpus of the fund.^" When an accounting is of income only, commissions are , chargeable at the same rate as on principal ; but on the interest of the beneficiary.** ; Commissions are properly cohiputed' on the income of each' of several trusts held by a trustee for distinct beneficiaries, although he make no actual division of the trust funds into several parcels." . . ' § 362, Id.: Of Public Administrator. — The comtnission, compen- sation, legal assistance and office expenses allowed public adminis- trators are treated in the note ** under a separate heading for each *•• Robertson v. De Broulatour, 188 same commissions as are allowed by N. Y. 301, 80 N. E. 938 (1907). law to executors, or adm,inistrators, ** Matter of Smith, ,8,6 Misc. 136 after deducting from' such moneys or (1914), or 149 Supp. 131, old Code, property all actual and necessary ex- §§2730, 2802, new Code, § 2753. penses; but aU that such public ad- *^ Clute V. Gould, ■28 Hun, 348 ministrator can receive for his own (1882). , ; , is a salary for his services to be fixed , ** New, Torjc Co. : — The public ad- by the • Board of Estimate and Ap- ministrator of New York county can portionment of the City of New York retain a commission, over and above upon ' the recommendation of the all expenses, upon all moneys that surrogate of Kings county, to be come into ■ his hands, at the rate Of paid and i-aised each year in the $5;,, upon $100,; ;upon all sums re- same manner as; other county charges eeived ,from any one estate not ; ^%- are raised and paid. Any fees or ceeding $2500; and upon all sums so emoluments received by the public received exceeding $2500, at the rate a:dministrator of Kings eouiity in of $2.50 upon every' $100. This com- addition to his ^salary, whether re- mission is preferred to any debts or- eeived as commissions, costs or froin claijns exeeptiiig funeral, charges, any source whatever, he must pay The public administrator must pay into the Treasury pf the City of New each month into the treasuiy of the York monthly; ahd must aecoihpahy City of New York -all such eommis- such i monthly payments by a sworn sions and all costs received by Mjn statement in such form as ithe comp- frpmany source whatever; and must troller of the City of. New York accompaiiy such monthly payments shall prescribe, showing in detail the by a Sworn Statement, in ' stich form 'cbsts and commissions received and as the comptroller of the city of allowed to the Public: Administrator. New York sh,all, prescribe, , This ,(C. , C. P. § 2594.) A suitable statement, with a detailed list, o^ "ffl"?? ^or_ the public administra- eosts and commissions, must be pub- tor , shall be provided in one of lished monthly I in the- City Record, the ' county buildings in the coun- The public administrator cannot re- ty of Kings; A counsel and ceive to his own use any fees or clerk to the public , administrator emoluments in addition to his salary, shall be appointed by" the surrogate (L. 1898, e; 230, § 3, "Public Admin- of Kings county'. The salaries of istrators" Law). such counsel and clerk shall be fixed Kings Co.: The publie, admiriis- by the Board of. Estimate and ap- trator of Kings County is entitled to portionment of the City of New York retain (but not for his own use) upon the recommendation of the from all moneys or property of any surrogate of Kings county. Such intestate that come into his hands the salaries shall be raised and paid each 400 §§ 3()3,, 364 ADMINISTRATORS county. The public administrator of Bronx county, acting as administrator of an estate, is entitled to double the commissions allowed by law to an administrator.^* § 363. Id.: Of County Treasurer as Administrator. — A county treasurer appointed administrator is allowed the same fees for his services as are allowed by law to administrators. '^ These fees are in addition to the salary and fees allowed by law to a county treas- urer.^® A county treasurer appointed administrator may employ &n attorney to act for him as such administrator other than the one, if any, appointed to act as the county attorney, or the ofKcial at- torney of such treasurer." § 364. Id.: Commissions, Double. — When the will shows an in- tention to separate the functions of the persons named in it as exec- utors and trustees, such persons are entitled to full commissions as executors on the value of property turned over to themselves as trustees.^' To entitle one person to commissions first in the char- acter of executor and then in the role of testamentary trustee, the will must contemplate a severable and separable action in each ca- pacity at different stages of the administration.*^ Persons named year in the same manner as other trator of any county wherein the of- eounty charges are raised and paid flee of county treasurer has been ( C. C. P. § 2594) . abolished and no provision has been Richmond Co.: — The public ad- specifically made by statute for the ministrator of Richmond County apuointment of a public adminis- may retslin for his services from all t, or receives a salary of $1200 per moneys or other property belonging, annum, payable monthly by the to any estate that may come into his county in the same manner as other hands, after deducting all actual and county charges. (L. 1900, c. 501, § 4 iiecessary expenses, the commissions "Public Administrators" law), allowed by law to executors or ad- ** Matter of Hammer, 94 Misc. ministrators. L. 1899, c. 486, § 2 36 (1916) L. 1912, c. 548, § 3, (Consol. Laws, tit. "Public Adminis- as amend'd L. 1913, c. 825, (Bronx trators"). County Act) old Code §§ 2667, 2668, Erie Co.: — The public adminis- which are incorporated in Bronx trator of Erie county is entitled to County Act by its terms, so that retain from all moneys or property C. C. P. § 2593, as amend'd L. 1914, that come into his hands, after de- e. 443, taking place of old Code § ducting all actual and necessary ' ex- 2668 in other cases, does not affect penses, the same commissions as are application of old Code § 2668 to allowed by law to executors or ad- Bronx public administrator. ministrators. (C. C. P. § 2395.) - " C. C. P. § 2593. Bror^x Co. : The public administra- ^® Id. tor of Bronx county is probably gov- *'' Id. erned as to compensation by the same ** Matter of Freel, 49 Misc. 386 laws which apply to the public ad- (1906), or 99 Supp. 509; old Code, ministrator of New York county. (L: § 2730, new Code, § 2753 ; Matter of 1912, e. 548, §§ 3 and 11.) Beard, 77 Hun, 111 (1894), or 28 In other Counties where no County Supp. 305. Treasurers. The public adminis- *® McAlpine v. Potter, 126 N. Y. 407 . NEW YORK ESTATES AND SURROGATES § 364 both as executors and trustees are entitled to full commissions in each capacity on the corpus of the estate when the will shows a separation of their functions and duties in each capacity; those as executors clearly precede those as trustees ; and no provision is made for the coexistence of the two classes of functions' from the be- ginning to the end, continually — especially when a surrogate's de- cree has directed them as executors to transfer to themselves as trustees the estate and they have done so.^" Double commissions are proper when there is a separation of the fund held first as execu- tor and then as trustee and active duties are put on the executor to keep the fund invested.^ Double commissions should be allowed persons appointed both executors and testamentary trustees when the will contemplates their holding the estate first as executors and then as trustees, and necessitates a division of the estate, part of which is to be held as trustees.* To entitle a person to double com- missions actual entrance upon the duties of trustee must have taken place, the most satisfactory — -though not the only — .proof of which is a judicial decree of settlement of his accounts as executor and a transfer of the trust fund to himself as trustee pursuant to such de- cree.' To entitle one named both executor and trustee in a will to double commissions it is necessary not only that it contemplate a separation of his duties as executor and trustee and fix a time at which one shall end and the other begin but that a judicial decree shall have been made settling his accounts as executor, wholly dis- charging him as such and leaving him acting as trustee, or that a real severance shall have been made of the trust fund from the general assets.* Double comniissions cannot be allowed unless the will contemplates a separation of duties on the part of the persons seeking commissions as executors on the one hand and as trustees on the other.^ The duties of trusteeship must actually be entered upon either by a real severance of the trust fund from the general assets or by a judicial decree wholly discharging the executor and leaving him acting and liable only as trustee.* No double com- missions can be allowed persons who are to administer both the real and personal estate from their appointment to their discharge 285, 27 N. E; 475 (1891) ; Matter of ' » Olcott v. Baldwin, 190 N. T. 99, Slocum, 169 N. Y. 153, 62 N, E. 130 82 N. E. 748 (1907). (1901) ; Matter of Martin, 196 N. Y. * Matter of Hogarty, 62 A. D. 79 415, 90 N. E. 46 (1909). (1901), or 70 Supp. 839. "" Matter of Babcock, 52 Hun, 510 * Phoenix v. Livingston, 101 N. Y. (1889), or 5 Supp. 634. 451, 5 N. E. 70 (1885) ; Johnson v. 1 Matter of Jaelsson, 32 Hun, 200 Lawrence, 95 N. Y. 154 (1884). (1884). * Johnson v. Lawrence, supra: 2 Matter of Hunt, 121 A. D. 96 Matter of Slocum, 169 N. Y. 153, 62 (1907), or 105 Supp. 696. N. E. 130 (1901). 408 § 364 ADMINISTEATOES at the same time and in the same manner, without the require- ment by the will to set apart any portion at any time for a specific purpose, and with the ability to fully carry out the will if they act in one capacity only, viz., either as executors or trustees.'' Whether persons appointed by will get commissions both as executors and testamentary trustees depends on the terms of the will, i. e., wheth- er in addition to the ordinary duties of administering the estate as executor there is set a point of time when such duties cease and the same or different persons are by the will directed to manage the estate as trustees.* A test to determine whether persons named in a will act as executors only or also as trustees (so as to determine their right to double commissions) is : Upon whom would devolve the appointment of their successors should they die or resign?* Another test is : Is there a gift to the executor in trust, resulting in a legal title in him? ^^ In determining whether persons named executors and trustees in a will who have received commissions as executors are also entitled to have them as trustees a test to apply is whether an administrator c. t. a. or a new trustee would have to be appointed if they died.^* When the functions of persons appointed both executors and tes- tamentary trustees coexist and run in each capacity from their tes- tator's death to a final discharge, inseparably blended, they are not entitled to commissions first as executors and then as trustees on the principal of the estate; but when their functions as executors are to be first discharged and then they are to assume the duties of trustees and as such manage the trust funds to the final termination of the trusts, and the surrogate settles their accounts as executors and orders them to pay to themselves as trustees the trust funds, their functions as executors end and they have the right to further commissions as trustees.** When the line of distinction between duties of executors and of trustees is not very clearly drawn in a will, i. e., such duties do not appear susceptible of severance or dis- tinction at any particular place or time indicated, and the repre- sentatives may as executors fully and completely carry out the duty of administering the trust created by the will, they should not be allowed double commissions." A person named executor by a will ' Matter of Ziegler, 168 A. D. 735, " Matter of Waterman, supra. 154 Supp. 652 (1915). "Matter of Mason, 98 N. T. 527 'Matter of Union Trust Co. 70 (1885.) A. D. 5 (1902), or 75 Supp. 68 dis- i« Matter of WiUetts, 112 N. Y missed 172 N. Y. 494, 65 N. E. 259; 289, 3 L.K.A. 145, 19 N. E. 839 Matter of Waterman, 60 Misc. 292, (1889). 113 Supp. 280 (1908). i» Matter of Blun, N. Y. L. J. 9 Matter of Union Trust Co. su- Mich. 28, 1906 (N. Y. Surr.) pra. 409 NEW YORK ;-ESTATE& AND SURROGATES §. 364 which requires him to pay a legatee the amount of his legacy. at a postponed date and in the meantime the income on it yearly, is not saddled with any duty as trustee in addition to his duty as executor so as to entitle him to double: commissions.^* Neither are double commissions allowable to executors required by the will to hold the corpus of the estate until the death of testator, widow and son, and thento pay to legatees to be identified by the description, conditions and contingencies specified in the will, , and in the meantime to pay the income to life tenants ; especially if they have never formally closed their duties as executors and begun them as trustees by a judicial settlement of the executorial- ; aceounts.'^^ There is no such separation of duties as executors and trustees as to entitle persons named executors to double commissions when they are directed by the will to invest, a legacy, pay the interest to tihe legatee till he is twenty-one years old, and then to pay him the principal and its accumulations.^^ Persons appointed executors and testamentary trustees are not entitled to double commissions on property* which they are directed to keep safely invested for two lives, but not longer than ten years, meanwhile paying the, income to the life tenants, and at the end of the period distributing the estate,^'' but on funds resulting from such distribution which they paid themselves, and held in trust at the end of the ten year period they are entitled to double commissions, though the only act of theirs to indicate that they considered their functions as executors had ended and those as trustees had begun was changing their bank account from their names as executors to their names as trustees." Persons interchangeably denominated "executors" and "trustees" in a will, having a power of sale which they have exer- cised, cannot have commissions as trustees in addition to those as executors for the amount of a legacy paid to a legatee on his be- coming of age pursuant, tq, the will, when the payment is made not out of a separate fund held as such but out of the general fund in the hands of the executors.** One named both executor and trustee who always kept his accounts in, the former capacity, never sepa- rated the estate assets into trust; funds, or had ever been discharged as executor, is entitled to conimigsions only as executor.^" , , An intent to have executors hold as trustees from a point of time ■' 1* McAlpine v. Potter, 126 N. Y. ing McAlpine v. Potter, 126 N Y 285, 27 N. E. 475 (1891). ' : 28'5, 27 N.iE. 475. "Matter of Sloeum, 169 N. T. " jyT^tter of Martin, supra. 163, 62 N. B. 130 (1901)., ' "Hall v. Hall, 78 N. Y. 535 " Lansing V. Lansing, 45 Barb. 142 (1879). (1865). ' «" Matter of Reed, 45 A. D. 196 "Matter of Marten, 124 A., D. (1899), or 61 Supp. 50. ,: 793, 109 Supp. 217 (1908), foUow- 410 §31)5 ADMINISTRATORS f^ubsequent to the testator's death appears when the will separately states the duties of executors and trustees and gives a stated sum to a child to be paid at once on the testator's death to enable the child to meet necessary' expenses incurred before payment of in- come on the trust fund.^ When a will specifies certain executorial duties and then creates a trust of the residue of the estate after such duties are done those named both as executors and trustees are en- titled to commissions in each capacity; and the fact that they are pen jitted as trustees to retain the same securities which they held as executors' has no bearing on their right to double commissions, because these commissions depend on rules of law and not on the extent of trustees' labor.* Double commissions are properly award- able when, after the sale of a testator's real estate and the payment of his debts, the executors paid to the trustees. the payments direct- ed by the will to be paid over to them.' A bequest to one named executor to pay debts and funeral expenses, income to a legatee for life, and on the latter's death the principal, to another if twenty-one, and if not twetity-one, ;the income till twenty-one and then the prin- cipal, entitles such executor to double commissions.* When execu- tor's iurji over to themselves as trustees a balance found in their hands on their accounting by the surrogate's decree, this is tanta- mount to a discharge as to the property so turned over, although their executorial duties continue as to other assets realized and new liabilities incurred.^ Under a will directing payment of debts, be- queathing a cash legacy and directing the residue of the estate to be held in trust for life tenants, the duties of executors and trustees are separate and distinct and the person named in both capacities are entitled to coinmissions in each capacity.® A corporation ap- pointed executor and given by will a sum in trust to pay the income for life is entitled to commissions both as execiitor and trustee a.s it has no title as trustee till it has been paid the sum by itself as executor.'' § 365. Id.: Commissions, Full to Three or Less.— If the gross value of the principal of the estate or fund accounted for by ad- ministrators, executors, guardians or testamentary trustees amounts to $100,000 or more, each administrator, executor, guardian or 1 Olcott V. Baldwin, 190 N. Y. 99, ^ Maboney v. Bernhard, 45 A. D. 82 N. E. 748 (1907). 499 (1899), or 63 Supp. 642; aff'd 8 Matter of Garth, 10 A. D. 102, 169 'N. Y. 589, 62 N. E. 1097. 41 Supp. 1022 (1896). 6 Matter of Textor, N. Y. L. J. » Matter of Crawford, 113 N. Y. Mch. 15, 1916. ' 560, 5 L.R.A. 71, 21 N. E. 692 ''Matter of Bfoward, N. Y. L, J. (1889). Mch. 28, 1916, (N. Y. Surr.) '* Matter of Emerson, 59 Hun, 244, 12 Supp. 788 (1891). 411 NEW YORK ESTATES AND SURROGATES § 365 testamentary trustee is entitled to the full compensation on principal and income allowed a sole administrator, executor, guardian or testamentary trustee; unless there are more than three, in which case the compensation to which three would be entitled must be ap- portioned among them according to the services rendered by tJiem, respectively.^ When one of several executors has rendered no services the surrogate cannot apportion commissions to him.* Executors cannot have commissions on the principal value of realty held by them as such even though its equitable conversion has been effected by a testamentary power of sale to them ; althougli its value can be considered in determining if the estate amounts to $100,000 in excess of its debts so as to give them commissions on the income.^" When trustees account for incomes they are required annually to pay over, they cannot get full commissions each unless the income exceeds $100,000, irrespective of how much principal there may be or how the decedent's estate may have beehi^^ The value of un- sold realty cannot be considered in determining whether a trust fund exceeds $100,000 in value." Trust realty, not to be dis- tributed or delivered cannot be taken into consideration in determ- ining whether the gross value of the principal is over $100,000 so as to entitle to double commissions.^* The gross value of the principal of a trust estate or filnd determines whether each of two trustees shall have full commissions on principal and income; and the amount of the , income has nothing whaitever to do with the right to more than one full commission; so that if the gross value qf the principal and income together exceeds $100,000, or the income alone exceeds $100,000, but the principal alone is under $100,000, only one commission can be allowed.^* As testa- mentary trustees are not entitled to commissions on the value of un- sold realty constituting part' of the trust estate, the value of such realty cannot be considered in determining whether the principal of the fund is $100,000 or more, so as to give each trustee his full com- * C. C. P. § 2753. shall be considered as money in mak- » Matter of Manica, 31 Hun, 119 mg computation of commissions!" n883) ^* Matter of Grossman, 92 Misc. "Estate of McLaren, 6 Misc. 483, 656 (1915), C C P. § 2753, para. 27 Suppi 289 (1894). See note 12. S- 14^* f ' ""? r ' ' ^''^''^- 00 ^r iiTi/r it * Ttr-ii ii 110 XT v "Matter of Grossman, 92 Misc. 289 19 N. E. 690 (1889). 2753— the principal consisted largely i^Chisolm V. Hamersley, 114 A. of realty the value of which could D. 565 (1906), or 100 Supp. 38— new not be considered in determining Code, § 2753 now provides "the whether the principal was worth value of any real . . . property $100,000, as it was not to be distrib- received, distributed or delivered, uted or delivered. 412 § 366 ADMINISTRATORS missions.** In computing tarustees' commissions principal and an- nual interest must be separately considered, so that they are not each entitled to full commissions on the income unless it alone ag- gregates $100,000 or more." § 366. Id.: Commissions, Withholding. — A surrogate cannot to- tally abate the compensation of one of three executors of an estate amounting in net to over $100,000 except for such executor's mis- conduct which made the loss.*" It is not ground for allowing an executor only one-half commissions that h6 made out his account for the purpose of getting commissions to which he was not entitled when there is no proof either of misconduct or mismanagement.*' An executor will not be deprived of commissions because of an act of discourtesy to a beneficiary under the will, or an omission to seek a construction of the will, when his reading of it- had some support in the authorities and he has rendered faithful services; *^ nor for failure to obtain possession of a note which passed during the decedent's life from his hands to those of the maker.^" Even in cases of misconduct or gross negligence it is at least doubtful if the law does not require the allowance of commissions; and when no imputation of this rests upon the trustees their title to commis- sions is in no doubt.* A trustee who has failed properly to per- form his duties and has been guilty of irregularities is nevertheless entitled to commissions when his failure and guilt have been due to errors of judgment rather than to gross negligence or deliberate misconduct.* When trustees are allowed to resign for their own convenience and business interest it will only be on condition that they waive commissions on the principal of the trust fund.' Com- missions should be denied a trustee who, after. selling trust securi- ties, made no effort to reinvest the proceeds but mingled them with his own funds in bank and then turned them over to his sister without anything to show fpr- them.* Commissions are properly denied a testamentary trustee who kept no account and used the trust fund in his own business, because the trust was never execut- i^Est. of Dimond, N. Y. L. J. (1902), or 76 Supp. 61; afE'd 172 Oct. 31, 1914 (N. Y. Siirr.). But N. Y. 617, 64 N". E'. 1118. see note 12, supra. * King v. Talbot, 40 N. Y. 76 1* Matter of Hplbrook, 39 Misci (1869>. 139 (1902), or 78 Supp. 972. « Est. of Weil, N. Y. L. .1. Meh. 5, i' Matter of Kenworth, 63 Hun, 1915 (N. Y. Burr.) 165 (1892), or 17 Supp. 655; old * Matter of Curtiss, 9 A. D. 285 Code, §'2736. (1896), or 37 Supp. 586, and 41 " Matter of Butcher, 102 A< D. Supp. 1111. 410 (1905), or 92 Supp. 418. * Matter of Wotton, 59 A. D. 584 "Matter of Ingersoll, 95 A. D. (1901) or 69 Supp. 753; afPd 167 211 (1904), or 88 Supp. 698. N. Y. 629, 60 N. E. 1123. 20 Matter of Baker, 72 A. D. 211 413 NEW YOEK ESTATES: AND; SUBROGATES § 3(57 ed^nfj the baaisrof the award of commissions, viz., servicesMn the execution of the trust, is ;wanting.* A guardian is properly de- nied commissions who did not deposit in bank; like other sums he received, an amount of the ward's estate which he received from a prior guardian, and who paid no interest to the ward oil or ac- counted for the principal of, a loan to him before he biecame guar'd- ian by his predecessor guardian.* Com-missions are properly with- held from one appointed administrator d. t. a. and successor-trustee on his removal for.ifailureto furnish proper sureties on his bond, insofar as the estimated value of realty devised him in trust, because lie knew the law required security and he had not completed his trust.'' Commissions are properly deiiied : a testamentary trustee removed because of incompetency and^ unfitness to execute the trust and improvidence in managing the fund, for the reason that to the trustee's fault is attributable the fact that the: trust remains to be executed by a new trustee and will be burdened with the latter 's commission^.* ; . ■ . i ■ ■ ■ , . ' § 367. Id.,: , Commissions, Waiver, — One giviiig a receipt for a sum as his fee as executor of an estatepursuant to a voluntary set- tlement of account many years before a court accounting, on which the parties acted, is barred from any further claim for fees." An agreement by some equally entitled with others. to letters that the latter be, allowed letters and that the former make full waiver in open court, for all compensation for services as administrators bars them. from, commissions.'" When four trustees committed the management of< the trust to one of their number for ten consecu- tive years and tc another not of their number for the following ten consecutive • years, meanwhile rendering periodic statements to the beneficiary showing a five per cent charge in apparent full payment of the trustees' compensation, they can claim no more.'* Although executors fail to retain enough funds to pay themselves their com- missions' they do ' not therefore lose them ; but the surrogate may award them though -there be not then sufficient prbpeifty' to admit of their immediate payment.'* A testanjentary trustee, who, pur- suant to decree of the surrogate's court,' turns ' over tfie tTiist fund to »Cook V. Lowry, 95 N. J. 103 (1893) or 23 Supp. 725, affd 140 (1884.) :, ^ ■ ' ' N. Y. 421, 35 N. E. 660. 8 Matter of Ward, 49 .Misc. 181, »•> Matter of HopMns, 32 Hun, 618 98 Supp. 923 (1906.) (1884):^ aff'd 98 N. Y. 636. ' '' Matter of Baker, 35 Hun, 272 " Savage v. Sherman, 24 Hun, 307 (1885.) M (1881), modified 87 N. Y. 277. * Matter of WiUiamburgh Trust '* Matter of Prentice, 25 A. D Co. 60 Misc., 296, 113:'Supp. 276 209 (1898), 249 Supp. 353; aff'd 160 (1908.) ..,•'.,, . N. Y. 568, 55 N. E. 275. » Matter of Hodgman, 69 Hun, 484 414 §368 ADMINISTRATORS his cotrustee without retaining commissions cannot g«t from the surrogate's court an order for the repayment of them to him he- cause the surrogate's court has no jurisdiction so to order. ^^ § 368. Id.: Successive Representatives. — When successive or dif- ferent letters are issued to the same person on the estate of the same decedent, including a case where letters testamentary or letters of general administration are issued to a person who has been previ- ously appointed a temporary administrator, he is entitled to com- pensation in one capacity only, at his election ; except that when he has received compensation in one capacity he is entitled to the excess, if any, of the compensation allowed by law above the sum which he has already received in the other capacity.^* Executors who resign before final execution of their duties are entitled to no commissions at all on the corpus of the estate — otherwise by suc- cessive resignations and appointments of successors comrnissions would eat up the estate.^^ An executor discharged on his own mo- tion before final completion of his trust duties is entitled to half- commissions only, or such other amount as the surrogate in his discretion fixes.^* Waiver of his commissions on the principal of the trust fund may be required as a prerequisite to permission to him to resign^" One voluntary resigning as testamentary trustee before the completion of his duties should not be allowed any com- pensation, for his services because haying oiice undertaken his trust duties he should not be permitted to put the fund to an expense greater than it would otherwise have to bear by failing to complete such duties.^' A resigning trustee is not entitled to commissions for paying the priiicipal of the fund to his successor. ^^ Payments by a resigning trustee to a substituied trustee are not such pay- ments, within the statute, as entitle the payor to commissions.^" A resigning trustee, who had acted for fourteen years and because of his reputation had obtained pergonal sureties to justify without pay to them, is entitled not only to cojoamissions on annual income but to an amount equal to the commissions on the trust principal, as though the trust had been terminated.* A testamentary, trustee whose resignation is accepted by the supreme court, which' appoints 13 Matter of Bevier, 17 Misc. 486, " Young V. Barker, 141 A. D. 801 41 Supp. 268 (1895.) (1910), or 127 Supp. 211, 1150. 1* C. C. P. § 2753. 19 Est. of Bibby, N. Y. L. J., Jan. IS Matter of Hayden, 54 Hun, 197 5, 1915 (N. Y. Surr.). (1889), or 7 Supp. 551; affi'd 125 «» Est. of Lanfer, N. Y. L. J., Nov. N: Y. 776, 27 N. B. 409. 4, 1914 (N. Y. Surr.). i« Matter of Douglas, 60 A. D. 64 * Matter of Gill, 21 Misc. 281, 47 (1901), or 69 Supp. .687. Supp. 706 (1897), the trust fund " Matter of Curtiss, 15 Misc. 545, was $18,000, and sureties had justi- 37 Supp. 586 (1896), aff'd 9 A. D. fled to the total of $72,000. 285, 37 Supp. 586, 41 Supp. 1111. 415 NEW YOEK ESTATES AND SURROGATES § 369 his successor, on the conseiii;' of those affected, is not entitled to com- pensation of course but must take sUch as the court awards him, because his trust is unexecuted and the reUef sought is of his own seeking." A second trustee appointed by the surrogate on the death of the original trustee is entitled, on his first intermediate account- ing, to one-half commissions for receiving the principal of the estate.* A person appointed by the supreme court to execute a trust devolved upon it by reason of the Original trustee's death is entitled to a compensation for his services as the court's agent, which is fairly paid by giving him (or his estate) if he shall have died before completion of his trust duties commissions at half the statutory rates not only on the moneys which came into his hands originally but also upon the moneys which he received in the course of his administration in the liquidation of securities which he originally received and which, as principal of the fund, he was bound to reintest.* The fact that the fund is to be turned over to executors or trustees appointed under the Will of the distributee, who has died, or that the substituted trustee is one of such execu- tors or trustees, does not affect his right to such commissions.' Keal property received by a successor trustee is not property "de- livered" under the statute so as to entitle him to commissions on its appraised value.* § 369. Id.: Commissions, On What Computed, On Principal, In General. — An administrator, executor, guardian or testamentary trustee is, of course, entitled to commissions oii all sums of money received and paid out by himJ Furthermore, in making compu- tation of commissions, the valtie of any real or personal property (not specifically devised or bequeathed) and the increment thereof which is received, distributed or delivered, is to be considered as money.' The distribution and delivery oi the property was held the determining factor on the question of allowing commissions on property,' under the surrogates' code effective Sept. 1, 1914, prior to the amendment of 1916, which made the value of any real or personal property (and the increment thereof) "recei-yed, distribut- ed or delivered," the basis of computing commi^ions." "The true rule for allowance of statutory commissions is this : Trustees « Matter' of Allen, 96 N. Y. 327 Sept. 25, 1915 (N. Y. Surr.), C. C. (1884.) ■ , F; § 2753. * Matter of Silliman or IngJam; 67 '''C; G. P. § 2753. Misc. 27 (1910), or 124 Supp. 622; « C. C. P. § 2753, as amended L. old Coae § 3320, new Code § 2753. 191 6v c. 596. * Whitehead v. Draper, 132 A. D. » Est. of Fischer, N. Y. L. J., Mch 799 (1909), or 117 Supp. 539. 3, 1915 (N. Y. Surr.). *Id. "L. 1916, c. 596, amending: C. C. 6 Est. of McLoughlin, N. Y. L. J., P. § 2753. 416 § 369 ADMINISTKATORS are entitled to commissions for receiving all moneys which con- stitute the corpus of the estate, and any additions thereto from in- crease of any kind, and thus the moneys upon which commissions are to be computed can never exceed the gross amount of the estate and its net income; and the moneys paid out upon which commis- sions may be computed are the moneys paid out of the estate for debts, expenses of administration and to legatees or other beneficia- ries, moneys which operate to diminish the estate as it exists in the hands of lie trustees and pass out of and away from the estate." " Commissions are not allowable on investments and reinvestrtients and moneys disbursed and received in the conduct of a business carried on to produce net income, as in such a case commissions are to be computed on the net income only which came to the corpus of the estate as an increase thereof. ^^ Commissions cannot be al- lowed on sums received and paid out in the management of a dece- dent's business by authorization in his will, because this is at best but a reinvestment of trust funds in buying and selling goods for the business.^' Executors are not entitled to commissions on the amount paid by them to a widow for her dower pursuant to an admeasurement thereof in a supreme court action." An adminis- trator appointed in a case of supposed intestacy is entitled to com- missions (on accounting to an executor under a will subsequently found and probated) on money collected by him, but not on sav- ings bank deposits, bonds and mortgages which he did not disturb or touch, as the latter are not moneys received.^* An administra- tor of a decedent whose estate consisted of stock in a broker's hands on a margin account is not entitled to commissions on the whole of the stock, but only on so much of it as is delivered to him after the broker's commissions have been satisfied therefrom.^* But if the decedent had pledged certain securities to secure a loan to him- self, on sale by the pledgee thereof by the representatives' directions, the latter are entitled to commissions on the gross proceeds of the sale, and not on the excess only of the proceeds over the indebted- ness" secured by the securities ; bepause the decedent retained owner- ship, to which the representatives succeeded, and the pledgee sold solely through the representatives' authority." Commissions are " Beard v. Beard, 140 N. Y. 260, « Matter of Hurst, 111 A. D. 460, 35 N. E. 488 (1893.) 97 Suppi 697 (1906.) 12 Beard v. Beard, 140 N. T. 260, " Matter of Mercantile Trust Co. 35 N. E. 488 (1893.) 210 N. Y. 83, 103 N. E. 884, old Code " Matter of Hayden, 54 Hun, 197 § 2730, new Code § 2753. (1889), or 7 Supp. 551; aff'd 125 N. "Matter of Bolles, Hull or Mor- Y. 776, 27 N. E. 409. ton Trust Co. 67 Misc. 40, 124 Supp. "Matter, of Lawrence,, 37 Misc. 620 (1910),,, executors, old Code § 702 (1902), or 76 Supp. 653. 2730, new Code § 2753. N. Y. E. & S.— 27. 417 NEW YOEK ESTATES AND SURROGATES § 369' properly allowed an executor on the value of assets received by hinij. never by him' converted into cash and delivered as such to a legatee ;. and upon the value put upon the assets by 'the legatee if he be an adult.^^ Executors are entitled to commissions on a legacy de- livered by them to a life- tenant on his giving satisfactory bond to the remaindermen, whether or no they reduce th« property to cash." 'When legatees elect to take securities instead of their cash value, executors get commissions on the value of the securities.^" Executors are entitled to commissions on the value of secuTities pos- sessed' by their testator when retained' by the testamentary trustees (who were the devisees and legatees of the residuary estate, and as such could elect to take the estate unconverted) "and when it was not necessary to convert the securities to pay debts ■ and legacies: because it is impolitic to encourage the salebj^ executors, in order to get commissions, of good investments, made by the testator.^ The value placed by the appraisers on such securities determines the amount on which commissions should be allowed when/ there has been no judicial determination of such value."' When a will leaves all the testator's personalty to one class of persons and all his realty to another suad appoints one executo-r for all the first, and ranother for all .the second class, each executor is entitled to commissions on the fund he represents.^ Commissions are jjroperly allowed execu^ tors on' the' price of realty sold by them subject to mortgages as distinguished from such price reduced by the amount of the mort- gages;! because they^ are liable for the price at which it is sold, and letting tlie mortgages remain is the same in effect as if they'paid the mortgages off and received' new ones from the purchaser.* A testa- mentary trustee is entitled to commissions on U. S. bonds when he has to collect their coupons and interest; care for them and divide part of the fund.* Persons acting as executors who deliver to them- selves as trustees securities constituting principal are entitled to (•omrilissions as. trustees tot receiving atid paying them out.® A trustee to pay the income to a beneficiary for life or widowhood and on death or remarriage to divide into several parts is entitled only to one-half coihmi'ssibns fbt/receivilig the undivided :^und as it ex- ists at the date of the accounting if the life beneficiary is still alive' 18 Matter of Ross, SiS' Mis6. 163, « Matter oif ' Curtiss, supra. (190Q), or 68 Supp. 373; 'Matter ot, Mansfield, 10 Misc. 19 Matter of Fleming, 51 Misc. 662, 296, 3l Siipp. 684 (1894)., ' 102 Supp. 204 (1906). *Cox v. Sch6rmerhorn, 18 Hun, ''"Martin v. Andrews, 59 Misc. 298 16 (1879). (1908), or 111' Supp, 40. « Matter of Moffat, 24 Hun, 325 1 Matter, of Curtiss, 15 Misc. 545 (1881). (1896), or 37 Supp. 580, aff'd 9 A. « Olcott v. Baldwin, 190 N. Y 99 D. 285, 37 Supp. 586, 41 Supp. 1111. 82 N. E. 748 (1907). 418 § 370 ADMINISTKATOKS ■ and a widow and not on the several parts into which the fund i& divisible on the life beneficiary's 'death or remarriage.'' When- over the time comes that trusts are terminated and the trustees have fully discharged their duties, the trustees are entitled to one-half commissions for receiving the ttUst funds and the other one-half for paying or turning them over to the beneficiaries, whether the funds be then in moiiey or in choses in action.* The statutory right of testamentary trustees to commissions for receiving and paying out all sums of principal entitles thein to commissions on the value of securities, both for receiving them and for paying them over.® No commissions are allowable on an amount received by testamenta^ry trustees from themselves on a previous accounting, but only on any additional income actually received.^" Trustees having a power of sale by the will cannot be allowed commissions on personal property applied to the improvement of the real estate until it has been determined whether they ha^'e exercised their pow- er of sale of such realty, for the reason that if they do exercise it they will get comrtiissibns on the whole atnouht realized (which will include the selling price of the pei^sonal property applied to its im- provement) ; and they would thus receive double ' commissions on such personalty if they were allowed them oh the personalty before they had exercised or finally not exercised the power of sale over the realty.-'^ Although the same trustees be appointed for each of several trusts, and the fiature of the estate makes it unsafe at once finally to devote specific securities to each trust, yet cbnimissiohs of the trustees can only be computed on the value of thid principal and income of each trust separately considered.*^ . ' ' § 370. Id. : On Specific Bfequests. — In making computation of commissions the value of any real or personal property specifically devised or bequeathed cannot be considered." No commissions are alloWable On a specific legacy." No commissions are allowable on stock sj)ecifi(?ally bequeathed.'^ Commissions cannot be allowed executors on moneys received. by them pu;. account of a mortgage executed by them on real estate specifically devised.'^ An execu- ■'Est. of Gordon, N. T. L. J., Feb. 139, 63 N. E. 63 (1902), old Code 27; 1915 (N. Y. Surr.). §§2730, 2810, ne* Cjode .§ 2753. 'Matter of Mason, 98 N. Y. 527 " C. C. P. § 2753. " (igg^) "Matter of Robinson, 37 Misc. "9 Robertson v. De, Brvdatour, 188 336(1902) or 75 Supp 490. N. Y. 301, 80 N. E. 938 (1907). , n«fin? ?f ^! ^ l f «nT^^lf7?iS '' ""'''■ '''' W& fl A.'&. ^89 ^St or 80 Supp. 1117 (1903). ^ 81 Supp! 393. ' "Spencer v. Spencer, 38 A. D. le Est. of Altman, 89 Misc. 697, 403 (1899), or 56 Supp. 460. 151 Supj). 1092 (1915), aff'd 155 i8 Matter of Johnson, 170 N. Y. Supp. 507. 419 NEW YORK -ESTATES AND SUEROGATES § 371 tor is entitled to commissions on securil3,€s contained in a safe de- posit box bequeathed in unequal fractional portions . to various legatees ; because such bequests are general and not specific in char-" acter.*'' An executor is entitled to commissions on a legacy salable partly in money and partly in goods at a valuation to be ascertained by him, because the only ground for excluding an executor from commissions on a specific testamentsiry gift is that no duty of ad- ministration falls on him in regard thereto as it vests primarily: in the legatee with the right to the executor only to regain it if need- ed to pay debts, while .on a legacy such as. the one in question ad- ministration is needed-^' The rule, that no commissions can be air lowed an executor on specifically beqiieathed property, as it is his duty to deliver it to the legatee as it is, does not hold as to a tempo- rary administrator; because the ijltimate delivery of property in kind by him is intended when he is appointed.'^ The commissions of a temporary administrator are based not simply on money actual- ly collected and disbursed, but upon the value of the whole estate re- ceived and passed over by him ; so that he is entitled to commissions on the value of shares of stock and a book account not taken pos- session of by him, and on legacies of stocks or shares in public funds, the shares of which are not particularized in the will, even though the testator at death possessed stock of an equal or larger amount than the legacy itself, as such legacies are not thereby made specific.*" § 371. Id.: On Realty.^The value of any real property and the increment thpreof, received, distributed or delivered must be con- sidered as money in making computation of commissions (but not of a specific devise).* The distribution or delivery of real or per- sonal property was held the determining factor on the question of " Matter of Fisher, 93 A. D. 186 change the rule set forth in Matter (1904), or 87 Supp. 567. of McKay, 37 Misc. 590, 75 Supp. " Matter of Kings County Trust 1069 (1902) :— viz., that an adinin- Co. 69 Mise. 531, 127 Supp. 879 istrator of an infant's estate cannot (1910.) have cottmtissions on the proceeds of " Estate of Egan, 7 Misc. 262 the sale of real estate devised the (1894), or 27 Supp., 1009. infant and paid the latter's general ^ Matter of. King,, 122 A.. D. 354 guardian when sold under a discre- (1907), or lOfe Supp. 1073." tipnary testamentary power of sale * C. C. P. § 2753 as amepded L. because the proceeds of such a sale 1916, c. 596, which added to the pro- are real estate and so remain when visions of C. C. P. § 2753, the italic- paid to an infant's guardian, as the ized words : "The value of any real infant cannot change their character or personal property, and the vn-r until he becomes of age and is able crement thereof, received, distrib- to elect to make the change. It also uted or deliyered shall be considered changes the rule laid down in eases as money in making computation of such as the following: Commissions commissions." This would seem to are not allowable executors on realty 420 § 371 ADMINISTRATORS allowing commissions thereon ; and when there was no such distri- bution or delivery, it was held the property could not be considered in computing commissions prior to the 1916 amendment to § 2753 of the surrogate's code which went into effect Sept. 1, 1914.* The 1916 amendment, as before noted, is apparently intended to per- mit the allowance of commissions on realty or personalty even if it be only "received." ' Trustees directed to set apart realty of their testator as a portion of the trust fund,* who convey it to themselves as trustees pursuant to the direction, are entitled to commissions on it. An administrator c. t. a. appointed on the death of both executors, at the same time that a trustee was appoint ed to carry out the directions in the will, is not entitled to com- missions of the sale of realty under a power which vested in the trustee alone.* Executors given authority to appoint commission- ers to allot realty and convey to devisees on such allotment, even though they, perform valuable services under such authorization, are not entitled to commissionls on the realty, because its title vested at once in the devisees and the executors' duty was not to sell but to partition.* Executors, though given power of sale, are not entitled to commissions on the value of real estate conveyed by a deed (in division thereof) by the owners under the will mter sese, and in which the executors joined.'' The giving by executors, on an agree- ment between devisees of realty for its partition inier sese, of a re- lease, does not entitle the executors to commissions on the realty's value when it passes by will directly to the devisees, and the execu- tors have only a discretionary power of sale over it, and the will di- rects that legacies shall not be charged on the real estate, and there is a large surplus of personal estate over the amount needed to pay legacies and debts.* Executors are entitled to commissions on the proceeds of land sold by them under a direction in the will so to do.® Commissions are allowable to an executor on the value of devised them in trust for certain per- * L. 1916, c. 596, amending § 2753 sons, over which they had a power C. C. P. of sale which they did not exercise, * Roosevelt v. Van Alen, 31 A. D. when the personal estate is aniple 1, or 5,2 Supp. 304. for administration purposes and the * Matter of Paton, 41 Hun, 497 beneficiaries of the real estate trust (1886.) have elected to take the realty un- * Bruce v. Lorillard, 62 Hun, 416 converted, as there is no equitable (1891), or 16 Supp. 900. conversion from the wording of the '' Matter of Tilden, 44 Hun, 441 trust clause in the will alone. (Mat- (1887.) ter of Duncan, 81 Misc. 575, 143 * Matter of Boss, 33 Misc. 163 Supp. 492 (1913). (1900), or 68 Supp. 373. 2 Est of Fischer, N. Y. L. J., Mch. » Matter of Prentice, 25 A. D. 209, 13 1915 (N. Y. Surr.) C. C. P. § 49 Supp. 353 (1898), aff'd 160 N. Y. 2753 568, 55 N. E. 275. 421 NEW YORK, ESTATES AND SURROGATES § 371 realty, the title to which is vested in him by reason of the extin- guishpaent of an equity of redeniption therein, foreclosure or other- wise, of a mortgagei thereon given as s<5eurity for an indebtedness to the testator and which came, to (the exeeutor's hands; becaus^: the debt secured by the mortgage was an asset in the executor's, possesr sion on which he was entitled to commissions.^" When real estate passes directly to, trustees by devise and is subject to no duty on the part of the executors as such except so far as they are given;power of sale, the executors' commissions will be cojnpiited only on the value of the personal estate plus so.muchflf the reaL estate as is sold.*' An, executor can have, no ; commissions on the proceeds of the, sale of real estate of his testator devised by the latter's will di- rectly to, the testamentary trustee, when, the proceeds never reached the executor's hands.i'^ Executors can have no commissions on realty devised, to them as trustees under a, will the terms of which required its gale so as to effect its conversion into personalty, if the power to, sell; the land -was, not given to the, executors as $uch, as they cannot have compensation as executors for I heir duties as trustees/* JElealty cannot be considered in computing- commis- sion^ of .testarnentary trustees upon an accounting when there is no delivery or distribution of it,** Executors are not entitled to com- missions on the value of real estate over which they are given a discretionary power of sale which they have not exercised and the trusts in w"hich terminate at once on the death of the life bene- ficiaries, and the remainder in which are directly disposed of and vested by the testator.*' Commissions are not allowable on realty^ held in trust which remains unsold, under a power to sell and rent, as commissions are only allowed on the basis of sums re- ceived and paid oiit and passing, therefore, through the representa- tives' bands; while unsold lands at the close of the trust pass to the possession of the remaindermen not through any title derived from the trustees but by force of the original devise.*^ Trusiees are not entitled t,o cc^mmissions, on rents collected by them after the life tenant's death or on real estate over which they were given power of sale which they did not exercise; when the trust ceased on the life tenant's death." Executoi:s are not entitled to commissions on . l" Matter iof: Ross, 33 Misc. 163 16, 1915, N. Y. Burr. So held before (1900), or 68 Sapp. 373. ; 1916 ,amendment to C. C. P. § 2753. ,"In re Ring (Cordes),,N. Y. L. " Matter , of Tucker, 29 Misc. 728 J. Feb. 24, 1915 (Kings Surr.) (1899), or; 62 Supp. 1021. *^ Matter of Waterman, 60 , Misc. ,*^ Phoenix v. Livingston, 101 N 292, 113 Supp. 280. (1908). ,,i, , Y. 451, 5 N. E. 70 (1885). "Matter of , MoGlvnn, 41 Misc. '''Est. of „ Suarez, — .Mi^-c. — 156 ,.(19.03), or ,83 Sijpp., 975. ;. (1916), N. Y. .L,. J., Mar. 30, 1916, >*Est. of Petry,,N. Y. L. J., Nov. N. Y. Surr. 422 §372 ,:. ADMINISTRATOES . - real estate the title to which on probate of the .will at once devolved upon them as trustees subject to executorial: power of sale so far as needed to complete, their duties, when no such sale was had." Executoi-s talking by will the legal title to real estate with complete power of sale, to invest, collect the income, rents, etc., and apply it to the use of beneficiaries, are entitled, as trustees, to commitjsion? not only on the rents but on the fair value of the property as well.^* . Executors empowered to convert real estate into personalty are entitled to commissions on the real estate affected.^" Upon the disposition of real property of a decedent by an. executor or adminis- trator, the surrogate must allow him his ■ commissions out of the proceeds of the sale brought into court.^ ' § 372. Id.: When Payable. — The general rule is that commis- sions cannot legally be taken before settleiiient of the trustee's ac- counts.* An exception is when the trustees settle with the bene- ficiaries and pay out the residue of income or of the estate.* The rule that executors are chargeable With intferest on commissions taken by them before they are allbwed on their accounting in court, from the time they tate them till the time they are so allowed them, does not hold when their court accounting is had subsequent to a settlement had between them and the beneficiaries, under which a distribution was made and pursuant to which the executors retained their commissions, and when at the time of the settlement the beneficiaries agreed to examine the executors': account and re- lease them without a judicial settlement.* Commissions cannot be taken by an executor before his accounting.^ When an executor presents his accounts for settlement so that after a decree is ren- dered thereon he will no longer act as executor but as testamentary trustee he is entitled on that accounting to receive his full commis- sions as executor.' When persons are named and act both as exec- utors and trustees, the fixing of their commissipns as trustees should be postponed till their final accounting as such, and only their executorial commissions should be allowed on their accounting as executors.'' While commissions are allowed a trustee for all his 1* Matter of Wanninger, 120 A. * Beard v. Beard, supra. D. 273, or 105 Supp. 4, afE?d 190 * Matter of; Franklin, 26 Misc. 107 N. T. 527, 83 N. B. 1133. (1899), or 56 Supp. 858. 19 Matter of Martens, 16 Misc. 245 ^ In re Estate of Richardson, 2 (1896), or 39 Supp., 189. Misc. 288 (189?), or 23 Supp. 978. 20 Matter of Blum, N. Y, L. J., « Matter of Rafferty, 52 Misc. 69, Mch. 28, 1916 (N. Y. Surr.). 102 Supp. 432 (1906). , , 1 C C. P. § 2749. : ' Matter of Tucker, 29 Mise. 728 2 Beard v. Beard, 140 N. Y. 260, (1899), or;, 62 Supp. 1021. 35 N. E. -488 (1893), old, Code § . 2802, new Code § 2753. 423 NEW YORK ESTATES AND SURROGATES § 373 services, yet it is proper to award him one-half commissions for re- ceiving trust funds from himself as executor.* The commissions of an administrator, executor, guardian or tes- tamentary trustee are payable on the settlement of his account.* Upon the disposition of real property of a decedent by an executor or administrator, the surrogate must allow him his commissions out of the proceeds of the sale brought into court." § 373. Id.: Commissions on Income.-^If an executor acting as trustee, or a trustee or a guardian is required to receive income and pay it over, and he pays it over and renders an annual account to the beneficiary of all his receipts and disbursements on account thereof, he must be allowed and may retain the same commissions on the amount so accounted for as he would be allowed upon prin- cipal on a judicial settlement." If he does not reinder such an annual account, he must be allowed his commissions upon the total income upon his judicial settjpment, and such commissions on in- come are then, payable out of any money or property payable to the beneficiary.*^ Trustees are entitled to commissions on income paid each year notwithstanding, their failure to deduct them from the incQme before making the annual payments.*^ The rule was formerly to the contrary.** Although a trustee pays the income of a trust fund each year to the life bene- ficiaries without deducting his commissions therefrom, he is never- theless entitled, on his JTldicial accounting, to commissions on the entire amount of income received and paid out'; but not to commis- * Matter of Wiiletts, 112 N. T. waiver of any claim to such commis- 289, 19 N. E. 690 (1889). ! sions: otherwise the beneficiaries '0. C. P. § 2753. would have years of plenty when no *" C. C. P. § 2749. commissions were withheld and a ** C. C. P. § 2753. ^ year of want every so often when *^ C. C. P. § 2753. commissions were at one time with- in Est. of Weil, N. Y. L. J., Mch. held for several back years. Olcott 5, 1915 (N. Y. Surr.). - v. Baldwin, 190 N. Y. 99, 52 N. E. 1* When a testamentary trustee has '748 (1907). Testamentary trustees paid over all the income of the trust waive their claims to ^ commissions on fund without deducting his commis- income by paying over to the bene- sions thereon he will be held to have fleiaries all the income without re- waived them. Matter bf Haight, 51 serving their commissions therefrom, A. D. 310 (1900), or '64 Supp. 1029. even though thei'e has' been no ac- A testamentary trustee who omits counting between them and such to deduct or tetain from income, an- beneficiaries, as an accounting is not nually received and paid out by him, necessary lawfully to enable them to his commissions, cannot thereafter retain their commissions. Cook v. claim them. Matter of Harper, 27 Stockwell, 206 N. Y. 481, 100 N. E. Misc.' 471 (1899), or 59 Supp. 371. 131, Ann. Cas. 1914B, 491 (1912)— Failure by trustees to deduct their 7 years paying over Ijy one trustee, commissions on annual payments of who then died, and survivor then income to beneficiaries constitutes a paid over for seven morfe years, when 424 § 373 ADMINISTRATORS sions on annual payments}^ Unless there is opposition, the decree on a trustee's accounting may provide that the commissions due him on income, which he has omitted to retain from income as he paid it out, may be paid from the first income coming into his hands.** A testamentary trustee who" has paid over income to a beneficiary without retaining commissions thereon is entitled on his first ac- counting to retain commissions on all income, paid to the date of the accounting from current income in his hands and not yet paid over." Upon the ground that a testamentary trustee might have accounted annually to the court and received his commissions he may be allowed them on his final accounting although it appears he distributed the annual income of the trust estate to the bene- ficiaries without retaining his commissions thereon.** When the income of a trust fund is payable semi-annually, it is proper for the trustee to retain his commissions semi-annually.*' Although tes- tamentary trustees pay over the income half yearly and deduct commissions thereon at such time yet the commissions cannot ex- ceed for the whole year the rates allowed for services for one year, i. e., the commissions must be based on the total income of the year.^° A testamentary trustee holding a fund in trust to pay the net income annually to a beneficiary may, on paying over the in- come and settling his account with the beneficiary each year, de- duct and retain each time his full commissions and so obviate any necessity for an annual judicial settlement of his account.** A trustee required by the instrument appointing him to keep the trust funds invested, to receive and pay out the income annually, who receives the income, renders an account of it to the beneficiary and question was first raised on account- Meeker, 95 N. Y. 528 (1884). See ing; Spencer v. Spencer, 38 A. D. also Matter of Norton, 58 Misc. 133, 403,^ or 56 Supp. 460 (1899)— nine 110 Supp. 474 (1908), and Matter years, rendering account each year, of Haskm, 49 Misc. 177 (1906), or An accounting trustee cannot have 98 Supp. 926. commissions on income paid out by ** Est. of Lemqine, N. Y. L. J., him if there is no income on hand. May 6, 1915 (N. Y. Surr.), C. C. P. Matter of Weil, 80 Misc. 473, or 142 § 2732. Supp. 463 (1913). Once executors *« Est. of Backrach, N. Y. L. J., cease their duties as such and take Dec. 22, 1914 (N. Y. Surr.). on themselves the duties of trustees *' Matter of Haskin, 111 A. D. 754, the income on the trust investments 97 Supp. 827 (1906). held by them constitutes an independ- *' Matter of Selleck, 111 N. Y. ent fund from which alone their 284, 19 N. E. 66 (1888). commissions on income are payable. *^ Matter of Roberts, 40 Mise. 512 Olcott v. Baldwin, 190 N. Y. 99, 82 (1903), or 82 Supp. 805. N. B. 748 (1907). A trustee an- 8" Matter of Mitchell, 41 Misc. 603, nually settling with his cestui que 85 Supp. 388 (1903). trust should retain Ms commissions 2* Matter of i Smith, 86 Misc. 130 on each year's income. Hanoox v. (1914), or 149 Supp. 131. 425 NEW YORK ESTATES AND SURROGATES § 374 pays over the income after deducting all expenses chargeable against it, has the right to deduct for. his compensation full com- missions on the income annually received before paying it over.^ Commissions on income received and paid out by testamentary trustees after an informal accounting between them and the bene- ficiaries, when the trustees collected the income and made annual payments, but did not render an account thereof to the surrogate's court, should be computed on the basis of annual rests/ An execu- tor cannot be allowed commissions on the income of an estate of which he acted as triistee when he, as beneficiary, retained all the income.* ' § 374. Other Compensation: As Attorney. — On settlement of the account of any administrator, executor, guardian or testamentary trustee the surrogate must' allow lo him, if he be an attorney and counsellor-at-law of this state and shall have rendered legal services in connection 'with his oflicial duties, such compensation for such legal services as appears to the surrogate to be just and reasonable.* The compensation allowed an administratorV executor, guardian or testamentary trustee fbr legal services rendered in connection with his ofHcial duties 'is only given to him individually (a) when he is an attorney and coudseilor-at-law in New York state, and (b) when he himself rendered ■ Buch services.* The amount of the allowance to him individually must be such sum as the surrogate deems just and reasonable,* and for Such of the services as were rendered by him in preparing his account for settlement and in drawing, enter- ing and executing the decree', he probably cannot be allowed more than $10 for each' day necessarily occupied by him in rendering this kind of service.'' The statutory permission to an administra- tor, executor, guardian or testaiiientary'truStee fo pay from time to time from the estatp^in his hajids the reasonable counsel fees nec- essarily incurred in the administration of the estate' probably does not allow him to pay, himself for such services, if he rendered them, until the amotiht of guch,fe^s due him has been settled by the sur- rogate on his accounting. An executor who is also a lawyer may be allowed compdnsation, as an administration expense, for legal serv- ices rehdeted the estate.*' The power of the surrogate to grant such allowance IS governed by l^he law in force when the application 1 Matter of Mason, 98 N. Y. 527 » C. C. P. § 2753. (1885). «C. C. P. § 2753. 2 Matter of Martin, 196 N. Y. 415, ' C. C. P. § 2747. 90 N. E. 46(1909).' » C. C. P. § 2692. 3 Matter of McCoyj 51 Misc. 441, » Matter of' Bell, N. Y. L. J., 'Mch 101 Supp. 539 (1906); 30, 1916 (N. Y. Surr.), C. C. P § *C. C. P. § 2753. " 2753. 426 § 375 ADMINISTRATORS for it is made.*' An executor who refuses to pay a legacy due from the estate under his care, thus compelling litigation to enforce the lights of the legatee, probably cannot share in the fees of the at- torney who has represented the legatee.** A claim for legal serv- ices rendered by an executor to an estate under a testamentary direction that he "act as attorney for my estate and . . . make his charges therefor," whether assigned by such an executor or still held by him, should be passed upon by the surrogate on the execu- tors' accounting when persons interested can have a hearing.** A man cannot by his will control his executors in the choice of the attorneys or counsel who shall act for them in their representative capacity ; because they may incur a personal liability for the selec- tion and conduct of their lawyers.*' A testamentary provision appointing so and so attorneys for the testator's estate is regarded merely as expressive of his wish, most proper to be observed by the executors if it accords with their own judgment, but which other- wise they are not bound to regard.** § 375. Id.: On Accounting or Disposition of Realty. — ^Allowance to an administrator, executor, guardian or ' testamentary trustee must be made by the surrogate on judicial settlement of the for- mer's account as follows: (1) His just, reasonable and necessary expenses actually paid by him; ** (2) Statutory commissions for his services in his official capacity; *^ (3) Compensation for legal serv- ices rendered in connection with his official duties.*'' (4) His costs.*' /I Upon the disposition of real property of a decedent, th§ execu- tor or administrator disposing of the property must be allowed by the surrogate out of the proceeds of th6 sale brought into court: (1) His commissions; *' (2) His expenses ; *" (3) Such further sum as the surrogate thinks reasonable for the necessary services of his attorney and counsel therein.* ' On an intermediate accounting required by the surrogate of an administrator, executor, guardian or testamentary trustee the sur- rogate may allow the accountant, in bis discretion, such a sum as the surrogate deems reasonable, for his counsel fiees and other ex- *" Matter of Bell, supra. **Bashby v. Berkeley, 153 A. D. 742, 138 Supp. 831 (1912), decided before Code amended to allow com- pensation to executor for legal serv- ices. ** Jacobsen v. Levina, 59 Misc. 449, 110 Supp. 1002 (1908). "Matter of Caldwell, 188 N. Y. 115, 80 N. E. 663 (1907). 427 ** Matter of Caldwell, supra, *5C. C. p. §§ 2747; 2753. *sc. C. p. § 2753. "G. c. p. §§ 2747; 2753. I'C. c. p. § 2746. *9C. c. p. § 2749, 2»Id *Id. NEW YORK ESTATES AND SURROGATES §§ 376, 377 pen^eSj.not exceeding ,$10 for each, d£(.y, necessarily occupied in pre- paring his account for settlement and in djawingj entering and executing the I decree ; ^ and his, costs.' § 376. Id. : By Agreeinent.-r-An agreement to pay a person com- pensation for services in an official or trust capacity greater than that prescribed by law, and which excess is forbidden by law, creates, no binding obligation.* Devisees cannot agree, so as to be bound, to permit executors to take more of the estate as commissions than the law allows, as such an agreement not only is without consider- ation: but is against public policy.* An agreement for payment to an executor in addition to his commissions of an amount for extra- executorial work entitl^sS: him, tp sjich additional compensation if it is reasonable, just and fair, e. g., for working from 9 a. m. to 5 p. M. every day (devoting all, h^s.time) to taking charge of proper- ty, collecting rents; cleaning, kalsomining, painting, and doing all the repairing except some plumbing and plasteriiig.® A person named executor but not directed by the will to carry on the testa- tor's business who, however, as a skilled mechanip, does carry it on, finishing up unfinished, machines and thereby, furnishing about the whole suppprt for the testator's family, all the : members of which agreed he should receive a stipulated salary, is , entitled to such salary in addition to his commissions as executor even though one of the family was not of age, if the latter made no objection after becoming of age until the executor's accounting.'' Even though his coexecutors agree that he shall have the same salary for contin- uing the testator's busine,ss under authority of the will as he had for carrying it on befqre,, an executor cannot be allowed such salary, but only his commissions, if a beneficiary object to his hav- ing it.' An executor and trustee who, by written agreement with the beneficiaries, is allowed extra for his services at an agreed an- nual rate, and who performs the services, is entitled to the agreed amount in addition to his commissions against the beneficiaries' objection on his accounting.' , , > § 377. Id.: For Extra Serv^ces-T-An administrator or executor allowed compensation other than commissions out of his decedent's estate must be allowed it for something he has done apart from and « C. C. P. § 2747. « Matter of MeCord, 2 A. D. 324 »C. C. P. §§ 2746; 2747. (1896), or 37 Supp. 852. * Carpenter v. Taylor, 164 N. Y. 'Matter of Braunsdorf, 13 Misc. 171, 58 N. E. 53 {1900), C. C. P. ^^IJt^^?^^'?''J^?''^'i\^l^- ,„„ s Qoon „„ +„ „ i- .e Matter of Hayden, 54 Hun, 197, § 3280, as to compensation of as- ^ggg) „^ ^ g^^ ^^3 ^^.j g signee of creditors. jj. Y. 776, 27 N. E. 409. 5 Matter of Ross, 33 Misc. 163 scatter of Young, 17 Misc. 680 (1900), or 68 Supp. 373. (1896), or 41 Supp. 539. 428 § 377 ADMINISTRATORS entirely outside of his office, i. e., as an individual : it is not enough that he, does something for the estate which he has the right to em- ploy another to do and pay him for it out of the estate, because such a service may be within the province of his office, either fov him to do personally bt to employ another to do for the estate." No greater sum than commissions can be allowed executors, ad- ministrators or truste'es even though they render services beyond their strict duties, however necessary to the estate or reasonable the price.^^ Executors are not entitled to compensation beyond their conimissions for Services in renting, collecting rents and superin- tending generally real estate when such duties were imposed on them by the will.^* Executors miast keep their oAvn accounts when they are simf)le; and will be disallowed payliients to' bookkeepers when their own unwatranted dealings with the estate funds made the accounts complex." Executors and testamentary trustees can- not be allowed a paynierit to a bookkeeper for keeping the estate's accounts when the bookkeeping requiied is very little, even thbugh in managing their own affairs they would have employed a book- keeper to' do jUst this work;' because it was part of their duty to keep these estate books.** An administrator cannot be allowed com- pensation in addition to his cbmmissions for work in looking after personal property of the estate or for loss of time from his usual occupation." An executor who without authority continues his testator's business or uses the estate property in a new business is entitled to no cdihpensdtion for services rendered in such business.** One narhed executor of a deceased partner who is also surviving partner, and is merely authorized but not compelled by the will to continue the testator's business, cannot be credited with any com- pensation beyond his commissions as exechtbr for liquidating the business or continuing it, because as executor he had the right to wind it up at once on his deceased, testate partner's death and for services rendered an estate by an executor as such he can receive as compensation only his conimissions." An executor, and an employee of a corporate co-executor, who successively act as the head of a railway of which their testator owned nearly all the stock *»In Re Popp, or Kempiffs Will, "In re Estate of Richardson, 2 107 Supp. (A. D.) 277 (1907), modi- Mise. 288 (1893), or 23 Supp.' 978. fying 53 Misc. 200, 104 Supp. 585 ** Matter of Harbeck, 81 Hun, 26 (1907), reviewing cases on point, (1894)> <» 30 Supp. 521; aff'd 145 "Matter of Krisfeldt, 49 Misc. ^"is^r ^^*' ^^f «' -^i- ^\o m- -leo r./- nr, c- QTT /lonKN „j™- ' "Matter of Seigler, 49 Misc. 189 26, 97 Supp. 877 ( 1905) -admin s- (1906), or 98 Supp. 929. trator collecting rents of real estate, le Matter of Archer, 77 Misc. 288, etc: 137 Supp. 770.(1912). "Matter of Archer, 77"Misc. 288, "Matter of Dummett, 38 Misc. 137 Supp. 770 (1912). 477 (1902), or 77 Supp. 1118. 429 NEW YORK ESTATES, AND SURROGATES § 378 and bond§, may properly receive a salary equal to that which the head of the railway during the testator's life had received, in addi- tion to their, commissions, because they, were under no obligation to run the road by reason of the testator's holdirigs in it." One named executor who pays highway taxes on estate property by per-; sonally working them out is entitled to payment of their amount, as he has liquidated them." Executors directed by will to continue their testator's business but given by, the will no extra compensa- tion for doing so, can. be allowed nothing beyond their commissions for their work in doing so.*' A . t^tamentary trustee gi,ven a per- centage of the net, profits of a business he was authorized by the will to cpntinue as compensation for his services in managing it in addition to his lawfiil coniipissjtops cannot be allowed any further compensa.tion, even though he, devoted, all his time to 'it and did the same work for it he had formerly done- at a, salary as superin- tendent; because it is not possible to say that his services were ouir side the duties imposed upon him, by the will.* One who is admin- istrator of his deceased partner can be allowed no salary or emolu- ment other than his commissions for continuing the, partnership business, unless all parties in, interest requested him to continue the business,; because it: is an adm,inistrator's duty to dispose of his intestate's business and convert it into cash, and a surviving partner cannot l)e .,allqwe4 any compensation for his services in liquidating the partnership business.* , , , § 378. Id.: By Will. — When a vviil provides a specific compensa- tion to an administrator, ,exe,cutor, testamentary guardian or trus- tee, he is not entitled to, any allowance for his services unl^s by a written,, instrument ,filed with the surrogate within four months from the date of his letters, if an administrator or executor, or from the date of filing his path, if a tes]fcamentary trustee or guardian, he renounces the specific conipensation.*, , This limitation of time with- in which .the renunciation of specific.,, testamentary compensation must ;,,be made did not formerly . obtain.'* An executor " Matter of ridelity, Loan, Trust '*An executor at any time before and Guaranty Co. 23 Misc. 211 a decree is entered on his accounting (1898), or 51 ^URp. 13,24. . and.ie has taken a compensation,, di- ** Lansing v. ' Lansing, 45 Barb, rected by the' will to' be allowed to 142 (1865). ' , , _ and received by him as commissions *• Matter of Popp, 123, ,iL, D. 2 may renounce such testamentary (1907), or 107 Supp. 277., ^ . pro'Vision and take statutory commis- 1 Matter . of Froelich, 1'25' A. D. siolis, eVen though he verbaJlv stated 440 (1907), or l07 Supp. 173; aff'd at the time the will was read" that he 192 N. Y. 566, 85 >I. E. lllO. was satisfied therewith (Matter of * Clausen' V. Pijvogel, 114 A. D. Arkenburgh, 13 Misc. 744 (1895), 455 (1906), or 100, Supp. 49. or 35 Supp. 25,1,). . »C. C. P. § 2753. ' Although two and a third years 430 § 379 ADMINISTRATORS • is entitled to a certain annual sum given him by a will "in addition to the fees, charges, commissions and disbursements al- lowed him by law," as well as his commissions ; because otherwise a testator would be deprived of his right to dispose of his property.* Moneys collected by the payment when due of United States bonds are properly the subject of commissions to the collecting executoi-s under a will entitling them to commissions of 5 per cent for the collection of debts owing their testator.* In determining whether a testamentary provision to persons named as executors is in lieu of commissions it should first be found that there is language in the will from which such an^ intent can be inferred : a test is whether those named as executors would have had the provision had they renounced as executors.' A testamentary provision that a person appointed executor should receive a commission of 6 per cent upon all moneys "collected" by him does not entitle himto such com- missions on the amount of the entire proceeds of the estate, as the ordinary definition of the word "collected" does not include all moneys received as executor, or the entire avails of the estate which were realized.' A residuary devise and bequest to persons! (named) "who are hereinafter named as the executors of this my will" are not to be construed as compensation in lieu of commissions.' Re- nunciation of a bequest to these iaamed executors "to be received and accepted ... in lieu of commissions as executors and trus- tees" uwith a direction in the will "that no compensation or com- missions as such shall be paid" to them, enables them to get regu- lar statutory commissions.® • § 379. Id.: Of Guardiams, In Surrogate's Court. — ^A special guard- ian for an infant or incompetent receives a reasonable compensa- tion for his services to be fixed by surrogate. The compensation is may not be an unreasonable time for widow had renounced it over 2 years an executor to wait before renounc- before, with executor's kniOwledge, ing a specific compeiisa,tion given by and he had acted on the^ validity of the: will in lieu of. commissions and the renunciation.) . electing, to: take statutory commis- * Matter of Spragae, 4.6. Mise. 216, sions if nobody's, interest are .jeopar- 94 Supp. 84 (190S.;) ,' dized by the delay yet his taking * Matter of Tilden, 44 Hun, 441 monthly the compensation fixed by (1887.) ^ . the will in lieu of i commissions dur- ^Matter of Mason, 98. N* Y. 527 ing all that time will constitute an (1885). election by acts, even though not till ' Ireland v. Corse, 67 N. Y. 343 the expiration of such , time has a (1876). ' ;.. testamentary provision been declared 'Matter of Mason, 98 N. Y. 527 bad so as to abbreviate his term of (1885), old Code §'2737. office (Matter of NestfiT, :166. A. D.. » Est. . of , Pulitzer, 89 Misc. 657 224, 151 Supp. 194 (1915), C. C. P. (1915), or 153 Supp. 1100; old Code § 2753— annuity to widow declared § 2730. bad at expiration of such time, but 431 NEW YORK- ESTATES AND ' SURROGATES § 37» • payable (a) from the estate or fund; (b) from the interest of the ward in the estate or fund, or (c) from both the estate or fund and the interest of the ward tlaerein in such proportion as the surrogate may idirect.^'' The allowance to a special guardian may, it will be noted, be made from the fund which is thp subject of an account." $25 only will be allowed a special guardian when his duties are not onerous, even though the estate be large, if the wards have and may get nothing, as the' allcswance comes from other people's prop- erty.^^ It has been held that the statutory provision^' that a special guardian for an infant or incompetent shall receive a reasonable compensation for his services to be fixed by the surrogate, payable from the estate or fund, or the interest of the ward therein, or both, in such proportion as the surrogate may direct does not authorize an allowance on an uncontested accounting of an estate in which infants have no interest to their special guardian to be paid from the estate ; becaiuse the legislature has no power to authorize sur- rogates to grant allowances to one party out df the private property of other parties.^* Special guardiains are entitled to such compen- sation only as the court deems reasonable : they are not entitled to remuneration at the rate allowed by law to executors and testamen- tary guardians." ' The fees and compensation of a special examiner appointed by Ihe, surrogate yearly to see what guardians have omitted in the preceding year to file their annual inventories and accounte, or suf- Jiciently full and satisfactory inventories or accounts, whether such examiner be also appointed special guardian to prosecute the gen- eral guardian in order to compel tihe. filing of such inventory and account or more full and satisfactory inventory and account, or to remove him; or not, must be fixed by the surrogate; and may be charged in whole or in part, by order, in the surrogate's discretion, " C. 0. P. § 2748. the wards he represents. (Matter of "In re Union Trust Co. (Hoff- Farmers' Loan & Trust Co. 49 A. D. man), N. Y. L. J., Dee. 22i 1914 1 (1900),' or 63 Supp. 227; old (Kings Snrr.), C. C. P. § 2748. It Code.) This view is held by one of was held before the Surrogates' Code the surrogates of New York county, effective Sept. 1, 1914, was law, that See Estate of O'Dalyj infra, allowances to special guardians c6nld '* Matter of Seabury, 87 Misc. 241 only be charged -against the interest (1914),' or 150 Supp. 420; C. C. P. of the infant the guardian represent- § 2748. ed. Allowances to special guardians *' C. C. P. § 2748. can only be charged against priaci- ^* Estate of O'Day, 88 Misc. 408, pal when the' infant's intere^ is 'in 150 Supp. 425 (1914) — the sum of the principal only (Matter of Fargo, $25 could be allowed the guardian fiS Misc: 273, 125 Stipp. 156 (1910)). as cosfs> however. An allowance : to a special guardian *' Matter of Matthews, 27 Hun, beyond taxable costs can be charged 254 (1882); only upon the interest or estate of " • ' 432 § 380 ADMINISTRATORS upon (a) the general guardian personally, (b) the funds in the gen- eral guardian's hands, or (c) the county; and if charged upon the county, the surrogate must certify the items charged to the board of supervisors of the county, except in New York, Kings, Queens, Bronx and Richmond counties, in which 'the surrogate must certify the items charged to the proper officers; and the charges are then to be audited and paid as other county or city charges.^* § 380. Id. : Of Guardians, In Supreme Court. — The supreme court has power, because of its inherent jurisdiction to protect infants' estates, to allow guardians a reasonable compensation : always, how- ever, out of the infants' shares ; so that when the infants have only a fixed income from portions of the estate, the court cannot make an allowance to their guardians from the principal." An allow- ance to a guardian ad litem in an executor's accounting action in the supreme court should not be made payable out of the general estate but out of the infant's share or interest in the estate." "C. C. P. § 2663; compare C. C. " Brinekerhoff V. Faries, 52 A. D. P. § 2748. 256 (1900), or 65 Supp. 358; aJff'd " New York Life Insurance & 170 N. Y. 427, 63 N. E. 437. Trust Co. V. Sands, 26 Misc. 252 (1899), or 56 Supp. 741. N. Y. E. & S.— ^: 433 CHAPTER rV. WILLS. A. Definitions:, 1. In General, § 381. 2. Joint md Mutual, § 382. 3. Nuncupative, § 383. 4. Holographic, § 384. 5., Duplicate, § 385. B. Who may Make, § 386. C. What May Be Willed, § 387. D. Who May Take By Will: 1. Corporations, In General, § 388. 2. Benevolences, § 389. , : 3, Sub,scribing Witnesses., § 390. , E. Hints in Drawing, § 391. r. Execution: 1. Formalities, in General, § 392. 2. PZace o/ Testator's Signature, § 393. 3. Manner of Testator's Signature, § 394, 4. Acknowledgment, § 395. Gr. Publication, § 396. H. Republication, § 397. L Atf esiaf iow ; 1. Request to Witnesses to Sign, § 398. 2. TTiiwesses' Signature, § 399. 3. TF'Jtnesses' Addresses, § 400. 4. Attestation Clause, § 401. K. Alteration and Revocation : 1. 2» General, § 402. 2. Revocation: a. Bj/ 0«/8«r Writing, § 403. b. £«/ Burning, Tearing, Cancelling, Obliterating or Destroying, § 404. e. By Marriage of Testate Unmarried Men, § 405. d. By Marriage of Women, § 406. e. By Birth of Child, § 407, f. Presumption of, § 408. , g. Effect of, § 409. 3. Alteration, § 410. L. Probate, Record and Establishment : 1. Foreign Wills: a. I« General, § 411. b. 0/ iJeaZtj/ or Personalty : aa. Executed According to N. T. Law 6j/ Anyone Any- where, § 412. bb. Proven in Great Britain or Dependencies Executed by V. S. Citizen, etc., § 413. 434 WILLS L, 1 — continued. c. Of Personalty Only: aa. Executed According to Law of Testator's BomicU, § 414. bb. Executed in U. «?., Canada or Great Britain, According to Its Law, § 415. d. Affecting Bealty in This State, § 416. e. Authentication: aa. Of Wills Probated and Letters Issued in Other States of U. S. A., § 417. bb. Of Wills Probated and Letters Issued in Foreign Coun- tries, § 418. 2. Domestic Wills : a. Jurisdiction: aa. What Jurisdiction Surrogate Has, § 419. bb. What Surrogate Has Jurisdiction, § 420. cc. Of Supreme Court, § 421, b. What Provable As: aa. In General, § 422. bb. Papers Attached to, or Bef erred to by Will, § 423. cc. Last Will Only, § 424. c. Production, § 425. d. Petition for Probate: aa. Who May Make, § 426. bb. Form, § 427. e. Citation to Probate: aa. Who Have Notice: aaa. Will of Personalty Only, § 428. bbb. Will of Bealty Only, § 429. cce. Will of Both- Bealty a/nd Personalty, § 430. bb. Form, § 431. f. Answer, § 432. g. Objections and Contest: aa. Who_ Mail, Make, § 433. bb. Time Limit, Contents and Costs, § 434. h. Notices to Beneficiaries of Probate and Objections, § 435. i. Hearing or Trial and Proof : aa. In Ggneral-^ury or No Jury? § 43^. bb. Burden and Order of Proof , ^ 437. cc. Proof of Written Will: aaa. In General, % 438. bbb. When two or More Witnesses Alive, in State and Competent, § 439. ccc. When One Witness in State and Competent,. § 440. ddd. When All Witnesses Out of State, but One Alive, Competent and Able, § 441. eee. When All Witnesses Dead, IncotApetent, Unable or Absent, § 442. til., When Witness Forgets or Testifies against Exe- cution, § 443.,' ,,' : . , ; dd. Proof of Nuncupative Will, § 444. ee. Proof of Lost or Destroyed WiU: aaa. In Surrogate's Court, § 445. 435 NEW YORK ESTATES AND SURROGATES § 381 L. 2, i — continued. bbb. In Supreme Court; asL&a. In General, % '446. ' bbbb. Burden of Proof, % 447. ff. Proof of Holographic WiU, § 448. gg. The Witnesses: aaa. Definitions, § 449. bbb. Examinatiort and Testimony : aaaa. In General, § 450. bbbb. Disqualification or Excuse from Testi- fying, §451. ccce. Recovery By Wittiess Losing Share, § 452. dddd. As to Testator's Statements, § 453. j. Determination and Decree: aa. In General, § 454. bb. Form and Contents, § 455. k. Motions in Probate Proebedings, § 456. M. Validity, Construction and Effect: 1. What Law Determines, S 457. 2. Surrogate's Jurisdiction: a. In General, § 458. b. In Course of Probate Proceeding, § 459. e. Reservation on Probate Proceeding, § 460, d. Petition: aa. Who May Make, § 461. bb. Form, § 462. ,, , e. Citation, § 463. f. Decree, § 464. .. ' 3. Supreme Court's JwrisdXction: a. When Maintainable, § 465. b. Who May Get, § 466. N. Depositing, Filing, Recording and Withdrawing from Record, § 467. 0. Putting Certified Copies or Certificates in Evidence, § 468. § 381. Wills: Definitions, In General. — A will is a statement made orally or in writing, witk legal formatlity of the wishes of a person to take effect after dteath. A will signifies, a last will and tes- tament, and includes all the codicils to a will.^ "A will is an in- strument by which a person makes a disposition of his property to take effect lafter his decease." * An instrument which is testamen- tary in character is none the less a will and entitled to probate be- cause it merely appoints an executor and disposes of none of the testjatpr's e^tat,e.' "An instrun^ent which is to operate in the life- time of the ^onor, and to pass an interest in his property before his deatli, even though its absolute enjoyment by the donee be postr 1 C. C. P. § 2768, subd. 4. bet, 17 Hun, 72 (1879) ; Matter of ^ Younger v. Duffie, 94 N. Y. 535 Maecafll, 127 A. D. 21, 111 Supp (1884). ' 315 (1908); Matter of Estate of s Matter of Davis, 45 Misc. 306, Finn, 1 Misc. 280 (1892), or 22 92 Supp. 392 (1904) ; Barber v. Bar- Supp. 1066. 436 § 382 WILLS poned till after the death of the donor, or even though it be contin- gent upon the survivorship of the donee, is a deed or contract and not a will. But if the ir^strument is not to have any operation until after the death, then it is a will, notwithstanding that it may have been executed in pursuance of a previous promise or obligation ap- pearing upon its face." * A sealed envelope referred to in a deed of trust created by the settler in his life, which contains directions for the disposition of the trust estate on the settler's death, is not testamentary in character, but is part of the deed of trust and need not therefore be executed as a will.* A signed otatement that on the signer's death another is to have a certain sum in a specified safe deposit is a writing made with the intent of giving a posthu- mous destination to the maker's property and is testamentary in character." § 382. Id.: Joint and MutuaL — A joint will is one instrument ex- ecuted in due form as a will by two or more persons.^ A mutual will or mutual wills is or are one or more instruments executed in due form as a will or wills by two persons in favor of each other.' A joint or mutual will operates as the separate will of whoever of the testators dies first.' There is nothing against law or public policy in an agreement between parties to execute reciprocal wills. ^^ * Matter of Probate of Will of to be such so as to take effect as a Diez, 50 N. Y. 88 (1872). will see note in 13 L.E.A.(N.S.) 5 Van Cott V. Prentice, 104 N. Y. 1203. 45, 10 N. E. 257 (1887). On admissibility of extrinsic evi- ® Ga Nun v. Palmer, 159 A. D. denee to show that instrument, on 86, 144 Supp. 457 (1913). its face a will, was not intended as A general discussion of the testa- such see note in 28 L.R.A.(N.S.) mentary character of various instru- 417. ments will be found collated in the On collateral attack on probate following notes: where decree or will affirmatively On sufficiency of letter as will see shows will to be invalid for lack of notes in 15 L.K.A. 635; 17 L.R.A. testamentary character of instru- (N.S.) 1126. ment, see note in 42 L.R.A.(N.S.) When deed is to be deemed testa- 458. mentary in character see note in 1 On the effect of declaring one to L.R.A.(N.S.) 315. be an heir or next of kin see note in When instrument executed with 45 L.R.A.(N.S.) 48. the formalities of a will, but not 'Rastetter v. Hoenninger, 214 N. couphed in the formal testamentary Y. 66, 108 N. E. 210 (1915). phraseology, may be admitted to pro- ' Matter of Probate of Will of bate or otherwise given effect as a Diez, 50 N. Y. 88 (1872) ; Edson v. will is discussed in note in 41 L.R.A. Parsons, 155 N. Y. 555 (1898). (N.S.) 39. 'Matter of Probate of Will of On whether an instrument not on Diez, supra; Edson v. Parsons, su- its face of a testamentary pharacter pra; Rastetter v. Hoenpinger, supra. mav be shown by extrinsic evidence ^^ Edson v. Parsons, supra. •^ 437 NEW YORK ESTATES AND SURROGATES §§ 383-386 8uch instruments, though revocable in the' lifetime of either testa- tor- on notice to the other, on the death of one become fixed obli- gations which equity will enforce." If necessary, a joint will may be proved twice, each time as the will of one of the testators, e. g., when the survivor is given a life estate only, with remainder over.^* § 383. Id.: Nuncupative. — A nuncupative will is an unwritten statement made by a soldier while in actual military service or a mariner while at sea, bequeathiiig his personal estate.^' A mariner is anyone in the vt^hole sea sen'ice^from a common seaman to a commander in chief; and the ^ea comprises any waters within the ebb and flow of the tide.^* •> ■ § 384. Id.: Holographic. — A holographic will is one entirely in the handwriting: of the testator.^** . , i - , u § 385. Id.: Duplicate. — ^Duplicate wills are two testamentary, identical papers.^? Both must be presented to the surrogate so that he may be sure that each; completely contains the whole will and that neither revokes the other; but only one should be probated." When the first of two duplicate wills and a codicil cannot be rec- onciled, while the second of the duplicates and the codicil harmo- nize, the second duplicate and the codicil will be considered together asthete'stator's last will."' . .. , .j,,. § 386. Wills: Who May Make.: — All persons except idiots, persons of unsound mind and infants may devise their leal estate by a duly executed last will and testaineht.^* Every male pefsoii of , the age "Edson v. Parsons, supra; Ras- to see' notes in 29 L.R.A.(N.S.) 64; tetter v. Hoenninger, supra. 46 L.R.A.(N.S.) 552. i^Rastetter v. Hoenninger, supra. 15 Cj-oggman v. Grossman, 95 N. T. On the effect of two wills in one in- 145 (1884). strument, see note in 38 L.R.A. 289, is Grossman v. Grossman, supra, and note in 34 L.R.A.(N.S.) 976 on "Matter of Van Doren, 77 Misc. the contents of a joint or mutual wUI 44 (1912), or 137 Supp. 420: and as^affecting right to probate. . jgg g 1147. 13 Deced. Est;. L. § 16. , " Deced Est L § 10 .oaf^^^^f^^- ^'^*'''^':'^' ^ ^- ^- On who' may mkte a wiU see the 196(1853). ■ following notes: On soldiers' and seamen's^ wills Qn conflict of laws as to testator's generally see note in 4 B. R. C. 899; capacity see note in 2 L.R.A. (N.S.) on what is last sickness' permitting 45^4 a nuncupative will see note in 13 Qji validity and effect of stipula- L.R.A.(N.8.) 1092. tion of incapacity of testator see i*»As to violation of requirement ilote in 23 L.R.A.(N.S.) 783. that holographic will shall be written On power of one lacking testamen- by testator see note in 26 L.R.A. tary capacity to revoke will see note (N.S.) 1145. in 18 L,R;A.(N.S.) 99. As to writing name in body of a On collateral attack on probate holographic will as a signature there- where decree or will affirmatively 438 § 386 WILLS of eighteen years or upwards, and every fismale of the age of siJfteen years or upwards, of sound mind and memory, and no others, may giye and bequeath his or her personal estate, by will in lyriting;** and a soldiet while' in actual military service or a mariner while at sea may bequeath his personal e.4tate by unwritten will.^' It seems that a, person civilly dead may still dispose of his property by will or deed, even during the period of his civil death.^ The interest of an infant in realty sold under a power of sale passes by his will if over eighteen ; because it is per- sonalty.^ The statute * giving to any married fpmale the right to devise, etc., as if unmarried does , not permit a.10. infant married woman to testamentate, but only reUeves- her from the disability showg lack of testamentary capacity On nonexpert opinion of the same see, note in 42 L.R.A.(N.S.) 457. see note in 38 L.R.A. 721. On what constitutes capacity or' On opinion evidetice by a nonex- incapd,city see notes in 27 L.R.A. pert as to ; the : contractual or testa- (N.S.) ,2, L.R.A.1915A, 443» ,mentary capacity of another sep note On effect of morphinism on wills, in 37 .L.R.A.(N.S,) 591. see note in 39 L.R.A. 263. On testamentary' capa'city at the On belief in spiritualism, witch- time of giving instructions for will ci^aft, etc., as affecting wills see note as affecting measure of capacity in 16 L.R.A. 677. ' ' which must exist at time of execution On effect of belief in spiritualism see notS' in 2 B. R. C. 41. ,' upon testamentary capacity se6 note On the competency' of attending in 15 L.R.A. (N.S.) 673. physician to testify as to capacity oi On 'admissibility of finding' of a testator in will contest see note in 32 cordnef as to the cause of death or L.R.A. (N.S.) 72. ' of 'inental condition of testator see On opinions of subscribing wit- note in 45 L.R.A.(N.Si) 408. ' nesses as to sanity or insanity see On presiirhption and' burden of' note in 39 L.R.A. 715. proof as to testamentary capacity sCe ' On the admissibility of .declarations notes in 17 'L.R.A. 494; 36 L.R.A. of deceased subscribing witness, un- 724, 733. ' ' favorable to testator's competency see On the admissibility of declarations note in 27 L.R.A. (N.S.) 294. of beneficiary or executor to show Weight of testimony of subscribing lack of testamentary capacity see note, -W^itriess against competency of tes- in 38 L.R.A.(N.S.):i732. , ■ ,. . tator is discussed in note in 6 L.R.A. On the weight of testimony of a (N.S.) 575. ■ , ' subscribing, witness , against the com- ^^ Deced. Est. L.,§ 15. petency of a testator see note in 6 ^^ Deced. Est. L. § 16. L.R.A.(N.S.) 575, as to his sanity ^ Stephani v. Leijt, 30 Misc. 346, or insanity see note in 39 L.R.A. 720. 63 Su{)p; 471 (1900); See Averv v. On sufficiency of evidence of fes- Everett, 110 N. Y. 317, 1 L.R.A. 264, tator's incapacity see note in 24 6 Am.. St. Rep. '368, 18 N. E. 148. L.R.A. 577. . . ^Horton v. McCoy, 47 N. Y. 21 Qn expert opinion as to sanity or (1871).'' mental capacity see, note in 39 L.R.A. ' L. 1848, c. 200, amend'd L. 1849, 305. e. 375. 439 NEW YORK ESTATES AND SURROGATES § 387 ci-eated by marriage.;* An hal^j^tual. (drunkard may, if of sufficient mental capacity, make a valid, ynll even -vyhile subject to a commis- sion, as the existence of the commission is only prima facie eyidence of incapacity, which may be rebutted by proof.* In order to avoid a will made by an intemperatei person it must be proved that he was so excited by liquor, or so conducted hirhsjelf, at' the time of executing the will, as to be, at the moment, legally disqualified from giving effect to it.* The appointinent of a committee of a drunkard after inquisition is not conclusive evidence of the druiikard's in- capacity to make a will, because the will does not take effect until the inebriate's death.' A deaf and dumb man may make a will by observing the formalities of the stattite in their spirit and intent and in such maimer as is pi-acticable under the conditions 'existihg.' If such an one is also unable to read or write, something more is demanded to prove the will than the fact of execution according to statute, viz., proof that his mind acconipanied his act ofe^eeu'tipn.' § 387. Wills: What May Be Willed:— Every estate and 'interest in real property descendible to heirs may be devised ; ^'' and any personal property may be beqiiieathed.*^ Such a devise or bequest * Zimmerman v. Schoenfeldt, 3 ^^ Deced. Est. L. § 11. Hun, 692 (1875). "Deced. Est. L. § 15. On right of wife under statute re- Some interesting notes on what moving disabilities of married worn- may be devised or bequeathed will be an to devise property held by her found as follows: On the right of husband and herself as joint tenants entry for condition broken as subject see note in 7 L.R.A.(N;S.) 701. of a devise, note in 67 L.R.A. 121. On sufficiency of husband's consent The right of entryman ,tp devise claim to wife's will see note in 37 L.B.A. or interest in public lands is dis- (N.S.) 1133. cussed in note in 34 L.R.A.(N.S.) * Lewis V. Jones, 50 Barb. 645 397. (1868) . On contingent remainder as subject On drunkenness as affecting testa- of devise by remainderman, note in mentary capacity see note in 39 21 L.R.A.(N.S.) 121. L.R.A. 220. As to applicability to devise, of Drunkenness in connection with j-uie against conveyance of land held undue influence rts afeeeting testa- adversely, note in 35 L.B.A.(N.S.) mentary capacity is discussed in note 73^ '°6 Peckv' Car?v^''7 N Y 9 (1863) • ^"^ *^^ ^"^^"^ "^ '"""''^•^ *° ^«^*''°y Gook V. White, IrA. D. 388 (1899)', "^"' °* ^^'^'^laVJ'l l'i"-*.:o°^ or 60 Supp. 153 ; aff d 167 N. Y. 588 P°ijf ' ^^[l f 49 L.R.A. 748, 752. 60 N. E. 1109. right to change beneficiary in "> Wadsworth' v. Sharpsteen, 8 N. T?°^'^y ^^ ^i^ >« set forth in note in Y. 388(1853). , 4 L.R.A.(N.S.) 939. 'Matter of Perego, 65 Hun> 478 Qn the right to designate by will (1892), or 20 Supp. 394. ■ the beneficiary of benefit insurance 9 Rollwagen v. Rollwagen, 63 N. Y. see note in 42 L.R.A.(N.S.) 1161. 504 (1875). 440 §§ 388, 389 WILLS may be made to every person capable by law of holding real estate."" § 388. Wills: Who May Take, Corporations In General. — No de- vise to a corporation is valid unless the corporation is expressly authorized by its charter, or by statute, to take by devise.'^ § 389. Id.: Benevolences. — No person having a husband, wife, child or parent can, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or other- wise, more than one-half part of his or her estate, after the pay- ment of his or her debts, and such devise or bequest is valid to the extent of one-half, and no more.^* This statute, being a limitation upon the right of a testator to dispose of his property, is not to be applied to a devise or bequest, unless such gift comes plainly with- in the statutory limitation. In determining whether a person has devised or bequeathed more tlaan one-half part of his or her estate to benevolence or charity, in violation of the statute against such a testamentary disposition, the fund is to be ascertained by sub- tracting from the value of the estate left at the testator's death only the latter's debts, and not the expenses of administration, too ; " but decreases in the estate must be considered in determining its value at the date of the testator's death ; ^^ and vested remainders must be appraised by the use of life tables in determining the value of the estate; *^ but as to contingent remainders the trustee must "a Deeed. Est. L. § 12. On who may take advantage of ^* Deced. Est. L. § 12. statute rendering foreign corporation The conflict of laws as to restric- incapable of taking title to real es- tion on power of corporation or as- tate see note in 33 L.R.A.(N.S.) 355. sociation to take is taken up in note ^' Deced. Est. L. § 17. in 2 L.R.A.(N.S.) 456. On the applicability of statutes On effect of subsequent incorpora- limiting time or amount of bequests tion to make valid a gift to an unin- or devises for charitable, educational corporated association see note' in 14 or other specific purposes, to devise L.R.A. 410. or bequest to an individual absolute- As to validity of bequest to cor- ly, in the hope that he will devote it poration of its own stock see note in to such purposes see note in 22 L.R.A. 18 L.R.A. 255. (N.S.) 1262. As to right of private person to ^* Matter of Webb, or Brooklyn contest power of corporation to take Trust Co. 92 Misc. 695, 157 Supp. 671 or hold property under a wiU see note (1915) reviewing authorities, Deced. in 32 L.R.A. 297, 46 L.R.A.(N.S.) 73. Est. L. § 17. As to right to question power of ^^ Matter of Webb, or Brooklyn corporation to take by will property Trust Co. supra, in excess of its charter authority see ^* Matter of Webb, or Brooklyn notes in 9 L.R.A.(N.S.) 689, 44 Trust Co. supra. L.R.A.(N.S.) 544. 441 NEW YOEK ESTAf^S.AND SURROGATES § 390 retain from the estate not p.ut'in trust a sum equal to the principal of the trusts having contingent remaindermen, and must so rapply the several halves of ^i;ich, equiyalejitg -.of trust fund?^, that, as the rerna-inder un(ier each trust falls in, ap, equality may bp established between the individuals and, charitablei institutions concerned ,in the division. of 'tlie vs^hole estate." ,,In determining .whether a tes- tator disposed of more thap.,. one-half of the value of his estate to charity, the date of the testator's , death must be used as the time when the value, of the estate is determined; and if the value of a life estate is tp be) determined in this regard after the life tenant's death, it should be fixed according to, the known span of his life rather than on mortality tables." Devises and bequests, although charitable, if to trustees on whom the testator has conferred active powers and duties and whom he has directed to use the income toward the maintenance of certain churches, ministers and mission- aries of religious denomination, are to individuals for charitable uses and not within purview of the Statute. ^^ § 390. Id.: Subscribing Witness. — ^If' any person is a subscribing witiiess to the exeCtition of ahy will in 'which any beneficial devise, legacy, interest or appointment is inade to him of any real or per- sonal estate, and the will cannot be proven without his testimony, such devise, legacy, interest or appointment is' void So far as it con- cerns him or any' one clainiing under him, and he is a competent witness and compellable to testify respecting the execution of the will in like manner as if no such devise or bequest had been made ;' but if he would have been entitled to any share of the^ testator's estate in case the will was hot established, theu so much of the share that would have descended or have been distributed to him is saved to him, as will not exceed the value of the devise or bequest made to him by the will;, and he can recover it of the devisees or legatees named in the,)yill, in proportion to and out of the parts devised and bequeathed to them.^" 4 person is. not disqualified or excused from testifying respecting the execution of a wilL by a provision therein, whether it is beneficial to him or otherwise.^ " Matter of Webb, or Brooklyn of the churches, ministers and mis- Trust, , Co. supra, sipnarie^ of the Baptist denomination, 1' Frost V. Emanuel, 1'52 A. D^ and for the. erection of regular Bap- 687, ,137 Supp. 559 (1912), L. 1860, tist Churches, which are presided c. 360. , , over by regular Baptist ministers 19 Decker v. Vre^land, 170 A. D. only, and f<^r the payment of salaries 234, 156 Supp. 442 (1915) '*To, pay Qf, sajd. ?nyii^ters or missionaries the North New Jersey Baptist. Asso. only.'' ' ' ', ' all the income derived fron;i iny es- , •^Tieced. Est. L. § 27. tate for and towards the maintenance * C. d. P. § 2545. , 442 § 391 WILLS § 391. Wills: Hints in Drawing, — A general or skeleton form of will is given among the forms in this book.^ A seal is not necessary to a will, either of real or personal estate.^ It is customary, however, tOi have on a will either, a real seal, or the letters "L. S.'' or a scroll, opposite the testator's signature. A date is not necessary to a will : if the space for the date be left blank, the date may be established by parol evideiice.* It is proper, however, always' to date a will. The names used in a will should be those by whieh th6 persons to be designaited usually sign and are known, so that they may be identified after the testator's death. The names to be obtained when drawing a will are those of the testator, the beneficiaries, and tlie executors, trustees or guardians. If any one of the beneficiaries, exiBClitors, trustees or guardians is a corporation, care should be taken to have its full and correct corporate name, and to ascertain if it can take by, devise under its charter or by statute.^ Executors, testamentary trustees and guardians get the commis- sions allowed by statute unless other provision is made in the will, which they, accept in lieu of commissions.^ A surviving parent may name by will a guardian for the minor child.'' A parent dying before another cannot by wiU deprive the latter of the guardianship of their infant child.* The executors, testamentary trustees and guardians should be absolved, by will from i the necessity of giving bond or security for the faithful performance of their duty if such is the testator's intent.' If the will appoints a trustee or requires an executor to hold, manage or invest anything for another, such trustee or executor must give bond unless contrary to the will's ex- press terms." ; The transfer tax or inheritance tax on a testamentary provision is payable by the beneficiary unless otherwise stated in the will." 8 See Form No. 133, infra. "> See § 643, infra, Dom. Rels. L. « Matter of Probate of Will of § 81. Diaz, 50 N. Y. 88 (1872). On parent's right to will custody of * Matter of Haviland, 17 Misc. child see note in 2 L.R.A.(N.S.) 203. 193, 40 Supp. 97 (1896) ; Matter of ' See § 643, infra, Dom. Rels. L. § Talbot, 91 Misc. 382, 154 Supp; 1083 81. (1915). ' The effect of attempt by a father On omission of charitable gifts to appoint guardian for child against from will as affected by date of will the surviving niother is set forth in see note in 34 L.R.A.(N.S.) 975. note in 13 L.R.A.(N.S.) 288. 8 See §■ 388, supra. '^ » See §679, infra, C. C. P. §§ 2(i30, On extrinsic evidence to establish 2650. identity of legatee or devisee see note ^^ C. C. P. § 2639. in 47 L.R.A:(N.S.) 514. " "Tax Law, §' 224, and § 112, su- * See § 360, et seq. supra. pra. 443 ^TEW YORK ESTATES- AND SURROGATES § 391 • It is quite customary to make the residuary estate bear the expense of transfer taxes on all bequests or devises. Adopted, after-born children:. Adopted children take in case of intestacy like blood children of the testator." An adult may now be adopted as well as a minor. ^* A child born after a testator's will is made takes the same part of the latter's estate as if the testate parent had died intestate, unless provided for by settlement or pro- vided for or mentioned in the will." If the children are infants, it is usual to provide for payment of the income only of the testa- mentary provision, for th^ir support, maintenance and education, till they reach years of discretion. He to whom the income shall he paid must be named, e. g,, the guardian, father, etc. Lapses of bequests and devises should be provided against by residuary cla,use or otherwise. A bequest or devise to a child, or other descendant, or a brother or sister of the testator, does not lapse because of the legatee's or devisee's death during the testator's life, if a child or other descendant of the legatee or devisee survives the testator; but the devise or bequest vests iii such child or other de- scendant as if the legatee or devisee had survived the testator and then died intestate.^' ' Testator's business. If a testator wishes his legal representative to carry on his business he must give the power to d.o so in his will, and should put any limitations of time or amount' which he wishes to make.** Trusts. How often — ^yearly, half-yearlj^j quarterly,' fete- — is the trustee to pay the life tenant the income of the trust fund? And is the life tenant to:get the gross or net income? Whether the trust be of realty or personalty, be sure that the suspension of the absolute power of alienation or ownership is not for more than the time al- lowed by the statutes." *^ See § 29 supi^a ; Dpm. Eels. L. § On the devolution of lapsed legacy 64. or devise where, will contains a resid- '* See § 24 supra. , uary clause see note in 44 L.B.A. "See § 407 supra; Deced. Est. L. (N.S.) 789. § 26. 18 See § 480, infra. . '^ Deced. Est. L. § 29. The carrying on of business by The conflict of laws as to lapsing personal representative, testamentary of legacies is discussed in note in 2 trustee or guardian, on behalf of es- L.R.A.(N.S.) 367. The result in a tate is discussed in note in 40 L.R.A. bequest to a class one of whom died (N.S.) 201. before the execution of the will is " % 11, Pers. Prop. L : — "The ab- discussed in note in 2 L.R.A.(N.S.) solute ownership of personal prop- 580. erty shall not be suspended by any The effect of death of beneficiary of limitation or condition, for a longer testalnentary gift of an annuity be- period than during the continuance fore its purchase is set forth in note and until the termination of not more in 2 B. R. C. 909. than two lives in being at the date of 444 § 391 WILLS Devises. The law of the jurisdiction in which the realty is sit- uated governs the validity of its testamentary disposition. That law may require three witnesses to a will devising realty within ite the instrument containing such lim- tion, note in 26 L.R.A.(N.S.) 724. itatiou or condition ; or, if such in- On allowing specified period for elec- strument be a last will and testament, tion to take under devise or bequest as for not more than two lives in being a violation of the rule against perpe- at the death of the testator. In other tuities, or suspension of the power of respects limitations of future or con- alienation, note in 26 L.R.A.(N.S.) tingent interests in personal property 825. On validity of devise over, upon are subject to the rules prescribed in indefinite cessation of lineal descend- relation to future estates in real prop- ants of first taker, note in 3 L.R.A. erty." (N.S.) 1143. On the validity of re- § 42, Real Prop. L: — "The abso- straints on the alienation of a fee lute power of alienation is suspended, simple during a limited time, note in when there are no persons in being by 3 L.R.A. (N.S.) 668. As to whether a whom an absolute fee in possession child en ventre sa mere may be can be conveyed. Every future es- considered as in being for purpose of tate shall be void in its creation, which rule against perpetuities note in 4 shall suspend the absolute power of B. R. C. 492. alienation, by any limitation or con- On the effect of the doctrine as to dition whatever, for a longer period possibility of issue extinct in deter- than during the continuance of not mining whether the rule against per- more than two lives in being at the petuities has been violated, note in 48 creation of the estate; except that a L.R.A.(N.S.) 867. The conflict of contingent remainder in fee may be laws as to perpetuities is discussed in created on a prior remainder in fee, note in 2 L.R.A. (N.S.) 432. to take effect in the event that the Perpetuities as affecting gifts to persons to whom the first remainder is charities are discussed in the f ollow- limited, die under the age of twenty- ing notes: one years, or on any other contin- On the effect of the rule against gency by which the estate of such per- perpetuities on the enforcement of a sons may be determined before they general bequest for charity or re- attain full age. For the purposes of ligion, see note in 14 L.R.A. (N.S.) this section, a minority is deemed a 66. As to restriction on alienation in part of a life, and not an absolute devise of real estate to religious so- term equal to the possible duration of ciety for special uses, see note in 11 such minority." L.R.A. (N.S.) 523. The effect of a For a series of authoritative dis- direction for accumulation upon the cussions on points involving the rule validity of a charitable gift is dis- against perpetuities see the following cussed in note in 2 B. R. C. 880. notes: The effect on a particular estate On devise of life estate to unborn where the remainder is void for re- chUdren of living parents as contra- moteness is discussed in note in 3 vening the rule against perpetuities L.R.A. (N.S.) 63t). see note in 6 L.R.A.(N.S.) 330. On The effect of a decree of distribu- the limitation of estate upon probate tion following a testamentary dispbsi- of will as a violation of the rule tion of property void under the rule against perpetuities, note in 10 against perpetuities, or as unlawfully L.R.A.(N.S.) 564. On allowing suspending the power of alienation is period for conversion of property as discussed in note in 15 L.R.A.(N.S.) violation of rule against perpetuities 900. or suspension of the power of aliena- The validity of limitation upon NEW YORK ESTATES AND SUBROGATES § S91 bffuiids. If the realty is mortgaged, its devisee' takes the 'land suli- jfeet to the mortgage unless the will expressly provides otherwi.^e." Remeibber that the will speaks as of the testator's death ; so that if he devises real property and sells it before he dies, the devisee will be shorn of his devise, and if he buys ieal property before he dies it will go to whomever is his residuary devisee or to his heirs if he has no devisee. An execiitor; should be given power to, sell, mort- gage or lease realty devised, i If no one but. the particulax person named executor is to exercise this power, it must be so stated; other- wise an administrator c. t. a. can exercise it.^' Every will made by a testator in express terms of all his real estate or in any other terms denoting his intent to devise all his real property passes all the real estate which he was entitled to devise at the time of hisideath.^" Bequests. The testator's domicil must be known, as by its laws the disposition by will of his personalty is governed. Specific arti- cles or property must bei so described as to make their identification indisputable after the testator's death. If the testator's life is in- sured, find out if he thinks he is bequeathing 'it. Remember that the will speaks as of the testator's death. Codicil. A codicil must be executed in thejsarne way as a will,^ It should state whether any disposition of property made by it to any person named as beneficiary in a prior testamentary paper or papers is in addition or in place of the former disposition. ; Provisiofi for hushaiid or wife. It, should be .stated whether a testamentary provision by a husband for a wife is in lieu of her dower in, his realty, or a provision by a wife for a husband is to bar his curtesy.,''. It is sometimes .desired to make such provisions, or provisions of personalty, conditional on the surviving spouse not marrying again. ' Dev'iies and bequests to corporations,^ charities,* subscribing wit- nesses^ &t(i., axe discussed elsewhere, i. . , , , I ; FoTTnalities of execution, such as the attestation clause ; * signa- tures of testator'' and witnesses;* acknowledgment;' publication,*" etc., are elsewhere discussed. ; power of alienation imposed upon de- * Deced. Est. L. § 21. vise of equitable estate to married * See § 47 and 50, supra. women is discussed in note, in 28 ' Sefe § 379, supra. L.R.A.(N.S.) 426. * See § 380, supra. The effect on prior takers of fail- * See § 381, supra, ure of a gift because it violates the * See § 392, infrai. rule against perpetuities is taken up ' See §§ 394-5, infra, in note in 20 L.R.A. 509. * See § 399, infra. "See § 483, infra. "See § 386, infra. 19 C. C. P. § 2695. " See § 396, infra. «" Deced. Est. L. § 14. 446 § 392 WILLS Advancements and satisfaction. If the testator intends advance- ments' br gifts by him to legatees duririg his life to be set ofif against his testamerltary provision for them, he must say so in his wU." § 392. Wills: Execution, Formalities in General. — The question of intestacy or the valid execution of a will depends upon the law of ^he place Where the decedent was domiciled at the time of death and not at the time of execution of the will.^^ Every last will and testament of real or personal property, or both, must be subscribed by the testator at the end of the will ; and the subscription must be made by the testator in the presence of each of at least two attesting witnesses or must be acknowledged by the testator, to have been so made, to eadhof at least two attesting witnfesses.^' The testator, at the time of Wi'aking such silbSeription, or at the time of acknowledg- ing the same; inust declare the instruln'ent so subscribed to 'be his last will and' testament.^* Each of the (at least) two attesting wit- nesses must' sign his name at the end of the will, at the request of the testator." "The legislature have made four things essential to the proper execution and attestation of a will, and a want' of con- formity to any of the requisites will invalidate the instrument as a testament. They are!," a subscription by testator at the end of the will." The making of such subscription in the presence of each of the attesting witnesses." A declaration by the testator, at the time of making Or acknowledging the subscription, that the instrument so subscribed is his last will and testament ; 4. Two attesting wit- nesses who shall sign at the end of the will at the request of the testator." " Illustrations of a few cases of sufficient execution are collated in the. note.';** ,To constitute. a SLuflficient execution of a^will *' See § 551, infra'. third witness sent for; will dictated ** Dupuy V. Wurtz, 53 N. T. 556 and written in presence of notary (1893). and testator; read to testator and The law governing wills is taken then signed by him in presence of up in an extensive note in 2 L.R.A. notary and two witnesses; testator (N.S.) 408. asked one witness, in presence of nb- 1* £)eeed. Est. L. § 21. tary and other witness, to sign ; no- ^* Lewis V. Liewis, 11 N. T. 222 tary asked other witness, in presence (1854) ; Matter of KeHum's' Will, 52 of testator and first witness, to sign; N. Y. 517 (1873); Whitbeek v. Pat- both witnesses and notary signed in terson, 10 Barb. 608 (1851) ; Doe v. presence of all four (testator, notary Roe, 2 Barb. 200 (1848); Matter of and two witnesses.) Jacobs, 73 Misc. 162, 132 ' Supp. 481 Md,tter of Austin, 45 Hun, 1 (1911). (1887) a will's execution is suffieient- i*''Ludlum V. Otis, 15 Hun, '410 ly shown by proof that the witnesses (1878), holding WUl properly exe- went, on call to act as such, to deeed- cuted under New York law when tes- ent's'honse; the decedent said the tator in Switzerland and in presence paper on the table was his wiU; they of notary and two witnesses stated signed, in his arid in each other's wished notary to draw it, and had presences, a full attestation clause — 447 NEW YORK ESTATES AND SDRROGATES § 392 it must appear that, as between the testator and the witnesses, there was some meeting of the minds upon the understanding that the instrument was the testator's will," that it had been subscribed by him and that the attestation of the witnessea;' was desired to the will so subscribed. A substantial compliance with the statute, without any particular form of words, suffices.^* The purpose of the, statute of wills is to make sure that the tes- tator is aware he is, making a will and that he be not im- posed on and procured, to sign a will when he supposes it to be some other instrument: it is for this reason that the witnesses must be .told the paper they attest, is the signer's will- — not that they should know it is a will.^'' When construing a will, once it is probated, the intent of the testator is everything and the intent of the legislature in enacting the statute of wills is nothing ; but in determining the proper execution of a will before it is probated, the, intent of the legislature in enacting the statute is everything and the. intent of the testator is nothing." A will is duly executed when the several acts required by the statute have been performed ai the same time, whatever the order may have been in which such acts were severally performed.^" The signing or acknowledgment by the testator, the publication, and the attestation of the witnesses must be successive, continuous and contemporaneous acts, and the lapse of over two years after the instrument was. signed by one witness before it was and nothing more: The testator's over, and being tqld it was his will, signature was very plain. and asked to sign it. Matter of Holmberg,'83 Misc. 245 On execution of will on Sunday (1913)> or 145 Supp. 846. 'A holo- see note in 14 L.R.A. 194. graphic will is suf&ciently executed The effect of execution by mistake when the' subscribing witnesses saw it, of will intended fpr another person already signed by the.itestator, .before is discussed in note jn 3 B. R. 0. 341. submission to the witnesses fcr signa- On the execution of soldiers' and ture; when the .decedent's ; nurse in seamen's wills see note in 4 B. R. C. the presence of decedent and wit- 899. nesses said it was dace^ent'^ wiQ and *' Matter of Turell, 166 N. Y. 3^0, latter wanted , witnesses to sign it; 59 N. E. 910 (1901) ; Gilbert, v. ICnox, when decedent said "Yes" or nodded or American Bible See. v. Knox, 52 his head up and down, .according to N. Y. 125 (1873). the respective testimony of the two ** Matter of Turell, supra ; Gilbert witnesses, , ;|., , V- Knox, supra. , : Matter of Levengstoij,, 158 A. D. 69 "Trustees of Auburn Seminary (1913), or 142 Supp. 829. A will is y. Calhoun, 25 N. Y. 422 (1862). suffiqiently executed when holo- " Matter of Andrews, 162 N. Y. 1, graphic; one witness saw signature of 48 L.R.A. 662, 76 Am. St, Rep. 294, testator and signed it in latter's pres- 56 N. E. 529 (1900) ; Matter of ence after he had been .told ;it, was O'Neil, 91 N. Y. 516,(1883). his will, and asked to sign; it; and an- ." Doe v. Roe, 2, Barb. 20.0 (1848) ; other independently, signed it in, the Lewis v. Lewis, 11 N. Y. 222 (1854). testator's presence, after reading it 448 § 393 WILLS cigned by the othet exceeds all reasonable limitations.^" A will cannot be probated unless all the requisites to its due execution have occurred in the presence of each witness whose testimony is essen- tial to its probate.^ Though there be no doubt that a decedent in- tended a paper propounded as his will to be such yet probate will be denied for reasons of public policy when there is a complete failure to comply with the statutory provisions as to execution.^ When no fraud is claimed, if the testator's signature is visible, the witnesses hear the acknowledgment thereof and the declaration by him that it is his will, probate should not be refused because they do not look closely to see the signature before their eyes.' The sub- scription or acknowledgment and publication of a testamentary instrument are independent facts, each of which is essential to its complete execution.* Both a sufficient publication and a request to attest, made to each of at least two subscribing witnesses, must be proven before a will can be probated.* § 393. Id.: Place of Testator's Signature. — The statute of wills prescribes that each will must be "subscribed by the'testator at the end of the will." * The word "subscribe" and the phrase "sign his name" as used in the statute of wills mean the same thing.' The statutory requirement that it is essential to the valid execution of a will that it be subscribed by the testator at the end was intended to, and did remove the construction that the writing of the name in the body of the will, if with intent to give the will validity, was a suf- ficient signature.* Its purpose is to prevent fraudulent additions to a will before or after its execution, and should be construed to this end.* The signature by a decedent beneath the attestation clause *• Matter of Harty, 85 Misc. 628 end is taken up in notes in 17 L.R.A. (1914), or 148 Supp. 1052. (N.S.) 353; 23 L.E.A.(N.S.) 515, 1 Tyler v. Mapes, 19 Barb. 448 30 L.R.A.(N.S.) 1173. (1854), will had been signed and pub- 'Matter of Jacobs, 73 Misc. 162, lished and two of three witnesses had 132 Supp. 481 (1911). signed at testator's request before * Tonnele v. Hall, 4 N. Y. 140 third witness brought in, whose testi- (1850) ; Matter of Will of Booth, 127 mony was needed to probate it. N. Y. 110, 12 L.R.A. 452, 24 Am. St. « Matter of Kiolin, 37 Misc. 187 Rep. 429, 27 N. E. 826 (1891). (1902), or 74 Supp. 937. On writing name in body of will 8 Matter of Laudy, 161 N. Y. 429, as a signature thtereto see notes in 29 55 N. E. 914 (1900). L.R.A.(N.S.) 63, 46 L.R.A.(N.S.) «Baskin v. Baskin, 36 N. Y. 416 552. (1867) : Lewis v. Lewis, 11 N. Y. 222 » Younger v. Duffle, 94 N. Y. 535, (1854) ; Coffin v. Coffin, 23 N. Y. 9 46 Am. Rep. 156 (1884). (1861). Collateral attack on probate where ' Matter of Roe, 82 Misc. 565, 143 decree or will affirmatively shows Supp. 999 (1913). matter below testator's signature, is *Deced. Est. L. § 21. discussed in note in 42 L.R.A. (N.S.) The question when will deemed to 458. have been signed or subscribed at the N. Y. E. & S.— 29. 449 NEW YORK ESTATES AND SURHOGATES §,393 is a sufficient compUance with the statute." A will is signed by the testator at its physical end even if, below the attestation clause, is written the name of a place and a date, because neither a will nor an attestation clause. need be dated and such a date will not be con- sidered a necessary part of the will." Since 1912 the court of ap- peals has taken a more liberal, view of, what constitutes the "end" of £^ will than it did before; and abandoned its very strict interpre- tation of the statute of wills (which led to denial of probate to so many wills on the technical ground that they, were not signed at their literal "ends") in favor of a ,broader interpretation, saying that its former construction ;of the statute put form, above substance and caused more hardship by denying probate to meritorious wills than good by preventing imposition on testators through probate of instruments not, their,, true wills. '^ The decisions in the note, though decided before the Field case, are in line with it; ^'^ but the cases collated in the following note , should be considered in the "Matter of Busch, 87 Misc. 239, foi-m. The court said in part: , "The 150 Supp. 419 (1914). . natural end of a wUl is where the On the signing of a wUl at end of draftsman stopped writing in the con- instrument where name follows at- secutiVe order of composition. ... testation clause see note in 17 L.R.A.. When read consecutively . . . , it (N.S.) 354. ,,, has the signature at the physical end "Matter of Talbot,. 91 Misc. ,382, . . , Form should not be raised 154 Supp. l083 (1915). above substance . . . and the sub- 12 Matter of Field, 204 'N. T. 448 stantial thing . . '. is a paper (1912). This will wa^ held sufficient- which reads straightforward and ly subscribed at its end: (1) A one- without interruption from beginning sheet, printed form, reading ". ... to end . . . ." , I being of sound and disposing ^^°- Younger v. Duffie, 94 N. Y. 535, mind . ,. . do make . . ;, . , this 46 Am. Rep. 156 (1884), a subscrip- to be my last will ■ . • .First, after tion by a testator following after the all my lawful debts are paid, i." ;(2) insertion in the will of the langjiage A Wank space of 5 or 6 inches follow- of the notary reciting its mode of exe- ing such print. (3) This printed mat- cution, and the names of the witnesses ter following the blank space;. ,"I and the statement of the fact that the hereby appoint -r- to bg execut — of will was read to all of them (i. e., this my last will . . . hereby re- after an attestation clause) is at the voking all former wills," and the end of the will under the statute, a.s usual testimonium clause and the what shall form part of the will is word "witnesses." (4) In the blank for the testator to (determine. ' space was written in testator's hand- Matter of Laudy,. 161 N. Y. 429, writing: "Will and direct that my 55 N; E. 914 (1900), a testator's estate be settled as per the provision signature immediately beneath the of the pages hereto attached and usual attestation clause is a sufficient numbere.d from one to. six inclusive," subscription. etc. (5) Tbe six sheets, in decedent's Matter o;f : Dayger, 47 Hun, 127 liandwriting, were pinned in there, (1888). A will is signed at the end numbered 1 to 6, consecutively. (6) when on 44 sheets glued end to end The testator and witnesses signed at together so as to form one strip, on the places provided in tlie printed one side of which strip the will was 450 § 393 WILLS light of tlie Field opinion.^''' When na suspicious circumstance or fraud or imposition is shown and the testameBtary script is in per- fect grammatical sequence and there is ino inherent evidence that any dispository clause was written after a subscription at the logical or grammatical end, as distinguished from the physical end, of the will, the subscription at the former end will satisfy the statute/^ written and signed by testator, leav- man (a) on the first page; then (b) ing only two lines to bottom of sheet, on the.flrsti page of the second leal' and paper then folded y/ith one fold,, (being the third page of the blank), and turned over, and attestatioii marking it at the top "2d p.," then clause written on the other fold. ' (c) on the second page of the first Matter of Beck, 6 A. D. 211 (1896) leaf, containing the closing part of or 39 Supp. 810; aff'd 154 N. Y. 730, the,will in print, marking it at the lop 49 N. E. 1093. A will is isufficiently "3d p." , , ; signed at the end both by the' testator Matter of Foley, 76 ivfisc. 168 and witnesses when the' attestation (1912), or 136 Supp. 933. Vv'hen the clause is carried entirely across the testimonium clause read: "In wit- face of the paper and separates the ness .thereof. I have hereunto sub- testator's signature from the signa- scribed my name and affixed , my seal tures of the witnesses, he si'gningj at Ko. 307 Lenox Avenue, in the above and they below.' ' ' Borough of Manhattan, City of 'New 12* Matter of Whitney, 153 N., Y. Yorkythis tiveiity-eighth day of Sep- 259, 60 i^m. St, Rep, 616, 47 I^. E, tember, 1911, in the presence of 272 (1897). A will is not subscribed Anthony F. Cassidy and Frederick J. at the end when made on a printed Fuller whom I have requested to be- blank covering only one, page, even come attesting witnesses thereto," the though signed by the testator and the italicized words will be refused pro- witnesses at the foot of such page, if .Ijate when, inserted by the lawyer who the blank space in the prin^ted form is, drew the will after the testator signed filled by subdivisions marked "1st*' eveni though the latter afterwards and "2d," followed by the words "See published it and asked the witnesses annexed sheet;" and additional, sub- to sign, because it must be signed at divisions , marked, "3rd", and "4th" its end,, and the testator did not again are written on a separate piece at- sign it when the italicized words bad tached by removable metal staples been inserted: before its end. : , . to the face of the blank, .immediately ^^ Matter of Peiser, 79 Misc. 668, over, the 1st and 2d subdivisions. 14fl,,'Supp. 844 (1913),, .(following- Sisters of Charity of St. Vincent Matter oJq Field, 204 N. Y.,448, 39 de Paul V. .Kelly,,, 67 N. Y, 409, L.R.A.(N.S..) 1060, 97 N. E. 881, (1876):. A subscription by the testa- Ann. Cas. 1913C, 842),— will was tor after the witnesses have signed or 1 she'et folded in middle to make 4 before a clause appointing an execu- pages, and written (a) on page 1st,, tor and revoking former wills is not then .Dnpage 4th, then, on page 2, at the end. where signed b}' testator and wit- Matter of Andrews, 162 N., Y. 1, nesses, -with attestation clause. 48 L.R.A. 662, 76 Am. St. Rep. 294, Matter of Reisner, 81 Misc. 101 56 N. E. 529 (1900). A will is not (1918), -or 142 Supp. 1074— decided signed at the end when ^rawn on a after Matter of Field, supra. A wUl printed: bla,nk consisting of one sheet is not, signed at the end when written of four pages the two leaves of on a blank of one sheet folded at the which were joined from, top, to bottom middle to form 4 pages; signed by the on the left side, filled by the drafts^ testator both where he stopped writ- 451 NEW YORK ESTATES AND SURROGATES § 394 There can be but one end both for the testator and the witnesses.** When nothing intervenes between the instrument and the subscrip- tion, the signature is at the end.** A will signed by the testator before the testimonium clause is signed at the end under the statute because the testimonium claiase is strictly no part of the will." § 394. Id.: Manner of Testator's Signature.^The requirement of the statute of wills that the testator subscribe his will does not mean that he must write out his name at lengths If a testator is physical- ly unable to sigh his nanie, aid, even to the extent of holding his hand and guiding it, so long as the act of signing was pursuant to the will in his rnind to sign, does not make the signature, any the less his." A mark adopted as a signature becomes such within the statute's meaning; but when orie who can write makes a mark in- stead of signing his name to a will, and those obtaining substan- tial interests under the will are instrumental in obtaining it, while other interested persons act as witnesses, clear and satisfactory evi- dence is required to meet the burden of proof." A mark made by the testator, as and for a subscription, is a "subscription by the testator at the end of the will" under the statute.** His name, with the additional words "his mark," When written around or by the cross "is useful and important, not only as a guide to the memory of witnesses, and as a contemporaneous declaration of the purposes of the mark, but as a protection against frayid; but it is not of the essence of the execution." *• A testator has subscribed his name to a will when the draftsman of it signs the testator's name at liie latter's request and the latter then affixes his mark.* Every person signing ing near the top of the 3rd page and On signature made by hand of un- at the bottom of the first page where conscious person see note in L.R.A the blank form provided for his signa- 1915B, 675. ture, and at the end of the printed at- *' Matter of Irving, 153 A. D. 728 testation clause on the first page; (1912), or 138 Supp. 784; afl'd 207 signed by the witnesses after siich at- N. Y. 765, 101 N. E. 1106, will ad- testation clause and also opposite the mitted. other signature of the testator on the Whether ability to write invalidates 1st page. signa;ture to will, made by mark or by ** Matter of Hewitt, 91 N. Y. 261 aid of other person guiding tlie pen (1883). is discussed in note in 7 L.R.A.(N.S.) *6 Matter of Gilman, 38 Barb. 364 1193. (1862) — the distance from the last *' Jackson v. Jackson, 39 N. Y. 153 line is not fixea by statute; Matter of (1868). Dayger, 47 Hun, 127 (1888) . *' Jackson v. Jackson, supra. ** Matter of Wright, N. Y. L. J. On signature by mark ; signing wiU, March 20, 1916. see note in 22 L.R.A. 370. *'' Matter of Baumann, 85 Misci 656 * Voorhees v. Voorhees, 39 N. Y- (1914), or 148 Supp. 1049. 463(1868). On what amounts to signature by On signature of will by other per- testator see note in L.R.A.1915D, 902; son see note in 22 L.R.A. 299. 452 § 395 WILLS a testator's name to any will by the latter's direction must write his own name as a witness to the will; and whoever neglects to do so forfeits $50 to be recovered by any person interested in the proper- ty devised or bequeathed who will sue for the sum ; but the omission does not affect the validity of any will nor is any person liable to the penalty excused or incapacitated on that account from testifying respecting the execution of the will.* § 395. Id.: Acknowledgment. — A testator's subscription to his will must either be made by him in the presence of the witnesses or acknowledged by him to them to have been so made.' It is es- sential that subscribing witnesses to a will either see the testator subscribe his name or that the testator's signature be visible to them when he acknowledges it to be his; because subscribing witnesses are required for the very purpose of attesting and identifying the testator's signature and they cannot do this unless one or the other of these alternatives be adopted.* Publication cannot take the place of acknowledgment.* Upon this branch of the statute it is the subscription, not the will, which is to be acknowledged.* The re- quirement that the subscription of a testator to his will or its ac- knowledgment to the witnesses shall be in the presence of each of the witnesses who attest it, is to identify and authenticate the in- strument as the one subscribed by the party.' An acknowledgment to a subscription of a will is not sufficient unless the signature was so visible to the witnesses that they could see and know it was the testator's.* An acknowledgment of a signature by a testator to a will is sufficient if he verifies it as authentic, without reference to the form in which the acknowledgment is made, e. g., by presenting it himself, after signing it, to the witnesses for attestation and pub- lishing the paper so subscribed as his. will.* Production by a man of a paper personally drawn and subscribed by him, and declara- tion by him to others present, while his subscription is in plain sight, that the paper is his last will and testament, and request by him of them to sign as witnesses, is all that is needed to publish the will and acknowledge his subscription." Presentation of a will to * Deced. Est. L. § 22. nature is taken up in notes in 38 SDeced. Est. L. § 21. L.R.A.(N.S.) 161, L.R.A.1915B, 87. * Matter of Laudy, 148 N. Y. 403, * Lewis v. Lewis, 11 N. Y. 222 42 N. E. 1061 (1896); Matter of (1854). Bernsee, 141 N. Y. 389, 36 N. E. 314 ' Baskin v. Baskin, 36 N. Y. 416 (1894) ; Matter of Mackay, 110 N. Y. (1867) . 611, 1 L.R.A. 491, 6 Am. St. Eep. 409, * Matter of Laudy, 14 A. D. 160 18 N. E. 433 (1888). (1897), or 43 Supp. 689. s Matter of Van Geison, 47 Hun, 5 * Baskin v. Baskin, 36 N. Y. 416 (1888). (1867). The necessity that witnesses see " Matter of Bassett, 84 Misc. 656 testator sign, or that they see his sig- (1914), or 148 Supp. 1049. 453 NEW YORK ESTATES' AND SURROGATES r:!95-: ite witnesses with the testa;t6r's signature in plain sight is a sub- stantial ackno'wledgment of its execution." Actual exhibition and disclosure by the testator to the witnesses of both -will and signature, accompanied by a declaration of the* testamentary character of the instrument, is a sufRcient acknowledgment of the signature.^* The exhibition of the will and the testator's signature on it, his declara- tion to the witness that it is his will, and his request to the witness that the latter attest it, are a sufficient acknowledgment and publi- cation.** An acknowledgment by a testator to a^ witness that a paper is his will when the witness did not see the testator sign and did not see his signature to the will but only the testator's name written into the attestation clause, though in' the testator's own handwriting, is not sufficient.^* The acknowledgment by a testator of his signature is sufficient if one acting for hini holds the will in his hand, reads the attestation clause in the presence of the testator and witnesses, and asks the testator if the paper is his will, to which the latter replies affirmatively.** A statement by the will's drafts- man to a witness in the testator's presence, while so holding the paper that the witness could not see the place where the testator's signature appeared, that it was the testator's will, is not a sufficient acknowledgrrient of the signature, if the testator makes no intima- tion of assent.** The testator's acknowledgment of his signature must be made at the tiiiae the witness attests the will, e. g., if the decedent makes no such acknowledgment when the witness signs but tells the witness weeks later that the instrument was his will, the signature is not sufficiently acknowledged." A declaration by the testator that a paper is his will and an acknowledgment by him that the signature to it' is his are sufficiently made if made simul- taneously with the signature of the witness or before the latter has finished his signature." Illustrative cases of the sufficiency of a testator's acknowledgment of his subscription to his will are found in the note.**" ** Matter of Lang, 9. Misc. 521 (1890), or 9 Supp. 396; aff'd 134 (189'4),or30 Supp. 388. ' N. Y. 614, 32 N. E. 649. *2 Matter of Holmberg, 83 Misc. *« Matter of PhiUips, 98 N. Y. 267 245 (1913), or 145 Supp. 846. (1885). *3 Matter of PhUlipg, 98 N. Y. 267 *'» Matter of Hunt, 42 Hun, 434 (1885). ' (1886), afE'd 110 N. Y. 278, 18 *4 Matter of Keeffe, 155 A. D. 575 N. E. 106. A will with an at- (1913), or 141 Supp. 5; aff'd 209 testation clause, "We, the under- N. Y. 535, 102 N. E. 1104, Deced. signed, witnesses, have signed the Est. L. § '21, subd. 2. within, in the presence of each *^ Whitbeek v. Patterson, 10 Barb, other and of the testator, who ac- 608(1851). knowledged it to be his last will and ** Baker v. Woodbridge, 66 Barb, testament," is properly admitted when 261 (1873). the witnesses testify they would not *' Matter of Dale, 56 Hun, 169 454 I 396 WILLS § 396. Id.: Publication. — The requirement of publication of a will in the presence of each of the attesting witnesses ^ is to prevent imposition upon the testator by procuring him to execute and ac- knowledge a will or codicil under pretense that it is a paper of a dififerent nature.^" The statute does not prescribe the terms needed for the publication of a will or the request to the witnesses to be- come such; but such acts must be done.* Publication is accom- plished if the testator by sounds, signs or otherwise makes known to the witnesses the nature of the paper and requests them to sign.^ Any communication by the testator to the witnesses whereby he makes known to them that he intends the instrument to take effect as his will is a sufficient publication.^ When subscribing witnesses are clear that the word "document" was used to designate the paper they signed and state their lack' of recollection as to whether the al- leged testator described the paper as a will, the fact that the paper propounded as the will is holographic and has a holographic attesta- tion clause does not save it from rejection as an unpublished will.* When one witness to a will cannot be found and the other testi- fies that though the testator signed in the presence of both witnesses and requested the testifying witness to sign and he signed himself and saw the other witness sign, yet the request was only to sign "the instrument," there is no such communication of the testamen- tary character of the instrument by the testator to the witnesses as entitled the will to probate, however full the attestation clause may be in reciting that the instrument was a will.° It is not sufficient that the attesting witnesses to a paper have learned elsewhere and from other sources than the testator that the document which they are called to attest is a will, or that they suspect or infer from the have signed if such clause had not witness saw the deceased's signature; been true, even though they cannot the decedent took the paper and said say whether they signed before or aft- "I declare this to be my last will and er the testator when the fair infer- testament ;" and delivered it to one of ence is, from the testator's signature the witnesses to keep safely, being in the witnesses' full view, that *^ Deced. Est. L. § 21. he signed in their presence. Mitchell '" Baskin v. Baskin, 36 N. Y. 416. V. Mitchell, 16 Hun, 97 (1878), aff'd (1867). 77 N. Y. 596. A will's signature is * Vogel v. Lehritter, 139 N. Y. not made to satisfy the statute when 223, 34 N. E. 914 (1893). the deceased came to a store where the ^ Lane v. Lane, 95 N. Y. 494 two witnesses were; said "I have a (1884). paper that I want you to sign ;" one * Coffin v. Coffin, 23 N. Y. 9 of them took the paper and saw what (1861) ; Matter of Hardenbiirgh, 85 it was and probably the signature; the Hun, 580 (1895), or 33 Supp. 150. deceased said "This is my wUl; I * Matter of TurreU, 28 Misc. 106, want you to witness it;" the two wit- 59 Supp. 780 (1899). nesses signed under the attestation * Matter of Delpart, 27 Misc. 355 clause; it is questionable if the second (1899), or 58 Supp. 768. 455 NEW YORK ESTATES AND SURROGATES § 397 circumstances and occasion that such is the character of the paper.® While pubhcation to, and request of, the witness to sign may be made on different occasions and when the witnesses are separated and apart, yet both the publication to and request of each of two witnesses must be shown to prove due execution.'' The time when the testator declares the document to be his will, in relation to the time when he signs it, is of no importapce — whether just before, or while, or immediately aftei signing;* While what is said in the presence of and for a man vigorous in mind and body may be taken as his act, yet the same statements in the presence of and for a man feeble at the end of an eleven years' sickness must, to be taken as his act, be proven clearly to have been adopted by him.' lllijs- trations of acts constituting and not constituting due publication of a will are found in the note." § 397. Id.: Republication. — The same formalities and proof are required to establish a republication of a will as are plainly re- « Lewis V. Lewis, 11 N. Y. 222 Seguine v. Seguine, 2 Barb. 385 (1854). (1848). It is a sufficient publication '' Matter of Roe, 82 Misc. 565, 143 if, immediately on finishing his signa- Supp. 999 (1913). ture, the testator puts his finger on * Matter of Bauman, 85 Misc. 656 the seal and says "I acknowledge this (1914), or 148 Supp. 1049. to be my last will and testament" — the * Heath v. Cole, 15 Hun, 100 word "declare" need not be used. (1898). Matter of Shaper, 86 Mise, 577 "•Darling v. Arthur, 22 Hun, 84 (1914) or 149 Supp. 468. A will is (1880). A sufficient publication oc- not published when the whole trans- curs when the testator came to the action of its execution is included in home of his brother and niece; said this statement: The decedent went "J., I want you and B to witness my from her part' of a house to another will;" asked for pen and ink) took with a paper written by her; asked a the paper from his pocket ; sat- down ; woman if her husband was in ; went to signed the paper with the pen the library where the husband was; and ink brought by his niece; the said to the husband she had a paper brother and niece signed as witnesses she wished the husband to sign; after the usual attestation clause ; the signed the paper and the husband testator put the will in his pocket and signed as witness ; said to the wife she carried it away. Torry v. Bowen, 15 wanted her to sign ; the wife signed as Barb. 304 (1853). There is .sufficient witness — all signing in presence of publication when doctor who drew each other. Matter of Holmberg, 83 will said another had be^t be witness Misc. 245 (1913), or 145 Supp. 846. because he was named executor; one A statement by a nurse in the testa- of witnesses was sent for another ex- trix' presence and in the presence of pressly to witness the will; testator the subscribing witnesses that the signed while both witnesses watched holographic paper was the former's him, pointed to his signature and seal will and that "she wants you to sign and said they were for the uses and it;" to which the testatrix answered purposes therein mentioned; the doc- "Yes" according to one witness and tor read the attestation clause, in tes- nodded her head up and down accord- tator's presence, to the witnesses, who ing to the other is a sufficient publi- signed in the testator's presence, cation. ' 456 § 398 WILLS quired to establish its original publication.^* A will which has been revoked can be revived only by its republication in the presence of its attesting witnesses.** An effective republication must be in the presence of those who subscribed to the original will, as required for the original publication; and a decedent's oral declaration in the presence of one of the subscribing witnesses to a former will that he desired to have such former will probated does not revive it.*' The word "republish," as used in the statute, is to be taken . in its general and not in its technical sense ; so that a good will re- sults from a paper reciting earlier wills which cannot be found but are unrevoked, incorporating copies of such earlier wills and stating that the testator does "repubUsh the said last will and testament and codicils thereto, and do hereby declare the same to be my last will and testament and codicils thereto." " A codicil, referring to a completely executed and existing earlier will and reviving and re- publishing it, with such will, constitutes the final testamentary dis- position of the maker, even though between such will and codicil there intervenes another will of the same testator in terms revoking all other wills; because the codicil impliedly revokes every will prior to it in date except such as it incorporates in itself.** A will not duly executed because not signed at the "end," according to their construction of the statute, may nevertheless be admitted to probate with a codicil duly executed referring to and reaffirming the will.*8 § 398. Id.: Attestation: Request to Witnesses to Sign. — Each of at least two of the attesting witnesses must sign his name as witness at the request of the testator.*'' It is sufficient if the drafts- men or another in the presence and with the permission and ap- proval (though silent) of the testator asks the witnesses to sign and they do so.** A request of witnesses to sign a will is sufficiently made if made by one superintending its execution in the hearing ** Deced. Est. L. § 41 ; Matter of On the effect of signature to codicil Stickney, 161 N. Y. 42, 76 Am. St. of will not signed at the end see note Rep. 246, 55 N. B. 396 (1899). in 17 L.R.A.(N.S.) 357. *^ Matter of Stiekney, supra. *'' Deced. Est. L. § 21, slibd. 4, *8 Matter of Kuntz, 163 A. D. 125, *'Dack v. Daek, 19 Hun," 630 148 Supp. 382 (1914), Deced. Est. L. (1880) ; modf'd 84 N. Y. 663; Matter § 41. of Nelson, 141 N. Y. 152, 36 N. E. 3 "Matter of Beams, 89 Misc. 712 (1894); Gilbert v. Knox, or Ameri- (1915), or 153 Supp. 1089, aff'd 154 can Bible Soc. v. Knox, 52 N. Y. 125 Supp. 1111. (1873) — ^testator took will after wit- " Matter of Campbell, 170 N. Y. ness signed it, in the witness' pres- 84, 62 N. E. 1070 (1902). ence, and retained it; Matter of *« Matter of Douglass, 38 Misc. 609 Voorhis, 125 N. Y. 765, 26 N. E. 935 (1902), or 78 Supp. 103. (1891). 457 NEW YOKK ESTATES AND SURROGATES §§ 399, 400 and with the silent permission and approyal.qf the testator.^' The time when the witnesses must be requested to become such is not fixed by the statute: it is sufficient if the request is made at the same interview when the will is executed.^" . § 399. Id.: Witnesses' Signature. — A signature by an attfeting witness of the testator's name, "Jno. R. Jacobs," at the end of the attestation (followed by the witness' address) , by inadvertence for the witness's own usual signature of "Jno. D. Lynn," with the in- tent of duly attesting the will, is a sufficient compliance with the statute.* Attesting witnesses to a will need not sign in the testa- tor's presence.^ A will is not attested in compliance with the statute when the witnesses sign before the testator, even though at the same interview.* It is not necessary to the due attestation of a will that the witnesses should subscribe in the presence of eax;h. other or on the same occasion.* Attesting witnesses to a will must sign it be- fore the testator's death, because the will takes effect at the time of such d^ath.^ The lapse of over two years after the paper was signed by one witness before it was signed by the other exceeds all reasonable limitations, even though the statute does not directly provide when the witnesses shall sign.® • § 400. Id.: Witnesses' Addresses.— The witnesses to any will must write opposite to their names their respective; places of resi- dence ; and whoever neglects to comply with this requirement for- feits $50, to be recovered by any person interested in the property devised or bequeathed who will sue for the sum.'^ ; But ^such omis- sion does not affect the validity of any will, nor is toy person, liable to the penalty, excused; or incapacitated on that account from tes- tifying respecting the execution of the will.* ' The requirement of the law that a witness- to a will write opposite his name his "place of residence" is satisfied by his stamp and. seal on the will leaving *® Matter of Hardenburg, 85 Hun, before testator signs it is discussed 580 (1895), or 33 Supp.,150. ■■ . ■ in notes in 14 L.R.A. 160; 26 L.R.A. ^oSeguine V. Seguine,,2 Barb. 385 (N.S.) 1126. (1848). , ! ; ' * Willis, v. Mott,,36 N. Y. 486 1 Matter of Jacobs, 73 Misc. 162, (1867); Matter of Harty, 85 Misc. 132 Supp. 481 (1911). ' 628 (1914), or , 148. Supp. .1052; 2 Matter of Phillips, 34 Misc,.442, Hoysradt v. Kingpaan, 22 N. Y. 372 69 Supp. ion' (1901).; Lyon v. (1860). Smith, 11 Barb. 124 (1851). ^ Matter of Fish, 88 Hun, 56 When a witness, is deemed; to; sub-, (1895) or 34 Supp. 536; aff'd 153 scribe in testator's presence is dis- N. Y. 679, 48 N. E. 1104. ; cussed in note in 1 L.R.A.(N.S.) 393. ® Matter of Harty, 85 Mise. 628 3 Jackson v. Jackson, 39 N. Y. 153 (1914), or 148 Supp. 1052. (1868). fDeced. Est. L., § 22.. The signature of witnesses to will ' Deced. Est. L., § 22. 458 §§ 401, 402 WILLS the impression "notary public, New York county." ' The limita- tion against an action to recover a forfeiture for failure of a wit- ness to a will to put his address after his name begins to run on the testator's death.^' § 401. Id.: Attestation Clause. — The attestation clause is no part of the will and is not required as a part of its due execution by any law.^^ "As a memorandum of what occurred, and as a means of securing the attention of the witnesses to the fact that all required formalities have been observed, it is very desirable that it should be full and precise in its details. Sometimes, when the witnesses are dead, it may be of great importance as presumptive evidence of due execution." ^* The attestation clause is always some proof of the will's due execution.^* When, beyond its presence, it ap- pears that it was read aloud in the hearing of the testator and wit- nesses with at least the silent assent of all concerned, there is some and quite persuasive evidence of the actual occurrence of the facts recited.'^* The formal attestation clause to a will is not of itself suf- ficient when it positively appears; that the essential elements in the due execution of a will are absent;^* A form of attestation clause will be found amongst the forms in this book.^^ § 402. Id.: Alteration and Revocation in General. — The methods of revoking a will may be roughly divided into two classes: (a) by some other instrument, and (b) by some act to the will itself. In adopting the former method the whole or any part of the will may be revoked or altered, while in following the latter method some act must be performed on the will to revoke it in toto, and not to revoke it in part or to alter it in whole or in part. In other words, revocation in part, or alteration either in whole or in part- is possible only by some other instrument. So a paragraph of a will cannot be revoked by drawing diagonal lines across it, writing "cancelled" on it, or by putting a cross in a circle, after the para- graph and writing after the end of the attestation clause words can- celing such paragraph in part by reference to such erossv^' No ^ Bossie V. Edelson, 76 Misc. 234, . On attestation by mark ^see note in 134 Supp. 615 (1912), Deeed. Est. 22 L.R.A. 372. L., § 22 ; querying the constitutional- ^^ Matter of Nelson, 141 N. Y. 152, ity of the statute. 36 N. E. 3 (1894). "Dodge V. Cornelius, 168 N.' Y. "a i^_ 242, 61 N. E. 244 (1901), § 383 C. i* Matter of Turell, 166 N. Y. 330, C. P. ,59 N. E. 910 (1901). , ^1 Jackson v. Jackson, 39 N. Y. ^^ See Form 135, infra. 153 (1868). IS Matter of Hildenbrand, 87 Misc. 12 Jackson V. Jackson,, supra, '471 (1914), or 150 Supp. 1067; On the necessity of attestation Deeed. Est. L., § 34. clause of wUl see note in 14 L.B.A. (N.S.) 255. 459 NEW YORK estates: AND SURROGATES § 403 will in" writing, nor any part Of ^uch a will, can be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator; declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the pur- pose of revoking it, by the testator himself, or by another person in his presence, by his direction and consent ; and when so done by another person not only the direction and consent of the testator but the fact of such injury or destruction must be proven by at least two witnesses; " except that marriage of a inan after making a will disposing of his whole estate, or marriage of an unmarried woman, or birth of a child after the making of either or both of his parents' wills, revoked such will or wills in whole or in part, under certain circumstances." If a man marries after making his will dispos- ing of his whole estate and has issue of the marriage (born either in his lifetime or after his death), and the wife or the issue of such marriage is living at his death, his will is deeriied revoked, unless provision has been made for such issue by some settlement, or un- less such issue are provided for in the will, or are in such a way mentioned in it as to show an intention not to make such provi- sion.^' If an unmarried woman 'marries, her will executed while unmarried is deemed revoked.^" If a parent has a child bom after making his or her will (whether the birth comes about in or after the parent's life), and dies leaving sUch child unprovided for by any settlement, and neither provided for nOr in any way mentioned in his or her will, such will is deemed revoked insofar that such child succeeds to the same portion of such parent's real and per- sonal estate as Would have descended or been distributed to such child if the parent had died intestate.^ An act of alteration or revocation, if in writing, and an act of destruction or of injury, un- less by the testator himself, is required to be proved by witnesses." A surrogate's court cannot restore and establish, as part of a will, portions fraudulently destroyed; but the supreme court can.* § 403. Id.: Revocation by Other Writiiig.— The whble or a part of a will in writing may be revoked or altered by some other will in writing or sortie other writing of the testator which declares such revocation or alteration and is executed with the same formalities "Deeed. Est. L., § 34. «Hook v. Pratt, 8 Hun, 102 "Deced. Est. L., §§ 26, 35 and 36. (1876). *' Deeed. Est. L., § 35. , On the revocation of joint or mu- ^ Deeed. Est. L., § 36. tnal wills see notes in 38 L.R.A. 291 • 1 Deeed. Est. L., § 26. 27 L.R.A. (N.S.) 508; 37 L.R A 2 Lovell V. Quitman, 88 N. Y. 377 (N.S.) 1196. ' (1882). 460 § 403 WILLS with Avhich the will itself was required by law to be executed.* A will is revoked by proof of the execution of a lat-er one containing a clause revoking former wills, even though the later will cannot be found at the testator's death.' Proof of the execution and publica- tion of a will by the same testator who executed the will offered for probate but later than the one offered^ and revoking it, necessitates denial of probate to the one offered even though the later will Jia& been lost or destroyed; because such destruction or loss does not operate to revive a former will.' A revocation of a second will which revoked a first one does not revive the latter.'' But if the second will is denied probate for lack of testamentary capacity in the testator, it does not revoke a former will.' Although the execu- tion of a will revoking a former one results in the rejection of the earlier will even though the later will be not produced, yet to ac- complish this result it must be proven that the later will was duly executed after the earlier one.^ A will , stating : "This will to be regarded as canceled the day I will enter matriijaony," is not re- voked and canceled by the testator's subsequent marriage without making any other will." The statutory provision tliat a will can- ijtot be revoked except by another will or some other writing execut- ed, with the same formalities as a will is satisfied if a trust deed, later than the will, and revoking it, is subscribed, acknowledged and at- tested; and its publication by a statement that it was the grantor's "last will and testament" is not necessary.*^ A willmade interme- diate a former will and a codicil to such former will is revoked if the codicil refers to such former will and such former will contains a clause revoking all prior wills; because, the due execution and pub- lication of the codicil republishes the will to which it refers.^' Due revocation of a codicil not so related to, and (iependpnt upon the will *Deced. Est. L., § 34. capacity to revoke will is discussed On revocation by subsequent will in note in 18 L.R.A.(N.S.) 99. see note in 37 L.R.A. 561. » Matter of Williams, 34 Misc. 748 The subsequent ratiflcatipn, of un- (1901), or 70 Supp. 1055; 2 E. S., authorized destruction as revocation pt. II, c. 6, tit. 1, .§ 42. ; of will is discussed in note in ,2.B. ^' Matter of Steiner, 89 Misc. 66 R. C. 550. (1915), or 152 Supp. 725; Deced. s Matter of Bennett, 166 A. D. 637, Est. L. § 34. 152 Supp. 46 (1915). "Matter of Backus, 49 A. D. 410 « Matter of Wylie, 162 A. D. 574, (1900), or 63 Supp. 544. 145 Supp. 133 (1914) ; Matter of On partition deed as revocation see Brewster, 72 A. D. 587 (1902), or 76 note in 57 L.R.A. 339. Supp. 283. " Matter of . Campbell, 35 Misc. 'Matter of Goldsticker, 192 N. Y. 572, 72 Supp. 55 (1901), aiiC'd 67 35, 18 L.R.A.(N.S.) 99, 84 N. E. 581, A. D. 627, 73 Supp. 1130, the former 15 Ann. Cas. 66 (1908). will was dated 1897, its codicil 1900, ' Matter of Goldsticker,, supra. and the intermediate will 1899. Power of one lacking testamentary 461 NEW YORK ESTATES AND SURROGATES § 404 as to make it impossible to destroy the former without carrying down the latter does not revoke the will.^' If' the codicil modities the will by providing for an additional legacy before creation of the residuary festate, it modifies and revokes the will to that extent, and a partial intestacy results on the revocation of the codicil, as the destruction of the codicil cannot restore to' its original form that part of tiife will which was annulled on execution of the codi- cil.i* § 404. Id.: Revocation by Burning, Tearing, Canceling, Obliter- ating or Destroying.-^A will in writing may be revoked by being burnt, torn, canceled, obliterated or destroyed by the testator (or by another person in his presence, by his direction and consent) .^^ When so revoked by another person, not only the direction and consent of the testator but the fact of such injury or destruction must be proven by at least two witnesses.** "A person may revoke his will by burning, tearing, canceling; obliterating or destroying it, provided the act is done with the intent and for the purpose of revoking the whole will, but he cannot alter or change the will, as made, by burning, tearing, canceling, obliterating or destroying a part of it." " A will cannot be "canceled" except by some act in contradistinction to a writing, e. g., a will is not revoked when no word of it is erased or rdarked over, there is only an unauthenticat- ed endorsement on its back, and the testator kept it in his posses- sion with such endorsement on it.*' A will cannot be'revoked by the cancelation of destrtiction of only a part' of it.*' "The ordinary meaning of the word 'cancel' is to strike out by drawing lines across." *" An obliteration by a testator of a clause in his will does *' Osbum V. Rochester Trust & S. The cancelation or mutilation of a D. Co. 209 N. Y. 54, 46 L.R.A.(N.S.) wiU as afEected by invalidity of a 983, 102 N. E; 571, Ann. Gas. 1915A, second will is taken lip in note in 101 (1913).- 6 L.R.A.(N.S.) 1107. ** Osburri V. Rochester Trust & S. *' Matter of Miller, 50 Misc. 70, D. Co. supra. 100 Supp: 344 (1906). On how far will is modified by On effect upon interference with codicil See note in 1 L.R.A;(N.S.) will itself in the absence of a stat- 397. ute requiring certain formalities as On revocation of prior will by codi- to revocation see note discussed in 41 cil see note in 37 L.R.A. 571, ' L.R.A.(N.S.) 105. ' 16 Deced. Est. L., § 34. '' *» Matter of Crawford, 80 Misc. "Id. 615 (1913), or 142 Supp. 1032; " Matter of Kent, 89 Misc. 16 Deced. Est. L.^ § 34, alterations in (1915), or 152 Supp. 557; Deced. lead pencil, not obliterating type- Est. L., § 34. ; • wfiting underneath ; signature not An attempt to revoke portions of touched. ' ' a will by burning, tearing) canceling, ^"Matter of Crawford, 80 Misc. obliterating', or destroying is' discussed 615 (1913), or 142 Supp. 1032; in note in 38 L.R.A.(N.S.) 797. Deced. Est. L., § 34. ' 462 § 405 WILLS not revoke the will.^ A paragraph of a will is not effectually' and legally revoked or canceled by the running of diagonal lines across it, the writing of the word "canceled" on it, with a manuscript note at the will's end, dated four years after thp will, to the effect that the testator cancels the whole of such paragraph and adds cer- tain things to another paragraph.* A codicil may be canceled either by lead-pencil, cross marks fully covering its face, the words "canceled" twice written in the testator's hand in the attestation clause, and the date in another place ; or by lead-pencil, cross marks on its first clause only, the words "Brooklyn, April. The codicil in the within is this day 20th, 1895 canceled for personal abuse and ungratefulness on her part," and the testator's signature and ad- dress, written all in his hand immediately at the foot of the attes- tation clause.' A "cancelation" of a will results from the simple writing on its face by the testator of the words "null and void," fol- lowed by his signature and its date, if every dispository sentence is in some part intersected thereby (except the clause "revoking all former wills by me at any time made"), as words as well as lines may cancel.* An ink erasure by lines drawn through a decedent's signature to a will, with a memo opposite in his handwriting : "May 20, '92, void; H. D. B." is a sufficient cancelation to revoke the will.® A revocation follows from the excision of the testator's sig- nature by him, the drawing of blue, penciled, diagonal lines across the beginning twelve lines and the words "canceled by J. P. Fran- cis," in the testator's writing, just above the testimonium clause.^ Whether or not a codicil is revoked by the revocation of the will to which it relates depends upon their interdependence and capability for separate existence.'' § 405. Id. : Revocation by Marriage of Testate Unmarried Man. — If, after the making of any will disposing of the whole estate of a testator, he marries and has issue born of the marriage (whether the birth occurs in his lifetime or after his death), and the wife or the issue of such marriage is living at the testator's death, such will is deemed revoked unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will or are mentioned in it in such, a way as to show an intention not to ^Lovell V. Quitman, 88 N. Y. 377 (1912), or 136 Supp. 940; Deeed. (1882). Est. L. § 34. 2 Matter of Hildenbrand, 87 Mise. ^ Matter of Brookman, 11 Misc. 471 (1914), or 150 Supp. 1067; 675 (1895), or 33 Supp. 575. , Deced. Est. L. § 34. 6 Matter of Francis, 73 Misc. 14S 8 Matter of Alger, 38 Misc. 143 (1911), or 132 Supp. 695. (1902), or 77 Supp. 166. ''Matter of Francis, 73 Misc. l48 * Matter of Barnes, 76 Misc. 382 (1911), or 132 Supp. 695. 463 NEW YORK ESTATES AND SURROGATES § 406 make such provision.' No other evidence to rebut the presumption of such revocation is receivable.* The stq,tutory provision that a bachelor's will disposing of his whole, estate is revoked by his mar- riage and his being survived by widow or issue, if the will does not provide for such issue, holds good even though the death of the legatee after the will's execution and during the testator's life results in the will not disposing of the wJiole estate." Marriage and par- enthood after the making of a will disposing of testator's whole estate revoke it unless provision has been made for the issue either by settlement or in the will j 'or the issue has been mentioned in such a way in the will as to show an intent not to make provision for it; and the estate referred to is that existing when the will was made, so that later acquisition of property or; augmentation of the estate after the execution of the antenuptial will does not affect the rule." Fuller discussion of when provision for, or mention of, is- sue is made in a parent's will so as to satisfy the statutory require- ment, will be found under the treatment of the very similar require- ment of the statute regarding after-born children." § 406. Id. : Revocation by Marriage of Woman. — A will executed by an unmarried woman is deemed revoked by her subsequent mar- riage.^' The statutory provision that a will executed by an unmar- ried woman is deemed revoked by her subsequent marriage is based on the presumption that her new status as Wife induces a new testa- mentary intent; and applies to any woman not in a state of mar- riage at the time the marriage in question takes place, e. g., a will made by a woman while a widow of one man is ipso facto revoked by her subsequent marriage to another." A will made by a woman while married who later became a widow and remarries is not re- voked by such remarriage.*' An unmarried woman's will is deemed revoked by her subsequent marriage even though it made provision « Deced. Est. L. § 35. " See § 407, infra. On effect of statute making wife "Deced. Est. L- § 36. an heir of husband upon rule that On effect of marriage, followed by marriage alone without birth of issue birth of child, to revoke woman's will does not revoke a man's will see see note in 5 L.R.A.(N.S.) 1084. note in 25 L.R,A.(N.S.) 182. "^^^ ^^®<'* °* statute making hus- On collateral attack on probate band an heir of wife upon rule that where decree or will affirMativdir carnage alone, without birth of is^ shows its revocation by testator's ^f'^.y^^Vn .^ ^^"^/'^I^J^'," i • ^o T. D A IS discussed m note m 34 L.R.A. marriage, see note in 42 ii.B.A. /jr g \ iqqi (N S.) 457. "Matter of WUl of Kaufman, 131 I"- N. Y. 620, 15 L.R.A. 292, 30 N., E. "Matter of Rossignot, 50 Misc. 242 (1892). 231 (1906), or 100 Supp. 623. "Matter of McLarney, 153 Nl Y. "Matter of Del Genovese, 169 A. 416, 60 Am. St. Rep. 664, 47 N. E D. 140, 154 Supp. 806 (1915). 817 (1897). 464 § 407 WILLS for her fiance in contemplation of her marriage to him ; because the law is arbitrary to this effect and the reason of it is not in issue.*' A will executed by a married woman who, by reason of a judgment dissolving the marriage, later ceases to be a married woman, and who then contracts a second marriage, is not revoked, in spite of the statutory provision that a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage." A testa- trix' marriage revokes her will even though her will was made by oral agreement as one of mutual, reciprocal wills with a brother, whose estate she took under his will on his death prior to her mar- riage ; and the oral agreement profits nothing, because voided by the statute of frauds.** A codicil, duly executed by a woman after mar- riage, to a will executed by her before marriage, and expressly re- ferring to the will, re-establishes the will.*^ On the death of a mar- ried woman without heirs, who had made a valid will before her marriage disposing of her real estate, the realty nevertheless escheats to the state.^" The Married Women's Acts, giving them testamen- tary capacity, did not interfere with the rule that marriage revoked the will of the woman.* § 407. Id.: Revocation by Birth of Child. — ^Whenever a testator has a child born after the making of a last will, either in the life- time or after the death of the testator, and dies leaving such child, so after-born, Unprovided for by any settlemerit, and neither pro- vided for nor in any way mentioned: in such will, every such child succeeds to the same portion of such parent's real and personal estate as would have descended or been distributed to such child if such parent had died intestate, and such child is entitled to recov- er such portion from the devisees and legatees, in proportion to and out of the parts devised aihd bec[u^athed to them by such will.* A ^* Matter of Mann, 51 Misc. 315 On omission of children from will (1906), or 100 Supp. 1100. as affecting right to probate see note "Matter of Burton's Will, 4 Misc. in 34 L.R.A.(N.S.) 966. 512 (1893), or 25 Supp. .824. On admissibility of extrinsic cir- 1' Near v. Shaw, 76 Misc. 303, 137 cumstanees in ascertaining intention Supp. 77 (1912), Deced. Est. L. § of testator in respect to disinherit- 26. _ ing an after-born child see note in 19 Brown v. Clark, 77 N. Y. 369 i3^l.R.A.(N.S.) 781. ^^olw' n J ion -K-r tr The coBdict of laws as to disin- ocroner v Cowdrey 139 N. Y. ^^^.^ .^ ^^^^^^^^ ^ ^^^ .^ 2 till am) L.R.A.(N.S.) 459. 1 Brown v. Clark, 77 N. Y. 369 ^.t° capacity of ehUd en ventre /,Q„QY sa mere to takie under devise or be- * Deced. Est. L. § 26. quest to "children," etc., see note in 1 Tor decrees invalidating will af- B. R. C. 582. fecting rights of persons not in be- On admissibility of extrinsic eyi- inff see note in 8 L.R.A.(N.S.) 65. dence as to whether omission of child N. Y. E. & S.— 30. 465 NEW YORK ESTATES, AND SUBROGATES § 407 child born after the making, of a will who is entitled to succeed to a part of the real or personal property of the testator may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property; and he is subject to the same lia- bilities, and has the same rights, and is entitled to the same reme- dies to compel a distribution or partition of the property, or a con- tribution from other persons interested in the estate, or to ' gain possession of the property, as any other person who is entitled to succeed.' A child born after his parent's will has been executed which contains no provision or mention of him takes the same share of the parent's realty and personalty as he would hav6 taken if the parent had' died without making a will, subject to the same charges, deductions and rights of otheirs as such share would have been chargeable with had the parent died intestate.* The statutory provision that, whenever a testator has a child bom after making his last will who survives him unmentioned in his will or unpro- vided for either by his will or by any settlement, such child suc- ceeds, to the same portion of the parent's estate as he would have succeeded to had the parent died intestate "is based upon the strong presumption of an oversight, or an unintentional neglect of -the testator tb provide for those who have a natural and moral claim to a provision for their support out of their father's property. ' It was hot intended to contravene the policy of our law to give to every one, competent to make a will, the right absolutely to "control the disposition of his estate ; it was intended to provide a rule, by which an intent to disinherit must appear from the will itself."* The birth of a child after the making of its mother's will does not. revoke the will but merely renders it inoperative as to, that portion of the estate which, if the miather had died intestate, would ha:ve been dis- tributed to the child as the mother'^ next of kin: in oj;her respects the will remains valid, e. g., in the appointment; of an executor.^ The provision of the statute giving an after-born child of a testator "unprovided for by any settlement" a share, in the testator's estate from will was intentional see note , in L.R.A.(N.S.) 49, 42 L.R.A.(N.S.) 51 L.R.A.(N.S.) 646. ' 439. • : •■ The , sufficiency of provision as to „„'^^''^^- ^®*- ^- § ^8; See also § after-born child to prevent revocation ^°i£®^f"- '%''- ^- , „ of will is set forth in note in 43 -/Matter, of Campbell 87 Misc. 83 L.R.A.(N.S,) 1195. , „ . ,£f ^2' l\l ^^^" ' '"'■ As to election, of remedies^ of .pre- 6 Tavshanjian v. Abbott, 200 N. Y termitted heira see note in 37: L.R.A. 374^ 93 jf_ jj. gyg (ign) Deced' (N.S.) 1143. = :, Est. L. § 26.. . . . ■ ' On devestiture of estates of per- , ^ Matter of Murphy, 144, N. Y. 557 sons not in being see notes in 8 39 N. E. 691' (1895).. 466 § 407 WILLS means a settlement made by the testator.' A will made after the birth of a child whom the testator later adopted, leaving nothing to such child, is properly admitted to probate; because the statutes giving an adopted child the same right of inheritance as a legiti- mate child do not give such an one the rights of an after-born child.* Mention of children to be born in the future as a class and in terms broad enough to include a specific child is in this re- spect a sufficient "mention" of them under the statute; and such mention may be made in the form of a provision for them.' The alternative requirement of the statute (for provision for after-born children) is satisfied by a will whereby the testator makes it ap- parent that he had in mind the possibility of such children and makes a devise or bequest in their favor, even though such bequest or devise involves some element of uncertainty such as is incident, for instance, to a contingent remainder, or of apparent inadequacy, or a vested remainder subject in enjoyment and possession to a life estate and, to certain substitutional provisions in case of; the death of the children during the life of the life tenant.'* A will giving all the testator's residuary estate to his wife and stating "I have not mentioned any of our children, or given to them, any portion of my estate, for the reason that I have the fullest confidence in my wife, that she will, out of the estate hereby given to her, provide for our said children, supplying their need so far as in her power lies," while it sufficiently mentions hving children does not mention an after-born child." A codicil made after the birth of a child to a man, to a will made after hi§,marriage but before the child's birth, which (i. e., the codicil) gave the child a legacy and provided "in the event of the death of myself, wife and child or children at one and the same tirne, through some accident or otherwise, I direct my executors to give to ea,ch and every one of my legatees double the amounts" of their legacies, etc., does not provide for or mention other children born after the codicil's execution, and they take under the provisions of the statute." A daughter born after the making of her mother'^ will, leaving all her estate in trust for her son, is entitled to that portion of the estate which she would have ' Matter of Bostwick, 78 Misc. 695, ' McLean v. McLean, 207 N. Y. 140 Supp. 588 (1912), Deced. Est. 365, 101 N. E. 178 (1913), Deeed. L. § 26. Est. L. § 26. 8 Matter of Gregory, 15 Misc. 407, ""■ Id. 37 Supp. 925 (1896), L. 1873, e. 830, i" Crocker v. Mulligan, 154 A. D. L. 1887, c. 703, § 10. 711, 139 Supp. 381 (1913), Deced. An adopted child as a "cHld" Est. L. § 26. within statute relating to revocation ^* Tavshanjian v. Abbott, 200 N. of will is discussed in note in 30 T. 374, 93 N. E. 978 (1911), Deced. L.R.A.(N.S.) 916. Est. L. §26. 467 NEW YORK ESTATES AND SURKOGATES | -108 had if her mother had died intestate, viz., qne-half of the real and personal estate." The proceeds of realty located in a state, the laws of which do not give a child born after the execution of a parent's will and not "naentioned" in it an interest in the estate, which come into New York after a. sale by the executors, under a discretionary power, pass as the will directs; so that the child does not share therein.^' A share of an after-bom child may be de- termined by, first, deducting one-third of the testator's personal estate for his widow; secondly, dividing by the. number of children the total of (a) the remaining two-thirds of the personal, estate (b) the total value of the realty and (c) the total of all advancements to the children in the testator's life; and, thirdly, subjecting such quotient in the real estate to the widow's dower." § 408. Id.: Presumption of Revocation. — The will of a testator, who knew the law of wills, will be presumed revoked when produced to the court eighteen years after its execution directly from his safe without the least suspicion of its having been tampered with; when several important changes have happened in his family since the will was made; and when it has five canceling marks across the testatdr's signature, under which is written in his writing: "Am going to make a new will." " It will be presumed that a testator destroyed, for the purpose of revocation, a will executed by him, de- livered to him at the time of execution, when to his desk in which he kept all his papers he had access to his death, and no one else is shown to have had possession of the will or to have interfered in any way with his papers." The finding of a will in the testator's desk with his signature canceled raises the presumption that the cancelation was done by him with the intention of revoking it.*'' Proof that a testator before his death took from his safe one of two original duplicates of his will, placed it in his pocket, and that it was never again seen by anyone, prievents probate of the other dupli- cate original ; because of the presumption of revocation of the one in ** Davis V. Davis, 27 Misc. 455 to execute new wUl upon presumptive (1899), or 59 Supp. -223; L. 1869, revocation of old see note in 2 B. c. 22. E. C. 538. ** Matter of McKay, 77 Misc. 303, , On settlement of property rights 136 Supp. 821 (1912).: between husband and wife on account ** Sanf ord v. Sanf ord, 4 Hun, 753 of divorce as implied revocation of (1875). wiU see note in 20 L.R.A.(N.S.) "Matter of Miller, 51 Misc. 156 1073. (1906), or 100 Supp. 849. "Matter of Nichols,, 40 Hun, 387 The presumption as to revocation (1886). of missing will is discussed in note in " Matter of Hopkins, 172 N. T. 38 L.R.A. 433. 360, 65 L.R.A. 95, 92 Am. St. Rep. On effect of unfulfilled intention 746, 65 N. E. 173 (1902). 468 §§ 409, 410 WILLS the testator's possession.*' The presumption is that a will executed by a decedent in his lifetime and last seen or known of in decedent's possession or control and not found on the decedent's death upon proper search, was destroyed by her with the intent of revoking it.*^ No evidence to rebut the presumption of the revocation of the will of an unmarried man by his subsequent marriage and decease leaving wife or issue surviving is receivable, save the provisions of the will itself, providing for or in some way mentioning such issue, or some settlement for them.^" § 409. Id.: Effect of Revocation. — The destruction or revocation by a testator of a second will duly executed by him which by its terms revoked a first will does not revive the latter will unless it ap- pears by the terms of the revocation that it was his intent to revive and give effect to tlie first will; or unless, after such destruction or revocation, he duly republishes his first will.* When the statute states that the destruction or revocation of a later will which re- voked a former will does not revive such former one unless it ap- pears "by the terms of such revocation" that it was the testator's intent to revive such former one, a revocation in writing is meant.** The destruction of a duly executed later will containing a clause "hereby revoking all former wills by me made," does not revive a former will.*^ To re-establish the former will it should have been republished with the same formalities as in its execution.' The revocation of a testamentary instrument in the nature of a codicil which expressly ratified the former, main will does not revoke the latter.* § 410. Id.: Alteration. — A written will can only be altered by some other will in writing, or some other writing of the testator de- claring such alteration and executed with the same formalities with which the will itself was required by law to be executed.' It can- not be altered (as it can be revoked) by burning, tearing, canceling, obliterating or destroying. A duly executed will, part of which has been erased, will be admitted to probate as originally written *' Matter of Schofleld, 72 Misc. 281, will to revive an earlier one see notes 129 Supp. 190 (1911). in 14 L.R.A.(N.S.) 937; 37 L.R.A. "Matter of Bennett, 166 A. D. (N.S.) 291. 637, 152 Supp. 46 (1915) ; Hard v. On revocation or destruction of Ashley, 88 Hun, 103 (1895), or 34 later will and revival of revoked will Supp. 583; CoUyer v. CoUyer, 110 see note in 37 L.R.A. 575. N. Y. 486, 6 Am. St. Rep. 405, 18 *»-Id. N. E. 110. ^ Matter of Brewster, 72 A. D. 587 20Deced. Est. L. § 35. (1902), or 76 Supp. 283. 1 Matter of Kuntz, 163 A. D. 125, ' j^. 148 Supp. 382 (1914), Deced. Est. * Matter of Dan Klefsen, 171 A. L. § 41. D. 339, 157 Supp. 119 (1916). On effect of revocation of later * Deced. Est. L. § 34. 469 XEW YORK ESTATES AND SURROGATES § 411 and executed, because a will can only be altered by an instrument executed in the manner as a will is required to be executed.^ When there is nothing said in a will's , attestation clause as to alterations in the will, and no witness observed them, they will.be deemed to have been made after the will's execution.'' One of the surrogates of New York county has expressly held that alterations of a radical kind in dispositive provisions of wills are regarded with less favor than those interlineations which on their face are mere corrections of scriveners' errors or completions of an incompleted consecutive text ; that if such corrections from their nature afford internal evi- dence that they were made prior to execution, there is no conclu- sive presumption that they were made subsequent to execution; and that the presumption that corrections were made after execution may always he rebutted by internal evidence apparent on the face of the will itself and (dictum) by extrinsic evidence such as attest- ing witnesses' oaths and testators' declarations made before the execution of the will itself.' § 411. Foreign Wills: Probate and Record, In General.® — The probate and record in this state of foreign wills is treated under these headings : I. Wills of real or personal property : ( A) Executed according to New York law, wherever and by whomsoever execut- ed; (B) Proven in Great Britain or its dependencies by a resident thereof who is a citizen of the United States or a would-be citizen's daughter or wife ; II. Wills of personal property only : (A) Execut- ed anywhere according to the laws of the testator's domicil; (B) Executed in the United States, Canada, Great Britain or Ireland according to its laws ; III. Wills affecting real property in this state. Various rules of surrogate's courts provide for certain steps in the case of foreign wills, e. g., that a petition and order for recording foreign wills be presented with the wills.^" * Matter of Kissam, 59 Misc. 307, domicil see note in 33 L.R.A.(N.S.) 110 Supp. 158 (1908). 658. On burden of explaining erasures On presumption as to probate of or alterations appearing on face of will in other state see note in 48 will see note in 17 L.R.A-.(N.S.) 184. L.R.A. 136. As to interlineations or changes by As to ancillary probate at testator's testator after signing see note in 51 domicil after probate in other juris- L.R.A.(N.S.) 169. diction see note in 1 L.R.A.(N.S.) ''Matter of Lang, 9 Misc. 521 996. (1894), or 30 Supp. 388. On conclusiveness of foreign pro- ' Matter of Baston, 84 Misc. 1,: 145 bate decrees see note in 20 L.R.A. Supp. 373 (1914), probating altera- 673. tions in holographic will as part of On conclusiveness of foreign pro- it. bate as- affecting real property see * On jurisdiction to admit to pro- note in 6 L.R.A. (N.S.) 617. bate will not probated at testator's *" See e. g., these Rules : Queens, 470 §§ 412, 413 WILLS § 412. Id.: Of Realty or Personalty, Executed According to New York Law, By Anyone Anywhere. — A will executed as prescribed by the laws of New York state, whether of real or personal property, may be admitted to probate in New York," wherever executed. Therefore, an instrument formally executed with the forms and in the manner required by the New York law disposing of personal property, there being personal property of the decedent within this state, will be admitted to probate as a will of personal property regardless of the testator's domicil." The will of a U. S. citizen, domiciled at death in New York, though residing in France, who left property here, may be here admitted to probate, no matter where made.^* § 413. Id.: Of Realty or Personalty, Executed by United States Citizen, etc., Proven in Great Britain or Dependencies. — The last will and testament' of any person (1) being (a) a citizen of the United States, or (b) if a woman, whose father or husband previous- ly shall have declared his intention to become such citizen; (2) who dies or has died while domiciled or resident within (a) the United . Kingdom of Great Britain and Ireland, or (b) any of its dependencies; (3) which affects property within this state; and (4) which has been duly proven within such foreign jurisdiction, must be admitted to probate in any county of New York state in which there is any property affected by it, upon (a) filing in the office of the surrogate of such county, and (b) there recording, a copy of such last will and testament, certified under the hand and seal of a consul-general of the United States resident within such foreig-n jurisdiction, together with the proof of such last will and testament, made and accepted within such foreign jurisdiction, certified in like manner; Provided that, before any such will is admitted to pro- bate in any county of New York state, the same proceedings must be had in the surrogate's court of the proper county as are required by law upon the proof of the last will and testament of a resident of New York state who dies in New York state ; Except - that only the beneficiaries named in such will (and no one else) need be cited." 10 ; Westchester, 15 ; Herljimer, 14 ; sections rendered valid, or capable of Cattaraugus, 8. being proved as prescribed in Art. ■ " Deced. Est. L. § 23. This see- I, tit. 3, c. 18, C. C. P.— See Deced. tion does not apply to a will executed Est. L. § 25. by one dying before Apr. 11, 1876, ^'^ Matter of Rubens, 128 A. D. 626 and does not invalidate a will exe- (1908), or 112 Supp. 941; old Code cuted before that date which would § 2611, now Deced. Est. L. § 23, aff'd have been valid but for the enact- 195 N. Y. 527. ment of sects. 1 and 2, ch. 118, L. " Caulfleld v. Sullivan, 85 N. Y. 1876, except when such a will is re- 158 (1881). voked or altered by a will which those " C. C. P. § 2608. 471 NEW YORK ESTATES AND SURROGATES § 414 Letters testamentary on such a lasti will and testament must be issued to the persons named therein to be the executors and trtisteeg, or either thereof, or to those of them who, prior to the issuance of such letters, have not renounced the trust devolved upon thein by formal renunciation, duly acknowledged or proven and duly certi- fied.»« § 414. Id.: Of Personalty Only, Executed According to Domicil- iary Law. — A will of personal property (only), though executed by a person not a resident of the state, if executed according to the laws of the testator's residence (wherever that may be), may beladinitted to probate in New York state." But a will made by a then resi- dent of another state and valid under the laws of such state, is in- valid under the laws of New York, when the testator after its execu- tion moved to and became a citizen of New York, if not executed according to the New York statute of wills." A will of personalty sufficiently executed under the laws of Louisiana where the testator resided and was domiciled may be proven in New York.^* "Domi- cile" is synonymous with "residence" as used in the statute permit- ting probate in New York of the will of a nonresident executed ac- cording to the laws of his residence.^^ A person is a resident of an- other place ihan this state (so as to determine whether his will can be admitted here if properly executed by the laws of such place) when he is an inhabitant of such place, and has a fixed intention to remain there; so that the will (of personalty) of one residing in another country (France), though not a citizen of such country and not having talcen any steps to become such, if he has lived there with the intent to make such country his home and fixed abiding place, is held the will of one domiciled there de facto; and the administration of his estate found in such country is submitted to the tribunals of the locality of his principal establishment in such country ; and the validity of his will, considered as to its form and manner of execution, is to be there determined."" The subject of domicil and residence has heretofore been geiierally considered.^ " C. C. P. § 2608. in Art. I. tit. 3, c. 18, C. C. P.— See 18 Deced. Est. L. § 23. This see- Deced. Est. L. § 25. tion does not apply to a will executed -^^ ^°™^t"® '*'• H™*, 23 N. Y. 394 by one dying before Apr. 11, 1876, ^^l?U\^ „ „ . „, ,,. ,„„ and does nol invalidate a will exe- 133 ^"4^5 g^i^,' ^^ ^^<'- ^^^' cuted before , that date which would 19 ^^^^^^ „f ^^j^ J " 73 ^^^_ have been valid but for the enact- 133 ^ ^qq (ig^^) j^^^^ ^^^_ ^ ment of sects. 1 and 2, ch. 118, L. § 23. 1876, except when such a will is re- 20 Matter of Cruger, 36 Misc. 477 voked or altered by a will which 73 Supp. 812 (1901), old Code § those sections rendered valid or ca- 2611. pable of being proved as prescribed * See § 8, supra. 472 §§ 415, 416 WILLS § 415. Id.: Of Personalty Only, Executed in United States, Can- ada or Great Britain According to Its Law. — A will of personal property (only), though executed without the state of New York, if executed within either the United States or the Dominion of Canada or the Kingdom of Great Britain and Ireland, and as pre- scribed by the laws of the state or country where executed, may be admitted to probate in New York state.^ A testamentary paper signed by the testator, but not attested by any witness, made by a resident of this state in a state in which it was valid to pass per- sonalty will here be admitted as a will of personal estate.' § 416. Id.: Affecting Realty in this State. — Copies of wills (1) duly executed in conformity with the laws of this state (2) of per- sons resident at death in foreign countries or elsewhere in the United States than New York state, (3) devising or making sub- ject to a power of disposition real property situated within this state, or an interest therein (4) admitted to probate within such foreign state, territory or country where the decedent resided, and (5) filed or recorded in the proper office as prescribed by the laws of that state, territory or country, may be recorded in the office of the sur- rogate of any county in this state where such real property is situ- ated, and such record (or on exemplified copy thereof) is presump- tive evidence of such wills and of their execution in any action or Special proceeding relating to such real property. If the copy of any such will, or of the record thereof, and of the proofs or of the record thereof (or, if the proofs are not on file or recorded in such office, of any statement on file or recorded in such office of the sub- stance of the proofs) is or are authenticated as prescribed in § 418 following.* If no proofs and no statement of the substance of the proofs be on file or recorded in such ofiice, a copy of the will, or of the record thereof, so, authenticated, accompanied by a certificate that no proofs or statement of the substance of proof of such will are or is on file or recorded in such office, made and likewise authen- ticated, must be furnished and filed here.* When an original will probated in a foreign jurisdiction cannot be taken therefrom to this state so as to be proven here by its physical production an appli- cation for its probate here may be made by a verified petition set- ^Deeed. Est. L. § 23. This sec- sections rendered valid or capable tion does not apply to a will executed of being proved as prescribed in Art. by one dying before Apr. 11, 1876, I, tit. 3, e. 18, C. C. P.— See Deced. and does not invalidate a will exe- Est. L. § 25. cuted before that date which would * Matter of Anderson, 78 Misc. 713 have been valid but for the enact- (1912), or 140 Supp. 230; Deced. ment of sects. 1 and 2, ch. 118, L. Est. L. § 23, Statute of Florida. 1876, except when such a will is re- * Deced. Est L. § 44. voked or altered by a will which those * Deced. Est. L. § 45. 473 NEW YORK ESTATES USTD SURROGATES ,§ 416 ting out. (1) the preliminary facts authorizing the spreading of an exemplified copy of the-.foi'eign will on the records; of the New. York state surrogate's court; (2) that real property situated in the coun- ty of the surrogate to whom the application is made is devised by, the will, that it is made by the will subject to a powpr ,of:§ale; (3) that the will is executed according to New York law; (4,) that the testator at death was a nonresident; (5) the time and. date of the testator's death; (6) the original probate of the will, witih the date and;place of probate; and (7) any other facts necessary to be brought to the surrogate's attention.^ • , A will authenticated as provided by statute,'' is entitled to record in this state when the petition shows: (1) The petitioner's owner- ship of realty in the county of. the surrogate to whom the, petition is addressed; (2) The devise of such realty to the petitioner by one residing at his death in another; state; (3) The admission of such devisor's will to probate in such other state and its filing in the proper office there; (4) The execution (when the petition and the copy of the will are both considered) of the will according to the laws of this state, as shown by the testimony of a witness sworn before the judge at the time of probate.' The statement required by New York statute on an application for recording in New York a copj'^ of a will probated in another state, that "no proofs or state- ment of substance of proof of such will are or is on file or recorded in such office" (of the foreign state) is not satisfied by acertificate annexed to the copy of such a will that "our statute" (viz., of the foreign state) "does not require that the evidence of the witnesses thereto should be preserved in writing ; " and if the only proof of compliance with the laws of New York on the execution of a for- eign will is an attestation clause which does not state that the wit- nesses signed in the testator's presence, the will cannot be filed in a New York state surrogate's office so as to pass title to realty in his county ; because it is not shown to have been executed according to New York law.^ . A notary public of Bavaria is not (in the absence of proof) such a foreign court or tribunal of justice as to enable a will in his possession to be proven by an exemplified or authenti- cated copy." .In order tO;entitle a will .executed and .probated in an- other state to be recorded in any county of this state in which realty * Matter of Nash, 37. Misc. 706 See, however, Matter of Hager, 48 (1902), or 76 Supp. 453; old Code Misc. 43 or 96 Supp. 96. §§ 2703, 2635, 2476, 2477, dicJMTO. : .» Matter of Nash, 37 Misc. 706 roid Code § 2704, now in § 45, (1902), or 76 Supp. .453.; old Code Deced; Est. L. ' '• . § 2703. " . . 5 Matter of Coope, 53 Misc. 509 "In the Matter of Diez, 56 Barh (1907), or 103 Supp. 431; old Code 591 (1870), aff'd 50 N. Y. 88> , ', I 2703, now in § 44, Deced. Est. L. • 474 § 417 WILLS devised by the will is situate, it is enough that it appear in some way by the foreign record — by the will and the evidence' taken on the probate (if the record show the evidence), or by either — that it was executed in conformity with the laws of this state ; and the full evidence required by statute to prove the execution of a will for probate in a surrogate's court in this state is not needed." For example, although the statutes of this state require that at least two subscribing witnesses be examined, and that certain evidence be taken instead when one or more of such witnesses can testify-, yet it is sufficient to record here a foreign will that one witness only, so far as the record shows, was examined in the foreign state. *^ Record in a surrogate's court of a county in this state in which is situated realty of which a testator died seised will be refused to the testator's will admitted in another state on evidence insufficient for its probate in New York and not shown to have been executed ac- cording to the laws of this state.^' Real estate in New York of one domiciled in another state does not pass under an exemplified copy of his will unless the original will was so executed and proven as to suffice to pass the realty under the laws of New York.^* § 417. Id.: Authentication of Wills and Letters Probated and Granted in Other State of United States. — To entitle a copy of a will admitted to probate in any other state or in any territory of the United States, and of the proofs or of any statement of the sub- stance of the proofs of any such will, or of the record of any such will, proofs or statement, to be recorded or used in this state, such copy must be authenticated (A) by the seal of the court or officer by which or whom such will was admitted to probate or having the custody of it or of the record thereof, and (B) signature of a judge of such court or the signature of such officer and of the clerk of such court or officer if any; and must be further authenticated (C) by a certificate under the great or principal seal of such state or territory, and (D) the signature of the officer who has the cus- tody of such seal, to the effect (1) that the court or officer by which or whom such will was admitted to probate was duly author- ized by the laws of such state or territory to admit wills to probate, and to keep the same and records thereof ; (2) that the seal of such court or officer affixed to such copy is genuine, and (3) that the officer making such certificate under such seal of such state or terri- tory verily believes that each of the signatures attesting such copy " Bradley v. Krudop, 128 A. D. ^^ Lockwood v. Loekwood, 51 Hun, 200, 112 Supp. 609 (1908). 337 (1889), or 3 Supp. 187; L. 1864, 12 Bradley v. Krudop, supra. c. 311 ; amend'd L. 1872, e. 680. "Matter of Hagar, 48 Mise. 43 (1905) or 96 Supp. 96; old Code § 2703, now in Deced. Est. L. § 44. 475 NEW YOilK ESTATES AND SUBROGATES § 417 is genuine." To entitle any certificate concerning prgofs accom- panying the copy of the will or of the record so authenticated to be used in this state, such certificate must be under the seal of the court or officer by which or whom such will was admitted to pro- bate, or having the custody of such will or record, and the signature of a judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of such state or territory, and the signature of the officer having the custody thereof, to the effect (a) that the seal of the court or of- ficer affixed to such certificate concerning proofs is genuine and (b) that the officer making such certificate under such seal of such state or territory verily believes that the signature to such certificate concerning proofs is genuine.** To entitle a copy of letters testamentary or of administration granted in any other state or in any territory of the United States, or of the record of any such letters to be recorded or used in this state, such copy must be authenticated by the seal of the court or officer by which or whom such letters were granted, or having the custody of the same or of the record thereof, and the signatui'e of the judge of such court or the signature of such officer and of the clerk of such court or officer; and must be further authenticated by a certificate under the great or principal seal of such state or territory, and the signature of the officer who has the custody of such seal, to the effect (1) that the court or officer by which or whom such letters were granted was duly authorized by the law of such state or territory to grant letters testamentary or of adminis- tration and to keep the same and records thereof; (2) that the seal of such court or officer affixed to such copy is genuine; and (3) that the offi<3er making such certificate under such seal of such state or territorj'- verily believes that each of the signatures attesting such copy is genuine." To entitle any certificate concerning proofs of the record so authenticated to be recorded or used in this state, such certificate must be under the seal of the court or officer having the custody of such record, and the signature of a judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of such state or terri- tory and the signature of the officer having the custody thereof to the effect (1) that the seal of the court or officer affixed to such certificate concerning proofs is genuine, and (2) that such officer making such certificate under such seal of such state or territory verily believes that the signature to such certificate concerning proofs is genuine.*' A certificate concerning proofs will not be "Deced. Est. L. § 45. "Deced. Est. L. § 45. "Deced. Est. L. § 45. "Deced. Est. L. § 45. 476 § 418 WILLS necessary for letters alone ; but is sometimes needed when record ia sought here of both the will and the letters — which is usually the case. § 418. Id.: Authentication of Wills and Letters Probated and Granted in Foreign Countries. — To entitle a copy of a will admitted to probate in a foreign country, and of the proofs or of any state- ment of the substance of the proofs of any such will, or of the rec- ord of any such will, letters, proofs or statement to be recorded or used in this state, such copy must be authenticated (A) in the man- ner prescribed by the laws of such foreign country, and must be further authenticated (B) by a certificate of a judge of a court of record or by the chief officer of the department of justice of such foreign country to the effect (1) that such authentication is in conformity with the laws of such foreign country, and (2) that the court or officer by which or by whom sUch will was so admitted to probate was duly authorized by the laws of such foreign country to admit wills to probate and to keep the same and records thereof ; and (C) the signature and official character of such judge or court of record or of such chief officer of the department of justice must be attested by a consular officer of the United States, resident in such foreign country, under the seal of his office." To entitle any certificate concerning proofs accompanying the copy of the will or of the record so authenticated to be used and recorded in this state, such certificate concerning the proofs must be similarly authenti- cated and attested.*' To entitle a copy of letters testamentary or of administration granted in a foreign country and of the record of any such letters to be recorded or used in this state, such copy (A) must be authen- ticated in the manner prescribed by the laws of such foreign coun- try, and (B) must be further authenticated by a certificate of a judge of a court of record or by the chief officer of the department of justice of such foreign counltry to the effect (1) that such au- thentication is in confoi-mity with the laws of such foreign coun- try, and (2) that the court or officfer by which or whom such let- ters were granted was duly authorized by the laws of such foreign country to grant letters testamentary or of administration and to keep the same and records thereof; and the signature and official character of such judge or court of record or of such chief officer of the department of justice must be attested by a consular officer of the United States resident in such foreign country, under the seal of his office.^ To entitle any certificate concerning proofs accompanying the copy of the records so authenticated to be used " Deced. Est. L. § 45. * Deced. Est. L. § 45. zoDeeed. Est. L. § 45. 477 NEW YORK ESTATES' AND SURROGATES -t'-ilO arid recorded in this state, such certificate conceriiing the proofs must ;be: similarly authenticated and attested.* It is proper to re- cord here in both its English translation and its foreign original a will probated here, though the latter is not: essential,- as the surro- gate must, ascertain what the will is, and the translation which he has recorded is part of his detree, unassailable collaterally Uke it.' § 419. Id.: Probate, What Jurisdiction Surrogate Has.^Eacli surrogate's court has jurisdiction to take the proof of wills; and to admit wills to probate; in the cases and in the manner prescribed by statute.* In order that a 'Surrogate acquire jurisdiction of a person in a probate proceeding there must be (1) a petition, (2) a, citation, (3) service of the, citation, or appearance, and (4) proof of the service of the citation (unless there be an appearance).® The surrogate has power to take proof; of the provisions of a testamentarj' instrument before its alteration, by means less than those necessarj' to legally alter it; because he is required to disregard such altera- tions and admit; the will as it originally stood.^ On an application for probate, the surrogate's court has no jurisdiction to try out the question of the making and effect of an antfenuptial agreement, or to enforce its provisions.'' Pending a contest of her husband's will by which she is life tenant, the surrogate may grant the widow, if she is in need of support and has no property except her interest in the estate, an allowance equal to such a sum as would have been earned upon the amount leftherfor life by the will, up to the.time of her application for the allowance.' The proceedings of the courts of another state a,dmitting to probate a will of one, later than the. will of the same, person offered for probate in this state, do not bar inquiry by the surrogate of this state into the decedent^s domicil, _ov. constitute competent, evidence of the decedent's domicil, . when neither the proponent in this state, nor .the heirs at law or ajext of kin of decedent, were parties to, the proceedings in the foreign state.-^ . The: surrogate has power to allow a proponent to withdraw a will from probate and, to discontinue the proceedings for its pro- bate.^" When a petition for probate has been filed with, and the Md. » Matter of Hitchler, 21 Misc. 417 3 Caulfleld V. SuUivan, 85 N. Y. 153 (1897), or 47 Supp. 1069: old Code (1881). § 2723.' * C. C. P. § 2510, snbd. 1. » Matter of Horton, 169 A. D. 292, 5 Matter of Gregory, 13 Misc. 363 154 Supp. 827 (1915). (1895), or 35 Supp. 105; old Code " Heermans v. HUl, 2 Hun, 409 §§2614,2615,2520,2522,2524,2525,(1874). 2528, 2532. ' On the right to dismiss or with- ' ^Matter of Kissam,' 59 Misc. 307, draw proceedings 'to probate a will or 110 Supp. 158 (1908). issues thereunder see note in 19 'Adams v., Swift,' 169 A. D. 802, L.R.A.(N.S.) 21. 155 Supp. 873 (1915). 478 § 419 WILLS parties are before bhe surrogate, the proceeding cannot: be arrested or dismissed so long as any person cited supports the will before the surrogate ; because the proceeding is on behalf of all interested to prove the will, who can themselves take steps to prove it or con- test it.^* Probably the surrogate would have to dismiss a probate proceeding if all parties cited, being of full age, should ask such dismissal, no one appearing in support of the will; or if all such parties should formally admit that the will was not legally executed or that the testator was incompetent.^^ An adjournment of a pro- bate proceeding lies in the surrogate's discretion to grant or refuse, subject only to review for abuse of the exercise of such discretion.'' The pendency of criminal proceedings against the proponent of, or witnesses to, the will, does not change this rule ; '* so that a claim of privilege from examination in the probate proceedings by the witnesses to the will does, not prevent the surrogate from refusing to postpone the proceedings until the indictments: against them are tried out.'* It is proper for the surrogate of one county to whom a petition for a second will of a decedent, a petition for probate of whose alleged true will has been already presented, to the surrogate of another county, to adjourn the proceeding in his court by order so that the other surrogate can determine if he has jurisdiction bj' reason of the decedent's residence in his county, or not.'* When an appeal has been i taken from a supreme court judgment declaring void a will and its probate by the surrogate's court, and a prior will has been offered to the suiTogate for probate, or administration as in intestacy has been asked of him, he should suspend proceed- ings until the determination of the appeal, and meanwhile appoint a temporary administrator." A probate proceeding does not abate because of. the death of the contestant, executor or any of the next of kin ; but the surrogate must take , proof and determine whether the paper is entitled to probate.'* As an executor named in a later will must be cited, as such in proceedings to probate a prior will, he cannot be permitted to withdraw or discontinue proceedings he has begun for probate of such later will ; but the proper practice is to try both wills together." "Matter of WUl of Lasak, 131 N. (1886), old Code § 2475, new Code T. 624, 30 N. E. 112 (1912). § 2514. '2 Matter of Will of Lasak, supra. '''Matter of Cavanaugh, 72 Misc. '» Matter of Rice, 81 A. D. 223 584, 131 Supp. 982 (1911). (1903),' or 81 Supp. 68; afi'd 176 '* Matter of Hermann, 91 Misc. N. Y. 570, 68 N. E. 1123. 464, 154 Supp. 957 (1915). '* Matter of Kice, .supra. " In re Potter's Will, 155 Supp. '6 People ex rel. Patriek v. Pitz- 939 (1915), C. C. P. § 2610, 3rd gerald, 73 A. D. 339 (1902), or 76 Dept. App. Div. aff'g on opinion of Supp. 865. court below (154 Supp. 1140). '6 Matter of Buckley, 41 Hun, 106 479 NEW YORK ESTATES AND SUBROGATES §§ 420, 421 § 420. Id.: Probate, What Surrogate Has Jurisdiction. — When a decedent is alleged to have left two wills, each presented to the surrogate of a different county for probate on allegations that the decedent died a resident of such county, that surrogate whose cita- tion was first issued and served had jurisdiction to the exclusion of the other.^" It is proper for the latter surrogate to adjourn the proceeding in his court by order so that the other surrogate could determine the question of residence.^ The surrogate of a County in which is situated real estate^ in which a decedent has by will acquired an interest undisposed of by him, has jurisdiction of a proceeding to probate a paper propounded as the will of such dece- dent." When the residence of a testator in the county where the petition for probate of his will is presented is plainly averred in the petition and is practically admitted by all parties interested, and established as a fact on sufficient evidence, the surrogate of that county has jurisdiction exclusive of the surrogate of another county to whom a petition for probate is presented identical with the other save for the allegation of residence.* A bond on which a resident of this state is surety beloriging to a nonresident decedent found in this state is sufficient to give the surrogate jurisdiction to admit the decedent's will to probate and issue letters ; because, although a debt on simple contract follows the debtor and has its situs where he has his abode; yet this is not so of a specialty.* When a non- resident leaves a debt owing him by a resident of a county in New York state, the surrogate of that county has jurisdiction to probate such nonresident's will.' § 421. Probate and Establishment, Supreme Court's Jurisdic- tion. — An action to procure a judgment establishing a will may be maintained by any person interested in its establishment (1) when the will (whether of real or personal property, or both) has been so executed that it might be probated here but the original will is in another state or country and cannot be obtained; * (2) when a will so executed has been lost or destroyed; ' and (3) when (a) the will is of personalty only, (b) made by one who resided out of the state at the time either of its execution or his death, (c) executed according to the lawg of the state or country either in which execu- *" Matter of Buckley, 41 Hun, 106 * Beers v. Shannon, 73 N. T. 292 (1886), old Code § 2475, new Code, (1878). § 2514. 6 Matter of Schober, 90 Misc. 230 1 Matter of Buckley, supra. (1915), or 154 Supp. 309, C. C. P * Matter of Weston> 60 Misc. 275 § 2517. (1908), or 113 Supp. 619; old Code « C. C. P. § 1861. § 2746, subd. 4. 'C. C. P. § 1861. ' Bumstead v. Read^ 31 Barb. 661 (1859). 480 § 421 WILLS ted or in which the testator resided at death, and (d) the case is not one when the will can be admitted in a surrogate's court under the laws of the state.* If the will is so established, the statute pro- vides for the judgment to be rendered, the issue of letters, etc.^ The supreme court has no jurisdiction generally over the probate of a will of personal property.^' The sun-ogate's court has unique and plenary power in the first instance to determine the validity or in- validity of a will of personal property. ^^ An action does not lie to prove and establish the will of a nonresident probated in the state of his residence, as other statutory means are provided for estab- lishing and giving effect to such a will in this state. ^^ The statu- tory provision giving the supreme court jurisdiction to probate a will so executed that the surrogate might admit it, but the original of which is in another state or country and cannot be obtained, etc., does not restrict the supreme court's general jurisdiction in equity ; so that it may pass upon a pre-riuptial agreement of a man to give a woman his property by his will in consideration of her marrying him and hold a will so executed irrevocable and having the effect of making any subsequent will by him invalid by reason of his lack of power to execute it." It seems that the supreme court may ap- point a commissioner to take probate of a will when no other mode exists under the law by which it may be proven." The only excep- tion to the surrogate's exclusive jurisdiction to determine the valid- ity of a will is an action to establish it in the supreme court; and his determination is conclusive until reversed by himself on a new hearing or by an appellate court. ^* The supreme court will enter- tain an action by the beneficiary under the oldest of several alleged wills of the same decedent to establish it and to enjoin proceedings to probate the other wills in the surrogate's court, if the complaint alleges the incompetency of the testator at the time of the execution of the later wills. ^* One cannot maintain an action in the supreme court to have a will declared valid and the plaintiff the lawful resid- uary devisee, because, as such an one claims a mere legal estate in real property, without any trust, he must either assert his title by »C. C. P. §186L 155 Supp. 873 (1915), C. C. P. § » See C. C. P. §,§ 1862-1865. 1861. i» Sherwood v. Sherwood, 85 Misc. ^* Matter of Hathaway, 9 Hun, 79 99, 147 Supp. 205 (1914), afE'd 151 (1876), aff'd 71 N. Y. 238. Supp. 1144. " Smith V. HUton, 50 Hun, 230 "Matter Ot ConneU, 75 Misc. 594 (1888), or 2 Supp. 820; under old (1912), dictum, or 136 Supp. 166. Code §§ 2472, 2626, 2627, making his ^^ Clark- V. Poor, 73 Hun, 143 decree conclusive as to personalty (1893), or 25 Supp. 908; dism'd 144 only. K Y 699, 39 N. E. 857, C. C. P. '^Le Brantz v. Conklin, 39 Misc. § 1861, c. 18, tit. 3, art. 7, old Code. 715, 80 Supp. 967 (1903). 1* Adams v. Swift, 169 A. D. 802, N. Y. E. & S.— 31. 481 NEW YOEK ESTATES AND SURROGATES § 422 ejectment or other legal action, or, if in possession, await an attack upon his title and set up the devise in answer to the. hostile claim." If the facts necessary to establish the validity of the will are satis- factorily proved, final judgment must be rendered establishing the will accordingly.^' If the testator, was a -resident of the state at death, the judgment establishing his will does not affect the con- struction or validity of any provision contained therein ; and such a question arising with respect tO; any provision, must be determined in the same action, or in another action, or in a special proceeding, as the case- requires, as if the will was executed, within the state.'' When the parties to the action who have appeared or have been duly summoned include all the persons who would be necessary parties to a special proceeding in a surrogate's court for the probate of the same will and the grant of letters thereupon, if the circumstances were such that it could have been proved in a surrogate's court, the final judgment must direct : that an exemplified copy thereof be transmitted tb the surrogate having jurisdiction and be recorded in his office, and that lettets testamentary or letters of administration with the will annexed be issued thereupon from , his court in the same manner and with like effect as upon' a will duly proved in that court. ^^ A copy of the will :so established must be incorporated into a final judgment so rendered and the surrogate must record it and issue letters thereupon as directed in the judgment.' § 422. What Provable as Will, In General. — The surrogate has no jurisdiction to refuse probate to a will beoausedts provisions are in- effectual to pass title by reason of the death of the person ,appointed executor and sole beneficia;ry or otherwise: probate must precede construction and a will cannot be construed to defeat its. probate.^ An instrument "stated to be a last will arid testament which merely appoints execTltors and autkorizes them to sell real estate for the purpose of converting it, into money, if ; duly executed,' is a valid will and is entitled to probate ; and under it tiie executors take title to the testator?S' property, as in ordinary cases.* One leaving a will disposing Only -of realty but appointing an executor does not die intestate as to his personalty, but the will is provable as a will of personal property and the^ executor holds the personalty in' trust fpr tliose who are entitled to it under the statute of distributions.* " Anderson v. Appleton, 48 Hun, ^ Matter' of Davis, 182 N. Y. 468, 534, or 1 Supp. 319, affd 112 N. Y. 75 N. E. 530 (1905), old Code §S 104, 2 L.R.A. 175, 19 N. E. 427:2623,2624. (1888),, C. C. P. § 1866. . , i^Barljqr y. Barber, 17 .Hun, 72 " C. C. P. § 1862. (1879). 19 C. C. P. § 1862. * Matter of Meecafll, 127 A. D. 21 ""C. C. P. § 1863. Ill Supp. 315 (1908). iC. C. P. § 1864.. 482 § 4-23 - WILLS A will i.-: not avoided by a mistake in naming the person to be exec- utor: it maj' be admitted and an administrator c. t. a. appointed.' A mistake of a testator, in drawing his will, concerning the legal effect or revocability of his trust conveyances, is not such a mistake as can be corrected in the surrogate's court; and the will will be admitted as it stands.* A husband probating and acting for nine- teen years under a will of his wife giving her property to their daughter; and holding, all that time, her later will giving her prop- erty to himself, estops anyone after his death from propounding for probate the second will.'' Neither the right to have a will ad- mitted to probate, nor the validity of its execution, nor the validity or construction of any provision contained in it, is affected by a change of the testator's residence made since the execution of the will.* Rejection of probate of an exemplified copy of a foreigii will does not bar a subsequent proceeding to probate the original will.* A great lapse of time between a testator's death and tender of a will for probate is no bar to its probate ; nor is such a lapse ground for discrediting the recollection of disinterested subscribing witnesses as to its execution ; and the delay is no ground for refusal of probate when naturally explained.*' § 423. Id.: Papers Attached to or Referred to by WilL— "Any written testamentary document in existence at the execution of a will may by reference be incorporated into and' become a part of the will, provided the reference in the will is distinct and clearly iden- tifies, or renders capable of identification, by the aid of extrinsic- proof, the docuHient to which reference is made." " A paper al- ready written, referred to in a will and sufficiently identified, is as much a part ^f the will as if quoted verbatim at the place where it is mentioned in the will, whether the paper is executed or not : the * Matter of Estate of Finn, 1 Misc. » Matter of Probate of Will of 280 (1892), or 22 Supp. 1066. Diez, 50 N. Y. 88 (1872). 6 Matter of Swartz, 79 Misc. 388 i" Matter of Duffy; 127 A. D. 174, (1913), OP 139 Supp. 1105. Ill Siipp. 491 (1908), will. offered ' Matter of Lymdn, 14 Misc!, 352 for probate 31 years after testator's (-1895), or 36 Supp. Il7. death on suggestion of propiosed pur- * Deced. Est. L. § 24. This seetidn chaser of land. does not apply to a will executed by On the effect of delay in probating one dying before April 11, 1876, and will see note in 57 L.R.A. 253. does not invalidate a will executed On the right to probate will after before that date which would ha!^'e distribution of property as intestate been valid but for the enactment of see note' in 36 L.R.A.(N.S.) 89. sees. 1 and 2, ch. 118, L. 1876, ex- "Brown v. Clark, 77 N. Y. 369 cept when such a will is revoked or (1879), holding thai a codicil exe- altered by a will which those sections cuted by a woman after marriage to rendered valid or capable of being a will executed by her before mar- proved as prescribed in C. C. P., art. riage and referring toi the will re- I, tit. 3, ch. 18. Deced. Est. L. § 25. establishes the will. 483 NEW YOEK ESTATES AND SUBROGATES §§ 424, 425 attachment of the paper to the will is important only in its identi- fication.** A testator's books of account referred to by his "will, to ascertain the amount of advancements by the will charged against his devisees and legatees, are part of his will, though not executed with the formalities of a will ; because they need not be so executed, as thiey do not take effect only at his death.*^ While unattested or insufficiently attested or published testamentary documents are ex- cluded from probate though referred to in subsequent properly executed wills and codicils, yet such latter instruments may ratify or revive properly attested instruments which,, for any reason, might be inoperative.** A schedule, signed and attested in the same way and at the same time as a will, by the same testator and witnesses, 6ach (the will and schedule) referring unmistakably to the other, and the attestation clause of the will reciting that the schedule is the same one as is referred to in the body of the will, may be ad- mitted to probate as part of the will.*^ § 424. Id. : Last Will Only. — A paper declared by a testator to be a codicil to an existing will cannot be probated as an independent will' after the destruction of the will to which it refers, as it is nec- essary to the validity of the execution of a will that it be declared to be the testator's last will and testament.** Proof by the sub- scribing witnesses thereto of the execution of a second, though lost, will, prevents probate of a prior will.*'' § 425. Wills: Production. — It is not essential to the exercise of a surrogate's jurisdiction to admit a will or refuse probate that the tes- tamentary paper be produced before him, when it is in the posses- sion of a foreign court which would not suffer it to be taken from its files.*' Any person claiming to be interested in the estate of a decedent ** Tonnele v. Hall, 4 N. T. 140 whether codicil revived or made good (1850). by will said to have been inade while On incorporation of extrinsic docu- the testator was drunk, ment Ia will see note in 68 L.R.A. *' Matter of Brand, 68 A. D. 225 353. (1902), or 73 Supp. 1073. On recital in wiU of conveyance of ** Matter of Nokes, 71 Misc. 382 land as devise, where conveyance was (1911), or 130 Supp. 187; Deeed. not ii fact made or proves ineffectual Est. L. § 21. see note in 3 L.R.A.(N.S.) 645. *'' Matter of Myers, 28 Misc. 359 As to effect of republication of will (1899), or 59 Supp. 908. by codicil to incorporate extrinsic ** Matter of Delaplaine, 45 Hun, document into will see note in 68 225 (1887), or 19 N. C. 36; old Code L.R.A. 381. §§ 2621, 2476, 2481, subd. 11, 2472, *' Webster v. Gray, 54 Hun, 113, 1861. 7 Supp. 266 (1889). On admissibility in probate courts ** Cook V. White, 43 A. D. 388 of copies of records of other states (1899), or 60 Supp. 153; aff'd 167 see note in 5 L.R.A.(N.S.) 948. N. Y. 588, 60 N. B. 1109,-^uBstion 484 § 425 WILLS may petition for an order requiring a person to attend and be ex- amined about, and to produce a will or testamentary instrument.^* A proceeding to compel production of an alleged testamentary in- strument must be begun before a decree of probate has been made ; because by such a decree sentence is passed that there is no other will and a bar is put up as to all the-world, to be let down only when regularly set aside.^" A petition to compel a person to attend and be examined about, and to produce a will or testamentary instru- ment must make it appear that there is reasonable ground to believe that such person (a) has destroyed it; (b) has retained it; (c) has concealed it; (d) is conspiring with others to destroy it; (e) is con- spiring with others to retain it; (f) is conspiring with others to conceal it; (g) or has any knowledge as to its destruction, reten- tion, concealment, or conspiracy to destroy, retain or conceal it.^ A proceeding against a person suspected of destroying, retaining, concealing, etc., a testamentary instrument, to have it produced, is not an attack on a probate decree and may be instituted whether or no there has been such a decree ; but the surrogate need not proceed further than to issue a citation, on objection being made, unless the petitioner showed some ground or reason for suspicion that there was a testamentary interest which would give the petitioner an in- terest in the estate if produced.^ An application for an order re- quiring the attendance of a person alleged to have in his possession a will and requiring him to produce it, will be denied when the petition shows the petitioner has assigned all his interest in the estate for a valuable consideration.' Such a petition must by its title show that its purpose is what the petition asks, must state the decedent's residence immediately prior to his death, and must allege that no persons are interested other than those mentioned.* A surrogate's court must make an order requiring any person to attend and be examined about the destruction, retention or concealment of, or a conspiracy to destroy, retain or conceal a will or testamentary instrument of a decedent, when it appears from the petition of any person claiming to be interested in such decedent's estate that there is reasonable ground to believe that the person against whom the order is sought has either destroyed, retained, concealed; or con- spired to destroy, retain, conceal such will or testamentary instru- ment; or has any knowledge as to such destruction, retention or 19 C. C. P. § 2607. 3 Est. of Hammond, N. Y. L. J., 20 Matter of Work, 26 Misc. 403 Jan. 29, 1915 (N. Y. Surr.) (1912), or 56 Supp. 191. «Est. of Gerber, N. Y. L. J., Jan. 1 C. C. P. § 2607. 12, 1915 (N. Y. Surr.) 2 Matter of Work, 151 A. D. 707 (1912), or 136 Supp. 218; old C. C. P. § 2621a. 485 NEW YORK ESTATES AiNB SUBROGATES § 426- concealment or ;conspiracyw' , The drdert may also retiuire the pror duetion of any will or testamentary instrilment ; or such production may he otherwise required in the proceeding.® Service of the order must be madeby deliveryiof a certified copy to the person, or persons named in it, and payment or teiider to such person or each of such persons of the sum required by law:to be paid or tendered a witness subpoenaed ta attend a trial, in a surrogate's court.?: . -When a wil^ ness testifies on the return oif an order requiring him to be ex- amined as to the existence of a will that there is, a; will in existence, and that, while not in aCtjial possession of it, he can in all probabil- ity procure its production, he will, be ordered to file it,: notwithstand- ing that in an action pending, in the supreme court the petitioner, as a party, to such action, was refused the right toi see such will on an application for examination rbef ore trial.* Someitimes a will is thought to be on deposit in a safe < deposit box. or elsewhere in a bank, safe deposit company, etc. ; and the supposed place of deposit must, be , opened to ascertain if the will really is there. The method of going about this is to petition the surrogate's court, which makes an order, which is served on the depositary and the state, comptroller. , By appointment, the representatives, of the decedent, state comptroller: and depositary meet at the place of de- posit, the box or other receptacle is opened, the will taken out by the depositary's representative (on presentation of a waiver and consent thereto by, the state comptroller's, representative) , and is sent by : the : depositary's representative to the surrogate's court. Forms of the necessary petition, order and waiver are given among the forms in this volume.* § 426. Wills: Proceedijigs for Probate, Petition, Who May Make.^— Althoughit may not be necessary in order to set in motion proceedings to prove a will that there be a written petition, yet such is the universal custom.^" A mere request by an attorney for a party on leaving a will at the surrogate's court "how to take the proper proceedings for, the probate of the will" is not sufficient to inform the surrogate that such party required the surrogate him- self to initiate proceedings to prove the will.^* A petition for the pro- bate of a will or codicil may hei presented by ,(1) Any person desig- nated in the will or codicil as (a) executor, (b) devisee, (c) lega,- tee, (d) testamentary trustee, or (e) testamentary guai^dian; (2) A creditor of the decedent; (3) Any other person interested in the 5C. C. P. § 2607. 9 Forms Nos. 136; etseq., infra. «C. .C. P. § 2607. , "Wright V. Plemiiig, 19 Hun, 370 'C. C. P. § 2607. (1879). ' Est. of McKay, N. Y. L. J., Apr. ^^ Wrigjht Jv. Fleming, .supra. 2, 1916, Bronx Surr., C. C. P. § . ) :. 2607. 486 § 4:^7 WILLS decedent's estate ; (4) Any party to an action brought in which the decedent, if living, would be a proper party; (5) Any party to an action about to be brought in which the decedent, if living, would be a proper party.^* Although one named as executor in a will rests under a moral obligation to offer "it for probate, he is under no imperative legal duty to do so." It is his right though perhap" not his duty to present the will for probate.'* A person appointed by power of attorney from a non-resident named as legatee and ex- ecutor in a will may petition for its probate as one interested in the estate.'* § 427. Id.: Petition, Form. — A petition for probate of a will or codicil must contain allegations showing: (1) The right of the petitioner to make the petition; (2) The title of the proceeding; (3) The name and residence (a) of the person to whose alleged will or codicil the proceeding relates; and (b) of the petitioner; (4) The facts upon which depend the jurisdiction of the court to entertain the application and grant t^he relief asked ; (5) The names and post-ofRce addresses, so far as they can be ascertained (a) of all the persons interested in the proceeding who are required to be cited upon the application, (b) of all persons concerning whom the court is required to have information ; or the facts which show what effort has been made to ascertain the name and post-office ad- dress of any person interested in the proceeding or concerning whom the court is required to have information, if the name and post-office address of any such person are unknown. (6) That there are no other persons than those; mentioned interested in the appli- cation or proceeding; (7), That relief as requested from, or action by the court is sought (i. e., a request for the relief or action of the court to which the petitioner deems himself entitled) ; (8) A de- scription of the will or codicil; (9) The names and post-office ad- dresses, so far as they can be ascertained with, due diligence, of all devisees, legatees, and beneficiaries named in the will or codicil; (10) A description, of any other will or codicil of the same testator on file in the surrogate's office; and (11) The names and post-office addresses, so far as they can be ascertained with due diligence, of all devisees, legatees and beneficiaries named in any such will or codicil.'* The petitioner for probate of a will or codicil niay be required to show by his petition or otherwise, before any process is issued on 12 C. C. P. § 2609. 16 Russell v. Hart, 87 N. Y. 19 i^Dodd V. Anderson, 197 N. Y. (1882)— 3 R. S. (6th ed.) 65, § 52, 466, 27 L.R.A.(N.S.) 336, 90 N. E. like new Code § 2609. 1137, 18 Ann. Cas. 738 (1910). ^^ C. C. P. §§ 2609; 2521. 1* Matter of Fraser, 165 A. D. 441, 150 Supp. 774(1914). 487 NEW YORK ESTATES AND SURROGATES § 427 the petition for probate, the following niatters in addition to those matters which the petition must show: — (1) If any person named in the petition be an infant: (a) the infant's age, (b) whether or not the infant has either a general or testamentary guardian, (c) whether or not the infant's father is living, or the infant's mother, if the father be dead, (d) the name and post-office address of the infant's father, if living ; or of the infant's mother, if the father be dead, (e) the name and post-office address of the person with whom the infant resides; (2) If any person named in the petition be either an adjudged or alleged incompetent: (a) the name and post- office address of the incompetent's c&mmittee,if any, (b) the name and post-office address of the person or institution having the care or custody of the, incompetent^ (c) the facts relating to the incom- petent's incompetency, (d) the name and postToffice address of a relative or friend having an interest in the incompetent's welfare ; (3) If a general or testamentary guardian of an infant, the person with whoiH the infant resides, the committee of an adjudged or al- leged incompetent, the person or institution having the care and custody of an adjudged or alleged incompetent, a relative or friend of an adjudged or alleged incompetent having an interest in the incompetent's welfare, is. included in a class and his name is un- known: (a) the names and post-office addresses of those persons of the class who are known, (b) a general description of all persons belonging to the class other than ;those who are known, showing their connection with the decedent and their interest in the matter in question ; (4) if the general or testamentary guardian, father or mother, of an infant ; the person with whom an infant resides ; the committee of an adjudged or alleged incompetent; the person or institution having the custody or care of an adjudged or alleged incompetent; the relative or friend of an adjudged or alleged in- competent having an interest in the incompetent's welfare — be un- known or his name be unknown: (a) A general description of the unknown person showing his connection with the decedent and his interest in the matter in question." The question of inhabitancy of a decedent, necessary to be deter- mined by the surrogate before probate, may be held established by a sworn allegation in tlje petition, in the absence of contest or other evidence." Uncontroveried allegations as to residence and assets in a petition must be held true." A petition stating that the last will and testament related to both read and personal property, was "C. C. P. §§ 2609; 2821. "Matter of Schober, N. Y. L. J., "Bolton V. Schiever, 135 N. Y. Apr. 19, 1915 (Bronx Surr.), C. C. P. 65, 18 L.R.A. 242, 31 N. E. 1001 §2546. (1892). 488 §§ 428, 429 WILLS signed by named witnesses, and appointed a named person as one of the executors, is a description of the will sufficient to give the surrogate jurisdiction.^" A petition for the probate of a nuncupa- tive will need not allege the words or phrases intended to be proved as a will.* In a petition for probate it is the duty of the petitioner to state as to one with regard to whom he knew there had been adoption proceedings by the testator, that such one was alleged to be the testator's adopted child; and not himself to decide if the pro- ceedings were sufficient to legitimatize the child.* Rules of various surrogate's courts provide that the original, or a copy of a will (compared or verified) must be filed with the petition for probate.* Rules of various surrogate's courts provide that a probata proceeding will not be entertained if a prior proceeding is pending.* § 428. Id.: Citation, Who to Have Notice, Will of Personalty Only. — The persons who must be cited upon a petition for probate of a will or codicil relating exclusively to personal property are: (1) The husband or wife, if any, of the testator; (2) All the next of kin of the testator; (3) Each person designated in the will or codicil propounded for probate as (a) executor, (b) testamentary trustee, and (c) testamentary guardian; (4) Each person named in any other will or codicil of the same testator ffied in the surro- gate's office as (a) executor, (b) testamentary trustee, (c) testa- mentary guardian, and (d) beneficiary.* On probate of a will re- lating exclusively to personalty a father must be cited as being one of the decedent's next of kin, if he is such.* § 429. Id.: Citation, Who to Have Notice, Will of Realty Only.— The persons who must be cited upon a petition for probate of a will or codicil relating exclusively to real property are: — (1) The hus- band or wife, if any, of the testator ; ( 2 ) all the heirs of the testator ; (3) each person designated in the will or codicil propounded for probate as (a) executor, (b) testamentary trustee, and (c) testa- mentary guardian; (4) each person designated in any other will or codicil of the same testator filed in the surrogate's office as (a) executor, (b) testamentary trustee, (c) testamentary guardian, and (d) beneficiary.'' It is not necessary on a probate proceeding to *" Grossman V. Grossman, 95 N. Y. Suffolk, 6; Gattaraugus, 4; Ghau- 145 (1884). tauqua, 1; Nassau, 2. 1 Matter of O'Connor, 65 Misc. 403, * See e. g., these Rules : N. Y., 21 ; 121 Supp. 903 (1909). ^'^F' p' vT^^l ..L'^f '' t c''^°T;>f ^^'^ ^^^ ^ Will" of Gr-ondL, N. Y. L. J., (1895), or 35 Supp. 105. , j^^^ ^g^ 1916, Bronx Surr., C. C. P. s See e. g., these Rules: N. Y., 4; §§ 2610, 2768, siibd. 12, § 98, subds. Kin^s, 5; Bronx, 4; Queens, 9; West- 3 and 7, Deeed. Est. L. Chester, 5; Herkimer, 5; Steuben, 11; ^ q_ c. P. § 2610. 489 NEW YORK ESTATES. AND SURKOGATES §§ 430, 431 cite the tenants, of real estate devised by the will.' Probate of a will of realty is of no force as to a husband or wife and heirs who were not cited.^ § 430. Id.: Citation, Who to Have Notice, Will of Both Realty and Personalty. — The persons who must be cited upon a petition for probate of will or codicil relating both to real and personal prop- erty are: — (1) The husband! or wife, if any, of the testator; (2) all the heirs of the testator,; (3) all ithe next of kin of the testator: (4) each person designated in the will or codicil propounded for probate as (a) executor, (b) testamentary trustee, and (c) testa- mentary guardian; (5) each person designated in any other will or codicil of the same testator filed in the surrogate's office as (a) executor, (b) testamentary tnistee, (c) testamentary guardian, and (d) beneficiary.*" Service personally on a minor, over fourteen years old of the citation in a probate proceeding gives the surro- gate's court jurisdiction over his person; and omission to appoint a special guardian for him as required by statute is an error which only renders the decree voidable.^* , Devisees and legatees named in a proposed will are not, entitled to, citation in the first instance; and notice given them, in such manner as the surrogate directs is not process so as to make them parties to the proceeding.*^ A proceed- ing for probate results, however, in, a decree conclusive against all thpse of whom jiirisdiction is obtained, and it, may be that a decree w,ould not bind legatees^nd devisees not, cited;, so that proof of all such not cited is propedy; required in order that, it rnay .be deter- mined if a supplemental citation should issue .to. them.*'; A; grand- son is not entitled to citation, a^ heir or kiia when the son. still lives.** Rules , of various surrogates' courts, provide for , what papers : must be filed, and when they must be filed, in a probate proceeding in which the parties waive citation.*^ The rules of your, surrogate's court may provide who shall be cited when two or more wills are offered for probate ; *^ or when the validity, construction or effect of a will is in issue.*'' § 431. Id.: Citation, Form. — A citation on a petition for probate of a will must contain and set forth: (1) The name of the person 8 Drake v. Peckin, 58 Misc. 449, 1914 (Kings Surr.) C. C. P. §§ 2610 109 Supp. 474 (1908).!, and 2618. SDworsky v. Arndstein, 29 A; D. .^'Id; C. C. P. § 2550. . , 274 (1898), or 51 Supp. 597; old ** Matter of Redfield, ,94,]M:igc. 20 Code § 2615, now in new Code § (1916). 2610. *5 See e. g., these Rule?: N. Y., 5; *» C. C. P. § 2610. Bronx, 4; Westchester, 5; Nassau, 2 ** Matter of Becker, 28 Hun, 207 *« See e. g.. Rule 6, Kings. (1882). *'' See e. g.. Rule 14, Queens. 18 In re Hu^er, N. Y. L. J., Oct. 9, 490 § 432 WILLS by whom the will is propounded; (2) whether the will relates (a) exclusively to real property, (b) exclusively to personal property, or (c) to both real and personal property; (3) the fact that the will is nuncupative, if this be so; (4) the name and residence of the petitioner; (5) the name and residence of the person to whose estate or fund the proceeding relates; (6) the names of all the persons to be cited who have not waived issue and service of the citation or who have not appeared, so far as such names can be ascertained; (7) the time, not more than four (4) months after the date thereof, when the citation is returnable; (8) the place where the citation is returnable; (9) the object of the proceeding in regard to which the persons cited are required to show cause; (10) the date when the citation issues; (11) the attest of the citation (a) in the name of the surrogate and (b) by the seal of the surrogate's court; (12) the name of the* attorney general of the state of New York, as a party to whom the citation shall issue, when it appears (a) that there is no heir-at-law or next of kin, as the case may be; or (b) that it is not known whether there be any heir-at-law or next of kin ; or (c) that all of the parties interested are nonresidents.^''* The citation in a petition for probate of a will must substantially set forth, in addition to the requirements which obtain as to all citations,: other matters, under the followiiig conditions: (1) when the names of some persons to be cited comprising a class are un- known (a) the names of those persons of the class who are known, and (b) a general description of all persons belonging to such class other than those whose names are known, showing their connection with the decedent and their interest in. the property or matter in question, (c) A designation, at the petitioner's option (1) of a per- son to be cited of whose name the petitioner is ignorant, by either a fictitious name or so much of his name as is known, adding (2) a description of the pefson ,^ntended, identifying him. (2) When the persons to be cited are unknown, (a) a general description of such persons showing their connection with the decedent and their interest in the property or matter in question, (b) A designation, at the petitioner's option, (1) of a person to be cited of whose name the petitioner is ignorant by either a fictitious name or so much of his name as is known,, adding (2) a description of the person in- tended, identifying him.^'"' § 432. Id. : Answer. — An executor not a legatee or next of kin of the testator cannot answer the petition for 'probates by putting in issue the validity of a bequest of personalty.^' Demand for a jury "» C. C. P. §§ 2610, 2523. 450, 51 Supp. 502 (1898), old Code "* C. C. P. §S 2610, 2524. § 2624. "Matter of Robertson, 23 Misc. 491 NEW YORK ESTATES AND SUKROGATES § 433 trial must be made; either in the answer or objections filed.*^ The general rules applicable to answers govern.^ ' , § 433. Id.: Objections and Contest, Who May Makc^Any per- son may make and file objections to any will or codicil offered for probate who is interested in the event of the probate proceeding ; or in any property any portion, of which is disposed of or affected or attempted to be disposed of or affected by the will or codicil; or" in any other will or codicil (than the. one offered for probate) alleged to have been made by the same testator and not duly revoked by him.* The interest of one interested in the event ol the probate pro- ceeding may be as devisee, legatee or otherwise under the will or codicil offered for probate.' The interest of one interested in any -property disposed of or affected or attempted to be disposed of or affected by the will or codicil presented for probate may be as heir at law, next of kin or otherwise in any portion of suclj property.* The interest of one interested in any other, unrevoked will or codicil (than the one offered for probate) alleged to have been made by the same testator, may be as devisee, legatee, executor, testamentary trustee or testamentary guardian under such other will or codicil.* Only a person who has a pecuniary, as distinguished from a senti- mental or sympathetic interest, to protect is "interested" so as to be entitled to appear in a probate proceeding and support or oppose the probate.' A person bequeathed less under one will than under the one sought to be probated cannot intervene to contest the latter will, because a person allowed to intervene must have an interest to protect that is threatened.'' The surrogate has jurisdiction to try the status of a contestant before taking proof of the factum of the will to see if he has the right to contest ; and one person cannot give another a standing in court to contest by naming such other in the petition for probate as being what such other is not; so that on ap- pearance in the probate proceeding of one named in the petition as "C. C. P. § 2537. shall be taken out of the estate see 1 See C. C. P. §§ 2518 and 2519 note in 2 B. R. C. 633. and § 790, infra. » C. C. P. § 2617. " C. C. P. § 2617. * C. C. P. § 2617. In connection with the subject of * C. C. P. § 2617. contesting a will see the following * Matter of Davis, 182 N. Y. 468, notes. 75 N. E. 530 (1905) , old Code § 2617, On the validity of agreement to new Code § 2617. defeat probate, notes in. 16 L,R.A. On the right or duty of preter- (N.S.) 236, 43 L.R.A.(N.S.) 575. mitted heirs to contest probate see On the validity of contract not note in 37 L.R.A.(N.S.) 1144. to contest probate, note in 13 L.R.A. '' Matter of Hoyt, 55 Misc. 159 (N.S.) 484. ,,, (1907), or 106 Supp. 359; old Code On the validity of an agreement § 2617, compare new Code § 2617. that the costs of contesting -a will 492 § 433 WILLS claiming to be widow the surrogate may at the instance of any per- son interested take proof as to the legality of her marriage.* Ob- jections to probate of a will will be dismissed on the ground that the obj octants are interlopers if they, as decedent's brothers and sisters, do not deny that the proponent is the decedent's widow and that his only heirs and next of kin were infant children ; but merely describe the objectants as two of decedent's heirs and next of kin.' The public administrator of a county in a foreign state appointed administrator of the estate of a resident of siich county is sufficient- ly interested to have a standing in the New York surrogate's court to oppose probate of a will of such decedent which only appoints an executor apd disposes of none of the testator's estate." A foreign public administrator may, on his application, be made a party to probate proceedings here so as to enable him to contest the pro- bate.^^ A person who is legatee under a will but neither an heir at law or next of kin of the testator and who makes no claim under any other will or codicil of the testator cannot file objections to the probate of the will at bar, as he is not interested in the event.^* The present statutory provision that "any person interested in the event" ais devisee, etc., may file Objections, is equivalent to a provision that one interested in siistaining or defeating the will may file objec- tions.^^ Children of a deceased first cousin of a testator, whose nearest relatives at death were first cousins, would not be entitled to share in his estate if he had died intestate, and cannot file ob- jections to the probate of his will." A person who appears before a decree but after depositions of subscribing witnesses to a will have been taken in open court (though on the same day) and gets leave to file objections and contest, cannot require that the depositions be set aside, but must- proceed with the proof already in.** The : re- quirement that the. attorney-general be cited on some probates hardly by implication gives the state a right to contest; probates, exeeptj possibly, when the will raises a charity.*® One having a lien * Matter of Hamilton, 76 Hun, 200 2617 : "otherwise interested in sus- (1894), or 27 Supp. 813. taining or defeating the will." •Matter of Garner, 59 Misc. 116 ** Matter of Eedfleld, 94 Mise. 20 (1908), or 112 Supp. 212. (1916), .and Matter of Nelson, su- 1* Matter of Davis, 45 Misc. 306, pra. 92 Supp. 392 (1904). "Est. of Sollinger,,N. Y. L. J., " Matter of Davis, 105 A. D. 221 Feb. 3, 1915 (N. Y. Surr.) (1905), or 93 Supp. 1004; aff'd 182 "Downey v. Downey, 16 Hun, 481 N. Y. 468, 75 N. E. 530. (1879) . 12 Matter of Nelson, 89 Misc. 25 i® Matter of Smart, 84 Misc. 336 (1915), or 152 Supp. 734— the words (1914), or 145 Supp. 838; old Code of subd. 1, § 2617, New Code: §§ 2616-2617, see new Code §§ 2511, "interested in the event" mean the 2523, 2524, 2610, 2618. same as the words of Old Code § On the right of state to contest 493 NEW YORK ESTATES AND SURROGATES § 43# on realty owned by another may appear and contest the probate of the codicil to a will of the latter's father whereby the lienor's lien would be destroyed." A receiver in supplementary proceedings by creditors of the property of the husband of a testate woman cannot object to and contest her will disposing of her property so as to de- prive the husband of all interest in her estate ; because he is not in- terested: as, if the will is set aside^ the husband's creditors would still have a claim against the husband only and no interest in the wife's estate.^* Only a person who has a pecuniary as distinguished from a sentimental interest to protect can file objections to probate of a will.^* If a will propounded bequeaths less to a trustee in trust for an infant than a prior will, the trustee and not the infant (by special guardian) is the. one to file objections.^" On death of a contestant of a, will (though the only next of kin of the alleged testa- tor) the probate proceedings do not abate; but the surrogate may and should allow the contestant's legal representatives to step into the deceased contestant's shoes and contest.^ § 434. Id.: Objections, Time Limit, Contents and Costs. — Objec- tions to any will or codicil offered for probate must be filed at or before the close of the testimony taken before the surrogate on be- half of the proponent, or at such subsequent time, as the surrogate may direct.* The objections filed to a will or codicil offered for pro- bate must state the interest of the objectant so as to bring him with- in the limits of those who are permitted by statute to make objec- tions ; * must state what the objections are ; and, if a jury trial is desired of any issue, must demand such jury trial.° A contestant loses his right to a jury trial on a will contest through failure to demand it in objections originally filed by him, and cannot file amended and supplemental objections like those originally filed save for the inclusion of a demand for a jury trial.^ In case of contested probates, rules of various surrogates' courts ofttimes re- quire that certain steps be followed and provide how the objections probate so as to escheat the property, cestui and trustee expressed desire see note in 2 L.R.A.(N.S.) 643. not to object. "Matter of Coryell, or Raffierty ^Van Alen v. Hewins, 5 Hun, 44 V. Scott, 4 A. D. 429 (1896), or 39 (1875). Supp. 508; old Code § 2617, see new * c_ c. P. § 2617. Code § 2618. ' See § 433. supra. "Matter of Brown, 47 Hun, 360 « C. C. P. § 2617. (1888). . « Matter of Foley, N. Y. L. J., Apr. "Matter of St. Cyr. — Misc. — , 20, 1916 (Bronx Surr.). See also N. Y. L. J., Fpb. 18, 1916, N. Y. Co. Matter of Holme, 167 A. D. 237, or (1916), C. C. P. § 2617. 152 Supp. 822; «» Matter of St. Cyr. supra, both i 494 § 435 WILLS shall be raised and served; what notice of trial and issue shall be given; etcJ Security for costs may be had, in the surrogate's discretion, from a person by whom, or on whose behalf, an issue is raised by answer or objection against the proponent of a will, an executor, adminis- trator or trustee, either (1) when such person is a non-resident of the state of New York; or (2) when the probate of the will has al- ready been once tried before a jury which has disagreed.' An ap- plication to require security is in the discretion of the court.' When a person named as executor in a will is met with a contest of the will's probate he may cast the burden of the contest on those to be benefited by the probate or assume it himself; and if he adopts the latter course he does^ so knowing he cannot bind the estate by any contract of bis own making and that any liability he incurs or ex- penditures he makes under such a contract is his own personal ob- ligation until it has been allowed him on judicial settlement of his accounts.*" If the will is admitted he may and must employ all fair means to sustain it, and can incur obligations which are equi- tably chargeable upon the estate and allowable to him on judicial settlement of his accounts, including those obligations, purely per- sonal in their inception, assumed before the proof of the will.** But if the contest results adversely to the putative executor he alone is responsible legally to those he has employed to fight his battle and cannot -charge the expenditures against the estate'.*^ § 435. Id.: Notices to Beneficiaries of Probate and Objections. — Before letters are issued in a probate proceeding a written notice, entitled in the proceeding, stating the name of the testator^ that his last will and testament has been offered for probate or probated (a.s the case may be) , and the name and pcfetofiice address of the pro- ponent and of each and every legatee, devisee or other beneficiary, as set forth in the petition, who has not been cited or has not ap- peared or waived citation, must be filed in the surrogate's court, with proof by affidavit of the mailing of a copy of such notice to each of such beneficiaries.** A notice must be filed in a surrogate's court whenever objections are filed to the probate of a will or codicil, by the proponent of the will, which must: (1) be written; (2) be entitled in the proceed- 'See, e. g., these Rtdes: N. Y. 6; **Dddd v. Anderson, supra: Queens, 13. *^ Dodd v. Anderson, supra. ' C. C. P. § 2750. On the right of executor to allow- ' Matter of Manamy^ N. Y. L. J'., anee for attorney's fees for services Dec. 1, 1914 (Bronx Su*r.). rendered in an attempt to estkblLsh 1" Dodd V. Anderson, 197 N. Y. or resist attack upon wUl see note in 466, 27 L.R.A.(N.S.) 336; 90 N. E. 26 L.R.A.(N.S.) 757.' 1137, 18 Ann. Cas; 738 (19l0). *3 C. C. P. § 2616. 495 NEW YORK ESTATES AND SURROGATES § 436 ing; (3) state the name of the testator; (4) state that the testator's last will and testament has been offered for probate; (5) state, or have endorsed on it, that objections: have been filed to the probate of the will; (6) state that the objections will be ieard on a day or at a term of the surrogate's court specified in the notice; (7) state the name and post-office address of each and every legatee, devisee, or other beneficiary, as set forth in ;the petition for probate, who has not been cited or has. not appeared or waived citation; (8) state the name and post-office address of the proponent of the will.** Service of the notice of th^l filing of objections to the probate of a will or codicil must be made in such manner and within such time as the surrogate shall direct on (1) each of the parties named in the notice; and (2) any other persons directed by the surrogate to be notified.*** Proof of due service of the notice of the filing of ob- jections to the probate of a will must be (a) made, and (b) filed in the surrogate's office.**" A decree in a Contested probate proceeding does not affect the right or interest of any person either named in the notice of filing of objections to probate or directed by the sur- rogate to be notified of the filing of such objections, unless such person shall have been served with notice of the filing of the ob- jections." : A proceeding to probate a will is a proceeding in rem; and. the statute may lawfully dispense with service of any notice of it upon persons interested who are nonresidents of the state ; but: a decree of the court of another state in such a proceeding that the decedent at death there resided is; not conclusive on an interested person in this state who had no notice of the proceeding,, as residence is a jurisdictional fact in such a proceeding.*^ !.;■ " § 436. Id.: Hearing or Trial and Proof: In General — ^Jury or No Jury? — If no objections are filed to a will or codicil, or, in other \vords, if probate is not contested, a .hearing is had by the surrogate or his clerk at which the subscribing witnesses swear to the due execution by the decedent of the testamentary instrument and the competency and freedom from restraint of the decedent at the time of suda. execution. Ordinarily the necessary testimony by the sub- scribing witnesses is written out on a form supplied by the surro- gate's, court arid; signed and sworn to by them, before the surrogate or his clerk — and this is the extent of the hearing. If there are ob- jections to or congests of the will or codicil, a trial must be had **C. C. P. §§ 2618 & 2616. On notice of distribution in pro- **» C. C. P. § 2618. bate proceedings as jurisdictional, see i*i'C. C. P. § 2618. note in 37 L.R.A.(N.S.) 368. 1* C. C. P. § 2618. As to right to probate will on serv- *^ Matter of Horton, 217 N. Y. 363 ice of notice by publication, .see note (1916). in 35 L.R.A.(N.S.) 1058. 496 § 437 WILLS ' and verbal testimony taken. The trial is before the surrogate alone linless a jury trial of any issue is demanded in the objections or answer filed." No jury trial can be granted in a probate proceeding- pending on or before September 1, 1914.^' The general question of the right to trial by jury in surrogate's courts is fully discussed hereinafter; and reference is here made to such discussion. ^^ § 437. Id. : Burden and Order of Proof. — Before a will or codicil is admitted to probate the surrogate must: — (a) inquire partic- ularly into all the facts and circumstances; (b) be satisfied with the genuineness of the will or codicil; (c) be satisfied with the validity of the execxition of the will or codicil; (d) have it appear to him that the testator at the time of the execution of the will or codicil was in all respects competent to make it and not under restraint.^* When the factum of the will has been satisfactorily established, the surrogate must grant probate unless want of testamentary capacity, fraud or undue influence is shown beyond a reasonable doubt.^' It has been said that this statutory provision makes the surrogate the exclusive judge of probate; but that he may have the jury as triers of certain controverted facts to be submitted to them by him, although he is not bound by their answers if not satisfied therewith. *^ The burden of proof is always on the proponent.* The same rules apply as in the trial of any other question of fact.* In ordi- nary cases it suffices for the proponent to prove compliance with the statutory formalities in the will's execution ; but when suspicious circumstances exist, proof should be given to satisfy the court that the paper is the will and declares the intentions of the testator.* The proponent of a will must satisfy the surrogate, as a condi- tion of probate, that the will was executed with all the formalities required^ by law.^ If the testator was blind it must be shown that he was made aware of the full contents of the paper which he was executing.** When a testator is deaf and dumb and unable to read " C. C. P. § 2617. right to probate, see note in 34 L.R.A. " Matter of Spooner, 87 Mise. 170 (N.S.) 9.65. (1914), or 150 Supp. 136; C. C. P. * Matter of Eno, N. Y. L. J., Feb. § 2771; Est. of Cutter, N. T. L. J., 24, 1916, N. Y. Co. Jan. 19, 1915 (N. Y. Suifr.). Matter "Lake y. Ranney, 33 Barb. 49 of Spo^mann, N. Y. L. J., Oct. 15, (l«^?)jp.^^"^%f c^^^^inf i?^' 1914 (Bronx Surr.). Matter of 290 (1895), or 34 Supp 406; Dobie lovinella, 166 A. D. 460 (1915), or v^ Armstrong, 160 N. Y. 584, 55 N. E. 151 Supp. 1007. 3 j^j^^.j.gp q£ Elmer supra ''See § 838 infra. 4 Late y. Ranney, 33 Barb. 49 2" C. C. P. § 2614. (I860). ** Matter of Babcock, 42 Misc. 235, » Primmer v. Primmer, 166 A. D. 86 Supp. 670 (1903). . 402, 151 Supp. 1024 (1915). On contents of will as affecting '"• Id. N. Y. E. & S.— 32. 497 NEW YORK ESTATES AND SURROGATES §; 437 or write, something more is demanded to prove his will than the fact of execution according to statute, viz., proof that his mind accom- panied his act of execution.^ The presumption that an instrument executed with all requisite, statutory formalities is the signer's will may be overcome by evidence showing that the will has been altered or that new sheets have been substituted.' "If, on examining all the witnesses and considering the attending circumstances, a rea- sonable doubt remains whether one or more of the directions of the statute have not been omitted, the probate must be refused, al- though it may appear probable that the paper expresses the tes- tator's intentions." * As a condition of probate the burden is on the proponents to show that the testator had an intelligent knowl- edge of the will's contents.* The burden of proof on a proponent is not only to show compliance with the statutory formalities of execution but that the decedent had testamenta,ry capacity." Un- due influence is an affirmative assault on the validity of a will and the burden of proof does not shift, but remains on the party who asserts its existence.^' The subject of undue influence and its proof in probate proceedings has been discussed by one of the surrogates of New York county in relation to jury trials.^^ In New York county the practice is established to confine the proponent's evi- dence in the first instance to the f act§ deemed evidential of the fact- um of the will ; then to permit the contestants to offer proofs of their objections; and finally to have the proponents proceed with the ^ RoUwagen v. RoUwagen, 63 N. Y. On effect of unnatural testamen- 504 (1895). tary disposition on question of, un- '' Van Buren v. Coekburn, 14 Barb, due influence see notes in 6 L.R.A. 118 (1852). (N.S.) 202; 22 L.R.A. (N.S.) 1024. ' Tarrant v. Ware, 25 N. Y. 425 As to evidentiary force of circum- (1862); Trustees ; of Auburn Sem,^ stance that one benefited by a will inary v. Calhoun, 25 N. Y. 422 was the draftsman thereof, or was (1862). active in procuring its execution see 'Matter of De Castro, 32 Misc. note in 28 L.R.A. (N.S.) 270. 193, 66 Supp.'239 (1900).. On the character of presumption ^" Matter of King, 89 Misc. 638 as to undue influence in bequest to (1915), bi- 154 Supp. 238; C. C. P. mistress see note in 11 L.R.A.(N:S.) § 2614, Deced. Est. L. §§ 10, 15 and 554. 21. On the effect of meretricious rela- 1* Matter of Kindberg, 207 N. Y. tibns between testator and bene- 2^0, 100 N. E. 789 (1912) . flciary on validity of devise or bequest 12 Matter of Caffrey, N. Y. L. J. see note in 17 L.R.A. (N.S. ), ,477. May 15, 1916. Ante-testamentary declarations as For a number of excellent notes on evidence of undue influence are dis- the matter of undue influence see the cussed in note in.3 L.R.A,(N,S.) 749. following. ' On omitting part of will from pro- The burden of proof as to' undue bate because of undue influence see influence is discussed in notes in 17 note in 34 L3-A.(N.S.) 973. L.R.A. 494; 36 L.R.A. 724, 733. 498 I 438 WILLS testimony deemed pertinent to support the paper as a will." If the proponents prove the factum, the burden is on the contest- ants to show undue influence, etc.** Mere allegation by the con- testants, of the unusual character of the provisions of the will is not enough to defeat its probate." One of the surrogates of New York county has regulated the proof and procedure in con- tested probates before Juries over which he presides as follows: (1) Proponent's counsel opens briefly; (2) Proponent proves execution under the statute of wills; (3) Contestant cross-examines solely on matters brought out on direct examination; (4) Contestant dis- proves factum; (5) Contestant establishes the affirmative of his ob- jections.*' ■ § 438. Id.: Proof of Written Will in General. — While the signa- ture of the testator and the witnesses can only be proven by written memorial, viz., by the actual appearance on the face of the paper, and cannot be made to depend upon the recollections of anyone; yet, on the other hand, the seeing, by the witnesses, of the signa- ture made by the testator, or the hearing, by the witnesses, of the "testator's acknowledgment of his signature, and their hearing of his publication of the paper as his will and his request that they sign as witnesses, can only be proven, by their recollection save as the only written memorial -which can be used, viz., the attestation clause is available.*'' That the prescriptions of the statute were complied with may be shown by inferences from circumstances or by persons other than the subscribing witnesses without any direct testimony, or by evidence of one witness against that of one or more other witnesses." When a will is to be proved other than by witnesses' testimony the fact must be established that the instru- ment was in some form declared by the decedent to be his will.*' On absolute reversal by the court of appeals of a surrogate's de- cree holdiiig-a will revoked and verdict by jury in supreme court on trial directed by court of appeals in favor of will, formal proof IS necessary in the surrogate's court of the factum of the will be- fore its new decrefe can be entered on filing with it of the certificate *' Matter of Sperb, 71 Misc. 373 by subscribing ■witness is discussed in ■<1911), or 130 Supp. 122. note in 35 L.E.A. 321. ** Matter of Sperb, supra. *' Peck v. Carey, 27 N. Y. 9 ** Matter of Sperb, supra. (1863); Lewis v. Lewis, 11 N. Y. *« Matter of Vetter, N. Y. L. J. 222 (1854) ; ,Rngg v. Rugg, 21 Han, Apr. 11, 1916, General Rule of Prae- 383 (1880), afiPd ,83 N. Y. 592. tice29. ■ ' "Matter of Dale, 56 Hun, 169 IT Peck V. Carey, /27 N. Y. 9 (1890.),, or 9 Supp. 396; aff'd 134 (1863). N. Y. 614, 32 N. E. 649, old Code, § The necessity of proving signature 2660. o , 499 NEW YORK ESTATES AND SURROGATES §§ 43D-441 of the clerk of the supreme court as to the jury's vferdict, i. e., on absolute reversal all proofs must be taken de novo.^" § 439. Id.: When Two or More Witnesses Alive^ In State and Com- petent. — The manner of proving the execution of an existing, written will or codicil differs under varying sets of circuiiistanees. (1) If two or more of the subscribing witnesses are (a) alive (b) within the state, and (c) competent to testify, the testamentary instrument must be proved by the (a) production, (b) examination and (c) reduction to writing of the, testimony, of at least two of such witnesses.^ The existence of a proper attestation- clause to a will is not sufficient proof of its dy^e execution as aga-inst the dis- tinct recollection of the witnesses that the formalities required by statute were not observed,'' , T^estimbny by one subscribing witness to an alleged will against its due execution does not bind the sur- rogate to refuse probate if another subscribing witness testifies for the alleged will's due execution.' A written, existing, will of an inhabitant of New York state executed in New York state cannot l>e probated in New York state unless physically produced ; if pro- bated in another state it cannot be proved in New York state by commission if the witnesses , all reside in New York state.* § 440. Id.: When One Witness in State and Competent.— If one of the subscribing witnesses is (a) ali'^re, (b) in the state and (c) competent to testify, and the tefetiniony of the other or othters has been dispensed with (by the surrogate's order entered in the min- utes or recited in the decree admittiilg the will to probate on proof to him by affidavit or other conipetent proof of the death, absence from the. state or incompetency by reason of lunacy or otherwise of such other witness or witnesses) , the testamentary in- strument must be proved by the (a) production, (b) examination and (c) reduction, to writing of the testimony, of such available witness alone.* , § 441. Id.: When AH Witnesses Out of State but One Alive, iCom- petent and Able. — If all the subscribing witnesses are without the state but one or more of them is (a) alive, (b) competent, and (c) able to testify, and his or their testimony,, it is shown, (c) can be obtained with reasonable diligence, and (d) is demanded to be taken by commission by any party, the testamentary instrument may in the surrogate's discretion be proven by the testimony by 2° Matter of Hopkins, 41 Mise. 83 (1915), or 152 Supp. 537; C. C. P. (1903), or 83 Supp. 890; aflf'd 93 A. §'2612. D. 618, 87 Supp. 768. * Matter of Law, 80 A. D. 73 ' iC. C. P. § 2612. (1903), or 80 Supp. 410; aff'd 175 « Matter o£ Nash, 76 A. D. 2l2 N. Y. 471, 67 N. E. 1084. (1902), or 78 Supp. 449. » q q p § 2612. 8 Matter of Spooner, 89 Misc.' 30 500 I 442 WILLS commission of one or more of such commissionable wtnesses.' It is not necessary to take, the testimony; by commission or otherwise of a subscribing witness to a will absent from the state even though his place of residence is known unless one of the parties to the pro- bate proceeding so requests.'' § 442. Id.: When All Witnesses Dead, Incompetent, Unable or Absent. — If all the; subscribing witnesses are (a) dead, (b) in- competent to testify by reason of lunacy or otherwise, (c) unable to testify, or (d) absent from the state; and their testimony ha.-< been dispensed with (by surrogate's order entered in the minutes or recited, in the decree admitting the will or codicil to probate on proof to the surrogate by affidavit or other competent proof of the death, absence from the state or incompetency or inability to testi- fy), the testamentary instrument may be established by proof (a) of the testator's handwriting, (b) of the subscribing witnesses' handwriting, and (c) of such other circumstances as would be suf- ficient to prove the will upon the trial of an action.' If the two subscribing witnesses to a will are dead, proof of testator's hand- writing and of his statements that he had made a will only (and no proof that the signatures of the witnesses were written by them or other proof) calls for a refusal to probate the will.* Proof of the handwriting and signatures of a testator and the two deceased subscribing witnesses .to, a holographic will entitles the will to pro- bate although the only suggestion of an attestation clause is a statement at the will's end just before the signatures that on a cer- tain day the will was published and declaxed by the testator as his will and signed, sealed and delivered.^" The requirement that such other circumstances as would be sufficient to prove a will upon the trial of an action must be proven in addition to the testator's and subscribing witnesses' handwritings in order to establish a will when all the subscribing witnesses are dead is satisfied by proof of facts from which the existence of the fact in issue may be naturally inferred, e. g., when there is no attestation clause, that the will (of a wife) was part of a scheme for mutual wills by her and her 6 C. C. P. § 2612. 9 Matter of Halstead, 51 Misc. 542, On necessity of procuring deposi- 101 Snpp. 971 (1906). tions of attesting witnesses to will ^^ Matter of Briggs, 47 A. D. 47 who are beyond the jurisdiction of (1900), or 62 Supp. 294, testator's the court see note in 47 L.E.A.(N.S.) friend testified that 27 years after 722., will was executed testator told hiiri ' Matter of Clark, 75 Hun, 471, 27 oireumstanees of execution and asks Supp. 681 (1894), old. Code, § 2620, that will be freshened up because as amend'd L. 1888^ £. 508. made so long ago it might be thought * C. C. P. § 2612 ; Swenarton v. he had made a later one. Hancock, 22 Hun, 38 (1880) afiC'd 84 N. Y. 653. 501 NEW YORK ESTATES AND SUBROGATES § 443 husband in favor of the survivor, prepared by the husband who had also prepared another will for himself to carry out the scheme which he had executed with the same witnesses as were on the wife's will with all statutory formalities, and that the wife's will was executed at the same time.'* § 443. Id.: When Witness Fotgets or Testifies Against Execu- tion. — If a subscribing witness (a) has forgotten the occurrence of the execution of the will or codicil, or (b) testifies against the execution of the will or codicil, the testamentary instrument may be established by proof (1) of the testator's handwriting, (2) of the subscribing witness' handwriting^ and (3) of such other cir- cumstances as would be sufficient to prove the will upon the trial of an action.** A will is sufficiently proven by the positive testi- mony of one subscribing witness of its due execution, in spite of the want of memory of another.*' It is not necessary that execution be established by the concurring testimony of two witnesses: both must be examined (if possible under the statutes) but the will may be established even in direct opposition to the testimony of both of them.** A will may be proven against the testimony of one witness that he was not told the pa,per was a will and that he did not see the testator's subscription to it, if the other witness testifies the testator presented the will already signed and drawn by himself to both witnesses ivith the subscription in plain sight and in sub- stance and effect told them it was his will and asked' them to sign as witnesses, which they both did.*' A will is properly signed and acknowledged th'dugh' the witnesses do not remember whether it was signed or not, if its date and the signatures 'of the testator and witnesses are all in one kind of ink different from that used in the main body of the ' will and the attestation clause, written by the testator, says it was so signed.*® The fact that two witnesses do not ■ remember whether the testator signed before ' them does not preclude probate if the attestation clause and surrounding circum- stances show proper execution.*' A wiirma,y be admitted against the testimony of a surviving witness (that the testator did hot ** Matter of Abel, 136A. D. 788 ter of Hardenburgli 85 Hun, 580 (1910), or 121 Supp. 452; old Code, (1895), or 33 Supp. 150; old Code, § 2620, new Code: ' § 2618; In r& Spooner's Will, 152 *2C. C. P. § 2612. Supp. 537 (1915), or 89 Misc. 30, , On proof of signature when attest- C. C. P. § 2612L ing witnesses are dead or cannot re- *' Matter of Bassett, 84 Misc. 656, member see notes in 44 L.R.A. 142, 51 146 Supp. 842 (1914). L.R.A.(N.S.) 927. *« Matter of Sanderson, 9 Misc. *8 Matter of Higgins, 94 N. Y. 554 574 (1894), or 30 Supp. 848. (1884). *''Rugg V. Rugg, 21 Hun, 383 ** Trustees of Auburn Seminary v. (1880), aff'd 83 N. Y. 592. Calhoun, 25 N. Y. 422 (1862) ; Mat- 502 § 443 WILLS sign or acknowledge his signature and did not publish) when the attestation clause is full and the deceased witness' signature is proven." The positive oath of one witness, with surrounding facts and circumstances, will prevail in probate proceedings against the failure of memory of the other witness, as to the due execution of the will." The statute permitting proof of a will by proof of the handwriting of the testator and subscribing witnesses permits pro- bate by testimony by a surviving witness that he saw the testator put his mark (together with proof of due publication).^" After a lapse of a great period of time a will should not, be set aside for fail- ure of the subscribing witnesses to recollect that all the statutory requirements of execution were complied with, unless it affirma- tively appears the will was not duly executed.^ An holographic will, appearing on its face to be entirely regular may be admitted although both witnesses testify not only that none of the statutory formalities were complied with but that they were neither of them present, if proof be made of their and the testator's genuine signa- tures to a proper attestation clause, in connection with other cir- cumstances tending to prove its due execution.* Surrounding cir- cumstances are not sufficient to admit a will to probate against the evidence of the subscribing witnesses as to its execution when they consist only of their admission (one year after execution) that the signatures under the attestation clause are theirs.^ When one sub- scribing witness swears positively that the formalities requisite to sustain the execution of the will were adopted, failure of recollec- tion by the other subscribing witness as to whether the testator declared the paper to be his will or requested any one to sign as witness will not preclude probate.* The statute -does not demand that the witnesses remember and state from memory that the things which it requires to be done were done.* If the attestation clause is full, the signature genuine, the circumstances corroborative of due execution, and there is no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the statutory provisions were complied with, even though the wit- nesses are unable to recollect the execution or what took place at the i» Orser v. Orser, 24 K Y. 50 « Matter of Cottrell, 95 N. Y. 329 (1861). ' ' (1884). 19 Matter of WUl of Bemsce, 71 » WooUey v. Woolley, 95 N. Y. 231 Hun, 27 (1893), or 24 Supp. 509; (1884). aff'd 141 N. Y. 389, 36 N. E. 314. *Newhouse v. Goodwin, 17 Barb. 20 Matter of WUson, 76 Hun, 1 236 (1853); Matter of Seymour, 76 (1894), or 27 Supp. 957; old Code, Mise. 371 (l912), or 136 Supp. 942. § 2660. * Matter of KeUum's Will, 52 N. Y. 1 Cheeney v. Arnold, 18 Barb. 434, 537 (1873). (1854), aff'd 18 N. Y. 434 (25 years lapse of time.) 503 NEW YORK ESTATES, AND SURROGATES §S m, 445 time, i. e., if the attestation' clause and the surrounding circum- stances satisfactorily establish the execution of a will, failure of recollection of the subscribing witnesses cannot defeat its probate.' Illustrative cases are collated in the note.*^ ' § 444. Id. : Of Nuncupative Will.— Before a nuncupative will or codicil can be admitted to probate: (1) Its execution and tenor must be proven by at least two witnesses; '' (2) The proofs must be reduced to writing;* and (3) The testamentary capacity and in- tent to will at the time of the alleged nuncupation must be clearly and satisfactorily proven.® Qusere if thb will must be made in the mariner's or soldier's last sickness and while in extremis? " The nuncupative will of a mariner must be probated when it is proven: (1) That it was made and published and not reduced to writing; (2) That the decedent was then of sound mind and mem- ory and was not under any degree of restraint; and (3) that he was then in his last sickness and actually at sea.'* § 445. Id.: Of Lost or Destroyed Will— In Surrogate's Court.— A lost or destroyed will may be proved either by an action in the supreme court,** or by a special proceeding in the surrogate's court." The proof essential to secure admission to probate, in a surrogate's court of a lost or destroyed will or codicil is: (1) either (a) that it was in existence at the time of the testator's death or ' Matter of Kellum's Will, supra ; the will's execution, is in proper form Matter of BrisseU, 16 A. D. 137 except for the omission of the word (1897), or 45 Supp. 122; Matter of "him" (referring to the testator); it Pepoon, 91 N. T. 255 (1883) ; Rugg is signed by attesting witnesses; one V. Rugg, 83 N. Y. 592 (1880.) dead, whose signature is proven, and '* Matter of de Haas, 9 A. D. 561, the other living and the draftsman, 41 Supp. 696 (1896). A will is not who acknowledges his signature; even sufficiently proven if the attestation though the latter cannot remember clause states the testator signed in the the facts stated in the certificate, presence of three witnesses; one of ' C. C. P. § 2611; Matter of O'Con- the witnesses says the testator simply nor, 65 Misc. 403, 121 Supp. 903 remarked he would like him to wit- (1909). ness the will, the testator having in ' C. C. P. § 2611. his hand a paper on which the wit- * Hubbard v. Hubbard, 8 N. Y. 196 ness wrote his name; another witness (1853). said the testator asked him to sign *" Hubbard v. Hubbard, supra. his will, he did not see the testator On soldiers' and seamen's wills sign, and did not remember if he saw generally see note in 4 B. R. C. 899; the testator's signature ; the third on what is ,"last sickness" permitting witness is dead and no effort was g, nuncupative wUl see note in 13 made to prove his signature. L.R.A. (N.S.) 1092. , Matter of Reynolds, 87 Misc. 569 " Hubbard v. Hubbard, 12 Barb. (1914), or 151 Supp. 380. A wUl is 148 (1851), affi'd 8 N. Y. 196. properly admitted when the attesta- ** C. C. P. § 1861-1867. tion certificate, contemporaneous with *' C. C. P. § 2613. 504 § 446 WILLS ^ (b) that it was fraudulently destroyed in the testator's lifetime;^* and (2) that its provisions be clearly and distinctly proven either (a) by at least two credible witnesses or (b) by a correct copy or draft and at least one credible witness.^' If a testator has made a will which is not found at his death after careful and exhaus- tive search it is presumed that he destroyed it with the intent to reoke it; " and the requirement that it must be proved (if the will was not in existence at his death) that it was fraudulently destroyed in his lifetime, is to overcome this presumption.^^ The witnesses needed to prove the contents of a lost will need not neces- sarily be witnesses to its execution ; but they must be able to speak of an actual will from their personal knowledge, and not of a pos- sible will : so that their testimony is not competent if their knowl- edge of the will's contents is limited to what they supposed or be- lieved it contained only because somebody had told them that a draft they had seen of a will had been executed afterwards and had become a will.*' Under the statutory provision that a lost or destroyed will may be probated in a surrogate's court only when the will was in existence at the testator's death or was fraudulently destroj'^ed in his lifetime, the destruction must have been by some intervening human agency in motion, or set in motion to bring about its destruction, and an accidental destruction through no- body's fault or active agency is not sufficient.*^ § 446. Id.: Proof of Lost or Destroyed Will: In Supreme Court, In General. — An action to procure a judgment establishing a will may be maintained in the supreme court by any person interested in its establishment when (1) the will, whether of real or personal property or both, has been executed in such a manner and under such circumstances that it might, under the laws of the state, be admitted to probate in a surrogate's court; (2) the original will has been lost or destroyed by accident or design before it was duly "C. C. P. § 2613, 1865; Matter of where there are other portions that Kennedy, 167 N. T. 163, 60 N. E. cannot be established see note in 26 442 (1901) ; Knapp v. Knapp, 10 N. L.R.A.(N.S.) 654. Y. 276 (1853). On. necessity and sufficiency of *' C; C. P. § 2613, 1865; Matter of proof to account for nonproduotion Kennedy, supra. of will upon application to probate *^ Matter of Kennedy, supra ; it as a lost or destroyed will see note Knapp V. Knapp, supra. in 50 L.R.A.(N.S.) 861. 1'' Knapp V. Knapp, supra. *' Matter of Waldron, 19 Misc. 333 On proof of execution of lost or (1897), or 44 Supp. 353; C. C. P. § destroyed wills see note in 38 L.R.A. 1865, old Code, § 2621. 441. ** Matter of Reiffeld, 36 Misc. 472 On whether the part of a lost or (1901), or 73 Supp. 808; old Code destroyed will which can be estab- § 2621, new Code, § C. C. P. § 1865, lished may be admitted to probate burning of building in which will was. 505 NEW YORK ESTATES AND SURROGATES § 447 proved and recorded within the state;.*" (3) but the plaintiff is not entitled to a judgment establishing the will unless the will was in existence at the time of the testator's death or was fraudulently- destroyed in his lifetime, and, (4) its proyisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.^ If the facts necessary to establish the validity, of the will are satisfactorily proved, final judgment must be rendered establishing the will accordingly.* When the parties to the action, who have appeared or have been duly summoned include all the persons who would .be necessary parties to a special proceeding in a surrogate's court for the pro- bate of the same will and the grant of letters thereupon, if the circumstances were such that it could have been proved in the surrogate's court, the final judgment must direct that an exempli- fied copy thereof be transmitted to the surrogate having jurisdic- tion, be recorded in his office, and letters testamentary or with the will annexed issued thereupon from his court in the same manner and with like effect as upon a will duly proved in that court.' The substance of the will must be incorporated into such final judgment and the surrogate must record it and issue letters on it as directed in the judgment.* A will destroyed by the testator himself, but un- der the coercion of another, may be established in the supreme court as a lost or destroyed will.^ To establish a lost or destroyed will by action the plaintiff must give clear and convincing proof (1) as to its provisions and (2) as to its existence at the testator's death, in order to overcome the presumption of revocation as to a will which cannot be found at thie alleged testator's death.* An action to establish a lost codicil in the supreme court may be brought by a person given a certain sum by the will unless such sum had been settled on such person before the decedent's death although it may eventually be determined that such a settlement was made ; because such settlement is matter of defense.'' § 447. Id.: Proof of Lost or Destroyed Will: In Supreme Court, Burden of Proof. — -One seeking to establish a lost will must prove the execution of a will according to law and overcome the presump- tion, if the facts of the case raise it, that a will so executed, last seen in the decedent's possession or under his control and not found at his death on proper search, was destroyed by him with the intent 2° C. C. P. § 1861. 8 Kahn v. Hoes, 14 Mise. 63, 35 1 C. C. P. §1865. Supp. 273 (1895), C. C. P. § 1865. 2 C. C. P. § 1862. , '' Doulon v. Kimball, 61 A. D. 31 ' C. C. P. § 1863. : (1901), or 70 Supp. 252: C. C. P. §§ * C. C. P. § 1864. 1861-1867. ' Voorhees v. Voorhees, 39 N. Y. 463 (1868); C. C. P. ,§§ 1861-1867. 506 §^ 448, 449 .. WILLS ' to i:evoke it.* Proof of the declaration of the testator of a will executed in triplicate, made a few days before his death, that his wills were at a place where one of the triplicates was found at his death, : overcomes the presumption of revocation through failure to find the one of the triplicates itraced to his possession.^ The pre- sumption that a will, either was in existence at the testator's death or was fraudulently destroyed is justified on evidence of its due execution, of its provisions, of its delivery for safe-keeping immedi- ately after its execution to the person named as executor and rasid- uary legatee, • of the decedent speaking of it as in such custody and as satisfied with its terms within a week of his death, and of the person named executor having placed it with papers of the testator, moved his residence and been unable to find the will after the testator's death.^" "The burden of proof to establish the exist- ence of the will at the time of testator's death or that it had been fraudulently destroyed in his lifetime was upon the proponent." ^^ Before a plaintiff in an action to establish a lost or destroyed will is entitled to judgment he must prove its existence at testator's death or its fraudulent destruction in testator's lifetitne and clearly and distinctly prove its .provisioris by at least two credible witnesses, a correct copy or draft being equivalent to one witness.^* Proof of the provisions of the missing portions of an unrevoked will need not be proven by two witnesses; as the rule applies only when the whole will has been lost or destroyed.^* § 448. Id.: Proof of Holographic Will. — The statute makes no exception with respect to a holographic will in its requirements as to execution." The fact that a will is holographic is not sufficient to admit it to probate when the two subscribing witnesses both swear that there was no publication of it and that they did not know that the paper was a will until long after they signed it.^^ § 449. Id.: The Witnesses, Definitions. — A subscribing witness to a will or codicil is one who signed it at the testator's request for the purpose of testifying after the latter's death to its due execu- «Hard V. AsMeyy 88 Hun, 103 (1915), or 152 Supp. 557; C. C. P. (1895), or 34 Supp. 583. ; § 1865. 9 Matter of Pattison, 78 Misc. 699 "Matter of Turell, 166 N. Y. 330, (1912), or 142 Supp. 1134; aff'd 154 59 N. E. 910 (1901). ■ Supp, 1136. ," Matter of Wilderming', 75 Misc. . " Matter of Cosgrove, 31 Misc. 422 432 (1912), or 135 Supp. 516. (1900), or 65 Supp. 570; G.C. P. § On the proof of hologj-aphie ivill 1865, two disinterested' witnesses where, attesting witnesses, ,l],ave for- showed delivery of will to executor, gotten circumstances attending its 11 Matter of Sheldon, 158- A. D. execution see note in 51 L.E.A.(N.S.) 843, 144 Supp. 94 (1913). 949. 1^ C. -C. P. §1865. As to violation of requirement that 1* Matter of Kent, 89 Misc. 16 holographic will shall be written by 507 NEW YORK ESTATES AND SUBROGATES § 450 tion and the testator's competency and freedom from restraint at the time of such execution. A surrogate's witness is a person called and examined in the first instance neither by a proponent nor by a contestant but by the surrogate in order to testify as to the factum of the will or codicil." 'These witnesses are no longer extant." § 450. Id.: The Witnesses, Examination and Testimony, In Gen- eral. — Any subscribing witness or other witness produced by a proponent before the surrogate may be orally examined^ on re- quest, by any party to the probate proceeding, without the neces- sity of such party first filing objections to the probatfe.^' A surro- gate's witness, if examined by either side beyond the examination of the surrogate as to the factum of the will, becomes the witness of the side examining him.*' Under the reformed practice Any party to a probate proceeding may request the oral examination of the subscribing witnesses to the will and may examine such wit- nesses and any other witness produced by the proponent before the surrogate without first filing objections to the probate of the will.*" When an attorney or counselor becomes a subscribing witness to a will he is not subject to the statutory provision * that "an attorney or counselor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment," and may^ therefore, give his testimony relating to testamentary dispositioijs after the tes- tator's death; but if he is not a subscribing witness such statutory inhibition applies to him.* On proper demand by: a contestant the surrogate must require the production not only of subscribing, but other witnesses if he determines their testimony to.be material, their presence in the state, their competency and' ability to testator see note in 26 L.R.A.(N.S.) On the effeot of fact that person 1145. who executed will was not previously On the necessity, of witnesses to a known to witness see note in 21. holographic will see note in 14 L.R.A. . L.R.A.(N.S.) 531. (N.S.) 918. "Matter of Hermann, 83 Misc. The sufficiency of showing that pa- 283 (1913), or 145 Supp. 291. per offered as a holographic will was *' C. C. P. § 2611. intended as such is taken up in note *' Matter of Hermann, 83 Misc. in 33 L.R.A.(N.S.) 1018. 283 or 145 Supp. 291. ' As to custody of holographic will "^ C. C. P. §.2611; the old "surro- see note in 37 L.R.A. (N.S.) 842. gates' witnesses" are not now extant, On collateral attack on probate see Matter of Hermann, 83 Misc. 283 where decree or will affirmatively (1913), or 145 Supp. 291; old Code, § shows the will to be invalid for de- 2618. fects as to witnesses see note in 42 * C. C. P. § 835. L.R.A.(N.S.) 456. « Matter of Cunnion, 201 N. Y. 123, "Matter of Hermann, 83 Misc. 94 N. E. 648, Ann. Cas. 1912A, 834 283, 145 Supp. 291. (1911). 508 § 451 WILLS testify.' "When an attesting witness is old and cannot see to identify his signature it is proper for counsel to put leading questions to freshen his memory, e. g., to direct his attention to the fact that he had written the will for the testator, etc.* § 451. Id.: The Witnesses, Disqualification or Excuse from Testi- fying.: — A person is not either disqualified or excused from testi- fying respecting the execution of a will or codicil by a provision therein, whether beneficial to him or otherwise.* But if the will or codicil cannot be proved without the testimony of a subscribing witness -given any beneficial devise, legacy, interest or appointment of any real or personal estate by such will or codicil, such beneficial interest is void so far as it concerns such witness or any person claiming under him.® If such a witness would have been entitled to any share of the testator's estate in case the will was not estab- lished, so much of such share as would have descended or been distributed to him is saved as does not exceed the value of the devise or bequest made to him by the will; and he can recover it of the devisees or legatees named in the will in proportion to and out of the parts devised and bequeathed to them.'' The right of a person named in the will or codicil to commissions is not such a beneficial interest as to be avoided by such person's testimony to prove the will or codicil; because commissions are given by statute as compensation for services and do not accrue as a gratuity by force of the testamentary instrument.* A person who signed third as a subscribing witness and was, as well as the other two witnesses, a legatee under the will, does not lose the bequest to him by testifying after the other two legatee-witnesses had sufficiently es- tablished the due execution of the will ; because only two witnesses were necessary to prove the will, and the third witness' testimony was not, therefore, essential to its probate.' The two legatee-wit- nesses who did testify of course forfeited their legacies,^" as they are in the same boat as two legatees who are the sole witnesses to a will.** One named executor in a will is a competent subscribing witness to its execution.** When a will is sufficiently proven by •Matter of Baird, 41 Hun, 89 « Matter of Wilson, 103 N. Y. 374, (1886), old Code, § 2618. 8 N. E. 731 (1886). See also * Cheeney v. Arnold, 18 Barb. 434 Children's Aid Society v. Leveridge, (1854), a£E'd 18 N. Y. 434 (witness 70 N. Y. 387 (1877). 90 yrs. old). 'Caw v. Robertson, 5 N. Y. 125 As to loss of eyesight of attesting (11851). witness preventing his identification *' Caw v. Robertson, supra, of instrument or signature see note in ** Orth v. Kaesche, 165 A. D. 513, L.R.A:1915E, 593. 150 Supp. 957 (1914). 6 C. C. P. § 2545. 12 Rugg v_ Rygg^ 21 Hun, 383 SDepedent Estate Law, § 27. (1880), or 83 N. Y. 592. 'Decedent Estate Law, § 27: 509 ^'EW YORK ESTATES AND SURROGATES §§ 452, 453 the testimoiij of :two witness, -testimony of a third' witness, who is a legatee; does not avoid his legacy.*' One benefiting by a will does not lose his rights by testifying as a witness to a codicil ratifying the will, especially if the will is first offered for probate without the codicil, which can be done.** A person who is legatee not only under a will in controversy but — in a greater amount — under an earlier will also, who has executed a release of all his interest under such earlier will, is competent ■ to testify to personal transactions with the deceased.*** ■ § 452. Id.: The Witnesses, Recovery by Witness Losing Share. — A subscribing witness to a will' who is entitled to succeed to a share of the real or personal property of the testator may maintain an action against the legatees or devisees, as the case requires^ to' re- cover his share of the property; "and he is subject to the sariie lia- bilities, and has the same rights, and is entitled to the same reme- dies, to compel a distribution or partition of the property,' or a contribution from other persons interested in the estate, or to gain possession of ; the property, as- any other person who is so entitled to succeed.** If one of the only two witnesses to a will is in the state, of sound mind and not disabled,' he must be examined though he lose the legacy given him in the will and though the surrogate really probates the will on the testimony of the other witness whom he believes.*® § 453. Id.: Witnesses as to Testator's Statements. — A testators oral statements are not admissible to establish' a'testamentarj^ dii?- position of his property (except in the case of a rriariner or soldier making • a nuncupative will) ;- because their adniission would nul- lify the effect of the- statute of wills.** But oral stateiments of a tes- tator are admissible to ^ prove due publication of a^ written will; as they tend to reveal the true condition of the testator's miiid.** *3 Matter of -Beck, 26 Misc. 179, 156 cussed in note in 42 L.E.A.(N.S.) Supp,,853 ,(1899). . , . 4^^.- . ** Matter of Johnson, 37 Misc. 334, **» Matter of JCindbei^, 207 N. Y. 75 Supp. 489 (1'902). ' ' 220, 100 N. E. 789 (1912). On competency of trustee or mem- ** Deced. Est. L. § 28 ; see also ber of charitable beneficiary as wit- § 27, Deced. 'Est. L. ness to will see note in 36 L.R.A. *8 Matter of Brown, 31 Hun, 1j66 (N.S.) 504. - ' : (1883). On whether the competency of an *' Matter of Kennedy, 167 N. Y. attesting witness to a will is fobe de- 163, 60 N. E. 442 (1901). ' termined as of the time of attestation *' Matter of Kennedy, supra, or of probate see note in 35 L.R.A. On admissibility of testators' dec- (N.S.) 686. larations to prove execution of lost or Collateral attack on probate where destroyed will see note in 38 L.R.A. decree or will affirmatively shoi^^s the 442, to prove its contents same note ^ will to be invalid 'because of defects page 453, to overcome or sustain pre- " as to attesting witnesses is dis- sumption of revocation of lost or 510 §§ 454, 455 WILLS § 454. Id.: Determination and Decree, In General. — The fate of a will sought to be pr&bated is settled either by a court alone or by a court and a jury.^" In the former case the determination as to the will's admission to probate or denial of probate is in the shape of an order or decision of the court.. In the latter case the deter- mination as to the admission or rejection of the will is in the shape of a verdict by the jury supplemented by an order or decision by the court.^ The determination by verdict, order or decision is put in formal shape in a decree.* A jury trial before a court aUd jury of objections filed to the probate of a will or codicil or both may be either in the surrogate's or some other court.' If in the surrogate's court, the verdict of the jury or any order or decision of the surro- gate's must be entered in the minutes of the surrogate's court.* If in any other court, the verdict of the jury or any order or decision of the judge holding the court must not only be entered in the min- utes of such court, but must be certified by the clerk of such court to the surrogate's court.^ The object of the entry of a verdict, order or decision on a jury trial in the surrogate's court in the courts min- utes ; and the certification of a verdict, order, or decision on a jury, trial in another court,! to the surrogate's court, is to enable the surrogate to enter a final decree thereon according to the terms of the verdict, order or decision.^ A final decree must be entered by the surrogate according to the entry in the minutes of his court of a jury's verdict or any order or decision by him in a probate trial in his court ; or according to the certification of a jury's verdict or any order or decision of the judge holding the court on a probate trial in another court.'' The; decree must state that the probate was contested.' No decision is necessary or will be allowed on a pro- bate proceeding on behalf of a contestant whose attorney withdrew from the proceeding and abandoned the contest for his client.® § 455. Id.: Determination and Decree: Form and Contents. — The decree must state whether the will or codicil is admitted to probate as valid tO; pass real property, or personal property, or both.^' A decree admitting to probate the will of a decedent on whose estate letters of administration have been granted on the ground of intes- destroved will, same note page 436, « C. C. P. § 2619. also note in 50 L.R.A.(N.S.) 867. » C. C. P. § 2619. The admissibility of declarations of * C. C. P. § 2619. testator on issue of his intention in * C. C. P. § 2619. destroying his will is discussed in * C. C. P. § 2619, note in 24 L.R.A.(N.S.) 180. 7 C C. P. § 2619. On evidence of declarations of tes- * C. C. P. § 2614. tator to identify legatee or devisee . ® Matter of Holme, Misc. (1916), see note in 47 L.R.A.(N.S:) 540. N. Y. L. J. Mch. 16, 1916. 80 C C. P. §§ 2614, 2619. i" C. C. P. § 2614. 1 C. C. P. § 2619. 511 NEW YORK ESTATES AND SURROGATES § 456 tacy must revoke such letters.^* A decree admitting to probate a subsequent will of a testator whose prior will* had been admitted to probate and upon which first-probated will letters had been issued, must revoke such letters.** A decree for probate should state wheth- er probate was contested.*^ § 456. Id.: Determination and Decree: Effect. — A decree admit- ting a will or codicil to probate is conclusive (a) as to all matters embraced therein (b) against every person of whom jurisdiction was obtained." A decree denying probate is res adjudicata as to the matters therein decided, viz., that the instrument propounded is not the decedent's last will, was not executed and attested as prescribed by law, and is null and void as a will and not entitled to probate.*' A contestant of probate of a will who is beaten but does not appeal is bound by anything determined legally in the probate decree.*^ A decree of probate of a will by a probate court of a foreign state is conclusive in New York." A probate decree does not estop one not a party to the probate, proceeding as to the residence of the tes- tator." If there is no finding in a probate decree of the will of a testator who left both real and personal property in the county of the surrogate who made the decree as to his residence, the decree does not estop as to such residence, because the presence of either such realty or personalty in such county would be sufficient to give the surrogate jurisdiction quite irrespective of the testator's resi- dence." A decree admitting a will to probate disposes of the ques- tions of the testator's competency and of a contradiction between the will's terms and a contract by the testator.*" Personal representa- tives of a next of kin of a decedent who died pending the probate of the decedent's will, by voluntarily appearing in the probate pro- ceedings after their decedent's death, are bound by the decree en- tered in such proceedings* A decree of probate is conclusive only ** C. C. P. § 2624. ceedings to set aside decree of probate ** C. C. P. § 2624. see note in 54 L.R.A. 761. *3 Matter of Hasselbrook, 128 A. D. *'' Garvey v. U. S. Fidelity & Guar- 875, 113 Supp. 97 (1908). anty Co. 77 A, D. 391 (1902), or 79 ** C. C. P. § 2550. Supp. 337. On conclusiveness of probate as res .0**. conclusiveness of probate of judicata, see note in 21 L.R.A. 680. 7^ f ^^o \^I T^^\^fo^''^SV^^^ On collateral attack on probate for ^^^- °|^> 4^ ^•^■^- 131, 6 L.R.A. s^totet3fffi.(N^r9^''°" s::f^^i]:isrsZTk? ""'''■ "MaUer of Kinkh^l^Wl71 A. D. ^^^ ffi^o^BtaX supra. lo3, lo7 Supp. 37 (1916). 20 phalen v. U. S. Trust Co. 100 A "Matter of Eaton, 159 A, D. 7 D. 264 (1905), or 91 Supp. 537. (1913), or 144 Supp. 254. * Matter of Hermann, 91 Misc. 464 , On who may sue or take other pro- 154 Supp. 957 (1915). 512 S 456a WILLS as to formal validity.* It is enough that a surrogate's certificate of probate of will substantially state its admission on due proof as Valid to pass the testator's realty and personalty.' The general principle that a final determination in a judicial proceeding concludes the parties to it on all matters necessarily decided in it whenever such matters are put in issue in other litigation obtains as to surrogate's decrees of probate and on other matters than the probating of wills.* § 456a. Motions in Probate Proceeding. — Motions directly affect- ing contested probate proceedings on the calendar for trial should be made exclusively in the trial term.* A motion for an error transferring the issues in a contested probate proceeding to a trial term of the supreme court should probably be disposed of at the trial term of the surrogate's court (of New York county).* After the jury, in a contested probate proceeding, has rendered its find- ings to issues friamed for submission to it, motions for judgment on such findings, on the one hand, and for a new trial, on the other, come on to be heard; and if there was no error on the trial, the former motion must be granted.' One of the surrogates of New York county has decided that sections 998, 1185 and 1233 of the Code of Civil Procedure apply to jury trials in the surrogate's court ; and that, therefore, a motion should be made by the propo- nent for the judgment on the jury's answers and another motion by the contestant for a new trial, as such answers more nearly resemble a special than a general verdict.' If the trial of the issue by jury presents only questions of law the surrogate may direct a verdict subject to his opinion.' In the latter event the motion for judg- « Matter of Hasselbrook, 123 A. D. * Matter of Goldsticker, 192 N. Y. 874, 113 Supp. 97 (1908). 35, 18 L.R.A.(N.S.) 99, 84 N. E. 581, 'King V. Ring, 39 Hun, 220 15 Ann. Cas. 66 (1908). (1886), aff'd 109 N. Y. 619, 15 N. E. « Matter of Holmes' Will, 152 895, old Code, § 2629, new Code, § Supp. 822 (1915), or 167 A. D. 237, 2621, original will offered in evidence C. C. P. § 2504. with certificate that it "was duly * Matter of Eno, N. Y. L. J. Feb. proved before" the surrogate "accord- 24, 1916. ing to law, as and for the last will and ' Matter of Vetter, 95 Misc. 62, 158 testament of the real and personal es- Supp. 450 ; See also Matter of Dor- tate of the said deceased which said sey, 157 Supp. 662, 94 Misc. 566. last wiU and testament and the proof ' Matter of Dorsey, supra, C. C. P. and examinations taken thereon, are §§ 2770, 998 and 1233. The learned recorded in this office," held to con- surrogate desires that these motions form to statutory requirement that be made at a day later than that on certificate state that will has "upon which the verdict is rendered, due proof, been admitted to probate 'Matter of Dorsey, supra, C. C. P. as a win valid to pass real or personal §§ 2770 and 1185. property, or both, as the case may be." N. Y. E. & S.— 33. 513 NEW YORK ESTATES AND SURROaATES §§ 457, 458'. naent may be made by, either party and must be made at the ap- pellate, di-vision.^" The surrogate has power to grant a motion transferring to the supreme court for trial the issues in a, contested probate proceeding even after an order has been made in his court by another surroga.te. directing that such issues be tried ;before the surrogjite and a jury; but it would be an improper exercise of hi& discretion to do so under such circumstances." When a jury trial, in the supreme court has been had by direction of the appellate - court on the, question of the existence of undue influence to execute a will, a motion for, a new trial is prpperly made at Special Term.*^ § 457. Id: Validity, Construction and Effect, What Law De- termines. — The law of the state of which a testator ds a resident, rather than that in which his will was probated, governs -^he ; .de- termination of the validity of anijuities. as a charge on his person- alty." The validity of the will of a woman who died a, resident of New York is determined by; its laws; so that if she made it before her- marriage in a state in which subsequent marriage did not xevpke it, and did, later marry there before she removed to .New York, her will cannot be admitted in New York.^* On accomplishment by a trustee in this state of his ; duties under a foreign will, the constnic- tion of the will and; distribution of the personalty in his, hands- should, when no creditors' rights are involved, be remitted to, ,the courts of the , testator's domicil where the estate, .must, be- .flnally settled; but if the claimants, to; the personalty reside in New York and the: property is in: this jurisdiction ;and all ,would-be-distributees- are , before ; the New York court, it will, take jurisdiction on the .ground that it is not; proper to subject, resident claimant? tP tiie ex- pense, delay and uncertainty of proceedings in a foreign land.** The validity of bequests of ^personalty and rights thereto are de- termined by the law of the testator's domicil; but the validity of" devises of realty situated in New York is deterinined by the laws of Ney/ York, irrespectiye of the testator's dpniicil." § 458. Id.: Surrogate's Jurisdictipn, In General.: — ^Each surro- .gate^s court has jurisdiction (in the cases and manner prescribed by statute) to determine the validity, construction and effect of any disposition of property contained in any will proved therein when- " Matter of Doisey, supra, C.C. P. "Matter of Coburn; 9 Misc. 437 §§ 2770 and 1234. (1894), or 30 Supp. 383, old Code, ' " Matter of Eno, N. Y. L. J. Apr. § 2612. 11, 1916; C. C. P. § 2538; N. Y. Co. " Simonson v. Waller, 9 A. D. 503' Surrs' Rule No. 7 (App. Div. 1st (1896), or 41 Supp. 353. Dept.) "White V. Howard, 46 N. Y. 144 "Matter of Clark, 40 Hun, 233 (1871) ; Matter of Schober, N. Y. L (1886). J: Apr. 19, 1915 .(Bronx Siirr.) ; " Roose.velt V. Porter, 36 Misc. 441 Jackson v. Jaeksooi', 39 N. Y. 153: (1901), or 73 Supp. 800. (1868). 514 § 458 WILLS ever (a) a special procieeding is brought for that purpose; or (b) it is necessary to make such determination as to any will in a pro- ceeding before the surrogate of such court; or (c) any party to a proceeding for the probate of any will who is interested thereunder demands such determination in the proceeding for its probate.*' The determination of a surrogate's court as to the validity, con- struction and effect of any disposition of property contained in i\ will or codicil offered for probalte or probated in such court may be asked or had at three times: (1) In a proceeding for probate df the will or codicil; (2) at such time after a proceeding for probate of a will or codicil as the surrogate may reserve the questions raised in such proceeding for future consideration and decree (unless the decree in the probate proceeding refuses to admit the will or codicil to probate by reason of a failure to prove its genuineness, due execu- tion, competency and freedom from restraint of the testator) ; and (3) at such times as a petition for such determination is presented by one entitled to make it.** A surrogate's court is not bound to construe a will when asked to do so." It will ordinarily postpone a construction till a late stage in the administration (e. g.; till set- tlement of the representative's accounts), if this can be done without substantial prejudice in the meantime to the parties : otherwise an aggrieved party may have to appeal from two decrees, viz., the one construing the will and the other settling the accounts.*" The sur- rogate will not construe a will to relieve an interested person's men- tal anxiety or to express his opinion of the effect of testamentary dispositions under circumstances or contingencies which may never happen.* The surrogate's jurisdiction in a special proceeding to determine the validity, construction or effect of a disposi- tion of property contained in a will is controlled and directed by: all equitable rules as to an action for construction of will ; so that when an- action for such construction could not be had in the supreme court except under §, 1866 of the Code of Civil Procedure, it cannot be had in the surrogate's court when neither the petitioner nor any associate of his is an heir-atrlaw or next of kin of the testator, as such alone could bring the action in the supreme court ; * or even when all parties consent.' A surro- ga;,e's court's jurisdiction to determine the validity, etc., of testamen- On the law governing- construetion *" Est. of . Harden, 88 Misc. 420 of will see extensive note in 2 L.R.A. (1914), or 150 Supp. 743. (N.S.) 443. ilri're Leary's'Est. 154 Supp. 959 "C. C. P. §§ 2510 and 2615; Mat- (1915), C. C. P. § 2615. ter of Bogart, 43 A. D. 582, 60 Supp. * Matter of Bouchoux, 89 Mise. 47 496 (1899). (1915), or 152 Supp. 548; Est. of " C C. P. § 2615. Harden, 88 Mise. 420 (1914) ; see 19 Matter of Mount, 185 N. Y. 162, Code, §§ 1866, 2510, 2615. 77 N E 999 (1906). * Est. of Harden, supra. 515 NEW YOKK ESTATES AND SURROGATES § 459 tary dispositions will not be exercised to instruct executors how to proceed with duties imposed upon them by law under their testa- mentary authority.* A surrogate's court's power to determine the validity, etc., of a testamentary disposition cannot be invoked when an exclusive right is given the person to be affected by such deter- mination in another court, as the surrogate's court's adjudication would be inconclusive or useless.* The surrogate will not entertain a testamentary trustee's application to construe a will providing for the disposition of income after the life tenant's death while the lat- ter is still living.^ An application for construction of a will will be denied when the executor has judicially settled his accounts; no proceeding is pending before the court which would give it juris- diction to compel payment of the respective interests of the claim- ants seeking the construction ; title to real property is involved ; and the decree of the court would not be final upon the rights of the parties claiming an interest in or title to such realty.'' § 459. Id.: In Course of Probate Proceeding. — Any party to a proceeding to probate a will or codicil may expriessly put in issue in such proceeding the validity, construction and effect of any dis- position of property therein contained.* On objection made in a probate proceeding the surrogate may properly determine whether or not a will violates the statutory inhibition ^ of a testamentary gift of more than one half of his or her estate by one having a husband or wife or child or parent ; *" or whether the provisions of a will con- vert real into personal estate." If a surrogate decides on a probate proceeding of a will or codicil to determine the validity, construc- tion or effect of any disposition of property contained in such will or codicil, which has been expressly put in issue by a party, notice must be given in such manner as the surrogate directs to all persons who do not appear in person or by attorney on the application for such determination.** After notice given of an issue raised in a probate proceeding as to the validity, construction or effect of a dis- * Est. of Zitesberger, 88 Misc. 386 « Est. of Klumpf, N. Y. L. J. May. (1914), or 151 Supp. 950; whether 2, 1916, C. C. P. § 2615. direction in wUl "to take full charge '' Est. of Chapman, N. Y. L. J. Feb. of real estate," manage it and keep, it 27, 1915 (N. Y, Surr.) C. C. P. § in first class shape, etc., gave authori- 2615. ty radically to change it by installing ' C. C. P. § 2615. ranges, boilers, etc. ' L. 1860, c. 360. s Est. of Sauer, 89 Misc. 105, 151 " Matter of Talmage, 59 Mise. 130, Supp. 465 (1915)— on application by 112 Supp. 206 (1908)— old Code, § special guardian to find if will pro- 2624, see new Code, § 2510. vided for after-born child in con- "Matter of Paile, 51 Misc. 166, formity with § 26, Deced. Est. L., 100 Supp. 856 (1906). held child's remedy was under § 28, , " C. C. P. § 2615. Deced. Est. L.. 516 §§ 460, 461 WILLS position of property contained in a will or codicil involved in such proceeding the surrogate may determine the question upon ren- dering the decree admitting such will or codicil to probate.^* § 460. Id.: Reservation on Probate Proceeding. — The questions raised in a proceeding for probate of a will or codicil as to its valid- ity, construction or effect may be reserved by the surrogate for future consideration and decree even though he admit the will or codicil to probate ; unless the decree in the probate proceeding refuses to admit the will or codicil to probate by reason of a failure to prove its genuineness, due or valid execution, or the competency or freedom from restraint of the testator.^* The surrogate will generally re- fuse to construe a will in proceedings for its probate when a legatee under it waives, notice of the probate proceeding and is not repre- sented in it by attorney; and will leave such construction to the proceeding for settlement of the executor's accounts when all the parties interested have notice of the scope of the proceeding.*^ § ^61. Id.: Petition, Who May Make. — The persons who may present a petition requesting a determination as to the validity, con- struction or effect of any disposition of property contained in a will or codicil are: (1) An executor or administrator with the will an- nexed; or (2) Any person interested in obtaining such a determina- tion.'* A surrogate has no jurisdiction to construe and adjudicate upon the terms of a will on the motion of a party having no interest in the matter; and consent to his construction of the will does not confer upon him jurisdiction." A general guardian of an infant legatee has no standing to seek a determination as to the validity, construction or effect of a disposition of property contained in a will or codicil by which his ward's title to real estate may be taken away ; because such title can be determined only by a proceeding in pais, and a general guardian cannot waive his ward's right to a deter- mination in such a manner.** An executor of a deceased executor has no interest in having his deceased's testator's will construed un- less such construction is necessary to the discharge by him of his duties as executor of the deceased executor, which is not likely to be the case, as the executor of a deceased executor has no aiuthority to administer the estate of the latter'* testator.*' A remainderman or his representative is not entitled to a construction of the will to de- " C. C. P. § 2615. (1895), or 34 Supp. 831; old Code, § 1* C. C. P. §§ 2615 ; 2614. 2624. 16 Matter of Gaffney, N. Y. L. J. " Estate of Catlin, 89 Misc; 93, Feb. 5, 1915 (Bronx Surr.). 151 Supp. 254 (1915) § 2615 C. C. P. *6 C. C. P. § 2615. " Leggett v. Stevens, 77 A. D. 612 " Matter of Campbell, 88 Hun, 374 (1902), or 79 Supp. 289. 517 NEW YORK ESTATES AND SURROGATES §§ 462-465 termine if His remainder is vested or mot, on an accounting pro- ceeding,- during the life of the life-tenant.*" § 462. Id.: Petition, Form. — The contents of a petition made after a probate proceeding for the determination by the surrogate as: fo. the. validity, construction or effect of aiiy dispositioa of prop- erty contaiiied in the will or codicil jprobated are: (1) The facts which show the petitioner's interest; (2) . The names and post-office addresses of the other parties' interested ; (3) The particular pgr- tifin of the will or codicil concerning the validity, construction or effect of which determination is sought; and (4) the request for such determination by the court. ^ , § 463. Id.: Citatipn.— If the surrogate entertains an application for a determination as to the validity, constructipn or effect, of a disposition of property contained in a will or codicil probated by him, he issues a citation to all persons interested in the question to be presented to show cause why such determination should not be made.* The contents of the citation are in general those of the ststndard citation in a surrogate's proceediog; and it shotild require all perst)ns interested to show cause why siich determination should not be had. § 464. Id.: Decree. — ^On the return of a citation on an applica- tion for determination as to the validity, construction or effect of a disposition of property contained in a proven will or codicil the surrogate must make such decree as justice requires.' A construc- tion put upon a will by a decree in a proceeding in which no ques- tion of distribution is before the court, which directs the future attitude of the executors or trustees and points out the way funds should be distributed by, them on the happening of a remotie event, is not germane to the proceeding and does not bind so as to prevent a contrary direction in a decree on their accounting when the ques- tion of distribution is directly involved.* § 465. Id.: Supreme Court's Jurisdiction, When Maintainable. — The validity, construction or effect under the laws of the state of a testamentary disposition of real property situated within the state, or of an interest in such property, which would descend to the heir of an intestate, may be determined in an action brought for tJiat purpose, in like manner as the validity of a deed puiporting to ;Con- vey land may be determined; only, however, when tiie question in controversy has not been determined by the decree of a surrogate's court duly rendered upon allegations for that purpose when the «" Est. of GiU, 92 Mise. 661, 155 ' C. C. P. § 2615. Supp. 1019 (1915). 4 Matter of MeOahm, 29 Misc. 450 i:C. C. P. § 2615. (1899), or 61 Supp. 1071. 2 C. C. P. § 2715. 518 1 405 WILLS plaintiff was duly cited in the special proceediiig in the surrogate's court before the commencement of the action.* The judgment in such an action may perpetually enjoin any party from setting up or from impeaching the devise, or otherwise making any claim in con- travention to the detei*mination of the court, as justice requires.® It is only when there is some continuing duty, some tinast which re- quires and will require action for some time to come, that executors or triistees are justified in bringing an action to obtain construction of the will." Such suits are not to be encouraged because they burden the estate with costs, which are largely avoided if the questions are brought before the surrogate on the executors' or trustees' account- ing.' Such an action is not justified, therefore, when the question relates only to the division of money among those claiming it.® An action may be maintained in the supreme court to determine the validity, and construction, or effect, under the laws of New York, of a testamentary disposition of real property situated in New- York, even though the will was made elsewhere; and such deter- mination, so far as it relates to such real property, is conclusive." Under the statute authorizing an action to determine the validity, construction and effect of testamentary dispositions of real estate within the state the courts of this state will not entertain such a suit relating to realty in a foreign state, even though the defendant does not challenge tihe plairitiff's right to litigate the point, because a judgment rendered would be a nullity. ^^ In order to justify the construction of a will by the supreme court the testamentary dis- position must be one of some interest in real estate which may pos- sibly be enjoyed in actual possession during the lifetime of the person who seeks the construction.^* While a court of equity will not assume jurisdiction to set aside a will for fraud and the testa- tor's incompetency when there is a perfect remedy at law,^^ yet if the impediment to relief at law relates to but a part of the real estate embraced in the will,'* or the parties have submitted themselves to its jurisdiction without Objection in due season,'* the court of equity will adjudicate upon the question of the will's validity. 5 C. C. P. § 1866. ■ well, 108 N. T. 255, 15 N. E. 546 6 C. C. P. § 1866. (1888). ■'Powell v: Demming, 22 Hun, 235 " Brady v. McCosken, IN. Y. 214 (1880). (1848); Clarke v. Sawyer, 2 N. Y. ' PoweiU V. Demming, supra. . 498(1849). 9 Powell V. Demming, supra. '* Brady v. MeCosken, supra. '" Monypeny v. Monypeny, 202 N. '* Clarke v. Sawyer, supra. Y. 90, 95 N. E. 1 (1911), C. C. P. As to equity jurisdiction of bills § 1866. for the construction of wills of real '' Davis V. Tremain, 205 N. Y. 236, property passing only legal estates see 98 N. E; 383 (1912), C. C. P. § 1866. note in 15 L.R.A.(N.S.) 599, 12 C. C. P. § 1866; Horton V. Cant- 519 NEW YORK ESTATES AND SURKOGATES §§ 466, 467 § 466. Id: Who May Get. — A devisee, legatee or cestui que trust should not be allowed to bring an action to construe a will when his rights are clear, are not disputed by the executor, and the provisions sought to be construed are only to take effect on the happening of contingent events which may never occur and which, may affect per- sons not in being.*® An action by, an infant for construction of a will should be brought by his guardian ad litem; his general guard- ian should not join as plaintiff because he has no, interest in the matter.*' A bankrupt executor who has distributed the entire estate may bring an action to have the will judicially construed.** A sole next of kin, not a legatee, of a t^tator, may bring an action in the supreme court to obtain judicial construction of the will." An ex- ecutor cannot mainttun an action for (construction of a ypill to de- termine the devolution of real estate ', because he has no, jurisdiction, or interest over it or any duty connected with it.*" § 467. Depositing, Filing, Recording and Withdrawing from Records — The clerk of every county in the state, the register of deeds in the city and county of New York, and the surrogate of every county, on being paid the f.ees allowed therefor by law, must receive and deposit in their respective offices any last will and tes- tament which any person delivers to them for that purpose, and must give a written receipt .therefpr to the person depositing it.* Such will must be inclosed in a sealed wrapper, so that its contents cannot be read, and must have endorsed thereon the testator's name, place of residence and the ,day, month and year when delivered, and must nqt on any pretext whatever be opened or read or exa,mined until delivered to a person entitled to it under the statute.* , Under the statute, such will must be delivered only (1) to the testator in person; or (2) upon the testator's written order, duly proved by the (jath of a subscribing witness; or (3) after the testator's, death to the persons named in the indorsement on the wrapper of the will, if any indorsement is made thereon;, or (4) if there be no such in- dorsement and the will has been deposited with any oihcer other than the surrogate, theii to the , si^rrogate of the county.^ If such will has been either deposited in the first instance with the surrogate or delivered to him pursuant to statute, the surrogate, after the. tes- tator's death, must publicly open and examine it and make known its contents, and file it in his office, there to remain until it has been *8Wead V. Cantwell, 36 Hun, 528 *» Buell v. Gardner, 83 Misc. 513 (1885). (1914), or 144 Supp. 945. IT Wead V. CantweU, 36 Hun, 528 J° P7„™^^giy: Brundage,- 65 Barb. nas^^ 397 (1873),aff'd60N. Y. 544. ^„ '• „ * Deced. Est. L. § 30. *» Bacon v. Satyre, 84 Misc. 462, 147 2 Deced. Est. L. § 31. Supp. 522 (1913). » Deced. Egt. L. § 32. 520 § 4G7 WILLS ' (luljr proven, if capable of proof, and then to be delivered to the person entitled to its custody; or until required by the authority of some competent court to produce it in such court.* A will or codicil must be filed and recorded and jnust remain in the office of the surrogate in whose court it was proved ; unless proof is made by affidavit or otherwise to the surrogate's satisfaction (1) that the testator left real or personal property in another state, territory or country, (2) by the laws of which production of the original will is necessary before its provisions become effective.* In such a case the surrogate, at any time after its probate, upon such notice to the par- ties interested in the estate as he thinks proper, may cause such will or codicil to be, delivered to a court or ofRcer of such state, territory or country, or to a person interested in its probate therein.* Such delivery can be made only: (1,) By post or otherwise to any court w:hich under the laws of another state or territory of the United States or of a foreign country is empowered to receive the will or codicil; (2) By post or otherwise to any officer of another state or territory of the United States or of a foreign country who is em- powered under the laws of such state, territory or country to receive the will or codicil for probate; (3) By delivery to any person inter- ested in the probate of the will or codicil in another state or territory of the United States or in a foreign country; or (4) By delivery to the representative of any person interested in the probate of the will or codicil in anothel* state or territory of the United States or in a foreign country.' Ah affidavit asking for an order withdrawing a will from the records must show where the will is to be offered for probate; because if it is to be offered in the same court withdrawal is not necessary.* In the office of the surrogate having jurisdiction must be recorded an exemplified copy of any will or codicil estab- lished in an action in the supreme court to which are parties all persons who would be necessary to a special proceeding in a surro- gate's court for the probate of the same will, if final judgment in such action so directe.® In the office of the county clerk or register (as the case requires) of any county in the state in which real prop- erty of a testator is situated, must be recorded, on request of any person interested in a will or codicil of such real property, a certi- fied copy thereof which has been proved and recorded in any court of competent jurisdiction in the staite.^" In the following cases a surrogate must transmit to the secretary of state, to be filed in his office, a certified copy of the will or letters « Deced. Est. L. § 33. « In re Heinsberg, N. T. L. J. Nov, 5C. C. P. § 2620. 9, 1914 (Bronx Surr.). 6 C. C. P. § 2620. 9 C. C. P. § 1863. ' C. C. P. § 2620. " C. C. P. § 2622. 521 »' NEW YORK ESTATES AND SURROGATES §: 468 as the case may be, within ten (10) days after probate or grant of letters when one not a resident of the state dies and the surro- gate probates such an one's will, or grants original or ancillary let- ters testamentary therein;. or, if there be no will, grants original or ancillary letters of administration on such an one's estate.^"" Within ten (10) days after grant of letters of administration to a county treasurer, the surrogate must transmit a certified copy tiiereof to the state comptroller.^"* § 468. Putting Certified Copies in Evidence. — A certificate stating that the will has been admitted to probate^ upon due proof, as a will valid to pass real or personal property, or both, as the case may be must be caused by the surrogate to be indorsed upon or annexed to (a) the original will admitted to probate, or (b) the exemjilified copy or statement of the tenor of the will which was admitted to pro- bate without production of an original written will. The certificate must be under the hand either of the slirrogate or the clerk of his court, and the seal of the surrogate's office.. The will, copy or state- ment, so authenticated ; the record of such will, copy or statement ; or an exemplified copy of such record may be rea4 in evidence as proof of the original will, or the contents or tenor of the original -wfill, with- out further evidence.^V -^ will, recorded before Jan 1st, 1785, may be put in eviderice by the, offer of the exemplification of the. record of it, which must be admitted in any.Q.ase, (1) wh,ep. the will was proved before the judge of th?; former court of probate before Jan. 1st, 1785. (2) when the will was repprdedin the office of the judge 6i the former court of probate before Jan. 1st, 1785; (3) when the exemplification of the r^ecqrd of such will is certified under the, seal of the officer having fke custody of such record; and (4) after it has been made to appear, that diligent and fruitless search has been m^de for the original will.j'^ - A will adraitted and recorde/i thirty (30), years may be put- in evidence by ,tjje ofifer of a certified copy,. which must be admitted in evidenpe in any of the courts, of New York state with like effect as if the original pf j;he will had been produced and proven in the court, without the proof and examination taken on the p:tobate thereof and irrespective of whether or not such prpofs have been recorded (1) When the last will and', testament had been ad- mitted to probate as a will ,pf real or personal property or both by the surrogate in any county of NeV Yoi^k state; (2) when the last will and testament has been recorded in the office of the surrogate in any county of New York state ; and (3) as already stated,' when thirty (30) years have elapsed since the will was admitted to probate lO" C. C. P. § 2489. 12 0. C. P. § 2623. " C. C. P. § 2621. 522 § 4C8 WILLS and recorded.^' The recording of a will so admitted and recorded thirty (30) years is evidence that the will was duly admitted to probate." A will proved thirty (30) years before in another state may be offered in evidence in New York state by the exemplification of the record of such will and such exemplication must be admitted in evi- dence in New York state as if the original will was produced and proved when (1) the will has been proved before the surrpgat^, judge of probate, or other officer exercising the like jurisdiction, in the other state; when (2) the exemplification of the record of such will is certified by the ofiicer having by law the custody of the record when the certificate was made.** " C. C. P. § 2623. " C. C. P. § 2623. 623 CHAPTER V. EXECUTOES. A. Definitions, Duties, Powers and Liabilities: 1. In General: a. Of Executor In Chief, § 469. b. Of Limited Executor, § 470. c. of Ancillary Executor, § 471. d. Of Foreign Executor, § 472. e. Of Supplementary Executor, % 473. f. Of Co-executors, % 4:74:. g. Of Several Executors vn Different States, § 475. h. Of Executor Also Trustee, Legatee or Devisee, § 476. 2. Before Letters, § 477. 3. Pending Appeal and Contest, § 478. 4. Contracts, Agreements and Debts, § 479. 5. Testator's Partnership, § 480. 6. Liability for Interest, § 481. 7. Personal Purchase, Profit and Liability, § 482. 8. Taxes, Mortgages and Mepairs, § 483. 9. Investments, § 484. B. Transfer Tax, § 485. — (See Same Title: "Administrators") C. Actions By and Against, § 486. — {See Same Title: "Administrators.") D. Appointment and Letters: 1. What Jurisdiction Surrogate Has, § 487. 2. What Surrogate Has Jurisdiction, § 488. 3. Persons Incompetent : a. In General, § 489. b. Infants, § 490. c. Adjudged Incompetents, § 491. d. Aliens and Non-Inhabitants; or Non-Besidents, § 492. e. Felons, § 493. f. Drunkenness, Dishonesty, Improvidence, Want of Under- standing, § 494. g. Renunciation or Befusal, § 495. h. Inadequate Circumstances, § 496. i. Illiteracy or Failure to File Designation, § 497. 4. When Made and Petition: a. Executor Named by Will, § 498. b. Under Power of Appointment, § 499. e. On Contingency, § 500. d. Limited Executors, § 501. e. Ancillary Executors, § 502. f. Supplementary Executors. § 503. g. Successor Executors, § 504. 5. Citation: a. In General, § 505. b. Ancillary Executors, § 506. 524 EXECUTORS D — continued. 6. Notice to Beneficiaries, § 507. 7. Objections, § 508. 8. Hearing and Decree, § 509. 9. Letters: a. Form, § 510. b. Force and Effect, § 511. E. Oath and Bond: 1. Oath, § 512. 2. Bond, § 513. 3. New Bond: a. Grounds, § 514. b. Petition, §515. c. Citation, § 516. d. Hearing, Order or Decree, § 517. F. Term of Office: 1. Jurisdiction, § 518. 2. Revocation Per Se, § 519. 3. Bevooation Without Petition or Citation, § 520. 4. 2Jei;ocofio» Om Petition: a. Grounds: aa. 7w General, § 521. bb. Legal Incompetency or Disqualification, § 522. cc. Unfitness for Office, § 523. dd. Refusal to Obey Direction or Law, § 524. ee. False Suggestion To Get Letters, § 525; ff. Happening of Contingency, § 526. gg. Inadequate Circumstances, § 527. hh. Removal from State, § 528. b. Petition, § 529. c. Citation, § 530. d. Order Suspending Executor, § 531. e. Hearing, Decree and Effect, § 532. G. .4.dmim'sfra*iow Exp'e'rises': 1. 7m General, § 533. 2. Services Which Executor Should Render, § 534. ■ 3. Travelling Outlays, § 535. 4. Legal Services: a. /n General, § 536. b. To Executor Individually, § 537. c. TToiu Fia;ed, § 538. 5. Court Expenses, § 539. H. Xast Illness, Burial and Funeral Expenses, § 540 {See Same Title: "Administrators." ) I; Assets and Personalty, § 541 (See Same TitZe; "^idmimstrotors.") J. Debts of and Claims Against Decedent, § 542 (See Same Title: "Ad- ministrators.") K. Disposition of Realty, % 543 {See. Same Title: "Administrators.") L. Accounting, § 544 (See Some Title: "Administrators.") M. Legacies: ' 1. Definitions: a. /« General, § 545. b. General Legacy, § 546. c. Demonstrative Legacy, § 547. 525 NEW YOEK ESTATES AND SUEEOGATES § 469 M, 1 — continued. d. Specific Legacy, § 548. e. Contingent, Conditional and Joint Legacies, § 549. f. Annuity and Income, § 550. 2. Ademption and Satisfaction, § 551. 3. Lapse, § 552. 4. Payment : , ... „ , a. Duty and Authority, § 553. b. Order, Preference and Source of, § 554. c. Time of, § 555. d. Manner of: aa. In General, § 556. bb. To Infant or For Support, § 557i ■ cc. Of Life Legatee's or Executor's, § 558. dd. Of Lunattd's, § 559; ' ee. Before Due; or Specific, § 560. f£. Of Legacy In Kind, § 561. gg. ^o Person Unknown or of Unknown Address, § 562. 5. Interest On: a. In General, § 563. b. On Specific Legacy, § 564. - e. On Legacy for Support, § 565. d. On Legacy in Lieu of Dower, § 566. e. On Legacy in Trust, § 567. 6. Charged on Lqnd,, § 568. 7. Overpayment, § 569. 8. Payment Of Destroyed Legacy, % 570. 9. Retainer, § 571. 10. Compulsory Payment: a. In Supreme Court, § 572. b. In Surrogate's Court: aa. In General, § 573. bb. In All Cases Except for Support, § 574. cc. For Support, § 575. 11. Receipt for Legacy, §,5^6. N. Compensation a/nd Commissions, § 577 (See Same Title: "Administra- tors.") § 469. Executors: Definitions, Duties, Powers and Liabilities In General, Of Executor In Chief. — An executor is a person charged bj^jlaw to administer a testate decedent's estate, who is either named as executor in the testator's will or designated as such by another under a power so to do given by the will.* The distinction between an -executor and a testamentary trustee is not always clear, and is discussed hereinafter.* A testamentary requirement that a stated sum yearly be paid to a beneficiary, necessitating the inv^tlnent of a sum to earn the yearly amount, coupled with a testamentary duty upon executors to carry the will into effect and pover to dispose of 1 Hartnett v. Wandell, 60 N. T. » See § 578y infra. 346 (1875). 526 § 469 EXECUTORS real and personal property, constitutes the executors trustees, though no express language in the will invest the executors with the powers of trustees.* The duties of an executor are,' in general, to collect his testator's property, to pay his testator's funeral expenses and debts, and the expenses of managing his estate, and then to pay the re- mainder to those persons designated by the will as the recipients thereof.* The duties of an executor are usually, to bury his testa- tor, to doUect his testator's assets, to pay his testator's debts and legacies, and to distribute — not necessarily immediately, however, as distribution, even by an executor, may be by instalments, by way of an annuity, or by payment to trustees (who may be the executors themselves) for the use of beneficiaries.* The duty of an executor or administrator c. t. a. is not only to fulfil the requirements of the will, but to collect and administer the entire pefeonal estate of the decadent within his jurisdiction.* He takes the unqualified legal title as trustee for the benefit of creditor's legatees or distributees of his decedent.'' He alone can proceed to foreclose a mortgage held by or to collect a debt due to his testator.' So far as personalty is ef- fectually, disposed of by the will, the executor holds it in trust for the legatees or testamentary beneficiaries ; and if any part of such personalty, or any interest therein, is not effectually disposed of by the will, he holds it in trust for those entitled to it under the Statute of Distributions.' He can give good title to his testator's personalty to a bona fide purchaser, although the transfer is made in violation of his duty as executor." That some of the provisions of a will are invalid is, no excuse for executors not collecting the estate's assets; nor that the value of good will, formulae and trademarks of a busi- ness they are empowered by the will to continue is little or difficult to ascertain any excuse for their failure to honestly try to find such value; nor that a legatee has no interest, in their raising their sal- * Matter of I)ewey, 153 N. Y. 63, , ' Blood v. Kane, 130 N. Y. 514, 15 46 N. E. 1039 (1897). L.R.A. 490, 29 N. E. 994 (1892); ♦Drake v. Price, 5 N. Y. 430 Ludington v. Thompson, 153 N. Y. (1851)— dissenting opinion; Matter 499, 47 N.'E; 903 (1897); Lockman of Burr, 48 Mise. 56, 96 Supp. 225 v. Reilly,' 95 N. Y. 64 (1884) ; New- (1905), (the main opinion was rev'd ton v. Stiiiley, 28 N. Y. 61 (1863) ; in 118 A. D. 482, 104 Supp. 29); Leiteh v. Wells, 48 N. Y. 588 Jewett V. Schmidt, 83 A. D. 276 (1872). ' ' (1903), or 82 Supp. 49; Sayles v. « Newton v: Stanley, 28 N. Y. 61 Best, 140 N. Y: 368, 35 N. "E. 636 (1863); Bate v. Graham, 11 N. Y. (1893). 237 (1854). s Matter of Curtiss, 15 Misc. 545 ' Wager v. Wager, 89 N. Y. 161 (1896), or 37 Supp-. 586; aff'd 9 A. (1882). D. 285, 37 Supp. 586, 41 Supp. 1111. "Leiteh v. WeUs, supra. 6 Sullivan v. Fosdick,' 10 Hun, 173 (1877). 527- NEW YORK ESTATES AND SURROGATES §§ 470, 471 iiries so as to absorb all the profits of the business." A testai^or can- not control the selection by his executors of counsel by a direction that a certain lawyer be employed as sole attorney and counsel for the executors in the settlement of the estate; because the, confiden- tial relationship between an attorney and his client necessitates a free choice by the client in the selection of his lawyer.^" Before honoring an executor's cheque on an account in his testator's name the depositary bank may require proper identification of the execu- tor's signature in addition to a certificate that letters testamentary have been issued to him and a waiver by the state comptroller allow- ing payment by the bank without fear of liability for the transfer tax.i^ An act which must or may be done within a specified time after letters testanxentary are issued must be done within such time when reckoned fi^om the issuance of the first letters, althpugh suc- cessive or supplementary letters are issued upon the estate; except when the first or any subsequent letters are revoked by reason of the want of power in the suirogate's court, to issue the letters, for any cause, e. g., when a subsequent will is admitted to probate and letters are issued thereupon.^* • § 470. Id. : Of Limited Executor. — A limited executor is one who is given by law a right of action but who cannot practically give a bond sufficient to cover the probable amOunt to be recovered, and to whom the surrogate, therefore, issues letters, either witholit requiring a bond or on fixing its penalty at such sum as he deems sufficient; the letters, however, being limited to the prosecution of such cause of action, and restraining the executor from compromise of the action or enforcement of any judgment recovered therein, until the further order of the surrogate, made upon filing satis- factory security.^* § 471. Id.: Of Ancillary Executor. — An ancillary exebutoi' is a person appointed in New York to assist in the administration of the estate of a testate decedent whose will has been proved or established in another state; a territory, or a foreign coiintry.^' In determining , \ . 'j' "Matter of Hiseox, 135 A. D. As to ■ the circumstances sufficient 848, or 120 Supp. 308; App- dism'd to put one taking paper from exeeu- 200 N. Y. 584, 94 N. E. 1094. tor or administrator on inquiry, see »" Matter of Wallach, 164 A. D. notes in, 29 L.R.A.fN.S.) 365, 44 600 (1914), or 150 Supp. 302. '." L.R.Ai(N.S.) 403. "Levy V. Commercial Trust Co. On devolution of vendees' inter- 86 Misc. 10 (1914), or 148 Supp. est under contract for purchase for 173. real property see note in 42 L.R.A. On the liability to estate o£ bank (N;S.).i446. which receives deposit from one as- '* C. C. P. §§ 25,62, 2624. suming without authority to, act as ^* C. C. P. § 21592. executor or administrator, See note ** C. C. P. §• 2629. in L.R.A.1916E, 309. 528 § 471 . EXECUTORS whether letters testamentary are ancillary or in chief, the characteri- zation of them by the decree issuing them or in the letters them- selves is not necessarily conclusive; because though neither the decree nor the letters describe the latter as ancillary, they neverthe- less are so if decedent's will was not admitted to probate in this state, but only recorded in the surrogate's office on production of an ex- emplified copy of its probate in another state. ^'' An ancillary ex- ecutor's duties and power as to the property he manages are the same as those of a general executor in this state, except as to the sale, mortgage or lease of his testator's real property in this state to pay the latter's debts, etc., and as to matters for which a statute makes specific provision, or as to which a statute expresses or plainly infers a contrary intent." An ancillary executor must transmit to the state, territory or country where principal letters on his dece- dent's estate were granted, there to be distributed pursuant to law, decedent's money or other personal property which he has received since the issue to hini of ancillary letters, or which was in his hands in some other capacity when the ancillary letters were granted ; un- less he be otherwise directed in the decree awarding ancillary let- ters, in a decree made upon an accounting, by an order of the suito- gate, made during the administration of the estate, or by judgment or order of a court of record in an action to which he is a party.'* The common direction to an ancillary executor is to pay out of the money or avails of property received by him the debts of his testa- tor due creditors residing within this state, and the legacies bequeathed by his testator's will; or otherwise to dispose of such money or property as justice requires.^" When a direction to an ancillary executor to pay creditors or legatees residing in New York is made, he must do so. * If the amount of his testator's debts here and elsewhere exceeds the total of the testator's personal property applicable to payment! thereof, the ancillary executor naust pay each siich creditor such a sum as equals his share of all distributable as- sets of the decedent.^ The executor of the will of a foreigner, ex- ecuted in the land of the foreigner but according to the laws of New York and here proven, is properly directed to remit the balance re- maining for distribution after administration here to the testator's "Baldwin v. Eiee, 100 A. D. 241 next of Mn, or beneficiary under (1905), or 89 Supp. 738; aff'd 183 will in jurisdiction of ancillary ad- N. Y. 55, 75 N. E. 1096. ministration see note in L.R.A. 18 C. C. P. § 2636. 1915A, 431. 19 C. C. P. § 2634, Hopper v. Hop- i C. C. P. § 2635. per, 125 N. Y. 400, 12 L.R.A. 237, ^ C. C. P. § 2635. 16 N. E. 457 (1891). On the rights of foreign creditors 2" C. C. P. § 2635. under ancillary administration, see On the distribution of assets to note in L.E.A.1915F, § 1041. N. Y. E. & S.— 34. 529 NEW YOEK ESTATES AND SURROGATES § 472 universal legatee, without bonds ; because a will of movables is getx- erally to be governed by the laws of the testator's last domicil, which should be regarded as the principal place of administration, even though the will was proven here by reason of the existence here of the testator's personalty.' An ancillary executor will not be pertnitted to remain silent aiid suffer the domiciliary representative to collect the debts' and carry aiyay the assets \vithout objection or disclosure of his appointment to the person owing the debts or hav- ing custody of the assets: he must act with reasonable despatch.* An ancillary executor appointed in New York of the estate of a non- resident whose will was here probated is entitled to have transferred by a nonresident corporation at its office maintained in New York for the purpose a certificate of its stock found in this state which had belonged to the testator, as the maintenance by the corporation of a transfier office here constitutes New York the domicil of the corporation so far as the registry and transfer of shares therein is concerned.® Legal, representatives of a nonresident who have ob- tained ancillary letters in New York are liable to, account here for assets collected by virtue of the ancillary letters, whether appointed by the non-resident's will executors for this state, or whether the non-resident died intestate ; and whether the courts of the state will decree distribution of the assets collected here under the ancillary letters, or will direct them to be remitted to the courts of the de- ceased's domicil, is in their judicial discretion.* The consequence of the issue of ancillary letters testamentary in this state is' that the grantee gains a standing in New York state courts to sue as such representative and also to be sued as such.'' § 472. Id.: Of Fpreigli Executor .^"By the phrase 'foreign exec- utor' the courts never mean the mere non-residence of the individu- al holding the office, but the foreign origin of the representative character." ' Foreign executors who seek the aid of courts of the state to collect property of, thei;r testator situated within this state are generally required, before such aid will be given, to subject themselves to \he control of the courts of this state by taking out » Matter of Coudert, 92 Misc. 109, poration, 209 N. Y. 375, L.R.A. 155 Supp. 145 (1915). . 1915C, 471, 103 N. E. 697 (1913). *Maas V. German Savings B't ^Despard v. Cturchill, 53 N. Y. 176 N. Y. 377, 98 Am. St. Rep. 689, 192 (1873). , . 68 N. E. 658 (1903)-v54 , months, ''.Hopper v. Hopper, 125 N. Y. delay in taking action held to estop 4D0, 12 L.R.A. 237, 16 N. E. 457 claini by ancillary against bank (1891). wliich had paid debt to domiciliary ' Hopper ▼. Hopper, 125 N. Y. representative. ' , 400, 12 L.R.A. 237, 16 N. E. 457 5Loekwood v. U. S. State Cor, (1881). 530 §§ 473, 474 EXECUTORS letters here.' The purpose of this is to protect creditors of the de- cedent residing here by making the foreign executors accountable for any property collected with the help of the courts of this state which may be applicable to payment of claims of residents of the state." So if one of two foreign executors takes out letters here, his foreign co-executor has no further authority to assert claims in this state to his testator's property.^* If foreign executors can re- move their testator's property from this state or make transfers thereof without the aid of its courts, they may do so ad lihitutn}^ § 473. Id.: Of Supplementary Executor.— A person named as ex- ecutor in a will who was disabled at testator's death from being ap- pointed executor because he was under age or an alien, is entitled, if such disability be removed before the execution of the provisions of the will, and he so desires, to have issued to him supplementary let- ters testamentary in the same manner as the original letters, and to be authorized to join in the execution of the will with the persons previously appointed.*' Until such disabled person appears and qualifies he has no power or authority as executor.** Upon issu- ance of such supplementary letters testamentary, and qualification, the recipient of the letters is a supplementary executor, with au- thority to join in the execution of the will with the persons previous- ly appointed. § 474. Id.: Of Coexecutbrs.^Coexecutors are jointly and several- ly responsible for, joint acts aiid severally responsible , for several acts.*' "Each of several executors . . . has the power to re- duce to possession the assets and collect all the debts due the estate, and is responsible for till that he receives. The payment of money or delivery of assets to a coexecutor . . . will not discharge him from liability ; for having received the assets in his official ca- pacity, he can discharge hiniself only by a due administration there- of in accordance with the requirements of the law. Consequently, one joint executor . ... is not liable for the assets which come into the hands of the other, nor for the laches, waste, devastavit or mismanagement of his coexecutor . . . imless he consents to or joins in an act resulting in loss to the estate, in which event he will become liable. In other words, coexecutors . . . may act either separately or in conjunction." ** "A wrong done or a 'Taylor V. Syme,:162 N. Y. 513, Co. 123 N. Y. 37, 25 N. E. 198 57 N. E. 83 (1900). (1890). " T. G. T. Co. V. C. B. & D. R. R. " C. C. P. § 2626. Co. 123 N. Y. 37, 25 N. E. 198 "C. C. P. § 2626. (1890). "Nanz v. Oakley, 120 N. Y. 84, " Lawrence v. Townsend, 88 N. Y. 9 L.R.A. 223, 24 N. E. 306 (1890). 28 (1882). "Nanz v. Oakley, supra. 18 T. Or. T. Co. V. C. B. & D. R. R. 531 NEW YOKK ESTATES AXD SURROGATES § 474 duty omitted must lie at the foundation" of the hability of an ex- ecutor. An executor is responsible for his own acts, and not for those of his co-executor; unless he knows or should know of or as- sents to his co-executor's acts. If an executor is merely passive and simply does not obstruct the collection or receipt of assets by his co-executor, he is not liable for the latter's waste," or if he merely joins in some necessary formal act, such as executing a power of sale given by the will." They are not jointly liable because . . . jointly interested; " so that if one borrows money for the benefit of the estate without the other's assent, the latter is not lia- ble.^' This exemption from liability does not hold good, however, if the act complained of is done, not by a coexecutor but by a stranger, because of the executor's lack of care or watchfulness ; *° or if the executor after receiving assets of the estate either delivers them to his coexecutor or does some act by which they come under his coexecutor's sole control and but for which the coexecutor would hot have received them.** - One df two or more exiecutors has power to dispose of the assets of the estate even if his co-executors do not join in the transfer.* Co'executors constitute a legal entity to the extent that the acts of any one of thfem in the adjuinistration of the estate are deemed the acts of all, as they have joint and several pow- er to bind the estate as its agents within the scope of their agency ; but neither separately nor jointly can they bind the estate by creat- ing original liabilities on contract on its pari* The power to trans- fer the property of the estate for the purposes of their trust is vested ii;i them and an aqt by one or all of them creating a valid trust in personal property of the estate binds the estf^te.'. The full control which each of several executors lias oyer the estate assets; is shown by the ability of one to authorize an attorney to collect on a bond and mortgage of which aU the executors are joint owners, and the right of the attorney to retain ,from the proceeds; a debt due from the estate to him for legal services rendered at the request of one only "Croft V. Williams, 88 N. Y. 384 sets, in strong box to which neither (1882) ; Wilderming v. McKesson, executor had access without consent 103 N. Y. 329, 8 N. E. 665 (1886). of other for 7 years and which execu- " Croft V. WilMms, supra; Pauld- tor inspected half yearly, ing V. Sherkey, 88 N. Y. 432 * Geyer v. Snyder, 140 N. Y. 394, (1882) ; Wood v. Brown, 34 N. Yv 35 N. E. 784 (1893). 337 (1866). On whether less than all the execn- *' Bryan v. Stewart, 83'N. Y. 270 tors named may exercise a power of (1880). sale, see note in 50 L.R.A.(N.S.) «»Earle v. Earle, 93 N. Y. 104 622. (1883). * Barry, V. Lambert, 98 N. Y. 300, «i Matter of. Dougherty, 43 Misc. 50 Am. Rep. 677 (1885). 468, 89 N. Y. Supp. 549 (1904)— as- 'Barry v. Lambert, supra. 532 § 474 EXECUTORS of the executors.* Each of several executors has equal title to their testator's papers and the right to freely inspect all books, etc., kept by any other at all reasonable times.' The surrogate has power by order (without issuing a citation, in a special proceeding) to require one executor to show cause why a coexecutor should not inspect the testator's books, etc.,;and the fact that there is litigation pend- ing in the supreme court in which the books may be material is suf- ficient reason to require their prompt exhibition; nor is the su- preme court's jurisdiction to obtain a full discovery material to the exercise of ih.e surrogate's power.* One trustee may be responsible for the devastavit of another of trust funds which could not have come into the latter's hands without an act by the former.* While an executor is not chargeable for the devastavit of his coexecutor, he is chargeable with all the decedent's assets which he actually re- ceived, and is not discharged from liability by showing that he en- trusted such assets to his coexecutor with which to pay a legacy to the latter's wife.' An executor who knows or has means of know- ing of irregular investments by his coexecutor, and assents to them either expressly or passively, cannot, in the absence of fraud or mis- representation, escape responsibility therefor.' A surviving execu- tor cannot be charged for the devastavit of his deceased coexecutor unless it is shown he was negligent or suffered his coexecutor to re- ceive and waste the estate when he had the means of prevention by proper care.' An executor who in good faith turns over estate funds for investment to his coexecutor who actively manages the estate is not responsible for the latter's conversion of such funds without his knowledge.^' Coexecutors are not liable for devastavit, through loss of estate funds by the' bankruptcy of one of them who as active executor had lawfully received the funds, when there was nothing to *Arkenburgh v. Arkenburgh, 27 'Matter of Storm, 28 Hun, 499 Misc. 760 (1899), or 59 Supp. 612; (1882). aff'd 49 A. D. 636, • 64 Supp. 742. « Matter of Peck, 31 A. D. 407 5 Matter of Stein, 33 Misc. 542, 68 (1898), or 52 Supp. 1028; dismissed Supp. 933 (1901), old Code, § 2602. igi N. Y. 655, 57 N. E. 1119. 6 Matter of Litzenberger, 85 Hun, 9 Matter of Hunt, 38 Misc. 613, 512, 33 Supp. 155 (l«95)-one 73 g 105 (1902). trustee authorized another to buy ,0 Matter of Johnson 42 Misc. 651 testators farm, and conveyed to him nof\A\ r.^- 87 c^„T^r^ 7qq and on buyer-trustee's death it was ^ n Vi. i- i,-v!^^'* . * found the whole trust estate was rep- ^ On the liability of coexecutor for resented by the purchase price of the "^f^,^" °^ "^^ permitted to manage farm and had not been paid, and estate, see note m 11 L.R.A.(N.S.) that the buyer-trustee had mort- '-^°- gaged the farm; the acquiescent trus- 0° the liability of executor not tee was held liable as he could at participating in the management of least have taken a mortgage on the business for debts contracted by eo- farm for the purchase price. executor in carrying on business in 533 NEW lORK ESTATES AND SUBROGATES § 475 excite theiir suspicion as to his integrity and responsibility.*^ An executor may absolve the estate from any liability on an agreement within the powers of the executors to make, made without his assent by a coexecutor, by telling the other party to the- agreement that, if made, it will be without his assent.** The signature of two execu- tors to the usual affidavit to an account is virtually an admission that the account is their joint account and that their liability is joint.*' While no action lies at law by an executor against his co- executor, yet a suit lies in equity by one against the other to com- pel payment of a debt owing by the latter to the testator.** The suit should be brought against the executor in his individual char- acter as the relief is sought against him personally.** An indebt- edness by one executor to the testator should be recovered by his coexecutor in equity where the question of the indebtedness and the amount due can be settled without changing the possession of the fund ; and not at law, as each executor has the same right to the possession of estate assets, and the effect of a common-law judgment by one against the other would be to give the former a right to issue execution and so transfer the whole fund to his own exclusive pos- session.** The residuary estate of one bequeathed it and made an executor cannot be made liable for his coexecutor's embezzlement when on his death a suSicierLt suni was paid such coexecutor' to pay the annuities, to be paid by the will, and all other charges had been paid.*' § 475. Id.: Several Executors in Different States. — A testator may liiiail the powers which, he confers upon his .executors,*'' e. g., by naming one pereon executor for one state and another person for a different state,*'' in which case each executor takes title to, the ex- clusion of the other of testator's assets in the state where he is to act.*'' Such an executor appointed, for a certain, state has authority behalf of estate, see note in .40 gage debt due him and the co-execn- L.R.A.(N.S.) 215. tor of the defendant- continued it. ** Matter of Hoagland, 79 A. D. ** Peters v. Smith, 60 Misc. 203, 56 {1903), or 79 Supp. 1080;— one 111 Supp. 842 (1908). of coexecutors , had , intrusted active, ** Matter of .Smith, 46 : A. D. 318 bankrupt executor with large amount (1899), or 61 Supp. 716; aff'd 166 of his own money. N. Y. 620, 59 N. E. 1130. ** Wilder v. Ranney, 95 N. Y. 7 On the right of continuing or sur- (1884) — Option to buy real estate by viying executor or administrator one executor over which co-executor against former co-executor or co-ad- had poWer of sale. ministrator or latter's representa- *8Glacius V. Eogel, 88 N. Y. 434 tives, see note in 7 L.R.A.(N.S.) 995. (1882). *'' Sherman V.Page, 85 N. Y. 123 ** McGregor v. McGregor, 35 N. (1881) ; Hartnett v. Wandell, 60 Y. 218 (1866), the suit had been be- N. Y. 346 (1875). gun in the testator's life on a mort- 534 § 476 EXECUTORS in that state alone : he does his full duty when he converts into cash whatever is in that state at his testator's death and disburses it ac- cording to the will, and he need not file an inventory of any prop- erty not in his stat«, nor has he any title to or interest in assets in any other state, so as to entitle him to letters there, so long as the person named for that state chooses to act there.** When a testator nanles a different executor for each of two or more states and con- fines each such executor's duties to the state for which appointed, the executor appointed for one state is responsible only for the assets in that state and not for those in the state for which the other is ap- pointed, because each derives his title from the will.*^ Legatees in one state cannot object to the discharge of the executor appointed therefor when he has accounted for everything that came to his hands even though insufficient to pay their legacies while the assets in the state for which the other executor was appointed are sufficient not only to pay the legatees i therein but also the objecting lega- tees.^" The executor appointed for and discharged in the state in which there are not sufficient assets to pay resident legatees in full is under no obligation (without an order from the surrogate) to institute proceedings in a state for which another executor was ap- pointed to collect the remainder of such legacies from assets in such other state.* Although the will does not specifically appoint sepa- rate sets of executors for different countries in which the testator may have property, yet they will be limited in their powers to the country of the testator's domicil, or vice versa, according as a clear intent is shown by the will to so confine them in the exercise of their testamentary authority.^ Letters testamentary will not be refused those named in an "American" will of one who died a resident of France because his "French" will, later executed, named an execu- tor, when his property is principally in America and the "Ameri- can" will disposed of the bulk of all his property.' § 476. Id.: Executor Also Trustee, Legatee or Devisee. — ^While a person named executor remains in his office as such no one can be appointed to supersede him in the exercise of his executorial func- tions ; so that the resignation as trustee of one who is also executor does not enable one appointed trustee in his place to, convey title by deed under a testamentary power to the executor.* When the same person is a testamentary trustee and also an executor of the will appointing him trustee, or an administrator of the same estate, 1* Sherman v. Page, supra. ' Matter of Mayer, 84 Misc. 9, 145 "Sherman v. Page, supra. Supp. 665 (1914). «» Sherman v. Page, supra. * Greenland v. Waddell, 116 N. 1 Sherman v. Page, supra. Y. 234, 15 Am. St. Rep. 400, 22 N. « Matter of Mayer, 84 Misc. 9, 145 B. 367 (1889). Supp. 665 (1914). ^ 535 NEW YORK ESTATES AND SURROGATES § 477 proceedings taken by or against him do not affect him as executor or administrator ; except that in a petition for revocation of his letters he may also ask to be allowed to resign as trustee, and that a peti- tion seeking involuntary revocation of his letters may also pray his removal as trustee.' An executor whose letters were revoked, on settlement of his accounts prior to departure from the state on his refusal to give security as a nonresident executor, cannot be held liable as trustee of testamentary trusts attached to his office as execu- tor, not personal or involving the exercise of discretion, which sub- sequently arose; because by abandoning the office he was released from the trust liabilities.^ An executor who is also residuary legatee is not accountable except for the actual value of the assets which formed part of his testator's estate, or chargeable with the, profits of a business into which he puts the money of his testator after appli- cation to his own use in good faith of assets remaining, when he has paid all the claims under the will and all claims presented in the usual course pursuant to notice ; ' because upon payment of all debts, charges and legacies the title to the remaining assets vests at once in the residuary legatee under the wiir without any formal transfer by the executor to himself as legatee.'' When a sole executor is sole devisee and legatee too, he holds the estate in trust only for the benefit of the testator's creditors, arid when they are paid the trust estate is merged with the beneficial interest and the sole executor- devisee-legatee becomes vested with the legal title to all the testa- tor's estate; because the trustee's title as such ends when the trust purpose has been fully accomplished.' § 477. Id.: Before Letters. — The powers of an executor spring from the will naming him,® while an administrator owes his authori- ty to the appointment of the surrogate. Executors can exercise their powers as such, however, only to a very limited extent until the will appointing them has bebn proved and letters testamentary have been granted them.®. On death, the title, possession and con- trol of the decedent's property vest in his executor, if he had appoint- ed one, and such title, possession and control are in such executor before probate. He may, therefore, take the propertj^ into his man- ual possession for safe-keeping,'" and pay decedent's funeral expens- es.'* But the appearance and qualification before the court by one s C. C. P. § 2640. 309 (1912) ; Hartnett v. Wandell, 8Earle v. Earle, 93 N. Y. 104 supra; C. C. P. § 2693. (1883). i»C. C. P. § 2693; People ex rel. ' Matter of MuUon, 145 N. Y. 98,; Gould v. Barker, 150 N. Y. 52, 44 N 39 N. E. 821 (1895). E. 785 .(1896) ; Matter of Flandrow, 8 Blood- V. Kane, 130 N. Y. 514, 92 N. Y. 256 (1883). 15 L.R.A. 490, 29 N. E. 994 (1892). "Matter of Flandrow, supra— C 9 Matter of Bergdorf, 206 N. Y. C. P. § 2693. 536 • § 478 EXECUTORS named as executor is what gives him power and authoritj^ to act. or dispose of his decedent's property under the will.^^ This is shown by the fact that a person, though named as executor in a will, is deemed superseded by the issue to another of letters testamentary; and has no power or authority whatever as such executor until he appears and qualifies." The issuance of such letters does not pre- vent subsequent qualification by one named in the will.'* Executors are not chargeable with devastavit for taking the estate's moneys before they had received their letters and using them in good faith and with what then appeared to be reasonable prudence to discharge an apparently valid obligation resting on their testator to complete a contract of purchase of lands in another state, when they ratify this act of theirs after receipt of their letters.^* Service of attach- ment on one named executor pending contest of the will naming him and while a temporary administrator is managing the estate is not good; because such executor does not represent his deceased judgment debtor. ^° Persons named executors in a will may, before its probate and their qualification, accept security by a surviving partner of the decedent for buying out the latter's interest, tendered them in accordance with a partnership agreement, as this is the exercise by them of a power necessary for the preservation of the estate.^* § 478. Id.: Pending Appeal and Contest.-^Letters testamentary issued by order of the surrogate, pending an appeal either from his decree admitting the will to probate or granting letters testamentary, or from an appeal from any order, or judgment of the appellate division of the supreme court affirming such decree, on the gTound that the estate's preservation requires their issuance confer on the person or persons named therein all the powers and authority and subject him to all the duties and liabilities of an executor in an ordinary case; except that letters so issued do not until after the final determination of the appeal confer power upon the executor to sell real property by virtue of a provision in the will, or to pay or to satisfy a legacy." Therefore, pending such appeal, a suit by the testator's creditors against the executors to establish the credi- tors' claim is well brought, even though the executors had no power to pay debts; because the creditors are entitled to establish their 12 C. C. P. § 2626; People ex rel. iSHull v. Cartledge, 18 A. D. 54, Gould V. Barker, supra.; Matter of 45 Supp. 450 (1897), old Code, § riandrow, supra. 2613. " Matter of Bergdorf, supra. " C. C. P. § 2560; Thomson v. "Matter of Denton v. Sanford, Tracy, 60 N. Y. 174 (1875). 103 N. Y. 607, 9 N. E. 490 (1886). "Matter of Elandrow, 28 Hun, 279 (1882), aff'd 92 N. Y. 256. 537 NEW YORK ESTATES AND; SUKKOGATKS § 479 claim by judgment.^' If the appeal is not taken until after the let- ters have been issued, the executor may . nevertheless exercise the same powers which he could exercise if the letters had -been granted, him pending the appeal, provided he lias a like order of the surro- gate to such effect.^' In the exercise of such powers the executor is subject to the duties, liabilities and exceptions which would bind him if the letters were issued pending an •appeaL"'' Execu- tors served with citations on a. petition to revoke and. set aside the probate of the will naming ithem may proceed to recover or pre- serve estate property, pay debts, and do such other acts as are .al- lowed by the surrogate's order, on notice to the petitioner ; and may pay an allowance to the petitioner to be charged against him as either heir or legatee.* § 479. Id. : Contracts, Agreements and Debts. — "The contracts of executors, although made in the interest of and for the benefit of the estate they represent, if made upon a new and independent con- sideration, as for services- rendered) goods or property sold or de- livered, or other consideration moving between the promisee and the executors as promisors, are the personal contracts of. the execu- tors and do not bind the estate, notwithstanding the services ren- dered, or goods or property furnished, or other consideration moving from the promisee, are such that the executors could properly have paid for the same from the assets, and been allowed for the expendi- ture in the settlement of their accounts. The principle is that an executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an execiutory con- tract, and thus create, a liability not founded upon a contract or ob- ligation of the testator."^ Executors and testamentary trustees can- not, as a general rule, by their executory contracts, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, bind the estate and thus create a liability not founded on the contract or obligation of their testator; because, while as between the executor or testa- mentary trustee and the person with whom he contracts the latter may rely on the contract, yet as between the executor or testamen- tary trustee and the testator's beneficiai-ies the latter are not con- cluded by, the former's act but may require that the propriety of the charge and the liability of the estate therefor be determined on the execijtor's or testamentary trustee's accounting.* The reason that " Thomson v. Tracy, 60 N. Y. 174 " Austin v. Munro, 47 N. Y. 360 <1875). ■ ' (1872). 19 C. C. P. § 2560. « O'Brien v. Jackson, 167 N. Y =" C. C. P. § 2560. 31, 60 N. E. 238 (1901). 1 Matter of Hoyt, 31 Hun, 176 .i :0n the power of executor or ad- (1883). ministrator to ijnter into contract 538 § 479 EXECUTORS , contracts by executors, though made in the interest and for the bene- fit of the estate they repx-esent, are their personal contracts and do not bind the estate, is that they may use the estate funds for pur- poses authorized by law but may not bind the estate by. executory contracts and so create a liability not founded on their testator'.-; ■contract.* An executor will be held personally responsible to a creditor if there is no agreement by the latter to look, or confine his claim, for compensation, to the estate itself, or to the executor in his representative capacity.* A clgdm for services rendered execu- tors as such is a charge against them individually and not against the estate.^ Executors cannot bind their estate by a contract of endorsement.' An exeoutior has no power to bind the estate by signing a lease in its name unless he had authority from the will so to do, the contract was intended to be that of the estate and the estate received the benefits from it.* He is personally bound.^' The con- tract between a legal representative and a real estate broker by which the latter agrees to find a buyer for realty belonging to the estate binds the representative individually to pay the broker's com- missions on his obtaining a person ready, able and willing to buy." Executors agreeing with a vendee of estate realty to do things as to it which they cannot do under the power of .sale given them by the will are personally liable, e. g., to use funds coming to them as exec- utors to extinguish the testator's widow's dower and pay oft' encum- brances on the premises." Notes dated after the issue of letters testamentary, signed by executors with the addition of the name of their office (i. e., as executors) are the individual liability of the executors.^* Executor's who secure an extension of a mortgage and agree to pay the principal sum remaining due on the mortgage debt are individually liable therefor.^' A deficiency judgment on a mortgage on leaseholds, given by an administrator c. t. a. to secure .a loan with which to pay off mortgages executed by the testator on for material or labor so as to sub- Donald, 52 A. D. 424 (1900), or 65 ject estate to mechanics' Uen there- Supp. 260. for, see note in 52 L.R.A.(N.S.) 870. » Metropolitan Trust Co. v. Mc- * Delaware, Lackwanna & Western Donald, supra. R. R. Co. V. GHbert, 44 Hun, 201 i" Smith v. Pegrot, 201 N. Y. 210, (1887), aff'd 112 N. T. 673, 20. N. E. 94 N. E. 662 (1911). . 416. ,,.,.: On the liability of estate for * Martin v. Platt, 51 Hun, 429 brokers' commissions, see note in 64 (1889), or 4 Supp. 359., L.R.A. 554. "6Balz V. Underhill, 19 Misc. 215 " Bostwick v. Beach, 31 Hun, 343 (1897), or 44 Supp, 419; aff'd 16 (1884). A D. 635, 46 N. E. 1089. ^^DaiMng v. Powell, 20 Misc. 240 'Packard v. Dunfee,. 119 A. D. (1897), or 45 Supp. 794. 599, 104 Supp. 140 (1907). " Olin v. Arendt, 27 Misc. 270, 58 8 Metropolitan Trust Co. v. Me- Supp. 429 (1899). 539 NEW YORK ESTATES AND SURROGATES § 479 leaseholds, does not bind the latter security." In certain cases an estate may be held liable for the executory contract of an executor or testamentary trustee inade on its behalf, e. g., when the executor or testamentary trustee was guilty of fraud toward the creditor, or the estate is insolvent, or he is authorized to make the expenditure for the protection of the trust estate and has no trust fund for the purpose.^* But charges against the estate so made cannot be en- forced in a legal action against the executor or trustee but only in an equitable suit to which the beneficiaries are parties, so that they may be heard on the question of the estate's liability.^" The rule that the contracts of executors or administrators bind them per- sonally and not the estate has no application to a proceeding by an attorney to have his lien determined and enforced on moneys re- covered for the administrator or executor.*'' A contract presuma- bly binds the executors and representatives of the contracting parties unless of a personal nature or so worded as to kill the presumption.'' The representative of one who had contracted to buy real estate may be compelled by the deceased's heir or devisee to pay for it out of the decedent's personalty.'^ Quaere if a contract made by executors in form as such even though for the benefit of the estate binds the estate.*" The presumption is that a contract ostensibly made in be- half of the estate, relating exclusively to matters in which the exec- utor or administrator has no personal interest, in which the repre- sentative describes himself as executor or administrator and which he signed by affixing to his signature the words "Executor" (or "Administrator") "of —. ," is the contract of the estate and not of the individual.' A contract by a decedent to do work is an asset of his estate ; but the representative who, in undertaking to com- plete it, employs a servant who is injured in the course of the em- ployment, is only personally and not as representative liable for personal injuries sustained by such servant.* An executor is liable "Vose V. Conkling, 153 A. D. '» cjiamberlain v. Dunlaip, supra. 40 (1912), or 137 Suppi 1066; *» Wetmore v. Porter, 92 N. Y. 76 dism'd 209 N. Y. 521, 102 N. E. 1116. (1883). "O'Brien v. Jackson, 167 N. Y. 'Chouteau v. Suydam, 21 N. Y • 31, 60 N. E. 238 (1901). 179 (1860). '8 O'Brien v. Jackson, supra. As to personal liability on contract '■'Matter of Ross, 123 A. D. 74, to which words indicating represen- 107 Supp. 899 (1907), C. C. P. § 66. tative capacity are added to signa- On the liability of estate to at- ture, see note in 42 L.R.A.(N.S.) 56. torney employed by personal rejire- On the effect' of the qualifying sentative, see note in 25 L.R.A. words "as executor," see note in 15 (N.S.) 72. L.R.A. 850. " Chamberlain v. Dunlap, 126 N. * Decillis v. Mescelli, 152 A "^ Y. 45, 22 Am. St. Rep. 807, 26 N. E. 304 (1912), or 136 Supp. 573. 966 (1891). On the liability of executor or ad- 540 § 480 EXECUTORS as such for rent in arrear at his testator's death on a lease signed by the testator; but if the executor enters on the demised premises he becomes personally liable, e. g., if an executor who is also legatee occupies and sublets the premises he becomes hable for the rent as legatee.' The signature at the end of a power of attorney by an executor need not have added to it his of- ficial character to make it effective, if his description in the instru- ment itself sufficiently shows its execution by him as executor.* Executors of a decedent who has agreed to buy land must pay (and be allowed on their accounting) the purchase price, at the demand of the heirs to whom the land descends.' Executors of one resident of New York who before death had bid off realty in another state are bound to perform the contract after the bidder's death.* They need not wait till compelled to do so by legal process; but may do so voluntarily — and even before they qualified, if they ratify their acts after appointment.* An executor should be allowed an amount paid as the balance due by his testator on a land contract.' Pay- ment by a principal after his surety's death of interest on the prin- cipal's note, before, however, the statute of limitations had run against the note, does not prevent the statute from attaching as against the executors of the surety until the expiration of six years from such payment.' § 480. Id.: Testator's Partnership. — In the absence of authority in his will to continue hig business, the death of a partner works an end of his trade, and his executors have no authority to continue the business except to convert the assets into money.* "By the general rule the death of a trader puts an end to any trade in which he was engaged at the time of his death, and an executor or admin- istrator has no authority virtute officii to continue it, except for the temporary purpose of converting the assets employed in the trade into money. But a testator may authorize or direct his executor to continue a trade or to employ his assets in trade or busi- ness, and such authority or direction, if strictly pursued, will protect the executor from responsibility to those claiming under the will, in case of loss happening without his fault or neg- ministrator for personal injury re- Co. of N. Y. 99 N. T. 1, 1 N. E. 33 suiting from negligence in care or (1885). management of property of estate, * Matter of Davis, 43 A. D. 331 see note in 38 L.R.A.(N.S.) 379. (1899), .or 60 Supp. 315. * Howard v. Heinei-schnit, ].6 Hun, * Matter of Denton v. Sanford, 177 (1878). 103 N. T. 607, 9 N. E. 490 (1886). On executor or administrator of ''Matter of Bielby, 91 Misc. 353 lessee as an assignee of the lease (1915), or 155 Supp. 133. liable for rent, see note in 52 L.R.A. 'Lane v. Doty, 4 Barb. 530 (N.S.) 987. (1848). * Myers v. Mutual Life Insurance 'Matter of McCollum, 80 A. D. 341 HEW YORK ESTATES AND SUKROGATES § 480 ligence, /aiid also entitle him to indemnity out of the: estate, for any liability lawfully incurred within the scope of .the : power. The courts . . . have. applied stringent rules of construction in as- certaining both the existence and extent of the authority of the executor . . . the intent ... to confer . . . power to continue a trade must be found in the direct, explicit and un- equivocal larlguage of the will or else it will notbe deemed to have been conferred .... a power, simpliciter, to carry :on the tes- tator's trade or to continue his business in a firm of which he was a partner, without anything, more, will be construed as an authority simply to carry on the trade, or business With the fund already in- vested in it at the time of the testator's death, and to subject that fund only to the. hazards of. the trade and not the general assets of the estate. . . ." ^*, Executors. canriot continue their testator's busi- ness unless the will gives them power so to do;^" There is no differ- ence between the Executor who continues his testator's business with- out authority and the executor; who engages in and carries on a new business without authority." An executor who carries on his de- cedent's business without' a direction in the will to do so makes the business his own, individuallyj and is individually chargeable with any loss, though the estate is entitled to any profits; and, therefore, he need not on his accounting show the details of the business or produce vouchers for rthe disbursements of the business.'-^ Execu- tors conducting their testator's interest in a partnership with the surviving part.nei"S become copartners with such survivors so that debts incurred in the business are pri'marily charges on the partner- ship and not on their.testator's general estate.^* Executors con- tinuing their testator's' business without authority must, at the election: of the beneficiaries, either account for its net profits or refund the amount of the; property diverted with 6% interest." A person named as executor' who continues his testator's business without te^tainentary authority, need not account for its receipts 9«Wimsv. Sharp, 113- N. Y. 586 "The Columbus Watch Co. v. 362 -(1903), or 80 Supp. 755. Hodenpyl, 135' N. Y. 430, 32 N. E. (1889). 239 (1892), C. C. P. §§ 1731, 1825, "Matter of Archer, 77 Mise,. 288, 1826. 137 Supp. 770 (19i2). ., On the liability of estate, for debts On the power ot executor or ad- contracted and expenses incurred by ministrator tp carry on business^ in personal representative in carrying behalf of estate, see note in 40 L.R.A. pn business when he is not empowered (N.S.) 205: so to do, see note in 40 L.R.A. (N.S.) "Matter. of Archer, 77 Misc. 288, 227. 137 Supp. 770 (1912). "Matter of Archer, 77 Misc. 288, 12 Matter of Braunsdorf, 13 Misc. 137 Supp 770 (1912). 666 (1895), or 35 Supp. 298; mod'fd 2 ;A. D. 73, 37 Supp. 229. 542 § 480 EXECUTORS and disbursements ; but must account for its actual net profits ; be- cause he carried on the business on his individual responsibility (though he must account for profits as assets of the estate by rea- son of his unauthorized investment of the trust fund).^^ He can- not pay himself a salary for running the business ; because a trustee cannot deal with a trust fund for his own benefit. ^^ Only those as- sets of a decedent invested at his death in his business which his will empowered his executors to carry on are subject to the hazards and risks of the business.^® Trade creditors dealing with an executor relative to a special business which he is authorized by the will to continue can rely upon the executor's personal responsibility and a lien on so much only of the testator's estate as he has directed to remain in the business.'' For negligence resulting in injury to one employed by executors in continuing their testator's business under his testamentary authority, the executors are not responsible in their representative capacity; because the liability is founded, not on any act of the testator, but on a contractual relation of mas- ter and servant between individuals who are executors and an em- ployee.'^' Trustees of a will of a deceased partner who directed in it the continuance of the trust estate in the partnership business after his death, may sell the deceased partner's interest to a life beneficiary when some sale must be made by reason of the surviving partner's determination to sell out the firm assets; and if they acted without culpable negligence in the light of the situation as it then existed and without direct or indirect benefit or advantage to them- selves, they are protected frorn eiffectiye criticism." Executors of a deceased partner may require a sale and accounting by the sur- viving partners after the latter have had time to sell out and close up the business ; but the executors cannot carry on the business or have any say in its possession or management.^" Two years is not per se too long a time for surviving paitners to wind up the partner- ship Jausiness.'"' An executor who qualified before, and an executor who qualified after a sale of the half interest of the testator in a part- is Matter of Peck, 79 A. D. 296 201 (1887), aff'd 112 N. Y. 673, 20 (1903), or 80 Snpp. 76; aff'd 177 N. E. 416. N Y 538 69 N E 1129. The equitable rights of creditors 'i6 Matter of HiJkey, 34 Misc. 360 ^^lere personal representative carries /1n/>1^ en a QAA on business are discussed in note in (1901) or 69 Supp 844. 40 L.R.A(N.S.) 233. On the liability of estate for debts ig jjgCue v. Finck, 20 Misc. 506 contracted and expenses incurred by (1897), or 46 Supp. 242. personal representative in carrying 19 Co'stello v; •Costeilo," 209 N. Y. on business under power so to do, 252, 103 N. E. 148 (1913). see note in 40 L.R.A.(N.S.) 224. 20 Matter of Rogers or McCoUum, "Delaware, Lackawanna, & Wes- 37 Misc. 54 (1902), or 74 Supp. 829; tern R. R. Co. v. Gilbert, 44 Hun, afPd A. D. 362, 80 Supp. 755. 543 NEW YORK ESTATES AND SURROGATES § 481 nership of which the latter executor was the other partner, are both liable to be surcharged for failure to get a fair price for the testator's half interest : and for failure to require some payment for the good will the former as well as the latter executor is liable even though he was not a partner and knew nothing much of the business.^ It is proper to compute the good will of a partnership at two years' purchase on the average profits for the three years before the testate partner's death. ^ A purchaser of the interest of a surviving partner is obligated just as the latter would be to wind up the business, and realize on the assets, not only for his own, but for the estate of the deceased partner's benefit ; because he takes the property impressed with the trust imposed on the surviving partner." If he does not do this, the executors of the deceased partner may in equity have a receiver appointed, just as they could had the surviving partner not sold out and refused to wind up the business." Surviving members of a decedent's firm, named his 'executors, are chargeable with the rate of interest earned on assets of the decedent used in the firm busi- ness after his death.' § 481. Id.: Liability for Interest. — In every case in which inter- est is in question the important inquiry is the date at which the legal duty to pay, as an absolute present duty, arose; because inter- est is payable either for a loan or retention of money by express con- tract, or as damages for nonpayment of money due — the agreeinent to pay interest being implied by law as damages for not discharging a debt when it ought to have been paid.* An executor should not be charged with more interest than he got on the estate of his testa- tor unless he was negligent in Hot so investing as to get more.' An executor who delays for a long time in paying over moiiey which it was his duty to pay over yearly, and who presents no proof that he had it constantly on hand ready to pay it over when it was called for, is chargeable with interest on the grounds of negligence and ^Matter of Silkman, 121 A. t). for custonlers by firm of which de- 202 (1907), or 105 Supp. 872; aff'd cedent a member, on which customei-s 190 N. Y. 560, 83 N. E. 1128. charged 6%, executors seeking to pay On power of personal representa- estate 2% only, the interest on bank tive of deceased partner to carry on deposits used as subsidizing firm's business, see note in 40 L.R.A.(N.S.) business. 201. . *Ledyard V. Bull, 119 N. Y. 62, 23 On the respective powers of sur- N. E. 444 (1890). viving partner and personal repre- ' Matter of Woodbury, 40 Misc. sentative of deceased partner, see 143, 81 Supp. 503 (1903). note in 28 L.R.A. 136. The personal liability of a trustee 2 Hutchinson V. Campbell, 13 Misc. for ibterest on money lost throu^li 152, 34 Supp. 82 (1895). ■ investments is discussed in nole In matter of Myers, 58 Hun, 173, 11 44 L.R.A.(N.S.) 975. Supp. -543 (1890), stocks, etc., carried . , 544 §481 EXECUTORS presumed appropriation of it to his own use.* Executors are per- sonally liable for a wilful neglect and omission to set apart the amount of a legacy bequeathed by their testator and to reinvest from time to time the accumulations of interest accruing upon it, even though they be guilty of no bad faith.'' They are liable not only for the principal of the legacy but for the interest.* When the interest is a small sum they should be charged only six per cent and allowed to hold the interest accruing during one year through the whole of the ensuing year without investing it, not only because it is difficult to invest such small sums, but because the annual charges on such income for taxes, support, etc., are to be paid out of it.® A corporate executor is subject to no greater lia- bility thah an individual executor except as prescribed by statute." On all sums of $100 or more collected and received by it as executor it must allow interest at not less than two per cent yearly till duly expended or distributed; but it cannot be made to allow more unless an individual executor could be made to pay more under the circum- stances of the case.^^ An executor will not be charged with interest on moneys of the estate he had invested till three months before his accounting; when the bank said it would no longer pay interest, and when he accounted anticipating no delay, and there was necessity of distributing.^* Executors are not chargeaible with interest on estate funds they withhold to meet demands on which suits are pending without their fault.'* Executors are properly personally charged with the interest on note, from one year of their appoint- ment, which they had sufficient personalty to pay, but did not pay." Executors are properly charged with the principal and the interest from one year after their appointment, on a note to their testator which bore no interest, because they should have collected it and put the principal at interest.'* An executor has the right to deposit in a checking account money belonging to the estate needed to meet « Rundle v. AUison, 34 N. T. 180 " Matter of People's Trust Co. 169 (1866). • A. D. 699, 155 Supp. 639 (1915). On the personal liability of execu- " Matter of People's Trust Co. tor or administrator to distributees supra, Banking Law, § 188, subds. 1, for interest where settlement of^- ^'x^'natter of Clark, 16 Misc. 405, *A^lfol^^' 37 Supp. 722 (1896). " (JSi.b.) dSU. ^ , ,. ^ "Matter of Howard's Estate, 3 On liability of representative for ^^^^_ -^^q (1893), or 23 Supp. 836. compound interest, see note m 29 "Matter of Hawley, 108 A. D. L.R.A. 622. 185 (1905) , or 96 Supp. 61 ; aff'd 185 ' Remington v. Walker, 99 N. Yi N. Y. 566, 77 N. E. 1188. 626, 1 N. E. 305 (1885). w Matter of Pereival, 79 Misc. 567 * Remington v. Walker, supra. (1913), or 141 Supp. 180, mod'f'd, 'Remington v. Walker, supra. 146 Supp. 1108. N. Y. E. & S.— 35. 545 KEW YORK ESTATES AND SURROGATES §482 current expenses of administration, without being charged for in- terest.'^ An executor will only be charged four per cent! interest, with annual rests, on the balance .of funds of an estate which he was not allowed credit for, as paid out, on his acGOunting> even though he mixed the estate's funds with his own, provided he was honest." When a certain part of an estate, consisting of personal- ty, is directed by will to be invested by the executor and the income ]3aid to named beneficiariesy but after the testator's death and before the fund is particularly set apart and invested, the estate does not earn the full legal rate of interest, it is in the surrogate's discretion to allow the beneficiaries such rate of interest, as he deems proper, having reference to the total amount of income earned.-'* § 482. Id. : Personal Purchase, Profit and Liability. — An execu- tor's compensation comes from the eistate of which he is trustee, for all of the assets of which in his possession or under his Control he must account; so that the surrogate's court may probeito any depth to find that he accounts for all estate, assets, and does not diminish them unduly for his private emolument; e. g., it may decree that a sum paid, executors individually, as "extra compensation," by their vote as officers and directorsiof a.corporatibn in which their. testator was largely interested, ,be apportioned between stock held by them as executors and stock held by them as individuals.'* The surrogate has not jurisdiction on settlement of an executor's accounts to decree' that he return to the estate , salary he has received from a corpora- tion in which he held office and in which the estate; held stock, however much of the stock, the estate held.^" An executor will be surcharged with the amount over its selling price which.stock owned by the ; estate was worth when he, owning individually so much, more of the stock that with that oWned by his testator he could con- trol the corporation, gold the-estate stock under circurnstances show ing a deliberate intent to prevent others, from bidding for' it; and, on inability to determine its market value, the value of the estate sJiock.wilLbef' fixed at what persons say they; would have paid for it.' An executor who agrees to sell- ^tock, some owned by him individUaJ- '^Mattet ofBielby, 91 Misc. 353 (1901), or' 69 Supp. 489; aff'd 171 (1915), or. 155 Supp. 133. , N. Y. 686, 64'N. E. 1125. '■^ Matter of Stanton, 41 Misc. .278 8" Matter of Brown, 78 Misc. 342, (1903), or 84 Supp, 46: See, hpw- 139 Supp. 459 (1912). ever, § 2664-a Code, added by L. :' Matter of Hang, 55 Misc. 481, 1916,0.588. ' 106 Supp. 850 (1907). The rate of interest allowed On personal liability of executor against executors, trustees, etc., . is or ; administrator on .corporate stock discussed, in note in 29 L.R.A. 651. belonging to an estate or trust stand- '* Matter of Smith, 86 Misc. 136 , ing in his name, see note in 30 L.B!a (1914), or 149 Supp. 131. , (N.S.) 1092. 19 Matter of Schaefer, 34 Misc. 34 - ' 546 § 482 EXECUTORS ly and some by the estate, aiid not to engage in the business of the corporation the stock of which is sold within a certain radius for a stated period, must pay the estate its proportion of profits of the deal; even though he claims that the excess received on each share over its market value was the consideration paid him for his cove- nant not to engage in such business.* The jiurchase by a trustee of trust property for his own individual benefit is sufficient to avoid the sale, whethel' private or judicial.^ An executor having sufficient personal estate of his testator to pay the latter's debts, who allowed lands devised to him for life .|;o be Sold on execution issued on a judgment against his testator, and bought in the lands for himself from" the' sheriff,' holds them as trustee for the benefit of the devisees' entitled thereto.* TKe pur- chase by an executor of estate stock in his brother's, name arid its sale in the same manner vitiates the sale and, makes the executor chargeable with its value.' One named as executor in a will, to whom letters were never issued may validly buy realty of .the testa- tor at its public sale by another executor named in, the will and appointed.® No executor can purchase from himself seeuri|ies in which iie invests tfust funds which he holds for investment.^ ; An executor will be, surcharged a profit. Jje made: from buying claims against, the estate with , estate funds,' Qij the accounting of an executor and trustee, he will be charged with the amount of com- missions which he, as ibroker, took: for effectihg : insurance on the estate or trust .fund, even though he did not credit himself as trustee with the amount on the account; hecause the law ^ forbids payment of any part of such commissions to another.^" Executors-trustees who are ailso beneficiaries, 'having power of sale of the testator's real- ty with discretion ais t6 the time of sale who defer thtesale atid take part of their shares of the personalty as advancements, carinot tfike the remainder of their shares in the realty' so' held, 'after its value has increased, unless they charge themselves wi'th interest'' on their advances from the persolialty ; becaus^' they axe under' the equitable obligation Upoii trustees so to deal with the trust estate when dis- tribu|;ing it for their own benefit as to do equg-l justice to all the * Matter of Sandroek, 49 Mise. * "Valentine v. Duiryea, 37 Hun, l27 371, 99 Supp. 497 (1906). ■' (l^^^- , „ , . 8 n-, » Moore v. MobH 5 N. T. 256^ s m ?. 1" r -^ 1 .1 .n ^-r- /ioc-i\ T <-.-i„ „ re„„o^;;i™o f;« tm V 'Matter of . Ramforth, 40 Mise. (-1851) ; Lyttle v. Bevendge, 58 N. Y., g^g. gg g^pp- 57 (1903). ' 592 (1874). 9ijj,g, L_ §> 65 (amerid'd L. 1912, * Lyttle V. Bevendge, supra. (._ 225). sSehenck v. Dart, ,22 N. Y. 420 ' 10 in re Keefe (Carroll)y N. Y. L. (I860). J- June 16, 1915, Kings Surr. 547 NEW YORK ESTATES AND SUBROGATES § 482 beneficiaries.^^ Executors acting according as the law stands when they act should be protected from loss.^^, , i . : > STo executor is chargeable, upon any .special promise, to answer damages or to pay the debts of the testator, out of Ms own estate, unless the agreement for that purpose, or some memorandum, or note thereof be in writing and signed by such executor, or by some other person by him, thpreiinto specially authorized.';' The execu- tors of one who held personal property as bailee have devolved; upon them the same duties as bailees and are liable in their representative capacity to tlie true owner jfpr the property received by thern af= such.^* Executors are liable . for the ordinary , negligence or the want of that degree of diligence which persons of ordinary prudence are accustomed to use about their own business arid affairs, as they do not act gratuitously, but are entitled to their expenses and com- pensation.", Executors, at least one of whom knew the exact facts about a claim against the estate, who so far doubted it as to refuse to pay it without a judgment, rejected it but made no defense on its reference and even refrained from laying the true ^acts before the referee, do not use the pnldence and diligence of a man about his own affairs, and are properly surcharged with the amount paid on the judgment." The mere deposit by an executor of estate funds in a bank of which he owned ;2%^ of the stock, on which he received a six per cent dividend, does not suffice to charge him on his accounting with interest on the deposited funds." Beneficiaries of an estate cannot orally dispute a release by them to the executor of "all money, property and choses in action, and property rights which came to his hands as the prdperty of the estate of H. L.,'' even as to realty bought in by him individually, without consideration, on foreclosure of a mortgage thereon held bythe estate, as the re- lease is broad enough to include such realty;^* Executors in whose name stock of a banking corporation; stands on the corporation's books a,t the time of the jcopppr^tion's insolvency are liable to con- tribute even , though they have accounted, and. had transferred to themselves as trustees such stock pursuant to th? accounting decree ; bi^t they can recoup the.inselYes, if possible, by recourse to the trans- it Matter of Watson, ■ 213 N. T. "Matter of Watson, 115 A. D. 177, 107 N. E. 338 (1914). 310 (1906), or 100 Sapp. 993; afi'd "Lilienthal v. Lessen, 102 A. D. 187 N. Y. 541, 80 N. E. 1122. 500 (1905), or 92 Supp. 619; affd "Matter of Sexton, 61 Misc. 569, 185 N. Y. 557i 77 N. E. 1190. U5 Supp. 973 (1908).. " Deced. Est L. § 113. On the liability of executor or ad- '*Moran v. Morrill, 78 A. D. 440 ministrator for loss of bank deposit, (1903), or, 80 Supp. 120; aff'd 177 see notes in 14 L.R.A. 103. 7 L.R A N. Y. 563, 69 N. E. 1127. (N.S.) 617, 45 L.R.A.(F.S'.) 1. "Matter of Dean, 86 N. Y. 398 " Luane v." Paige; 82 Hun, 139, (1881)— assignee fo,r creditors.- 31 Supp. 310 (1894). 548 § 482 EXECUTORS ferees." Although a member of a firm which owed a decedent a debt could not, if appointed such decedent's executor, sue the firm of which he was a member and enforce payment from the firm, yet he could be charged with the amount of the debt on his accounting, because he, as a member of the firm, owed the whole of the firm's debt to his testator.*' Executprs making unauthorized and improp- er application of their testator's personalty are personally liable therefor as for a devastavit; and if they discount estate notes to pay debts unnecessary but for their devastavit they are not entitled on their accounting to £tny credit for any part of the discount.^ Per- sons not made parties to an executor's accountings may hold him to account for misapplications of funds as to them even though an ad- ministrator c. t. a. shall have been appointed ; but they cannot hold the administrator c. t. a.* An executor directed by decree on his accounting to pay over a stated sum to testamentary trustees, on af- firmance of the decree is properly held to pay an amount equal to the interest unpaid oh the sum stated from the date of entry of the decree, as fine for contempt of court in refusing to obey the decree.' One of two executors given a life estat« in testator's realty with power to sell as to him seemed just is not (nor is the coexecu- tor) liable as such for losses sustained through investments of the proceeds of sale ; because the receipt of the proceeds was as life ten- ant and not as executor.* A cheque signed "Est. of — , — Ex., — . Ex.i" given by one of the executors in payment of his individual indebtedness charges the payee with notice that it was payable from trust funds and if the latter applies it in payment of the individual liability of such executor he is prima facie charged as a joint con- verter of the estate funds, even though he give such executor in- dividually a cheque for the same amount.* Executors who acted in good faith in making a settlement, believing it to be for the best in- terest of the estate (as proved to be the case), will not be surcharged with the amounts paid by them to bring about the settlement.* An executor will not be held personally liable for the rebate allowed by " Mahoney v. Bernhardt, 27 Misc. * Mattel- of Lamb, 10 Misc. 638, 339 (1899), or 58 Supp. 748; mod'd 32 Supp. 225 (1894). 45 A. D. 499, 63 N. E. 642, Banking ^ Matter of Eyer, 120 A. D. 154, Law, §§ 52, 53. 104 Supp. 804 (1907). 20 Matter of Conselus, 95 N. Y. * Matter of Blauvelt, 131 N: Y. 340 (1884). 249, 30 N. E. 194 (1892). As to effect of appointment of ^ Squire v. Ordemann, 194 N. Y. debtor as executor or administrator 394, 87 N. E. 435 (1969). to discharge debt or charge personal ^Matter of Meyer, 95 A. D. ,443 representative and his sureties, see (1904), or 88 Supp. 798; aff'd 181 note in 26 L.R.A.(N.S.) 411. N. Y. 562, 74 N. E. 1120. 1 Matter of Oosterhoudt, 15 Misc. The liability of representative who 566, 38 Supp. 179 (1896). has compromised or released a claim 549 NEW YOKK EQTATEp.AND SUREOGATES § 483 statute for paymeiiit of ijxe- toan^f^r tax .witljin six months of a de- cedfnt's. death thjgugh, he only bg,d it.deterniinedand.paid after the expiration of such period, if lie was oply appointed two months be- fore the t^ax wai! fixed and it is npt shown he conld have had the tax fixed within the six months! f period.'' A persoi;i , to whom letters, jtestaraentary ; are issued, is ; liable for money or other persona,! property of the estate which , was in his hands or under liis control when his, lettiers 'were granted.' ; The capacity- in which he received such money or, property or the manner in which it came, undgr his cop troll i^impjaterial ; to his liability.^ If re- ceived by, hipi, or coming under his control by virtue of letters pre- viously issued to him in the same or anpthei; capacity to that in vvhich.the new letters are issued,, an action to recover the;money, or daniage^.for failurp to.deliver the property may be maintained upon his o^cial bondunfier the. new letters and, also upon his pfficiaJ, bond ,u,ndfir; the former letters." The sureties upon the new or sub- S€;quenfc.bond are liable over to, the sureties on the former or earlier bond."' ,'■ , ■ \ ; , :, ■•' ,,, , ,,. § 483. Id.: Taxes, Mortgages and Repairs. — Every, person having un^er his control personal property as .executor is taxable in the tax district where he resjdes when, the assessment fqr taxation is made.*" When taxable personal property is in the possession or under the control of two or more executors residing in different tax districts, each must be ta>xed, for an equal portion of the value of such prop- erty so held by them.*' Executors properly pay from the estate a tax for which their testator had becpme personally liable, through its being leviable by the legal officers according to the assessment rolls become complete and unalteratde at his death, even though it had not then become a lien." Taxies unpaid on realty owned by a testator at ;his death are his personal debts which it is the duty of his executor to pay.*^ A tax assessment agaiost the estate of a de- cedent is invalid.** An assessment against executors made after their testator's death biit before proof of the will and issue to them of letters testamentary is good even though they had no time to as- certain the amount of debts due by their testa]tpr so as to deduct to the estate is discussed ia note in different states or countries, of per- 14 L.R.A. 416. ' sonal property held by executor er 'Matter of. Sudds, 32 Misc. 182 administrator) see note in L.RA (1900), or 66 3upp. 231. , ■ 1915C, 949. 8C. G. P. § 2582. , ■; ,i3Id. , , 9 C. C. P. § 2582. " Matter , of Franklin, 26 Misc. 107 " C. C, P. ;§ 2582. (1899), or 56 Supp. 858. " C. C. P. § 2582. . J6 Smith v. Cornell,, 111 N. Y. 554, « Tax Law, § 8, as amend'd L. 19 N. Ei 271 (1888) . ■ 1916, c. 323. . .,, ,16 Matter of Kenworth, 63 Hun, On situs for taxation, .as between 165 (1892), or 17 Supp. 656 550 § 483 EXECUTORS such amount from the taxable estate; because letters are only the authenticated, evidence of the executor's interest in the estate, which comes from the will and vests at the testator's death.^'' An assessment against executors for personal estate in their possession or under their control as such is void if they had none.^* It has been held that an assessment for personal property against an execu- tor is sufficient if made "Read, James C. Est., Henry Sudds, Adm. Personal, $ — ," because, while it would be illegal without a state- ment of the taxed person's representative character, yet the execu- tor is sufficiently described in his representative capacity, as an ex- ecutor is simply an administrator appointed by will, and the words "E-ead, James C, Est." can be regarded as surplusage.^' Personal taxes, insurance and miscellaneous expenses of administration are properly deducted from income.^" Executors may be sued as such for an unknown but confirmed assessment existing against land of their testator sold by them undef a power of sale in his will upon the advertised terms that all taxes; assessments, liens and en- cumbrances would be allowed out of the purchase money and that the property would be sold by a good title in fee simple and would be conveyed by the usual executors' deed free and clear from all en- cumbrances ; because the contract was intended to be carried out before the deed was delivered, was not intended to be superseded by the deed, was not superseded by the deed, the money received by the executor as such did not belong to the estate and the estate would not be hurt by its return to the buyer. ^ An executor who to prevent the sale of his decedent's lands for nonpayment of taxes pays gen- eral land taxes levied on his decedent's land before the latter's death which are not debts of the landowner because not enforcible against him by collector's levy on his chattels or otherwise, is entitled to re- imbursement as he is not required to pay them.'' An executor given a power of sale is properly allowed sums paid by him for tax- es on the realty.' A widow to whom her husband's will gives the right to use a house, who does so use it, even though the will vest the legal title in On assessment of property of de- ^'Matter of Sudds, 32 Misc. 182 cedent's estate, see notes in 56 L.R.A. (1900), or 66 Supp. 231; Tax Law, 634, 50 L.R.A. (N.S.) 407. § 32. As to assessment after death , of ^^ Est. of Grossman, N. Y. L. J. owner of taxes omitted during liis June 12, 1915, N. Y. Surr. lifetime, see note in 40 L.R.A. (N.S.) ^ Alexander v. Greacen, 36 Misc. 927. ,526 (1901), or 73 Supp. 1001. 1'' People ex rel. Coudert v. Com- * Krueger v. Schlinger, 19 Misc. missioners of Taxes, '31 Hun, 235 221 (1897), or 43 Supp. 305. (1883). 'Matter of Perry, 5 Misc. 149 "Bows V. McNab, 11 A. D. 386 (1893), or 25 Supp. 716. (1896). 551 NEW YORK ESTATES AND SURROGATES § 484 the executors, provided it make no provision for repaii"s and give the executors no authority to devote any part of the estate to repairs, is responsible for an injury to a third person by reason of the un- repaired condition of the premises ; because the duty of keeping the premises in a safe condition in general pertains to the occupant and not io the owner.* The rule that a devisee must satisfy a mortgage on lands de- vised him does not obtain when the will directs that the mortgage be otherwise paid, e. g., when the executor is directed to sell a house and lot and apply part of the proceeds to pay off the bond and mort- gage on the devised realty^ even though this results in a deificiency of assets to pay legacies.* An executor who states in an assignment of a mortgage which he signs in his representative capacity only that he is personally responsible for the payment of any deficiency is individually bound.® , Interest on a mortgage not due at a dece- dent's death is not a liability of his estate; the decedent's executor is not chargeable with either the principal or the interest of a mort- gage on real property owned by the testator; and the devisee- is.'' § 484. Id.: Investments. — An executor holding trust funds for investment may invest them in the same kind of securities- as those in which savings banks of this state are by law authorized to invest the money deposited therein^ and the income derived therefrom; and in bonds and mortgages on unincumbered real property in this state worth fifty per centum (50%) more than the' amount loaned thereon.* Securities in w'hich savings banks may invest are listed in a note hereinafter.^ Any executor may require such personal bonds or guaranties of payment to accompany investments as may seem prudent, and all premiums paid on such guaranties may be charged to or paid out of income, providing that such charge or payment be not more than at the rate of one-half of one. per centum (4 of 1%) per annum on the par value of such investments." The investments legal for savings banks are given further on in this work.^* An executor cannot purchase securities in which he invests trust funds from himself.*^ Every executor must keep the funds and property received from the estate of any deceased person sepa- rate and distinct from his own personal fund and property ; and if he does not do so, he is guilty of a misdemeanor.^* He must not * Butler V. Townsend, 84 Hun, 100, • Deeed. Est. L. § 111. 31 Supp. 1094 (1895). » See § 586, infra. 6 Matter of Hopkins, 57 Hun, 9 " Deced. Est. L. § 111. (1890), or 10 Supp. 264. " See § ,586, infra. s Westphal V. Carter, 1 Misc. 403, « Deeed. Est. L. § 111. 20 Supp. 945 (1892). " C. C. P. § 2664-a: added by L. "I Est. of Dibble, N. Y. L. J. Mayl, 1916, c. 588. 1915, N. Y. Surr. 552 § 484 EXECUTORS invest such funds or property, or deposit them, with any person, association or corporation doing business under the banliing law, or other person or corporation, in his own name, and if he does do so, he is guilty of a misdemeanor.^* All transactions had and done by him must be in his name as such executor.** Under a general power by will to make investments, executors must invest in real or government securities, and for overstepping they are personally lia- ble, e. g., if they buy ^ stock from themselves.** Executors may malce, without security or possible restraint from legatees, a loan to a partner of the testator who is also one of his executors by leaving in the partner's business a sum which the decedent had therein in- vested as special partner when the will directed that such surviving partner be allowed to retain such an amount and the business is not extra-hazardous or the surviving partner insolvent." While it is a general rule that an executor or trustee residing here and ap- pointed by a will executed and admitted here cannot invest trust funds in mortgages situated outside the state,** yet such an one is not charged with any loss from taking a mortgage on the decedent's realty in another state when he could not get cash on its sale.** The rule that a trustee investing in real estate securities beyond his jurisdiction does so at his peril does not apply to such investments made by an executor's testator in his life and found as part of the estate; because the executor is justified in assuming that the invest- ments were deliberately made by the testator; and the executor would hardly be justified in accepting payment in full on such in- vestments when they had four years to run and litigation in which the estate was involved would have prevented a lucrative invest- ment of the proceeds.^" For loss arising from investments of trust funds on the sole security of individual or personal responsibility, executors are personally responsible.* An executor is properly sur- charged with the amount of the difference between the interest on a loan of estate funds to the family and the interest he could have se- cured on the amount loaned if invested in legal securities.* Execu- tors are not chargeable with the investment of the interest upon interest on the trust estate annually when they acted in good faith, 14 Id «» Matter of BaU, 55 A. D. 284 15 Id. (1900), or 66 Supp. 874. *« Aekerman v. Emott, 4 Barb. 626 * Matter of Krisf eldt, 49 Misc. 26, (1848). 97 Supp. 877 (1905). *'' Denike v. Harris, 84 N. Y. 89 For an extensive discussion of the (1881). personal liability for losses to trust ** Matter of Denton v. Sanfoi?d, estate from investments, see note in 103 N. Y. 607, 9 N. E. 490 (1886). 44 L.R.A.(N.S.) 873. *9 Matter of Denton v. Sanford, * Matter of Vandevort, 8 A. D. 341 supra. (lfa»6),or 40 Supp. 791. 553 NEW YORK ESTATES AND SURROGATES §§ 485-487 and demonstrate their inability to do better than their account shows, and the difficulty of reinvesting the precise amount of the compound interest received.' Beneficiaries under a will may elect to approve an unauthorized investment by executors and enjoy its profits, or reject it; but once having elected, they are concluded.* Once executors have paid off from funds specifically in their hands for such puipose a mortgage owing by their testator they cannot receive an assignment of the mortgage and then assign it to an al- leged creditor of their testator in payment of his claim, because the payment off of the mortgage resulted in its discharge.^ Failure to object to unauthorized investments which his account shows he holds is equivalent to a consent that he hold them.® § 485. Id.: Transfer Tax.— The subject of the "Transfer Tax" is discussed under that heading in the chapter on "Administrators." ' § 486. Id. : Actions By and Against. — The subject of "Actions" by and against executors is treated in connection with the same title in the chapter on "Administrators," to which reference is made.* § 487. Executors: Appointment and Letters, What Jurisdiction Surrogate Has. — Each surrogate's court has jurisdiction in the cases and manner prescribed by statute to grant letters testamentary.' Each surrogate's court has jurisdiction to appoint a successor in place of a person whose letters ht^ve been revoked.,*" "The general gran^ of jurisdiction to > issue lettefs testamentary . . . neces- sarily caries with it the power to determine the better title to letters and the power to construe the wills, probated, in this jurisdiction if such construction is necessary to determine the better title to letters testamentary." *^ When a will provides that on the death of one named as executor (to .whom letters have been issued) another named person shall succeed him, the surrogate, on the first named's death, can issue letters testainentary to the second named.** On probate and issue of letters testamentaxy, a temporary administra- tor appointed pending probate is functus officio; and on appeal from the decree of probate it ig not, necessary that tbe surrogate again confide the executorial duties to a temporary administrator, but he may properly grant the executors by order a liniited authority, as ' Lansing v. Lansing,, 45 Barb. 142 * See § 116, supra. (1865). ■ 9 C. C. P. § 2510, subd. 2. * Hine v. Hine, 118 A. D. 585 " C. C. P. § 2510. (1907), or 103 Supp,. 535. ."Matter of Mayer, 84 Misc. 9, ; ^Hetzeil V. Easterly,: No. 1, 96 A. 145 Supp. 665 (1914)— old Code, § D. 517,(1904), or 89\S.upp. 154. 2472. 6 Matter of Douglas, 60 A. D. 64 ^^ Matter of Cornell, 17 Misc. 468, (1901), or 69, Supp. 687. , 41,Supp. 255 (1893). ' See § 112, supra. 554 § 488 EXECUTORS the effect of the appeal in suspending the executors' functions, de- mands some step to preserve the estate pending the appeal.^' § 488. Id.: What Surrogate Has Jurisdiction.— To give any sur- rogate's court jurisdiction to take proof of a will of a decedent and grant lietters testamentary thereon it is essential that decedent should have either died in the county of that court's jurisdiction: or left in such county personal property; or left in such county and no other real property subject by law to sale, mortgage or lease for payment of his debts, funeral or administration expenses, etc. ; or left personal property which since his death has come into such county.'* That' surrogate had jurisdiction, exclusive of any other surrogate, to take proof of a decedent's will and grant letters testa- mentary thereon who can answer affirmatively any of the foUowiTig questions: Did decedent at death reside in my county (no matter where he died) ? " Did decedent, though a nonresident, die in my county leaving personal prbpefty either in the state at his death or which since his death has come into the state, and rema:ins unad- ministered? '° Did decedent, though he both resided and died out- side the state, leave personal property which either at his' death' was in my county and no other county, or since' death has Come into my county and no other and remains unadministered? " Did 'de- cedent, though a nonresident, leave in my county and nb other, real property subject by law to sale, mortgage or lease for payment of his debts, funeral or administration expen'ses, etc., arid' is it a fact that no petition for grant of administration of his estate has been filed with any other Surrogate of the state' upon one of two gi'oUnds: — (1) that, though a nonresident, decedent died in such surrogate's county leaving personal property either within the stsCte at his death, or which has' since come into the state and remains unadmin- istered; or (2) that^ though decedent both resided and died outside the state, he left personal property which either at his death was in such surrogate's county and no other, or since has come into such county, and, no other?. " For the purpose of conferring ;upon a sur-. rogate's CQurt jurisdiction to tak,e proof of a will and grant letters testamentary thereon, a debt, owing to a decedent by. a resident of New York state is regarded as personal property si;tuated. within the county in which the debtor resides, or in which eithe?; of two, or any of more than two d;eb]tqrs .resides ; and in which the debtor, if a do- " Matter of Choate, 105 A. D. 356 " C. C. P.' § 2515^ (1905), or 94 Supp. 176; old Code, « C. C. P. § 2515. 2582. ' r- " c. C. P. § 2515, 1* C. C. P. § 2515; See 'also § 420, i* C. C. P. § 2515. supra, dealing with the question of which surrogate has jurisdiction to probate wills. __[ NEW YORK ESTATES ANB SURROGATES 1-489^ megtic corporation, has it?, principal KOjfiScj^; unless the deht is evi- denced by a hond, pronaissory npte, or pther instrument for. the pay- meiitpf money only, in terms negotiable or payable; to therbearer or holder." A: debt so evidenced, for jurisdictional , purposes, is re- garded as pe,rson£\l property at the place where the. bond, note or other, instrument is, either within or without; the. state, irrespective of whether the debtor is aresi,dent or nonresident of the state, or a domestic; or foreign corporation, association, government, state, county or public , oflicer.*" When a nonresident decedientr either leaves personal property which at his death is, or later comes in two or more counties, of the state; or leaves real , property in two or more such counties, under such circumstances that the surrogates of such, two or more counties both or all would have, jurisdiction to take proof of decedent's will and grant letters testamentaryi thereon, such surrogates have concurrent jurisdiction .to :the exclusion of any other surrogate of the: state, to take such proof and grant such, letters.^ But. if; a petition for probate of decedent's will has been duly filed in either or any such surrogate's courts ; the jurisdiction of that, court in which such petition has been filed is exclusive of the jurisdiction of any other courjt.^ When a surrogate's jurisdic- tion to take proof of a decedent's will and grant letter testamentary, depends on the presence in his county of imadministered personal- ty, of the decedent, .it is meant that such property be unadmin- istered or he, not being administ^ed anywhere ; so that such person- alty temporarily in the state in the possession of the principal ex- ecutor appointed in a foreign state does not give the requisite- j urisdiction in this state.' § 489. Id. ; Persons Incompetent, In GeneraL — No person is com- petent to serve as executor who is (1) under the age of twenty-one years; (2) an adjudged- incompetent; (3) an alien not an inhabi- tant of New York state'; (4) a felon; or (5) incompetent to execute the duties of such trust by reason of (a) drunkenness, (b) dis- honesty, (c) improvidence or (d) want of understanding; or (6) death.* An exebutor tiot required by law to give a bond cannot qualify or serve when th6 surrogate, after objection filed and proof taken, finds either tha,t he is not a resident of the state or that his circumstances, are such that thej^ do not afford adequate security to credi"tors or persotis interested in the estate for its due 'administra- tion ; ^ unless such executor giyes a, bond as prescribed by law and, i« C. C. P. § 2517. . " 84 A. D. 145 (1903), or 82 Supp. 2» C. C. P. § 2517. , . ■ 180; aff'd 177 N. Y. 584, 69 N. E. 1 C. C. P. § 25i6. 1136,-^admmistrator. " C. C. P. § 2516. *C. C.P. § 2564. 3 Bv analogy Matter of MeCabe, ^ C. C. P. § 2564. 55P §§ 490-492 • EXECUTORS if he is a nonresident of the state, shows that he is a dtizen of tllo United States.' Thei'e' is no rule or principle of law that the drafts-- man of a will cannot be an executor or take a benefit under it.' In the absence cjf a benefit by the will to its draftsman, the fact' that his relationship to the testator was confidential, is not serious.' A corporation into which another, named in a will as executor, is merged is entitled' to letters testamentary when the will appointed the named corporation and its ' "successors" as executors.' A com- pany into which another company named executor in a will wd,? merged after the will was made is not entitled to letters testamen- tary in the stead of the Company nominated in the wiir when the latter was purely a, banking corporation while' the absorbing com- pany has larger and greater' liabilities and obligations by reason of its guarantying mortgages and titles to real estate; because it can- not be held that the testator contemplated having as executor of his will a company the assets of which were subject to so much greater call than the assets of his nominee.'" '■ ■ § 490. Id.: Persons Incompetent, liif ants. — No person is compe- tent to serve as executor who is under the age of twenty-one years.'' Although a person named as executor who is an infant when the will naming him is proved and letters testamentary thereon are grafted cannot receive letters,'* yet if he becomes of age before the execu- tion of the provisions of the Will is completed, he is' entitled, if he wishes, then to receive supplementary letters testamentary to be is- sued in the same manner as the original letters, and to be authorized to join in the exeeution of the will with the persons previously ap- pointed." § 491. Id.: Persons Incompetent, Adjudged Inpompetents.^-No person is competent to'serve as an. executor who is an adjudged:in- competent.'* ; There is, no statutory provision authorizing : a pej^son nanied.as executor ina-wilLwho is an adjudged incompetent when it is proved and letters testamentary are issued thereon to seek the issue to 'himself of letters after his competency is legally established although the execution of the provisions of the will is not then com- pleted. ' ' , . § 492. Id.: Persons Incompetent, Aliens and Ilon-Inliabitants; or Npn-Residents. — No, person is competent to serve as executor who is an alien not an inhabitant of New York state." Although a per- *C C. P. § 2567. '"Matter of Stikeman' 48 Misc. T Coffin V. Coffin, 23 1?. Y. 9 156, 96 Supp 460^ (1905). (1861). ,r .. , 12 C. C. P. § 2564. « Peek V. Carey,' 27 N. Y. 9 (1863). is c, c_ p § 2626. 'Matter of Bergdorf; 206 N. Y. " C. C. P. § 2564. 309, 99 N. E. 714 (1912). . '« C. C. P. § 2564. 557' NEW YORK ESTATES AND SURROGATES § 493 son named, as executor who is an alien not an inhabitant of the state when the will is proved and letters testamentary are issued thereon cannot be granted letters,** yet if he becomes a citizen before the execution of the provisions of the will is completed, he is entitled, if he wishes, then to receive suppleipentary letters testamentary, to be issued in the same manner as the original .letters, and lo be au- thorized to join in the execution of the will with, the persons pre- viously appointed.*'' The subject of £il]i;enage ha^ been heretofore discussed." The incompetency of an executor to.gjialifyand serve because of nonresidence alone is not absolute. It, only exists (1) when the executor is not by law required to give a bond; (2) when objection has been filed agairist his qualification and service; (3) when; proof has been taken upon the filing of the, objection; and (4) when the surrogate has upon such proof found that he is not, a resident of the state. '^ , Even if such nonresidence has. been established to the surrogate's satisfaction, the person, named executor may entitle him- self to letters by giving £i bond as prescribed:by law;, and by show- ing that he is a citizen of the United States.*" A nonresident execu- tor, when giving a bond to secure letters, must give such a bond as is required of administrators in eases of intestacy.* § 493. Id.: Persons Incompetent, Felons. — No. person is compe- tent to serve as executor wjio is a felon.* ; The incompetency of a felon to receive letters testamentary probably is removed by a par- don of the crime for which he was convicted panted before dece- dent's death and the issue 'of letters.', Conviction and fine in a Federal court for a misdemeanor for violation of the excise law,* or in the court of speciil sessions (Albany county), for a crime pun- ishable by imprisonment and fine or both,' is not sufficient to dis- qualify the person convicted, as a felon, from receiving letters tes- tamentary. A felony, in order to determine if the one guilty of "C. C. P. § 2564. By analogy, "Matter of Raynor, 48 Misc. 325 Matter of Wolff, 161 A; D. ,255 (1905), or 96 Supp. 895. Statute (1914), or 146 Supp. 495, adminis- construed provided that "no person trator; and. Matter of Kroog, 84 is competent tp serve as, an executor Misc. 676 (1914), Or lit Supp. 887,' who at the tiine the will is proved— administrator. ' > shall have heen convicted of an in- " C. C. P. § 2626. . famous crime.?' . " See § 34, supra. * Matter of Greene, 48 Misc. 31 " C. C. ?...§ 2564. , (1905), or 96 Supp. 98. By analogy. ^G. C. P." § 2567, Statute used words. "infamous crime" On nonresident^ as executors, see instead of felony.' ' " ' note in 1 L.R.A.(N'.S.) 34l. « Matter of O'Hara, 60 Misc. 269, 1 Miller v. Montgomery, 78 N. Y. 113 Supp. 281 (1908). By analogy 282 (1879). to construction of phrase "infamous « C. C. P. § 2564. crime." 558 § 494 EXECUTORS it is disqualified from becoming executor, probably must be a crime in which presentment or indictment by grand jury is a prerequisite to conviction.* § 494. Id.: Persons Incompetent; Drunkenness, Dishonesty, Im- providence, Want of Understanding. — No person is competent to serve as executor who is incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding.' The incompetency which disqualifies a person named as executor in a will from receiving letters testamentary thereon is not moral delinquency, but such habits of mind and con- duct as have become part of the man and render it likely that he is, generally and under all ordinary circumstances, unfit to exercise his trust and protect the estate from loss.'' For example, proof of illiteracy or small pecuniary means does not bear on the question of legal incompetency,' while proof of gambling presumptively dis- qualifies.* It is not sufficient to refuse letters testamentary to one named executor in a will on the ground that he is incompetent by reason of dishonesty to execute the duties of his trust that he merely openly copied from the customers' list of the firm of which his tes- tator was a member and of which he was employee the names of certain persons to whom he sent circulars stating his connection with another firm.*" Dishonesty is even a stronger reason for re- fusing letters testamentary to an executor than letters of adminis- tration to an administrator, for ordinarily an executor need give no bond while an administrator must; and a bond is security to those interested in the estate against the dishonesty of its representa- tive.*^ "A dishonest person is one 'wanting in honesty or integ- rity; disposed to cheat or defraud; not trustworthy.' " ** A person who murders a testator to prevent his making another will than the one in which the murderer is named executor is not eligible to re- ceive letters testamentary, whether such ineligibility be put upon the ground that such person is "dishonest" or upon the broader ground of public policy." • e. C. P. § 2564. 2564, after sending such circulars On the requisite moral qualiflca- with knowledge of surviving partner tions to be appointed executor or ad- he sent another, on hearing ofobjec- ministrator, see note in 16 L.R.A. 538. tion by residuary legatee; stating he '' McMahon v.' Harrison, 6 N. Y. had no desire to divert business from 443 (1852) ; Emerson v. Bowers, 14 successor firm to his testator's firm. N. Y. 449 (1856). ■ "Matter of Greene, 48 Misc. 31 'Emerson v. Bowers, supra. (1905), or 96 Supp. 98. 9 McMahon v. Harrison, siipra. '* Matter of Briggs, 171 A. D. 52, .10 Matter of Latham, 145 A. D. 156 Supp. 947 (1916). 849 (1911), or 130 Supp. 545, old i' Matter of Briggs-, 171 A. D. 52. Code, § 2612, subd. 5, new Code, § 156 Supp. 947 (1916). 559 NEW YORK ESTATES AND SURROGATES § 495- Improvidence disqualifies a would-be executor from receiving let- ters testamentary not because it is of itself proof of ineompetency, but because its existence in him to whom the safety of the, estate is entrusted subjects it to onejof the very risks which the law seeks to foresee and avoid, viz., the risk of loss. The vice is an even great- er drawback in a would-be executor who usually does not have to give bond than in a would-be administrator who has to give bond.^* Even if an executor gave bond, it is probable that proof' of improvi- dence would preclude him from receiving letters testamentary; be- cause the law seeks not a recovery after defalcation but a protec- tion in advance against the risk ,of loss.*^ Want of understanding asa ground of incompetency to receive letters testamentary means lack of intelligence.'^ § 495. Id. : Persons Incompetent, Renunciation or Refusal. — ^No man can be made, against his will, to act as executor of another's estate.'-^ A person named as executor in a will may renounce his appointment by an instrument in writing ; signed by him; acknowl- edged or proved, and duly certified, or attested by one or more wit- nesses; proved to the satisfaction of the surrogate; *' and filed in the surrogate's office.'' But if one named as executor declares in open court his intention not to serve and requests that, letters of adminis- tration c. t. a. be issued to himself and another, upon acceptance of the declaration by the surrogate and all parties interested as a re- nunciation, the executor ig bound, especially when he later petitions to be relieved from his stipulation.'^ An agreement by one named executor , to waive his right to act in consideration of sharing in commissions equally with those persons not only named but ap- pointed executors is void as against public policy : "He can renounce his right, but he cannot sell it." ^1 , A renunciation by one named executor in a will executed befgre ;the testator's death, for a con- sideration, and contrary to. the testator's expressed desire, is. invalid and of no legal effect.' A reijunciation of his appointment by a person named as executor in a, will may always be reti"acted at any time before letters testamentary or of administration with the will annexed have been issued to another person in his place ; but after '♦Matter of Brinckennann, 89 " C. C. P. § 2628. Misc. 41 (1915), or 152 Supp. 542— '^ Matter of Baldwin, 27 A. D. 506 administrator., ,, (1898), or. 50 Supp. 872; — dismissed 's Matter of Ferguson, 41 Misq. 158 N. Y. 713, 53 N. E. 218, old Code 465 (1903), or 84 Supp. 1102— dio^ § 2639, like new Code, § 2628. tum ; administrator. *" Oakeshott v. Smith, 104 A, D. '6 Matter of, Greene, 48 Mise. 31 384 (1905), or 93 Supp. 659; affd (1905), or 96 Supp. 98; administra- 185 N- Y. 583, 78 N. E. 1108. tor. ' Staunton v. Parker, 19 Hun, 55 '■'Beekman v. Bonsor, 23 N. Y. (1879)!. 298 (1861). 560 § 495 EXECUTORS such letters have been issued the renunciation may be retracted only (1) if such letters have been revoked and there is no other act- ing executor or administrator ; or (2) if' the person to whom such letters were issued has either (a) died, or (b) become a lunatic, and there is in either case, no other acting executor or administrator.* Whenever made, a retraction of a renunciation must be by a like instrument as the renunciation itself.* When a retraction is made, letters testamentary may be issued, in the surrogate's discretion, to the person making it, upon such notice as the surrogate may re- quire.* Thie surrogate has discretion whether or not to grant let- ters testamentary to a person named as executor who has retracted his renunciation ; * and the appellate division will not interfere with the exercise of this discretion, unless such exercise was improper.^ The surrogate properly and discreetly denies letters when unrea- sonable delay in seeking to retract and secure letters follows knowl- edge by the would-be executor of how he stands by reason of his renunciation, when parties interested have based their actions on the strength of the renunciation. It lies in the surrogate's discretion to grant an ex parte application for the issue of letters testamentary^ to one who has renounced; and he will not exercise his discre- tion in favor of one over seventy years old, twice stricken with paralysis and bedridden; when the estate is large and involved.'' An order requiring a person named as executor to qualify within a specified time and directing that in default of qualifying he be deemed to have renounced his appointment must be made by the surrogate upon the application of (a) any other executor (b) any creditor of the decedent, or (c) any person interested in the dece- dent's estate, in any of the following cases; (1) If the person named as executor in a will does not qualify or renounce within fifteen (15) days after probate of such will; (2) If a person chosen as executor by virtue of a power of selection given in a will does not qualify orrenounce within fifteen (15) days after the filing of the instrument designating him; (3) If a person named as execu- tor in a will against whose appointment objections are filed does not qualify or renounce within five (5) days after objections are deter- mined in his favor; (4) If a person chosen as executor by virtue of '^ C. C. P. § 2628. Supp. 692, old Code, § 2639, like » C C. P. § 2628. new Code, § 2628. *C c'p ? 2628 ' — Three months' delay after exe- " Matter of Baldwin, 27 A. D. 506 ""^^"^ .^7 P*"'^*"!] H^t^"^^ ^ ,,^iir en o Lto j- • J "<"11 withdrawn; Matter of Baldwin, (1898), or 50 S,upp. 872; dismissed . j^^^^er of Dunham, supra. 158 N. Y. 713, old Code, § 2639, hke h Matter of Cornell, 17 Misc. 468, new Code, § 2628; Matter of D^un- 41 Supp. 255 (1893), old Code, § ham, 165 A. D. 165 (1914), or 152 2639. N. Y. E. & S.— 36. 561 NEW YOEK ESTATES Al^D SURROGATES § 496 a power in a will against whose appointment objections are filed does not qualify or renounce within five (5) days after the objec- tions are determined in his favor; (5) If a person named as execu- tor in a will against whom either of the following objections has been established to the surrogate's satisfaction does not qualify by giving a bond as prescribed by law or renounce within five (5) days after either of the objections has been established : (a) An objection that such person's circumstances are such that they .do not afford adequate security for the due administration of the: estate or fund to creditors or persons interested in the estate or fund; or (b), an ■objection that such person is not a resident of the state of i^ew York and is a citizen of the United States.* An order declaring the renuncia'tion of an appointment as execu- tor and reciting the facts must be made by the surrogate if a person named or appointed executor does not qualify within the time fixed by the' prior order of the surrogate requiring him to qualify within a time therein specified; or if such; person does not qualify within such time as the surrogate allows for that purpose.' Revocation by the surrogate' of his order declaring the renuncia- tion by an executor of his appointment may be made in his dis- cretion/ and letters testamentary may be issued to the person so fail- ing to renounce or qualify,' upon his application:, at any time (a) before letters testamentary or of administration with the will an- nexed have been issued to any other person in his place; (b) after revocation of letters testamentary or of administiration with the will annexed issued to any other person in his place when there is no other acting executor or administrator; (c); after the death or lunacy of a person to whom. letters testamentary or of administra- tion with the will annexed issued in his place, when there is no other acting executor or administrator." § 496. Id.: Persons Incompetent: Inadequate Circumstances. — The incompetency of an executor whose circumstances do not af- ford adequate security for the due administration of his testator's estate to the latter's creditors or persons interested in the estate is not absolute. It only exists (1) when the executor is not by law re- quired to give a bond; (2) when objection has been filed against his qualification and service; (3) when proof has been taken upon the filing of the objection ; and (4) when the surrogate has upon such proof found that his circumstances are such'- that they do not afford adequate security for tli^ due administratioii of his' testator's estate to the latter's creditors or p^tsons interested in. the estate.^' Even if such inadequate circumstances have beeii established to « C: C. P. §§ 26'27 & 2567: " C. C. P. §§ 2627-8. 9 C. C. P. §§ 2627, 2628. " C. C. P. § 2564. 562 §§ 497-499 EXECUTORS the surrogate's satisfaction, the, person named executor may enti- tle himself to letters by giving bond as prescribed by law.*^ § 497. Id.: Persons Incompetent: Illiteracy or Failure to File Designation. — The surrogate has discretion to refuse to grant letters testamentary to any person who either (a) is unable to read and write the English language; or (b) does not file in the surrogate's office an instrument, duly acknowledged or proved and certified designating the clerk of such surrogate's court, and his successor in office, as the person upon whom service may be made of any proc- ess issuing from such court in like manner and with like effect as if it were served personally on the individual seeking letters testamentary, whenever the latter cannot be found and served with- in the state of New York after the use of due diligence.^' § 498. Executors: Appointment and Letters: When Made and Petition: Executor Named By Will. — An executor's authority comes from the will; and until he has renounced or been otherwise deprived of his right, he has the right to letters.^* A direction in a will : "The public administrator to sell out all real and per- sonal estate" is of itself sufficient to authorize the appointment of the public administrator as executor of the will.^* Letters testa- mentary must issue after a will ha.= been admitted to probate to any person entitled to letters thereunder who is competent by law to serve, who appears and who qualifies." The petition for the appointment of a general executor is part of the petition for the probate of the will naming him as such, and is treated under that title." In a contested probate proceeding it is prernature to apply for letters before the will is probated or refused probate, as in such case the application for letters is a separate proceeding.^' There is no special objection to issuing letters testamentary from time to time as qualified persons appear, as each executor is account- able only for his proper acts and defaults; but on objection being duly made by a legatee to grant of letters to one of several exec- utorSj issuance of letters to the others will be held up till it is ascertained if letters will be denied the one to whom objection is made.^' § 499. Id.: Under Power of Appointment. — Letters testamentary must issue after probate of a iwill to a person named as an execu- tor by a person other than the testator under a valid power con- »« C. C. P. § 3567. " C. C. P. § 2625. " C. C. P. § 2565. " See § 427, supra. i*Ven Schaack v. Saunders, 32 i« Matter of Mayer, 84 MisB. 9 Hun, 515 (1884). (1914), and 144 Supp. 438. « Baker v. Baker, 18 A. D. 189 " McGregor v. Buel, 24 N. Y. 166 (1897), or 45 Supp. 870; App. (1861), (under L. 1837, c. 46, § 22). dism'd, 157 .N. Y. 671, 51 N. E. 1089., 563 NEW YOEK ESTATES AND SURROGATES §§'500-502 tained in a will who appears, who files an acknowledged or proved, and duly certified selection of- himself as an executor within fifteen days after the date of the decree admitting the will to probate, who is competent by law to serve, and who qualifies.^" In default of such seliection within the prescribed time limit, the power of selection is deemed to have been renounced,' unless for good cause shown the surrogate extends such time or relieves the default.* No petition is needed for the issuance of letters to one selected under a power of appointment given in a will other than that for the probate of the will itself.* 'The steps necessary for the grant of letters to such appointee are elsewhere -discussed.' § 500. Id. : On Contingency. — Letters : testamentary must issue after probate of a will to any person entitled thereto upon a con- tingency who appears, who shows that the contingency has hap- pened by which he is entitled to such letters, who is otherwise com- petent by law 'to serve, and who qualifies.* The method' adopted of apprising the court of the happening of the contingency is prop- erly by petition, which should in general conform to the standard petition in a proceeding in a surrogate's court.* § 501. Id.: Limited Executors. — Letters testamentary, limited to the- prosecution of a cause of action and: restraining the executor from compromise of the action or enforcement of any judgment re- covered therein until the further order of the surrogate, made upon filing satisfactory security, may be issued by the surrogate when a right of action is granted to an executor by special provision of law,, or it is alleged that a cause of action existed on behalf of the dece- dent, and it appears to be impracticable to'give a'bond sufficieilt to cover the probable amount to be recovered.^ The surrogate may either dispense with the bond or fix the penalty at such sum a.* he shall deem sufficient.* The petition for limited letters testa- mentary is included^ generally, in the petition for probate of the will.'' , § 502. Id. : Ancillary Executors.^-Statutory authorization for the issuance of ancillary letters testamentary is ^ven when a will of personal property made by a person who resided without the state at the time of its execution or his death has been probated or estab- lished in the foreign country, where he resided, or it was executed, or has been probated? in the state or territory of the United States' where he resided or it was executed.* The will must have been «»C. G. P. § 2625. - *C. C. P. § 2592. 1 C.i C. P. § 2625. ' See § 427, supra. « Id. ' C. C. P. § 2629; Taylor v. Syme, 8 See § 426, et seq. supra. 162 N. Y. 513, 57 N. E. 83 (1900). *C. C. P. § 2625. On ancillary probate at testator's ' See § 787, infra. domicil after probate in other iuris- 564 § 502 EXECUTORS prpbated in the foreign state or territory of the United States where it was executed or tlie testator at death resided if he was a resident of the United States ; probate in some other state does not warrant the issue of ancillary letters.* A petition for ancillary letters testa- mentary may be made, probably, only either by the party entitled to the ancillary letters or his duly authorized attorney-in-fact ; ^ un- less another personi applies therefor and files with his petition an in- strument executed by all competent, qualified and acting persons entitled to the ancillary letters authorizing the petitioner to receive such letters.^" ,A petition for ancillary letters testamentary must conform in general to the standard petition in any proceeding in a surrogate's court. ^^ It must, in particular: (1) Show that a will of personal property has been admitted to probate or estab- lished in a foreign country or has been admitted to probate in a slate or territory of the United States other than New York ; '^ (2) Show that such will was made by a person who at the time either of its execution or of the testator's death, resided in such foreign country or other state or territory; ^* (3) Be accompanied by a copy of the will and of the foreign letters, if any have been jssued,^* authenticated as prescribed by law; ^^ (4) State the person to whom the letters are to be directed, i. e., (a) If the will specially appoints one or more persons as executor or executors thereof with respect to personal property situated within this state, the peti- tion must name such of those persons as are competent; '° (b) If the will makes no such appointment or those appointed are incom- petent, the petition must name the person nominated in the foreign letters, or the person otherwise entitled under the foreign laws to the possession of the personal property of the decedent; " (c) If a person not of classes "(a)" and "(b)" above applies and files with his petition an instrument, executed by the foreign execu- tor or person otherwise entitled, or by all who are qualified and are acting if there are two or more, acknowledged or proved, and duly certified, authorizing the petitioner to receive such ancillary let- ters, the petition must name the petitioner;*' (5) Set forth the amount of security given on the original appointment; *' (6) Set diction, see note in 1 L.R.A.(N.S.) « C. C. P. § 2629; 996 18 C. C. P. § 2629. 9 C. C. P. § 2632; and, by analogy, " C. C. P. § 2629. § 2630. i« C. C. P. § 2629; Deced. Est. L, " C. C. P. § 2631. § 45. On the right of domiciliary exeeu- ^^ C. C: P. § 2631. tors and administrators, 'or their nom- " C. C. P. § 2631. ' inees, to ancillary letters, see note in *' C. C. P. § 2631. 48 L.R.A.(N.S.) 858. " C. C. P. § 2632. ■ " See § 787, infra. 565 NEW YORK ESTATES AND SURROGATES § 502 forth the (a) name, (b) residence and (c) amount of claim so far as it may be ascertained of each creditor of the decedent residing within the state;*" (7) Set forth the (a) name, (b) resi- dence and (c) amount of claim so far as it may be ascertained of each persoB claiming to be a creditor residing within the state.* The authentication of the copy of the will and the foreign letters, if any, accompanying a petition for ancillary letters testamentary or of administration c. t. a. must be made as follows: — The copy of the will admitted to probate or established, and the foreign letters issued or granted in a foreign country must, (1) be authenticated in the manner prescribed by the laws of such foreign country, and. (2) must be further authenticated by a certificate of a judge of a court of record, or by the chief officer of the department of justice of such foreign country, to the effect that such authentication is in conformity with the laws of such foreign country and that the court or officer by which or whom such will was so admitted to probate or such letters were granted was duly authorized by the laws of such foreign country to admit wills to probate or to grant letters' testamentary or of administration and to keep such wills and letters and records thereof; and (3) the signature and ofiicial, character of such judge or court of record or chief officer of the de- partment of justice shdll be attested by a consular officer of the United States, resident in' such fdreign country, under, the seal of his office.'* The copy of the will admitted to probatey and the let- ters granted, in any state, other than New York, or in any territory of the' United States muyt (1) be authenticated by the seal of the court or officer, by which or whom such will was admitted to probate or such letters granted, or which or who has the custodj"^ of such will and letters or .of the record thereof, and (2) the signature of a judge of such court, or the signature of such, officer, and (3)! the signature of the, clerk of such court or officer, if any; and must (4) be further authenticated by a certificate under the great or principal seal of such state or territory and (5) the signature of the officer who h^ the custody of such, seal to tlie effect (a) that the court or officer by which or whom such will was admitted to probate or such letters were granted was duly author- ized by the laws of such state or territory to admit wills to probate or to grant letters testamentary or of administration and to keep such wills and letters and records thereof; (b)- that the seal of such court or officer affixed to such copy is genuine; (c) that the officer making such certificate under seal of such state or territory verily believes that each of the signatures attesting such copy is genuine.** 2" C. C. P. § 2632. 1* § 2629 C. C. P. and § 45, Dee. 1 C. C. P. § 2632. Est. Law. 566 §§ 503, 504 EXECUTORS Every petition fbr ancillary letters testamentary must set forth the name of the state comptroller as a person to be cited and a true and correct statement of all the decedent's property in this state and the value thereof ; and upon the presentation thereof the surrogate must issue a citation directed to the state comptroller; and upon the return of the citation determine the transfer tax ; and his decree awarding letters may contain any provision for the payment of such tax or the giving of security therefor which might be made if the state comptroller were creditor of the decedent.^ § 503. Id.: Supplementary Executors. — Supplementary letters testamentary must be issued after a will has been probated to a per- son named as executor in the will who was disabled on its pro- bate from appointment^ because of infancy or alienage upon a petition being filed showing: (1) That the will has been duly probated; (2) That the person seeking supplementary letters was named as executor in such will; (3) That at the time of such por- bate such person was under age or an alien; (4) That such person's disability of infancy or alienage has been removed; (5) That the execution of the provisions of the will is not completed; (6) That such person is otherwise competent by law to serve; and praying (7) That supplementary letters testamentary be issued to such person in the same manner as the original letters; and then, on qualification by such person, supplementary letters testamentary issue to such person in the same manner as the original letters, au- thorizing' him to join in the execution of the will with the per- sons previously appointed.' Under a will nominating one execu- tor ; another in case of such one's death:; and in case of such other's "failure to act," a third, on the successive qualification and death of the two first named,, the third is entitled to letters.* § 504., Id.: Successor Executors.^A; successor to an executor may be appointed only when such appointment is necessary in, order to comply with the express terms of the will if he is only one of two or more executors^ and on his death or revocation of his let- ters, another executor or other executors survive him; and such sui'vivor or survivors may proceed with and complete : the adminis- tration of the estate pursuant to the letters, and may continue any action or special proceeding brought by. or against all the execu- tors.* But when air the persons to whom letters testanaentarj'^ have been issued die or the letters of all have been revoked by a decree of the surrogate's court, such court has the same power to « Tax Law, § 228. « C. C. P. § 2563. 3C. C. P. § 2626. * Matter of .Coudert, 153 A. D. 196, 138 Supp. 296 (1912). 567 NEW YORK ESTATES AND( SUBROGATES §1 505, 506 appoint an administrator c. t. a., or administrators: c; t. a,, as succes- sor or successors to the person or persons whose powers have ceased as if letters had not been issued to. them ;,p,nd such .^upcessor or suc- cessors may complete the, execution of the trust committed to his or their predecessor or predecessors; pontihue in his or ttieir own name or names a. civil action or special, proceeding pending in favor of such predecessor or predecessors, and enforce a judgment.* A testator may clothe persons who may administer his icstate under the law after the death of his executor with , the. powers and rights of an executor or trustee unde^ ;the^ will, so as to otpriat© the neces- sity of filling the vacancy on his executor's death. f The petition for the appointment of a successor to an executor, must conform in general to the standard form of petition in a surrogate's court's proceeding.'' It must,! of course, show that such: appointment is necessary in order to comply i with the express terms of the will, if a coexecutor survives or continues to act after the death or disabil- ity of the executor for whom a successor is sought.* If all the exec- utors die or their letters are revoked this fact must be shown in the petition for the appointment of an administi'ator c. t. a. as their successor.' § 505. Executors: Appointment and Letters, Citation, In General. — The citation issued on a petition for letters testamentary is the same citation as is issued on the petition for probate of the will naming the executor, and is discussed in that connection.^" § 506. Id. : Ancillary Executors. — A citation must issue on pres- entation of a due petition for ancillary letters testamentary to the state comptroller and to the persons named in: the petition as creditors of the decedent resident in the state.^* It may also issue generally to all creditors of the decedent or persoiis claiming to be svich.^^ Its contents are in general those of a' standard cita- tion in any proceeding in a surrogate's court. ^' The object must be stated to be that the persons cited show cause why ancillary let- ters testarnentary should not be granted; ^* and, if there appear to be no creditors or transfer tax and letteTs are desired without bond, the citation may also demand that cause be shown why such letters should not issue without a bond;" but if feuch a provision is in the citation, it must be directed generally to all creditors within the state and be served by publication." This citation may be a « Matter of Baker, 26 Hun, 626 " C. C. R § 2632; Tax Law, § 228. (1882). 12 C. C. P. § 2632. ' See § 787, infra. " C. C. P. § 2558. , « C. C. P. § 2563. 14 C. C. P. § 2559. ' 9 C. C. P. § 2563. » C. C. P. § 2633. 1" See § 428, supra. " C. C. P. § 2633. 568 §§ 507, 508 EXECUTORS distinct one instead of being incorporated in the one issued on application for the letters.^'' § 507. Id.: Notice to Beneficiaries. — A notice, with proof of mail- ing of a copy of it to each beneficiaryj must be filed in a sur- rogate's court in which a probate proceeding is pending, before letters are issued. The notice must: (1) Be written; (2) Be en- titled in the probate proceeding; (3) State the name of the testa- tor; (4) State that the testator's last will and testament has either been offered for probate, or probated, as the case may be; (5) State the name and post-office address of (a) The proponent, (b) Each and every legatee, devisee, or other beneficiary, as set forth in the petition for probate, who has not either (a) been cited, (b) appeared, or (c) waived citation.*' (6) If objections are filed to the probate, the notice must have the additional statement in- cluded in or endorsed thereon that objections have been filed to the probate and that they will be heard on a day or at a temi of court therein stated.*' The proof of the mailing of a copy of such notice to each of tBe beneficiaries, i. e., to each and every legatee, devise, or othfer beneficiary, as set forth in the petition for probate, must be made by affidavit.^" § 508. Id.: Objections. — Objections to the grant of letters testa- mentary may be filed by any person interested in the estate.* A person interested in an estate includes every person entitled either absolutely or contingently to share in the estate, or the proceeds thereof, or in the fund, whether as husband, wife, legatee, next of kin, devisee, assignee,, grantee, or otherwise, except as a creditor.^ Ijegatees under a will have a statutory right to make objections to the issuance of letters to the person named executor in the will.* Objections to the grant of letters testamentary may be filed at any time before the letters are issued.* The objections to issuance of letters testamentary must (1) show the interest of the objec- tant in the estate; and (2) set forth specifically one or more legal objections to granting letters to one or more of the would-be execu- tors.* An allegation of a person interested, duly verified, of his interest, who objects to, an appointment, suffices, although his in- terest is disputed, unless he has been excluded by a judgment, de- cree or other final determination and no appeal therefrom is pend- ing.* The filing of objections to grant of letters to a would-be "C. C. P. § 2633. » Matter of Briggs, 171 A. D. 52, 18 C. C. P. § 2616. 156 Supp. 947 (1916). 19 C. C. P. § 2618. * C. C. P. § 2566. «» C. C. P. § 2616, and 2618. « C. C. Pi § 2566. 1 C. C. P. § 2566. « C. C. P. § 2768. « C. C. P. § 2768. 569 NEW YORK ESTATES AND SURROGATES §§ 509-511 executor necessitates a stay by. the surrogate of such grant until the objections are disposed of.'' § 509. Id.: Hearing and Decree;-^Before : issuing a citation on an application) for letters, testamentary the surrogate must deter- mine if he has jurisdiction of the subject matter of the. proceeding (which is the probate of: the will, if letters testamentary in chjef are sought) ; and,, if citation is issued by reason pf ,his; favorable decisipn as to, jurisdiction of the subject jnatter,, wljetber, he has jurisdiction of the parties to;.the: proceeding. Then' only does the surrogate consider if he will issue or grant letters ;,,because until then a decree for pr against! letters would not be.binding.-. (Oij; the return of a citation issued on a. petition for ancillary letf^ers .-testa- mentary the surrogate must ascertain, as, nearly as , he can do so, the amount of debts dUe or claiined to be due from the decedent to residents of the state;* and issue the let]ters, if proper to do so.^ An inquiry before the surrogate as to the fitness of;, one named as executqr and trustee to hold the office may be on affidavits or in such otiher manner ,as the^surrogate, in his discretion, orders. ■''' If the surrogate holds good, any .objection against a;w;ould-be execu- tor, he must refuse letters testamentary tp such person. The de- cree granting or refusing letters testamentary is -treated in con- nection with the decree granting or refusing probate to, the will, of which it is a part; *^ except that it must be borne in mind, that it may contain provision for .payment of the transfer tax or giving security therefor. ^^ , § 510. Executors: Letters, Form. — Letters testamentary granted by a surrogate must be (1) in the name of thp people of the state; (2) attested in the name of the officer granting them; (3) signed either by the' officer granting them or by the clerk of the sur- rogate's court; and (4) sealed with the seal of the surrogate's court." If a limitation is put on the grantee's authority, it should appear in the letters, e. g., upon grant Pf letters limited to the prose- cution of an action.** § 511. Executors: Letters, Force and Effect. — Letters testamen- tary first granted to a person from a surrogate's court having jurisdiction to issue them give such person sole arid exclusive au- thority pursuant to the letters until they are revoked; and are con- clusive evidence of the authority of such person until the decree granting them is either reversed upon appeal or they are revoked." ^ C. C. P. § 2566. " See § 454, supra. » C. C. P. § 2633. , 12 Tax Law, § 228. 9 See "QualifleatioH," infra; " C. C. P. § 255S. i» Matter of Cady, 36- Hun, 122 " C. C. P. § 2559. (1885) aff'd 103 N.,Y. 678, 9 N.^E. ^^ C. C. P. §§ 2560, 2561. 442, old Code § 2637. On the validity of ants done 'under 570 §§ 512, 513 EXECUTORS Letters testamentary are either limited or general in their author- ity.^' If a limitation is put on the grantee's authority, it should appear in the letters, e. g., upon grant of letters limited to the prose- cution of an action." Once granted, letters are conclusive evi- dence of the grantor's authority until the decree granting them is either reversed on appeal or they are revoked." They are suf- ficient to establish, thf) : representative character of a plaintiff who assumes to sue by virtue thereof ; ** that if the executor has prosecuted the action to. judgment after properly sumijioning the defendants, they cannot assail the judgment and a. sale under it because of any irregularity, or even, probably, want of jurisdiction in granting the letters.^" . Letters first issued to a person from a sur- rogate's court having jurisdiction to issue them give such person sole and exclusive authority pursuant to the letters until they are revoked,^ and such person is entitled to demand and recover from any person to whom letters are afterward issued by any other sur- rogate's court the property in the later grantee's hands which be- longs to the decedent's estate.* The acts of the latei: granted done, in good faith before notice of the issue of the prior letters are, how- ever, valid ; ' and if the later grantee has commenced an action or special proceeding it may be continued by and in the iiame of the prior grantee.* § 512. Executors: Oath. — ^An official oath or affirmation is pre- scribed for every person who is to act as executor, to the effect that he will, faithfully and honestly discharge the duties of his office (describing it).' H; must be filed in the surrogate's office before letters are issued to him or he is permitted to act.® It may be taken before any officer who is authorized to administer oaths.'' § 513. Executors: Bond. — The executors who inust give bond are these: (1) Those who are required by the will appointing them to give bond; (2) Those against whom a finding has been made by the surrogate of the satisfactory establishment, on objections filed and proof talien, either (a) that their circumstances are such that they do not afford for the creditors or persons interested in the estate adequate security for its due administration, or (b) that letters afterwards revoked or held in- ^ C. C. P. § 2561; Abbott v. Cur- valid, see notes in 21 L.R.A. 147, 43 ran, 98 N. Y. 665 (1885)— letters of L.R.A.(N.S.) 634. administration. 18 C. C. P. §§ 2559-2560. * q c_ p_ §§ 2560-1. " C. C. P.- § 255§. 3 c. C. P. §§2560-1. " C. C. P. § 2560. « C. C. P. § 2561. 19 Carroll v. Carroll, 60 N. Y. 121 » C. C. P. § 2568. (1875)— letters of administration. * C. C. P. § 2568. z" Carroll v. Carroll, supra., '' C. C. P. § 2568. ' 571 NEW YORK ESTATES AND SURROGATES § 513- they are net residents of the state;* (3) Those appointed either by will made after September 1, 1914, or by an order of the surrogate's court, who are required to hold, naanage or invest any money, securities or property, real or personal, for the benefit of another, unless contrary to the express terms of the will;' (4) Those whose letters are limited to the prosecution of a cause of ac- tion, unless the surrogate dispenses with the bond." The bond given by an executor whose circumstances do not afford adequate security or who is a nonresident must be as prescribed by law * and probably must' conform to the requirements of the bond of an administrator.* Even though a will requests that no bond be required of one named executor, such a bond will be required if such an one has no business in New York beyond the manage- ment of his own property; has no stated place of business in the state; is only occasionally and irregularly in the state to do busi- ness; and lives in a state three days' travel from New York.* The bond given by an executor .appointed by will executed after, Sep- tember 1, 1914, or by order of surrogate's court because he is re- quired to hold, manage or invest moijey, etc., for the benefit of another, must be executed (1) to the people of the statg, (2) in the usual form, (^) with sufficient surety or sureties, (4) in an amount to be fixed by the surrogate.* The bond, given by an. executor whose letters limit him to the prosecution of a cause of ac- tion granted him by special provision of law or alleged to .exist in the decedent's behalf, if required at all by the surrogate, mup* be in such penalty as the ^surrogate fixes and deems sufficient.* The bond of an ancillary executor may, in the surrogate's dis- cretion, be in such a sum, not exceeding twice the amount which appears to be due froitn the decedent to residents of the state, as will, in the surrogate's opinion, effectually secure the payment of those debts; or the sums which the resident creditors will be entitled to receive from the 'persons to whom the letters are issued upon an accounting and distribution either within this state or within the jurisdiction where the principal letters were issued.® Letters may issue without bond if (a) there appear tobe no such creditors; (b) there appears to be no transfer tax assessable; and (c) a citation to show cause why such letters should not issue without a bond has been directed generally to all creditors within this state and has been duly served by publication.'' Under its pow- « C. C. P. §§ , 2564 and 2567, * Van Wyck v. Van Wyck, 22 Hun. »C. C. P. § 2639. 9 (1880). IOC. C. P. § 2592. *C. C. P..§ 2639. 1 C. C. P. § 2567. « C. C. P. § 2592. " C. C. P. .§ 2591, See C. C. P. § « C. C. P. § 2633. 2591. ' C. C. P. § 2633. 572 §S 514, 515 EXECUTORS er to modify or revoke its decrees, etc., and to direct and control the conduct of executors, the surrogate's court has power, when the facts warrant it, to compel an executor to give a bond; because the jurisdiction of the surrogate over executors is given to bring protec- tion to creditors and parties interested.' An , application for a cita- tion to show cause why an executor should not file a bond will be denied when no objection was made to his qualification before letters were issued to him.' It seems that if his present circum- stances are such as not to afford adequate security to creditors and others interested, an application should be made under subd. 6, of section 2569 of the Code.i" Approval of an executor's bond filed in the surrogate's court must be given as follows: In all counties except those contain- ing the whole or a part of a city of the first or second class, the approval must be by the surrogate; and in, all counties containing the whole or a part of a city of the first or second class the ap- proval must be either by the surrogate or a clerk in his office desig- nated in writing by the surrogate to approve all or any class of bonds or undertakings.** Approval of all bonds filed in the sur- rogate's court, by whomsoever given, must be endorsed on the bond." The rules of your surrogate's court may provide that executors must personally qualify in court as principals on their bonds.*' § 514. Executors: New Bond, Grounds. — The reason given for re- quiring a new bond or sureties or additional sureties of the prin- cipal in such bond must be one of the following: (1) That a surety on a bond is insufficient, (2), That a surety on a bond has removed from the state; (3) That a surety on a bond is about to remove from this state; (4) That a surety on a bond is dead; or (5) That a bond is inadequate in amount." § 515. Executors: New Bond, Petition. — A new bond from the principal (executor) on it may be required in certain cases by or- der of the surrogate,: either on the petition of the sureties to be released, or on the petition by parties interested in the estate or creditors of the decedent, or on the petition of the principal (execu- tor) himself.*^ The , executor who is principal on a biand which he has been required to file may ask for leave to file a new bond or for a new surety in a proceeding which is pending for the inter- mediate judicial settlement of his account, upon good cause shown.*' « Matter of Wisehmanr, 80 ,A. D. *« C. C. P. §§ 2575; 812. 520, 80 Supp. 789 (1903)., *» See, e. g., Rule 18, N. T. 9 Est. of Vesely, N. Y.. L. J. Jan. ** C. C. P. § 2577. 30, 1915, (N. Y. Surr.) i' C. C. P. §§ 2579; 2581. 10 Id. *« C. C. P. § 2581. »*C. C. P. §§ 2575; 812. 573 NEW YORK ESTATES AND SURROGATES ' ters may be sought are numerous, an,d £i.re considered under these headings: (1) Legal incompetency or disqualification; (2) Un- fitness for Office; (B) Eefusal to Obey Directions or Law; (4) False Suggestions to get Letters; (5) Happening of Contingency; (6) Inadequate Circumstances; (7). Removal from state. § 522. Id. : Grounds, Legal Incompetency or Disqualification. — TjCgal incompetency qv disqualification on appointment of, or on issue of letters to an executor, is ground for petitioning for revoca- tion of the letters; provided the ground for the objection did not exist before the letters were granted or was not put forward theix by the petitioner or a person represented by him.,** Legal incom- petency or disqualification since the appointnaent of, or the issue of letters to, an executor^ is also ground for petitioning for revoca- tion of his letters." ' ' § 523. Id.: Grounds, Unfitness for Office. — Unfitness for the due execution of his office is ground upon which to petition to revoke an executor's letters.' If the executor has made a fault which con- stitutes a statutory ground for an applicaticn to revoke his letters the surrogate must revoke them, and the fact that the executor's continuance in office can' do no harm is foreign to the question of his fitness.** ■ The statutory reasons for the unfitness of an execu- tor for the due execution of his office are (a) waste or improper ap- plication of m(iney or other assets in his hands, (b) investmfeiit of money, in securities unauthorized by law, (c) othei" improvident management or injury of the ^property committed to his charge, (d) other misconduct, in the execution of his office, and (e) dis- honesty, drunkenness,/ improvidence or want of vinderstanding." Waste, improper application of the money or other assets in his hands, investment of money in securities unauthorized by law,, or other improvidesnt pianagement , or injury to the property com- mitted to his charge, shows an executor's unfitness for the due execu- tion of his office and is ground for petitioning to revoke his letters. An executor, (also testamentary trustee) who opened accounts in his own name, made investnlents in violation of the will alone and' without consulting his cotrustees, drew cheques to his own order loaned money in unauthorized investments, took large sums as *" Id, Subd. 7, added by' L. 1916, c. " Matter of Engel, 83 Misc 675. 588. (1914), or 146 Supp. 793. " C. C. P. § 2569. • " C. C. P. § 2569, subd. 2. 1* C. C. P. § 2569. 578 § 523 EXECUTORS commissions before legally allowed to do so, and tried to induce his co-executor to place large sums in Ms hands, should have his let- ters revoked and be removed." The waste or improper applica- tion by an executor justifying revocation of his letters refers to a squandering or misapplication of estate funds whereby the estate is lost or diminished in value ; and the idea of the phrase ''improper- ly applied" is akin to that of the word "wasted." ^* The mere fact that executors paid out of estate funds certain amounts for legal services in the estate's administration is no ground for revoking their letters when the services were necessarily rendered, the amount was not excessive and three times the amount was in the estate's treasury to the credit personally of those who were execu- tors." There is no such unlawful investment of estate money in real estate outside the state as to furnish ground for the removal of executors when the property they bought had been bid in by the testator nearly a year before his death, though he did not take a deed from the sheriff, and there is no proof he intended to abandon the purchase, and the executors took title to secure a margin in the property of about $1,500 over the testator's bid.^" The power of re- moving an executor is given for the protection of the estate and not for the punishment of the executor; and though unauthorized in- vestments were made by him no legal cause for removal is shown, if they profited the estate and were made in good faith.* Al- though a surrogate's court may not be able to order- the sale by an executor of real estate belonging to the estate because this would involve the assumption by the surrogate of the discretion and judg- ment committed to the executor, yet, for failure by the executor without adequate excuse to sell such realty the surrogate may revoke his letters, settle and adjust his accounts and chai'ge him with any loss to the estate which, has resulted from his misconduct.^ The letters of an executor will be revoked, if he is otherwise com- petent and offers to give bond, because he lost moneys of infants for whom he was guardian in unauthorized investments and was surcharged therewith and could not pay because insolvent, if his co-executors paid the loss, recognizing the liability therefor of the estate they represented by reason of their testator having been surety ojj the bond of the executor (revocation of those letters is sought) in "Matter of Havemeyer, 3 A. D. » Matter of Burr, 118 A. D. 482 519 (1896), or 38 Supp. 292. (1907), or 104 Supp. 29; old Code, § " Matter of Doscher, 165 A. D. 2685, subd. 2, new Code, § 2569. 193, 151 Supp. 76 (1914), old Cod«!, '^ Haight v. Brisbin, 100 N. Y. 219, § 2685, new Code, § 2569. 3 N. E. 74 (1885)^old Code, §§ 2685, 19 Id. 2605, new Code, § 2569. 2» Denton v. Sanford, 39 Hun, 487 (1886). 579 NEW YORK ESTATES AND SUEROGATES § 524 his capacity as guardian for such infants.' Other misconduct (than waste, improper application of assets, unauthorized investments, improvident management, or injury to the property) in, the execu- tion of his office, or dishonesty, drunkenness, improvidence or want of understanding, renders an executor unfit for the due execution of his office and subjects him to revocation of his letters.* An executor who fails to list in his account rent established by a su- preme court judgment to belong to his testator and who refuses to pay a creditor's claim likewise established and who makes no mention of his testator's title to the leased realty as so established although he knew of a pending action questioning title to such realty, should have his letters revoked, even though an appeal is pending.^ Retention by an executor of the purchase price over the market value of shares of stock owned by the estate sold by him with like stpck of his own is ground for his removal on his co- executor's application, even though he claims that the difference between the purchase price and market value was consideration to him for agreeing not to engage in the business of the corporation within a certain radius for a stated time.* It is ground for the revo- cation of the letters of one of two executors that his conduct is unquestionably prejudicial to the estate's best interests as showing a settled purpose to disagree with the management of his co-execu- tor, although his conduct does not amount to absolute dishonesty, improvidence or want of understanding.'' That two of three execu- tors refuse to act as such in the presence of the son of the third's whom the latter insists on bringing to all executorial meetings as her personal attorney and whose conduct is concededly offensive toward them is no sufficient justification for their removal ; because the son is in nowise related to the office of executor and the testator's in- tent is that all the: executors should act together in managing the estate.' No sufficient reason is shown for settling an executor's accounts and revoking his letters by allegations that he cannot prop- erly administer the estate as his testator wished because of the con- duct of the legatees and devisees.' § 524. Id. : Grounds, Refusal to Obey Direction or Law. — ^Wilful refusal, or (without good cause) neglect, to obey any lawful direc- tion of the surrogate, contained in a decree or order, or any pro- « Matter of Kasson; 46 A. D.;348 74 Supp. 938 (1902), old Code, §§ (1899), or 61 Sii.pp. 569. 2685, 2817. * C. C. P. § 2569, subd. 2. ' Matter of Wateraan, 112 A. D. 6 Matter of Jacobs, 5 A. D. 508 313, or 98 S«pp. 583 j app. dism'd (1896), or 38 Stipp. 1083. 186 N. Y. 534, 78 N. E. 1114. 6 Matter of Sandrocky 49 Misc. 371> » Est. of Damon, N. Y. L. J. Apr 99 Supp. 497 (1906). 29,- 1915 (Bronx Surr.), C. C. P. §§ ' Matter of Wheaton, 37 Misc. 184, 2572-3. 580 §§ 525-528 EXECUTORS vision of law, relating to the discharge of his duty, is ground for petitioning to revoke an executor's letters.'" That executor's letters should be revoked who sold estate realty and divided the pro- ceeds among his family pursuant to an alleged assignment of his individual interest in the estate; took no steps to regain possession of estate assets appropriated by his deceased co-executor when he knew of such action during the co-executor's life, except by taking an alleged assignment of the latter's individual interest in the estate ; sold estate property in the face of a restraining order ; made no attempt to collect the deceased's property ; has filed a petition in bankruptcy ; and has denied any right to property to one interested in the estate." § 525. Id.: Grounds, False Suggestion to Get Letters. — Obtaining grant of an executor's letters by a false suggestion of a material fact is ground for petition to revoke them.^^ § 526. Id. : Grounds, Happening of Contingency. — The happen- ing of a contingency upon which, by the terms of a will, an execu- tor's office was to cease, is ground upon which to petition for revo- cation of his letters.^^ § 527. Id.: Grounds, Inadequate Circumstances. — Inadequacy of circumstances, i. e., as not affording adequate security to creditors or persons interested for the due administration of the estate, is ground for the revocation of the letters of an executor who has not been required to give a bond.^' Each application to supersede an executor on the ground that his condition is precarious must be judged on its peculiar features and circutostances.-'* An executor's condition is precarious only when his conduct and character present such evidence of improvidence or recklessness in the management of the trust estate or his own estate as in the opinion of prudent and discreet men endanger the trust estate's security." § 528. Id.: Grounds, Removal from State.— Removal or proxi- Tnate removed from, the state is ground for application for revoca- tion of an executor's letters.** Executors have not "removed from the state" so as to require revocation of their letters, when they are living in another state temporarily and only on account of the health of certain members of the family." Absence from the state for which sufficient reasons are given, when there is no intent of 9» C. C. P. § 2569, subd. 3. ^^ Shields v. Shields, supra. 10 Matter of Truesdell, 40 Misc. 336 ^^ C. C. P. § 2569, subd. 6. (1903),or SlSupp. 1038. "Matter of McKnight, 80 A. D. " C. C. P. § 2569, subd. 4. 284 (1903), or 80 Supp. 251; aff'd 12 C. C. P. § 2569, subd. 5. 179 N. Y. 522, 71 N. E. 1134; old " C. C. P. § 2569, subd. 6. Code, subd. 6, § 2685 like new § " Shields v. Shields,. 60 Barb. 56 2569, subd. 6. (1870). 581 NEW YORK ESTATES AND SURROGATES § 529. becoming a non-resident and no omissioii to perform any duties ex^ cept those for which there is still time by law, is no ground for revocation of letters.*' The right to revoke letters testamentary of an executor who has removed from the state does not apply to executors who received their letters before September 1, 1914, so that when the will expressly provides that the executors need give no security and one of them had an office in the city for the regular transaction of business, the fact that executors appointed before, September 1, 1914, have removed from the state and refuse to give bond does not warrant revocation of their letters.^^ § 529. Id.: Petition. — A petition praying revocation of letters testamentary may be by some one other than the executor, or by the executor himself. The petition praying for a decree revoking letters testamentary may be presented by (a) a creditor of the testator, (b) a person interested in the testator's estate, or (c) a surety on the executor's bond.*" An executor may himself at any time present to the surrogate's court a petition praying that a de- cree be made revoking his letters and discharging him accordingly,* but only in connection with voluntary judicial settlement of his ac- count.* A person interested in an estate includes every person entitled either absolutely or contingently to share in the estate, or the proceeds thereof, whether as legatee, devisee, grantee, assignee, or otherwise ; except as a creditor.* The executors of a deceased exec- utor of an estate of which a coexeeutor survives have no standing in the surrogate's court to apply for such survivor's supercession if he gives security for the ejfecutionof his trust.* A creditor includes any person having a claim for funeral or administration expenses, or a claim or demand upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an ac- tion.* The contents of a petition for involuntary revocation of an executor's letters are in general those of the standard petition in any surrogate's court proceeding.' The grounds for revocation should of course be set forth. A petition by an executor himself for revoca- tion of his letters and discharge in connection with judicial settle- ment of his accounts must set forth the facts upon which the ap- plication is founded; and it must in all other respects conform to a petition praying for a judicial settlement of his account.* A pe- tition for revocation of letters testamentarj'' should state the facts " Matter of Magoun, 41 Misc. 352. « C. C. P. § 2678. 84 Siipp. 940 (1903). * Shook v. Shook, 19 Barb. 653 19 Est. of Purdy, N. Y. L. J. Nov. (1855). 3, 1915, old Code, § 2685, new Code, * C. C. P. § 2768. § 2569. . ' 'See § 787, infra. 2° C. C. P. § 2569. 6 C. 0. P. § 2572. * C. C. P. § 2572. 582 P 530, 531 EXECUTORS and circumstances claimed as reasons for the revocation as it is improper to allow the parties to go outside the issues raised in the pleadings.' An executor cannot resign (though a trustee can) ; but can be relieved of his duties only by an application to have his letters revoked.* § 530. Id. : Citation. — ^Whether or not a citation issues on a peti- tion by one other than the executor to revoke letters testamentary depends upon whether or not the surrogate entertains the proceed- ing.' The executor should, of course, be cited. If the petition is by an executor himself for revocation of his letters and discharge in connection with the judicial settlement of his account the surro- gate has discretion to entertain or not to entertain the applica- tion." If he entertains it, the proceedings are then the same as upon a petition for a Judicial settlement of the petitioner's ac- count,^* except that the surrogate must first determine whether sufficient reasons exist for granting the petition's prayer.** The citation's contents on a petition seeking involuntary revocation of an executor's letters, are in general those of the standard citation in any surrogate's proceeding.** The citation must be served on the executor like a citation is served in any other proceeding. To justify the issuance of a citation to show cause why an ancillary executor's letters should not be revoked two things are necessary: (1) A petition containing a statement of facts and circumstances justifying the issue of the citation; and (2) Proof by affidavit or oral testimony aliunde the petition of the truth of the allega- tions contained in the petition.** § 531. Id.: Order Suspending Executor. — The surrogate has dis- cretion, if he decides to entertain an involuntary proceeding to revoke an executor's letters, and has issued a citation in the proceed- ing, to make an order suspending the executor wholly or partly from the exercise of his powers and authority during the pendency of the proceeding.*' If such an order is made, a certified copy of it must accompany the citation and be served with it upon the execu- tor.** From the time it is made, without service, the order binds the executor and all other persons.*'' The making of such an order, however, does not affect the validity of any act within the executor's legal powers done by him before service of the order and cita- ' Matter of Burr, 118 A. D. 482 ** See §- 315, supra. (1907), or 104 Supp. 29. *« C. C. P. § 2573. * Matter of Curtiss, 15 Misc. 545 ** See § 799, infra. (1896), or 37 Supp. 586; aff'd 9 A. *« Matter of Owsley, 153 A. D. 90 D. 285, or 41 Supp. 1111 ; old Code, § (1912) , or 137 Supp. 1040. 2689. *'' C. C. P. § 2570. 9 C. C. P. § 2570. 16 C. C. P. § 2570. 1" C. C. P. § 2572. *'' C. C. P. § 2570. 583 NEW YORK ESTATES AND SURROGATES § 532 tion if the persons as to whom the act was done acted in good faith." The executor is not liable for such an act so done in good faith.^* The fact that the validity of an act of an executor done between the making and service of an order suspending him from the exercise of his duties is not affected by the mere mak- ing of such order does not relieve any person to whom he has paid or delivered money or other property as legatee of his testa- tor from liability to respond to the person lawfully entitled thereto if the executor's letters are revoked because his supposed decedent is found to be alive. ^^ § 532. Id.: Hearing, Decree and Effect. — On the return of a cita- tion issued on a petition by someone other than the executor to revoke involuntarily an executor's letters the surrogate must give the executor a hearing.* A decree may be made either revoking the letters testamientary or dismissing the proceeding upon such terms as justice requires.^ The decree revoking letters may be primarily a decree granting probate, i. e., if the decree probates a will admitted after the one under which the letters of the execu- tor in question were issued.^ If a surrogate entertains an applica- tion by an executor himself for voluntary revocation of his let- ters in connection with voluntary judicial settlement of his account, the proceedings are then the same as upon a petition for a judicial settlement of the petitioner's account,* except that the surrogate must first determine , whether sufficient reasons exist for granting the petition's prayer.^ Upon the executor's fully accounting, and paying over all money which is found to be due frorti him, and delivering over all bobks, papers, and other property in his hands, either into the surrogate's court, or in such manner as the surro- gate directs, a decree may 'be made revoking the executor's let- ters and discharging him accordingly.^ The "proof" required by statute of the truth of the allegations forming the basis of a peti- tion to revoke an ancillary executor's letters is competent legal proof of the same quality which would be required upon a hearing of the issues raised by the petition : An affidavit wholly on in- formation and belief has no probative value, nor if it refers to a petition and affidavits on file, asked to be read as part of such affi- davit, when the petition and affidavits were made in a like proceed- ing by the petitioner and affiant therein who died before a determi- nation was reached on t,he hearing, as an aifidavit used in a former 18 C. C. P. §§ 2555, 257Q. » C. C. P. 2624. 19 C. C. P. §§ 2555, 2570. . * See § 315, supra. 20 C. C. P. §§ 2555, 2570. « C C. P. § 2753. 1 C. C. P. § 2570. 8 Id. " C. C. P. § 2571; 584 I 532 EXECUTORS proceeding cannot be used in a later one unless the afRant can be prosecuted for perjury if its allegations prove false nor unless the affiaiit could testify at the trial.'' The surrogate has discretion by his decree in an involuntary 'proceeding to revoke letters testamen- tary to require the executor to account for all moneys and other property received by him and to pay and deliver over such money or other property in his hands either to the surrogate's court, the executor's successor in office, or such other person as is authorized to receive it.' The surrogate may also make a decree without preju- dice to an action or special proceeding then pending or thereafter to be brought for the purpose of requiring the executor to account and pay and deliver over the money or property to the depositary.® The revocation of letters testamentary in an involuntary proceed- ing therefor does not affect the validity of any act by the executor within the powers conferred by law upon him, or make him liable for any such act done by him in good faith, if the act is done be- fore service of citation in the proceeding, and the party to whom the act relates acted in good faith ; or if the act was done after service of the citation but before entry of the decree revoking his letters, and no order was made suspending his powers ; or if the surrogate, not- withstanding the pendency of the proceeding, permitted him so to act." Though acts of an executor pending a proceeding to revoke his letters are valid, yet any person to whom he has paid or de- livered money or other property as being the legatee of the testator is liable to respond to the person lawfully entitled thereto if the grounds upon which the revocation is based is that a will of the de- cedent is discovered which revokes the prior will under which the letters testamentary in question are granted." If the executor is also testamentary trustee of his testator's estate, the decree revoking his letters testamentary does not affect his power or authority as trustee unless the petition praying for revocation also sets forth facts sufficient to entitle the petitioner to present another petition pray- ing for his removal as testamentary trustee, and so prays.^^ Revoca- tion of letters testamentary by decree of the courts of the decedent's domicil ipso facto abrogates the executors' powers, not only under such letters but letters granted in this state so that other persons granted letters of administration in the state of decedent's domicil are entitled forthwith to ancillary letters here without notice to the executors.** Not till his letters have been revoked or his resigna- » Matter of Owsley, 153 A. D. 90 " C. C. P. § 2556. <1912), or 137 Supp. 1040. i^ q c_ p gg 2640 ; 2570. « ,C. C. P. § 2555. " Matter of Gilleran, 50 Hun, 399, 9C. C. P. § 2555. 3 Supp. 145 (1888), old Code, § 10 C. C. P. § 2555. 2695. 585 NEW YORK ESTATES AND SURROGATES § 533 tion been accepted does an executor's right to the possession of estate assets cease, e. g., after he has secured a decree settling his account, charging him with a sum he had deposited in bank for safe-keeping, directing him to pay such sum over to his appointed successor, but not accepting his resignation or revoking his letters till he has made such payment, he may get, by action or otherwise and in his name as executor or individually, that sum from the bank, as he must have it to comply with the decree, and the transaction rests entirely between himself and the bank." § S33. Administration Expenses, In General. — The expenses of administering an estate consist of such just, reasonable and neces- sary outlays as an executor may lawfully make in the management of his testator's estate. They include the reasonable expense of Ob- taining and continuing his bond, if a bond is required; such com- pensation for legal services rendered him in connection with his official duties as are just and reasonable; and his commissions." Upon his accounting the surrogate may allow an executor a reason- able sum not exceeding ten dollars for each day necessarily occu- pied in preparing the account and decree thereon.^^ This is in the nature of an expense of adnjinistration. "Expenses of administra- tion include ' such disbursements as a representative is called upon to ma,ke in securing the proper and orderly settlement of the affairs of the decedent. The commissions of the representative are not to be included, for these rather constitute, in partj at least, the pay of the representatives for seeing that the expenses of. administra- tion are incurred and, paid." " The distinction between costs and expenses of administr?ition is that costs come into existence only under a decree or order while expenses of administration are paid before the accounting, when the decree is rendered. ^* 1 - Administra- tion expenses, must be paid before f jineral expenses.** The actual and necessary expenses of administration for which an executor must be reimbursed are, those cpntr^cted in good faith, and with rea- sonable judgment, whether with or without the advice of counsel.*" Executors are allowed a reasonable time in which to break up their "Ven Buren y. First National 20, 1914 (N. Y. Surr.) C. C. P. § Bank, 53 A. D. 80 (1900), or 65 2686. Supp. 703; aflPd 169 N. Y. 610, 62 20 Matter of Huntley, 13 Misc. 375, N. E..1101. 35 Supp. 113 (1895), old Code, § " C. C. P. §§ 2692, 2753. 2730. *^ C. C. P. § 2747. On allowance of expenses of busi- " Matter of Pray or Swezev, 40 ness as costs of administration, see Misc. 516, 82. Supp. 807 (1903)— note in 40 L.R.A.(N.S.) 229. construing expression in. will'. On the allowance to executor de *' Matter of Brower, 71 Misc. 398, son tort of disbursements or pay- 130 Supp. 191 (1911). I ■ ments, see note in L.R.A.1915D,'948. " Est. of Kunkler, N. Y. L. J. Oct. 586 §§ 53^536 EXECUTORS testator's domestic establishment and to discharge his servants ; and they will be allowed payments to servants needed to keep open their testator's residence, over which they had power of sale, and to pre- serve the expensive furniture and heirlooms, and to exhibit them and the house to intending purchasers.^ § 534. Id.: Services Which Executor Should Render. — ^Executors cannot employ, to act as agent of the estate in performing adminis- trative duties, either a stranger or one of themselves ; although cir- cumstances may render it wise and prudent for them to employ a stranger, or even one of themselves, to perform nonadministrative services for the estate.* An executor cannot be allowed fees paid an attorney to collect interest, look after repairs, procure and pay tax bills; because it is the executor's duty to do these things.* An executor may be allowed amounts paid by him to a collector; but he has the burden of proving that the services were rendered and their value.* An executor given power of sale of his testator's real- ty may employ, and be allowed the commissions of an agent to sell a part of the realty if an ordinarily good business man would have employed an agent under the circumstances existing at the time of such employment.^ A husband of a testatrix can be allowed a proper amount for caring for her property between her death and the appointment of a temporary administrator; but he cannot be allowed anything for doing duties which a representative should have performed.^ § 535. Id.: Travelling Outlays. — It is proper to allow one named executor the expense of coming from the state where he resides to New York where the will is proved by reason of the knowledge of the testator when naming him that such journey must necessarily be made to enable him to qualify; but it is not proper to allow him for subsequent trips which are not necessary because an agent could have been employed to do the work done by the executor for which he made the trips and for less money than the trips cost.'' § 536. Id.: Legal Services, In General. — Reasonable counsel fees incurred by an executor in the course of the administration of the ' 1 Matter of Watson, 86 Misc. 588 * Matter of Eainforth, 40 Misc. 609, (1914), or 148 Supp. 902. 83 Supp. 57 (1903). 8 Russell V. Hilton, 80 A. D. 178 , ^Matter of Bielby, 91 Misc. 353 (1903), or 80 Supp. 563; afPd 175 (^?f^V.,°^• u-v.^P^i / . * v. N. Y. 525, 67 N. E. 1089; Matter of , S*" *^^ liability of estate for bro- Wagner, 40 Misc. 490, 82 Supp. 797 te^s^ commissions, see note m 64 (1903)-payment at unusual rate to "s Matter 'of Ogden, 41 Misc. 158 executor's son for managing real es- (^ggg)^ ^^ gg g^pp 977. ^^^^ ^^^ g tate. months' care ■when estate quite larere. 3 Matter of Arkenburgh, 13 Misc. 'Everts v. Everts, 62 Barb. 577 744 (1895), or 35 Supp. 251. (1862). .587 NEW YORK ESTATES AND SURROGATES § 536 fsstate are proper expenses) of administration and must be allowed him on his accounting from the estate.* The allowance must be to the executor — not directly to counsel, and the amounts sought to be allowed should be set forth in the executor's account as already paid, so that they may be settled by the surrogate.^ If one of several executors honestly and ■ not .Capriciously believeS' that the method of an original attorney of defending an attack; on probate of the will is improper, he may charge the expense of retaining addi- tional counsel to fight against; the opposition to probate and issue of letters, when such retainer is reasonably beneficial to the estate: as the right (though perhaps not the duty) of an executor to present the will for probate and insist on the issue to himself of letters car- ries with it the allowance of legal expenses incurred in so doing.*" As executors employing attorneys in estate affairs are responsible for the legal fees in their individual, and not in their representative capacity, the question before the surrogate on an executor's account- ing in which allowance is sought for legal expenses is not one of just compensation to the attorneys but of the necessity of the dis- bursement for their fees.** Executors cannot be allowed amounts paid for services of counsel during the period the executors were actually enjoined from acting as such.*^ The burden is on an ex- ecutor of establishing the necessity, propriety, fairness and reason- ableness of counsel fees charged to the estate in his account.** An agreement by an attorney on receipt of a note to him by executors as individuals not to make any further personal claim against the executors for services but only against the estate or such individuals as executors confines him to his remedy against the estate or the executors as such.** When it is held that payments by executors to counsel are excessive the executors will be surcharged not only with the excess but with the amounts paid expert witnesses whom they produced on the cdntest to support their claim for an allowance of the disputed payments for counsel fees.** An executor is properly disallowed some part of his claim for counsel fees in preparing his account and charged with the losses resulting when he kept no ac- « C. C. P. §§ 2692, 2753. attack upon will see note in 26 L.R.A. 9 C. C. P. § 2692, Seaman v. White- (N.S.) 757. head, 78 N. Y. 306 (1879). ** Matter of O'Brien, 5 Misc. 136 On the liability of estate to attor- (1893), or 25 Supp. 704. ney employed by personal represent- ** Matter of O'Brien, 5 Misc. 136 ative, see note in 25 L.R.A.(N.S.) (1893), or 25 Supp. 704. 72. *8 Matter of Arkenburgh, 13 Misc. *» Matter of Eraser, 165 A. D. 441, 744 (1895), or 35 Supp. 251. 150 Supp. 774 (1916). ** Brkckett v. Ostrander, 126 A. On the right of an executor to al- D. 529 (1908), or 110 Supp. 779. lowance for attorney's fees for serv- ** Matter of Rowland, 153 A. D. ices in attempt to establish or resist 327, 137 Supp. 1010 (1912). 588 §§ 537, 538 EXECUTORS . count except to enter items in pencil and ink in a pocket memoran- dum book which required the use of a magnifying glass to decipher them, however bona fide may have been his conduct; because the law demands reasonable care and due diligence of a trustee.^* § 537. Id.: To Executor Individually. — An allowance to an execu- tor or testamentaiy trustee for counsel fees paid by him in resistin.i^ an attempt to remove him from his office is permissible only when paid in the course of his administration of the estate or fund and for its benefit, i. e., if no grounds for the attack existed, he should be allowed such payments, but if ground for attack did exist, he should not be allowed such payments." An attorney who does work for one of two executors in the one executor's individual ca- pacity has no lien on assets of the estate in his hands.^* § 538. Id.: How Fixed. — In determining the amount to be al- lowed for reasonable counsel fees the elements to be considered are (a) tlie work actually done, (b) the amount involved, (c) the standing, reputation and learning of counsel, and (d) the result of the services.*' Not only the ability of counsel and their success in the litigation, but the size of the estate, must be considered in determining legal fees; so that if attorneys accustomed to receive large fees care to engage in litigation concerning a sinall estate, they must be satisfied with correspondingly small remuneration.^" Courts will not limit attorneys' fees to specified and detailed bills of particulars, with an amount for each item ; but will arrive at the reasonable fee to be paid by considering, the amount of the estate,. the character and extent of work .done, the time taken in its per- formance, the results attained and the standing and reputation of the attorneys.'' $520 for legal services - through a contested ac- counting, by six people in an estate aggreigating $27,000, involving the determination of the difficult question of the grant of a power of sale to the executor, is proper.'' In the discussion of this sub- ject in the chapter on "Administrators" exanaples of proper fees in various proceedings are discussed.' "Matterof Van de Veer, 63 A. D. 2" Matter of Jones, 28 Misc. 599- 495 (1901), or 71 Supp. 849. ' (1899), or 59 Snpp. 1020; estate " Matter of Titcomb, 80 Misc. 612, $8,000, $4,000 fee cut to $2,000 al- 142 Supp. 1030 (1913) — invested in though' work was worth $4,000 if unauthorized securities, sold them ability and success alone considered, without loss and reported he held * Matter of Sewell or Thornton, 32 the proceeds as trustee, held, not al- Misc. 604 (1900), or 67 Supp. 456. lowed counsel fees, * Matter of Bielby, 91 Misc. 353; " Lawrence v. Townsend, 88 N. Y. (1915), or 155 Supp. 133. 28 (1882). 'See § 206, supra. i» Matter of Arkenburgh, 13 Misc. 744 (1895), or 35 Supp. 251. 589 NEW YORK ESTATES AND SUBROGATES § 53!> § 539. Id.: Court Expenses.— The general rule is that trust prop- erty should reimburse a trustee for all his charges and expenses properly incurred in the execution of the trust, including the cost of litigation in relation to the trust; fund when there is no evidence of bad faith on his part.* "A testator in naming an executor gives him an implied authority and direction to do all he reason- ably can to prove and carry out the will, and this carries with it the right to charge the estate with.the reasonable expense." * An ex- ecutor of a New York resident is properly allowed the expenses of probating in New Jersey his testator's will when the latter left realty there devised to the executor in trust.* An amount paid by a per- son named as executor in a will to attorneys in proceedings for the will's probate, even though probate was finally denied, cannot be recovered of the attorneys by an administrator d. b. n.; because while such an amount is not a. debt against the estate it is a charge upon it and is a necessary and proper expense of administration.'' Expenses incurred in obtaining the testimony of witnesses on con- test of a testator's will are not expenses of administration, but must be paid by the parties to the coptroversy.* An executor should be repaid legal fees in carryingto the court of appeals a novpl question in a contested probate proceeding of the will naming him, as to its execution although his success in probating the will in the sur- rogate's court was negsttived by a reversal by the appellajte division and its affirmance by the court of appeals ; because the testator was responsible for the defective execution ; ^ the fact that the executor was personally interested in the result, while it does not alter his right to compensation for the liabilities he had incurred in the liti- gation, is properly to be, considered in arriving at the amount to be allowed him.* After a judgment of the supreme court declaring in- valid the probate of a will by a surrogate has been filed in the, surro- gate's office the executor named in the will cannot use the estate funds to prosecute an appeal; but must either require the legatees and devisees to come in and bear the expense, or prbsecute, the ap- peal on his own responsibility, relying upon the court which will finally pass on the questions of costs and allowances to direct that he be reimbursed." Executors are properly allowable from the * Young V. Brush, 28 N. Y. 667 « Matter of Blair, 28 Misc. 611 (3863). 55 Supu. 425 (1898), old Code. S * Douglas V. Yost, 64 Hun, 155 2672. (1892),orl8 Supp. 830. » Matter of Blair, 28 Misc. 611 6 Young V. Brush, 28 N. Y. 667 (3899), or 59 Supp. 1090. (1863). "Matter of Cavanau^h, 72 Misc. 'Shaffer v. Bacon, 35 A. D. 248 5S4, 131 Supp. 982 (1911). (1898), or 54 Supp. 796; aff'd 161 N. Y. 635, 57 N. E. 1124. 590 §S 540-542 EXECUTORS estate the counsel fees paid by them in upholding a clause in a will declared invalid by special term, declared valid on the executors' appeal to the appellate division, and again declared invalid on appeal by others than the executors to the court of appeals; because it was the executors' duty to defend the will, they were not compellable at their personal risk to acquiesce in the deci- sion of special term, its reversal by the appellate division is a complete justification of their appeal, and their duty required them to defend in the court of appeals their success in the appellate division. ^^ An executor is properly allowed to retain from the general estate moneys for services rendered in a proceeding to com- pel him to account for the interest of a life tenant under a separate trust from that created in the residuary clause of the will when, on the termination of the life estate, the fund went into the residuary estate.^* The surrogate cannot compel an executor to pay the fees of a referee appointed to hear and determine questions on objec- tions to his accounts.^' On his accounting an executor cannot be allowed the costs and expenses of an appeal by him in the account- ing proceeding if the appellate court, in whose discretion the allow- ance of costs vested, did not allow them.** Although an executor may be allowed the expense of a reference on his dispute of a' claim for funeral expenses, he cannot, if the referee holds them rea- sonable, be allowed the expense of an appeal from the decision.** § 540. Last Illness, Burial and Funeral Expenses. — The subject of last illness, burial and funeral expenses is fully treated under the heading relative thereto in the chapter on "Administrators," above, to which reference is made.** § 541. Assets and Personalty. — The subject of "Assets and Per- sonal Property" is treated in the chapter on "Administrators" and reference is made thereto." There is discussed: (1) what are as- sets; (2) discovery of assets; (3) collection of assets; (4) custody of assets; (5), appraisal of assets; (6) inventory of assets; (7) dispo- sition of personalty^-power and duty so to do; to pay debts, and legacies; under advice of court. § 542. Debts Of and Claims Against Decedent.^The subject of "Debts, of and Claims Against" a testator is treated under that head- ** Matter of Title Guarantee and ** Jacques v. Elmore, 7 Hun, 675 Trust Co. 114 A. D. 778 (1906), or (1876). 100 Supp. 243; aff'd 188 N. Y. 542, ** Matter of Huntley, 13 Misc. 375 80 N. E. 111. (1895), or 35 Supp. 113; old Code, « Matter of Murphy, 11 A. D. 426 § 2730. (1907), or 106 Supp.- 183. *« See § 211, supra. 13 Est. of Dunn, N. Y. L. J. Mch. ■ " See § 217, supra. 9, 1915 (N. Y. Surr.) 591 NEW YORK ESTATES AND SURROGATES §§ 543-545. ing in the chapter on "Admiaistrators," to which reference is- made.^' § 543. Disposition of Realty. — This subject is treated, as it af- fects executors, in the discussion of the same topic in the chapter on "Administrators." " , , § 544. Accounting.— This topic is considered with reference to executors under the, corresponding subject-heading in the chapter on "Administrators." '" § 545. Legacies : Definitions!, In General. — "A general legax;y is a gift of personal property by a last will and testament, not amount- ing to a bequest of a particular thing or money, or of a particular fund designated from all sums of thp same kind. A specific legacy is a bequest of a specified part of a testator's personal estate distin- guished from all others of the same kind. A demonstrative legacy is a bequest of a certain sum of money, stock or the like, payable out of a particular fund or security. For example, the bpquest to an individual of a sum of $1,500 is a general legacy. A bequest to an individual of the. proceeds of a bond and mortgage, particularly describing it, is a specific, legacy. A bequest of the sum of ^1,500 payable out of the proceeds of a specified bond and mortgage is a demonstrative legacy. A demonstrative legacy partakes of the na- ture of a general legacy by beqtieathing a specified amount and also of the nature of a specific legacy by pointing out the fund from which the payment is to be made ; but differs from a specific legacj^ in the particular, that if the fund pointed out for the payment of the legacy fails, resort may be had to the general assets of the es- tate." ^ "A legacy is general when it is so given as not to amount to a bequest of a particular thing or money of the tefetator, distin- guished from all others of the same kind; and it is specific when it is a bequest of a specified part of the personal estate which is so dis- tinguished." ^ A gift of a cash sum and a sum due on a specified mortgage ia general except as to that part to be paid from ' the mortgage fund, as to which part it is demonstra- tive.' The importance of determiniiig the character of a leg- acy lies in this: "Specific legatees can only be called upon by the executor for abatement, upon the failure of the gen- eral personal estate to discharge debts. Until then, these lega- cies must be fully satisfied to the prejiidice of the general legatees. . . . The principal is the presuicned intention of the testator to "See, § 252, supra. ^ Seofield v. Adams, 12 Hun, 366 19 See § 284, supra. (1877). 20 See S 310, supra. * Matter of Mar^all, 80 Misc. 1 1 Crawford v. McCarthy, 159 N. Y. (1913), or 141 Supp. 540. 514, 54 N. E. 277' (1899). 592 § 546 EXECUTORS give a preference . . . from his severing specific parts of his personal estate from the rest and bequeathing them specifically." * A court proceeds: on the presumption that a testator, by a bequest, intends a real benefit to the legatee ; and, therefore, inclines to hold a legacy general rather than specific, because, if specific, it is lost if the subject of it is disposed of, extinguished, etCi* The validity of bequests depends upon the law of the state of the testator's domicil.* The law of a legatee's domicil determines the validity of the bequest and the New York courts will hold valid a bequest valid by such law though it would be illegal under New York law.' A bequest or de- vise to a creditor of the testator will not be held to be in payment of the testator's indebtedness unless the will discloses such an inten- tion.* § 546. Id. : General Legacy. — A general legacy is one which does not necessitate delivery of any particular thing or payment of money out of any particular portion of the estate.® The following- are general legacies : — A mere bequest of stock, without any attempt at a definite description ; " "I give to ^ — E $35 in money" ; ^^ a bequest of 240 shares of stock in a, certain bank (not "my 240 shares," , of which. — and of none other — testator died possessed) .^^ A gift of a stated number of shares of stock in a named corpora- tion is general and not specific even though atrthe time of the tes- tator's death he actually owned the identical number of shares of stock in such corporation which his will bequeathed." A legacy of specified, unequal, fractional portions of the contents of a safe deposit box, containing securities to different legatees is general and not specific in character." A legacy is a general one of money and not a specific one of stock when it is a^ bequest after a provision of several legacies of "shares of the capitalstock" of a corporation * Taylor v. Dodd, 58 N. T; 335 creditors, see note in L.E.A.1915B, (1874). 1156., SGiddings V. Sew9,rd, 16,N. T. 365 * Getman v. MeMahon, 30 Hun, (1859)VTiflt v. Porter, 8 N. Y. 516 531 (1883) ; TifEt v. Porter, 8 N. Y. ( 1853 ) ; Newton v. Stanley, 28 N. Y. 516 ( 1853 ) . 61 (1863) ^"Matter of Bergen, 56 Misc. 92 6 Knox 'v. Jones, 47 N. Y. 389 (1907); or 106 Supp. 1038. ' ' ngj2) Bhven v. Seymour, 88 N. Y. 469 The law governing the construction ^'^^Vim\, P«^^^ o xr v kic of devises and legacies is discussed in (iggjj^* ^- ^'"^^''' ^ ^- ^- .^" ''"rV/'.! ^'^f ■ T^.f;^ T W5=. r;oi On whether bequest of stocks, bonds ..I^f*"' .A « ^'.i ^ o^ "^"^^^ i^ &«°«'^1 "^ specific, see (1894), or 30 bupp. das. extensive note in 11 L.R.A.(N.S.) 49. « Matter of D^iley, 43 Misc. 552 w Matter of Werle, 91 Misc. 398 (1904), or 89 Supp. 538.. , (1915), or 155 Supp. 262. On the presumption of satisfac- »* Matter of Fisher, 93 A. D. 186 tion of debt by legacy or devise to (1904), or 87 Supp. 567. N. Y. E. «& S.— 38. 593 NEW YORK ESTATES AND SURROGATES §§ 547> 548 worth less than par, of ''$50,000 of the capital stock" of the corpo- ration to the executors in trust, and if the. testator "should not hold that amount of such stock in addition to the amount mentioned in the foregoinig clause . . . to take from" the testator's "other personal property an amount sufficient to equal said sum." ^^ § 547. Id. : Demonstrative Legacy. — The following are demon- tive legacies : A bequest of a sum to testator's wife with a statement that it "may be invested in bank stock. Fort Edward at "Wyoming, la., and in bonds . . . in full satisfaction . . .' for her dow- er." ^' A legacy of "the sum of $1,200, and interest on the same, contained in a bond and mortgage ; " ^'' a direction to pay from in- come $8,000 a year to testator's wife if she had a child, and $7,000 if she had no child, without any restriction that in the lattier 6vent the sum should be paid from income ; " a bequest of specified sums with a direction to a legatee to pay them from moneys due from such legatee to testator.^' A testamentary statement that a wife has $850 in money followed by a direction to the executor to pay her $150 more "so as to make her the sum of $1,000; my meaning and in- tention is to give her the' sum of $1,000," is a demonstrative and not a specific legacy, so that if such fund f aiK the executor must make it good from the general assets of the estate!^" § 548. Id. J Specific Legacy. — A specific legacy is a bequest of a specified part of a testator's personal estate distinguished from all others of the same kind, which fails if not in existence at the time of the testator's death.* A test to determine if a legacy is specific or not is whether payment, destruction or cancelation of the bequest during the testator'^ life would have destroyed the bequest;* A be- quest of "the amount due on the bond and mortgage I hold; on my mother's farm" is specific' A bequest of "any money remaining to my credit" in a named bank is a specific and not a general be- quest.* A 'bequest of "the amount due" on a specified bond and mortgage is specific in character, and if nothing was due thereon at the testator's death, the legacy is adeemed,* A bequest of "the mortgage now held by me on" stated premises "oh which there is " Matter of Anderson, 19 Misc. * Ga Nun v. Palmer, 159 A. D. 86, 210, 43 Supp. 1146 (1896). 144 Supp. 457 (1913). " Matter of Hodgman, 140 N. Y. " Dayis v. Cfandall, 101 N. Y. 311, 421. 35 N. E. 660 (189'8). ' ' 4 N. E. 721 (1885). "Giddings v. Seward, 16 N. Y. ' Matter of Bouck, 80 Misc. 196, 365(1857)." '■ 141 Supp, 922 (1913). " Pierrepoiit V. Edwards, 25 N. Y. * Matter of Werle, 91 Misc. 39S 128 (1862). (1915), or 155 Supp. 262. "Newton v. Stanley, 28 N.- Y. 61 "Matter of Boiik, 80 Misc. 196 (1863). 141 Supp. 922 (1913). ' <"> Bnders v. Enders,' 2 Barb: 362 (1848). 594 § 548 EXECUTORS now unpaid a" stated sum, is a specific legacy." A bequest of the use and control of all the testator's personalty on a farm and in a house at his decease, the legatee to use and enjoy it for comfort and support during life, is a specific legacy^ A legacy is specific when it reads "all amounts of insurance upon my life that are payable at my death shall be for the sole benefit of my wife, and accord- ingly I give and bequeath to her absolutely all the monies due and to become due and all that may be collected from every policy of insurance now outstanding or that may hereafter be issued upon my life." ' A legacy of a stated sum bequeathed the testator by a named person is in form specific and the burden is on the legatee to show it was general by reason of the facts that the fund was not definable or traceable when the will was made.' A bequest of "all the securities of which I may die possessed, and by this I intend only securities such as government bonds and bank stock" is a specific legacy.^" A bequest of "the contents of my safe deposit box in the vaults of" a certain company "consisting of jewelry, etc., except my savings bank books which are therein" does not pass a certificate of deposit found in the testator's residence at his death taken by him in place of another which was in the safe deposit box when the will was executed but was later surrendered for the new one.** The presumption that a will of personalty speaks as of the time of the testator's death may be rebutted in the case of specific legacies when the nature of the property bequeathed or the language used in making the bequest indicates the testator's intent to have the will speak as of the time of making it ; but a bequest of "the contents of my safe deposit box, in the vaults of" a certain company "con- sisting of jewelry, etc., except my savings bank books which are therein," followed by other bequests and a gift of the residue of the etate, does not pass a certificate of deposit and lease found at the testator's residence at his death, though the lease and an older certificate suiTendered in lieu of the one existing at death were in * Matter of Althaus, 94 Misc. 43 or proceeds thereof, as specific legacy, (1916). see note in 7 L.R.A.(N.S.) 592. ■» Getman v. McMahon, 30 Hun, 531 ^ Matter of Gptman, 128 A. D. 767, (1883) 113 Supp. 67 (1908). r. iu ee,.„^ „* i „*. * r* * In re Haslett, or Franklin Trust On the effect of bequest for hie of ^^ q^ -\ir;„„ r!-, /inic\ i-c- , ,, , ui • 4.-,. J <-'0- 95 Misc. 71 (1916) (Kiugs chattels consumable in tbe use under g„_, \ \ j \ a general or specifle bequest, see note u Matter of . Thompson or Gal- m 16 L.B.A.(N.S.) 484. i^gher, 217 N. Y. Ill (1916). •Matter of Tailer, 147 A. D. 741 On what passes under bequest of (1911), or 133 Supp. 122; afE'd 205 contents of, or property, efEects, etc., N. Y. 599, 98 N. E.. 1116. contained in, a place or receptacle, On bequest of policy of insurance, see note in L.R.A.1915C, 653. 595 NEW YORK ESTATES AND SURROGATES § 549 the box when the will was made.^^ A bequest of "the 30 shares of stock of the ^ — Co., owned by ine" is specific; and carries new shares of subsidiaries of such company distributed to the testator pursuaiit to a court decree that holdings of stock' in such subsidiaries by' such company were illegal.'*' ' ■ ■ A specific legacy is subject to payttient of debts, funeral and ad- ministration expenses if the perspnal' property not specifically given 'proves insufficient. '* A specific legacy to one nained executor is as subject to application for payment of' debts if the estate assets are insufficient to pay debts as other specific legacies ; and if the legatee fails to deliver it over to his coexecutors on the surrogate's' ordeir he ' is liable to be held for contempt; but if the executor has paid a firie for such conterript equal to the specific legacy's value he is entitled as executor to credit for the amount.'* § 549. Id.: Contingent, Conditional and Joint Legacies. — A con- tingent legacy is; one the enjoyment of which by the legatee de- pends upon sojiie; event. A mere postponement of the time of pay- ment will not make a legacy contingent. '° A legacy to a husband, but in case he should prevent or oppose probate. of the will,, to an- other, is not forfeited by objections, by him and examination by his attorney of the 'vsrilbnesses merely to thp extent that the surrogate would in any event have had to go ;, but is forfeited by his violation of his wife's direction in her will as to her burial, or .an action by him against the exeputor individually, for conversion of personalty used by the wife which, she bequeathed to legatees other than her husband.'^ Although a, testator may validly condition, a bequest on the. legatee not contesting the will, yet if the legatee ;ds an infant, a contest by. his special guardian for him will not avoid Ms legacy '''Matter of Thompson, ' 217 N. T. "Matter of Pye, No. 1, 18 A. D. 111,111 N. E. 762 (1916). '' '306 (1897), or 46 Supp. 350; aff'd '^''Mfitter:Of Brann, 171 A. D. 800 154 N. Y. 773, 49 N. E. 1103, old (1916). Standard, Oil Co. The fact Code, § 2284. ... that after the distribution testator '' Bushnell v. Carpenter, 92 N. Y. made a codicil making bequests 270 (1883). which could only be paid from pro- On provision in bequest or devise ceeds of such subsidiaries' stock was contemplating the attainment of a held not to change the rule. sjieeifled' age as rendering the gift "Getman v. McMkhdn, 30 Hun, contingent, see note in L.R.A.1915C, 531 (1883). 1012. On contribution as between specific '® Matter of Bratt, 10 Misc. 491, 32 legatees and specific devisees to pay Supp. 168 (1894). testator's debts, see note in 1 L.R.A. . On the validity of provision for (N.S.) 461. forfeiture by contesting and what On the order of abatement to pay amounts to a breach thereof, see notes debts as between demonstrative lega- in 68 L.R.A. 447, 21 L.R.A. (N.S.) cies and specific legacies, see note in 953, 39 L.R.A. (N.S.) 1160. 4 L.R.A.(N.S.) 922. . < 596 §§ 550, 551 EXECUTORS because it is against public policy , to prevent the coui't from acting for the infant asi usage requires." A testamentary gift, direct and independent of ihe direction of when to pay, e. g., on the happen- ing of an event named, is not contingent; i. e., a postponement of the time of payment will not of itself make a legacy contingent un- less it be annexed to the substance of the gift or be upon an event of such a nature that it is to be presumed the testator intended to make no gift unless that event happened.^* A legacy to two or more named persons, without other qualifica- tion, is a legacy to such persons as tenants in common and not as joint tenants." A legacy to a married daughter who had adopted her father's il- legitimate son and given him her husband's name on condition that such adoption be undone within six months after the testator's death and that she do not prevent resumption by the son of his bap- tismal name or else the legacy shall be void is a legacy on a void condition subsequent and the daughter takes without condition.*" § 550. Id.: Annuity and Income.— The distinction between a gift of income and of an annuity is that the former embraces only the net profits after deducting all necessary expenses and charges while the latter is a fixed amount directed to be paid absolutely and with- out contingency.* "An annuity is a yearly payment of a certain sum of money granted to another in fee for life or years. Its dura- tion is dependent upon the construction of the instrument by which it is created, and is for life, unless a different intention is mani- fest." '' § 551. Id. : Ademption and Satisfaction. — "Ademption is the ex- tinction or satisfaction of a legacy by some act of a testator, which is equivalent to a revocation of the bequest or indicates the intent to revoke." * A legacy cannot be adeemed by a gift made before the execution of the will in which the legacy was given.* The rule of ademption is predicable of legacies, i. e., of gifts of personal estate ; and not of devises, i. e., of gifts of real estate.* So, a receipt by one named as beneficiary in a will executed before the receipt of a sum "Bryant v. Thompson, 59 Hun, (1914), or 147 Supp. 396; afi'd 150 544, 14 Supp. 28 (1891) dism'd 128 Supp. 1088. N. Y. 426, 13 L.R.A. 745, 28 N. E. « Dougherty v. Thompson, 167 N. 522. Y. 472, 60 N. E. 760 (1901). "Loder v. Hatfield, 71 N. Y. 92 ^ gurnham v. Comfort, 108 N. Y. (1877) ; "Warner v. Durant, 16 N. Y. 535, 2 Am. St. Rep. 562, 15 N. B. 710 133 (1879). (1888); Matter of Crawford, 113 N. 19 Matter of Munter, 19 Misc. 201, Y. 560, 5 L.R.A. 71, 21 N. E. f)92 43 Supp. 605 (1896). (1889). ^i* Matter of Anonymous, 80 Misc. * Matter of Crawford, supra. 10 (1913), or 141 Supp. 700. * Buj^jjam v. Comfort, supra. 1 Matter of Gurnee, 84 Misc. 324 597 NEW YORK ESTATES AND SURROGATES § 551 of money as part of the testator's estate does not disqualify the bene- ficiary from taking as devisee under the same will.* An ademp- tion of a legacy arises when a will bequeaths something for a speci- fic purpose which is satisfied by an act of the testator in furnishing that thing in his lifetime.' The act must be that of the testator and not of someone else, e. g., an advancement by the testator in his life to the legatee of funds of the precise description given by the will to him to whom the advance is made, adeems or satisfies the legacy, when the will provides that advancements shall be applied on account of legacies pro tanto and the advance is entered in the testator's books, while a provision in the will that any bounty re- ceived by the legatee during the testator's life from any relative shall adeem his legacy pro tanto, even though the testator's intent that such ademption shall be held to have taken place is shown by an entry in his books, does not satisfy the legacy.' In the first case there is no alteration of the will by the testator by mere writing in a paper or book not attested or executed like a will, as there is in the second case.* So much of a legacy to pay off a mortgage as repre- sents subscriptions by the testator to Uiat end between the date of the execution of the will and his deatiti is adeemed.'" Ademption is predicable only of a specific legacy, i. e., when the thing which is the subject of a bequest is taken away so that it does not exist at the testator's death; while satisfaction applies to a general as well tis a specific legacy, i. e.^ when the testator in his lifetime becomes his own executor and gives to a legatee what he intended to be- queath him.'' Although a money payment to one named as legatee in a will, received, with the intent that it take the place of the legacy, may satisfy a legacy, it never can satisfy a devise.'^ A debt due a testator from one to whom he has bequeathed a legacy is an asset of the estate in the legatee's hands and is a satisfaction, pro tanto, of the legacy, whether it be an absolute gift or a gift of the income of a fund placed in trust for the legatee.'* A legacy under a will executed before rendition by the legatee to the testator of services in the legatee's home into which the testator was taken, boarded and *Bumham v.Gpitifort, supra. subject-matter, or payment of debt, as ' Langdon v. Aster's Executors, 16 ademption of specific legacy or de- N. Y. 9 (1857). vise, see note in 40 L.R.A.(N.S.) 542. ' Langdon v. Aster's Executors, '* Bumham v. Comfort, 37 Hun, supra. 216 (1885), aff'd 108 N. Y. 535, 2 ' Langdon v. Astor's Executors, Am. St. Rep. 562, 15 N. E. 710. supra. On gift by testator as ademption '" Matter of Gasten, 16 Misc. 125 of general legacy to donee, see note (1896), or 38 Supp. 948. in 38 L.R.A.(N.S.) 588. "Beck V. McGillis, 9 Barb. 35 '» Matter of Foster, 38 Misc. 347 (1850). (1902), or 77 Supp. 922. On disposal, loss, or destruction of 598 § 552 EXECUTORS cared for will not be deemed in satisfaction of the legatee's claim against the testator's estate if the relationship between them is not so close as to rebut an implied agreement for compensation.'* The rule that a legacy by a debtor to a creditor equal or greater in amount to the debt is in satisfaction of the' debt does not hold when the will statss the testator's intent in giving legacies to be to repay those who had been kind and good to him during his illness.^' Payments made one named as legatee both in a prior and the pres- ent will of the payor, before the present will, cannot be shown to have been in satisfaction of the legacy in the present will." If real estate specifically devised is taken compulsorily from the de- visor during his life in condemnation proceedings the devisee is not entitled to the proceeds on the devisor's death." § 552. Id. : Lapse. — A lapsed legacy is one which has never vested or taken effect: one which, though originally valid, afterwards fails because the capacity or willingness of the donee to take has ceased to exist before he obtained a vested interest in the gift.'* When- ever any estate, real or personal, is devised or bequeathed to a child or other descendant of the testator, or to a brother or sister of the testator, and such legatee^ or devisee dies during the testator's life- time, leaving a child or other descendant surviving the testator, the devise or legacy does not lapse but the property so devised or be- queathed vests in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate." The word "descendants," as used in the statute to prevent lapses of devises in certain cases does not apply to collateral relatives, but is limited to issue in the legal sense.*" The exception in favor of a legatee — child's descendant surviving a testator to the rule that death of a legatee before the tes- tator riiakes the legacy lapse does not apply when such descendant also predeceases the testator.' The exception in favor of a child to '* Matter of Enos, 61 Misc. 594, 115 legacies is taken up in ■ note in 2 Supp. 863 (1908), testatrix was aunt L.R.A.(N.S.) 467. and legatee was niece and sole legatee On bequest to a class one of wHom and devisee. died before the execution of the will i« Matter of Arnton, 106 A. D. 326 see note in 2 L.R.A.(N.S.) 580. (1905), or 94 Supp. 471. The effect of death of beneficiary '^ Clark V. Kingsley, 37 Hun, 246 of testamentary gift of an annuity be- (1885). fore its purchase is discussed in note " Ametrano v. Downs, 33 Misc. 180 in 2 B. R. C. 909. (1900), or 67 Supp. 128; aff'd 62 A. " Deeed. Est. L. § 29. D. 405, or 70 Supp. 833 ; and 170 N. "^ Gill v. Brouwer, 37 N. Y. 549 Y. 388, 58 L.R.A. 719, 88 Am. St. (1868). Rep. 671, 63 N. E. 340.= ' Matter of Rywolt, 81 Misc. 103 "Booth V. Baptist Church, 126 N. (1913), or 142 Supp. 1066; Deced. Y. 215, 28 N. E. 238 (1891). Est. L. § 29. The conflict of laws as to lapsing of 599 NEW YORK ESTATES AND SURROGATES §§ 553, 554 whom a legacy is given against its lapse on. his predeceasing the tes- tator does not obtain iji favor of, one not a child by birth or adop- tion, however long such an one may' have lived with the testator and been treated by the latter as his child.* On the predecease of legatees! over the testator, if they be not descendants of the testator their legacies lapse.^ The representative of a creditor of a decedent in a larger amount than a legacy to him in the decedent's will,' who died, before his testate debtor, may elect to accept the legacy in lieu of the claim, and the doctrine of lapsed legacies does not apply; be- cause the legacy is a price put by the testator on the claim and on acceptance of it and relinquishment of the claim a good considera- tion arises.* ' : ■ ' § 553. Legacies: Payment; Duty and Authority. — An executor may sell the personal property of the deceased at any time for the payment of legacies.' The sale may be public or private.^ It may be on credit not exceeding one year, with approved security.' Ar- ticles not necessary bequeathed must not be sold until the residue of the personal estate has been applied to the payment of debts." A court will not interfere with executorial appointments, under dis- cretionary testamentary power and direction of shares of the estate, unless bad faith or intentional misexercise of their best judgment is shown : an incidental advantage to themselves is not sufficient, but the court must be convinced that but for such benefit they would not have done as they did.' § 554. Id. : Order, Preference and Service Of. — Only unequivocal testamentary expression of an intent to have one among a group of general legatees paid before the others will create a preference of one general legatee over another, even though his payment was first directed in the will; and the burden of showing the intent is strongly on him seeking to benefit through its fulfilment.*" For example, a general legacy given for the support and maintenance of a near relative, otherwise unprovided for, or for the education of such relative, or in lieu of dower, may be preferred over other gen- eral legacies." A fund on which demonstrative legacies are * Matter of Hunt, 82 Misc. 211 » Matter of Southworth, 164 A. D. (1913),orl43Supp. 997;Deced.Est. 825 (1914), or 150 Sapp. 509; .iff'd L. § 29. , 215 N. Y. 719, 109 N. E. 1092. *Utica Trust & Deposit Co. v. The effect of executor's promise as Thompson, 87 Misc. 31 (1914), or 149 to payment of legstey upon trust re- Supp. 392; Deeed. Est. L. § 29. lations with legatee is discussed in . '^Cole V. Niles, 3 Hun, 376 (1874), note in 9 L.R.A.(N.S.) 214. aff'd 62 N. Y. 636. " Matter of WUliams, or Bielos- 5 C. C. P. § 2684. tosky, 27 Misc. 716, 59 Misc. 606 6 Id. (1899). ■^ Id. " Bliven v. Seymour, 88 N. Y. 469 'Id. (1882). 600 § 554 EXECUTORS charged must first be applied to their extinguishment and tlie bal- ance of the demonstrative legacies abate pro tanto with the general legacies; and if there is no identified fund in existence at the tes- tator's death applicable to the payment of the whole or a part of the demonstraitive legacies, the latter share pro tanto with the gen- eral legacies.^* "It will be presumed that legacies for the support and maintenance of those standing in near relations to the testa- tor, more or less dependent upon his bounty, were intended by him to have preference over others of a general character." ^' The rule that a legacy for the maintenance and support of legatees nearly related to the testator must be paid in preference to general legacies if the assets are sufficient does not apply when the related legatees are otherwise liberally provided for in the will." It is no ground for claiming that a general legacy is not subject to abatement that it is for the support and maintenance of a near relative, unless it also appears that such relative is otherwise unprovided for.^^ A legacy in consideration of a subsisting light or interest, e. g., dower, is entitled to priority over general legacies even though its value greatly exceeds that of the right or interest extinguished.'^ A will gave certain pecuniary legacies; a bequest to be paid by the executors when convenient for them without regard to the time fixed by law out of moneys derived from the sale of a farm or otherwise as seemed best to them but to be deemed subservient to all others; and the residue to the wife. The l;)equest was held sub- servient to all others of the same class and kind only, viz., general legacies; and when all other legacies had been paid, the surplus of the general estate was preserved intact for the widow and there remained sufficient from the proceeds of sale of the farm to pay the legacy in question, such legatee was entitled to immediate payment and also to interest though one year had not passed since the execu- tor's appointment. '' When a testator's assets are deficient to pay his debts and discharge specific and general legacies the general legacies must abate in proportion to the deficiency unless the. real On whether a legacy given to a 358 (1908), or 110 Supp. 694; aff'd creditor in satisfaction of his debt is 193 N. Y. 672, 87 N. E. 1129, old entitled to priority over other legacies Code, § 2721, new Code, § 2688, of the same class, see note in 2 B. R. sister. C. 509. '^ Matter of the McKay, 5 Misc. 12 Matter of Warner, 39 Misc. 432 123 (1893), or 25 Supp. 725; Matter (1902), or 79 Supp. 363. of Woodbury, 40 Misc. 143 (1903), " Scofield V. Adams, 12 Hun, 366 or 81 Supp. 503. (1877). "Van Rensselaer v. Van Rensse- 1* Matter of Carr, 24 Misc. 143, 53 laer, 113 N. Y. 207, 21 N. E. 75 Supp. 555 (1898). (1889). 15 Matter of Wenner, 125 A. D. 601 NEW YOJBK ESTATES AND SURROGATES § 554 estate is charged with the payment of the debts.^' The doctrine of. marshaling assets as applied to the. settlement of estates is. such, an arrangement of the different funds under administration as will enable all parties' having equities therein to receive their due pro- portion notwithstanding any intervening 'interests, liens or other claims of particular persons to prior satisfaction out of a portion of these funds.^^ Personal property of a testator should first be dis- posed of to pay legacies.^^ Creditors of one having ainple person- alty and also an absolute power of appointment over realty are to be paid first from the absolute,: general personal estate and. not out of the real estate over which there' was power of appointment.* The ordinary rule that expenses of administration,; payment of debts and funeral expenses and commissions, should be deducted from, the residuary estate does not apply if the testator prefers the resid- uary beneficiaries by his will to other beileficiaries;* Legatees of a testator who appointed a different executor for two or more dif- ferent states, if on accounting by the executor of itheir state it ap^ pears there are not sufficient assets to discharge their legacies in full, must seek their remedy in the courts of the state for which another executor was appointed if there are there sufficient assets.' If they need the name of the executor of their own state to. enforce their rights they must either obtain his permission on indemnifying hiin against harm from its use or by resort to the surrogate to com- pel the executor to allow them so to use his name.* An executor has but a qualified title to property specifically beqiieathed, i. e., the right to apply it in discharge of debts after first exhausting all other property applicable to that purpose ; so that if he assents to de- livery of the specifically bequeathed property to the specific legatees they acquire a perf eci legal title, and in case the remaining property of the testator is insufficient to pay his debts the recipients of the specific legacies are liable to pay the amount or value of the legacies received by them.' "Hoes V. Van Hoesen, 1 N. Y. * Matter of Frankenheiioier, 195 N. 120 (1847). T. 346, 133 Am. St. Rep. 803, 88 N. On the order of abatement to pay E. 374 (1909) — general' legacies in debts as between demonstrative lega- certain amount and residue in trust cies and specific legacies, see note in with preference to cestuis que trustent 4 L.R.A.(N.S.) 922. to general legatees if "my total es- 1^ Earmers' Loan & Trust Co. v. tate" insufiicient for both. Kip, 192 N. Y. 266, 85 N. B. 59 « Sherman v. Page, 85 N. . Y. 12,T (1908). (1881). ^^ Farmers' Loan & Trust Co. v. * SJierman, v. Page, supra. Kip, 192 N. Y. 266, 85 N. E. 59 » Blood v. Kane, 130 N. Y. 514, 15 (1908). i .■ L.R.A. 490, 29 N. E. 994 (1892). * Farmers' Loan & Trust Co. v. Kip. supra. 602 S 555 EXECUTOKS § 555. Id.: Time Of Payment. — A legacy must not be paid by an executor or administrator c. t. a. before the completion of the publication of notice to creditors, if such notice be published; or before the expiration of one year from the time of granting letters testamentary or of administration, if no such notice be published ; unless directed by the will or by a decree on an accounting to be sooner paid.* Bequests of specific articles of property, other than securities, representing money, may be delivered at any time in the discretion of the executor.'' Legacies are generally payable one year from the testator's death when no time is specified in the will for their payment.^ No legacy should ordinarily be paid by an executor until after the expiration of one year from the time of grant of letters testamentary or administration c. t. a. unless direct- ed by the will to be sooner paid.* A complaint in an action against the legatees or. heirs of a deceased debtor does not state facts suf- ficient to constitute a cause of action when the action is begun less than a year after the testator's death, and no payment or distribu- tion to the defendants alleged, because the remedy of pursuing suc- cessors in interest (e. g., legatees) of a deceased debtor is based on the fact, and to the extent only,, of assets paid or distributed and nothing of the kind is shown. ^^ A legatee may have part of his legacy paid by direction of the surrogate before the executor's ac- count has been made and settled if this can be done without prej- udicing the rights of creditors, other legatees or persons interested even though the legatee by the will is not to have any part of his legacy till he has accounted for and settled the accounts charged against him on the testator's books for moneys advanced, if he ac- counts and offsets counterdemands and charges against the tes- tator, as actual payment of the book account is not a prerequisite to his receiving any part of his legacy.*^ An executor or adminis- trator c. t. a. should ordinarily discharge a specific legacy after the expiration of one year from grant of letters by delivery thereof to the legatee^ if not needed to pay debts or for any other .purpose of administration.*^ A note specifically bequeathed to two legatees is properly delivered to them jointly, if they are adults; and such delivery discharges the' representative unless they refuse so to take it, when he can take two notes, each for half the old note, and de- « C. C. P. § 2688. 890, 145 Supp. 1130 (1914), C. C. P. 7 Id § 1837. « Matter of Benson, 96 N: Y. 499, ,'7?!^'°^'' ^' ®^°'^°' ^^ ^^ ^^ *^ 48 Am. Rep. 646 (1884) ^ ^^ Davisv. Crandall, 101 N. Y. 311, 'Matter of Rutherford, 196 N.Y. 4 n. E. 721 (1885) ; Matter of Ruth- 311, 89 N. E. 820 (1909). erford, 196 N. Y. 311, 89 N. E. 820 1" Lankford v. Thornton, 161 A. D. f 1909) . 603 NEW YORK ESTATES AND SURROGATES § 555 liver one of the new notes to each of the legatees.^' The title of a specific legatee to his legacy, while vested on the testator's death, is inchoate till the executor gives his consent to it, which cannot be given (to the prejudice of creditors) when there is a deficiency of assets to pay debts ; so that a specific legatee is accountable for the value of his legacy." A specific legatee has an inchoate right only to his legacy until the executor assents to its payment; because the title to a decedent's personalty vests in his legal representative and the legatee has no title till the administration, as to his legacy, is closed, which happens on the executor's assent to payment of his legacy.^* A specific legacy needs only the executor's consent to vest its title in the legatee, and this assent may be express or implied, even though the legatee is himself executor.'* When legacies are paid in advance of the time when they become due proper deduc- tion should be made for interest on account of such advance pay- ment. ''' Executors have no right to anticipate, by a rebate of in- terest or otherwise, the payment of legacies when the intent of the testator is plain and such anticipation would defeat the intent to some extent; although otherwise the anticipation may be made.'* If executors do prepay a legacy on the legatee's request they should take a refunding bond from the legatee.'® A residuary legatee' re- ceiving, on request, a prepayment on account of his legacy takes it on the risk that he must refund just as though he knew that other legacies, and debts of the testator, had not been provided for, if a judicial settlement of the executors' accounts so proves, unless the executors' inability to meet the other legacies and debts arose from their own fault. ^'' Even though a will postpones the time of pay- ment of a vested gift for ;the estate's convenience and makes the executor the sole judge of when it is convenient to pay it, yet the executor cannot postpone payment arbitrarily for an indefinite period, but must pay if there are ample funds.' After six months have passed since the end of publication of notice to creditors to present claims a creditor of whose, claim the executor had no knowl- edge cannot hold the executor for a devastavit for money paid out " Davis V. Crandall, supra. '» Clark v. Truslow, 161 A. D. 675 '* Matter of Van Houten, 18 A. D. (1914), or 146 Supp. 750, 301 (1897), or 46 Supp. 190. 2" Clark v. Truslow, 161 A. D. 675 '5 Robinson v. Adams, 30 Misc. 537 (1914), or 146 Supp. 750 — executors (1900), or 63 Supp. 816. ' left funds on deposit temporarily in '® Linthieum v. Caswell, 19 A. D. going bank, apparently solvent ; held 541 (1897), or 46 Supp. 610; aff'd not at fault; Buffalo Loan & Trust 160 N. Y. 702, 57 N. E. 1115. Co. v. Leonard, 9 A. D. 384 (1896), '•'Mallery v. Pacer, 181 N. Y. 567, or 41 Supp. 294; aff'd 154 N. Y. 141, 74 N. E. 487 (1905). 47 N. E. 966. '8 Dodge V. Pond, 23 N. Y. 69 ' McKay v. McAdam, 80 Hun, 260, (1861). 30 Supp.'288 (1894). 604 §§ 556, 557 EXECUTORS under a direction of the testator's will under a trust later held in- valid.* § 556. Id.: Manner of Payment: In General. — A valid assignment by a legatee of a 'part of his legacy, to be paid from the legacy, of which the administrator c. t a. has notice, binds the latter to apply so much of the legacy as is necessary to pay the part assigned to the assignee ; but not to do so before he makes any payment to the legatee on such legacy.* Executors selling land, under a testamen- tary power to sell it and divide the proceeds, properly allow to one devisee to whom another had quitclai ined his interest as devisee not only his individual interest as devisee but the interest as devisee of his assignor, even though the deed is unrecorded.* Legacies be- queathed by a will which directs the executors to deduct therefrom the amounts shown on the testator's books of account as indebted- ness of the legatees to the testator are reduced pro tanto} The pro- ceeds of land devised, but sold by the testator during his life, pass under his will as personalty ; and no court can substitute the money received for the land devised.' § 557. Id. : To Infant or for Support. — Payment to an infant of a legacy does not discharge the executor or administrator c. t. a!' It should be paid to the infant's guardian.* The accounting decree should direct that it only be paid the guardian on his filing suf- ficient security unless it does' not exceed $50, when it may order it paid to the infant's father or mother or some competent person with whom the infant resides or who has some interest in his welfare, but always for the infant's use and benefit; or, if there be no guard- ian and the legacy is over $50, that it be paid into or deposited with the surrogate's court.* A decree on accounting may direct delivery of an unsold chattel or the assignnient of an uncollected demand or any other personal property to an infant entitled to pay- ment, in lieu of the money value of the property, when it appears that a sale thereof for the purpose of payment would cause loss to the infant, and the value thereof has been fixed by appraisement.^" The value must be ascertained by an appraisement under oath made by one or more persons appointed by the surrogate for the purpose.** Executors will be surcharged with that amount of in- * O'Conner v. Gifford, ll7 N. Y. * Philson v. Moore, 23 Hun, 152 275, 22 N.. E. 1036 (1889). , (1880). * Citizens' Central National Bank '' Davis v. Crandall, 101 N. ,Y. 311, v.'Toplitz, 113 A. D. 73 (1906), or 98 4 N. E. 721 (1885). Supp. 826 : aff'd 188 N. Y. 634, 81 * Daivis v. Crandall, supra. N. E. 1162. 9 C. C. P. § '2739. 41H*atter of Fagan, 166 A. D. 244, " C. C. P. § 2736, subd. 3. 151 Supp. -701 (1915). "Id. « Matter of Twombly, 24 Misc. 51 (1898), or 53 Supp. 385. 605 NEW YORK ESTATES AM) SURROGATES § 558 come directed by- the will to be paid infants which they paid the mother of such infants residing with her in another country, even though the mother's affidavit stated she had been the infants' l^gal guardian in such foreign country, and that she had applied the money to the children's maintenance, education and support and to no other purpose whatever, when there is nothing to show that the mother's financial condition was not sufficient to support the children properly. ^^ Whatever sums executors pay to the mother of their teistator's children fm their suppd/rt is -pTohably, however, 'properly charged to the children on their legacies.^' In decreeing payment or satisfaction of the whole or a part of a testamentary provision on the ground that the one who will be en- titled to it is in actual need thereof for his support or education, the surrogate will require a bond from the payee with two sufficient sureties conditioned that if debts against the deceased duly appear and there are not other assets to pay them, and no other assets sufficient to pay other legacies, then the legatee will refund the legacy paid him or the value of articles delivered to -him, with in- terest; or such ratable portion thereof, with the other legatees, as may be necessary for the payment of such debts and the propor- tional parts of such other legacies (if there be any), as well as the costs and charges incurred by reason of the payinent to such lega- tee ; and further conditioned that, if the will under which such legacy is paid be denied probate on appeal or otherwise, such legatee will refund the whole of such legacy, with interest, to the executor or administrator entitled to it." § 558. Id.: Of Life Legatee's or Executor's Legacy. — A person appointed one of two executors and given the income of personalty for life, with the right to use the principal if needed, is entitled to credit on accounting for any amount paid to himself as legatee from the principal." When a life-tenant is also executor, the re- mainderman is entitled to have the former pay into court the amount of a debt owing by him to the testator so it may be in- vested as to give the life-tenant the incorne and protect the prin- cipal - for the remainderman ; because the fact that the executor is also life legatee does not absolve him from the duty of collect- ing the assets of the estate, of which his debt is one.'* When one named executor is also given the estate for life it will not be de- livered to him unless he give a bond in an amount approved by 1" Est. of Wittnauer, N. Y. L., J. '* Matter of Trelease, 115 A D Dec. 4, 1914 (N. Y. Surr.) 654, 100 Supp. 1051 (1906). • 13 King V. Talbot, 40 N. Y. 76 "Matter of Hunt, 38 Misc. 721 (1869). 78 Supp. 291 (1902). ' 1* C. C. P. §§ 2691 and 2688. 606 § 558 EXECUTORS the court, for^ though he could not be required as executor to give the security,, he can be so required as life legatee," When a will au- thorizes the executors to leave or invest a sum of the testator's estate in a firm of which he was a member for a stated time at 6% plus a certain . yearly ainount and the executors so did, but also got a contingent additional interest in the firm profits, and the will gave a life tenant the interest, income issues and profits of the residuary estate iniclusive of the testator's interest and capital in such firrn, such life tenant gets all profits from such firm's busi- ness to which the estate is entitled." Executors should either in- vest a money,, life-legacy (or sell property constituting a life-legacy) and pay the life legatee the income only, or turn over the money or property making the legacy to the life-legatee and exact security from him for re-delivery thereof on the. termination of his life estate, or a written inventory with an agreement setting forth the life-legatee's interest and an acknowledgment of the person or per- sons to whom the, legacy belongs on the life-legatee's death.^^ A husband given a life interest in property subject to payment of an annuity is entitled to immediate possession on giving a satisfactory , bond to the remainderman.^" When an absolute bequest is followed by a limitation over in the event of the legatee's death without issue the executors have the right to withhold any portion of the principal of the bequest from the legatee unless adequate security is given to account for such principal if the legatee die without issue and also for interest on the legacy from the time of such legatee's death without issue. ^ Transfer of a legacy to those who are life legatees only should Hot be made unless they give security, for the return of the principal.* When a bequest is made to one, in trust, to be invested for his heirs', benefit, he to have its use or interest for life, remainder oyer to the heirs, it is the executor's duty either to retain the fund and invest it, or to turn it over to the life-legatee only on his giving security — <;er- tainly if he is a non-residen^,* A surrogate may authorize an "Matter of Lowery, 19 M^se. 83, On the right of legatee for, whose 43 Supp. 972 (1896). benefit the purchase of an annuity is ^' Btown V. Brown, 122 A. D. 576, directed to receive principal in lieu 107 Supp. 864 (1907). thereof, see note in 33 L.R.A.(N.S.) 19 Matter of Burr, 48 Misc. 56, 96 979. Supp. 225 (1905), rev'd on another ^ Tyson v. Blake, 22 N. Y. 558 point, 118 A. D. 482, 104 Supp. 29 (1860). (1907); Lee v. Horton, 104 N. . Y. "jjatter of RofEo, 51 A. D. 35 538, 11 N. E. 51 (1887) ; Matter of (1900), or 64 Supp. 455. McDougall, 141 N. Y. 21, 35 N. E. ^Montfort v. , Montf ort, 24 Hun, 961 (1894). 120 (1881). 20 Matter of Fleming, 51 Misc. 662, 102 Supp. 203 (1906). 607 , XEW YORK ESTATES AND SURROGATES §§ 559, 560 executor, on settling his account, to pay himself as life legatee the residuary estate on his giving security to protect the remainder- man; but if he decHnes so to receive the estate as life tenant the surrogate cannot require him to take it as executor only on giving like security, because nothing can be required of, him as executor beyond that ordinarily demanded of an executor.* § 559. Id.: Of Lunatic's. — A decree on accounting may direct the delivery of an unsold chattel or the assignment of an uncol- lected demand or any other personal property to an incompetent legatee, in lieu of the money value of the property, when it ap- pears that a sale thereof for the purpose of payment would cause a loss to such legateej and the value thereof has been ascertained by an appraisement under oath. made by one or more persons ap- pointed by the surrogate for the purpose.' The pendancy of lunacy proceedings against a legatee is no ground for declin- ation by an executor to pay a legacy when the court in which they are pending declines to intervene in the matter of the payment of the legacy; because such proceedings do not affect the validity of payment of the legacy by the executor.* § 560. Id.: Before Due or Specific Legacy. — Wheneiver a legacy is directed by the will to be paid by an executor sooner thaJn the time when publication of notice to creditors will be completed, or before the expiration of one year from the grant; of letters (if no notice to creditors has been published) ; or whenever' specific prop- erty is bequeathed, the executor or administrator may require a bond with two sufficient sureties, conditioned that if debts against the deceased duly appear and there are not other assets to pay them, and no other assets sufficieiit to pay other legacies, then the legatee will refund the legacy so paid or the value of the articles so deliv- ered, with interest thereon, or such ratable portion thereof with the other legatees as may be necessary for the payment of such debts, and the proportional parts of such other legacies (if there be any), and the costs and charges incurred by reason of the payment to such legatee ; and further conditioned that, if the will, under which such legacy is paid, be denied probate on appeal or otherwise, such legatee will refund the whole of such legacy with interest to the executor or administrator entitled thereto.'' A specific legatee is entitled to any inherent increase in the value of the shares of corporate stock of which the specific, legacy consist- ed, e, g., shares of stock in a company subsidiary, to the corporation * Matter of Shipman, 53 Hun, 511 * Matter of HalseV, 93 N. Y 48 (1889), or 6 Supp. 276; old Code, (1883). § 2685. » C. C. P. § 2688. ' 5 C. C. P. § 2736. 608 §§ 561, 562 EXECUTORS the. stock of which was specifically bequeathed and to which the main company's stock became entitled on distribution by the main company of its holdings among the subsidiary companies.' Specific legatees under a will showing a purpose that they be paid in full are entitled to have applied to their legacies whatever there remains after a: devastavit by the executors of the testator's per- sonalty ; and if there is not enough left to pay the specific legacies in full, what there is must be devoted to them to the exclusion of residuary legacies, as there is no reason why the executors' wrongful acts should destroy the testator's purpose.^ § 561. Id.: Of Legacy In Kind.— A decree on an accounting may direct the delivery of an unsold chattel or the assignment of an uncollected demand or any other personal property to a party or parties entitled to payment, in lieu of ■ the money value of the property: (1) When all the parties interested manifest their consent thereto by a writing filed in the surrogate's office; (2) When any legatee files a consent to accept as payment, in whole or in part, any specified property at a value to be ascertained by ap- praisement; (3) When it appears that a sale thereof for the pur- pose of payment would cause loss to any infant or incompetent legatee, and thei value thereof has been fixed by appraisement." The value must be ascertained, if the consent does not fix it, by an appraisement under oath made by one or more persons appointed by the surrogate for the purpose. ^^ Delivery in specie to remain- dermen of part of an estate on their election so to take cannot be made if the life tenant objects.^^ Stock formingpart of a testa- tor's estate which a beneficiary wishes to take in kind should not be sold under a power of sale of the personalty to the executors when such powei; is given to pay all just debts, niake collections and sell and reinvest . securities as may seem necessary, and all debts have been paid;; because the executors are; then mere trustees charged with the sole duty to collect, conye;^ and distribute.^* § 562. Id. : To Person Unknown or of Unknown Address.^A decree on accounting must direct the executor, administrator, guard- ian or testamentary trustee to pay the,amount;of a legacy or distrib- utive share to a person who is unknown iijto the treasury of the state 'Matter of Leavitt, 86 Misc. 609, " C. C. P. § 2736. (1914), or 148 Supp. 758— Standard " C. Q. P. § 2736. Oil Co. Stock and distribution of, De- ^^ In re Holzworth, as Estr'x cember, 1911. , ;;'. ,. ; ' Slater, N. Y. L. , J. Feb.. 12, . 1915 On the right of legatee to dividends- (App. Div. 2d Dept.), C. C. P. § on stock, see note in 4j5 L.R.A. 393. . 2736. 9 jParmers' Loan Sf Trust Co', v. Mc- ** Lane v. Albertson, 78 A. D. 607 CartKv, 128 A. D. 621," 113 Supp. (190i3), or 79.Supp, ,947. 207 (1908). ' . ■ N. Y. E. & S.— 39. 609 NEW YORK ESTATES AND SUREOGATES § 563- for the benefit of the .person, or persons who may thereafter appear to be entitled thereto.** The legacy, lof , one as to whose identity or existence no evidence is presented on pirobate proceedingsi will be decreed^ to be paid into thq state treasury. ^^ On' the petition of such person, or persons the surrogate's or supreme court, on at least 14 days' notice to the attorney-general accompanied^ by a copy of the- petition, may .ascertain ihe rights of the persons interested by (a) a reference!, (b) directing ;the trial of an issue by a jury, or (c) other- wise; and grant an order directing the payment of any money which appears to be due the claimant^ but without interest, after deducting ;all expepses incurred by the state with respect thereto ; and the comptroller, upon the production of a certified copy of the order, mugt draw his warrant upon the treasury for ^ the amount therein directed to be paid,: which must, be paid by the state treas- urer to the person; entitled thereto." An accounting decree must direct an executor, administrator or testamentary trustee to pay the legacy or distributive share of a lega- tee or distrih^tee whose whereabouts are unknown into the surro- gate's court, if it has- not -been paid to the person entitled at the ex- piration of six months from the time when the decree is made or the time when it is payable by the decree's terms ; or an order may be made directing its payment into court when, at the expiration of .six months after the making of the decree, it is shown to the court that its payment cannot be 'linadie to the persons entitled." The money so paidinto court can be paid out only by the special direc- tion of the surrogate or f he judgment of a court" of competent jurisdiction.^ The State comptroller may institute any necjessary proceeding before the surrogate's Court to compel the deposit of such mbneyS ill' Court which have not been paid over or' deposited after the expiration of 6 months." § 563. Legacies: Interest On, In General. — ^The question of inter- est on legacies-^when payalblfe,- etc., — is govei-ned by the law of the place of the testator's domicif,^" ds.it existed at the time of the testa- tot's death:* Interest on a legac^j^ begins to run from the time it is payable whether the estate assets have, been fruitfyl or not.*, , ' , '''(>' ' . . . ■ ■ . . , " C. C. P. § 2740. 1 Est. of ,Silbej:honi, N. Y.. L. J , « Matter of Braver, ' 62' 'mke.' 155, Oiet. 5, 1915 (N. Y. Surri) . ' ' - 116 Supp. 424 (1909), old Code, § « Matter of Bielby, 91 Misc. 353 2747. ; i, ,,i.;', (1915), or 155 Supp. 133; Matter of 18 C. C, P. § 2740. = Erviiig, 103 A. D. 500 (1905) , or 92 "C. C. P. § 2741. Supp. 1109. ' *' Id. On conflict of laws as to interest on 19C. C. P. § 2741. ' legacy, see note in 2 .L.R.A.(N.S.). 2" Matter of Kuoielski, 49 Misc. 468. 404,99 Supp. 828 (1906). 610- S 5«3 ■ EXECUTORS The rule for casting 'interest, when partial payments have been made, is to apply any payment first to' the discharge of interest theh due, and, if the payment exceeds the interest, to apply the sur- plus toward discharging the principal.' Subsequent interest is then to be computed on the balance of the principal remaining due.* If a payment is less than the interest due, the surplus of interest must not be' taken to augment the principal, but the in- terest continues on the former principial till the period when pay- ments taken together exceed the interest due and then the surplus is to be applied toward discharging principal, and interest is to be computed on the balance as aforfesaid.* In determining when interest on a general legacy begins to run, these points mu^t be considered: ' (1) Does the will say ' anything on the subject? (2) Has publication of notice to creditors to present their claims been rnade? (3) Has a decree on the representative's accounting made any direction as to paymenit of interest? No interest is payable by an executor or administrator c. t. a., on a general legacy until the expiration of one year from the time of graiating letters testamentary or of admirtistration c. t. a., unless (1) eithet directed by the will or (2) by a decree on an accounting to be sooner paid, or (3) publication of notice to creditors' to present clairtis has been made arid' completed before such year is up.^ Unless payment is shown to be unduly postjioned, when a legacy is directed by will to be paid as soon after the testator's death as should be convenient to the executor, no interest is payable on it.' When a will provides that legacies shall not become payable till years after the testator's death they do hot draw interest until that period has elapsed:* The general rule that interest is allocable on general legacies only after ohe year froQi the time that letters are granted is hot changed by a testameritary direction that they are to be paid as soon as the amount can be collected Out of funds invested on bond and mort- gage at a certain tow:n.? The general nile. that interest on general legacies begins to run from one year after the grant of ktters 'Matter of Erving, 103 A. D. 500 (1878) 5 Matter of Oakes, 19 A. D. (1905), or 92 Supp; 1109. 192 (1897), or 45 Supp. 984; Matter * Matter of Erving, supra. ' of Gritelfeld, N. Y. L. J. Den. 21, * Matter of Erving, supra: ' 1915 (Kings Snrr.). « Matter of Barton, 64 Misc. 242, ''Matter of Hodgman, 140 N. Y. 118 Supp. 1087 (1909), old Code, § 421, 35 N. E. 660 (1893)— wife was 2721; in connection with new Cbde, § both liegatee and executrix. 2688; Thorn v. Garner, 113 N. Y. « Bank of Niagara v. Talbot, 110 198, 21 N. E. 149 (1889) ; Matter of A. D. 519 (1906), or 96 Supo. 976; Rutherford, 196 N. Y. 311, 89 N. E. aff'd 184 N. Y. 576, 77 N. E~. 1181. 820 (1909) ; Bradner v. lEaiilkner, 12 » Kerr v. Dougherty, 17 Hun, 341 N. Y. 472 (1855) ; Wheeler v. Ruth- (1879), aff'd 79 N. Y. 327. ven, 74 N. Y. 428; 30 Am. Eep. 315 611 NEW YOKE ESTATES AND SUREOGATES § 564 holds good as to the grant of letters of temporary adTninistration as well as to, the issue of permanent letters ; because the; statutory intent is to give a temporary administrator, the same authority in general as a permanent pne.^' Interest on a legacy bequeathed by two wills, identical except for the naming of executors, and, the second of which is probated after the probate of the first has been revoked, runs only fromi one year after letters are issued on the second will.^* When land is devised on condition, tb^t a legacy be paid bj; the devisee the legapy must be, paid, with interest, for the reason that as the land yields rents and profits to the devisee he should yield interest to the legatee.*^ But the interesjt, allowed should be simple and not compound." If the.^^tator .ri^sided.in another state the rate of interest allowed should he that, of such state if shown: otherwise at, the rate in I^ew,York state." A gen- eral legacy payable on the death of, a life, tenant, bears, interest from the cessation of the life estate.^' A general legacy payable on, the death of a residuarylegatee bears interest, only frpna such death.^* Upon the general theory that interest on legacies begins to run from the time they are payable, it may very well be con- tended that interest thereon, runs, from the, date of th^ expiration of a notice published by the executor or administrator c. t. a., to cred- itors to present their claims, even though, such expiration come about before one year has .passed, since letters, were issued," This seems to be the intent of, the statutory provisions th^t,' 'rip legacy shall be, paid ... . before the completion of the ,publicatipn of notice to creditors if suehnotice be published," ^* No interest can be charged on advancements , made by one who (dies testate unless his will by its tprms or by necessary impliqation so requires^*' § 564. Id. : Interest On Specific Legacy .t— Specific legatees are en- titled to the interest accruing on their legacies from the date pf the testator's death.*' A specific legacy of a mortgage carries with it "Matter of Accounting of Mc- " C. C. P. § 2688. Gowan, 124 N. Y. 526, 26 N. E. 1098 "Id. (1891), old Code § 2668; Matter of "Matter of Keenan, 15 Misc. .^68 Oakes, 19 A. D. 192, (1897), or 45 (1895), or 38 Supp. 426. Supp. 984. *» Est of Boyer,, N. Y. L. J., June " Estate of Patterson,; 5 Misc. 178 12, 1915,,. (N. Y. Surr.). The Code (1893), or 25 Supp. 702., (§ 2688), provides that "bequests of **Loder v., Hatfield, 7l N. Y. 92 specific articles, of property, other (1877). ■'; , than! securities representing money, *' Brown v. ,Knapp, 79 N. Y. 136 may be delivered at any time in the (1879). discretion of the executor,", and that " Brown v. Knapp, supra. when "specific property is be- ^' Matter of Hussey, 67 Misc. 32, queathed" th^ executor, ijef pre paying 124 Supp. 426 (1910). it, over, may require from the specific "Matter of .McNamee, 78, Misc. legatee a bond conditioned,, among 324 (1912), or 139 Supp. 304. other mattersj upon the refund of the 612 § 563 EXECUTORS to the specific legatees interest which had accrued between the interest date prior and that subsequent to the date of the dece- dent's death.^ A debt specifically by will directed to be paid with such interest as is then due is payable with interest from the time the debt accrued, or,' if that time is not known, from the time the will was made (as certainly existing then), and not only from one year after the grant of letters, however much the debt may be barred by the Statute of Limitations.* A specific bequest of a fund and securities as they exist draws no interest.' § 565. Id : Interest on Legacy for Support. — The legacies to chil- dren of a testator who are dependent upon them for support bear interest from the date of his death.* General legacies to the testator's children draw interest from the time of the testa- tor's death.* A minor legatee is entitled to the income from that portion of the estate which is bequeathed to him from the date of the death of the testator if the primary duty of maintaining such legatee duriiig infancy rested upon such testator.* If such legatee has no other provision nor any maintenance in the meantime al- lotted by the will the legacy, although payable at a future day, carries interest' from the testator's death.^ It is probably suf- ficient that the testator has voluntarily assumed a position Hn loco parentis toward the infant legatee.* A legacy by one not in loco parentis to an infant legatee who has means of support other than the legacy does not carry interest, as the rule allowing interest on a legacy to an infant rests on the presumption of the testator to support the legatee till the legaicy becomes payable and not on the fact of infancy.' Advances by executors or testamentary trustees for support of legatees should bear interest when the executors have no income on hand; but should not bear interest when they have income on hand,^? Even though an adult legatee be the testator's son in delicate health and supported from birth by his, father, and ^ , , legacy with interest iE the will is held Garner, 113 N. Y. 198, 21 N. E. 14& bad. 13889). 1 Matter of Althaiis, 94 Mise. 43 ^Lyon v. I. S. Ass'n, 127 N. T. (1916-). ' , 402, 28 N. E. 17 (189r)--when testa- 2 Gilbert V. Morrison, 53 Hun, 442, (^^ix knew her husband has been ear- 6 Supp 491 (1889) ing and would care for child rule giv- 3 Sidth V. Landing, 24 Mise. 566, '''V'^^^''^^io^T^''°h^^,^^iJo?''''^" 53 Supp. 633 (1898)^ - v. Knapp, 79 N. Y. 136 (1879). Arr- rp ^u i Af\ -a \r rra Brown V. Knapp, supra. ..o^'5 ''• ' 'Lyon V. Industrial School Asso- (1869). elation, 52 Hun, 359 (1889), or 5 6 Smith V. Lansing, .24 Mise. 566, gupp. 326; aff'd 127 N. Y. 402, 28 N. 53 Supp. 633 (1898). e. 17. « Matter of Rafferty, 52 Mise. 60, m King v. Talbot. 40 N; Y. 76 102 Supp. 432 (1906); Thorn v. (1869). 613 NEW YORK ESg-ATE^ AND SURROGATES §§ 566, 567 possibly unable to support fhimsolf, his, legacy (^pesiiQtrbear interest from the testa,tor's deathj especially if he is, named executor and,: by qualifying and doing a nomiin9,l:anipunt of work, could support himself : for a year. ^ :. ,,,: ,<■ ; ,i ' , § 566. Id.: Interest on Legacy in Lieu of JDower. — Intej-qstpn, a legacy in lieu of dower runs from the date pf.the testator's. death.* When a widow receives the income only of a trust, fund created for her; by her husband's will, or has a Ijife estate ojilj in property, she is entitled to interest from the date of her ,huS|band's dea,th,* An absolute gift of a gross sum in lieu of do^er, when there is no realty, ; does not draw interest until one year frpm the issiaancp, pf. .letters on the husband's estate,* Delay by a widow hequeathed ;,a legacy in lieu of dower in, electing to take the legacy in lieupf. dower does not deprive her of interest on the legacy; in the in- terim.* A widow giving a receipt for a legacy paid her in li,eu,pf, dower as soon as' she made known her election as "the amount of the legacy left me by the, will'!,, cajinot claim, interest on it, not only because of, the receipt but because in tere^ would,, not run in. her favpr in any event until she elected.^ , , : § 567, Id: Interest on Legacy In Trust. — Executors cannot re- fuse to pay testamentary trustees interest on a legacy until, they are prepared to pay the legacy over for investment.'' Interest to a legatee on a stated sum during life is payable from .the testator's death.' The rule that, general legacies bear no interest till, one year from grant of letters does not apply to a bequest of all the income of all a testator's property to one for life,, as such an one is entitled to such income from the date of the testator's death if the will does hot provide to the contrary.' The rule that legacies are not to be paid till after the expiration of one year from the time of grant of letters unless earlier paynient is directed by the will does not change the rule! that interest oh legacies begins to run from the date of the testator's death when a sutn is left 'in trust for the application of its interest and income to the bene- ficiary, especially when the testator's iti tent is that the legacy 1 Thorn V. G&mer, 113 N. Y. 198, (1894), or 30 Supp. 625; mod. 152 21 N. E. 149 (1889). N. Y. 551, 46 N. E. 965, « Matter of McKay, 5 Miso; 123 '.,* W"atter of Hodgman, 69 Hun, 484 (1893), or 25 Supp. 725. H V'sS N'^eV' '""'^ ''" 3 Matter '6f Barnes, 7 A. D. 13 r King ' v Tafbot 40 N Y 76 (1896), or 40 Supp. 494; afC'd 154 figeg^ ^- J; ^^^' ^^\'^- ^°^^- ' Bank of Niagara v. Talbot; 110 * Matter of Barnes, 7 A. D. 13 A, D- 519 (1906), or 96 Supp. 976- (1896), or 40 Supp. 494; aff'd 154 afC'd 184 N. Y. 576, 77 N. E. 1181; ,' N, Y. 737, 49 N. E. 1093. 9 Matter of Sprague, 46 Misc. 216, 5 Stevens v. Melcher, 80 Hun, 514 94 Supp.; 84 (1905). i 614 .§503 EXECUTORS should be paid by a: ttansfer of bonds and mortgages bearing in- terest at his death ; or -when an annuity is given ; or when by im- plication of the will the legacy is given for maintenance and support ; or when the testator is a parent or in loco parentis to the infant legatee, even though the will contain an express direction that the interest should accumulate." The rule that interest is payable on legacies ,only after one year has passed from the testa- tor's death should be confined to general legacies payable out of the body of the testator's estate: a legatee of all or a part of the corpus of an estate for life therefore gives him title to such in- come from the testator's death if the estate is sufficient to liquidate . ^' Congregational Unitarian Soo. 658 (1910), or 121 Siipp. 197. v. Hale, 29 A. D. 396 (1898), or 51 15 Wall V. Bulger, 46 Hun, 346 Supp. 704. (1887');' ' ' ,^.r., ' *CVG; P. § 1819; Congregatiocal 1* Pittman v. Johnson, 35 Hun, 38 Unitarian Soc. v. Hale, 29 A. D. 396 (1885), aff'd 102'N.' Y.'742. ' ' (1898), or 51 Supp. 704. ' "C. C. P. § 1819. '• ' ■'' 1 Beers v. Strong, 128 A. D. 20, i« Flatauer' V. Loser, 211 N; T. l5, 112 Supp. 382 (1908). 104 N. B. 1123 (1914).' - " ' 621 NEW YORK ESTATES AND SURROGATES § 573 not sue himself a,t Ism because of the impossibility of the exist- ence of a legal contract between himself on one side and himself with others connected with him on the other,; while an accounting could well be ha4 in equity.* One. entitled to a fixed amount as part of an estate by surrogate's decree on settlement of an execu- tor's accounts who has demanded an account of such part and been refused its payment .may sue the executor without joining those entitled to the other parts if no construction of the will is necessary.' If the legatee is an, infant, and. his guardian ad litem brings the action for him, the guardian ad, Ziie7)i, (unless he be also the general guardi^) must , execute and. file with the clerk before the commencement of the. action, a ,bon4; to the, infarct with at least two sufficient sureties (or ^a corporate surety's bond) in, a penalty fixed by a judge, of the court, conditioned that the guardian will duly account to the infant when he attains full age, or, in case of his death, to, his personal representatives, for. ^11. money or prop- erty which the guardian may receive by reason of ;the legacy,* § 573. Legacies, Compulsory Payment, In Surrogate's Cpurit; In General. — Each surrogate's court has jurisdiction, in , the cases a,nd in the manner prescribed by statute, to enforces the payment .of legacies.* , The surrogate may, compel executors to expend for the benefit of their testator's grandchildren the interest on a fund en- trusted to them for that; purpose.' The surrogate's court hfis, no jurisdiction to direct a legal representative to pay over funds in his hands which he has received and whi,ch belong to the deeedgnt's widow, heirs next of kin, legatees or devisees unless they are assets of the estate.'' A legatee cannot indirectly get th,e, surrogate's court to revise its decree on judicial settlenient of the executor's accounts by an order to the, latter to sliow cause ,-vyhy he should not pay the legatee's legacy; because, if the legatee claims the accounting decree was erroneous, his remedy is either to appeal or move to open.' Ah undenied formal answer by executors to a pe- tition by a legatee in a surrogate's court proceeding to compel them to pay his legacy that he had commenced an action in the SU' preme court 'to recover it ought to be .allowed by the surrogate as a valid objection to proceeding before him, because the supreme court has Concurrent jurisdiction with the surrogate's court to enforce the payment of legacies, a,nd if ixxll relief can be had, in the first of two proceedings with the same object, the second 'Rundle V. Allison, 34 ;Ni')Y. 180 'Dubois v. Sands, 43 Barb. 412 (1866). , (1864);; - . ,, ,:. ' Hitchcock V. Linsly, 17 Hun, 556 '' Matter ; of ,iPerry, 5, Misc. 149, (1879). „ (1893), or 25 Supp. 716. * C C. P. § 1820. , ? Mattpr .a£ Stevens, 40, Misc. mi, SC. C. P. § 2510. 82 Supp. 397 (1903). 622, § 574 EXECUTORS should not be allowed.' It seems that the surrogate pending appeal from his decree admitting the will, cannot accede to a legatee's petition that an executor pay his legacy in part when the only rea- son given by the legatee is that he is anxious to have an advance on account.^" The statutory provision that a cause of action by a legatee against an executor to recover a legacy is deemed to accrue ■when the executor's account is judicially Settled does not apply to a special proceeding to compel payment of a legacy, in which case the Statute of Limitations begins to run at the time the legacy is payable, which is ordinarily when the right to compel an account- ing accrues subject to the exception that, if the executor has within six years made payinents to the legatee, the running of the statute is intercepted.^^ - Executors may properly plead in a surrogate's proceeding to compel them to account and pay a legacy that the proceeding was not begun until after six years from the time the legacy was payable, because courts of law have concurrent juris- diction of an attempt by a legatee to have his legacy paid and the Statute of Limitations there pleadable is equally plisadable in the surrogate court. *^ ' '■ ' •■ ' ' § 574. Id.: In All Cases Except for Support.-^Any person enti- tled to a distributive share of an estate, a specific bequest, legacy or. other pecuniary' provision under a will may make a petition to the surrogate's court' when (1) the administrator or administra- tor c. t. a., or executor has not begun the publication of the notice to creditors to present their claims and (2) three months have elapsed sincfe. the grant of letters of administration or the probate of the will,^* which shall conform in general to the standard peti- tion in any surrogate's proceeding," and shall set forth the facts viz., the right of the petitioner to the distributive share or testa- mentary provision, the failure to publish the notice to creditors and the elapse of three months' time, and shall pray that the ad- ministrator or administrator c. t. a.," or executor be cited to show cause why he should not pay or satisfy such distributive share, specific bequest, legacy or other pecuniary provision, as the case may be.^" A general guardian of an infant is- not a person enti- tled to a legacy so as to be entitled to petition for payment by the executor to him of his infant ward's legacy*** The assignee of 'Lewis V. Mahoneyt 12 Hun, 207 "Smith v. Bemington, 42 Barb. (1877). ,:.';, 75 (1864). , , , '"Matter of McGowah,' 28 Hun, " C. C. P. § '2^87. 246 (1882), old Code, §§ 2719, 2630. "See § 787, infra. "Matter of Tonis,: 84^ -Mise/ 312, « G. C' P: '§• 2687. 147 Supp. 550 JWU), C. C' P." § " Matter. of Paton, 7 Misc. 377, 28 1819, and old Code, § 2722, new Code, Supp. 160 (1894), old Code, § 2722. § 2687,^' ■ ■ ••'; ■-'•"■■ 623 NEW YORK ESTATES AND SUBROGATES § 574 a specific , legacy of a .chattel . cannpt compel the ■ iexecutor of the estate who ig:also, legatee: of all the testator's personalty except such chattel to acpount, but inust bring an potion to recover) the specific chattel." The- surrogate naust isgue, a icitation to thte administrator or administrator c. t. a. or executor to show cause why the distribu- tive share or testaraentary provision should, not be paid a petition- er thprefor,, if the petition, sets .forth the jurisdictional facts." The citation, should conform in general ito the standard citation-in any surrogate!s proceeding.*' It should cite the administrator or administrator c. t. q.-, or executor to show cause why he should not pay or satisfy thp distrib"utive share of an estate; specific bequest, legacy or other pecuniary provision under a will to; which the peti- tioner claims to be entitled.^" .IJpon the. return iof a citation to an administrator or administrator c. .f. a.,.or executor, to: show cause why, a distributive share or testamentary provision should not be paid or satisfied, the administrator or administrator c. t. a. or execu- tor may : pay or satisfy the ' distributive share, bequest or legacy sought, either in whole or in part.* If^he does- not wholly pay itjthe surrogate may (1) dismiss the proceeding, (2) direct immediate payment or satisfaction of the share, bequest or legacy in whole; or in. part either ,( a) "without receipt by thei administratot or adminis- trator c. ti a., or executor i or (b) ,upon receipt by the adjninistra- tor or administrator c. t. a., or iexecutor of a'bond with' two- suf- ficient sureties, conditioned that if debts against the decedent duly appear and there are' not other assets to pay them, the person paid or satisfied will refufid the amount paid, or the, value of the articles delivered to him, with. interest, or such. ratable portion thereof, with .other persons paid or satisfied, as may be necessary for the payment of such debts and the proportional> part of: pay- ments or satisfactions to others, if there be any;, and the costs and charges incurred, by reason lof such' payment or satisfaction to the petitioneil; and, if the -administrator be one with .the will: an- nexed: or executor, of whom payment or satisfaction of a bequest, legacy or other testamentary, pecuniary > provision is sought; that if the will under which payment or- satisfaction is made be denied probate : on appeal or otherwise, that the person paid or satisfied will refund the' whole of the payment or satisfaction made, with interest, to the administrator c. t. a. or executor entitled thereto.'' The surrogate caniiot direct payment of a le'gaey ot delivery of a specific bequest, uixtil 3 niOnths have, .ela,psed since probate of the " Matter of E^»n, : 89 ; A. . D. 565 " See § ' 799, infra* i ' (1904), or 85 Supp. 663; old Code, 2" C. C. P. §12687. . §§2726,2727,1819. ,; • .... * C. C. P. § 2:687;: ..;,!;> :, " C. C. P. § 2687. « C. C. P. §§ 2687 and 2688. 624 § 575 EXECUTORS will or grant of letters.' A petition for compulsory payment of a legacy containing the necessary averments should not be denied unless the executor both afRrmatively sets forth facts showing the doubtfulness of the claim's validity and legality and also denies its legality or validity either absolutely or on information and belief.* A legatee is entitled to an order requiring payment by the executors of his legacy when they admit the sufficiency of assets over all debts anid liabilities to pay him but refuse to do so because a contestant of the will has notified them not to do so oil the ground that he has a proceeding pending to establish a prior will of the testator, mutual with another person's will, which gives the testator's property differently from the will under which the legatee claims.' The application of a next of kin for compulsory payment by the administrator of the applicant's distributive share of the estate will be denied although the administrator on his account- ing had by the decree been ordered to pay it if the latter has ap- pealed from the decree arid given a bond on appear and the ap- peal is still pending.' A legatee may hold an executor responsible for payment of; the legacy even though the executor had trans- ferred the estate to residuary legatees who had agreed to and had paid so much of their testator's' debts as added 'to those paid by the executor would exceed the value of all the personal piroperty which eime to his hands; because he had no right to delegate his executorial duties, even'thoiigh he might have allowed the same claims the residuary legatees paid.'' § 575. Id.: For' Support.— A person who will be entitled to the payment or satisfaction of any distributive share or testamentary provision,. whenever he is in actual need of such share or provision, or of some part thereof, for his support or educ3,tion, inay present to the surrogate's CJoiirt his 'petition,' conforming in general to the standard surrogate's petitiori,' and setting forth the facts, viz.,' that the petitioner, will be entitled tb t)aymerit or sajtisf action of a dis- tributive share 'or testainentary' provision arid is in actual need of such share or provision, or of some part thereof, for his support or education: and praying that a citation issue to the administrator or administrator c. t. a., or executor to show cause why the share ' Est., of Plastrik, N. Y. L. J. Oct. 'Matter of Moran, 59 Misc. 133, 17, 1914 .(Kings Surr.), C. C. P. § 112 Supip. 207 (1908). 2687. : , 'Brown v. Phelps, 48 Hun, 219 * Matter, ' of Alexander, 83 Hun, (1888), aff'd 113 N. Y. 658, 21 N. E. 147, 31 Supp.' 411 (1894), old Code, 415. ' § 2516. « C. C. P. § 2691. 6 Matter of O'Gonlior, 90 Hun, 284 » See § 787, infra. (1895), or 35 Supp. 779, aff'd 149 N. Y. 573, 43 N. E. 988. ; N. Y. E. & S.— 40. 625 NEW YORK ESTATES AND SURROGATES §576 or provision should not be paid the petitioner.*' A citation may issue or not, in the surrogate's discretion, on such a petition for payment or satisfaction of a distributive share' or testamentary pro- vision, to the administrator or administrator c. t. a.,, or executor,*' ; which must conform generally to the standard citation in any surrogate's proceeding,** and must require the administrator; or administrator c, t. a. or executor :to show cause i why the prayer of the. petition should not be granted.*' On the return of a citation to an administrator or administrator c. t.;a., or execu.tor, to, show cause why he should not pay a share or provision actually -needed for the support or education of a legatee ot distributee the surro- gate, in his discretion, may make a decree directing payment or satisfaction accordingly on the filing of a bond in statjitory form by the legatee or distributee, if it appears: (1) that the amount of money and the value of the other property in the ■ hands of the administrator or administrator c. t. a., or executor, applicable to the payment of debts,, legacies and 'expenses exceeds by at least one-third the amount (a) of all known debts and claims against the estate, and (b) of all legacies or distributive sliares of the same class; (2) that the payment or satisfaction of, any distributive share or testamentary provision, or some part thereof, is necessary for the support or education of the peiitionei, whether adult pr infant, or of his family ^* , The statutory bond which must be filed by the distributee or legatee on a decree beijig made for payment or satisfaction of a part or the whple of his distributives , shaiCe or testamentary provision must have two sufficient sureties and be conditioned that , if i debts , against the deceased duly app,ear and there are not other, assets to pay, tneiji, an,d; no other assets .suf- ficient to pay other legacies or distributive sjiac^ then the legatees or distributees will refund the legacy pr (distributive share so paid, with interest thereon, or such ratable portion, thereof yvith the o&er legatees or distributees as may be necessary for the payment pf such debts, and the proportional part, of such other legacies or dis'tributive shares, if there .be any; ancj, if the a(inainistrator be one with the wiU annexed of whom payment, or sfttisfactjpn. of a legacy is sought, that if the will under which such legacy is paid be denied probate on appeal, or otherwise, that such legatee will refund, the whole of such legacy, with interest, to the administrator c. t. a., or executor entitled thereto.** A legacy -to a niece of the testator who is married to a husband making enough money arnply to shppoft his wife', given to provide her with a house for her home, *» C. C. P. § 2691. 1' G. C. P. § 2691. »* C. C. P. § 2691. " C. G. P. § 2691. ^^ See § 799, infra. *6 G. C. P. §§ 2691, 2688, 626 ! §§ 576, 577 EXECUTORS will be preferred as a legacy for support and maintenance.*' An ap- plication by a legatee for an advance payment on a legacy should be denied when the legatee is married and lives with her husband if the moving papers do not show that the husband has not suf- ficient means to support and maintain her, that the annual income she is receiving from the testator is insufficient to maintain her, and that there is a fund indefeasibly jested in her out of which the advancement could be made." § 576. Id. : Receipt for Legacy .t— Any instrument acknowledging payment of moneys pursuant to the provisions of a decree for the judicial settlement of the accounts bf an executor may be record- ed in the surrogate's office aa follows: (1) Application must be made by some one person interested; and (2) The instrument to be recorded must be acknowledged, or prbved, and duly certified.*' The record of such instrument, or a certified copy of the record, is presumptive evidence: (a) of a satisfaction and discharge of the decree as to any payment of money or delivery of prop- erty acknowledged in the instrument, (b) of the contents, of the instrument, and (c) of the due execution of the instrument." § 577. Compensation (See Same Title: "Administrators"), — The subject of the compensation and commissions of executors is dis- cussed in conhectioh with the compensation and commissions of administrators, and reference is here made to such discussion.*" "Matter of Uoyd, or In re Gib- 154 Supp. 958 (1915), C. Q. P. § son's Will, 151 Supp. 459 (1915), 2691. ' 166 App. Div. 1, revers'g 87 Misc. " C. C. P. § 2553. 503, 149 Supp. 922. i ■- ; " C. C. P. § 2553. " Matter of Kohler, 91 Misc. 462, "o See § 300, supra. 627 CHAPTER VI. TESTAMENTARY TRUSTEES. A. Definitions, Duties, Powers and Lifibifities. .. 1. In General, § 578! ' 2. Successor, Substituted and ^iirviiiing Trustee, § 578a. , .3. Po-Trustees,% 579. ■'. I 4. Qualified, Of Named, Trustees, § 580. , 5. Contracts, Agreements and Debts, § 581, 6. Sales, Mortgages and Leases, § 582. 7.■■ a. Dividends, %5S^,.,., , i ,' , ';i, b. Itent?, Proceeds of ^ale or Condemnation, et(!.,% 589. e. Carrying and Accouiitiag Charges, % 590. ''' : •; d. Investments-, § 5dL ' ' •'!'■' B. Actions By and Against: ■^ ,1 X. Actions By, % 59%. ., ■, ■> > , > i Actions Agavnst,% 593... ■' ; '.'.i i n C. Appoimtment : • . , -^i • i 1. TTfeat Jurisdiction Supreme and Surrogate's Courts Save, § 594. 2. TF/wt* .SwJTo^a^f ffas Ji«»»sdfctv)«, § 595. .!-.;, 3. Persons incompetent: a. In General, § 596. b. Infants, § 597. e. Adjudged Incompetents, § 598. d. -4.Zie»s and Non-Inhabitants, or Non-Residents, § 599. e. Felons, § 600. f . Drunkenness, Dishonesty, Improvidence, Want of Understand- ing, § 601. g. Renunciation or Refusal, § 602. h. Inadequate Circumstances, § 603. 4. When Made and On Whose Petition: a. In Surrogate's Court: aa. When No Trustee In Office, § 604. bb. When Trustee In Office, § 605. b. In Supreme Court, § 606. 5. Notice: a. In Surrogate's Court, § 607. b. In Supreme Court, § 608. 6. Objections, § 609. 7. Decree, Order or Judgment, § 610. 628 § 578 TESTAMKNTARY TRUSTEES D. Oath and Bond;. Qf. Consent: X. Oath or Consent, § 611. 2. Bond or Consent, § 612. '3. New Bond in Surrogate's Court: • ■ ' a. Grounds, § 613. h. Petition i § 614. ;C. Citation, ^ 615. d. Order or Decree, § 616. E. Term Of Office: 1. In Supreme Cdtirt, § 617. 2. In Surrogate's Court:. a. Jurisdiction, §618.. b. Voluntary Removal and Discharge, § 619. C. Involuntary Removal: aa. Without Petition or Citation, § 620. bb. On Petition: aaa. In General, § 621. bb,b, Qround^t % 622, ccc. Petition, § 623. ddd. Citation, § 624. eee. Order Suspending, § 625. fff . Hearing and< Decree, § 626. F. Expenses Of Administration, § 627. G-. Accounting, § 628 {See same title : "Administrators.") H. Payment and Delivery: 1. In General, § 629. 2. To Infant or Lunatic, and for Support, § 630. 3. To Life Tenant, § 631. 4. In Kind, § 632. 5. Cotitpulsory: a. Jurisdiction, § 633. b. TK/sew iV^ot Needed for Support, § 634. c. For Support, § 635. 6. Receipt for Payment, § 636. I. Compensation, § 637 (See same title: "Administrators.") § 578. Testamentary Trustees: Definitions, Duties, Powers and Liabilities, In General. — A: testamentary trustee is a person charged by law to execute a trust created in a decedent's will, who is either named as trustee in such will; or designated as such trustee by law ; or by another person than the testator under a power so to do given by the will. A testamentary trustee is any person except an executor, administrator with the will annexed or guardian who ia designated by a will of by any competent authority to execute a trust created by a will, including an executor or administrator with the will annexed when acting in the execution of a trust created by the will which is separable from his functions as executor or admin- istrator c. i. a.^ While every executor and guardian is in a gen- eral sense a trustee for he deals with the property of others con- 1 C. C. P. § 2768. 629 NEW YORK ESTATES AND SURROGATES § 578 fided to his care, to constitute him a strict testamentary trustee it is necessary. that some express trust be created by the will: merely calling him such does not make him a trustee.^ Executors mere- ly directed to divide and pay over cannot be testamentary trustees.* One appointed by the supreme court a trustee on devolution upon the court of a trust under a will by reason of the dfea,th of him named trustee in the will is not a testamentary trustee.* It i.s often difficult to determine when one person who is named by will both as executor and as testamentary trustee acts as executor and when he acts as testamentary trustee. It is important- to do so, however, because such a person's duties as executor and trustee, respectively, are as distinct as though such duties devolved on sepa- rate persons.* The test to apply is : Do any of the. duties imposed upon a person named as executor in a will require of him greater or different powers than go with the office of executor? If so, in exercising such duties, such person acts as -testamentary trustee.* The duties of an executor have been previously discussed ; ' and are in general, to take possession' of his testator's personal property (including the collection of debts), to pay his testator's burial and administration expenses and just debts, and to pay legacies be- queathed by the testator.' So, if a testator bequeath an annuity and makes it the duty of him whom he names his executor to pay it, the executor it not thereby made a testamentary trustee or given a power in trust, because he is perfectly able' to perform th.e dut> by force of his official character as executor.^. .The duty. of a te.^ta- mentary trustee is in general to take care and manage the trust fund with an eye to the preservation of the fund and the procurement of a just income to the beneficiaries of the trust.)'" The duties imposed upon a person, rather than the name applied to him in a will, measure his office and position; so that the imposition upon one of the duties of a trustee makes him such- rather than an execu- tor." And when a trust duty is not annexed to the office of execu- tor, but is put upon him as a person, he may: accept and execute the trust without proving the will or taking out letters testamen- tary, as the will alone vests him with the trust estate.'* A trustee * Matter of Hawleyi 104 N. Y. 250, « See § 469, supra. 10 N. E. 352 (1887). , » Qlark v., Clark, 147 ,N. Y. 639, ' Matter of Hawley, supra. 42 N. E. 275 (1895). *Brater v. Hooper, 77 Hun, 244 "King v. Talbot, 40 N. Y 76 (1894), or 28 Supp. 487. (1869). - 'Matter of Dority v. Dority, 40 A. " Mee v. Gordon, ^187 N. Y. 400 D. 236 (1899)., or 57 Supp. i073. (1907). , ,, ' Jewett V. Schmidt, 83 A. D. 276 '"Dunning v. Ocean Nat. Bank 61 (1903), or 82 Supp. 49. N. Y. 497 (1875). ■^ See § 469, supra. • ■ 630 § 578 TESTAMENTAKY TRUSTEES does not spring into being from an executor, simply because the latter finally accounts, when there has been no payment to the trustee as such, no new accounts have been opened or kept in the new capacity, and no separation or division of the fund has been made, allotting to the beneficiaries their exact and specific proportions." "When the duties imposed are active and render the possession of the estate convenient and reasonably necessaiy, the executors will be deemed trustees for the performance of their duties, to the same extent as though declared to be so by the most explicit language." " The fact that no accounting has been had by which persons appointed both executors and trustees by will were' decreed to set apart a fund to themselves as trustees, while it is not determinative, is yet worthy of consideration, in deciding whether such persons are acting as executors or trustees.^* An executor required to defer payment of a legacy for any specified time, or during the life of a designated person, and in the mean- time to apply the income to the use of a beneficiary, continues an executor and is not thereby made a trustee.*® "An executor or trustee, to whom a power has been given by a will, may not delegate his judgment and discretion in the execu- tion of the power, but having exercised the judgment and discre- tion with which he has been invested" he may delegate "to others the perforrnance of his determination in regard thereto." " When testamentary trustees in thes performance of their duties have a right to appoint an agent to do some portion of their work, they are not precluded from appointing one of their own number.** In determining whether testamentary trustees employed in any matter that prudence and diligence of men of average ability about their own affairs which is required of trustees, the facts must be looked at as they existed wheh the trustees acted, not aided or en- lightened by facts which later took place and caused the loss.** A testamentary trustee is not excused from liability because he in good faith, at a time when it had not been decided that a trust was void, pays over funds left to him by a will upon a -trust later de- ls Matter of Hood, 98 N. T. 363 434 (1898), or 54 Supp. 967; aff'd (1885), and 104 N. Y. 103, 10 N. E. 158 N. Y. 721, 53 N. E. 1133. 35 (1887) ; Cluff v. Day, 124 N. Y. is Matter of Post, 30 Misc. 551, 195, 26 N. E. 306 (1891), decree 64 Supp. 369 (1900). charging executor with balance and " Gates v. Dudgeon, 173 N. Y. directing "said executor invest and 426, 93 Am. St. Rep. 608, 66 N. E. keep invested . . . according to 116 (1903). the trust contained in the will," biit ^'Purdy v. Lynch, 145 N. Y. 462, not in terms discharging executor. 40 N. E. 232 (1895). 1* Ward V. Ward, 105 N. Y. 68, 11 i^ Purdy v. Lynch, 145 N. Y. N E. 373 (1887). 462, 40 N. E. 232 (1895). » Matter of Underhill, 35 A. D. 631 NEW YORK ESTATE^ AND SURROGATES § 578 clared void; because he can at all times apply to the court tind he informed as to his duty and the validity of the trust.^" A testa- mentary trustee is not required to leave his business in one city of the state to go to another to give personal direction to the construc- tion of buildings on trust realty.^ Testamentary trustees may right- ly refuse to accept from an executor, as part of the trust estate, mortgages bought by the executor with the proceeds of mortgages vested hy, the will directly in the testamentary trustees on the testa- tor's death, as to which the wiU gave the executor no power of col- lection and investment of the proceeds; because the executor con- verted the estate when he did as he did do.^ But if the executor took the new mortgages in his name as such, the decree on his accounting absolving the testamentary trustee from taking over the new mortgages should direct them to vest him with title to the mortgages so that he may use them to get cash with which to pay the trustees the value of the mortgages he had collected.* A trustee may act as such before his testator's executors have accounted and been thereupon directed to turn over the trust estate to him, e. g., by investing trust money as directed in the will.^ Concur- rence, or acquiescence without original concurrence, by a cestui que trust in an act of a trustee releases the latter from any claim by the former of breach of trust.* Gestuis qiie trustent of trusts created by wills, the construction of which is sought by the foreign testamentary trustees in the courts of this state, are entitled to an order for inspection of the books and papers of the trustees.' No court will set aside actions of trustees under orders of the su- preme court in proceedings of which all living parties in interest had notice and to which they all consented, even at the instance of persons then unborn who ha,d a contingent interest; because in such cases the living owners of the estate represent not only them- selves but persons unborn.* One dealing with a trustee anent trust securities must look to the trust instrument to find the trustee's powers; and if the circumstances of a transfer of such securities by the trustee are such as to charge the transferee with knowledge of the limitations imposed by the instrument (a will), or by court orders, on the trustee's powers, he takes the securities subject "o O'Conner v. Gifford, 117 N. Y. » Matter of Kellogg, 214 N. Y. 275, 22 N. E. 1036 (1889). 460, 108 N. E. 844 (1915). /^°°.V-rS '' ^- °- '''' '' 486,r^'l!.'369'(S'. ''' ^- ^• Snpp. 557 (1902). 6 j^j^l,^^ ^ City of Philadelphia, ,2 Matter of Ryer, 94 A. D. 449 118 A. D. 276, 103 Supp. 387 (1907). (1904), or 88 Supp. 52; aff'd 180 « Myers v. McCuUogh, 63 A. D. N. Y. 532, 72 N. E. 1150. " 321, 71 Supp. 520 (1901). 632 § 578a TESTAMENTAKY TRUSTEES to the trustee's right to reclaim them.' A person actually and in good faith paying a sum of money to a trustee which the latter, as such trustee, is authorized to receive, is not responsible for the proper application of the money, according to the trust; and any right or title derived by him from the trustee in consideration of the payments cannot be impeached .42 Misc. 11, ed attorney not only of the testator 85 Supp. 830 (1903), old Code; '§§ but, of him through whom the tes- 2472, 2602, new Code, §§ 2510, 2698. tator got most of his estate; the co- ^^ Davis v. Ken-, 3 A. D: 322 trustee has been given by, the bene- (1896), or 38 Supp.: 387. : ' flciaries of the trust a power of attor- ;, 637 NEW YORK ESTATES AND SURROGATES §§ 580>'58l counts, stating :they both had possession and control of the assets accounted for, precludes them from qttestioning a decree rendered thereon while it stands; yet either may show that; after 'the decree, money was misappropriated by the Other without his fault, : and so be relieved from liability to account' therefor.^ § 580. Id: Qualified, Of Named, Trustees. — When some of the per- sons named by will as trustees neglect to qualify all sales, mortgages or leases under any power to sell, mortgage or lease 'real estate; or any interest therein, given by the will, when ' made by any trustee or trtistees named by the^ will who do qualify, are equally valid as if the trustees named but did not qualify had joined therein.* One o'f two executors-trustees who qualified, while his cotrustee renounced, is vested with all the powers given by the will to theni both.' • . ' ■ § 581. Id.: Contracts, Agreements and Debts. — Testamentary trustees and executors cannotas a general rule byiheir executorjr contracts, although. made in the interest and for the benefit of the estate. they represent, if made upon a new and independent consider- atippj.bjnd the estate and, thus create a liability not founded on the sell or to mort- gage or to lease unless it appears to its satisfaction that a written notice stating the time and place of the application for the order has been served upon the beneficiary of the trust and every other person in being, having lan estate, vested or contingent in reversion or re- mainder, in such real property, at least eight days before the mak- ing of the application, if such beneficiary or otheir person is an adult within the state; or if a minor, lunatic, person ; of unsound mind, habitual drunkard or absentecj until proof of the service on such beneficiary or other person of such notice as the court or a justice thereof prescribes.*^ The court must appoint a guardian ad litem f OS any minor and for any lunatic, person of unsound mind: or habitual drunkard who is not represented by^ a committee duly appointed." The application must be by petition duly verified which must set forth the condition of the trust estate and the par- ticular facts which make it iieeeSsary or proper that the application should be granted.** After taking proof of the facts, either before the court; or a referee, and hearing the parties and fully examining into the matter, the court must make a final order upon the ajjpli- cation.*' In case the application is granted, the' final order must authorize the real property affected by the trust, or some portion of such property, to be mortgaged, sold or leased, upon such term.s and conditions as the court may prescribe." In case a mortgage or sale of any portion of such real property is authorized, thf^ final order muat direct the disposition of the proceeds of such mortgage or sale, and must tequire the trustee to' give bond in such amount .** Real Prop. L. § 106. • ';/ application, may by order conflrm On power of ti^stee, to mortgage such leas^;; s^i^d .such order, on: its trust estate for purpose of making, entry, is Ijinding; on ^11 persons in- improverhents so as to rendei- it pro- terested in the trust' estate. Id. ductive, see note in 7 L.R.A.(N.S.) "Real Prop. L. § 107. 26.3.;: ■ •: .. Mid. . , ■' 1; 12 Real Prop. L. §; 106. .If the . " RfeaL Prop. L. | 107. trustee has leased trust, realty before *° Id. : v' June 4, 1895, for a longer term than "Id. li 5 years, the supreme court, on his , , ; , ? 640 § 582 TESTAMENTAKY TRUSTEES and with such sureties as the court directs, conditioned for the faith- ful discharge of his trust and for the due accounting for all moneys received by him pursuant to the order." If the trustee elects not to give such bond, the final order must require the proceeds of such mortgage or sale to be paid into court to be disposed of or invested as the court shall specially direct.^' Before a mortgage, sale or lease can be made pursuant to the final order, the trustee must enter into an agreement therefor, subject to the court's approval; and must report the agreement to the court under oath.*" Upon the confirmation of the agreement, by order of the court, he must execute as directed by the court a mortgage, deed or lease. ^ A mortgage, conveyance or lease made pursuant to a final order so granted is valid and effectual against all minors, lunatics, persons of unsound mind, habitual drunkards and persons not in being in- terested in the trust or having estates vested or contingent in rever- sion or remainder in such real property, and against all other per- sons so interested or having such estates who consent to such order, or who have been made parties to such proceeding as stated.* Under a testamentary instrument creating a trust for the benefit of a dependent son and giving the trustee authority "to lease, mort- gage or sell" the trust realty "whenever in his judgment may be necessary or proper in the execution" of the trusts, the trustee may borrow on his mortgage as trustee to secure funds to complete the construction on the mortgaged and largely vacant trust realty (which was unproductive) of revenue producing buildings.' Testamentary trustees should be permitted by the supreme court on petition to mortgage the trust realty not only to make improve- ments required by notice of violations of the tenement house law but structural improvements not so required, increasing the rental and market value considerably more than the cost of making them.* A devisee in remainder of land on which there is a mortgage is re- sponsible for the payment of the principal of the mortgage ; a life beneficiary for the mortgage interest after the testator's death; and a remainderman for the principal and interest up to the tes- tator's death.* Under a statute authorizing the supreme court to order the sale or mortgage of real property held in trust under a trust instrument expressing the trust when for the best interest of the estate, no sale can be had (for the purpose of paying a debt to "Real Prop. L. § 107. * Matter of Windsor Trust Co. 142 19 Real Prop. L. § 107. A. D. 772, 127 Siipp. 586 (1911). 20 I J > sjiatter of Stiles or Freeman, 64 lid Misc. 658 (1909), or 120 Supp. 714. « Real Prop. L. § 107. 3 Boon V. Hall, 76 A. D. 520, 78 Supp. 557 (1902). N. Y. E. & S.- .—41. 641 NEW YORK ESTATES AND SURROGATES § 583: the life, tenant) , of the remainder interest of persons vested with the, fee subject to such trust and subjectito being divested or of their in- terest being changed by death or birth, when the instrument (a will) creating the trust shows the settler's intent to exempt so far as possible the particular trust rproperty from the lien of his debts, and to have such debts paid from the proceeds of other property.* A devise of real property, to an executor or other trustee, for the- purpose of sale or mortgage, when the trustee is not also empowered, to receive the rents and profits, does not vest any estate in him; but the trust is valid as a power, and the real property descends to the heirs or passes to the devisees of testator, subject to the 'execu- tion of the power.'' The words "together with the appurtenances and also all the estate which the said testator had, at the timfr of his decease in said premises, arid also all the estate therein which .said grantor has or has power to convey or dispose of, whether in- dividually or. by virtue, of said will or otherwise," in any deed by an execijtor of, or trustee.under a;will,,must be construed as meaning, together with all and singular the tenements, hereditaments and appurtenajices thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.; and also all the estate, right, title, inter- est, property, possession, claim and, demand whatsoever, both in law and equity, which the said testator had in his lifetime, and at the time of his decease> or which the said grantor has or has power to convey or dispose of, whether individually or by virtue of the said last wil^; and testament or otherwise,, of, in aind to the said. granted premises, and every part and parcel thereof, with the ap- purtenances.' Trustees have no power to make leases of trust real estate fori terms extending ibeyond the, life of the trust, unless they are autliorized to do so by an order of the supreme court.' A lease- executed by one as executor after he had fully accounted and been discharged a.nd while he r was holding the property as trustee is void." - § 583. Id.: Liability for Interest. — When the failure of a trustee- in his duty: is wilful and in bad faith the highest; rate: of interest * Matter, of Easterly, 202 N. Y. creator of the trust, see note in 48- 4'66, 96 N. E. 122 (1911), Ileal Prop. L.R.A.(N.S.) 1004. L. § 105. On the right of trustee to execute "^ Real Prop. L. § 97. lease to extend beyond termination of 'Re^l Prop. L.§. 256.1- trust, see note in 13 L.R.A.(Nig.) 'Tredwell v. Tred's^ell,' 86 Misc. .496. 104, 148 Siipp. 391 (1914) , Real i" Earle v. McGoldrick, 15 Misc.. Prop. L. § 106. 135 (1895), or 36 Supp. 246. On power of court to authorize On executor" executing power of lease of trust property for a longer sale under will after discharge, see period than was contemplated by the note in 2 L.R.A.(N.S.) 623. 642 § 58-1 TESTAMENTARY TRUSTEES should be imposed dgainst him ; but when his good faith and honest mistake concur, the rate of interest rests in a discretion that per- mits a consideration of all the circumstancfes.^* A testamentary trustee is not chargeable with interest on a ruiining and uncertain account when he is liable to be called on at any time for net in- come.^* Testamentary trustees are properly charged ^ith legal interest, with annual rests, on funds of the trust as to which they kept no accounts, but surmised they paid the beneficiaries.^* A testamentary trustee is properly chargeable with legal interest witli annual rests on sums deceived from the sale of estate assets when he kept no accounts to speak of." A trustee who kept no accounts and used the trust funds in his own business is properly charged with legal interest on them as the equivalent of undisclosed profits, and by way of indemnity' for his unfaithfulness.^* It is improper to cha,rge a trustee with greater interest on a small amount of the trust fund which he has allowed to remain on deposit in a savings bank than the bank' allows, when there is nothing to show that it could readily be invested to earn more.*^ Testamentary trustees are prop- erly surcharged the amount of principal paid by them to Qne who was only entitled to the' interest thereon ; but not with interest on such principal, as the life tenant was in any event entitled^ to that." § 584. Id.: Personal Purchase, Profit and Liability .^^ trustee may losie but cannot profit from his management of the trust; and. if profits are realizeii from improper use of the fund, he must account for them,, while if no profits are made he is charged with, the fund and interest on it.*' A testamentary trustee is properly chargeable with trust funds and interest on thena from the date he deals with them both as buyer and seller or exchanges them; for :his own prop- erty,^': All contracts made by a fiduciary in which he is personally interested are invalidated at the beneficiary's election ; ■ because of " King V. Talbot, 40 N. Y. 76 " Matter of Wagner,; 132 A. D (1869). 306, 117 Supp. 53 (1909,). 1* Wilcox V. Quinby, 73 Hun, 524 "Baker v. Disbrow, 18 Hun, 29 (1893), or 26 Supp. 114. (1879), affd 79 N. Y. 631— when i»Cook V. Lowry, 29 Hun, 20 trustee ' "to invest on good bond and (1883), aff'd 95 N. Y. 103. mortgage! or in or iipon other good "Matter of Reed, 45 A. D. 196 fi\d suffleient security" buys real es- (1899), or 61 Supp. 50. ' tate the cestez may either take the ■15 Cook V. Lowry, 95 N. Y. 103 ^Z n ^f ^^ /"t^^f , °^tte f und ,-,f,f,X\ ^^^ ^1 profits for whole period (so ietl\^ J! wi oo A r. noi ^^ ^° "^'^^'^'^^ l°^s®^» i^ any, at any "Matter of Wiley, 98 A. D. 921 particular period). ' ' ■" ^ (1904), or 90 Supp. 740— Successor w Matter of Long Island Loan & trustee; amount $382.70; interest in Trust Co.- or Garretson, 92 A. D. 1 bank 3i%; sought to be held for (1904), or 87 Supp. 65, aff'd 179 6% interest. N. Y. 520, 71 N. E. 1133. 643 NEW YORK ESTATES AND SUREOGATES § 584 the inconsistency of the fiduciary's position, whether the contract be fair or unfair; and the value of this rule lies to a great extent in its stubbornness.*" The purchase by a trustee of trust property, in his own interest is not void but voidable by the cestui que trust, and the liability upon the trustee to have the purchase avoided is not indefinite, as it may cease from acquiescence, lapse of time or express act by the cestui que trust} A purchase by a trustee of trust property is not void but voidable at ihe. cestui' s instance, and the trustee's title may be confirmed not only by the express act of the cestui but by his acquiescence, and the lapse of time.* A sale and purchase by a trustee of the trust property so that he himself be- comes the purchaser is not void, as it is capable of confirmation by the express act of the cestui que trust, e. g., by the latter's acceptance of his share of the proceeds.,' An executor-trustee of one devised a half interest in lands who buys the lands in on foreclosure (after purchasing the' mortgage) and takes a deed without consideration from the owner of the other half, interest, is liable to his cestuis que trustent, at their election, to have the sale avoidecj on the return to him of the amount he paid for the land.* A cestui whose trustee has used the trust fund, with his own money, to buy property, is not limited to the amount of the trust fund misappropriated ; but has the option to an interest in the property bought in the propor- tion that his interest bore to the total purchase price, so that, he may receive the benefit of any increase in the value of the property.' Neither an executor, nor an administrator, nor a trustee, nor a guardian may buy the trust property or be directly or indirectly interested in the purchase, as agent for another or through an agent for himself, whether all be paid for the property that it is worth, or the sale be advantageous to the cestui, or not.* No trustee can purchase from himself securities in which he invests trust funds which he holds for investment.^ The rule that a purchase of trust property by a trustee of himself is voidable at the mere election of the beneficiary does not hold of a gift by the beneficiairy to the trustee, which can only be set aside in equity at the beneficiary's *' Mtinson v. Syracuse, Geneva & ' Johnson v. Bennett, 39 Barb. 237. Corning R. R. Co. 103 N,,Y. 58, 8 * Merrick v. "Waters, 51 A. D. 83 N. E. 365 (1886). . (1900),, or 64,Supp. 542; aff'd 171 1 Greagan v. Buchanan, 15, Misc. N. Y. 655, 63 N. E. 1110. 580 (1896), or 37 Supp. 83,, cestui > Holmes v. Bilman, 138 N. Y. 369, did not disaffirm for 5 years after 20 L.R.A. 566, 34 Am. St. Kep. 463, becomiiig of age and conveying his .34 N. E. 205 (1893). interest to the trustee. * Terwilliger v. Brown, 44 N. Y. 2Kahn v. Chapin, 162 N. Y. 305, 237 (1871). 46 N. E. 489 (1897), 20 years after ^Deeed. Est. L. § 111. youUgest ces 35 L.R.A. 790 164 A. D. 715, 149, Supp. 337 (1914). (1896)^Rhode Island. 9 Matter of Parr, 45 Misc. 664 " Smith v. Keteltas, 62 A. D. 174 (1904), or 92 Supp. 990; aff'd 113 (1901), or 70 Supp. 1065; affirming A. D. 921, 100 Supp. 1133, no 32 Misc. Ill, 66 Supp. 260. opinion. ' i*Monot v. Jackson, 40 Misc. 197 "Stevens v. Melcher, 152 N. Y. (1903), or 81 Supp. 688. 650 § 586 TESTAMENTARY TRUSTEES honestly and prudently expends part of the corpus of the trust fund to prevent waste tod decay of the estate will not be charged by a court of equity so as to make the expenditures a lien against his estate.** When a will gives a fund or estate in trust to trustees to invest, reinvest, pay the income for life and then the remainder over, they may make iraprovements increasing the value of trust realty and are allowable at least such portion of the sum expended as is added to the permanent value of the trust.** Insurance on a trust fund or estate is properly apportioned between the life tenant and the remainderman." § 586. Id: Investments. — A trustee holding trust funds for in- vestment may invest them: (1) in the same kiiid of securities as those in which savings banks of this state are by law authorized to invest the money deposited therein, and the income derived there- from; ** (2) in bonds and mortgages on unincumbered real proper- ty in this state worth 50% more than the amount ^oahed thereon ; ** tod (3) in certain cases, in the stock of a corporation formed to buy real property, the proceeds of sale of which the trustee is en- titled to receive.^" The text of the statute prescribing lawful in- vestments for savings banks follows. "A savings bank may in- vest the moneys deposited therein, the. sums credited to the guar- anty fund thereof and the income derived therefrom in the following property and' securities and no others, and Subject to the following restrictions: 1. The stock or bojids or interest-bearing notes or obligations of the United States, or those" for which the faith of the United Stated is pledged to provide for the, payrbent of the interest and principal, including the bonds of the District of Columbia.* 2. The stocks or bonds or interest-bearing obligations of this state, issued pursuant to the authority of any law of the state.* 3. The stocks, bonds or interest-bearing obligations of any state of the United States upon which there is no default and upon which there has been no default for more than ninety days; pro- vided that within ten years immediately preceding the .investment such state has not been in default for more than ninety days in the payment of any part of principal or interest of any debt duly au- thorized by the legislature of such state to be contracted by such « Smith V. Keteltas, 32 Misc. Ill " Deeed. Est. L. § 111. (1900), or 66 Supp. 260; aff'd 62 "Id. A. D. 174, 70 Supp. 1065. ^o Real Prop. L. § 116. " Stevens V. Melchef^ 80 Hun, 514 * Banking Law, § 239, subd. 1 (1894), or 30 Supp. 625; mod. 152 (L. 1914, c. 369). N. Y. 551, 46 N. E. 965. "Id: Subd. 2. *'' Stevei.s V. Meleher, 80 Hun, 514 (1894), or 30 Supp. 625; mod. 152 N. Y. 551, 46 N. E. 965. 651 NEW YORK ESTATES. AND SURROGATES § 580 state since January 1, 1870.^ 4^ "The stocks, bonds,, interest-bearing obligations, or revenue notes sold, at, a discount,; of- any city, coun.ty, town, village, school district, union free school district, or poor dis- trict in this sta,te, provided that they,. were issued, pursuant. to law and that the faith and credit of the municipality or district that issued them is, pledged for their payment.* 5., The stocks or bonds of any incorporated city situated in one of the states of the United States which was admitted, to statehood prior to January 1, 1896, and which since January 1, 1861, has not repudiated or defaulted: in the payment of any part of the principal or interest of any debt authorized by the legiglaiture of any such state to be contracted, provided said city has a population, as shown by the Federal census next preceding .said investment, of not less than 45,000 inhabitants, and was incorporated as a: city at least twenty-five years prior to the making of said investme,nt, and has not, since January. 1, 1878, def aultcd , f or more than ninety da-ys in the payment of . any part either of principal or interest of any bond, note or other evidence of inde,btedness, or ^effected, any compromise of any, kind with the holders thereotf, But if, after such default on the part of. any such state or city, the debt or security, in the pa,yment of the principal or interest of which ; such, default occurred, h^ been fully, paid, re- funded or compromised by , the issue of new securities, then the date of the first failifre to pa,y principal or interest, when due, upon such debt or security, shall be takeji to be the ^ate of such default, within the provisions of this subdivision, and subsequent failures to pay in- stalments of principal or interest upon such debt or security, prior to the refunding or final payment of the same, shall not be held to continue said default or tp.fix the time thereof, within the meaning of this subdivision, at a (Jatp later than the date of said first failure in payment. If at any time the indebtedness of any such city, to- gether with the indebtedness of any district, or other municipal corporation or subdivision except a county, which is wholly or in part included within the bounds or limits of said city, less its water debt and sinking funds, shall exceed 7% of the valuation of said city for purposes of taxation, its bonds and stocks shall thereafter, and until such indebtedness shall be reduced to 7% of the valua- tion for the purposes of tajcation, cease to be an authorized invest- ment for the moneys of savings banks.* 6. Bonds and mortgages on unencumbered real property situated in this state, to the extent of 60% of the. appraised value thereof. Not more than. 65% of the •whole amount of deposits and guaranty fund shall be so loaned or invested. If the loan is on unimproved and unproductive real prop- »Id: Subd. 3. ^i^. Su^,a_ 5_ *Id. Subd. 4. 652 § 586 TESTAMENTARY TRUSTEES erty, the amount loaned thereon shall not be more than 40% of its appraised value. No investment in any bonds and mortgages shall be made by any Savings bank except upon the report of a committee of its trustees charged with the duty of investigating the same, who shall certify to the value of the premises mortgaged or to be mort- gaged, according to their judgment, and such report shall be filed and presers'ed among the records of the corporation.^ 7. The follow- ing bonds of railroad corporations: (a) The first mortgage bonds of any railroad corporation of this state, the principal part of whose railroad is located within this state, or of any railroad corporation of this or aiiy other state or states connected with and controlled and operated as a part of the system of any such railroad corpora- tion of this stated and of which connecting railroad at least a ma- jority of its capital stock is owned by such a railroad corporation of this state, oi- in the mortgage bonds of any such railroad corpora- tion of an issue to retire all prior mortgage debt of such railroad companies respectively; provided that at no time within five years next preceding the date of any such investment, such railroad corporation of this state or such connecting railroad cor- poration respectively shall have failed regularly and punctually to pay the matured principal and interest of, all its mortgage indebted- ness, and in addition thereto regularly and punctually to have paid- in dividends to its stockholders during each of said five years an amount at least equal to 4% upon all its outstanding capital stock ; and provided, further, that at the date of every such dividend the outstanding Capital stock of such railroad Corporatibn, or such con- necting railroad company resjpectively shall have been equal to at least one-third of the tot^ mortgage indebtedness of such railroad corporations, respectively, including all bonds i^ued or to bfe issued under any mortgage securing any bonds in which such inivestment shall be made. If by means of consolidation a railroad corporation shall own and possess the properties and franchises which' prior thereto belonged to similar corporations, and if the outstanding capital stock of the railroad corporation formed by such consolida- tion shall be equal to at least one-third of the total mortgage in- debtedness of stach railroad corporation, including all bonds issued or to be issued under any mortgage securing any bonds in which such investment shall he made, and if during the five years next preceding such consolidation no One of, the consolidating railroad corporations shall have failed regularly and punctually to pay the matured principal and interest of all its mortgage indebtedness, and if in addition thereto during the five years next preceding such consolidation, the dividends paid in cash by one or more of such «Id: Subd. 6. 653 NEW yORK ESTATES AND SURROGATES § 586 consolidating corporations have equaled or exceeded 4% per annum upon an amount equal to the combined capital stock of the consoli- dating corporations as ou,tstanding at the time of each dividend payment during, such fiye-year period, such successor railroad cor- poration formed by such consolidation shall be cqnsidered sfS hav- ing regularly and punctually paid such matured principal and in- terest and such dividends equal to or exceeding 4% per annum during the same period of five years, provided further that the amount of dividends paid in cash during each of such five years has equaled or exceeded 4%, per annum on the stock of the con- solidated corporation as outstanding at the time of such consolida- tion.'' (b) The mortgage bonds of the following railroad corpora- tions: The Chicago and Northwestern Railroad Company; Chicago, Burlington and Quincy Eailroad Company ; Michigan Central Rail- road Company; Illinois Central Railroad Compapy; Pennsylvania Railroad .Company ; Delaware and Hudson Compaijy ; Delaware, Lackawanna and Western Railroad Company; New York, New Haven and Hartford Railroad Company ; Boston and Maine Rail- road Company ; Maine Central Railroad Company ; the Chicago and Alton Railroad Company; Morris and Essex Eailroad Company; Central Railroad of New Jersey ; United New Jersey Railroad and Canal Company ; also in the moi^tgage bonds of railroad companies whose lines are leased or operated or controlled by any railroad com- pany specified in this paragraph, if said bonds be guaranteed both as to principal and interest by, the railroad company to which said lines are leased or by which they are operated or controlled. Pro- vided that at the time of making investments authorized by this paragraph the said railroad corporations issuing such bonds shall have earned and paid regular dividends of not less than 4 per cent per annum in cash on all their issues of capital stock for the ten years next preceding such inyestment, and provided the capital stock of any such railroad corporations shall equal or exceed in amount Qne-third,of;the par yalue of all its bonded indebtedness; and further provided that, ^11 bonds authorized for investment by this paragraph shall ,be secured by a mortgage which is a first mort- gage on either the whole or some part of the railroad and railroad property pf the company issuing such bonds, or that such bonds be mortgage bonds of an issue to retire all prior mortgage debts of such railroad company; provided,, further, that the mortgage which se- cured the bonds, authorized by this paragraph is dated, executed, and recorded prior to January 1, 1905.' (c) The mortgage bonds of;, the Chicago, Milwaukee and St. Paul Railroad Com- pany, and the Chicago, Rock Island and Pacific Railway Com- 'Id: Subd. 7a. «Id: Subd. 7b. 654, § 586 TESTAMENTARY TRUSTEES pany, so long as they shall continue to earn and pay at least 4 per cent dividends per annum on their outstanding capital stock, and provided, their capital stock shall equal or exceed in amount one-third of the par value of all their bonded in- debtedness, and further provided that all bonds of either of said companies hereby authorized for investment shall be secured by a mortgage which is a first mortgage on either the whole or some pari of the railroad or railroad property actually in the possession of and operated by said company, or that such bonds shall be mortgage bonds of an issue to retire all prior debts of said railroad company; l^rovided, further, that the mortgage which secures the bonds axi- thorized by this paragraph is dated, executed and recorded prior to January 1, 1905.^ (d) The first mortgage bonds of the Fonda. Johnstown and Gloversville Railroad Company, or in the mortgage bonds of said railroad company of an issue to retire all prior mort- gage debts of said railroad company and provided the capital stock of said railroad company shall equal or exceed in amount one-third of the par value of all its bonded indebtedness and provided also that such railroad be the standard gauge of 4 ft. 8^ in., and in the mortgage bonds of the Buffalo Creek Railroad Company of an issue to retire all prior mortgage debts of said railroad company, provided that the bonds authorized by this paragraph are secured by a mortgage dated, executed and recorded prior to Janiiary 1, 1905.*' (e) The mortgage bonds of any railroad corporation in- corporated under the laws of any of the United States, which actual- ly owns in fee not less than 500 miles of standard gauge railway exclusive of sidings, within the United States, provided that at no time within five years next preceding the date of any such invest- ment such railroad corporation shall have failed regularly and punctually to pay the matured principal and interest of all its mort- gage indebtedness and in addition thereto regularly and punctually to have paid in dividends to its stockholders during each of said five years an amount at least. equal to 4 per cent upon all its out- standing capital stock ; and provided further that during said five years the gross earnings in each year from the operations of said company, including therein the gross earnings of all railrbads leased and operated or controlled and operated by said company, and also including in said earnings the amount received directly or indirectly by said company from the sale of coal from mines owned or controlled by it, shall not have been less in amount than 5 times the amount necessary to pay the interest payable during that year upon its entire outstanding indebtedness, and ithe rentals for said year of all leased lines, and further pro- 9 Id : Subd. 7c. i" Id : Subd. 7d. 655 NEW YORK, ESTATES AND SURROGATES § 586. vided that all bonds .authorized for investment by this paragraph shall be. secured by a naortgage which is at the time of making^ said investment or was at the date^ of the execution of said mort- gage (one) .a. first niortgage upon nol less than 75, per cent of the railway owned in fee by the company issuing said bonds exclusive of sidings at, the ^ate of said mortgage or (two) a refunding mort- gage issued, to retire all prior lien mortgage debts of said company outstanding at the time of said investment and covering at least 75 per cent of the railway owned in fee by said company at the date of said niortgage. But no one of the bonds so secured shall be a legal investment in case the mortgage securing the same shall au- thorize a total issue of bonds which together with all outstanding prior debts of said company, after deducting' therefrom in case of a refunding mortgage, t|ie. bonds reserved under the provisions of said mortgage to retire prior debts at maturity, shall exceed three times the outstanding capital stock of said company at the time of making said investment. , And no mortgage is to be regarded as a refund- ing mortgage, under the provisions of this paragraph, unless the bonds winch it secures mature at a later date than any bond which it is given to, refund, nor unless it covers a mileage at least 25 per- cent greater than is covered by any one of the prior mortgages so to be refunded.^* (f ) Any railway mortgage bonds which would be a legal investment under , the provisions of paragraph (e) of, this subdivision, fexcept for the fact, that the railroad corporation issuing said bonds actually owns in fee less than 500 miles of road, provided that during five years next preceding the date of any such invest- ment, thegross earnings, in each year from the operations of said corpo^ratipn, including the gross. earnings of all. lines leased and op- erated or controlled 9,nd operated by it, shall not have been less than ten million dollars.^'' (g) The mortgage bonds of a corporation described in the foregoing paragraph (e) or (f) or the niortgage bonds of a railroad, owned by such corporation, assumed' or guar- anteed by, it by indorsement on said bonds, provided said bonds are prior to and are. to, be refunded by a general mortgage of said cor- poration the bonds secured by which are made a legal investment under the prpyisionof said paragraph (e) or (f) ; and provided, further, that said general mortgage covers all the real property upon which the mortgage sepuring said underlying bonds is a lien.^' (h) Any railway mortgage, bonds, which would be a legal investment under the provisions of paragraph (e) ;or ,(g) of this subdivision except for the fact that the railroad corporation issuing said bonds- actually owns in fee less than 500 miles of road, provided the pay^- " Id : Subd. 7e. " Id : Subd. 7g. i«Id: Subd. 7f. 656 § 586 TESTAMENTARY TRUSTEE^ ment of principal and interest of said bonds is guaranteed by en- dorsement thereon by, or provided said bonds have been assumed by, a corporation whose first mortgage is; or refunding mortgage bonds are, a legal investment under the provisions of paragraph (e) or (f) of this subdivision. But no one of the bonds so guar- anteed or assumed shall be a legal investment in case the mortgage securing the same shall authorize a total issue of bonds which, to- gether with all the outstanding prior debts of the corporation mak- ing said guarantee or so assuming said bonds, including therein the authorized amount of all previously guaranteed or assumed bond issues, shall exceed 3 times the capital stock of said corpora- tion, at the time of making said investment.^* (i) The first mort- gage bonds of a railroad the entire capital stock of which, except shares necessary to qualify directors, is owned by, and which is operated by a railroad whose last issued refunding bonds are a legal investment under the provisions of paragraph (a), (e), or (f) of this subdivision, provided the payment of principal and interest of said bonds is guaranteed by indorsement thereon by the company so owning and operating said road, and further provided the mort- gage securing said bonds does not authorize an issue of more than $20,000 in bonds for each mile of road covered thereby. But no one of the bonds so guaranteed shall be a legal investnaent in case the mortgage securing the same shall authorize a total issue of bonds which together with all the outstanding prior debts of the company making said guarantee, including therein the authorized amount of all previously guaranteed bond issues, shall exceed 3 times the cap- ital stock of said company, at the time of mailing said investment. "^^^ Bonds which have been or shair become legal iilvestiiientS for sav- ings banks under any of the provisions of this section ^hall not be rendered illegal as investments, though the property upon which they are secured has been or shall be conveyed to another corpora- tion; and though the railroad corporation which issued or assumed said bond has been or shall be consolidated with another railroad corporation, if the consolidated or purchasing corporation shall as- sume the payment of said bonds and shall continue to pay regular- ly interest or dividends or both upon the securities issued against, in exchange for or to acquire the stock of the compahy consolidated or the property purchased or upon securities subsequently issued in exchange or sutetitution therefor, to an amount at least equal to 4 per cent per annum upon the capital stock outstanding at the time of such consolidation or purchase of said corporation which has is- sued or assumed such bonds.^* Not more than 25 per cent of the i*Id: Subd. 7h. i«Id: Subd. 7i. "Id: Subd. 7i. N. Y. E. & S.— 42. 657 NEW YOKK ESTATES AND SURROGATES § 586 assets of any savings bank shall be loaned or invested in railroad bonds, and not more than 10 per cent, of the assets of any savings bank shall be invested in the, bonds of any one railroad corjporation described in paragraph (a) of this subdivision, and not more than 5 per cent of such assets in the bonds of any other railroad corpora- tion. In determining the amount of the assets of any savings bank under the provisions of this subdivision its securities shall be esti- mated in the manner prescribed for determining the per centum of par value surplus by section 257 of this article." Street railroad corporations shall not be considered railroad corporations within the meaning of this subdivision." 8. (a) Promissory notes payable to the order of the savings bank upon demand, secured by the pledge and assignment, if necessary, of the stocks or bonds or any of them enumerated in subdivisions one, two, three, four, five and ten of this section or by the railroad bonds or any of them men- tioned and described in subdivision seven of thig section, but no such loan shall exceed ninety per centum of the cash market value of such securities so pledged. Should any of the securities so held in pledge depreciate in value after the making of such loan, the sav- ings bank shall require an immediate payment of such loan or of a part thereof or additional security therefor, so that the amount loaned thereon shall at no time., exceed ninety per centum of the market value of the securities so pledged for such loan." (b) Prom- issory notes made payable to the order of the savings bank upon demand by a savings and loan association of this statie which has been incorporated for three years or more and has an accumulated capital of at least fifty thousand dollars.^" 9. .Real estate as follows : (a) A plot whereon there is or may be erected a building or build- ings suitable for the convenient transaction of the business of the sayings bank, from portions of which not required for its own use a revenue may be derived.^ (b). Such as shall be iconveyed to it in satisfaction of debts previously contracted in the course of its busi- ness.'' (c) Such as it shall purchase at sales. under judgments, de- crees or mortgages held by it.? The trustees of a savings bank shall not be, held liable for investing .in state or municipal! bonds named in the last list furnished by the. superintendent of banks pursuant to section 52 of article 2 of this chapter, or, in any railroad bonds nientioned in such list, which have been legally issued' and properly executed, unless such savings bank shall have been notified by the "Id: Subd. 7i. i Banking Law, § 239, (L. 1914, c. "Id: Subd. 7i. 369), Sutid. 9(a). ' " Id: Subd. S(a) as amend'd L. ^Id: Subd. 9(b). ■ 1916, c. 363. »Id: Subd. 9(c). 2»Id: Subd. 8(b) as amend'd L. 1916, c. 363. 658 § 586 TESTAMENTARY TRUSTEES superintendent of banks that, in his judgment, such bonds do not conform or have ceased to conform to the provisions of this section.* [§ 52 of the Banking Law, above referred to, requires the superin- tendent of banks on or before the 1st day of every year to mail each savings bank a list containing the names of states and municipali- ties, the bonds of which, in his judgment, if legally issued and prop- erly executed, conform to the requirements of § 239, Banking Law, and also as complete a list as is practicable of railroad bonds which, in his judgment, if legally issued and properly executed, conform to the provisions of said section.] A savings bank may also invest moneys deposited therein, the sums credited to the guaranty fund thereof and the income derived therefrom in: 1. Judgments here- tofore or hereafter obtained against the state, for or on account of any liability or obligation heretofore created or incurred by the state." 2. Conti-acts entered into by the special examiner and ap- praiser of canal lands and the owner of lands, structures and waters or property rights pertaining thereto or connected therewith, here- tofore appropriated or damaged by the state in the construction of the improved canals, as provided for by chap. 195, L. 1908 and acts amendatory thereof.* [The statute then provides the details affecting such investments and concludes:] The word 'judgment' as used in this section includes and is intended to be synonymous with the word 'determination' and 'award.' " ' The text of the law giving trustees authority in certain cases to invest in the stock of a corporation formed to buy real property, the proceeds of sale of which the trustee is entitled to receive, is given in the note.' Any trustee holding trust funds may require- such personal bonds or guar- anties of payment to accompany investments as may seem prudent, and all premiums paid on such guaranties may be charged to or paid *Id: Subd. 9(e). corporation foi?nied or to be formed •Banking Law § 239-a, (added by for such purpose, and all adult bene- L. 1915 c. 269.) flciaries and also all, adult persons * Id. having a vested interest or estate ' Id. in possession, reversion or remainder ' Real Prop. L. § 116 : Whenever in the proceeds of such sale have an executor, trustee^ guardian of an agreed, or desire to agree that their infant, committee of a lunatic, or share of such proceeds shall be in- other person acting in a fiduciary vested in the stock and bonds or in capacity, or a life tenant, is entitled either the stock or the bonds of such to receive the proceeds of the sale corporation, then the sgid executor, of any real property sold or toi be trustee, guardian, committee or other sold pursuant to the provisions 'of person or persons acting in a flduci- this article, or pursuant to a judg- ary, capacity or the life tenant or ten- ment in partition, or pursuant to a ants may, with the approval of the power of sale contained in a deed or supreme court, invest his share of will,-, and the said property has been the proceeds of such sale in the stock or is about to be purchased by a or bonds of such corporation, pro- 659 NEW YORK ESTATES AND SURROGATES § 586 out of income, providing that such' charge or paynlent be not more than at the rate of one-half of one per centum (i of 1 per cent) per annum on the par value of such iti vestments.^ No trustee riiay pur- chase from himself securities in which he invests trust fUilds.^* Trust funds must be invested as speedily as possible in the modes recognized by law a!nd for unreasonable neglect so to do the trustee may be charged with legal interest 6n sutih' funds." Trust funds should not be used to place the principal at the hazard of loss or gain according as the enterprise ih which it is invested may succeed or fail ; especially when by the very terms of the investment the principal is not to be returned at all'.'^ For loss arising from in- vestments of trust funds on the sole seciirity of individual or per- sonal responsibility, tru'stees are personally responsible.** The loan of trust property to a firni. of stockbrokers without any security vided, however, that such corporation or such ptlier person or persons act- shall be prohibited by its certificate iiig in a fiduciary capacity, or a life of incorporation from investing in tenant, entitled to receive the pi^o- any stock, bonds or other . securities ceeds of such sale, and shall set forth other than real estate which are not the; reasons for such investment and under the laws of this state a proper the. nature thereof and the peculiar subject for the investment of trust facts which imake it proper that the funds. The supreme court snail not application Shall be granted. After grant an order permitting such an taking proof of the facts either be- investment, unless it appears to the fore the court or, a referee, and hear- satisf action of such court that a ing .the parties a,nd fully examin- written notice stating the time and ing into the matter, the court , must place of the application for such ma!k6 a final order Updil the ap plica- leave has been served upon< every tion. In case thie applicatioh is beneficiary and also upon every per- Lgranted, the final order must au- ?on in being having a vested ipte^est , thorize, the said execiitor, trustee, or estate in possession, reversion or guardian of an infant, committee of a remainder, in such proceeds, at least lunatic, or other person or persons 8 da;ys' bstf or6 the making thereof, if acting in a fiduciary capacity, or life such beneficiary or other person is tenant, so entitled to receive the pror an adult within the state; or if a ceeds of such sale, to make such in- minor, lunatic, person of unsound vestment upon such terms and condi- mind, habitual drunkard or absentee, tions as the court may therein until proof' oif the service on such prescribe, beneficiary or other person of such ' * Deeed. Est. L. § 111. notice as the c6urt or a justice there- *' Deeed. Est. L. § 111. of prescribes.' The court shall ap- ** Matter of Nesibyth, 140 N. Y. point a special guardian for any 609, 35 N. E. 942 (1894). minor and for any lunatic, person ** King v. Talbot, 40 N. Y. 76 of unsound mind, or habitual (1869). drunkard, who shall not be repre- ** Matter of Krisfeldt, 49 Misc. 26, sented by a committee duly ap- 97 Supp. 877 (1905).' pointed. The application must be by On personal liability of a trustee petition duly verified, must te' made for 'losses to trust estate from invest- by the executor, trustee, guardian nients, see note in 44j L.R.A.(N.8.) of an infant, committee of a lunatic, 873. 660 § 586 TESTAMENTARY TRUSTEES other than the peiisonal obligation of the borrowers, or the employ- ment of it in a* business, of that character with the permission or acquiescence of the executors is unauthorized.^* The executors are not only personally responsible for the principal but for the full rate of legal interest sO; long as the prohibited use of the trust fund continues, whether the investments be productive or not, and wheth- er the executors be themselves directly interested in the business or not; because the primary object of the creation of the trust, viz., the preservation and, perpetuity of the fund, is defeated by exposing the fund, to the perils of ; commercial pursuits. ^^ If the trust fund was taken by the firm of which one of the executors was a member immediately on the testator's, death and actually earned at least 6 per cent interest from that date, the executors will be charged such interest from the date of testator's death because their letters re- lated back to such death and invested them with title as of that date and it was their duty to collect such interest from the firm and to pay it over.^® Testamentary trustees need not forthwith invest income becoming due at the end of the year and make it bear in- terest, but may prqperly hold it to meet charges for support for the then coming year ; and if any remains at such year's end, then and not till then should it be carried to principal and bear interest.^' Trustees are under no duty to invest a legacy until the e:«ecutors have in hand for inves;tment a sum sufficient to pay the legacy ; " and are not chargeable with interest thereon until such time.*' An executor-trustee is properly chargeable with the whole of the prin- cipal; and interest thereon at 6 per cent, for a period beginning six months after a decree on his executorial accounting which fixed such principal as the capital of the trust fund created by the will and directed it deposited in a trust company; because such a decree does not make the deposit a permanent, but merely a temporarj' investment and the trustee must within a reasonable time invest the principal in a court investment.*' Every testamentary trustee must keep the funds and property received from the estate of any deceased person separate and distinct from his own personal fund and property ; and if he does not do so he is guilty of a misdemeanor.*" He must not invest such funds or property ; or deposit them, with any person, association, or corpora- tion doing business under the banking law, or other person or cor- 1* Matter of Myers,, 131 N. Y. 409, "King v. Talbot, 40 N. Y. 76 SON. E. 135 (1892). (1869). 15 Matter of Myers, supra. " Matter of MuUer, 31 A. D. 80, 18 Matter of Myers, 131 N. Y. 409, 52, Supp. 565 (1898). 36 N. E. 135 (1892). 20 c. C. P. § 2664-a; added by L. "King V. , Talbot,, 40 N., Y.. 76 1916, c. 588. (1869). 661 NEW YOEK ESTATES AND SUBROGATES fSSff poration, in his own name, and if he does do so, he is guilty of a niisdemeaner.^ All transactions had and done by him must be in his name as such trustee.* Executors or testamentary trustees who invest the trast fund by leaving it in their names as such in a private banking house are liable for any loss of the principal, although they did so at the life beneficiary's request, who accepted the bank in- terest as sufficient payment of his income ; because they can so leave money on deposit for a reasonable time only, while seeking investment, and must invest in government, real or legally author- ized securities.' It has been held that although a trustee should not invest the fiduciary funds in his own name or mingle them with his own or the funds of another trUst yet it is not improper for a cor- porate trustee to take mortgages in its own name and from time to time (when it has become its duty to invest the funds of any of its trusts) to allot to a trust a portion of the investment represented by such mortgage until the moneys of several unrelated trusts are in- vested together in the same mortgage, provided it malces a fair and precise record and entries in its books clearly demonstrating as to each mortgage the parts thereof which have been distributed to the various trusts concerned and faithfully conveys notice to the bene- ficiaries of the disposition of the fund.* A testator has unlimited authority to direct how his money may be invested by his trustees or may leave the manner of such invest- ment completely in their discretion; and if he follows the latter course, the trustees cannot be held to have abused the trust in any way if they acted withiii the limits of' their discretion and did not abuse it.* Even though a will give trustees discretion as to the char- acter of their investments of trust funds it does not empower them to invest in a new, speculative, or hazardous venture.* A testamen- tary trustee directed to invest in good, sound, dividend-paying secur- ities may retain securities found by him as investments deliberately chosen by the testator and may replace them with similai" securities, subject to the exercise of his prudent discretion and good business judgment.'' A trustee' can only legally invest in trust securities, and ^Id. 58 N. E. 11 (1900)— in very new * Id. company to majke umbrellas ; dictum * Matter of Donohue, 88 Misc. 359 that might have been proper to (1914), or 151 Supp. 1094. invest in stock of railway, manufac- On liability of' trustee for loss of turing, banking or even business trust money deposited in bank, see corporation which had achieved a note in 45 L.R.A.(N.S.) 1. standing in commercial circles and ac- * Matter of Union Trust Co. 86 quired the corifldence of investors by Misc. 392 (1914), or 151 Supp. 1099. success for long period of time. 6 Matter of Eeid, 170 A. D. 631, '' Duncklee v. Butler, 30 Misc. 58 156 Supp. 500 (1915). (1899), or 62' Supp. 921. 6 Matter of Hall, 164 N. Y. 196, 662 § 586 TESTAMENTARY TRUSTEES is properly held liable for investments in speculative land ventures in another state, when the will gives him a general discretion in the sale and management of the estate, e. g., "to enable my execu- tor to conveniently carry out this will, I hereby bequeath and de- vise to said executor all my real and personal property of which I shall die seised and owner, but in trust, however, for the purposes of this will, with power to sell and convey atiy and all my real estate," etc' Trustees investing, in bonds and mortgages on their own and their wivies' property, funds which they are by will direct- ed to invest only in United States or New York state public stocks, are guilty of fraud and must make good to the estate any loss.^ Un- less a will give testamentary trustees power to invest the trust fund in the capital stock of a private corporation, all that a trustee can do when such a corporation, part of the stock of which the trust consists of, declares a dividend and offers to its stockholders the right to subscribe to a proposed increase of its capital stock at par, is to sell, such subscription rights to the highest bidder and to in- vest the proceeds for the trust fund in legal securities." A trustee who fails to invest a fund held by him for investment in such securities and manner as the law authorizes or the will 're- quires, when he either has the chance so to do or might by due dili- gence make such an investrnent, is responsible to the beneficiaries for the loss they may sustain by his neglect of duty.^^ Although a trustee finding the trust fund already invested in interest bearing- securities need not at once sell them and invest in legal, trust in- vestments, it is an exceptional case which will save him^ from responsibility if loss results. ^^ Trustees under a will allowing the re- tention in the trust fund of any securities, whether legal tiiist secur- ities 6r not, owned by the testator at his death, are charged with the duty of inquiring whether securities received by them of the testa- tor's executors are legal, trust investments and are liable for any loss sustained by the fund within a reasonable time (six months) from receipt by them from the executors of securities bought with the proceeds of securities owned by the testator at his death and not legally authorized as trust investments.^^ Testamentary trustees will be surpharged with sums invested in a manner not authorized by the will a,ppointing them ; but the decree surcharging them will direct that the securities in which investment has unlawfully been 8 Matter of Reed, 45 A. D. 196 " Matter of Barnes, 140 N. Y. 468, (1899), or 61 Supp. 50. 35 N. E. 653 (1893). nieldon V. Devlin, 20 Misc. 56 nQn?^^"nt%°Q ^"""'^^lo ^Wm ^Iv ,,„„ ■ ._ _ ' ., (1901), or 69 Supp. 753: aff'd 167 (1897), or 45 Supp. 333. ;^ y. 629, 60 N. E. 1123. " Matter of Hidden or Webb, 63 " Villard v. ViUard, 166 A. D. 203, Misc. 535, 118 Supp. 589 (1909). 151 Supp. 1027 (1915). 663 NEW YORK ESTATES; AND, SURKOGATES § 566 made be turned over to them personally, so that they may use them in realizing the amount of money with, which they are surcharged." A trustee is not relieved frorn liability , for the, security of a trust fund, received by him in cash and invested in securities not author- ized by law, by passing them, over to,}iis successor, and by his dis- charge; but only when legally inypstpd' or converted into money, e. g., by payment to his successor of a note which he turnedover (even though the successor divert the proceeds of the note) }^ A trustee owning individually a bond and mortgage in which he tells his co- trustee ( who so reports to the cestui que trust) he has invested trust funds in his hands, and for the interest on which he accounts to, the estate, holds the bond and mortgage, as trustee, though there be no written assignment made, of it to the estate.^* The estate of a trustee who invested trust funds on personal bonds secured by, mortgages on city real estate, which was good security but became bad through depreciation so that he had to buy the lands in on foreclosure to protect the estate, if the land values appreciate so that at his death the premises are worth all they cost, is not liable for the loss later arising through depreciation of the lands again after his death." Trustees investing in bonds , purchased at a premium must set apart a sufficient sum from the income each year to form a sinking fund ample enough to keep intact the principal of the trust, unless, there is something to show that the testator did not require the trust capital to be kept intact.^' Investments made by trustees must be maintained intact from loss by payment of premiums on securities having only a definite time to run, unless the will clearly directs otherwise; so that, amounts paid to redvice premiums on bonds bought by the trustee above par must be paid from income.^' The general rule that trustees making investments must keep the prin- cipal intact from loss, by payment of premiums on securities hav- ing only a definite term to run, does not hold if there is a clear di- rection in the will to the contrary.^" "Matter of Irwin, 59 Misc. 143, 147; aff'd 195 N. T. 611, 89 N. E. 112 Supp. 20^ (1908). 1101. 15 Matter of Foster, 15 Hun, 387 ^^ Kemp v. Macready, 165 A. D (1878). 124, 150 Supp. 618 (1914), "I direct 18 Butler V. Weekfe, 12 Misc. 192, . . . executors . . . to set apart 33 Supp. 1090 (1895)v .i out of my estate such sum as will be "Atlantic Trust Company v. sufficient to provide an annuity" (of Powell, 23 Misc. 289 (1898),, ,or 50 certain sum) "over and above all Supp. 866. ' , taxes, expenses, and charges con- I'N. Y. Life Ins. & Tr. Co. v. nected therewith . '. . and to col- Baker, 165 N. Y. 484, 53 L.R.A. 544, leet and receive, the income thereof, 59 N. E. 257 (1901). and out of the net income arising to 1' Matter of Guaranty Trust Co. pay pver and apply to the use of" a 131 A. D. 638 (19,09), qr ll6 Supp. specified, beneficiary, a stated sum. 664 ■■ §§ 587, 588 TESTAMENTARY TRUSTEES A cestui que ti-ust may approve or ratify an unauthorized invest- ment and enjoy its profits; or reject it.* Even though a trustee (an attorney) gets from a beneficiaiy. (a client) an agreement to save him harmless from any claims by reason of improper investments of the beneficiary's moneys implicitly entrusted to him, the trans- action will be vigilantly scrutinized, and the onus will be on the trustee to show by the clearest evidence that there was no fraud, in- fluence or mistake.* The fact that remaindermen failed to object to unauthorized investments by testamentary trustees on settlement of one account does not preclude them from objecting to invest- ments of the same class thereafter made.' When a life tenant to whom would be paid any rent collected from the realty directs the trustee not to rent the property but to maintain it unoccupied for reasons deemed sufficient by the former it is not only the privilege but the duty of the latter to obey such direction.* § 587. Id: Transfer Tax.— The subject of the Transfer Tax as it affects testamentary trustees is discussed in the chapter on "Admin- istrators" in connection with the treatment of the same topic as it affects administrators and executors.* § 588. Id.: Principal and Income: Dividends. — The right to divi- dends accrues when they are declared, no matter when the earnings from which they are declared are made.* Dividends of corporate stock indicate funds derived from the business and earnings of the corporation appropriated by corporate act to the use of, and to be divided among the stockholders, and, until such division is made, a holder of shares of the corporation's stock has no legal title to the company's profits or property. Dividends on stock belong to him who holds the stock when the dividends are declared, at whatever time they may be payable ; because the declaration is in legal con- templation a separation of the amount of the dividends from the corporation's assets, which thereafter holds such amount as trustee for him who was stockholder when the dividend was declared.'' Title to dividends on corporate stock is determined by its ownership when the, dividends are declared, and not when earned.* Certificates of a corporation (a) redeemable at its option in money or stock (b^i at no fixed time, (c) transferable, (d) entitling the holder at the 1 King V. Talbot, 40 N. Y. 76 « Goldsmitli v. Swift, 25 Hun, 201 (1869). (1881), *Kissain v. Squires, 102 A. D. 536, 'Hopper v. Sage, 112 N. Y. 530. 92 Supp. 873 (1905). 8 Am. St. Rep. 771, 20 N. E. 350 * Matter of Irwini; 59 Misc. 143, (1889). 112 Supp. 205 (1908). ' Brundage v. Brundage, 65 Barb. * Madison Trust Co. v. Floyd, 151 397 (1873), aff'd 60 N. Y. 544. A. D. 722, 136 Supp. 213 (1912). * See § 112, supra. 665 NEW YORK ESTATES AND SURROGATES § 588 corporation's electioij to dividends, thereon out of future earnings at the same rate and time ,as dividends shall be paid on capital stock, are known as scrip, and are distributed among stockholders as scrip dividends.' , . , "1. Ordinary dividends, regardless of the time when the surplus out of which they are applicable was accumulated, should be paid to the life beneficiary of the testator, 2. Extraordinary dividends, payable from the accumulated earnings of the company, whether payable in cash or stock, belong to the life beneficiary, unless they entrench in whole or in part upon the capital of the trust fund as received from the testator or maker of the trust or invested in the stock, in which case such ■ extraordinary dividends should be re- turned to the trust fund or apportioned between the trust fund and the life beneficiary in such a way as to preserve the integrity of the trust fund In each case [of extraordinary dividends] the court should look into the facts, circumstances and nature of the transaction and determine the nature of the dividend and the rights of the contending parties according to justice and equity." " This rule is applicable unless a contrary intent is expressed in a will creat- ing the trust.''* "Presumptively, all dividends, whether paid in cash or in stock, are income ; " and a resolution that, as the assets of the corporation exceed the par value of its stock by a certain sum, the capital stock is increased to represent in capitalization the existing surplus assets, does not indicate whence the surplus assets came, and does not, therefore, rebut such presumption.'^ A living beneficiary is entitled to all dividends declared on corporate stock held by the trustee for the beneficiary's benefit, but not to amounts owned or reserved by the corporation when no dividends have been declared, e. g., an increase in the value of the stock caused by an accumula- tion of undistributed profits does not become income or profits pay- able to a living beneficiary until dividends are actually declared by the directors whereby a separation is made of such profits to be dis- 9 Goldsmith v. .Swift/ 25 Hun, 201 (N.S.) 768, 35 L.R.A.(N.S.) 563, 50 (1881). L-.R.A.(N.S.) 510. '" Matter of Osborne, 209 N.' Y. " Est. of Megrue, N. Y. L. J. 450, 50 L.R.A.(N.S.) 510, 103 N. E. July 14, 1915 (N. Y. Surr.) 723, 823, Ann. Gas., 1915 A, 298; « fatter of Leask, 159 A. p.- 102, (1913); Matter of Affleck, 83 Misc. 143 Supp. 865 (1913). 659 (1914), or 146 Supp. 835; Mat- ;. On appreciation in value of eap- ter of Todd, 85 Misc. 298 (1914), ox ital assets as fund distributable as 147 Supp. 161. dividend, without reference' to losses. On right as between life tenants see note in 1 B. R. C. 965. and remainderman in dividends or , On accretions in value of corporate distributions made bv corporations, assets as basis of dividends, see note see note in 45 L.R.A.''394, 12 L.R.A. in L.R.A.1915D, 1052. 666 § 588 „TESTAMENTAEY TRUSTEES tributed to stockholders." A dividend declared on corporate stock before the death o| its owner, but payable after his death, is prin- cipal of a trust fund created by his will; because as. soon as profits on shares of stock are ascertained and declared they cease to be the property, of the corporation and become the property of the owner of the shares." It seems that a gift of the profits and dividends of stock for life would not carry with it dividends declared after the death of the beneficiary, although made from profits accrued dur- ing his life.^* A sale of corporate stock reserving all profits and divi- dends upon it up to a certain date, divests the seller of all right to dividends declared after such date, though partly earned before such date.^* Dividends declared from the sales , of lands received by a railroad for building railways are income ; because (a) derived from their capital; (b) it had no source of income other than this; and (c) such dividends were for such company truly ordinary and not extraordinary.^" The increase of a corporation's capital stock by the declaration of. a cash dividend upon the understanding that its stockholders should buy additional stock with such dividend, if the increase represents actual profits and income from the com- pany's business, however designated on its books, is income and goes to the life tenant of a trust fund composed of stock, of the corpora- tion." Additional stock in a corporation received by testamentary trustees, holding some of such corporation's stock, as a stock divi- dend, if an extraordinary stock dividend, should be apportioned be- tween the life beneficiary and the remainderman, so that the portion of the earnings and profits of the corporation represented by the stock dividend which were, accumulated prior to the creation of the trust should be awarded to the remainderman, and the portion thereof accumulated' and earned subsequently to the creation of the trust should be awarded to the life beneficiary, or his successor in interest." When a stock dividend represents in part the capital of the corporation, or profits realized before the testator's death, it is to be considered as principal ; but so much as represents profits or earn- ^^ Stewart v. Phelps, 71 A. D. 91 On right of existing stockholders (1902), or 75 Supp. 526; affi'd 17S to subscribe for increase of stocks, see N. Y. 621, 66 N. E. 1117. note in 12 L.R.A.(N.S.) 969. " Matter of Kernoehan, 104 N. ¥,. " Matter of Affleck, 83 Misc. 659 6l8, ll N. E. 149 (1387). (1914), or 146 Supp. 835. 1^ Hyatt V. Allen, ; 56 N. Y. 553 On apportionment of dividends be- (1874), dictum. " tween life tenant and remainderman, IS Hyatt V. Allen, supra. , see notes in 12 L.R.A.(N.S.) 763, 50 "Matter of James, 146 N. Y. 78, L.R.A.(N.S.) 510. 48 Am. St. Rep. 774, 40 IJ, E. 876 On apportionment of income upon (1896). death of life beneficiary between dis- 1* Matter of Carey - v. . Thorne; 63 tribution periods, see note in 27 Misc. 489, 118 Supp. 5.04 (1909). L.R.A.(N.S.) 449, , 667 NEW YORK ESTATES AND SURROGATES § 589 ings after the testator's death is income.*' Shares of stock of a new corporation, in excess of shares in an old corporation, issued from the old's Capital and not from its earnings or profits, are part of the corpus of the trust estate holding the stock in the old corporation.* That a trustee has not paid over dividend stock to the beneficiary entitled to all the income, but has for years carried it with the gen- eral principal of the trust, and has collected the dividends upon it and paid them to the beneficiary, is sufficient basis for regarding it as principal.* The holding of other decisions involving the question of the proper crediting of dividends, rendered before .the decisioli in the Osborne case, are collected in the note; ' and are to be considered in the light of the Osborne opinion. § 589. Id. : Rents, Proceeds of Sale, or Condemnation, etc. — ^Rents of realty left in trust for the life of one with remainder over, ac- *" Matter of Megrue, 170 A. D. Lowry v. Farmers' Loan & Trust 653, 155 Supp, 1059 (1915). Co. 172 N.' Y. 137, 64 N. E. 796 1 Goldsmith v. Swift, 25 Hun, 201 (1902), and McLouth v. Hunt, 154 (18&1). N. Y. 179, 39 L.R.A. 230, 48 N. E. 2 Matter of WeU, 80 iMisc. 473 548 (1897) :— In determining whether (1913), or l42 Supp. 463. a iividend is capital or income the 'Robertson v. De Brulatour, 188 fact that the value of the shares of N. Y. 301, 80 N. E. 938 (1907) :— stock on which it is declared has been When dividends are declared on lessened is immaterial, as the origin stock forming, part of a trust fund of the dividend is the true criterion, they belong to the trust and are pay- so that a dividend declared on capital able to the life tenant 'if the amount stock, payable in neW certificates, distributed does not treneli on the based oh an accumulation of earn- capital of the corporation declaring ings or profits is income, them but is declared from the surplus Thayer; v. Burr, 203, N. Y. 155, 94 of the corporation's earnings and in- N. E. 604 (1911) : — Bonds and scrip come, unaffected by the proceeds of received on corporatp stock held in the sale of real estate forming part trust as a dividend goes to the life of its capital, and new shares of tenant in so far as it represents earn- stock bought by trustees under .their ings and to the remainderman in so powers, and a right to subscribe far as it represents an increase in the therefor attached to securities form- value of the corporation's invest- ing part of the trust fund, as well as ments. money received from the sale of such Matter of Stevens, 47 Misc. 560, subscription right, become capital to 95 Supp. 1084 (1905) :— Surplus which the life beneficiary of the trust and undivided profits of a bank on has no title. which it had never declared dividends Chester v. Buffalo Car Mfg. Co. but which it had allowed to remain as 70 A. D. 443 (1902), or 75 Supp. "surplus and undivided profits," on 428 : — Whether money or stock goes the death of a stockholder entitled to the life tenant or the remainder- thereto, should be credited to the life man depends upon whether the cor- tenants under his will as being in- poration makes it a distribution of come, because they are no part of the profits or appropriates its surplus as stock or working capital of the bank, an increase of capital stock. Matter of Baldwin or Curtiss, 74 668 § 590 TESTAMENTARY TRUSTEES crued since the testator's death, go to the trustee as income and are not subject to payment of the testator's debts and funeral expenses.* Rents, interest and dividends accrued or becoming payable after a testator's death but before the death of a life tenant to whom the use of real and personal estate is left by his will, go to the hfe ten- ant.* That proportion of the net proceeds of damages sustained by trust realty by the maintenance of an elevated railroad which repre- sents rental damages accruing before the life tenant's death is in- come and goes to the life tenant or his personal representative ; while the rest goes to the remainderman.* The proceeds of the sale of land by trustees after they had bought it in on foreclosure to pro- tect the trust fund should be apportioned between the principal and the income of the trust in the ratio which the aggregate principal of the mortgage bears to the whole unpaid interest to the date of sale by the trustees.' § 590. Id.: Carrying and Accounting Charges. — The question of whether taxes, the cost of repairs and the expenses of improvements should be put upon principal and income has been already some- what discussed in connection with the treatment of the powers, du- Mise. 341 (1911), or 133 Suj)p. 1109; the capital of which is solely in lands aff'd 142 Supp. 1107: — A dividend and the only source of income of received hy a trust estate declared which is from the sale of lands ; so wholly from a surplus of accumu- that one bequeathed one-half of the lated earnings and not representing income of stock held by the testator the increased value of investments in such a corporation gets such divi- goes to the life tenants as income. dends thereon as the corporation or- Eichmond v. , Richmond, 123 A. D. dinarily would declare, even in the 117 (1908), or' 108 Supp. 298, afi'd face of the possibility that he might 196 N. Y. 535, 89 N. E. llll :— A in that way acquire the whole of the cash dividend declared from earnings stock the income of which was be- only, goes to the life tenant of a trust queathed him. comprising the stock on which the Matter of Cooper, 82 Misc. 324, dividend is declared; but stock pur- 144 Supp. 189 (1913): — Dividends chased by rights of ownership of derived from a surplus accumulated stock in the corporation as an inci- by a corporation whether payable in dent to such ownership, exists because cash or stdek; if the surplus was ac- the stock exists, and is, therefore, cumulated after a testator's death, principal. are income and go to the life bene- Matter of James, 78 pCun, 121 flciary of a trust created by his will, (1894), or 28 Supp. 992; aff'd 146 and if the, surplus was accumulated N, Y. 78, 48 Am. St. Rep. 774, 40 N. before his death, are principal. E^ 876 :— An exception to the gei^eral * Matter of Stiles or Freeman, 64 rule that the life tenant gets all divi- Misc. 658 (1909), or 120 Supp. 174. dends declared on trust, corporate * Mattgr of Eranklin, 26 Misc. 107 stock from current and accummulated (1899), or 56 Supp. 858. earnings, while th^ i remainderman , * Coga,n v. MeCabe, 23 Misc. 739, gets all dividends paid from property 52 Supp. 48 (1898). (or its proceeds), in which capital is ' Matter; of Marshall, 43 Misc. 238 invested,, exists a? to, a corporation (1904), or 88 Supp. 650. ' 669 NEW YORK ESTATES AND 'SUREOGATES § 590 ties and liabilities of trustees as to taxes^ repairs and improvements:' When' a will gives the life tenant the net ih'come of the' trust fund, all just and proper exi^enses' of carrying any of the assets of the trust, if incurred in proper administration, must be bbrne by the income.^ Testamentary trustees properly pay from the income of the trust fund insurance premiums required by a mortgage placed on the trust realty by the testator, as well as premiums for additional in- surance not in excess of the value of the life estate and for the ac- count not of the remainderman but of the life tenant a;nd with the' latter's consent.^" - No part of outlays for trust property which has not appreciated during a period in which the income has been less than one-fourth the outlays can be put on the life tenant.'^ Testa- mentary trustees may properly impose on the principal of the trust fund. the carrying charges of unimproved and- unproductive trust property which they had withheld from the market for the eventual bene,fit of the remaindec.when such property has sufficiently appre- ciated, in value to justify their ^mauagement' of it.^^ Expenditures in iiuproving real estate which caused it to sell at ^ higher price should be charged to principal and inotto income; "but if parties interested did not contest its charge to income on an accounting in which this point .could have ;been decided if it had been 'r&dsed, they are bound by the decree made.^* The expenses iiifctiiTed by trustees in defending the trust ai;e payable 'out of the' corpiis of the est-ate.^' .Vlthough the life-beneficiary, of a tr^st .may, not alienate or .assign his .interest, ..he may subject it to a; claim for legal services; and trustees may properly seek inderhnity not only from ;the Corpus of a trust fund but from the interest o'f the life ben eficiarj'^ for expen- ditures made by theni in defense of.the truet rendered necessary by thfe uhwa,rraated actions of the life', tenant.^*. The costs of a trus- tee's accounting are payable from the corpus of the f*und." Ex- penses of anaecouiiting necessarily had by testamentary trustees are properly charged ' against the corpus, because the trust fund' must bear ' the expeji^^ .of its adijiinistration.^', The costs and ex- penses of a testamentary, trustee's annual accounting "should be » § '585, supra. " Matter of Ziegler, 82 Misc. 10, 9 Matter of Brooklyn Trust Co. or' 143'Supp. 682 (1913), Weaver, 92 Misc. 674, 157 Supp'. 547 ' ** Matter of Ziegler, siipra. (1915). ." Steinway v. Steinwky, 112 A. D. "Stevens v.' Meleher, 152 N. Y. 18 (1906), or 98 Supp. 99; aff'd 197 551, 46 N. E; 965 (1897),.' N. Y. 522, 90 N. E. 1165. "Matter of Coombs or Gleason, 62 "Matter of Ungrich, 201 N. Y Misc. 597, 116 Supp. 1129 (1909)— 415, 94 N. E. 999 (1911). rent $50 and outlays .$210.11 for 5 "Est. of Gordon, N. Y. L. J. Feb vear period. ' -27. 1915 (N. Y: Surr.) **JVra;tter of Coombs or Gleason, 62 " Chifeolm 'v. Hamersley, 114 A. Misc. 597, 116 Supp. 1129 (1909). D. 565 (1906), or 100 Supp. 38. 670 §§•591,592 TESTAMENTARY TRUSTEES borne by tlie income unless thej^ have been incurred in the adminis- tration, preservation or increase of the principal.^* § 591. Id.: Investments. — "The loss or gain in the value of securities purchased by the trustee in the exercise of his sound dis- cretion should go to the diminution or accretion of capital^ as the case may be, unless a contrary intention is expressed in, or neces- sarily implied from, the trust instrument, and this discretion of the trustee in the matter of investments should not be interfered with, unless it appear to have been abused or exercised with partiality in favor of either the life tenant or remainderman." ^^ The necessity of maintaining or providing a sinking fund to take care of premi- ums paid by a trustee in the purchase of trust securities has been touched upon heretofore.^ Premiums paid by executors in the pur- chase of securities under a will not providing for a sinking fund, and giving them the broadest discretion in making investments, will be charged against the life tenants.^ The rule requiring trustees to maintain a sinking fund, with which to make good any deprecia- tion in the value of securities by the falling off in the premiums, has no application when the securities have beeh specifically be- queathed; but only in ordinary cases when the will affords no aid upon the question of the testator's intent, and the trustees them- selves have made investments from the trust funds in the purchase of securities at a premium.^ A surplus over the amount of an in- vestment in trust securities, on their sale after the life tenant's death, goes to the remainderman and not to the representative of the life tenant, when the trust .funds had always been kept invested in such securities, upon which there was a fixed rate of interest payable an- nually, determinable by the provisions of the securities, and it was never possible for the trustee to secure therefrom any extra divi- dends or any greater annual income, according to the testator's directions that payment of the annual interest, . income and divi- dends be made to theilife tenant for life and- on his death that pay- ment of the principal be made to the remainderman.* § 592. Actions' By Trustees. — A testamentary trustee of a testate, non-resident, settlor whose will was proven in the jurisdiction of the testator's residence may maintain an action in this state to re- cover any of the trust property from 'anyone wrongfully detaining or converting it here, or for damages for such detention or conver- ^^ Matter of Long Island Loan & ^Matter of Hawk, 54 Misc. 187, Trust Co. or Sloan, or Garretson, 79 105 Supp. 856 (1907). Mi.sc. 176 (1913), or 140 Supp. 752., ' Roj^ertson v. De Brulatour, 188 20 Matter of N. Y. Life Ins. & N. Y. 301, 80 N. E. 938 (1907). Trust Co. 24 Misc. 71 (1898), or 53 * Matter of Gerry, 103 N. Y. 445, Supp. 382. 9 N. E. 235 (1886). 1 See § 586, supra. 671 NEW YORK ESTATES AND SURROGATES § 593 sion, not in his representative but in his individual capacity; be- cause he is the legal owner of the property.* It is not a prerequisite to the maintenance of the action that he prove the will here, al- though he may have to get it in evidence to show his title.* On the death of a beneficiary of a trust of personalty without issue, on which event the principal was to fall into the trustor's residuary estate, an action commenced by the trustee to recover money should not be ordered at an end if not revived by the legal representative of the deceased beneficiary, unless some party to it objects to the court's jurisdiction or raises the question of substitution or addition of parties ; because the trustee was still under the duty to collect the trust fund and hold it until it could be paid over to those en- titled to receive it.'' An action by the residuary legatees of a testa- tor to recover the principal of a fund the life legatee of which is dead must be brought in the name of a representative of the trust estate ; so that if such representative be dead and the fund is in his executors' hands, the latter cannot be sued directly by the residuary legatees, but some representative of the trust estate must be ap- pointed to sue.' If testamentary trustees, after demand, refuse to bring a suit necessary to protect tie trust fund, the beneficiaries may themselves enforce their right by action, making the trustees par- ties defendant.' It may be that the court, on proper application, would have power to appoint a trustee, when necessary, to bring such an action.' § 593. Actions Against Trustees. — "An action to enforce a trust can only be brought by a beneficiary, and it must be in equity. But if there has been an accounting and promise to pay, or the equiva- lent thereof, an action at law may be brought for the ascertained sum ; and if an action at law could be so brought the claim could be assigned and the action brought by the assignee." " The remedy of beneficiaries of a trust against a trustee before his accounts have been settled and a balance struck and while thei trust is open and continuing is for an accounting in equity ; while, if the balance has been ascertained and the trust has been closed, an action at law for money had and received, etc., is proper. ^^ No action by one alone ^ Title, Guarantee and Trust Co, ' Squire v. Bugbee, 65 A. D. 429 C. B. & Q. R. R. Co. 123 N. Y. 37, 25 (1901), or 72 Supp. 1023. N. E. 198 (1890)— executor assigned 'Robinson v. Adams, 81 A. D. 20 stock to trustee and corporation is- (1903), or 80 Supp. 1098; aff'd 179 sued new certificate therefor to Ni Y. 558, 71 N. E. 1139. trustee. " Batchis v. Leask, 149 A. D. 713, 6T. G. & T. Co. V. C. B. & Q. R. 134 Supp. 350 (1912). R. Co. supra. ^i Van Camp v. Searle, 147 N. Y ■'Farmers' Loan and Trust Co. v. 150, 41 N. E. 427 (1895). Pendleton, 115 A. D. 306, (1906),' C. C. P. § 75(3. ■ • 672' § 594 TESTAMENTARY TRUSTEES of several cestuis que trustent against a trustee to recover for him- self alone his share , of a trust fund belonging to them all can be maintained until the trust has been closed, and the balance of the fund ascertained : otherwise the trust might be subverted by taking the property of many for the benefit of one.^^ An engagement by one trustee to a broker to sell trust realty is the personal obligation of such trustee on which he can be sued without joining his co- trustee.^' Trustees of an express testamentary trust, charged- by the will with the duty of keeping the trust property in repair, are liable individually and not as trustees in a suit against them for an injury sustained by a faU of the plaintiff on such property.^* Tes- tamentary trustees receiving money as such may be sued in their representative capacity for its recovery, e. g., a contract, by them to sell land which they failed to fulfil.^' Ordinarily the statute of lim- itations does not run in ffivor of a trustee, against claims not bari-ed at the time of his appointment, so long as the trust is open and continuing and has ijot been repudiated or denied; because the possession of the trustee is not till then hostile or adverse to the claim of the cestui que trust.^^ The statute of limitations does not come into play when neither the trustee of an express trust nor his successor in interest has ever denied the character of the trust re- lation or that the moneys, were held under the trust." An action by cestuis to set aside transfers by the trustee, of realty in which no actual, but only constructive fraud, is shown is barred by the ten year Statute of Linaitations.** After a trust relation has ended by the yielding of the estate to a successor, e. g., by an executor's ac- counting, revocation of letters and transferring of the estate to his successor, with the kno^svledge of the cestui, the Statute of Limita- tions begins to run in the trustee's favor against an action by the cestui to vacate the surrogate's decrees and reclaim excessive pay- ments therein allowed ; and only actual or intentional fraud will be effective to suspend the statute.^' § 594. Appointmemt; What Jurisdiction Supreme and Surrogate's Courts Have. — Strictly speaking, a testamentary trustee can only be a person deriving his status; from the will itself. But oftentimes " Husted V. Thompson, 158 N. T. " Merritt v. Merritt, 35 A. D. 442 328, 53 N. E. 20 (1898). (1898), or 53 Supp. 127; a£f'd 161 "Diamond v. Wheeler; 80 A. D. N. Y. 634, 57 N. E. Ill7. 58, 80 Supp. 416 (1903.). " Chorrmann v. Baehmann, 119 A. "Keating v. Ste;wenson, 21 A. D. D. 146 (1907), or 104 Supp. 151; C. 604 (1897), or 47 Supp. 847. , C. P. §§ 388, 382 subd. 5. , , wScheibeler v. Albee, 114 A. D.' ^^ Spallholz v. Sheldon, 216 N. Y. 146 (1906), or 96 Supp. 706. 205, 110 N. E. 431 (1915). 1^ Ludington v. Thompson, 153 N. y. 499, 47 N. E. 903 (1897). N. Y. E. & S.— 43. 673 NEW YORK ESTATES AND SURROGATES §'594 a person must be appointed to execute a trust contained in the will by reason of the failure of the trustee' named in the will to fulfil his trust duties (whether because of his death, removal or otherwise), or by reason of the failure of the will to name a trustee to carry out the trust it creates. In such a case', the power to appoint the per- son to carry out the trust may be either in the supreme court, or the surrogate's court, or both. ■ The supreme court, subject to the regulations established for the purjDOse in the general rules of practice, has power, except in the lases of trusts arising' or resulting by implication of law, or (b) when other provision is specially made by law for the resignation or removal of a trustee or the appointment of a new trustee : — (1) To accept the resignation of, and discharge, a trustee, on his applica- tion by petition or action; *" (2) To remove a trustee (a) who has violated his trust, or (b) Who threatens to violate his trust; or (c) who is insolvent, or (d) whose insolvency is apprehended, or (e) who for any other cause is deetoed to be an unsuitable person to execute the trust-^— either in an action brought, or on a petition pre- sented, by any person interested in the trust ; ^ (3) To appoint a new trustee in the place of a resigned or removed trustee; and to cause the trust to be executed by a receiver di' other officer under its di- rection in the meantime, if- there is no acting trustee." On the death of the last surviving or sole surviving trustee of an express trust, the trust estate does' not descend to his heirs nor pass to his next of kin or personal representatives ; but iii the absence of a con- trary direction on the part of the person creating the trust, the trust — if unexecuted-^Vests in the supreme court, with all the pow- ers arid duties of the original trustee or trustees, and must be exe- cuted by sOnle person' appointed for that purpose under the direc- tion, of the court, but who must not be appointed tintil the bene- ficiary or beneficiaries have been brought info court by such notice and in such manner as the court or a jiastice thereof may direct.* The person so appointed mUSt give such security as the court may require; and is subject to the same requirements- of law as to ac- counting and the administration of the trust as are testamentary trustees; and is entitled to such compensation for his services by way of commissions as the court appointing him' determines, which cannot in any case exceed jthe compensation allowed by law to ex- ecutors and administrators, besides his just and reasonable expenses in the matter in which he is appointed.* The court may appoint a ]ierson to act as trustee 6f a trust for which no trustee is appointed I .,; «»Real Prop. L. § 112, subd. 1. 'Real. Prop. L. § 111. lid: Subd. 2. ♦Id. 2 Id: Subd. 3. 674 § 594 TESTAMENTARY TRUSTEES by the Avill.^ The supreme court may confer on a substituted trustee appointed by it in an action as well as in a proceeding all the powers which the original trustee had.^ "The power is inher- ent in the supreme court, without the aid of the statute . . . to administer trusts, in so far that it may, upon the' death or dis- ability of a trustee of an unexecuted trust, appoint another to exe- cute it ; and for adequate cause may remove a trustee and supply his place with another to complete the execution of the trust." '' A trust is not destroyed because its beneficiary becbhies its sole trustee for his own benefit ; but he should not act except by court direction : and the court will assume control and determiiie if reason exif^ts for the mortgage or sale by the trustee of the trust realty.' Upion the death of a life beneficiaxy of a trust fund the trustee does not immediately become personally liable in aii action for conversion for the amount of the trust fund originally received; because the life beneficiary's death does not per s6 sever the trustee's relation to the fund, but the latter continues' as trustee till the ahiount of the fund he holds and to whom he shall pay it has been judicially de- termined by an accounting either in the surrogate's court or in a court of equity in a proceeding or action therefor to which all persons interested are made pa,rties.' The surrogate's court has jurisdiction to appoint a successor in place of a testamentary trustee." The surrogate's' court can ap- point a successor to a deceased testamentary trustee!^* T'he power of the surrogate to appoint a new trustee on the dea;th or resigna- tion of a sole trustee is broad enough to enable him to deal with a case in which all of several testamentary trustees ■ die or' resign.^* A surrogate has jurisdiction of a successor, trustee appointed by him in a decree settling the accounts; of a surviving trustee and the execu- tors of a deceased trustee, allowing the resignation, of the former and directing the executors of the deceased trustee to pay over the fund, to the successor trusteie, even though his appointment was prema- ture; and the decree cannot, therefore, l^g collaterally q,tt.a(;ked." It is doubtful if the surrogate's court may appoint a successor trustee to act with two trustees appointed by the supreme court ; SBundy V. Bundy, 38 N. Y. 410 " C. C. Pi § 2'510:, (1868). "Matter of Chase, 40 Misc. 616 ^Leggett V. Hunter, 19 N. Y..445 (1903), or 38 Supp. 62; old Code § (1859). 2818, 1903 amendment. T Greenland v. Waddell, 116 N. Y. « Royce v. Adams, 123 N. Y. 402, 234, 15 Am. St. Rep. 400, 22 N., E. 25 N. E.. 386 (1890), old Code, § 367 (1889). 2318. 'Irving V. Irving, 21 Misc. 743 " Conant v. Wright, 19 Misc. 321, (1897), or 47 Supp. 1025. 44 Supp. 727 (1897). ' Deering v. Pierce, "149 A. D. 10 (1912), or 132 Supp. 582. 675 NEW YORK ESTATES AND SUEKOGATES §§ 595-599 preferably the former court should remit the petitioner for such appointment to the latter court. ^* § 595. Id.: What Surrogate Has Jurisdiction. — That surrogate's court in which a will appointing a testa,mentary trustee is probated has jurisdiction, to appoint his successor. § 596. Id. : Persons Incompetjent, In General. — No person is com- petent to serve as a testamentary trustee who is: (1) under the age of twenty-one years; (2), an adjudged incompetent; (3) an alien not an inhabitant of New York state; (4) a felon; or (5) incompe- tent to execute the duties of his trust by reason of (a) drunkenness (b) dishonesty : (c) improvidjence, or (d) want of understanding; or (6) death.^* A testamentary trustee not required by law to give a bond cannot qualify or serve when the surrogate, after objection filed and proof taken, finds either that he is not a resident of the state or that his circumstances are such that they do not afford ade- quate security to creditors or persons interested in the fund for its due administration; unless such trustee gives a bond as prescribed by law, and, if he is a nonresident, of the state shows he is a citizen of the United States." § 597. Id.: Infants,r-No person is , compe;tent to serve as testa- mentary trustee who is under the age of twenty-one years.^'' § 598. Id.: Adjudged Incompetents. — No person is competent to serve as a testamentary truste? who is an adjudged incompetent.^* § 599. Id.: Aliens and Noninhabitants, or Nonresidents. — No person is competent to serve as a testamentary trustee who is an alien not an inhabitant of this state.*' The subject of alienage in general has been heretofore discussed.*" It will be noted that to alienage must be added noninhabitancy of the state to disqualify as trustee. A person who is an alien may hold land in New York state as trustee for alien beneficiaries when he could do so as an individual.* Although a devise to one named trustee might be void because hfe was an alieti,"yet if liiade to him as trustee it is good, because he takes the income as personal £^nd not as real prop- erty.* The incompetency of a testamentaty trustee to qualify and serve because of nonresidence, alone is not absolute. It only exists when (a) he is not by law, required to give a bond, (b) objection has been. filed against .his'qualification and service, (c) proof has been "Matter of Leavitt, 135 A. D. " C. C. P, § 2564, Subd. 3. 7 (1909), or 119 Supp. 769. *" See § 34, supra. «C. C, P, § 2564.. iHayden v. Sugden, 48 Misc. 108 W-C. C. P. '§§2564, 2567. (1905), or 96 Supp. 68l. "C. C. P. § 2564. ■■ * Marx V. McGlynn, 88 N. Y. 357 " C. C. P. § 2564, Subd. 2. (1882). 670 §§ 600, 601 TESTAMENTAKY TRUSTEES taken upon the filing of the objection, and (d) the surrogate has found upon such proof that he is not a resident of the state.* Even if such nonresidence is established to the surrogate's satisfaction, the person named testamentary trustee may entitle himself to act under the will by (a) giving a bond as prescribed by law,* and (b) showing that he is a citizen of the United States.* § 600. Id.: Felons. — No person is competent to serve as a testa- mentary trustee who is a felon.* The incompetency of a felon to serve as testamentary trustee is probably removed by a pardon of the crime for which he was cbnvicted granted before the testator's death.^ Conviction and fine in a Federal court for a misdemeanor for violation of the excise law,' or conviction and fine in the court of special sessions (Albany county) for a crime punishable by im- prisonment and fine, or both,' probably is not sufficient to dis- qualify the person convicted, as a felon, from serving as testa- nientary trustee. A felony, in order that one guilty of it shall be disqualified from serving as testamentary trustee, probably must be a crime in which presentment or indictment by grand jury is a prerequisite to conviction.' § 601. Id.: Drunkenness, Dishonesty, Improvidence, Want of Understanding. — No person is competent to serve as testamentary trustee who is incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of under- standing.' The incompetency which disqualifies a person from serving as testamentary trustee is not nioral delinquency, but such habits of mind and colid.'uct as have become part of' the man and render it likely that he is generally' and under all ordinary circum- stances unfit to exercise his trust and protect the fund from loss.^* For example, proof of illiteralcy or small pecuniary means does n5t necessarily constitute such incompetency,^^ while proof of being a gambler presumptively ddes.^^ The reason improvidence is made by law to disqualify him who is improvident from serving as testa- mentary trustee is not that it is of itself proof of incompetency, but ' C. C. P. § 2564. Statute Used words "infJampus *C. C. P. § 2567. I crime," instead of felony. B n' n " P ' S 2564 Subd 4 ' ^y analogy : Matter of O'Hai-a, 6^' i„n.,.. MoH„^ 'J T?o,,r,«, 60 Misc. 269, 113 Supp. 281 (1903). «By analogy: Matter of Eaynor, p, "infamous crkrtV." u=iP^ 48 Misc. 325 (1905), or 96 Supp. "9 c c P §2564 sTbd 5 ' 895 ; Statute construed provided that lo By analogy : Emerson' v. Bowers, "no person is competent to serve as 14 n_ y. 449. (1856) ; McMahon v. an executor who at the time the Will Harrison, 6 N. Y; 443 (1852). is proved— shall have been convicted 11 gy analogy : Einerson v. Bowers, of an infamous crime." supra. 'By analogy: Matter of Greene, ^* By analogy: McMahori v. Har- 48 Misc. 31 (1905), or 96 Supp. 98. j-ison, supra. 677 NEW YQilK ESTATES, AND;, SURROGATES §§ ,602-604 that its existence in him who is to, manage the trust funcj subjects the. fund to one of those very chances, pf, loss which the restiriction pla<:ed by lawsegks to avoid, Therefpre, the, mere fact, that the person appointed- ; testamentary trustee , will give a bond for the faithful performance of his trust does not necessarily fit hirn for service as testamentary trustee, as what the : law seeks is not recovery after a. wrong has been done but protection against the doing of the wrongful act." The fact that a bond is given .s,i',eatly strengthens the chance of a person appointed testamentary trustee to be allowed to serve as such-^* A gambler would prob- ably be presumed incompetent to serve as testamentary trustee.^' Want of understanding as a cause for incompetency to serve as tes- tamentary trustee means lack of intelligence.^* § 602. Id. : Renunciation or R|^fusal.T-^No person can be made against his will to serve as testamentary tnistee. Omission by one named: trustee in a will to qualify for twenty years after its probate and permission by such trustee to other persons during that period to perform , the trust duties without challenge must be deemed a re- nunciation and refusal to accept the trust." , A trustee cannot re- tract his renunciation pf his appointment as such after his cotrustees have acted as such.*' § 603. Id.: Inadequate Circumstances. — The incompetency of a testamentary trustee whose circumstances do not afford adequate security for the due administration of his Isstator's trust fund to the creditors or persons interested in it is not absolute. It only exists when (1) he is not by law required to give a bond, (2) ob- .jection has been filed against his qualification and service, (3) proof has been taken upon the filing of the objection, and (4) the surrogate has upon such proof found that his circumstances are such that they db not afford adequate security for the due adminis- tration of the fund to the creditors and persons interested in it.** Even if such inadequate circumstances have been established to the suiTogate's satisfaction, the person named trustee may entitle him- self to act under the will by giving a bond as prescribed by law.^" § 604. Appointment: When Made and on Whose Petition: In Sur- rogate's Court: When No Trustee in Office. — A successor or succes- "By analogy: Matter of Fergu- 48 Misc. 31 (1905) or 96 Supp. 98, son, 41 Misc. 465 (1903), or 84 Supp. (administrator). 1102 ;— dictum ; administrator. ^'Matter of Robinson, 37 N. Y. i*JBy analogy: Matter of Brinck- 261 (1867). ermann, 89 Misc. 41 (1915), or 152 " Matter : of Kellogg,. 214 N. Y. Supp. 542; administrator. 460, 108 N. E. 844,(1915). 15 By analogy: McMahon v. Hani- *» C. C. P. § 2564. son, 6 N. Y.,443 (1852). ^o C. C. ?. § 3567. ** By analogy : Matter of Greene, 078 § 604 TE;STAMENTARY TRUSTEES sors to a person named or qualified as testamentary trustee or trus- tees may be appointed by the surrogate's court if (a) such appoint- ment will not contravene the express terms of the will and (b) there is no trustee in office, in the following circunistances : — (1) When all the persons named in a will as testamentary trustees die prior to its probate; or (2) When all the persons named in a will as testa- mentary trustees renounce the appointment, by an instrument in writing; or (3) When all the testamentary trustees die; or (4) When all the testamentary trustees become incompetent, or (5) When all the testamentary trustees are removed by a decree of the surrogate's court; or (6) When all the testamentary trustees are al- lowed to resign by a decree of the surrogate's court; '^^ (7) A succes- sor trustee can only be, appointed when necessary for the real benefit of the cestui qu& ttn^t and, if one of the trustees, ^till survive, when he is in some way incapacitated.^^ The issue of thie proper person to be appointed as new trustee on the death of a sole one cannot be re- ferred by the court to a referee for final determination.^ Though a testamentary trustee do not die till the eve of the entry of a decree directing the principal of the trust fund to be paid the guardian of the infant remainderman, yet a successor trustee must be ap- pointed when the will provides for such appointment.^* A successor trustee of a trust to pay income to a named beneficiary, and, on the latter's death, to pay and divide the principal among certain per- sons, may be appointed by the surrogate on the removal of a sole trustee even though the cestui que trust has died, as the trust has even then not been fully executed.** On a proceeding to compel the executors of a deceased cotrustee to account, and to permit the petitioning trustee to resign on settlement of his accounts, and to have a successor appointed, the surrogate may appoint a successor trustee before the entry of an order accepting the retiring trustee's resignation and discharging him, as the point is one of practice and not of jurisdiction.** Application for: appointment of a successor or successors to a trustee or trustees may be made by any person interested.*'' A person interested in a fund includes every person entitled either absolutely or contingently to share in the fund, whether as husband, wife, legatee, next of kin, devisee, grantee, as- signee, or otherwise ; except as a creditor.*' An application for ap- *i C. C. P. § 2638. *s Yates v. Thomas, 35 Misc. 552 ** Matter of Zerega, 81 Mi.sc. 113 (1901), or 71 Supp. 1113; old Code, (1913), or 142 Supp. 144; afPd 144 §2818. Supp. 1151. ** Conant v. Wright, 22 A. D. 216 *3 Coster V. Coster, 125 A. D. 516, (1897), or 48 Supp. 422; afi'd 162 109 Supp. 798 (1908). N. Y. 635, 57 N. E. 1108. ** Matter of Vernon, 77 Misc. 425, *'' C. C. P.;§ 2638, 137 Supp. 767 (1912). - *« C. C. P. § 2678. 679 NEW YORK ESTATES AND SURROGATES § 605 pointment of a trustee is sufficient to bring about such appointment if it makes prima facie proof of the existence of the trust and the death of the trustee, unless the papers in opposition conclusively disprove such prima facie case ; because 'sUch an appointment is not res adjudicata on the existence of the trust, and that question may thereafter be tried out.^ Your surrogate's court's rules may pro- vide that no petition for appointment of a testainentary trustee will be entertained if a prior proceeding is pending.* § 605. Id.: When Trustee in Office. — A successor or successors to- a person named or qualified as testamentary trustee or trustees may be appointed, by the surrogate's court if such appointment will not contravene the express terms Of the will, although there is a trustee in office, unless all the beneficiaries under the trust waive such ap- pointment in writing, under the following circumstances: (1) When one of two or more persons named in a will as testamentary trustees dies prior to the probate of the will; or (2) When one of two or more persons named in a will as testamentary trustees re- nounces his appointment by an instrument in writing; or (3) When one of two or more testamentary trustees dies; or (4) When one of two or more testamentary trustees becomes a lunatic; (5) When one of two or more testamentary trustees is removed by de- cree of the surrogate's court; or (6) When one of two or more testamentary trustees is allowed to resign by decree of the surro- gate's court.* A successor trustee will not be appointed while two trustees are still acting unless the court is satisfied from facts estab- lished bef oi'e it that such an appointment would be for the benefit of the cestuis' que trustent* The fact that added tommissions would be entailed is tO be considered in determining whether such appointment would benefit' the beneficiaries of the trust.^ When the supreme court has appointed the two trustees still in office and the surrogate's court is to appoint the third, the fact that the two former cannot be compelled to account to the surrogate's court is also to be considered.* A successor testamentary trustee may be ap- pointed only when for the benefit of the cestui que trust; and will not be appointed when trusts remaining unexecuted may be suf- ficiently executed by the surviving trustee, and answers to the pe- tition completely explain all the material facts tending to show a benefit by the appointment of a successor.'' A successor to one of several testamentary trustees will not be appointed unless such ap- * Matter of Landmesser, 101 A. D. " itatter of Leavitt, supra. 110, 91 Supp. 774 (1905). SMatter of Leavitt, supra. - * See, e. g. Rule 17, Bronx. '' Maltter of Zerega, 81 Misc. US 8 C. C. P. § 2638. (1913), or 142 Supp. 144; aflf'd 144 « Matter of Leavitt, 135 A. D, 7, Supp. 1151, old Code, § 2818, new^ 119 Supp. 769 (1909). ' Code § 2Q38. 680 I 606 TESTAMENTARY TRUSTEES pointment would be for the benefit of the beneficiary.' A testa- mentary trustee who does not complete his trust duties cannot charge upon the trust fund the costs of having his successor ap- pointed but must himself bear them.' An application for appoint- ment of an additional trustee should be made, not by notice of mo- tion, but by means of a citation.^" Your surrogate's court's rules may provide that no petition for appointment of a testamentary trustee will be entertained if a prior proceeding is pending.^^ § 606. Id.: Appointment by Supreme Court. — The supreme court, subject to the regulations established for the purpose in the General Rules of Practice, has power, except in the cases of trusts arising or resulting by implication of law, or when other provision is specially made by law for the appointment of a new trustee, to appoint a new trustee in the place of a resigned or removed trustee; and to cause the trust to be executed by a receiver or other officer un- der its direction in the. meantime, if there is no acting trustee.^^ On the death of the last surviving or sole surviving trustee of an -express trust, the trust estate does not descend to his heirs, nor pass to his next of kin or personal representatives; but in the absence of a contrary direction on the part of the person creating the trust, the trust — if unexecuted-^-vests in the supreme courtj with all the powers and duties of the original trustee or trustees, and must be executed by some person appointed for that purpose under the direction of the court, but who must hot be appointed until the bene- ficiary or beneficiaries have been brought into court by such notice and in such manner as the court or a Justice thereof may direct. ^^ An ex parte appointment by the supreme court of a substituted trustee in place of a sole, deceased trustee is properly vacated ; and on such vacation the court may designate a person to execute the trust." A judgment reciting it was made on plaintiffs' motion, :simply appointing a new trustee and directing that the trust realty be conveyed to him, will be set aside when all parties, including the plaintiff, deny it was granted on their motion or knowledge of its entry till found in the clerk's oSice, when the action was by plaintiffs as executors of a sole trustee, to have the latter's accounts settled and a new trustee appointed, because the judgment does not confirm the report of a referee appointed or adjudicate the accounts, discharge the estate from liability on turning over to the new 'Matter of Dietz,: 132 A. D. 641 "See, e. g. Rule 17, Bronx. (1909), or 117 Supp. 461,idism'd 196 ^ Real Prop. L. § 112. N. Y. 528, 89 N. E. 1098. ^« Real Prop. L. § 111. 'Matter of Bevier, ; 17 ;Misc. 486, "Matter of Reiniscli, 20 A. D. 41 Supp. 268 (1895). 416, 46 Supp. 902 (1897), Real Prop. lOEst. of Brennan, N. Y.. L. J. L. § 91. Apr. 20, 1916 (N. Y. Surr.) 681 NEW YORK ESTATES AND SURROGATES §§ 607-609 trustee; and makes no way by which conveyance of the tnist property can properly be made.^' To determine whether the ap- pointment by the supreme court of a successor to a sole surviving trustee is necessary it is only necessary to inquire whether the trust is an express trust and whether the deceased trustee was engaged in the execution of a still unexecuted trust." § 607. Id.: Notice: In Surrogate's Court. — Notice of an applica- tion for appointment of a successor or successors to a testamentary trustee must be given to such persons as the surrogate may desig- nate.^'' "In a proceeding simply for the appointment of a trustee to execute trust duties and powers, for the faithful performance of which security is always required, it is a matter of discretion with the court as to whom notice shall be given." " § 608. Id.: Notice: In Supreme Court. — A person cannot he ap- pointed by the supreme court to execute an unexecuted trust de- volved upon it (through the death of the last surviving or sole sur- viving trustee of an express trust, and the failure of a contrary direc- tion on thepartof the person creating the trust) until the beneficiary or beneficiaries have been brought into court by such notice and in such manner as the court or a justice thereof directs. *' "In a proceeding simply for the appointment of a trustee to execute trust duties and powers, for the faithful performance of which securitj'' is alwaj's required, it is a matter of discretion with the court as to whom notice shall be;given." '" Although no order appointing a person to execute a trust can be made without notice to the bene- ficiary and those entitled to the remainder, yet an appointment of a referee in a proceeding of such a character, irregular because the remaindermen were not parties to the proceeding, will be affirmed, if, on an appeal, the remaindermen submit a brief asking that the appointment of the referee be affirmed.* ' § 609. Id. : Objectioms. — In the surrogate's court any person in- terested in the fund which a person named testamentary trustee is to administer may; file objections to such person's qualification and service.^ A person interested in a fund includes every person en- titled either absolutely or contingently to share in the fund^ wheth- er as husband, wife, legatee, next of kin, devisee, grantor, assignee or otherwise, except as a creditor.* Objections to the qualification " Coster V. Coster, 125 A. D. 516, " Real Prop. L. § 111. 109 Siipp. 798 (1908). «<• Matter of Robinson, 37 N. Y. 18 Matter of Application of Heeht, 261 (1867). 71 Hun, 62 (1893), or 24 Supp. 540, * Matter of Wetmo^eyllS A. D. L. 1882, c. 185. 232, 98 Suppj 952 (1906). 17 C. C. P. § 2638. " C. C. P. § 2566. 18 Matter of Robinson, 37 N. Y. » C. C. P. § 2678. 261 (1867). 682: §§ 610-612 TESTAMENTARY TilUSTEES and service of a testamentary trustee may be filed at any time be- fore the testamentary trustee is allowed to qualify and serve.* The objections to the qualification and service of a testamentary trustee must: (1) show the interest of the objectant in the trust fund; and (2) set forth specifically one or more legal objections to allow- ing the testamentary trustee to qualify and serve." The filing of objections to the qualification and service of a person named as testamentary trustee necessitates refusal by the surrogate to allow the testamentary trustee to qualify until the matter is disposed of.* In the supreme court, objections to the appointment of the trustee should be made by the beneficiaries on the return-day specified in the notice which the court or a justice thereof requires to be given them. § 610. Id.: Decree, Order or Judgment.— In a surrogate's court proceeding the decree is, in general, in the usual form of any de- cree in a surrogate's proceeding, and appoints or declines to appoint the testamentary trustee.'' On appointment by the supreme court of a trustee on the death of a sole trustee, the judgment should not appoint some one trustee, but should provide that on the death of the sole trustee thei trust, being unexecuted, vested in the supreme court, and should then appoint such an one the personal repre- sentative of the court to carry out the trust.' § 611. Id.: Oath or Consent.-^A person named in a, will or ap- pointed by the surrogate as trustee must qualify before exercising the duties of his or its office by taking and filing with the surro- gate an oath of office, if an individual ; or by filing a consent to ac- cept such appointment, duly executed and acknowledged, if a trust company or other trustee exempted by law from taking an oath of office.' The official oath of a testamentary trustee must be to the effect that he will, faithfully and honestly discharge the duties of his office as testamentary trustee.-^" It must be filed in the sur- rogate's office before he is permitted to act.^^ It may be taken be- fore any officer who is authorized to administer oaths.'* § 612. Id. : Bond or. Consent. — A person named by a will or ap- pointed by the surrogate as trustee must qualify before exercising the duties of his or its office by filing with the surrogate such bond as the latter may require, if an individual,'^ or, if a trust company or other trustee exempted by law from filing a bond, by merely filing the consent above referred to.'* A trustee, or an executor required * C. C. P. § 2566. , 9 C. C. P. § 2637. 5 C C. P. § 2566. " C. C. P. §§ 2568; 2637. « C. C. P. § 2566. " C. C. P. §§ 2568; 2637. ' See § 846, infra. '^ C. C. P. §§ 2568; 2637. 8 Jewett V. Schmidt, 83 A. D. ;276 " C. C. P. § 2637. (1903), or 82 Supp. 49. "Id. 683 NEW YORK ESTATES AND SyRROGATES § 612 to hold, manage or iiiAs^t,any mouey, securities Q^r property (real or personal) for the benefit of another, before receiving any sufib, property into his possession or control, must execute, a bond when- ever appointed, either (a) by any last will and testament executed after September 1, 1914, or, (b) by any order of the surrogate; un- less contrary to the express terms of the will; making the appoint- ment.^^ A bond exequted by a trustee appointed either by a will executed after September 1, 1&14, or a surrogate's , prder must be executed (a) by the trustee; (b) by sufiBpient surety or sureties, (c) in an amount tp be fixed by the surrogate, (d) to the people of the ^tate of, New York, (e) in, the usual form." The surrogate; must carefully file and preserve; the l)ond in his office ; " and must ap- prove it and endorse his approval on the bond ^' except that in couUt ties containing the whole or a part of a city of the first or second •class a clerk designated in \^riting by the surrogate or surrogates of such counties may approve the ;bon,d as wpU as the surrogate or surrogates.** When approved, the tiond must be recorded.^" Se- curity will not be exacted from a testajnientary trustee on the ground that his eircumstanees are such that they do not afford adequa,te se- curity for the due administration; of the trust fund merely because (a) he is a sole, trustee, , (b) there must be a time when, under the will, the estate will be without a legal custodian; and (c), the trust was created solely to confer a personal ,beDefit on the trustee.* Ap- proval of a testamentary trustee's bond filed iji the surrogate's court must be given : In all counties except those containing the whple or a part of a city of the first or second class, by, the surrogate; and in all counties containing the whole or a part of a city of the first or second class by the surrogate or a clerk in his office designated in writing by the surrogate.* Approval of all bonds must be endorsed on the bond.^ The rules of your surrogate's court may require a testamentary trustee personally to qualify in court as principal on his bond.* A person appointed by the supreme court to execute the powers and duties of an original last or sole surviving trustee of a trust vested in the supreme court by the dea:th of such trustee, must give such security as the court may require.* > ' ■ ' , ' ■ ■ 15 c. C. P. §§ 2639; 2641. A trus- 8" C. C. P. § 2575. tee under a will executed, before * Matte..- of Weil, 49 A. D. 52, 63 Sept. 1, 1914, need not give bond. Supp, 688 (1900), old Code, §§ 2638, [Est. of Michele, N. Y. L. J., July 2815, new Code, §§ 2567, 2639. 22, 1916. N. Y, Surr.] » C. C. P. §§ 2575; 812. 16 C. C. P. § 2639. » C. C. P.- §§ 2575, 812. : " C. C. P. § 2488. * See, e. g. Rule 18, N. Y. " C. C. P. §§ 812; 2575. , , = Real Prop. L. § 111. " C. C. P. § 2575. 684 §§ 613, 614 TESTAMENTARY TRUSTEES § 613. Id.: New Bond in Surrogate's Court: Grounds. — The rea- son given for requiring a new bond or sureties or additional sureties of the principal in the bond must be: (1) That a surety is insuf- ficient; (2) That a surety has removed from the state; (3) That a surety is about to remove from the state; (4) That a surety is dead ; or (5) That a bond is inadequate in amoilnfe* § 614. Id.: Petition. — A new bond frdm a testamentary trustee may be required in certain cases by order of the surrogate on peti- tition of sureties to be released ; or of parties interested or creditcjrs ; or of the trustee himself.'' A testamentary trustee who is principal on a bond which he has been reqiiired to file may ask for leave to file a new bond or for a new surety in a proceeding which is pending for the intermediate judicial settlement of his account, upon good cause shown.* No petition is necessary. A personanterested in the fund which a testamentary trustee's bond'and sureties protect, may present a petition for a new bond in any case in which there is ground therefor.' A person interested inclu'des every person entitled either absolutely or contingently to share in the fund, whether as hugbarid, wife, legatee,' devisee, next of kin, graiitee, assignee or otherwise ; except a creditor.^" An allegation of a person interested, duly verified, of his interest, who applies for increased security, suf- fices, although his inter'est is disputed, unless he has been excluded by a judgment, decree of other final deteriiiination and no appeal therefrom is pending.^^ Any or all of the sureties oh a testamentary trustee's bond may present a petition to the surrogate's court pray- ing to be released from responsibility on accolint of any future breach of the coiidition of such bond, and that the trustee be re- quired to give new sureties, render and settle his account, and that a citation issue to the' trustee td show cause why the application should not be granted. ^^ A peitition by a testamentary trustee, ju- dicial settlement of whose intermediate account is pending in a pro- ceeding therefor, is not necessary iii order to ohtain leave to file a new bond or give a new surety; asthe trustee may simply in such proceeding ask, upon good cause shpw;n, for leave-to file a new bond or give a new surety.*' ^ The contents, of a petition by a person in- terested in a fund must conform in general to the standard petition in ariy surrogate's proceeding.** , It must st^te the facts, oij which depend the court's jurisdiction, , viz., that a surety on the existing bond is insufficient, or, has removed or is about to remove from the 8 C. C. P. § 2577. " C. C. P. § ms. ■? C. C. P. §§ 2579; 2577; 2581. ^^ c. C. P. § 2579. 8 C. C. P. § 2581. 13 C. C. P. § 258i: 9 C. C. P. § 2577. " C. C. P. § 268L 10 C. C. P. § 2768. 685 NEW YOEK ESTATES AND SURROGATES §§ 615, 616 state, or is dead, or that the bond is inadequate in amount.^* It must ask that the trustee be cited." It must state the relief sought, viz., that the trustee be required to give a new bond, in a larger penalty; or new or additional sureties, as the case requires; and that, in default of so doing, he be removed." The contents of a surety's petition on a testamentary trustee's existing bond must conform in general to the standard petition in a surrogate's pro- ceeding. It must state the jurisdictional facts, e. g., the standing ■of the petitioner ; ** ask that the trustee be cited ; ^* state the relief sought, viz., that the petitioner be released from respoiisibility on account of any future bre,ach of l;he condition of the bond; that the trustee be required, to give new or additional sureties and to render and settle his accoupt; and that a citation issue to him to show cause why the application should not begranted.''' § 615. Id.: Citation.; — If the application for leave to file a new bond or give new sureties is made by the testamentary trustee him- self, as principal, in a pending proceeding for judicial settlement of his intermediate account, no citation is necessary. ^^ If a person interested in the fund .petitions for a new bond from a testamentary trustee a citation must issue when it appears to the surrogate that there is reason to believe the petition's allegations are true.*" It is- sues to the testamentary trustee.^ Its contents conform generally to the standard citation in a surrogate's proceeding.' It should re- quire the trustee to show cause why the petition's prayer should not be granted.* If the petition for new sureties, etc., by a testamentary trustee is presented. by the sureties on his existing bond, a citation must issue to the tnistee.* Its form must generally conform to that of the standard citation in a surrogate's proceeding.'* It should require the trustee to show cause why the relief asked should not be granted,'* § 616. Id,: Order or Decree. — ^When the request for leave to file a new bond or give a new surety is made by the testamentary trustee himself in a proceeding pending in a surrogate's court for the inter- mediate judicial settlement of his account. Upon good cause shown for the request, the surrogate may grant it, or deny it ; and if he gratits it, he must fix the penalty of the new bond or the amount in which the new surety must justify, and, oh the filing and ap- proval of the new botid or .the undertakiilg of the new surety, may provide in the decree of judicial settlemient that the former bond or ^5 C. C. P. § 2577. 1 C. C. P. § 2577. « C. C. P. § 2577. " C. C. P. § 2577. " C. C. P. §2577. 3 C. C. P. § 2579. i» C. C. p. § 2579. '" See § 787, infr^; C. C. P. § 2581. « C. C. P. § 2579. n n Ti R riK'7'7 19 *» C. C. p. § 2577, 68fi § 617 TESTAMENTARY TRUSTEES surety be discharged from and after the date of such decree from all liability, except upon appeal therefrom, as to all matters embraced in the account and decree.' When the petition for a new bond or new or additional sureties is made by a person interested in the fund the surrogate, on the citation's return, must hear the parties' allegations and proofs, and, if any of the allegations are found valid, make an order requiring the testamentary trustee to give new or ad- ditional sureties, or a new bond in a larger penalty, as the case re- qtaires, within such a reasonable time, not exceeding twenty days, as the surrogate fixes ; and directing that in default of so doing, the trustee be removed.' When the surety petitions to be released from responsibility on the testamentary trustee's bond, on account of any future breach of the bond's condition, and that the trustee be re- quired to give new sureties and render and settle his account, the surrogate, if the trustee on the citation's return does not file a new bond in the usual form with new sureties to his satisfaction, must make an order requiring the trustee to file such new bond within such reasonable time not exceeding twenty days as the surrogate fixes.'' If the trustee, however, files such new bond on the citation's return, or even within the time fixed by the. order made on his fail- ure to so file it on the citation's return, the surrogate must make a decree releasing the petitioning surety from liability upon the bond for any subsequent act or default of the trustee, and requiring the latter to render and seittle his account to and including the date of such decree, and to file his account within a fixed time not exceed- ing twenty days from the date of the decree.' If the trustee does not file the new bond within the time fixed by the surrogate's order, the latter must make a decree removing him.^ § 617. Terms of Office: In Supreme Court. — The supreme court, subject to the regulations established for the purpose in the general rules of practice, has power, except in the cases of trust arising or resulting by implication of law or when other provision is; specially made by law for the resignation or removal of a trustee: (1) To accept the resignation of, and. discharge, a trustee, on his application by petition or action;" (2) To remove a trustee (a) who has violated his trust, or (b) who threatens to violate his trust, or (c) who is insolvent, or (d) whose insolvency is apprehended, or (e) who for any other cause is deemed to be an unsuitable person to execute the trust— either in an action brought, or on a petition pre- sented, by any person interested in the trust." The supreme court 5 C. C. P. § 2581. 9 C. C. P. § 2580. 6 C. C. P. § 2578. " Real Prop. L. § 112, Subd. I.' 'C. C. P. § 2580. "Id: Subd. 2. ' C. C. P. § 2580. 687 XEAV YORK ESTATES AND SURROGATES §'618. as a court of equity has power to remove a trustee and substitute another in his place whenever such a state of mutual ill-feelingv growing out of his behavior, existed between him and his cotrustees or the beneficiaries, as makes his continuance in office detrimental to the execution of the trust ^^ ■ The supreme court has power to re- move a testamentary trustee whenever it can see that unfriendly re- lations exist between themselves or between them and the beneficia- ries so that material injury may and is likely to result to the trust estate, e. g., when one trustees is acting offensively and arbitrarily toward his cotrustee and' the principal beneficiary ; is entirely man- aging' the estate'; and is contemptuously rejecting the request of his cotrustee." The supreme court has power to, and, on pe(;ition of eight of nine beneficiaries will remove a testamentary trustee deemed unsuitable to execute the trust by reason of unfriendly and hostile relations and irreconcilable differences between him and his two co- trustees, endangering the trust' through their inability' to consult in harmoriy or to act in concert." ' The supreme court's' powpr of re- moval of a testamentary tnastee is exercised for the purpose of saving the trust property and will not be used to remove when the remaindermen, whose interest is greater than that of the life tenant seeking the removal, offer no objection to the trustee's conduct, though the trustee's wife be interested to the extent of one-third in the remainder, and the estate has suffered no loss in the ten years of the trustee's acting as such,' even though the delay in converting certain securities into cash invites criticism.** A person appointed testamentary successor trustee by the supreme court, oh his own ap- plication, without notice to contingent remaindennen, ma:y on their petition be removed.** Remaindermen are necessary parties and must be brought into a suit to remove the trustee of the tnist of wJiich they are remainder'men ; beicause the preservation of the principle of the trust is involved." 'A suit to reniove as trustee one named in a will both as executdl" and trustee is groundless until the nominee has entered upon his duties as trustee.*' § 618. Term of Office: In Surrogate's Court: Jurisdktiioii.— The surrogate's court has jurisdiction to remove testamentary trustees.*' A surrogate has power concurrently to entertain proceedings, first, *« McKenna V. O'CodmU, 84 Mis6. *« Matter: of Bartells, 109 A. D. 582,. 147 Swp. 922 (1914). , ,, : ,586 (1905), or 96 Supp. 579. *' Disbrow v. Disbrow, 46 A. D. *'' Elias v. Schweger, 13 A. D. 336 111 (1899), or 61 Supp. 614; afPd '(1897) or 43 Supp. 55; C. C. P. § 167 N. Y. 606, 60 N. E. 1110. 452. **Deraismes v. Dunhamj 22 Hiin, *'Wood v. Brown, 34 N. Y. 337 86,(1880). ^ (1866). 15 Wiggins V. Burr, 54 Misc. 149, *» C. C. P. § 2510. 105 Supp. 649 (1907). 688 § 619 TESTAMENTARY TRUSTEES to remove one of two surviving trustees, and, secondly, to fill the vacancy caused in the trusteeship — especially on the petition of the. trustee authorized to make the appointment in the case of the re- moval of his cotrustee.^" § 619. Id.: Voluntary Removal and Discharge By Surrogate. — A testamentary trustee may at any time present a petition praying that his accounts be judicially settled ; that a decree be made permit- ting him to resign and discharging him ; and that a citation issue to show cause why the decree should not be made.^ The petition must conform in genera! to the standard petition in any surrogate court's proceeding.^* In particular, it must set forth the facts upon which the application is founded and pray as above' stated.^ The same persons should be named as to be cited as would have* to be cited on a petition for Judicial settlement of the trustee's ^ccounts.^ In all other respects the petition inust conform to a petition praying a judicial settlement of a testamentary trustee's account.* On pres- entation of a testaihehtary trustee's petition fdr leave to resign and for discharge on settlement had of his accounts the surrogate has discretion either to entertain or decline to entertiain the appli- cation.^ The surrogate rnust first determine whether sufficient reasons exist for granting the prayer of the petition.* If the sun-o- gate entertains the application, the same persons niust be cited to show cause why the decree aSked should iiot be made as upon a pe- tition for a judicial settlement of the tesfamentary trustee's ac- counts.' The same proceedings, tOo, must be had.' Upon the tes- tamentary trustee's fully accounting and paying over all money which is found td be due ffom him, and delivering over all books, papers and other property in his hands, either iiitb the surrogate's court Or in such manner aS the surrogate directs, a decree may be made removing the trustee aild discharging him accordingly.® Ttiistees who are also testamentary gilardians of the betteficiary of ^tiie trust will not be allowed to resign as trustees unless they also re- sign as guardians.'' Testamentary trustees who have fully complet- ed their duties save for holding part of the triist fund to which an infant beneficiary is entitled should be allowed, to resign as trustees for the infant; on paying his part of the trust fund over to their suc- cessor who should be the infanit's general guardian if he is willing 2» Matter of Boyle, 166 A. D. 504, « c. c. P.'§ 2572. 151 Supp. 1022 (1915). 6c. c. P. § 2573. : 1 C. C. P. § 2572. i T C. c, p §1 2572.3. i» See § 787, infra. » C. C. P. §§ 2572-3. ' , 2 C. C. P. § 2572. » C. C. P. § 2573. » C. C. P. § 2572. " Matter of Abbott, 39 Misc. 760, « C. C. P. § 2572; See § 317, supra. 80 Supp. 1117 (1903). N. Y. E. & S.— 44. 689 NEW YORK ESTATES AND SUBROGATES §§ 620, 621 to act." In a proceeding to be allowed to resign as trustee after settlement of his accounts, and to be discharged, the surrogate has no jurisdiction to accept the resignation and discharge the trustee on his paying over to the new trustee all securities in his hands except a certain bond and mortgage which the resigning trustee is directed to hold ; because a full accounting and payment over of all moneys and delivery over of all trust , books and papers is a pre- requisite to the discharge.^* Proceedings taken by a person as testa- mentary trustee who is also executor of the will, or administrator upon the same estate do not affect him as executor or administrator, or the creditors of, or the persons interested in the estate ; except that when such trustee presents a petition praying for the revocation of his letters testamentary or of adrninistration he may set forth the facts upon showing which he would be allowed to resign as testa- mentary trustee, and pray for, a decree allowing him so: to resign and for a citation , accordingly.^' , § 620. Involuntary Removal By Surrogate: Without Petition or Citation. — The surrogate, jnay make a decree removing a testamen- tary trustee without a petition or the, issuing of a citation in any of the following casfes: (1) When the trustee is not a resident of the state, or is absent, therefrom, and, upon being duly cited to account, neglects to appear upon the return of the citation without showing a satisfactory excuse therefor, and the surrogate has not sufficient -reason to believe .that such an excuse can be made. (2) When a cita- tion or order issued to such .trustee in a case prescribed by law can- not be persorially served upon, him by reason of his having abscond- ed or concealed himself. (3) When, by reason of his default in re- turning an inventory, or the neglect, or refusal to obey an order, the trustee has remained cqmmitted to jail for thirty days. (4) When the trustee has been convicted of a felony." (5) When the trustee mingles the funds of the estate with his own or deposits them with any person, association or corporation authorized to do business under the banking law, in an account other than as such trustee.^' § 621. Involuntary Removal By Surrogate: On Petition. — A testamentary trustee probably should not be removed from office if it will suffice that the court direct him as to his duties.** A testa- mentary trustee who is also executor may be removed as trustee be- fore his duties as executor are closed, leaving him in the exercise of his powers and to discharge the duties of an executor, when the " Smith V. Lansing, 24 Misc. 566, " C. C. P. § 2574. 53 Supp. 633 (1898). "Id. subd. 7, added by L. 1916, 12 Matter of Olmstead, 24 A. D. c. 588. 190, 49 Supp. 104 (1897), old Code, " Elias v. Schweger, 13 A. D. 336 §"2814, new Code, f 2572. (1897), or 43 Supp. 55, dictum. 13 C. C. P. § 2640. '■■•' 690 § 622 TESTAMENTARY TRUSTEES powers and duties of executor and trustee are separate and distinct." When the ground upon which removal of a testamentary trustee is sought is that his relations with his cotrustee are such that they will probably not co-operate in closing the trust beneficially to those in- terested in the estate, it is highly proper to consult the wishes of the latter when they are mostly sui juris and capable of understanding their interests and managing their affairs.^' Differences of opinion as to selling realty furnish no ground for removing one testamen- tary trustee among several, as they should then divide the realty, if practicable, by conveying to the devisees as required by the trust. '^ Proceedings taken against a person as testamentary trustee who is also executor of the will or administrator upon the same estate do not affect him as executor or administrator, or the creditors of, or the persons interested in the estate; except that when any person presents a petition praying for the revocation of letters issued to an executor or administrator and any of the facts set forth are suf- ficient by chapter 18 of the Code to entitle the same person to present a petition praying for the removal of a testamentary trustee, the petitioner may pray for a decree removing the person com- plained of in both capacities, and for a citation accordingly.^" § 622. Grounds for Involuntary Removal By Surrogate On Peti- tion. — The grounds upon which a petition may be presented for removal of a testamentary trustee will be separately considered. Legal incompetency or disqualification on appointment of a testa- mentary trustee is ground for presentation of a petition for his re- moval; provided the ground for the objection did not exist before the appointment was made ; or was not then put forward by the pe- titioner or a person represented by him.' Legal incompetency or disqualification since appointment of a testamentary trustee is ground for presentation of a petition for his removal.* Unfitness for the due execution of his office is ground upon which a petition may be presented for removal of a testamentary trustee, when such unfitness is claimed by reason of (a) Waste or iniprovi- dent application of money or other assets in the trustee's hands, (b) Investments in securities unauthorized by law, (c) Other im- provident management or injury to the property committed to the trustee's charge, (d) Other misconduct in the execution of the trustee's office, (e) Dishonesty, (f) Drunkenness, (g) Irtiprovidence, " Quackenboss v. Southwick, 41 ¥. 2» C. C. P. § 2640. T. 117 (1869). 1 C. C. P. § 2569. " Quackenboss v. Southwick, 41 N. " C. C. P. § 2569. T. 117 (1869). 19 Quackenboss v. Southwick, 41 N. T. 117 (1869). 691 NEW YORK ESTATES ANB SURROGATES § 622 or (h) Want of Understanding.* To authorize removal of a trustee because of unfitness for the due execution of his trust, the acts or omissions must be such as to endanger the trust property', or to show a want of honesty, proper capacity or reasonable fidelity.* Any em- ployment of trust funds for the trustee's individual benefit is such a devastavit as to authorize his removal and the reclarhation of such funds from anyone receiving them with knotvledge of their char- acter.^ Use of trust funds by trustees to induce one interested there- in to transfer his share to others, and telling him he was legitimate when they 'thought he was not, is' ground for removal, although justification is sought by alleged belief in his illegitimacy.* An executor and testamentary trustee is properly removed who, as such and under power of attorney from his coexecutor and cotrustee (th(^ testator's widow) , paid out of the estate sums to cover stock which the testator owned on margin accounts, and who was elected presi- dent at a large salary of a corporation a controlling interest in thfr stock of which he held as trustee; and who was paid for legal services rendered such corporation.'' One of two testamentary trustees, holding together half the stock of a corporation, in which he in- dividually holds the othet half, and of which he has caused himself to be made president at a salary much greater than'^lTlat deemed proper by the beneficiaries, has practical control of the corporation (by refusal to vote as his cotrustee wishes the trust shares) and has put himself in a position in which his personal interest has or may come in conflict with his interest as trustee; and he should not, therefoi-e, be allowed to act as trustee.' A testamentary frustee is properly removed who opened accounts of the trust fund in his own name ; invested, alone and without' consulting his cotrustees, the trust funds against the express direction of the will; drew a cheque from the truSt funds to his own individual order for a large amount; loaned trust moneys in unauthorized investments; sought to induce his cotrustee to place large sums of the trust fund in his » C. C. P. § 256^. " ^ Deebold v. Oppermann, 111 iir. Y, «Matter of O'Hara, 62 Hun, 531 531, 2 L.R.A. 644, 7 Am. 'St. Rep. (1891), or 17 Supp. 91, old Code, 760, 19 N.B. 94 (1888). § 2817, subd. 2: S. while executor ? Matter of : Sterlings ; Brown or and trustee of will giving estate to, Cramsey, 68 Misc. 3, 124 Supp. 894 M. for life and to M.'s appointee qh (1910) — old Code, § 2817 now in his death invested the estate in ' out- hew Code, § 2569. of -state mortgages, and M. died ap- ' Matter of Hirsch, No. 1, 116 A. pointing S. to estate for life, re- D. 367 (1906), or 101 Supp. 893. mainder to S.'s children, and 0. his ' Pyle v. Pyle, 137 A. D. 568 trustee, and S. sought to have 0. re- (1910), or 122 Supp. 256 (supreme moved, though investment producing court action), aff'd 199' N. Y. 538,. 5% to 7% interest and principal in 92 N. E. 1099. no - danger. 692 f 622 TESTAMENTARY TRUSTEES hands; and topk a large amount from the trust fund as commis- sions before the law allowed him to do so.? It is ground for re- moval of twq.testapientary trustees, that they had relatives convey to them realty, after they were ordered to account, to make up a deficiency in the fund ; and pretended they had invested the trust fund in part in such realty ; because their belated attejnpt to make good does not mitigate their falsity to the trust." Sufficient ground exists for the removal of a testamentary trustee of infants when he has not turned over to them rents received from the trust estate, luus allowed taxes to accuniulate for several years, has kept no bank ac- counts, has advanced for the support of one infant more than for that of the others and more than he has received from that part of the trust fund held for such infant, has not paid taxes pursuant to a direction in a former decree till the proceeding for his, removal was begun and has treated the fund as a whole in order to enable him to favor one infant (of whom he was fondest of all the in- fants) in a way he could not have done had he treated, each infant as beneficiary of a severed part of the fund.^^ Such a residence abroad, whether permanent or temporary, as renders full discharge of the trust duties problematical, revokes the trust ; because the bene- ficiaries are entitled to absolute certainty of the trustee's personal devotion to their interests.^^ Continued residence abroad for twelve years with only slight intervals spent in the United States, and ap- plicatioh for relief from taxation as a nonresident, are sufficient, in the absence of responsive proof, to sustain a charge of permanent residence abroad, notwithstanding an expressed intent to return to the United States and an avowal of continued residence in the United States.^' One of two trustees who had converted part of the fund to his own use and was insolvent should be removed, even though he had given his obligation for the deficiency to all parties in interest, his business was profitable and the fund was securely invested and in the hands of his cotrustee ; because he, equally with his cotrustee, is entitled to the possession of the fund and has not been ordered to file security.^* Wilful refusal to obey any lawful direction of the surrogate, whether contained in a decree or order, is ground upon which. to petition for a testamentary trustee's removal,^' Wilful refusal to obey any provision of law relating to the dis- ' Matter of Havemeyer, 3 A. D. ^^ rarmers' Loan & Trust Co. v. 519 (1896), or 38 Supp. 292. Hughes, 11 Hun, 130 (1877). "Matter of Mallon, 38 Misc. 27 ^* Farmers' Loan & Trust Co. v. (1902), or 76 Supp. 879. i^MM^'^'otrnggins, 29 Hun, 271 " Matter of McKeon, 37 Misc. 658, (1883). 76 Supp. 312 (1902). «c."c. P. § 2569. 693 NEW YORK ESTATES AND SURROGATES § 623 charge of his duty is ground upon which to petition for removal of a testamentary trustee.^' Neglect to obey any lawful direction of the surrogate when no good cause is shown for such neglect is good ground upon which to petition for the testamentary trustee's removal, whether the direc- tion be contained in a decree or order." Neglect to obey any provision of law relating to the discharge of his duty, when no good cause is shown for such neglect, is reason enough for petitioning for removal of a testamentary trustee.** False suggestion of a material fact to obtain appointment is good ground upon which to petition for a testamentary trustee's re- moval.*' The happening of a contingency upon which his office was to cease by the terms of the will or order appointing him is sufficient cause for petitioning for the removal of a testamentary trustee.*" § 623. Petition for Involuntary Removal By Surrogate. — A petition praying the removal of a testamentary trustee may be made by (a) a person beneficially interested iji'the execution of the trust, (b) a Surety of the trustee.* A person interested in a fund includes every person entitled either absolutely or contingently to share in the fund, whether as husband, wife, legatee, next of kin, devisee, grantee, assignee, or otherwise; except as a creditor.* The form of a petition for removal of a testamentary trustee is in general that of the standard petition in any surrogate's court proceeding.** The points especially to be borne in mind are (1) the statement of the facts upon which the, jurisdiction of the court depends;; and (2) the prayer for the relief from or action by the court to which the petitioner deems himself entitled. The former point should include a recital of the trustee's appointment and the circumstances showing the case to be one in which the surrogate has authority to remove the trustee on a statutory ground.* The prayer should be for a decree removing the trustee and for the issuance of a citation to him to show cause why such a decree should not be made.* Proceedings upon the petition of another for a testamentary trustee's removal and for the judicial settlement of the testamentary trustee's account may be taken, as the surrogate directs, either in connection with, or separately from, proceeding upon the petition of another for the " C. C. P. § 2569. *"■ See § 787, infra. " C. C. P. § 2569. ' C. C. P. §§ 2569-2570: Matter of *« C. C. P. § 2569. Engelbrecht, 15 A. D. 541 (1897), or " C. C. P. § 2569. 44 Supp. 551. *" C. C. P. § 2569. * C. C. P. § 2569 : Matter of Engel- * C. C. P. § 2569. brecht, supra. * C. C. P. § 2768. 694 §§ 624-62U TESTAMENTARY TRUSTEES revocation of the letters of the person who is trustee, if he be also an executor or administrator.** § 624. Citation for Involuntary Removal By Surrogate. — A citation must be issued on a petition to remove a testamentary trus- tee unless the surrogate declines to entertain the proceeding.* It must issue td the trustee sought to be removed.' It must in general conform to the standard citation in any surrogate court's proceed- ing.*" It should state the object of the proceeding and that the cita- tion is issued to the testamentary trustee to show cause why a decree removing him should not be made.'' It must be served like any other citation.* Though a citation on an application for an ac- counting and the appointment of a successor trustee make no men- tion of the latter matter, yet, if the persons cited appear, they can- not claim lack of notice when the prayer for the accounting suf- ficiently asks for the appointment of a successor.^ Although an accounting executor may not be a necessary party to a proceeding for the appointment of a successor trustee he at least is a proper party ; because he has funds for which he must account and de- liver over.^" § 625. Order By Surrogate Suspending Trustee. — If a surrogate entertains a proceeding to remove a testamentary trustee, he may, in his discretion, on making an order for the issuance of a citation therein also make an order suspending the trustee wholly or partly from the exercise of his powers and authority during the pendency of the proceeding.'^ If such an order is made, a certified copy of it must accompany the citation and be served with it upon the trus- tee.'^ From the time the order is made (without service) it binds the testamentary trustee and all other persons.'* The making of such an order does not, however, affect the validity of any act with- in the trustee's legal powers done by him before the service of the order and citation upon him, if the persons as to whom the act was done acted in good faith.'*' The testamentary trustee is not liable for such act when done in good faith.'* § 626. Hearing and Decree By Surrogate. — On return of a cita- tion issued on a petition to remove a testamentary trustee the surro- gate must give the trustee a hearing.'® Eemoval cannot be had ex *»C. C. P. § 2640: "> Matter of Brady, 58 Misc. 108 * C. C. P. § 2570. (1908), or 110 Supp. 755, « C. C. P. § 2570. 11 C. C. P. § 2570. «»• See § 799, infra. « C. C. P. § 2570. ' C. C. P. §§ 2569-2570. " C. C. P. § 2570. 8 C. C. P. I 2570; See § 801, infra. " C. C. P. §§ 2570; 2555. 'Matter of Brady, 58 Misc. 108 " C. C. P. §§ 2555; 2570. (1908), or 110 Supp. 755. « C. C. P. § 2570. 695 NEW YORK ESTATES AND SUBROGATES § 627 parte}'' The surrogate may make a decree either removing the trus- tee or dismissing the proceeding, upon such terms, as justice re- quires.^* On removal by ,de,opee the, trustee's powe^^s cease. If he is also executor, the proceedings againsjthim as trustee only do not affect him as executor, or the creditors, of or persons interested in the general estate.^' A trustee T^ho has served an, answer to a peti- tion for his removal, raising material questions of. fact, is entitled to, a trial in which common law evidence shall ]be given to sustain the allegations of tlie petition ; so tliat he may meet such levidence by the same sort pf proof.^" : § 627. Expenses of Administration.-^The, expenses pf admiiiis-, tering a trust fund consist of such just, reasonable and necessary outlays as a testamentary trustee may lawfully make in its manage- ment. They include the reasonable expense pf obtaining and con- tinuing his bond ; such compensation for legal services rendered him in connection with his official duties as are just and reasonable ; and his commissions.'' Upon his accounting, the surrogate may allow a testamentary trustee a reasonable sum not exceeding $10 for each day necessarily occupl6d in preparing the account and decree there- on.^ A testamentary trustee's expenses and disbursements must be set forth .in his account (as paid) so as to be settled by the surro- gate.' The general rule is that trust property should reimburse a trustee for all his charges and expenses properly incurred in the ex- ecution of the trust including the cost of litigation in relation to the trust fund when there is no evidence of bad faith on his part.* The expense of a conveyance kept and used by a testamentary trus- tee in the discharge of his duties cannot legally be allowed him — certainly not on his unsupported affidavit; nor payments to an ac- countant for work which the trustee should do; nor payments to counsel for unnecessary services.* A trustee is entitled to have charged against the trust estate or fund the necessary and reasonable expenses incurred in defending suits tending to diminish the fund and assaults on the trust instrument, if the intent of the testator re- quires such defense ; and the fact that the trustee is also a beneficiary and that such defense as trustee benefits him as beneficiary does not alter his rights.* Tlie expenses of unnecessary annual accountings " By analogy to Matter of Engel- * C. C. P. § 2692. brecht. 15 A. D. 541, 44 Supp. 551 * Young v. Brush, 28 N. Y. 667 (1897). (1863). " C. C. P. § 2571. * Eysaman v. Nelson, 79 Misc. 304, " C. C. P. § 2640. r 140 Supp. 183 (1913), afe'd 150 8" Matter of Scptt, 49 A. D. 130, Supp. 1085. 62 Cupp. 1059 (1900). « Matter of Hutchinson, 84 Hun, iC. C. P.-§ 2692, 2753. -. 563 (1895), or 32 Supp. 869. « C. C. P. § 2747. 696 §§ 628, 629 TESTAMENTARY TRUSTEES by a testamentary trustee in the supreme court will not be allowed.'' The fees of an attorney employed by one appointed trustee by will whose removal was sought is properly paid from the trust estate by the representative of such trustee on the latter's death when the sole ground claimed for temdval was improper investments of the trust funds which were however made on the written requeist of the bene- ficiaries some of whom, however, were minors and one of whom, five years after attaining majority, brought the proceeding in ques- tion, and the trustee then offered to give the bond which it was final- ly determined was all he had to do.' An attorney cannot recover in an action against trustees as such, from the trust fund, for serv- ices rendered one trustee in proceedings looking to his removal, as such a proceeding related not to the trust property but to the person who should execute the trust.' § 628. Accounting. — The subject of a testamentary trustee's ac- counting is treated in the chapter on "Administrators" in connec- tion with the latters' accountings.^" § 629. Id.: Payment and Delivery: In General. — An executor may by decree be allowed to pay over directly to a person to whom it is distributable, by reason of a death, a fund in his hands which a testamentary trustee is entitled to have paid to him, when the trustee consents; but his consent in writing should be filed.^' Executors having notice of a note by one remainderman to another, endorsed with a direction to the executors to pay (on the final settlement) to the payee the amount of the note with interest, unless sooner re- deemed, as representing the amount paid by the executors from the payee's share in the estate to the payor, caiinot pay the amount to any one but the payee, who, though he do not present his claim under such riote on a judicial settlement of the executors' accounts during the life-tenant's life when there was no possibility of distri- bution, may present it on a later proceeding for distribution; and if such claim has priority of date, and of time to the executors^ knowledge, to advances by them to the assignor or payor, they should pay the payee or assignee from the payor's share in the es- tate.** A trustee , cannot set off his personal claims (e. g. for pro- ' Eysaman v. Nelson, 79 Mise. 304. the amount as an obligation incurred 140 Supp. 183 (1913), afe'd 150 by the trustee to be paid from trust Supp. 1085. property. « Matter of Jones, 143 A. D. 692 *" See § 310 to 351, supra. (1911), or 128 Supp. 215; aff'd 207 "Matter of Union Trust Co. 77 N. Y. 731, 101 N. E. 1106. Misc. 88, 137 Supp. 437 (1912). »Jessup v. Smith, 170 A. D. 605, , *« Matter of, Whitbeek, 22 Misc. 156 Supp. 553 (1915). It may -be 494, 50 Supp. 932 (1898), old Code, that when the accounts of the trustees § 2742. were settled the court might allow 697 NEW YORK ESTATES AND.SUERQGATES §§ 630, 631 fessional services) agai^ist a beneficiary, so as to avoid payment of a balance due by him as, trustee.^* § 630. Id.: Payment and Delivery: To Infant or Lunatic, and for Support. — ^^A trustee of a fiind to collect tlie income and apply it to the support, maintenance and education of an infant beneficiarj^ need not pay out all the income for the infant but may exercise a reasonable discretion under all the circumstances as to the amount to be so applied, and the surplus, then becomes the infant's property, vested in his general, guardian, and applicable to future require- ments.^* Testamentary trustees who are not limited as to the manner of disposing of income for the use of children have a broad discretion as to the amounts to be paid from the income in their hands towajd the support, etc., of infapt beneficiaries and the persons to whom they shall pay such amounts; so that tangible evidence must be adduced to hold or charge them with alleged excessive payments; and they may pay such arnounts. to the infants' naother and gerieral, guardian rather than themselves apply the money, ajid the fact that she lives on a far better scale after receiving such amounts than she did before is not objectionable.^' The committee of one entitled ab- solutely to the use of income of a trust fund who is of unsound mind is entitled to have paid to him by the trustee the accumulated in- come.^* § 631. Payment and Delivery: To Life Tenant. — This subject has in some measure been already discussed in the corresponding section in the chapter on "Executors; " and reference: is made to that discussion.^'' Beneficiaries entitled to income from a testator's death on a trust for their benefit can only demand it when one year has passed since letters testamentary were issued ; but can then de- mand the income which had accrued to that time from the testator's death.** A bequest of income to or for the use of a person for life, or a shorter period, gives the beneficiary title to the income from the testator's demise when the estate is sufficient for the liquidation of debts and other charges and so invested that it is productive of income from the testator's death-, unless a provision in the will infers a contrary intent.*® While the general rule is that executors or trus- tees finding the estate invested in "wasting" securities should pay "Harris v. Elliott, 24 A. D. 133 (1896), or 37. Supp. 357; aff'd 158 (1897), or 48 Supp. 1020. . N. Y. 734, 53 N. E. 1125. "Matter of , McCormick, 22 Misc. Z^f^J ^^l' S^P.^f" 309 (1898), or 49 Sapp. 1119; aff'd ,'1^ ifo l""'*^' -.^i', ^^^''- ^^^ An A n TQ rrrci, c^o (1914), or 149 Supp. .131. ^\tP;J ' TtT 4\r- ra. ''^^tt^^ °f Siijith,86 Misc. 136 15 Matter of Tucker, 28 Misc. 595 (1914) ^^ 149 Siipp. 131; Est. ,of (1899), or 59 Supp. 1022. kardf, N. Y. L. J Apr. 9, 1915 "Gasquet v. Pollock, 1 A. D. 512 (N. t.'Surr.) § 632 TESTAMENTARY TRUSTEES the life tenant so much only of the jncome as represents a fair return upon the capital value, accumulating and retaining the residue for the benefit of the remaindermen, yet this rule yields readily to a different intent of the testator as evidenced 'by the will and the sur- rounding circumstances.^" Although the general rule is that a tes- tamentary trustee who has invested the funds in bonds bought at a premium must set apart out of the income payable to the life bene- ficiary a sufficient sum each year to form a sinking fund adequate to keep the principal unimpaired, yet very slight testamentary in- dications suffice to support the view that the testator, if a father, in- tends the beneficiary, if a child, to receive the full income and so to make the case an exception to the general rule, e. g., when authority is given to make investments of the character of those made, and the income is made payable to a child for whose benefit the invest- ment is expressly declared to have been made.^ A life tenant should not be paid as income the whole amount of the interest coupons on bonds having a term of years to run bought as an investment of the trust funds by the trustee at a premium, but only the interest less such a proportionate deduction as would at maturity of tlie bonds make good the premiums paid and so preserve intact the principal of the fund.* § 632. Payment and Delivery: In Kind. — The general principle that beneficiaries immediately entitled to the proceeds of real estate may elect to take the realty itself in heu of the proceeds does not apply when it is held for them in trust during their lives with the elective right in the trustees to terminate the trust at any time, as none of the beneficiaries take a legal estate except a remainder after his own decease, unless the trustees should sooner terminate the trust.^ When a trustee files no consent to receive the trust fund in specie, though the remaindermen do, the surrogate cannot decree delivery in specie against the life-tenant's objection, because the re- maindermen are not legatees or distributees as they have no present right of payment or distribution.* ^Trankel v. Farmers' Loan & * Lynde v. Lynde, 113 A. D. 411, Trust Co. 152 A. D. 58 (1912), or 99 Supp. 283 (1906). 136 Supp. 703; afPd 209 N. Y. 553, « Matter of Stevens, 187 N. Y. 471, 103 N. E. 1124. Trust to pay over 12 L.R.A.(N.S.) 814, 80 N. E. 358, "whole of net income" to wife for 10 Ann. Cas. 511 (1907). life ; trust fund of leasehold estates ^ Foote v. Bruggerhof , 84 Hun, decreasing in capital value as date 473, 32 Supp. 397 (1895). of expiration draws near; remainder * Matter of Holzworth, 166 A. D. to daughter, etc; held, with other 150 (1915), or 151 Supp. 1072; affi'd facts present, not duty of trustees 215 N. Y. 700, 109 N. E. 1079, C. C. to pay less than whole income to P. § . 2936. wife. 699 NEW YORK ESTATES AND SUEEOGATES §§ 633, 634 § 633. Compulsory Payment and Delivery: Jurisdiction. — The sui^rogate's court has jurisdiction to enforce the payment and de- livery by testamentary trustees of money or other property in their possession belonging to i fund.' § 634. Compulsory Payment When Not Needed for Support. — A petition may be made, when a person is entitled by a will's terms to payment of money or delivery of personalty held by a testamen- tary trustee, to the surrogate's court, by the person so entitled, set- ting forth: (1) The facts which entitle the petitioner to such pay- ment or delivery — necessitating, if the petitioner is entitled only either on the happening of a contingency or after the expiration of a certain time, the fact that the petitioner's right to the money or personalty has become absolute; (2) the prayer for a decree direct- ing payment or delivery by the testamentary trustee of the money or personalty and for a direction that the testamentary trustee, and all other pereons whose rights or interests would be affected by such a decree, be cited to show cause why such a decree should not be made.* On return of a citation issued on a petition to compel a tes- tamentary trustee to pay a legacy or .deliver personal property, the surrogate nciust have a hearing of the allegations .and proofs of the parties ; and must make a decree such as justice requires, which, in a proper case, may require, a testamentary trustee who isnriable to deliver personal property to which the. petitioner is entitled,, to pay its value.'' "\yhen denial is made by a testamentary trustee that one petitioning to compel him to pay the income is the, person named in the will as the cestui que trust it is incumbent upon the petitioner on a renewal of the application to prove his identity by a, detailed statement of his life, corroborated by public records whenever pos- sible and by affidavits of person? by whom employed, e. g,, the schools he attended, the name under which enrolled, occupation after leaving school, record of marriage', etc' A separate proceed- ing by a beneficiary, to compel delivery of part of his share in an estate, will be entertained during the pendency of an accounting proceeding to which he is a party and in which he can admittedly obtain the same relief ; and will be decided in the beneficiary's favor when all' lega;cies,, debts and administration expenses down to the filing of the account have i)een paid, and any objections filed and sustained will increase the applicant's share in the estate while any objections filed and overruled will leave his share practically the same.* "When executors are directed to pay income of a trust fund 6 C. C. P. § 251ft. » Matter of Kent, 92 Misc. 113, 8C. C. P. § 2690. 155 Supp. 383 (1915), C. C. P. § ■^ C. C*P. § 2690. 2689, 2690. « Est. of Coddington, N. T. L. J. Nov. 19, 1915, N. Y. Surr. 700 § 635 TESTAMENTARY TRUSTEES in monthly, quarterly or yearly instalments, they cannot be made to pay it more often than once a year.^" § 635. Compulspry Payment For Support.T— Whenever a person who: win be entitled to the payment or satisfaction of any testamen- tary provision is in actual need of it, or some part of it, for his sup- port or education, he may present to the surrogate's court his peti- tion setting forth the facts, and thereupon, in the discretion of the surrogate, a citation niay issue to the testamentary , trustee to show cause why the prayer of the petition should not be granted. ^^ If it appears on the return of the citation that the amount of money and the value of the other property in the respondent's hands applicable to the payment of debts, legacies and expenses, exceeds by at least 6ne-third the amount of all known debts and claims againgt the estate, and of all legacies of the same class, and that payment or sat- isfaction of any testamentary provision, or some part thereof, is necessary for the support or education of the petitioner, wft-ei/ier adult or infant, or of his family, the surrogate may, in his discretion, make a decree directing payment or satisfaction accordingly, on the filing of a bond by the petitioner with two sufficient sureties condi- tioned that if debts against the deceased duly appear, and there are not other assets to pay them, and no other assets sufficient to pay other legacies, then the petitioner will refund the legacy paid him or the value of the articles delivered to him, with interest; or such ratable portion thereof with the other legatees as may be necessary for the payment of such debts and the proportional parts of such other legacies (if there be any), and the costs and charges incurred by reason of the payment to such legatee ; and further conditioned that if the will under which such legacy is paid be denied probate on appeal or otherwise such legatee will refund the whole of such legacy, with interest, to the executor or administrator entitled there- to.*^ When trustees are by will directed to apply so much of the in- come of testator's estate left them in trust for his infant children as may be necessary for their support, maintenance and education, it is not proper for the surrogate to deny their maternal guardian's application for a direction that the trustees be required to pay as such for the infant's support, etc., an amount greater than the trus- tees think proper, but it is the surrogate's duty judicially to deter- mine what amount is proper and direct its payment." " Est. of John Hardy, N. Y. L. J. come not excessive for support of Apr. 9, 1915 (N. Y. Surr.) child from 1 to 5 years old, in deli- ^* C. C. P. § 2691. eate health, requiring physician in al- ^* C. C. P. §§ 2691 and 2688. most daily attendance, consultations, ^* Matter of Goodwin, 122 A. D. specialist, sometimes two trained 800 (1907), or 107 Supp. 784 — nurses, whose share of household ex- $2000 a year from $4000 annual in- penses is $1200 a year. 701 NEW YORK E&TATEg AND SURROGATES §§ 636, 637 § 636. Receipt for Payment. — Neither a receipt nor a general re- lease can be required by a trustee from a. cestui to whom he pays an amount justly due him." Any instrament acknowledging payment of m'oneys pursuant to the provisions of a decree for the judicial settlement of the accounts of a testamentary trustee may be recorded in the surrogate's office as follows: (1) Application must be made by some one person interested, and (2) the instrument to be record- ed must be acknowledged; or proved, and duly certified.^* The rec- ord of such instrument, or a certified copy of the record, is presump- tive evidence: (a) of a satisfaction and discharge of the decree as to any payment of money or delivery of property acknowledged in the instrument, (b) of the contents of the instrument,, and (c) o| the due execution of the instrument.**, § 637. Compensation, — The matter of a testamentary's trustee's compensation by way of commissions or otherwise is treated in con- nection with the discussion of the same topic in the chapter on "Ad- ministrators." " "Schlinbach v. McLean, 83 A. D. " C. C. P. § 2553.' 157 (1903), or 82 Supp. 516; afPd " C. C.P. § 2553. 178 N. Y. 600, 70 N. E. 1108. ' " See § 360 to 380, supra. 702 CHAPTER VII. GUARDIANS AND INFANTS. A. Definitions, Duties, Powers and Liabilities. 1. In General, § 638. 2. Guardians by Nature, § 639. 3. Guardians In Socage, § 640. 4. General Guardians, § 641. 5. Special Guardians, § 642. 6. Guardians 6j/ WiM; ■ § 643. 7. Guar("r:ns by Deed, § 644. x 8. Ancillary Guardians, § 645. 9. Limited Guardians, § 646. 10. Guardians ad litem, % 647. B. Personal Purchase, Profit and Liability, § 648. C. Investments, § 649. D. Actions By and Against, § 650. E. Appointment and Letters: 1. What. Jurisdiction Surrogate Has, § 651.. 2. What Surrogate Has Jurisdiction, § 652. 3. Persons Incompetent: a. In General, § 653. - b. Infants, § 654. c. Adjudged Incompetents, § 655. d. Aliens and Non-Inhabitants; or Non-Besidents, § 656. e. Felons, § 657. f. Drunkenness, Dishonesty, Improvidence, Want of Understand' ing, § 658. ' ' g. Renunciation or Refusal, § 659. h. Inadequate Circumstances, % 660. ^ i. Illiteracy or Failure to File Designation, § 661. 4. Preferences, § 662. 5. TFftew Appointed and Petition: a. General Guardian, § 663. b. Special Guardian, § 664. c. Guardian By Will, % JoQb. d. Guardian, By Deed, § ,666. e. Ancillary Guardian, §. 667. f. Guardian ad litem, § 668. g. Joiw* Guardians, § 669. 6. Citation: a. General Guardian, § 670. b. Special and ad litem, § 6'^. c. Ancillary Guardian, § 672. 7. Hearing and Order or Decree, § 673. 8. Letters: a. Form, § 674. b. /<:# ec*, § 675; 703 NEW YORK ESTATES AND SUBROGATES F. Qvalification: 1. General Guardian: a. Of Person, § 676. b. Of Property, § 677. 2. Special Guardian, § 678. 3. Guardian By Will, § 679. 4. Guardian By Deed, § 680. 5. Ancillary Guardian, § 681. 6. Limited GiUtrdian,, §• 682: 7. Guardian ad litem, § 683. G. Term Of Office: 1. Guardians In Supreme Court, § 684. 2. Guardians In Surrogates Court: a. Surrogate's Jurisdiction, § 685. b. Voluntary Revocation of Letters or Resignation, § 686. c. Compulsory Revocation Without Petition or Citation, § 687. d. Compulsory Revocation On Petition: aa. Grounds: aaa. Legal Incompetency or Disqualification, § 688. bbb. Unfitness for Office, % 689. ccc. Refusal or Neglect to Obey Direction or Law, • . § 690. ddd. False Suggestion to Get Letters, § 691. eee. Happening of Contingency, § 692. fff. Removal from State, § 693. gggi Promotion of Infant's Interests, § 694. bb. Petition, § 695. , cc. Citation, § 696. dd. Order Suspending Guardian, § 697. ee. Hearing, Decree and Effect, § 698. H. Admiinistration Expenses, § 699. I. Disposition of Infant's Realty, § 700. 1. In General, § 700 a. 2i By Action.: . - a. When; By Whom; Judgment, § 700b. 3. By Application in Speoiat-Pweeeding : ff a. By Whom and When, § 700 c. b. Petition, § 700 d. c. Special Guardian and Bond, § 700 e. d. Reference, § 700 f. ' e. Order for Sale, Mortgage, Lease, etc., % 700 g. f. Agreement for Sale, etc., and Deed, by Guardiatt, § 700 h, g. Effect of Deed, etc., § 700 i. 4. Proceeds Remain Realty Save On Infant's Death, § 700 j. 5. Disposition and Investment Of Proceeds: a.. In General, § 700 k. ' , b. When Dower Involved, § 700 1. c. When After-Born Infants Get Interest, § 700 m. d. When Infant is Nonresident, § 700 n. e. Payment of Infant's Debts, § 700 o. J. Accounting : i ,, . 1. Jurisdiction, § 701. 2. Definitions, § 702. 3. By Parties Interested Inter Sese, § 703. . 704 § 638 GUARDIANS AND INFANTS J — continued. 4. By Judici-al Proceedings: a. Voluntary: aa. Annual, § 704. bb. Intermediate: Without Settlement, § 705. ec. Intermediate: Settlement, § 706. dd. Final: Settlement: aaa. Petition, § 707. bbb. Citation, % 708. cce. Hearing and Decree, § 709. b. Compulsory: aa. Annual, § 710. bb. Intermediate: aaa. Petition, § 711. bbb. Order To Account, § 712. cec. Proceedings on Order's Return, § 713. cc. Intermediate Settlement, § 714. dd. Final Settlement: aaa. Petition, § 715. bbb. Citation, § 716. ccc. Proceedings on Citation's Return, § 917. c. The Account, § 718. d. Contest and Objections, § 719. e. Hearing and Decree, § 720. 5. When Barred, § 721. K. Payment: 1. Jurisdiction, § 722. 2. /tc General, § 723. 3. i^or Support and Maintenance: a. Petition, § 724. b. Tr?se»8 awd W/iat Allowed, §' 725. e. Notice and Order, § 726. 4. Receipt for, § 727. L. Compensation, § 728 [See same title: "Administrators.") § 638. Guardians: Definitions, Duties, Powers and Liabilities, In General. — The word "guardian," in its general sense, refers to a guardian of an infant's person or property; br both, appointed by the surrogate's or supreme cOurt, and includes a guardian appointed by will or deed.^ The duties of a guardian, in general, require dis- interested fidelity, and ordinary diligence and prudence; the sub- jects of his trust are his ward's personalty, creditors, and rents of his ward's realty ; he cannot sell his ward's realty or lease it beyond his ward's minority ; he must use all reasonable means to get possession and control of such personalty and rents, even bringing actions, if necessary ; he must keep up his ward's realty with such ftmds of the ward as he has; he must put out at interest his ward's money; he must keep his ward's property and render an account of it ; he can- not trade with himself on his ward's account; he cannot buy 1 C. C. P. § 2768. N. Y. E. & S.— 45. 705 XEW YORK ESTATES AND SUBROGATES § S39 or use liis ward's property for his own benefit; he must keep his and his Avard's property separate; and 'he hiust give the ward the advantage of any bargains he malces with the ward's funds.^ A guardian ordina;rily has no powei'i to make a contract binding upon the person or property of his ward uriles* authorized by statute ; and there is no such statute empowering a guardian to enter into a con- tract that the ward would live with a certain person for life in con- sideration of a bequest or devise.' The reason is that the guardian is not entitled to the services and society of his ward.* The rule that a guardian can change the nature of his ward's estate if for the infantas benefit and that the right of succession on the infant's death is not changed, is solely because an infant is supposed to be unable to say how he would have his property descend or be distributed, and its reason therefore ceases when the infant becomes of age ; and on his attaining majority no act by the latter is necessary to indicate his interition to remove the impression; given by his guardian to his- property.^ A guardian may appoint an attorney to receive the prin- cipal of an overdue mortgage and, on receipt of the amount due, to give a certificate of satisfaction, as this is but a delegation of a min- isterial act.^ Signature of the drawer of his name to a cheque with the addition of the word "guardian" gives the payee notice that the funds being paid to him presumptively were those of the ward.'' A court order directing a deed "to be executed by — , the guardian ad' litem, in the name and behalf" pi the infaiats is properly executed Ij)' the guardian only subscribing "the name of the infant, and then adding by — , his guardian ad litem." ' § 639. Id.: Guardians by Nature. — "The law of nature, as well as the common lajV, devolves upoji. the, parents the duty of caring for th^ir young, in sickness and in health, and of doing whatever may be necessary for their care, maintenance and preservation, including medical attendance if necessary." ' . The obligation rests upon a 2 White V. Parker, 8 Barb. 48; "In re. Hyatt v. Seeley, 11 N. Y. (1850). , . , ■ ,32 (1854), ; , ,, ' Ide V. Brown, 178 N. Y. 26, 70 N. On liability of guardian who signs- E. 101 (1904). eoutraet adding words indicating rep- *Ide V. Brown, supra. Teseritative capacity to his sia;nature 6 Forman v. Marsh, 11 N. Y. 544. see note in 42 L.R.A.(N.S.) 60. (1854), L. 1815, c. 106, § ,5. , » People v. Pierson, 176 N. Y. 201^ 8 Forbes v. Reynard,. 113 A. D. 306 63 L.R.A. 187, 98 Am. St. Rep. 666. (1906), or 98 Supp. 710. 68 N. E. 243 (1903). '' Cohnf eld v. Tanonbauiii, 176 N. On recovery of mother .against Y. 126, 98 Am. St. Rep. 653, 68 N. E. father for Inoney expended in sup- 141 (1903). port of children see notes in 3S 706 § 640 GUARDIANS AND INFANTS father or other pei-son standing in loco parentis to infants, who has the abiUty to do so, to support his infant children even though they have an estate of their own ; and one who furnishes hoard and lodg- ing to infants so situated cannot recover against them.^" If the fa- ther is poor and unable to support his infant child, it is the duty of the latter's general guardian to provide for his ward's support, maintenance and education out of the infant's estate." § 640. Id.: Guardian in Socage. — A guardian in socage is a person charged by law with the management of the real estate of an infant of whose estate no general guardian has been appointed either by any court or by will or deed.^* The rights and authority of a guard- ian in socage are superseded by the appointment of a general guard- ian of the infant's estate by court, or a guardian of the infant's estate by will or deed.'' The right, powers, and duties of a guardian in socage belong to the father ; '* if there be no father to the moth- er ; '' if there be no father or mother to the nearest, eldest, major relative not under any legal incapacity.'* Male relatives are pre- ferred as guardians in socage to female relatives of the same degree of consanguinity." A guardian in socage must safely keep his ward's property that comes to his custody ; must not make or suffer any waste, sale or destruction of such property or inheritance ; must; keep in repair and maintain the houses, gardens and other appurte- nances to his ward's lands, by and with the issues and profits of such lands or such other of his ward's money as shall be in his possession ; must deliver Tlis ward's lands to the latter on his becoming twenty- ime years old in at least as good condition as that in which the guard- ian received them (inevitable decay and injury alone excepted) ; and must answer to his ward for the issues and profits of the real estate received by him, by a lawful account to be settled before any L.R.A.(N.S.) 508, L.R.A.1915A, East, 161 N. Y. 580, 76 Am. St. Rep. 1137. ■ 290, 56 N. E. 114 (1900). "•Goodman v. Alexander, 165 N. "Dom. Rels. L. § 80. Y. 289, 55 L.R.A. 781, 59 N. E. 145 i« Dom. Rels. L. § 80; Hickey v. (1901). Dixon, 42 Mise. 4 (1903) ; O'Brien v. 1' Goodman v. Alexander, supra. Reformed Church, 10 A. D. 605 On parents' duty to support child (1896); or 42 Supp. 356; Torry v. see note in 57 L.R.A. 728. Black, 58 N. Y. 185 (1874) ; Boyer i2Dom. Rels. L. §§ 80, 83; Foley v. v. East, 161 N. Y. 580, 76 Am. St. M. L. Ins. Co. 138 N. Y. 333, 20 Rep. 290, 56 N. E. 114 (1900) ; Mat- L.R.A. 620, 34 Am. St. Rep. 456, 34 ter of Hynes, 105 N. Y. 560, 12 N. E. N. E. 211 (1893). 60 (1887) ; Emei-son v. Spieer, 46 N. iSDom. Rels. L. § 80; O'Brien v. Y. 594 (1871). Reformed Church, 10 A. D. 605 '« Dom. Rels. L. § 80. (1896), or 42 Supp. 356; Boyce v. "Dom. Rels. L. § 80. 707 NEW YOEK ESTATES AND SURROGATES 8 640 court, judgp or surrogate having authority to settle the accounts of general and testamentary guardians.^' In fulfilling his duty to his ward a guardian in socage may make use of all necessary legal rem- edies; ^' and employ counsel and make a contract for counsel's com- pensation.^" A guardian in socage who has no means to support and educate the ward may use so much of the latter's property as is nec- essary for that purpose ; but should do so only by the court's permis- sion.^ A guardian in socage who makes or suffers any waste, sale or destruction of his ward's inheritance loses the custody of such inheritance and of the ward and forfeits treble damages to the ward,^ A guardian in socage may lease his ward's lands as long as he con- tinuas guardian for any length of time during the ward's minority, subject to the lease being defeated by the appointnient^ of another guardian pursuant to statute.* A living father is guardian in socage of his infant child for whom no guardian has been apjpointed and may lease his ward's lands ; and though the infant's mother and the infant are owners in common of land, yet the father may collect the whole rent, and the tenant will be protected, by payment to him, from any claim by the mother, because payment to one joint owner is good as to the other.* On a father's death the mother becomes guardian in socage of their minor child, and as such is entitled to the rents and profits of the child's realty until a testamentary or oth- er guardian is appointed, and may so lease the realty as to bind the child; but a contract by the mother for sale of the child's realty does not bind the child except so far as she had power to deal with the possession of the realty.' A guardian in socage should not do any act in opposition to the interests of his ward,® e. g., buy in individ- ually on foreclosure of real estate mortgaged by the ward's father; because such a purchase is inconsistent with his trust duties as guard- ian ; '' or cut or remove timber from his ward's lands, except such as may be needed for repairs of his ward's building, etc.* Guardian- "Dom. Rels. L. § 83; Matter of 'Emerson v. Spicer, 46 N. Y. 594 Hynes, 105 N. Y. 5,60, 12 N. E. 60 (1871). (1S87) * Anderson v. Dodge, 158 A. D. "Torry v. Black, 58 N. Y. 185 201, 143 Supp. 132 (1913), Dom. (1874) ; Foley V. M. L. Ins. Co. 138 "'®i^- ^- 8 **"• „ ^ .n ^ , N. Y. 333, 24 L.R.A. 620, 34 Am. St. „„ 7iRfi9T ^' ^«'^'^«'^°°' ^^ Barb. ^'i-M^f: 'SV- ''inK't .fin 'Boyer l; East, 161 N. Y. 580, 76 MMatterof Hynes, 105 N.Y. 560, ^^^ g^. r 290, 56 N. E. 114 12 N. E. 60 (1887)., (igoo). ^ ' 1 Williams v. Clark, 82 A. D. 199, 7 O'Brien v. Reformed Church, 10 81 Supp. 381 (1903). A. D. 605 (1896), or 42 Supp. 356. 2Dom. Rels. L. § 83; Torry v. . « Torry v. Black, 58 N. Y. 185 Black, 58 N. Y. 185 (1874). (1874). 708 § 641 GUARDIANS AND INFANTS ship in socage continues till the ward becomes twenty-one years old, unless another guardian be appointed according to statute in the in- terim.* § 641. Id.: General Guardians. — A general guardian is a person appointed by the supreme or surrogate's court as guardian of the per- son or property, or both, of an infant over or under fourteen years of age,^" until the infant becomes major.^^ When no guardian ap- pointed by a will or deed remains in ofhce on account of resignation, removal or death, the surrogate may appoint a general guardian with all the powers conferred upon the guardian by the will or deed, unless such appointment will contravene the express terms of tho will or deed.^^ The effect of such an appointment is that the ap- pointee may complete the execution of the trust committed to his predecessor or predecessors; may continue in his own name a civil action or proceeding pending in favor of his predecessor or prede- cessors; and may enforce a judgment, order or decree in favor of such predecessor or predecessors.^' A general guardian has the same power over the estate and property of his wards as a testamen- tary guardian, viz., to take the custody and management of his wards' personal estate arid the profitB of their real estate.^* A gen- eral guardian has no inherent control over the proceeds of his ward's real estate or moneys which result from the conversion of real into personal estate under court order. ^* But a general guardian has the right to collect and receive moneys due his wards, whether re- ceived by mortgages or not, and to execute discharges and receipts therefor.^* A general guardian may accept payment in advance of the interest on a bond and mortgage executed to him as such and may extend payment of the bond and mortgage.^* A general guard- ian must safely keep the property and inheritance of his ward that comes into his custody and must not make or suffer any waste, sale or destruction of it ; but must keep in repair and maintain the hous- es, gardens and other appurtenances to his ward's lands, by and with the issues and profits thereof or such other moneys belonging to his ward as shall be in his possession; and deliver them to the ward, when he comes to full age, in at least as good condition as the guard- ian received them excepting inevitable decay and injury.^^ A gen- 9 Emerson v. Spieer, 46 N. Y. 594 " C. C. P. §§ 2659 and 2563. (1871) ; Foley v. M. L. Ins. Co. 138 " C. C. P. §§ 2659 and 2563. N. T. 333, 20 L.R.A. 620, 34 Am. St. " Chapman v. Tibbets, 33 N. Y. Rep. 456, 34 N. E. 211 (1893) ; Dom. 289 (1865). Rels. L. § 80. IS WiUick v. Taggart, 17 Hun, 511 " C. C. P. § 2642. (1879). " C. C. P. § 2649. " Dom. Rels. L. § 83. 709 NEW YORK ESTATES AND SUEEOGATES § M2 «ral guardian must answer to his ward for the issues and profits of the latter's real estate, received by the former, by lawful account to be settled before any court, judge or surrogate having authority to settle a general or testamentary guardian's accounts." Any order, judgment or decree in any action or proceeding to settle a general guardian's accounts may be enforced to the same extent and in like manner as in the case of a testamentary guardian.^' If a general guardian makes or suffers any waste, sale or destruction of his ward's inheritance, he loses the custody of such inheritance and of the ward, and forfeits treble damages to the ward.^' A general guardian may pay from the ward's estate such reasonable sum as is necessary for the latter's support and maintenance, even— if in good faith — to the ward's stepfather; because the latter is under no legal obligation to maintain his step child.^" A general guard- ian, as such, is not entitled to, the service or society of the ward,^ § 642, Id.: Special Guardian. — A special guardian is a person appointed by the surrogate in some proceeding in his court, to which an infant or incompetent person is a party, to look aftgr such infant's or incompetent person's rights in such proceeding. It is the duty of a special guardian on his appointment to so inform himself as to the condition of his ward's interests in the estate as to be able intelligently and legally to act at all times in court in the infant's behalf.* A person who is general, and appointed by the surrogate special guardian of an infant may, without order of court, fissign a bond secured by a mortgage given him as such special guardian.' While one appointed special guardian to sell an infant's realty does not thereby lose his rights in a valid encum- brance upon or claim against such realty or his right to sell it to his own advantage, yet he niay not after his appointment so use an invalid claim as to put a purchaser of it in possession of the realty, necessitating ejectment to regain possession by one lawfully entitled, as this is an act in hostility to his ward's interest.* It is not the proper practice to file exceptions to the findings or recom- mendations in a special guardian's report in an accounting pro- ceeding, as such a report is binding on no one ; but the points raised in the exceptions are properly raised by the terms of the decree sub- "Dom. Eels. L. § 83. "Matter of Bielby, 91 Misc. 353 " Dom. Eels. L. § 83. (1915), or 155 Supp. 133. 19 Dom. Eels. L. § 83. .*Tuttle v. Heavy, 59 Barb. 334 ^o Matter of Aekermann, 116 N. Y. (1871). 654, 22 N. E. 552 (1889). * Matter of Spelman v. Terry, 74 lAborn v. Janis, 62 Misc. 95 N. Y. 448 (1878). (1907), or 113 Supp. 309. . 710 i C43 GUARDIANS AND INFANTS iiiitled by the exceptant.^ The rules of various surrogate's courts provide for the duties of special guardians: that they must make and file their reports, with a sworn statement of the work they have done, etc.® § 643. Id.: Guardian By Will. — A guardian by will is a person appointed by the duly proved will of a parent of a minor child, as guardian of the person or property, or both, of such child, during its minority,'' who has duly qualified.' While either parent of a minor lives, he or she alone can be its testamentary guardian.^ But upon the death of either the father or mother the surviving parent of any living unmarried child under the age of twenty-one years, may by duly executed will, dispose of the custody and tuition of such child to any person or persons during its minority, or for any less time;* and a mother who survives a father may likewise dis- pose of the custody and tuition of any child likely to be bom." The right of a surviving parent to appoint by will a guardian for his children does not extend to a grandparent.^^ A father cannot by will appoint someone other than the mother of their child as the latter's guardian if the mother survive him, as this right subsists only in a surviving parent.^* Although a father cannot by testa- mentary appointment of others than the mother as guardians for their infant children deprive the mother of her statutory right as ?;urviving parent to the custody and control of the infants general- ly, he may say who shall have custody and control during their in- fancy of that part of his property which he chooses to give them.^^ The father of a child is not prohibited from appointing by will a 5 Est. of GiU, 92 Mise. 661, 155 pointment see note in 33 L.R.A. Supp. 1019 (1915). (N.S.) 869. 8 See, e. g. these Rules : N. Y. 9 ; On right ■ of mother or reputed Kings, 15; Bronx, 19; Queens, 20; father to guardianship of illegitimate Westchester, 9; Steuben, 6; Cha,utau- child see note in 65 L.R.A., 695. Dom. Rels. L. § 81. "ght to ivill custody of child, see 'C C P § 2642 note in 2 L.R.A.(N.S.) 203. 3 Dom.' Rels. L. § 81; Matter of ,." ??^* /• ^°°71^' ^l'^- J- ^93 Bi-ugg, 39 A. D.'485 (1899), or 57 l^^^^-^ ' ^ofn .-."o" ^ ^°o^1 c"'"'' Supp 390; aff'd 165- N. Y. 673, 59 H^^"^'- ^10 (l^H). or 131 Supp. N E. 1119-guardians of person and la jj^^t^^ ^j jj^^^^^ 5 ^.^^_ estate by will get no compensation 35 Supp. 832 (1893), L. 1893, c. 175^ if wife survives testate husband and 13 Matter of Kellogg, 187 N. Y. minority of child; Matter of Bur- 355 13 l.r.a.(N.S.) 288, 80 N. E. dick, 47 Misc. 28 (1905), or 95 Supp. 207 (1907). ^ ^ ' 206; Est. of Neiehelman, N. Y. L. J. On effect of father's attempt to ap- Jan. 5, 1915 (N. Y. Surr.) point guardian as against mother see Generally on parent's right to ap- note in 13 L.R.A. (N.S.) 288. 711 NEW YORK ESTATES AND SDRKOUATES § 043 guardian for such child even though his wife (the child's mother) be alive, if his marriage to the mother has been judicially avoided because of her insanity, as the child then is, legitimately, only his child.^* The right of a married woman to be joint guardian with her husband of her children, with equal powers, rights and duties in regard to them, relates to testamentary guardians only, or at least only to the mother while married to the parent of the child, and not after divorce, because she is then no longer a "married woman." ^^ As only a surviving parent may by will appoint a guardian for their minor children, a woman who has gotten a di- vorce from her husband cannot validly by her will appoint a guard- ian for their minor children who can act to the husband's exclusion, as such a decree does not determine the father's unfitness to have custody of the children, but merely punishes him for his offense by giving their custody to the mother, on whose death the penalty ceased and the husband became entitled to his statutory rights.'* Only a surviving parent can by will appoint a guardian for his child and an appointment by one parent during the life of the oth- er cannot be validated bj' the letter's subsequent assent.''' Disposi- tion by a parent's will of the custody and tuition of his child in- cludes guardianship; of the- child's estate, so that a surviving parent cannot be barred from guardianship of the estate of his or her child by a deceased parent's .testamentary appointment of another as guardian of the -child's estate." . A will appointing the testator's wife to have the gijardi^.nship, custody and, tuition of their minor children constitvitea her guardian , of both their persons and es- tates." When two testamentary guardians for an infant are ap- pointed, only one of whom accepts, all powers of guardianship vest in the one who does accept.^" The guardianship of one appointed by will which does not specify the term of the appointment is pre- sumed to be for the, whole of the ward's minority.' An infant for whom a guardian has been appointed by the will of its mother, -who survived its father, cannot apply for the appointment of a guard- ian while such testamientary guardianship continues.^ The probate '* Matter of Tombb, 164 A. D. 392, .'' Matter of Zwickert, 5 Misc. 272, 149 Supp. 688 (1914), § 81 Dom. 26 Supp. 773- (1893), L. 1893, c. Eels. L. § 1745 et seq. C. C. P. 175. '* Matter of Wagner, 75 Misc. 419 '^ Hagerty v. Hagerty, 9 Hun, 175 (1912), or 135 Supp. 678; § 81 Dom. (1876). Rels. L. 20 Matter of Reynolds? 11 Hun, 41 " Matter of Waring, 46 Misc. 222 (1877). (1905), or 94 Supp. 82; Dom. Rels. 'Matter of Reynolds, 11 Hun, 41 L. § 51; Matter of Hansen, N. Y. L. (1877). J. Oct. 5, 1914 (Bronx Surr.) « Matter of Reynolds, 11 Hun, I'' Matter of Schmidt, 77 Hun, 201 41 (1877). (1894), or 28 Supp. 350. 712 § 644 GUARDIANS AND INFANTS of a will duly appointing a guardian and the latter's due qualifica- tion vest in the appointee, if the latter accepts the appointment, all the rights and powers, and subject him to all the duties and obli- gations of a guardian of the ward, and validate and effectuate such appointment against every other person claiming the custody and tuition of the minor, whether as guardian in socage or otherwise.^ Such a guardian may take the custody, and charge of the tuition of the minor, and may maintain all proper actions for the wrong- ful taking. or detention of the minor, recovering damages therein for the ward's benefit.* Such a guardian also takes the custody and management of the ward's personal estate and the profits of the wai-d's real estate during the time for which appointed, and may bring such actions in regard thereto as a guardian in socage might by law.* A testamentary guardian is entitled to custody of the in- fant's person, and to custody and management of the infant's per- sonal estate, and to receive the rents and profits of the infant's real estate.^ A testamentary guardian of the person only of an infant is entitled only to the custody and tuition of the infant.'' Even though the legal right of a sole surviving parent to dispose of the guardianship of his infant child is not exercised by legal formal- ities, yet his wish will be respected and followed if known.' The court's discretion in withholding the custody of an infant from the legal guardians appointed by the father's will, exercised for con- siderations affecting the infant's health and welfare, will only be reviewed on appeal for some manifest error or abuse of discretion.^ § 644. Id. : Guardian By Deed. — A guardian by deed is any per- son appointed by duly executed and recorded deed of a surviving parent to have the custody and tuition of his or her unmarried, minor living child, or her child likely to be born during the latter's minority or for any less time,^" who has duly qualified.^' The recor- dation of a deed duly appointing a guardian and the latter's quali- fication vest in the appointee, if the latter accepts the appointment, ^Dom. Rels. L. § 82; C. C. P. § chUdren. Be a good Catholic, live 2642. a good C. and die a good C. and pray, On effect of invalid attempt to ap- pray for me when I am dead." Step- point testamentary guardian see note mother appointed general guardian in 45 L.R.A.(N.S.) 446. though she had no money and her ap- *Dom. Rels. L. § 82; pointment was opposed by the only * Dom. Rels: L. § 82. relative of the child, an aunt, and ^ Gelston v. Shields, 16 Hun, 143 her husband, who had property and (1878), aff'd 78 N. Y. 275. wished to be 'appointed. ■^ Gelston v. Shields, supra. » Matter of Welch, 74 N. Y. 299 « Matter of Mareellin, 24 Hun, 207 (1878). (1881), affd 40 A. D. 578, father "Dom. Rels. L. § 81. gave stepmother (his wife) following, ** C. C. P. § 2642. •written in extremis: "Keep the 713 NEW YOKK ESTATES AND SUEEOGATES § 645 all the rights and powers, and subject him to all the duties and obligations of a guardian of the waxd, and validate and effectuate such appointment against every other person claiming the custody and tuition of the minor, whether as guardian in socage or other- wise.i^ Such a guardian may take the custody, and charge of the tuition of the minor, and may maintain all proper actions for the wrongful taking or detention of the minor, recovering damages therein for the ward's benefit.^' Such a guardian also takes the custody and management of the ward's personal estate and the profits of the ward's real estate during the time for which appoint- ed, and may bring such actions in regard thereto as a guardian in socage might by law.^* A surrogate cannot appoint a guardian for an infant whom his father^ before his death, by written instrument, surrendered to an asylum; because a surrogate can only appoint when the father has not done so by will or deed — otherwise the father's right to appoint a guardian for his child would be im- paired.^' § 645. Id. : Ancillary Guardians. — An ancillary guardian is a per- son first appointed by a court of competent jurisdiction in a state or territory, or authorized to act in a foreign country, in which an infant resides, as guardian of the latter's property, and later grant- ed ancillary guardianship by a surrogate of this state.^® An ancillary guardian for: an infant residing out of this state but in another state or a territory of the United States has authority : — (1) to demand and receive the ward's personal property in this state; (2) to demand and receive the rents and profits of the ward's real estate in this state; (3) to dispose of such personal property, rents and profits in like manner as a general guardian of the prop- erty of a resident infant^ primarily appointed in this state ; (4) to remove such personal property, rents and profits from this state ; and to maintain and defend any action or special proceeding in the ward's behalf." But if letters of guardianship of the ward's prop- erty have issued from any surrogate's court in this state upon an allegation that the infant resided in the county of jhed, court's ju- risdiction, the ancillary guardian has no authority to receive from a resident guardian, executor, administrator or testamentary trustee who is subject to the jurisdiction of anj;- surrogate's court in the state, any money or other property belonging to the ward, un- less the letters of guardianship issued in this state have been re- i^Dom. Eels. L. § 82; C. C. P. § On conclusiveness of surrender by 2642. parents te state or authorized insti- " Dom. Eels. L. § 82. tution see note in 15 L.E.A. 594. " Dom. Eels. L. § 82. " C. C. P. § 2654. 15 The People v. Kearney, 31 Barb. " C. C. P. §§ 2656, 2654, subd. 1. 430 (1860). 714 § 646 GUAKDIANS AND INFANTS voked, except by special direction, upon good cause shown, of the surrogate's court from which the principal letters of guardianship in this state were issued.^' An ancillary guardian for an infant residing out of this state and in a foreign country has authority: — (1) to demand and re- cieve the ward's personal property (2) to dispose of the ward's personal property in like manner as a guardian of a resident infant's property, primarily appointed in the state; (3) to maintain or defend any action or special proceeding respecting such personal property in the ward's behalf.^' But if letters of guardianship of the ward's property have issued from any surro- gate's court in this state upon an allegation that the infant resided in the county of that court's jurisdiction, the ancillary guardian has no authority to receive from a resident guardian, executor, ad- ministrator or testamentary trustee, who is subject to the jurisdic- tion of any surrogate's court in this state, any money or other prop- erty belonging to the ward, unless the letters of guardianship issued in this state have been revoked; except by special direction, upon good cause shown, of the sun-ogate's court from which the prin- cipal letters of guardianship in this state were issued.*" The statu- tory provision that the surrogate, upon the application of a guard- ian, may, for good cause shown, authorize (a) the compromising or compounding of any debt, claim or demand, due or to become due, which it is necessary to settle, adjust or liquidate in connection with the settlement of an estate or fund; and (b) the selling at public auction of any uncollectible, stale or doubtful debt or claim belonging to the estate or fund, does not empower the surrogate to grant the application of an ancillary guardian for an order au- thorizing a compromise.^ § 646. Id.: Limited Guardians. — A limited guardian is a person named or appointed guardian of an infant whose letters of guard- ianship limit his powers to receiving and administering only such of the ward's personal property as is secured by his approved bond in double its amount, and restrain him from receiving any other personal property of the infant until a further order of the court made on his giving additional, further satisfactory security.* Such limited letters are issued in the surrogate's discretion when it ap- pears to be impracticable to give a bond sufficient to cover the whole amount of the infant's personal property.* 18 C. C. P. §§ 2656, 2654, subd. 1. Moh. 20, 1915 (N. Y. Sun-.) C. C. P. 19 C. C. P. §§ 2656, 2654, subd. 2. § 2683. 20 C. C. P. §§ 2656, 2654, subd. 2. « q c. P. § 2651. lEst. of Catherwood, N. T. L. J. » C. C. P. § 2651. 715 NEW YORK ESTATES AND SUREGGATES §§ 047, 048 § 647. Id.: Guardians Ad Litem.— A guardian ad litem is an adult (generally a lawyer) appointed by a court to conserve, en- force and defend the rights of an infant party to an action or suit or proceeding pending in such court or to be brought therein. A guardian ad litem appointed by a surrogate is not rendered functus ojficio by the rendition of a decree, in the proceeding in which he was appointed; but may prosecute an appeal, and is a party to it on whom notice of entry of the decree must be served to set run- ning the time to appeal ; so that an ex parte application to the ap- pellate division in the first instance for the appointment of a special guardian or guardian ad litem, to take, perfect and prosecute the appeal is improper and will be denied.* A guardian ad litem, can- not make a valid contract for contingent compensation to an at- torney for an infant suing in forrna pauperis, nor, though later appointed general guardian, bind the infant by an ex parte order of the surrogate approving such compensation, or by an accounting decree allowing such item in a proceeding in which no citation was served on the infant himself ; because the attorney is bound to pros- ecute without compensation. ° § 648. Personal Purchase, Profit and Liability. — A guardian of an infant party to an action for the sale of the infant's real estate cannot (nor can any person for such guardian's benefit) directly or indirectly purchase or be interested in the purchase of any of the property sold ; except that a guardian may, when he is lawfully authorized to do so, purchase for the benefit or in behalf of his ward; but otherwise, any such purchase is a misdemeanor and void.* The purchase at a judicial sale by a guardian of his ward's lands is presumed void and to make it valid the guardian has tire burden of showing it was for the ward's benefit.' The purchase by a guardian ad litem individually of a testator's realty on a parti- * Matter of Stewart, 23 A. D. 17, were sold at public auction and pur- 48 Supp. 999 (1897), old Code, § chased by or on behalf of such 2573. guardian ad litem, commissioner or ' Matter of Tyndal, 117 A. D. 294 other officer and where the deed to (1907), or 102 Supp. 211; aff'd 190 the premises so purchased has been N. Y. 522, 83 N. E. Il33. recorded in the proper office for * C. C. P. § 1679. An addition to thirty years, unless such action shall this Code section, made by c. 585, L. be commenced within six months after 1916, efEeetive Sept. 1, 1916, pro- this act takes effect. vides : But no action shall be brought On effect of fact that guardian ad for or in respect to real property by a litem appointed to sell land was in- person claiming that the property terested in purchase see note in 26 }uis been heretofore sold under a L.R.A.(N.S.) 558. judgment in an action directing the '' C. C. P. § 1679 ; O'Donoghue v. sale wherein there were infant defend- Boies, 159 N. Y. 87, 53 N. E. 537 ant's for whom a guardian ad litem (1899). }uid been appointed, and the premises 710 § 648 GUARDIANS AND INFANTS , tion sale is void.' Although the purchase of an infant's realty liy his guardian ad litem in the action in which it is sold is void, tlie purchase of an infant's interest in realty by his testamentary guard- ian on its partition is voidable only.* A guardian bona fide biddini; in real property of his wards on foreclosure sale, taking title in his own name, appropriating the rents, solely to prevent evident entire loss to the infants and to realize a surplus for them, who is ready to transfer the property to his wards, is entitled to be allowed not only the amounts he advanced to protect their interests but also interest thereon at 4 per cent.^" On attaining majority the wards of a guardian who sold his and their lands partly for cash and part- ly for mortgage and himself kept the cash, and held the mortgage as guardian for them, may require him to keep the mortgage and give them the cash with such interest as the amount of cash could have earned from the date of sale to their attaining majority.^^ A legatee under the will of an infant may elect either to take land?; which his testator's guardiaii has bought with his ward's personal property, or to demand the funds used to buy the land ; because the guardian had no right to change his ward's funds from personalty to realty, and the infant's legatee, therefore, takes as such in s}nte of the guardian's conversion. ^^ Only the supreme court can elect for an infant that his personalty shall be converted into realty.^^ The prohibition against the purchase by a guardian ad litem, on foreclosure of realty in which the infants have an interest, is enforceable by suit in equity and not by ejectment.^' A guardian cannot secure title to his ward's property for his own benefit, e. g., in the name of his daughter as dummy; and if he do the wards may, in an action, seicure to themselves a reconveyance of the prop- erty.^* A guardian selling his ward's mortgaged land at private sale for less than its value, when an offer of the mortgagee to renew the mortgage made such sale needless, is liable to account personally for the difference between the actual and the selling prices of the land, and for interest on the difference from the date of the sale * O'Donoghue v. Boies, 92 Hun, 3 ian on the ground hard to invest (1895), or 37 Supp. 961, aff'd 159 the sum ($1000) so as to have to N. Y. 87, 53 N. E. 537. have it continuously earn 6%. 9 Munsell v. Munsell, 33 Misc. 185 ^^ Matter of Bolton, 20 Misc. 532 (19)30), or 68 Supp. 392; C. C. P. § (1897), or 46 Supp. 908.' 1679. I'Dugan v. Denyse, 13 A. D. 214 "McCormick v. Shannon, 127 A. (1897), or 43 Supp. 308. D. 745, 111 Supp. 875 (1908). " Coley v. TaUman, 107 A. D. 44.'> "Matter of Terry, 31 Misc. 477 (1905), or 95 Supp. 270; aff'd 186 (1900), or 65 Supp. 655; 3% instead N. Y. 569, 79 N. E. 1103. of 69''' interest charged against guard- 717 NEW YORK ESTATES AND SURROGATES § 649 to the date of his payment of the difference.^' One assessed for taxes in his own name for less property than he really owned can- not be allowed to charge to an infant of whom he was guardian such a share of the taxes as the ward's property bore to his own when he kept no separate accounts as guardian, deposited in his own name moneys received as guardian, took no securities in the infant's name and did not credit the infant with interest on any specific bond and mortgage.^* A general guardian is properly chargeable on his accounting with the difference between the true rental value of his ward's property and the amount of rent he ac- tually received; and the costs of the contestant of such account, when he leased the land year after year in an unusual manner and at times of the year when there was limited demand for it." § 649. Id. : Investments. — ^A guardian holding trust funds for in- vestment has power to invest them in the same kind of securities as those in which savings banks of tMs state are by law authorized to invest the money deposited therein, and the income derived therefrom.^' The securities in which savings banks may invest are given in a note to a former section.^' He may also invest in bonds and mortgages on unencumbered real property in this state worth 50 per cent more than the amount loaned thereon.^" He may require such personal bonds or guaranties of payment to ac- company investments as may seem prudent ; and all. premiums paid on such guaranties may be charged to or paid out of income, pro- viding that such charge or payment be not more than at the rate of i of 1 per cent per annum on the par value of such investments.^ But the guardian cannot purchase such securities from himself." Every guardian must keep the funds and property received from the estate of any deceased person separate and distinct from his own personal fund and property ; and if he does not do so, he is guilty of a misdetneanor.' He must not invest such funds or property, or deposit them, with any person, association or corporation doing business under the banking law, or other person or corporation, in his own name, and if he does do so, he is guilty of a misdemeanor.* All transactions had and done by him must be in his name as such guardian.' For loss arising from investments of trust funds on 1" Matter of Nowak or Owechi, 38 *" Dom. Eels. L. § 85 and Deced. Misc. 713, 78 Supp. 288 (1902). Est. L. § 111. 18 Wilcox V. Van Scheick, 19 Hun, ^ Dom. Eels. L. § 85 and Deced 279 (1879). Est. L. §111. "Knothe v. Kaiser, 2 Hun, 575 ^ Id. (1874)— auction in Jan. » C. C. P. § 2664-a, added' by L. "Dom. Eels. L. § 85, and Deced. 1916, c. 588. Est. L. § 111. 4 Id. IS See § 586, supra. « Id. 718 § 649 GUARDIANS AND INFANTS the sole security of individual or personal responsibility, guardians are personally responsible.^ The surrogate has no power to permit the investment of the infant's money in any business.'' Real prop- erty bought by a general g-uardian with funds belonging to his ward without the sanction of the supreme court is an illegal investment amounting to a devastavit for which he and his sureties are liable to the infant ; and the fact that the supreme court granted an order to sell such realty in a proceeding therefor does not protect the guardian or his sureties unless the sanction of the court was neces- sarily involved and the court had the full truth of the acquisition of the realty before it.' One guardian receiving from a prior one contracts for waste lands in which the ward's inheritance had been invested is accountable only for their real value and has a reason- able time, usually put at six months, to invest his ward's estate." A mortgage by an individual of his own lands to himself as guard- ian of an infant to secure a loan to himself of the infant's money is a valid security, by which good title can be passed, to which a court of equity will give full effect.^" A general guardian who uses his ward's money to change a barn on his (the guardian's) land into a house renders himself and his estate liable, on his account- ing or his representative's accounting,*^ to a surcharge for the money expended. Although a loan from' the ward's estate by a guardian to one who later became guardian in his place is legally unauthorized yet the successor guardian will be charged with its amount and interest thereon because there can be no question but that he received the amount, knew it came from the ward's estate and knew it was an indebtedness passing to him from his predeces- sor guardian as a chose in action against himself individually.*' When the failure of a guardian to make investments was due to bad judgment but not to bad faith or wilful mismanagement he will be charged with interest on the principal not invested at only 5 per cent instead of 6 per cent.** A guardian is properly sur- charged with interest on a sum of his ward's estate which he re- ceived from the prior guardian but did not deposit in bank like 8 Matter of KrisMdt, 49 Misc. "Lyon v. Lyon, 67 N. T. 250 26, 97 Supp. 877 (1905). (1876). On personal liability of guardian "Matter of Klein, 80 Misc. 377 for losses from investments see note (1913), or 142 Supp. 557; Deced. in 44 L.R.A.(N.S.) 873. Est. L. §§ 85, 111; Banking L. §§ ■'Est. at Giwosky, N. Y. L. J. 146, 147. Dec. 4, 1914 (Kings Surr.) « Matter of Ward, 49 Misc. 181, 8 Empire State Surety Co. v. 98 Supp. 923 (1906). Cohen, 93 Misc. 299, 156 Supp. 935 ** Matter of Pruyne^ 68 A. D. 584, (1916); . 73 Supp. 859 (1902). 9 White V. Parker, 8 Barb. 48 (1850). 719 - NEW YORK ESTATES AND SURROGATES § 650 other amounts which came to his hands as guardian : the rate should be the same rate as such other amounts earned and should be computed froiii the date of receipt of the sum in question.^* § 650. Id. : Actions By and Against. — ^When an infant has a right of action, he is entitled to maintain an action thereon, which is not deferred or delaj^ed on account of his infancy.** All actions brought by an infant should be brought in the in- fant's name, by a guardian ad litem;, and not in the name of the infant's general guardian.'^ Although a cause of action directly in favor of an infani should be brought through a guard- ian ad litem yet the general guardian appointed by a surrogate's court may sue as trustee of an express trust to recover a sum in his hands as such which he gave the defendants on their promissory note secured by bonds which he delivered to his attorney as agent for other defendants to sell for his account, when a conspiracy by his attorney and the other defendants is claimed to get possession of the bonds." A general guardian appointed by the surrogate can maintain in his own name an action to recover personal property of his ward.** A general guardian of one of two tenants in common may sue the other to recover his ward's share of money received by him as tent of premises owned in common.** In an action in the supreme court by a general: guardian to compel payment by an executor of a legacy due his ward, an averment in the complaint, that he was duly appointed general guardian of the infant, etc., following the title of the action in which the plaintiff was described as general guardian of the person and estate of the infant, is a suf- licient allegation to entitle him to payment of the legacy as guard- ** Matter of Ward, 49 Misc. 181, interests of infants see note in 44 08 Supp. 923 (1906). L.R.A.(N.S.) 1182. " C. C. P. § 468. On right of next friend to receive *^ Perkins v. Stimmel, 114 N. Y. payment of, and satisfy, judgment 359, 11 Am. St. Rep. 09, 21 N. E. recovered in behalf of infant see 729 (1889). note in 11 L.R.A.(N.S.) 913. On control of guardian ad litem ' On satisfaction by attorney, guard- or next friend over action see note ian ad litem or next friend of judg- in 16 L.R.A. 507. , ment in favor of minor see note in 3 On arbitration of infant's cause of L.R.A.(N.S.) 72. action see note in 70 L.R.A. 171. On guardian's right to have judg- On power of guardian ad litem to ment Set aside see note in 54 L.R.A. enter appearance for child see ,note 761. in 32 L.R.A. 683. " Schlieder v. Dexter, 114 A. D. On rig-ht of parent, guardian or 417 (1906), or 99 Supp 1005. next friend to compromise infant's *' Thomas v. Bennett, 56 Barb. cause of action for personal inju- 197 (1868). ries see note in 21 L.R.A.(N.S.) 338. *' Coackley v. Maher, 36 Hun, 157 On right of stranger to action to (1885). appear as amicus curicB to protect 720 § 650 G-UAEDIANS AND INFANTS ian : it is not necessary to allege facts prerequisite to receiving such payment in the surrogate's court, e. g., order of surrogate's court that legacy be paid him, giving by him of required security and nonpayment of legacy into surrogate's court.**" It is proper for a foreign guardian of a nonresident infant over twenty years old who is also a lunatic to petition in this state for the appointment of a resident guardian ad litem in an action to partition realty in which his ward is interested as the ward, though over fourteen, is incom- petent himself to petition because of his lunacy.^ Until a statu- tory guardian ad litem has qualified by giving a bond he is a mere prochein arni or next friend whose duty begins and ends with the prosecution of the infant's suit, and he cannot legally receive the infant's property nor can the attorney retained by him for the prosecution of the case at any time give a satisfaction piece, binding upon the infant of the judgment paid him by the defendant on behalf of the infant.^* Defendants dealing with infants through their guardians ad litem and attorneys at their peril must ascertain whether there has been a compliance with the requirements of the law designed to safeguard the infants' interests.^ One who is an infant's general guardian has no power to submit a cause of action either on behalf of or against his infant ward so as to give the court jurisdiction to adjudicate on the infant's rights.* A court will not permit a ward's rights to be prejudiced by the admissions of a guardian in an answer, as the ward's interests are under the court's protection ; and the court will not render a decree against an infant solely on the guardian's admissions.* Though neither the defend- ant nor his attorney mentioned the former's infancy on appearing in court in an action against the infant, yet a judgment for the plaintiff in such action must be reversed on appeal when the defend- ant shows he was an iiifant and no guardian ad litem, was appointed for him.' A ward seeking after becoming of age to obtain a money judgment against the executors of his deceased general guardian must bring the action within six years of attaining his majority; otherwise he will be barred by the statute of limitations.* 8«Wall V. Bulger, 46 Hun, 346 *B. L. T. & S. D. v. K. G. (1887). & M. A. Assn. 126 N. Y. 450, 22 Am. 1 Rogers v. McLean, 34 N. Y. 536 St. Rep. 839, 27 N. E. 942 (1891). (1866). On admissions and waivers by ** Grenburg v. N. Y. C. & H. R. representatives of infants in actions R. R. Co. 210 N. Y. 505, 104 N. E. see note in 32 L.R.A. 671. 931 (1914), C. C. P. §§ 474 and ' pj-ost v. Frost, 15 Misc. 167 1260, subd. 1. (1895), or 37 Supp. 18. 2 Id. ^Libby v. Van Derzee, 80 A. D. sCoughlin v. Fay, 68 Hun, 521 494 (1903), or 81 Supp. 139; aff'd (1893), or 22 Supp. 1095. 176 N. Y. 5911, 68 N. E. 1119. N. Y. E. & S.— 46. 721 NEW YORK ESTATES AND SUEKOGATES §§ (551, 652 § 651, Guardians: Appointment and Letters: What Jurisdiction Surrogate Has. — The surrogate's court has jurisdiction in the cases and in the manner prescribed by statute, to appoint guardians for infants.'" Each surrogate's court has jurisdiction to appoint a successor in plaCe of a person whose letters have been revolted.' The surrogate's court has the hke power and authority to appoint a general guardian of the person or of the property, or both, of an infant, which the chancellor had on Dec. 31, 1846 ; and must exer- cise such power and authority in like manner as they were exercised by the court of chancery, except as statute may have otherwise pro- vided.' Besides the geneiral authority which the chancellor for- merly had to appoint general guardians, the surrogate's court also has power and authority to appoint a general guardiaii of the prop- erty or of the person, or both, of any unmarried infant whose father or mother is living, or of a married male infant, and a gen- eral guardian of the property only of a female married infant.*" The manner of the exercise of such power must be the same as the manner of its exercise by the chancellor before 1847, except as statutes may have otherwise provided.** In other words, the sur- rogate's court has power and ayithority (to be exercised in the like manner as they were exercised by the court of chancery, as modi- fied by the Code of Civil Procedure) to appoint: (1) a general guard- ian of the person of an infant (a) when the chancellor had such power and authority on December 31, 1846; and, in addition, (b) when the infant's father or mother is living ; (2) a general guardian of the property of an infant (a) when the chancellor had such power and authority on December 31, 1846; and, in addition, (b) when the infant's father or mother is living, and (c) when the in- fant is a married woman; (3) a general guardian of both the per- son and property of an' infant (a) when the chancellor had such power and authority on December 31, 1846, and, in addition, (b) when the infant's father or mother is living.*^ § 652. Id.: What Surrogate Has Jurisdiction.^That surrogate has jurisdiction to appoint a general guardian of an infant's person or property, or both, who can answer affirmatively any of the fol- lowing questions. First: Has the infant no guardian and does the infant reside in my county? Second: Has the infant no guardian and has the infant sojourned in my county for at least one year immediately preceding the presenj; application for appointment of "> C. C. P. § 2510. " C. C. P. § 2643. ' C. C. P § 2510. ** e. C. p. § 2643. 9 C. C. P: § 2643. " C. C. P. § 2643. 722 § 653 GUARDIANS AND INFANTS general guardian? Third: Has the infant no guardian and has he property, real or personal, situated in my county (though resid- ing outside the state) ? ^^ Stated in other words, that surrogate's court has jurisdiction to appoint a general guardian of an infant's person or property or both in whose county either the infant re- sides, or has sojourned for at least one year immediately preceding the application for the appointment of the guardian; or in whose county real or personal property of the infant is situated, and the infant is not a resident of the state ; provided that in any case the infant has no guardian.^* Application for appointment as ancil- lary guardian of the property of an infant who resides in the Unit- ed Sta,tes must be made to the surrogate's court of the county in this state which has jurisdiction.^* Application for appointment as ancillary guardian of the property of an infant who resides in a foreign country must be made to the surrogate's court of the county in the state in which the whole or any part of the personal property of the infant in this state is situated.^® A right to maintain an ac- tion in any court of this state must be considered as personal prop- erty situated in the county of the court in which the action may be instituted. Application for appointment of a successor-guardian to a deceased guardian must be made to the surrogate's court which appointed the deceased guardian.^'' The appellate court will not reverse a surrogate's decision that one he appointed general guard- ian resided in his county if there is some evidence in support of such residence.^' Although the statute gives an infant over four- teen the right to petition the surrogate's court of the county in which he resides for the appointment of a guardian, when his for- mer guardian's appointment has been revoked; yet if his former guardian not only was appointed, but such appointment was revoked, in a county other than that in which the infant resides, his petition will be referred to the surrogate of such other county.^* § 653. Id.: Persons Incompetent, In General. — No person is competent to ser\'e as guardian who is: — (1) under the age of twenty-one years; (2) an adjudged incompetent; (3) an alien not an inhabitant of New York state; (4) a felon; (5) incompetent to execute the duties pf his trust by rea^son of (a) drunkenness, (b) dishonesty, (c) improvidence or (d) want of understanding; (6) dead.^" A testamentary guardian not required by law to give a i*C. C. P § 2644. "Matter of Sherman, 70 Hun, 1* C. C. P. § 2644. 465, 24 Supp. 283 (1893), old Code, "C. C. P. § 2654. § 2822. «C. C. P. § 2654. "Matter of Stein, N. Y. L. J. "Matter of Doblin, N. Y. L. Jr Jan. 29, 1915 (Bronx Surr.), C. C. Dee. 23, 1914 (Bronx Surr.), C. C. P. §§ 2514, 2563, 2569, 2644. P. § 2514. a'lC. C. P. § -2564. 723 NEW YORK ESTATES AND SURROGATES §§ 654-056 bond cannot qualify or serve when the surrogate, after objection filed and proof talcen, finds either that he is not a resident of the state or that his circumstances are such that they do not afford adequate security to creditors or persons interested in the estate or fund for its due administration ^ unless such guardian gives a bond as prescribed by law.* If such guardian is not a resident of the state he must, besides giving the bond, show his citizenship of the United States.^ § 654. Id.: Persons Incompetent: Infants. — No person is com- petent to serve as guardian who is under the age of twenty-one years.* § 655. Id.: Persons Incompetent: Adjudged Incompetents. — No person is competent to serve as a guardian who is an adjudged in- competent.* § 656. Id.: Persons Incompetent: Aliens and Non-Inhabitants; or Non-Residents. — No person is competent to serve as guardian who is an alien not an inhabitant of this state. ^ An alien is not competent to receive letters of guardianship.' The subject of alienage has been elsewhere considered.'^ Letters of testamentary guardianship will not issue in New York when the would-be grantee, thougji appointed by the will of a resident of New York duly probated here, is yet a resident of a foreign country and an alien, in spite of the fact that he files an application accepting the appointment and asking for the letters.' The incompetency of a testamentary guardian to qualify and serve because of nonresidence alone is not absolute: it only exists when (1 ) he is not by law required to .give a bond, (2) objection has been filed against his qualification and service, (3) proof has been taken upon the filing of the objection, and (4) the surrogate has upon such proof found that he is not a resident of the state.^ Even if such nonresidence has been established to the surrogate's satisfaction, the person named guardian miay entitle himself to let- ters by giving a bond as prescribed by law, and showing he is a citizen of the United States.*' Persons named guardians of the infants of an only surviving parent by the latter's will are entitled as of right to letters of guardianship, though they be nonresidents iC C. P. § 2564. 676 (1914), or 147 Supp. 887;— in ' C. C. P. § 2567. which alien would-be administrators ' C. C. P. § 2567. were denied administration. * C. C. P. § 2564, subd. 1. ""■ See § 34, supra. ''C. C. P. § 2564, subd. 2. 'Matter of Zeller, 25 Misc. 137 6 0. C. P. § 2564, subd. 3. (1898), or 54 Supp. 926; See old ■^ By analogy to Matter of Wolff, Code, §§ 2851 and 2852. 161 A. D. 255 (1914), or 146 Supp. » C. C. P. § 2564. 495; and Matter of Krogg, 84 Misc. " C. C. P. § 2567. 724 §§ 657, 658 GUARDIANS AND INFANTS with no place of business in the s.tate, if they give bond furnishing adequate security." § 657. Id.: Persons Incompetent: Felons. — No person is com- petent to serve as guardian who is a felon.^* The incompetency of a felon to receive letters of guardianship probably is removed by a pardon of the crime for which he was convicted granted be- fore issue to the pardoned person of letters of guardianship.^* Con- viction and fine in a Federal court for a misdemeanor for violation of the excise law,^* or in the court of special sessions (Albany county) for a crime punishable by imprisonment and fine, or both,^^ probably is not sufficient to disqualify the person convicted, on the ground that he is a felon, from receiving letters of guardian- ship. A felony, in order to determine if the one guilty of it is disqualified from receiving letters of guardianship, probably must be a crime in which presentment or indictment by grand jury is a prerequisite to conviction.^* § 658. Id.: Persons Incompetent: Drunkenness, Dishonesty, Im- providence, Want of Understanding. — No person is competent to serve as guardian who is incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding.^* The incompetency which disqualifies a would- be guardian of an infant's property from receiving letters is prob- ably not moral delinquency, but such habits of mind and conduct as have become part of the man and render it likely that he is generally and under all ordinary circumstances unfit to exercise his trust and protect the estate from loss.^' Proof that a person is a gambler probably gives rise to the presumption that he is unfit to receive letters of guardianship either of the person or the estate of an infant ; ^' while proof of illiteracy or small pecuniary means probably does not show such unfitness.^' That want of understand- ing which will disqualify a person from receiving letters of guard- ianship probably means lack of intelligence.^" "Matter of Welsh, 50 A. D. 189 alogy, Executor. Statute used (1900), or 63 Supp. 737; old Code, words "infamous crime." § 2638, new Code, § 2567. " Matter of O'Hara, 60 Misc. 269, i^C C P § 2564, subd 3 ^^^ ^"PP- ^81 (1908). By analogy, IS Matter of Raynor, 48 Misc. 325 Executor. Statute used words "in- /-ir>nr\ no o 'onr T> tamous crime. (1905), or 96 Supp. 895. By an- ,, ^ ^ p g ^.^^ ^^^^_ g alogy. Statute was that "no per- „By analogy. Emerson v. Bow- son IS competent to serve as an gj.s, 14 N. Y. 449 (1856) ; McMahon executor who at the time the will is y Harrison 6 N. Y. 443 (1852). proved— shall have ' been convicted w Emerson v- Bowers, supra, of an infamous crinie." 19 McMahon v. Harrison, supra. 1* Matter of Greene, 48 Misc. 31 ^o Matter of Greene. 48 Misc. 31 (1905), or 96 Supp. 98. By an- (1905), or 96 Supp. 98. 725 NEW YORK ESTATES AND SURROGATES § 659 § 659. Id.: Persons Incompetent: Renunciation or Refusal. — A person or trust company appointed guardian by will, at any time before qualification, may expressly renounce the appointment by a written instrument, acknowledged or proved, and duly certified, and filed in the office of the surrogate admitting the will to pro- bate.^ A person or trust company appointed guardian by will is deemed to have renounced the appointment if within thirty days after the admission of the will to probate such person or company has not filed the oath, affirmation or consent, bond, (if necessary) and petition or affidavit of qualification to receive letters; unless the surrogate, either before or after the expiration of such thirty days, has extended the appointee's time to qualify, for good' cause shown.* In no event can the surrogate extend a testamentary gTiardian's time to qualify for more than three months after the admission to probate of the will appointing him or it.* A person or trust company appointed guardian by deed, at any time before qualification, may expressly i^enounce the appointment by a writ- ten instrument, acknowledged or proved, and duly certified, and filed in the ofiice of the surrogate.* A person or trust company appointed guardian by deed is deemed to have renounced the ap- pointment if, either (1) within three months after the grantbr's death the deed is not recorded; or (2) within thirty days after the recordation of the deed such person or company has not filed the oath, affirmation or consent, bond (if necessary) and petition or affidavit of qualification to receive letters: unless the surrogate either before or after the expiration of such thirty days has ex- tended the appointee's time to qualify, for good cause shown.* If a guardian is duly appointed of an infant by a surrogate's court after the expiration of three months from the grantor's death, with- in which time the deed appointing a guardian has not been record- ed, the person appointed guardian by the deed, is conclusively pre- sumed to have renounced his appointment.* In no event can the surrogate extend a guardian by deed's time to qualify for more than three months after the recordation of the deed of appointment.'' Renunciation of appointment as guardian by will or deed is pre- sumed if qualification is not made within thirty days after probate or recordation of the appointive will or deed; but the surrogate, either before or after the expiration of thirty days, may extend the lime so to qualify upon good cause shown, for not more than three months.* Eenunciation of appointment as guardian by will or 1 C. C. P. § 2658. 6 C. C. P. § 2658. 8 C. C. P. § 2658. 6 C. C. P. § 2657. s C. C. P. § 2658. "> C. C. P. § 2658. * C. C. P. § 2658. 8 C. C. P. § 2658. 726 §§ 660-662 GUARDIANS AND INFANTS deed may Tae made by the appointee at any time before he quaU- fies by a written instrument, acknowledged or proved, and duly certified, and filed in the surrogate's office.' § 660. Id.: Persons Incompetent: Inadequate Circumstances. — The incompetency of a testamentary guardian whose circumstances are not such as to afford adequate security for the due administra- tion of the estate or fund to creditors or persons interested in it is not absolute: it only exists when (1) the guardian is not by law required to give a bond, (2) objection has been filed against his qualification and service, (3) proof has been taken upon the filing of the objection, and (4) the surrogate has upon such proof found that his circumstances are such that they do not afford adequate security for the due administration of the estate or fund to creditors and persons interested in it.^" Even if such inadequate circum- stances have been established to the surrogate's satisfaction, the person named guardian may entitle himself to letters by giving bond as presented by law.*^ § 661. Id.: Persons Incompetent: Illiteracy or Failure to File Designation. — The surrogate has discretion to refuse to grant letters of guardianship to any person who either (a) is unable to read and write the English language or (b) does not file in the surrogate's of- fice an instrument, acknowledged or proved and duly certified, designating the clerk of such surrogate's court, and his successor in office, as the person upon whom service may be made of any process issuing from such court in like manner and with like effect as if it were served personally on the individual seeking guardian- ship- whenever the latter cannot be found and sensed within the state of New York after the use of due diligence. ^^ § 662. Id. : Preferences. — The surrogate, in appointing a general guardian of the person or property, or both, of an infant, must select such a person as it will be for the infant's best interests to have as guardian,^^ The surrogate has discretion to appoint a per- son other than the father or mother of the infant, or other than the person nominated by or on behalf of the infant.^* But parents should be preferred as general guardians of the person or estate, or both, of their infant children, unless good cause is shown for not appointing them ; " and if no parents are alive the rights of the in- 9 C. C. P. § 2658. 781, 59 N. B. 145 (1901) ; Matter of "C. C. P. § 2564. Wagner, 75 Misc. 419 (1912)— die- "C. C. P. § 2567. turn; or 135 Siipp. 678; Matter of « C. C. P. § 2565. Wyekofe, 67 ilisc. 1, 124 Supp. 625 "Matter of Vanderwater, 115 N. (1910). y. 669, 22 N. E. 174 (1889). !« Matter of Wagner, supra. Par- 1* C. C. P. § 2649 ; Goodman v. ents divorced in foreign country for Al(!xar.der, 165 N. Y. 289, 55 L.R.A. mutual adultery; mother remarried 727 NEW YOEK ESTATES AND SURROGATES § 662 fant's relatives should not be lightly disregarded.^^ The surro- gate should not appoint as guardian one whose interests are adverse to any possible claim of the infants." In appointing a guardian the court is not limited to naming the person for whose appoint- ment the petition prays.^' Unless the interests of infants require otherwise, guardians of their persons will be selected from among relatives rather than strangers, especially when the wishes of their parents are to that effect." A relative's claim will unhesitatingly be disregarded and a stranger appointed if the infant's best in- terests demand.^" As the rule governing the appointment of guard- ians is solely the infant's best interests, a very young infant need- ing extremely careful attention to its health should not be given to two guardians alternately, each for six months at a time.*^ When both parents can suitably care for their minor daughters aged nine and fourteen years but the father is financially able to do so while the mother is not, the father will be preferred.^ Proof of the char- acter of the father's home should be admitted to show whether he or ladies, relatives of his motherless child who had nurtured it from shortly after its birth till it reached an attractive age, under the written agreement of the father "on his honor" to leave it with them, should have its custody.* In appointing a guardian of an in- fant, the religious faith of the infant's parents and in which the in- fant was reared is given the highest consideration ; and an infant's personal guardian will be selected from those of the religious up- bringing of the infant and belief of the parents, unless extreme cause citizen of foreign country ; father be- "Matter of Curtin, 93 Misc. 394 comes U. S. citizen; father able to (1916). support child; no proof of father's i* Matter of Curtin, 93 Misc. 394 further indiscretion; father ap- (1916).. pointed. Matter of TuUy Infants, 54 '"> Matter of Buckler, 96 A. D. Misc. 184 (1907), or 105 Supp. 397 (1904), or 89 Supp. 206. Com- 858. Father appointed though in- patent and willing sister passed in fant over 14 asked that maternal favor of trust company when es- aunt be, when only ground against tate large and interested parties to father were sporadic quarrels with some extent at variance as to man- wife and allegations of having been agement of property passing under seen drunk and of means being less will in which infant interested. - than means of others who might ** Matter of Annan, 74 Hun, 19 have been appointed. Matter of (1893), or 26 Supp. 258; disin'd Burdick, 47 Misc. 28 (1905), or 95 143 N. Y. 623, 37 N. E. 827. Supp. 206. 1 People ex rel. SneU v. Snell, 77 On denial of custody of child to Misc. 538, 137 Supp. 193 (1912), parent for its well-being see note in § 70 Dom. Rels. L. (supreme 41 L.R.A.(N.S.) 564. court). -* Matter of Buckler, 96 A. D. ^People ex rel. Brush v. Brown, 39/ (1904), or 89 Supp. 206. 35 Hun, 324 (1885), aff'd 42 Hun, 1'' Matter of Vanderwater, 115 609 — habeas corpus on detention by N. Y. 669, 22 N. E. 174 (1889). father of child on visit to him. 728 § 662 GUARDIANS AND INFANTS for not doing so is advanced.' As the welfare of an infant is the pri- mary consideration in determining the award of guardianship of the infant's person and estate, the surrogate, if such welfare de- mands, will grant guardianship to a stranger in blood to the in- fant, not of the religious faith of the latter's parents, rather than, to the infant's aunts, of the religious faith of the infant's parents, upon condition however, that the infant receive religious training in the faith of the parents.* A Protestant aunt will be appointed guardian of the persons of infant nephews and nieces (children of her brother) even though the infants' parents were Roman Catho- lics and the infants were baptized in that faith, provided the aunt was named as testamentary guardian and no one of nearer rela- tionship or of relationship on the mother's part applies for appoint- ment as guardian.® The mother's right to be her child's guardian attaches immediately on the father's death and will be protected unhesitatingly by the court except when strong reasons show it is to the infant's interest to otherwise order.* The statutory power of a wife to be joint guardian with her husband of their children survives to her if she outlives her husband, i. e., it is not limited to the period of her coverture.'' The statutory provision that husband and wife shall be joint guardians of their children does not mean that a husband who is not father to his wife's children by a former marriage shall be joint guardian of them with her.' A father of a daughter aged five years who had obtained an absolute divorce from the mother should be given the child's custody rather than the child's maternal grandfather to whom she had been committed by the mother shortly after the latter's remarriage after the decree ' Matter of McConnon, 60 Misc. testant minister of his own nation in 22 (1908), or 112 Supp. 590. Par- whose care infant had been five ents Roman Catholics and dead; years, since there left by non-resi- Protestant step-father appointed dent sister with some sort of pledge general guardian of person and es- child be brought up Roman Catholic ; tate on execution of usual consent minister better able than brother to by infant's nearest relatives (aunts support child ; minister appointed, and Roman Catholics) ; letters of but only on condition place child in step-father revoked on petition of Roman Catholic residential educa- one of aunts to be appointed ; infant tional institution, expressed desire to be Roman Cath- * Matter of Cross, 92 Misc. 89, 155 olic; nothing to show step-father not Supp. 1020 (1915). good guardian; step-father had * Est. of Viehmann, N. Y. L. J. aided in infant's support and main- Apr. 8, 1916, N. Y. Surr. tenance; Estate of Mancini, 89 Misc. * Matter of Burdick, 41 Misc. 346 83 (1915)) or 151 Supp. 387. Adult (1903), or 84 Supp. 932. brother petitioned to be guardian of '' People v. Boice, 39 Barb. 307 person of infant under 14; pending (1862), L. 1860, c. 90, § 9. proceeding infant became 14 and * Matter of Schmidt, 77 Hun, 201, petitioned for appointment of Pro- 28 Supp. 350 (1894). 729 NEW YORK ESTATES AND SURROGATES § 663 of divorce, eveA though the divorce decree awarded the child to the motlier, when both the father and grandmother are of good cliar- acter, but the father by reason of his income is, better able tp care for the child ; because the father has some right to the child's cus- tody, while the grandmother has none.^ § 663. Id.: When Appointed and Petition: General Guardian. — A petition for the appointment of a general guardian of the person or property, or both, of an infant over the age of fourteen years must be made by the infant unless the latter be of unsound mind or refuse to make the application, when the petition may be made, by any person if, in the surrogate's judgment it is necessary or proper that such a guardian be appointed." A petition for the appoint- ment of a general guardian of the person or property, or both, of an infant under the age of fourteen years may be made by any person in behalf of such infant.*' The general requirements of a petition in any proceeding in a surrogate's court has been fully dis- cussed elsewhere.*^ The facts upon which the jurisdiction of the court to appoint a general guardian depends, which must be set forth in the petition for such appointment, are discussed above. '^ A petition for appointment of a general guardian for an infant must always set forth: (1) The infant's (a) full name, (b) resi- dence, and (c) date of birth; (2) The (a) names of the infant's father and mother, and (b) whether or not they are living; (3) The name and (b) address of the person with whom the infant resides; (4) Whether the infant at any time has had (a) a guardian appointed for him by will or deed, (b) an acting guardian in soc- age, or (c), a guardian of the person appointed pursuant to sec- tion 86 of the Domestic Relations Law; (5) The estimated value of the personal property, and of the annual income from any' other personal property or real estate, to which the infant is or will be entitled; and (6) the facts upon which the jurisdiction of the court depends." The petition may always also set forth the reasons why a person named therein would be a proper and suitable person to be appointed general guardian for the infant.** If either or both the father and mother are living, the petition must set forth his, her or their place of residence.** If either father or mother is living the petition must set forth the reasons — ^if there are any — why such living parent should not be appointed general guardian for his or her child.** If both father and mother are 9 Van Syckle v. Van Syckle, 168 *» See § 651-2, supra. A. D. 924 (1915). ** C. C. P. § 2646. *»C. C. P. § 2645. *^C. C. P. § 2646. ** C-. C. P. § 2645. *8 C. C. P. § 2646. *2 See § 787, infra. 730 § 664 GUARDIANS AND INFANTS dead, the petition must set forth (a) the names and (b) addresses of the infant's nearest next-of-kin who are both of full age and re- side in 'the county." If the petitioner be a nonresident married woman and the petition relates to personal property only, it must affirmatively show (a) that the property is not subject to the con- trol or disposition of the petitioner's husband, by the law of the petitioner's residence, and (b) set forth the name and residence of such husband.^* The rules of various surrogate's courts provide what shall be the contents of petitions for appointment of guard- ians ; *' that separate petitions must be presented and bonds given if there are two or more infants ; *" and that such petitions Avill not be entertained if prior proceedings are pending.^ When the ap- pointment of and appearance by a guardian is in issue, the rules of the various surrogate's courts require certain matters to be shown ; e. g., that the prospective guardian is competent to look out for the infant; is not a party to the proceeding; has no interest adverse to the infant's, etc. — otherwise a special guardian may be appointed by the court.* § 664. When Appointed and Petition: Special Guardian. — Whenever in any proceeding in the surrogate's court a party: (a) who is an infant does not appear by his general guardian, ( b) who is a lunatic, idiot or habitual drunkard does not appear by his com- mittee or (c) who is an infant, habitual drunkard or for any cause mentally incapable adequately to protect his rights though not ju- dicially declared to be incompetent to manage his affairs ; the surro- gate must appoint a competent and responsible person to appear as special guardian for that party.' The surrogate must appoint a special guardian even for an infant party who appears by his gen- eral guardian or for a lunatic, idiot or habitual drunkard who appears by his committee if, after inquiry into the facts, there is any ground to suppose that the interest of the general guardian or com- mittee is adverse to that of the infant or incompetent person; or that for any other reason the interests of the latter require the ap- pointment of a special guardian.* The surrogate also has discre- tion to appoint a special guardian for a person or persons whose whereabouts are unknown.^ A person cannot be appointed such a special guardian who is nominated by any party; except that "C. C. P. § 2646. 2 See, e. g. these Rules: N. Y. 15: i«C. C. P. § 2646. Bronx, 6; Queens, 19; Westchester. ^9 See, e. g., these Rules : Bronx, 8 ; Chautauqua, 8. 6; Westchester, 6; Steuben. 8. ^ C. C. P. § 2534. «» See, e. g., Westchester Rule No. * C. C. P. § 2534. 6. , 5id_ 1 See, e. g., these Rules: N. Y. 21; Kings, 8; Bronx, 17. 731 NEW YORK ESTATES AND SURROGATES § 664 an infant over fourteen years may nominate his own special guardian.^ The "party" for whom a special guardian must be ap- pointed is a person required to be cited in the proceeding/ e. g., a grandchild of a decedent, not designated as executor, testamen- tary trustee or guardian in the instrument propounded as the dece- dent's will is not a party to the probate proceeding, as he is neither heir nor next of kin.' There is no jurisdiction in the surrogate to appoint a special guardian for an infant until the latter has been brought into court by the service of process in the manner required by law.^ A special guardian to petition for the removal of the general guardian of the property of an infant and to prosecute the necessary proceedings for that purpose on behalf of the ward may be appoint- ed by the surrogate from among fit and proper persons if it ap- pears to the surrogate upon the annual examination of guardians' accounts, inventories and affidavits in his office that such general guardian has omitted to file his annual inventory or account or the affidavit relating thereto, or that the ward's interest requires that the general guardian should render a more full or satisfactory in- ventory or account, or that the surrogate has reason to believe that •sufficient cause exists for the general guardian's removal.'" If a special examiner had been appointed by the surrogate to examine a general guardian's inventory, account and affidavit and none such had been filed, or a more full or satisfactory inventory or ac- count is required or sufficient cause probably exists for the general guardian's removal, the surrogate must appoint as special guardian of tlie infant, such special examiner ; with authority to procure the filing of an amended account or a proper account, and to prosecute a proceeding for the removal of the general guardian, when neces- sary. '^ In Transfer Tax Proceedings the surrogate may appoint a special guardian for an infant when it appears at any stage of transfer tax proceedings (1) that such infant is interested in the estate, (2) that such interest is presently involved, and (3) that such interest is adverse to that of any other interested person.'^ Any infant over fourteen years or any one on behalf of an infant undeB fourteen years may at any stage of the transfer tax proceedings nominate and apply for the appointment of a special guardian for such in- «Id. 9 Potter V. Ogden, 136 N. Y. 384, ''Matter of St. Cyr., N. Y. L. J. 33 N. E. 228 (1893). Feb. 18, 1916, C. C. P. § 2534. " C. C. P. § 2663. 8 Matter of St. Cyr., supra. C. C. " C. C. P. § 2663. " ^'^ Tax Law, § 231. 732 §§ 665-667 GUARDIANS AND INFANTS fant.^' The rules of various surrogates' courts provide for the ap- pointment of guardians for infants in transfer tax proceedings.^* § 665. Id.: When Appointed: Guardian By Will. — The appoint- ment of testamentary guardians is discussed elsewhere.^* § 666. Id.: When Appointed: Guardian By Deed. — The appoint- ment of guardians by deed is treated elsewhere.^® A surviving parent cannot by deed to take effect in his or her lifetime appoint a guardian for his or her child. *^* § 667. Id.: When Appointed and Petition: Ancillary Guardian. — The person who can petition in this state for ancillary letters of guardianship of the property of an infant who resides out of this state but within the United States is a person appointed guardian of such infant's property by a court of competent jurisdiction within the state or territory where the ward resides, who has there given security in at least twice the value of the personal property and of the rents and profits of the real property of the ward." An ancil- lary guardian can be appointed in this state only of the property of an infant; and only if the infant reside outside the state — ■ whether in the United States, its territories or dependencies, or a foreign country.^' The appointment can be made for an infant who resides in the United States if the infant is either entitled to property within this state or has a right to maintain an action in any court of the state.^^ The appointment can be made for an infant who resides in a foreign country if the infant is either en- titled to personal property within this state or has a right to main- tain an action in any court of this state respecting such personal property.^" Besides the petition for appointment as guardian of the property of an infant resident without the state but within the United States, there must be presented accompanying proof of the appointment of the applicant as guardian of, the infant's property in the state or territory of the latter's residence.^ The petition must conform in general to the standard petition in any proceeding in a surrogate's court.* It must state: (1) the residence of the infant without this state but within the United States; (2) the title of the infant to property in this state ; or the right of the infant to main- tain an action in any court of this state; (3) the appointment of the petitioner as guardian of the infant's property by a court of competent jurisdiction within the state or territory in which the IS Id " C. C. P. § 2654. "See, e. g., these Rules: Bronx, " C. C. P. § 2654. 22; Queens, 28; Steuben, 13. " C. C. P. § 2654. « See § 643, supra. ' 2" C. C. P. § 2654. " See § 644, supra, i C. C. P. § 2654. i«» Matter of Gibbs, N. Y. L. J., " See § 787, infra. Aug. 2, 1916 (N. Y. Surr.) 733 NEW YORK ESTATES AND SURKOGATES § 667 infant rasides; (4) the security given by the petitioner on being so appointed guardian in the foreign state or territory; (5) the debts, if any, due or to become due from the infant to anyone resident in New York state; (6) that the security already so given by the petitioner is sufficient in amount to cover the property sought to be obtained through the ancillary letters; (7) that the court which appointed petitioner guardian in the foreign jurisdiction had juris- diction of the infant; and (8) that the petitioner prays the grant of ancillary guardianship.* The proof accompanying a petition for appointment of ancillary guardianship consists of exemplified copies of the records and other papers showing that the petitioner has been appointed guardian of the property of the infant in the foreign jurisdiction and has there given the requisite security. The authentica:tion of the records, etc., showing appointment of a petitioner for ancillary guardianship as guardian of the infant's property in the state or territory of the latter 's residence is: (1) By the seal of the court or ofiicer by which or whom such records, etc., were admitted to probate or granted, as the case may be; or by the seal of the court or officer having the custody of such records, etc., or the duty of recording them; and by the signature of a judge of such court or the signature of such officer, and of the clerk of such court or officer, if any; (2) By a certificate under the great or principal seal of such state or territory, and the signature of the officer who has the custody of such seal, to the effect (a) that the court or officer by whom such records and other papers were admitted to probate or such letters granted was duly authorized by the laws of such state or territory to probate or grant letters and to keep the same and the records thereof; (b) that the seal of such court or officer affixed to such copy is genuine, and (c) that the officer making such certificate under such seal of such state or ter- ritory verily belieives' that each of the signatures attesting such copy is genuine; and, to entitle any certificate accompanying the copy of the will or of the record so authenticated^ to be recorded or used in New York state such certificate must be under the seal of the court or officer by which or whom such will was admitted to pro- bate, or of the court or officer having the custody of such will or record, and the signature of a judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of such state or territory and the sig- nature of the officer having the custody thereof, to the effect that the seal of the court or officer affixed to such certificate concerning proofs is genuine, and that such officer making such certificate under such seal, of such state or territory verily believes that the « C. C. P. § 2654. 734 § 667 GUARDIANS AND INFANTS signature to such certificate concerning proofs is genuine.* A pe- tition with duly authenticated records and papers is conclusive evi- dence of the facts therein set forth in any court in the state of New York.* The person who can petition in this state for ancillary letters of guardianship pf the property of an infant who resides in a foreign country is a person authorized to act as guardian of the infant's property within the country where the ward resides.^ Besides the petition for appointment as guardian of the property of an infant resident in a foreign country there must be presented accompany- ing proof of the appointment and of the authorization of the appli- cant to act as guardian of the infant's property in such foreign country.* The petition must conform in general to the standard petition in any surrogate's court proceeding.** It must state (1) the residence of the infant without the state of New York and within a foreign country; (2) the title of the infant to personal property in New York state, or the right of the infant to maintain an action or special proceeding in any court of New York state respecting such personal property; (3) the authorization of the petitioner to act as guardian of the infant's property within the foreign country in which the waxd resides; (4) the security given by the guardian in the foreign country on being so authorized; (5) the debts, if any, due or to become due from the infant to a resident of New York state; (6) that the security so given is suf- ficient in amount to cover the property sought to be obtained through the ancillary letters; (7) that the petitioner prays the grant of ancillary letters of guardianship on the personal estate of the infant.' The proof accompanying a petition for the appoint- ment as ancillary guardian consists of exemplified copies of the records and other papers showing that the petitioner has been ap- pointed guardian of the property of the infant in the foreign juris- diction, or, if such foreign guardian has not been appointed by any court, other proof of his authority to act as such guardian within such foreign country, and proof that pursuant to the laws of such foreign country such foreign guardian is entitled to the possession of the ward's personal estate.* The authentication of the records, etc., showing the authorization of a petitioner for ancillary guardi- anship to act as gTiardian of the infant's property in such foreign country, is: (1) by the seal of the court or officer by which or by whom such foreign guardian was appointed, or the officer having * C. C. P. § 264; § 45, Deced. Est. *» See § 787, infra. L. 'C. e. P. § 2654. 5C. C. P. § 2654. *C. C. P. § 2654; Deced. Est. L, « C. C. P. § 2654. § 45. 735 NEW YORK ESTATES AND SURROGATES § 668 the custody of the seal or of the record thereof, and the signature of a judge of such court, or the signature of such officer and of the clerk of such court, or officer, if any; and, further (2) by the cer- tificate under the principal seal of the department of foreign af- fairs, or the department of justice of such country, attested by the signature or seal of a United States consul.® A petition with duly authenticated records and papers is conclusive evidence of the facts therein set forth in any court in the state of New York.^" § 668. Id.: When Appointed: Guardian Ad Litem. — Before a summons is issued in the name of an infant plaintiff, a competent and responsible person must be appointed to appear as his guardian for the purpose of the action, who is responsible for the costs -thereof unless the infant prosecutes as a poor person as not being worth $10Q, besides the wearing apparel and furniture necessary for him- self and his family and the subject-matter of the action, in which case security for costs is not required." The guardian for an in- fant plaintiff must be appointed on the infant's application if the infant is fourteen years old or more ; and on the application of the infant's general or testamentary guardian if he has one, or a rela- tive or friend, if he has none, if the infant is under fourteen years. *^ If the application is made by a relative or friend, notice of it must be given to his general or testamentary guardian, if he has one ; or to the person with whom the infant resides, if he has no such guardian.*' Provision is made by sections 471 and 473 of the Code of Civil Procedure for the appointment of a guardian for an infant defendant, resident or nonresident.*' The supreme court may appoint a guardian ad litem or special guardian for an infant at any stage in any action or proceeding, when it appears to the court necessary for the proper protection of the rights and interest of such infant and fix the f^s and compensa- tion of such guardians, except when it is otherwise expressly provid- ed by law.** A brother of a surrogate may be appointed guardian ad litem in a probate proceeding before the surrogate as he is not made a party by such appointment but is simply an officer of the court.** A guardian ad litem, to bring suit on a note belonging to infants under fourteen years of age, residing in a foreign country with their father who is a citizen of such country, may be appointed in this state on application by a general guardian appointed in another state without the necessity either of havitig a general guard- 9C. C. P. § 2654; Deeed. Est. L. *« C. C. P. § 470. § 45. 1* C. C. P. § 477 (effective Sept. 10 C. C. P. § 2654. 1,1916). ** C. C. P. §§ 469 and 459. ** Matter of Yan Wagoner., CO 12 C. C. P. § 470. Hun, 365 (189.3), or 23 Supp. 636. 736 §§ 669, 670 GUARDIANS AND INFANTS ian appointed in New York to make application for the appoint- ment of the guardian ad litem or of giving notice of the application to the father.^* One appointed guardian ad litem for an infant prior to the probate of the will in which the infant is interested and while the infant is present in court, who duly consented to act and appeared for the infant, is well appointed ; and service of no- tice or citation on such infant is not necessary, because he was per- sonally present in court and made no objection either himself or through anyone else." The appointment of a guardian ad litem for an infant over fourteen years, on the nomination of a party whose accounts axe to be passed upon concerning a trust for such infant is at the nomination of the adverse party and must be va- cated by the court on the facte being called to its attention.^* The failure to appoint a guardian ad litem affects only the regularity of the procedure and not the jurisdiction pf the court; so that even at the close of the evidence the court may grant an application, and, before the case is submitted to the jury, enter an order appointing a guardian ad litem, as of a date previous to the service of the sum- mons.^' § 669. Id.: When Appointed: Joint Guardians. — There is no statutory provision which authorizes the issuance of joint letters of guardianship in the surrogate's court, i. e., to another than the person entitled to such letters who is authorized to act as guardian in the county within which the infant resides in conjunction with the latter.2« § 670. Id.: Citation: General Guardian. — ^Upon presentation of a petition for the appointment of a general guardian the surrogate must issue a citation to those entitled to it, and must inquire and ascertain as far as practicable what relatives of the infant reside in his county or elsewhere and with whom the infant reside.? ; and he may then, in his discretion, cite any relative or class of relatives, whether or not anyone else be entitled to be cited, to show cause why the appointment should not be made.^ On presentation of a petition by anyone except a married woman for appointment of, a general guardian fpr an infant fourteen years old or under,, citation to show cause why the application should not be granted must be issued: (1) To the infant's parent or parents, (a) who is or are within the state, and (b) whose residence is or whose residences "Treund v. WasHburn, 17 Hun, 120 N. T. 433, 24 N. E. 940 (1890), 543 (1879), C. C. P. § 470. C. C. P. §§ 468 and 469- "Matter of Seabra, 38 Hun, 218 ""Matter of Breese, 92 Misc. 650. (1885). 156 Supp. 267 (1915), C. C. P. §§ " Matter of Cutting, No. 1, 38 A. , 2654 and 2655. D. 247, 56 Supp. 945 (i8£i9). . i C. C. P. § 2647. 19 Rima v. Rossie Iron Works, N. Y. E. & S.— 47. 737 XEW YORK ESTATES AND ; SURROGATES §§^ 671, 672 are known; unless the parent or parents in the state whose resi- dence is or ai-e known (a) has or have abandoned the infant; (b) is or are deprived of civil rights; (c) is or are adjudged to be either insane or an habitug.! drunkard; or ;(d) has or have been judicially deprived of the custody of the infant.; or unless the application is made by one parent and; the other parent has been divorced (be- cause of adultery) from. the petitioner; (2) To the person having the care abd custody of the infant, or with whom the infant re- sides.^ If there be no parent or parents in the state whose residence is known, the citation must issue, instead, to the infant's grandpar- ent or grandparents who is or are within the county.* If the ap- plicatibn is for appointment of a general guardian for an infant over fourteen, and made by anyone except' such infant, by reason of the latter's refusal to make the' application, citation must also issue to the infant.* If a niarried' woman niakes the applica- tion a citation need issue only to her husband — and not even to him if he has (a) abandoned the petitioner, (b) is depi^ved of civil right's, (c) is divorced because of adultery or (d) is adjudged to be either insane or an habitual, (ifunkard.* The surrogatte has dis- cretion to cite any relative or class of relatives of tlie infant to show cause why the appointment should not.be made.* Persons shown by the petition tp, be preferred tp, the, petitioner as ;guardian are entitled, to notice of the application, and an ex parte appointment of the petitioner will be vacated.'' Since the law giving married women joint guardianship with their hjisbandsover their; children,' notice to the mother of' an application for guardianship of her child's person is essential to acquisition by the surrogate of jurisdic- tion to grant letters.^ § 671. Id.: Citation: Special Guardian. — A special guardian is appointed by the surrogate without citation to anyone; aiid a guardian ad litent or special guardian is' appointed by the supreme court witliout notice to anyone. . ; i ; : §672. Id.: Citation: Ancillary Guardian. — Citation to show cause why the prayel" of a petition for ancillary Mters of guardian- ship should not be granted may issue to ho one or to such persons as the surrogate, thinks propet!^' The conteilts of the citation are " C. C. P. § 2646. , ' L. 1896, chapter 272, § 51. 'C. C. P. § 2646. *Ms,tter of Drowne, 56 Misc. 417 *C. C. P. § 2646. (19.07),or 107 Supp. 1029; old Code SO. C P. § 2646. §§''2823'bind 2827, new Code § 2647, *C: C; P.' § 2646. ' requiring notice to the "parent, or ''White V. Pomeroy, 7 Barb. 640 patetits, who are within the State.'' (1850). -■ " C. C. P. § 2655. ' 738 § 673 GTIiARDIANS AND INFANTS in general the same as in a standard citation in any proceeding in a surrogate's court.^^ ^ § 673. Id. : Hearing, and Order or Decree. — ^The surrogate must inquire into all the facts and circumstances regarding an infant for whom a genei-al guardian is sought to be appointed — the infant's condition in life, surroundings, the value of his personal property, income from personal property, and rents and profits of real prop- erty.^* If no citation is issued, this hearing takes place on presen- tation of the petition.^' If a citation is issued, it takes place on the return thereof.^* A decree appointing a guardian of an infant must be taade by the surrogate if he is satisfied (1) that the allega- tions of the petitioh are true in fact, and (2) that the interests of the infant will be promoted by the appointnient of a general guard- ian either of his pereon or his property, or both.^*' The decree may (1) Appoint a' general guardian of the person only of the infant. (2) Appoint a general guardian of the property only of the in- fant. (3) Appoint bne person general guardian of both the property . and person of the infant. (4) Appoint' one person general guardian of the person of the infant and another person general' guardian of his property. (5) Appoint as general guardian or guardians (a) The father of the infant, (b) the mother of the infaht, (c) the person or persons nominated by the petitioner for general gUardiah, (d) a person other than the father or mother of the infant or the person nominated by the petitioner (even though the fa,ther or rhother or person hominateid is alive, competent and willing to serve).*** ■'■■■■'■■:'• . ^ ,,;,■,■... A special guardian or guardian ad' litem is appointed by an order of the surrogate or supreme court. A decree granting ancillary letters of guardianship in New York state may be made by the surrogate having jurisdiction when he is satisfied upon the papers presented: (1) That the case is one in which the ihfaht is resident without the state of New York knd either in the United St'altes or a foreign country: (2) That the petitioner is entitled to ancillary letters of guardianship in New York state: and (3) That it will be for the ward's best interests that ancillary letters'of guardianship should be issued to the peti- tioner.** Any 'decree awarding ancillary guardianship must direct that any debts appearing to be due or owing from, the infant to residents of New York state either be paid or the payment thereof be secured before letters can issue." In other words,, such letters cannot issue until the surrogate has directed that such debts be "See § 799, infra. « C. C. P. § 2655. 12 C. C. P. § 2648. "» C. C. P. § 2649.. 18 C. C. P. § 2648. ■ 16 C. C. P. § 2655., 1* C. C. P. § 2648. 739 NEW YORK ESTATES AND SURROGATES § 674 paid or security therefor be given, and such payment has been made or security given.^'' The contents of the decree are in gen- eral those of a standard decree in any surrogate's proceeding.^' § 674. Letters: Form. — Letters of guardianship are convenientt ly discussed under three heads: (1) When the guardian gives a full bond covering the whole value of the infant's property; (2) When the infant's property does not exceed in value; two thousand dollars ($-2,000.00); (3) W^hen it is impracticable, to. give a full bond covering the whole value of the infant's; property. Which- ever of these classes of letters be granted the purpose of. the letters is the same, viz.: to give the world evidence of the guardian's au- thority and to show what that authority is. The form of general, unlimited letters granted to a general guardian is ill geineral the same as the form of any other kind of letters issued from a surro- gate's court.^* If the letters are of guardianship of the infant's property they must ha,ve annexed tOj or printed upon them copies of sections 2660 and 2661 of the Code of Civil Procedure, which contain the statutory requirements as to the filing in the siurrogate's court by a guardian of an inventory and account of the ward's per- sonal property, of the details as to the guardian^s securities, and of the form of the guardian's affidavit to his account.^" The form of letters of guaxdianship of an infant's property which does not exceed $2,000 in value is the same as if the; letters were issued to a guardian of an infant's estate of any value whoi had given a full bond;-* unless the surrogate exercises his dispretioin by, in,aking an order dispensing wholly or partly with the bond and directing that the guardian collect and receive the moneys and property of his ward jointly with a person designated in the order, and that all such moneys and other property, so far as conveniently, cfip^^ble of de- posit, shall be deposited in the guardian's name, subject to the sur- rogate's order, with such bank, savings bank, trust company, or safe deposit company as shall be , designated in ^uch order, and shall be withdrawn or removed only on the surrogate's order.* In such case, the letters issued must, in addition to the, requirements of letters issued' wh«n a full bond is given, contain, the substance of such order.* As has been already explained,* in a case in which a guardian is named or appointed and it. appears to be impracti- cable to give a bond sufficient to cover the whole amount of the infant's personal property the surrogate has discretion to accept security, which he approves of, not less than twice the amount of " C. C. P. § 2655. 1 See Forms. i« See § 846, infra. « C. C. P. § 2650. 19 See § 176, supr^. » C. C. P. § 2650. » C. C. P. § 2SS8. * See supra. 740 §§ 675, 676 aUARDIANS AND INFANTS the particular portion of the infant's property which the guardian will be authorized under his letters to receive.' When the surro- gate so exercises his discretion, the letters which he issues to the guardian are in general the same as those which he issues when a full bond is given, with this exception : That the letters must limit the guardian from receiving any other personal property of the in- fant until the surrogate's further order made on giving further satisfactory security.' § 675. Letters: Effect. — A guardian gets no authority until his letters are signed and delivered, or at least are ready for delivery.' Letters of guardianship first granted to a person from a surrogate's court having jurisdiction to issue them give such person sole and exclusive authority pursuant to the letters until they are revoked ; and are conclusive evidence of his authority until the decree grant- ing them is either reversed upon appeal or they are revoked.' All letters granted to a guardian give unlimited and unrestricted powers and rights; except when issued to a general guardian in a case in which his possession and control of certain property of his ward is limited and restricted as follows : — In counties containing the whole or a part of a city of the first or second class, when the infant's property does not exceed $2,000, the letters must contain the sub- stance of an order which the surrogate must make before issuing the letters, directing the guardian to collect and receive the moneys and property of his ward jointly with a person designated in the order and to deposit all such moneys and other property con- veniently capable of deposit with such savings bank or safe deposit company as is designated in the order, in the name of the guard- ian, subject to the surrogate's order.^ § 676. Qualification: General Guardian of Person. — A general guardian of the person of an infant, before letters can is^ue to him, must talce and file his official oath to the effect that he will, well, faithfully and honestly discharge the duties of his office as general guardian of the person of the infant.''"' Whether or not a general guardian of the person of an infant must give a bond lies in the surrogate's discretion. If the surrogate requires a bond, its requisites are: (1) That it be executed by the guardian — with or wiiihout sureties, as to the surrogate seems prop- er; (2) That it be executed to the infant'; (3) That it be in a penalty fixed by the surrogate; (4) That it be conditioned that the 5 C. C. P. § 2651. • C. C. P. §§ 2560, 2561. 6 C. C. P. I 2651. » C. e. P. §§: 2559, 2650. ■'Potter V. Ogden, 136 N. T. 384, " C. C. P. § 2568. 33 N. E. 228 (1893)— order or di- rection in minutes that a person "be appointed guardian" not suflScient. 741 NEW YORK ESTATES AND SURROGATES § 677 guardian will in all things faithfully disciharge the trust reposed in him ^nd will 'duly account as directed by the surrogate's court, for all money or other property which may come to his hands.^* § 677. Id. : General Guardian of Property. — ^A general guardian of the property of an infant, before -letters can issue to him, must take and file his official oath to the effect that he will well, faith- fully and honestly discharge the duties of his office as general guardian of the property of the infant.*^ A general guardian of the property of an. infant must give a bond unless the value of the infant's property does not exceed the sum of two thousand dollars ($2,000.00) and the surrogate in his discretion dispenses by order with a bond in whole or in part; " and when a legacy or distributive share is payable to aii^ infant, the decree must direct that it be paid to his guardian upon his filing sufficient security, unless the legacy does not exceed $50, or ,a dis- tributive share does not exceed $150, in which cases the decree may order it to be paid for the use and benefit of such infant to the in- fant's father or mother or some competent person either with whom the infant resides or whp has some interest in his welfare.^* When two sections of the same act (such as those just .given requir- ing a bond always and yet dispensing with it sometimes) are in hopeless conflict, the surrogate is permitted to follow the one more consistent with the justice, and public policy long administered and expressed in the state; and so to grant that applicant letters of guardianship of an infant entitled to a legacy; or distributive share under $2,000 in value who gives security, rather than that appli- cant who does not give security." Mr. Surrogate Fowler of the New York surrogate's court refuses to designate a guard- ian of the property of any infant without full and ample se- curity.^* In case the infant's personal property does not exceed $2,000 in value, as shown by the petition, and the surrogate ex- ercises his discretion , by dispensing wholly or partly with a bond from the guardian he must direct by order that the guardian re- ceive his ward's moneys and property jointly with a person desig- nated in the order and that all such moneys and other property, so far as conveniently capable of deposit, be deposited in such guard- ian's name, subject to the surrogate's order, with such bank, savings "C. a p. § 2652. bond, see note in 44 ,L.R.A.(N.S.) 12 C. C. P. § 2568. 176. " C. C. P. § 2650. 1* C. C. P. § 2739. On necessity of bond to mak^ ^^ Est. of Hirshfeld, 88 Misc. 399 guardian's acts valid, see note in 33 (1914), or 151 Supp. 846; C. C. P. L.R.A. 759. §§ 2739 and 2650. On the liability of judicial ofBcer ^^ Matter of, Kaufman, 93 Misc. for failure to take proper guardian's 408 (1916), C. C. P. § 2650. 742 § 677 GUARDIANS AND INFANTS bank, trust company or safe deposit company as shall be designated in the order and be withdrawn or removed only on the sur- rogate's order. ^^ The cost of the safe deposit box is a county charge." No bond need be given by one to whom letters of guard- ianship of the property of an infant are issued if he is appointed testamentary guardian by the will of the surviving parent and the amount of the estatb going to the minor is less than $2,000 ; but his letters must contain the substance of ah order made directing the deposit of money or property collected or received by the guardian in a bank, etc.*' When a tenant for life is also guardian of the .remainder interest for infants he will not generally be required to give security for the safe-keeping of the estate in the absence of the allegation and proof of some fact tending to show the property would be unsafe and insecure in his hands as life tenant.^" The supreme court may refuse to direct that an amount of a settlement made by an infant's special guardian be paid the infant's general guardian appointed by thei suirogata without bond; because the statute allowing the surrogate so to appoint a general guardian with- out bond does not impair the supreme court's powers over guardi- ans, which include those formerly exercised by the court of chancery.* The appellate division has jurisdiction to compel a general guardian to give a bond suflBcient to cover the receipt of funds, pursuant to its affirmance of a surrogate's decree, when his outstanding bond is insufficient.* A surrogate's decree on an ac- counting in which he had before him all parties interested can be reviewed on appeal but not collaterally, so as to question the suf- ficiency of a guardian's bond to cover the amount to be decreed to be paid him; because the surrogate had then the jurisdiction and duty to pass on every question necessary to the final disposition of the accounting, of which this was one.* The requisites of a bond of a general guardian of an infant's property are: (1) That the guardian execute it: (2) That at least two sureties execute it with the guardian; (3) That it be executed to the infant; (4) That its penalty be fixed by the surrogate; (5) That its condition be that the general guardian in all things (a) will faithfully discharge the trust reposed in him; (b) will obey , "C. C. P. § 2650. , § 2650; Constitut. art. VI., § 7; C. " C. C. P. I 2650. C. P. § 217. 19 Matter of Huebsch, N. Y. L. J., ^Van Zandt v. Grant, 67 A. D. 70 Nov. 25, 1914 (Bronx Surr.), C. C. (IDOl), or 73 Supp. 600; aff'd 175 P. §§ 2642, 2650, 2658. N. Y. 150, 67 N.' E. 221; «•> Matter of Petition of Camp, 126 * Van Zandt v.' Grant, 175 N. Y. N. Y. 377, 27 N. E. 799 (1891). 150, 67 N. E. 221 (1903), old Code, 1 Haug V. Hewitt, 87 Misc. 67 § 2746, new Code § 2739. (1914), or 150 Supp. 236; new Code, . 743 ' NEW YORK ESTATES AND SURROGATES § 678 all lawful directions of the surrogate touching the trust, (c) will renderj whenever required by a court of competent jurisdiction, a just and true account of all moneys and other properties received by him, of the application of such moneys and pther properties, and of his guardianship.* The penalty fixed by the surrogate for the bond must be not less than twice the value of the personal prop- erty and of the rents and profits of tl:^e real property of the infant and of .the annual income receivable ioj the infant f^orn any funds of which the guardian will not have possession ; except in two in- stances; (1) when the surrogate exercises , his rightful idiscreti on and limits the bond's penalty to not less than twice the valuei of the personal property and the rents and profits of the real property or the annual income receivable by the infant from any funds of which the guardian will not have possession for the term of three (3) years;* and (2) when it appears that it is impracticable to givp a bond sufficient to cover the whole amount of the infant's per- sonal property and the surrogate in his discretion accepts security, approved by him, not less than twice that amount of the particulai" portion of the, infant's property which he authorizes the guardian to receive." If the surrogate accepts security only equal to twice the amount of certain property which he authorizes the guardian ,to receive, the letters which the surrogate, grants such guardi^ij, must restrict the latter from receiving a,ny other of the infant's, personal property until the, surrogate's further order on additional furtlier , satisfactory security.^ , :,i , ', : A bond of a general guardian, whether, of the pei^sdn or the property of an iiif ant, , filed in , the surrogate's .court, must be ap- proved by the surroga,te in all counties except those containing the whole or part of a city of, tlie, first or second class.'' In counties con- taining the whole or a part of, a city of the first or second' cla^s the surrogate or surrogates may in writing design,ate a clerk in the office to apprqve, such bonds;,and if such designation is made, such clerks as well as the surrogates themselves, may approve the bonds.' By whomever approved, the approval must be endorsed upon the bond.* When approved, every bond must be recorded.^" The rules of your surrogate's court may require that a guardian qualify in court as the principal (with his sureties) oh his bond.** § 678. Id.: Special. — Special guardians need take no oath and heed give no bond ; but before entering their duties as special guard- ians they must sigp and file consents to act.*" *C. C. P.,§ 2650. 'C. C. P. § 812, * C. C. P. § 2651. 10 C. C. P. § 2575. « C. C, p. § 2651. " See e. g., Rule 18, N. T. ■^ C. C. p. ..§§. 2675, 812. « C. C. P. § 2534. « C. C. P. § 2575. 744 f 679 ' GUARDIANS AND INFANTS § 679. Id. : By Will.^-No person appointed by a resident parent's will guardian of the person or property of sucla parent's child can exercise any power or authority in this state as guardian of such child's person or property until these things have been done: (1) The will has been duly admitted to probate in the proper surro- gate's court; ^' (2) The will has bpen duly recorded in the proper surrogate's court;" (3) Letters of guardianship have been issued upon the will to the testamentary appointee ; ^^ (4) The person ap- pointed guardian, within thirty days after the will has been ad- mitted to probate, has taken and filed his oath of office; ^* (5) The person appointed guardian, within thirty days after the will has been admitted to probate, has given and filed a bond as fixed by tlie surrogate, unless contrary to the express provisions of the will';" (6) 'The person appointed guardian, within thirty days after the will has been admitted to probate, has filed a petition or aifidavit setting forth the facts which entitle him to qualify and receive let- ters.^* If the designated guardian be a trust company, it must, instead of taking and filing an oath and bond, file a consent, dulj^ executed and acknowledged, to accept the appointment." The surrogate has authority, on good cause shown, to extend (either be- fore or after the expiration of- thirty days after the admission to probate of the will appointing a guardian) such guardian's time to qualify, provided such extension is not for more than three months from such probate.^" The official oath of a guardian ap- pointed by will must be to the effect that he will well, faithfully, and honestly discharge the diities of his office as guardian by will of the person, or property, or both, as the case may be of the in- fant.^ If the guardian be a trust company, its consent to accept the appointment, duly executed and acknowledged, takes the place of an oath.* The oath or consent must be filed in the office of the surrogate who admitted the will to probate, before letters of guard- ianship are issued or the guardian is permitted to act.' The oath or consent may be taken before any officer authorized to administer oaths.* A clear distinction was formerly held to exist between general and testamentary guardians, in that to the latter letters issue of course on proof of the will, and without their giving bond ; while to the former only (except when the fund is under $2,000, in the surrogate's discretion) on giving bond.* But the general provision i» C. C. P. § 2657. 20 C. C. P. § 2658. 1* C. C. P. § 2657. 1 C. C. P. § 2568. 15 C. C. P. § 2657. 8 C. C. P. § 2658. " C. C. P. § 2658. 8 c. c. P. § 2658. " C. C. P. § 2658. *C. C. P. §'2568. " C. C. P. § 2658. 6 Matter of Klingenstein, 156 A. 19 C. C. P. § 2658; D. 749, 141 Supp. 742 (1913). 745 NEW YORK ESTATES ANI) SURROGATES § 680 of the law as it now stands is that "guardians" (not specifying the kjnd, whether testamentary or ptherwise) must give bond when the ward's property exceeds $2,000 (unless, in certain cases, deposit of the infant's money in a safe depositary is permitted in lieu of the bond) and applies to testamentary as well as other guard- ia.ns.° It seems that a testamentary guardian must give security before a legacy or distributive share will be declared to be paid him on behalf of his Ward in an accounting proceeding instituted since Sept. 1, 1914.S'' § 680. Id.: By Deed. — No person appointed by a resident par- ent's deed, executed after Sept. 1, 1914, guardian of the person or propeirty of the parent's child can exercise any power or authority in this state as guardian of such child's person or property until these things have been done: — (1) The deed has, been acknowl- edged or proved, and certified, so as to entitle, it to be recorded; '' (2) The deed has been recorded, usually within three months of the grantor's death, in the office for recording deeds in the county in which the person making the appointment resided at the time of the execution of the deed ; ' (3) The person appointed guardian, within thirty days after the deed has been recorded, has taken and filed his oath or affirmation of, office ; ^ (4) The person appointed guardian, within thirty days after the deed has; been recorded, has taken and filed' a bond as fixed by the surrogate, unless contrary to the express provision of thedeed,^" (5) The person appointed .guardian, within thirty days after the deed has been recorded, has filed a petition or affidavit setting forth the facts which> entitle him to qualify and receive letters.^', If the designated guardian be a trust company, it miist, instead of taking and, filing,, an oath and bond, file a consent,, duly execute.d and acknowledged, to accept the appointment.*^. The surrogate has authority on, good cause shown to extend,, either befor;e or after the expiratipn of thirty days after the recordation of the deed appointing a guardian, such, guardian's time to qualify, provided sucih, extension is not for more than three months from such recordation.^' The official oath of a, guardian appointed by deed must, be to ihe effect that he will well, faithfully and honestly discharge the duties of his office as guardian by deed of the person or property, ,pr both, (as the case may be) qf the in- fant." If, the guardian be a trust company its consent to accept «In re Huebsch, 87. Misc., 566 « C. C. P. § 2657. (1914), or 151 Supp. 377; C. C.P. » C. C. P. § 2658. §§ 2658 and 2650. , , " C. C. P. § 2658. . «" Est. of Klein, N. Y. L. J., June " C. C. P. § 2658. 24, 1916 (N. Y. Surr.) C. C. P. § ^^ C. C P. § 2658. 2739. ■ : , " C. C. P. § 2658. ■^ C. C. P. § 2657. " C. C. P. § 2568. 746 §§ 681-683 GUARDIANS AND INFANTS the appointment, duly executed and acknowledged, takes the place of an oath." The oath or consent must he filed in the office of the surrogate in whosie county decedent resided, before letters of guard- ianship are issued, or the guardian is permitted to act." The oath or consent may be taken before any officer authorized to adminis- ter oaths.^' § 681. Id.: Ancillary Guardian. — An ancillary guardian appoint- ed in this state of the property of a nonresident infant need take no oath of office here.^* An ancillary guardian appointed in this state need give no security here unless there appear to be debts due or owing from the infant to residents of this state which have not been paid; in which case the surrogate must direct, before issuing letters, that security be given for such debts.^' § 682. Id.: Limited Guardian. — When a guardian of an infant is named or appointed and it appears impracticable to' give a bond sufficient to cover the whole amount of the infant's personal prop- erty, the subrogate has discretion to accept security approved by him, not less than twice the amount of the particular portion of the infant's property which the guardian wiU be authorized under the letters to receive.^" § 683. Id. : Guardian Ad Litem.— No person, other than a clerk of court,' can be appointed a guardian ad litem unless his written consent duly acknowledged, is produced to the court or judge mak- ing the appointment.* Except in a case in which the law specially prescribes otherwise a guardian appointed in a court other than the surrogate's cannot be permitted to receive money or property of the infant (otheJr than costs and expenses allowed io the guardian by the court) until he has given sufficient security, approved by a judge of the coUrt or a county judge, to account for the same under the court's direction.^ The security nlust be a bond to the infant, in such penalty as the judge directs (not less than twice the sum or the value of the property to be received) approved by the judge, and filed in the office of the clerk.' The infant, or any other party to the action, may afterwards apply for an order directing a new bond to be given with an increased penalty; or the court may so direct of its own motion.* The requirement that a guardian ap- pointed for an infant cannot receive money or property till he has given security does not apply to the infant's general guardian who ha$ been appointed his guardian ad litem; but the court may at 2" C. C. P. § 2051. iC. C. P. § 472. 2C. C. P. § 474. « C. C. P. § 475. *C. C. P. § 475. 747 i«C. c. p. § 2658. "C. c. p. § 2658.- "C. c. p. § 2568. "C. c. p. § 2656. 19 C. c. p. §§ 2655, 2656. NEW YORK ESTATES AND SURROGATES §§: 684-686 any time require the general guardian to giA^e additional security for the faithful discharge of his trust before receiving money or property, of the infant under a judgment or order in the action.' A guardian ad litem, On, his application and notice to all parties who had appeared, may be permitted by the supreme court after sale on foreclosure of realty in which the infant isi interested to acknowledge. nwnc pro^w74c hisconsent to act.* § 684. Term of Office: Guardians in Supreme Court. — The su- preme court has authority to remove -testamentary guardians, her cause, having power to divest the parent himself of the custody of his child, it must have jurisdiction to divest one ^ of; such custody who merely derives his, authority from the parent, '' An applica- tion by an executor for the removal, of this guardian appointed by his testator's will of his children is properly instituted in the su- preme court by a petition instead of by a summons, as it is not an action, because it is not necessarily brought to enforce the execu- tor's rights or redress his wrongs but to inform the court of the facts upon which its authority may be invoked so that it may act direct- ly.' The objections both of an infant and of his father, appointed on the infant's petition as his guardian, to revocation of such ap- pointment, is no bar to the power of ithe supreme court to revoke the appointment when the circumstances are such as to show it is for the best interests of the infant to do so.® § 685. Id.: Term of Office: Surrogate's Jurisdiction. — The sur- rogate's court had jurisdictioQj in the cases and in the manner pre- scribed by statute, to, remove guardians for infants.*" § 686. Id.: Voluntary Revocation of Letters or Resignation. — A guardian may at any time present to the surrogate's court a peti- tion that his accounts, be judicially settled; that a decree be there- upon made revoking his letters or permitting him to resign, and discharging him accordingly." A petition by. a guardian for vol- untary resignation or revocation of letters must in general conform to the standard petition in any surrogate's court proceeding.*^ It must set forth the facts upon which the application is founded.*' Its prayer must be that the petitioning guardian's accounts be ju- dicially settled; that a decree be made thereupon either revoking the guardian's letters or permitting him to resign, and discharging him in either event; and that the same persons be cited to show «C. C. P. § 476. 'Matter of White, 40 A. D. 165 «Tobin V. Gary, 34 Hun, 431 (1899), or 57 Supp. 862; afi'd 160 (1885). ,1, N. Y. 685, 55 N. E. 1101.' ■'Matter of King, 42 Hun, 607 i" C. C. P. § 2510. (1886). " C. C. P. § 2572. " Matter of King, 42 Hun, 607 *« See § 787, infra. (1886). "C. C.P. § 2572. 748 o' § 687 GUA'KDUNS AND INFANTS cause why such a decree should not be made who would have to he cited on a petition for a judicial settlement of the guardian's ac- count.^* In all other respects the petition must conform to a peti- tion praying for a judicial settlement of the guardian's account." On presentation to him by any guardian of an application for re\(i- cation of his letters or leave to resign on accounting had the surrn- gate has discretion either to entertain or decline to entertain the application.^® The sunrogate must first determine whether suffi- cient reasons exist for granting the prayer of the guardian's peti- tion." If the surrogate entertains the application and determines that sufficient reasons exist for granting the petitioner's prayer the proceedings are the same as upon a petition for a judicial settlement of the petitioner's accounts.^' Upon the guardian's fully account- ing and paying over all money which is found to be due from him, and delivering over all books, papers and other property in his hands, either into the surrogate's court or in such manner as the- surrogate directs, a decree may be made revoking the petitioner^ letters, or removing him, and discharging him accordingly." § 687. Id.: Compulsory Revocation Without Petition or Cita- tion.^The surrogate may by decree, without petition (or issuance of citation) revoke any letters of guardianship issued from his court, in these cases: (1) When the guardian (a) is not a resident of the state and (b) upon being duly cited to account neglects to- appear oh the return of the citation without showing a satisfactors'^ excuse for such neglect and the surrogate has not sufficient reason to believe that such an excuse can be made; (2) When the guard- ian (a) is absent from the state, and (b) upon being duly cited to account neglects to appear on the return of the citation without shoyifing a satisfactory excuse for such neglect and the- surrogate has not sufficient reason to believe that such an excuse can be made ; (3) When a citation or order issued to the guardian, in a case pre- scribed by law ca,nnot be personally served upon him by reason of his having absconded or concealed himself, (4) When the guard- ian has remained thirty (30) days committed to jail by reason of his default in returning an inventory or his neglect ,or refusal to obey an order; (5) When the guardian has been convicted of a felony;- and, if the guardian be one appointed by will, (6) When the will under which letters have been issued is declared to be in- valid;^' (7) When the guardian mingles the funds of the estate with his own or deposits .thenj with any person, association or cor- 1* C. C. P. § 2572. " C. C. P. § 2573 ; See § 707, infra. " C. C. P. § 2572; See § 707, infra. " C. C. P. § 2573. i« C. C. P. § 2572. "» C. C. P. § 2574. " C. C. P. § 2573. 749 NEW YORK ESTATES AND SURROGATES §§ 688-691 poration authorized to do business Under the banking law, in an account other than as such guardian.^ The lawful marriage of a woman before she attains her majority terminates a general guardianship with respect to her person, but not with respect to her property.** § 688. Id.: Compulsory Revocation On Petition: Grounds: Legal Incompetency or Disqualification. — The grounds upon which a peti- tion may be presented for revocation of letters of guardianship will be separately considered. Legal incompetency or disqualification on appointment of, or on issue of letters to a guardian is ground upon which to petition for revocation of his letters ; provided the ground for the objection did not exist before, the letters were grant- ed, or was not put forward then by the petitioner or a person repre- sented by him.* Legal incoiJapetency or disqualification since ap- ' pointment of, or issue of letters to a guardian is ground upon which to petition for revocation of his letters.^ § 689. Id. Unfitness for OfBlce. — Unfitness for the due execution of his office is ground upon which to petition for revocation of guardian's letters when such unfitness is claimed to exist by rea- son of: (a) Waste or improvident application of money or other assets in the guardian's hands; (b) investments of money in secur- ities unauthorized by law; (c) other improvident management or injury to the property committed to his charge; (d) other miscon- duct in the execution of his office; and (e) dishonesty, drunkenness, improvidence or want of understanding.* The misconduct or in- competency which are grounds for revocation of letters have no technical meaning; but are intended to embrace all the reasons for which letters may be revoked.* § 690. Id.: Refusal or Neglect to Obey Direction or Law. — ^Wil- ful refusal to obey any lawful direction of the surrogate whether contained in a decree or order is ground upon which to petition for revocation of a guardian's letters.* Wilful refusal to obey any pro- vision of law relating to the discharge of his duty is ground upon which to petition for the revocation of a guardian's letters.'' Neglect to obey any lawful direction of the surrog;ate whether contained in a decree or order is ground upon which to petition for revocation of a guardian's letters unless good cause for such neglect is shown.* § 691. Id.: False Suggestion to Get Letters. — False suggestion » Id., Subd. 7, added by L. 1916, c. ^ Matter Of John, 78 N. Y. 248 588. (1879). i»Dom..Rels. L., § 84. « C. C. P. § 2569., 2 C. C. P. § 2569. '' C. C. P. § 2569. » C. C. P. § 2569. ' C. C. P. § 2569. ■* C. C. P. § 2569. 750 §§ 692-695 GUARDIANS' AND INFANTS of a material fact to obtain letters or appointment is ground upon which to petition for revocation of a guardian's letters.^ § 692. Id.: Happening of Contingency. — Happening of a contin- gency upon which guardianship was to cease by the terms of an order, will or deed is ground upon which to petition for revocation of the guardian's letters.^" § 693. Id.: Removal From State. — ^Removal or presently pro- spective removal from the state is ground upon whichi to petition for revocation of a guardian's letters.^^ § 694. Id.: Promotion of Infant's Interests. — ^Promotion of an infant's interest by appointment of another person as guardian is ground upon which to petition for revocation of the letters of the guardian in office.** The rights and responsibilities of guardians of a surviving parent's child appointed by his will, who have duly qualified, ought not to be disturbed unless the infant's welfare so demands.-'' The best interests of a ward are the criterion for deter- mining his custody, and the general guardian has no such arbi- trary or a;bsolute right to his custody if such interests are subserved by keeping the minor with some person other than the general guardian." A surrogate will revoke letters of guardianship of an infant's person granted by him ex parte, on the ground they were improvidently issued, when the guardian, though of the ward's religion, has married a resident of another state, of another religion, under a ceremony by a minister of a church other than her own, on proof that the infant's father, who survived the mother, had orally asked that the infant's grandparents, of the same faith as the infant and the infant's father, and nearer of kin to the infant than the present guardian, be the infant's guardians." An infant's welfare does not require the removal of testamentary guardians on the ground that they do not provide a suitable home for the infant, etc., when the mother both of the testator and the guardians took charge of the infant when eleven days' old, continued in such care with the testator's consent while alive and the guardian's consent after testator's death, and is able and willing to continue such care.*® § 695. Id.: Petition. — A petition praying a. decree revoking let- ters of guardianship may be presented to the surrogate's court by (a) a ward, (b) a friend of a ward, (c) a surety on a guardian's bond.*'' The form of a petition for revocation of a guardian's let- » C. C. P. § 2569. " Matter of Wentz, 9 Misc. 240 w C. C. P. § 2569.„- ■ (1894), or 30 Supp. 211. 11 r r T> & 9--,rM ^' Matter of Criekard, 52 Misc. 63 12 r r P S tTm '■ (^^P^)' °' ^°2 Supp. 440. " C. C. p. ^ 2o69. 16 Matter of Pearce, 77 Misc. 415, *3 Matter of Pearce, 77 Misc. 415, 137 Supp. 755 (1912). 137 Supp. 755 (1912), P C. C. P. § 2569. 751 ^■EW YORK ESTATES .AND SUKKUaATES §§ 696, 69,7; ters is in general the same as that of the standard petition in any surrogate court's proceeding." The poiijts particularly to bear in mind are (a) the statement of the facts upon which the jurisdietion of the court depends, (b) the prayer for the relief from, or action by the court to j^hich the petitioner de^ms himself entitled. The former point requires a recital of the giiardian's. appointment and the circumstances which show th.e case to/fje one in, which the surro- gate has jurisdiction to revoke the letters.*^ These circumstances- are discussed elsewhere.*" The prayer of the petition should, be for a decree revoking., the guardian's, letters and for a citation to the guardian to show cause why such a decree should not be made.^ A petition to revoke letters of guardianship on the ground that the guardian has removed from the state should give the names of tbe persons who searched for or interviewed the guardian, and the affi- davits of such persons sliould be submitted (atta,ched to the peti- tion) showing what they did to locate the guardian.* § 696. Id.: Citation.-T-A citation must be issued on a petition. to revoke a guardian's letters unless the surrogate declines to entertain the proceeding.' The form of a citation on a petition to revoke a guardian's letters is in general the same as that of the standard cita- tion in any proceeding in a surrogate's court,,* The, object of the proceeding should be stated; and also that tbe pitation is seirved on; the guardian so that he may show cause why his letters should not, be revoked by a, decree of the surrogate.* The citation rnust be, served like any other citation.' . § 697. Id. : Order Suspending Guardian.— The surrogate has , dis- cretion, if he decides to entertaiii a proceeding to revoke a guard- ian's letters and has issued a citation in such, proceeding, to make an order suspending the guardi^jd wholly or partly from the exer- cise of his powers and authority during the pendency of the pro- ceeding.'' , If such an order is made, a certified copy of it must ac- company the citation and be, served with it upon the guardian.*^ Fxom the tirne it is made, without service, the order binds the guard- ian and ail other persons.® The making of such an order does not,, however, aftect the y3,lidity of, any act within theguardiaji's legal po>vers done by hiiHi before service of -the order and citation if the I'See § 787, infra.' : *,:C. C. P. § 2570. " C. C. P. § 2570; Matter of Engel- * See § 799, infra, brecht, 15 A. D. 541 (1897), or 44 * C. C. P. § 2570. Supp. 551. ' 8 See § 801, infra. "0 See § 688, et seq. swpra. '' C. C. P. § 2570. 1 C. C. P. § 2569; Matter of Engel- « C. C. P. § 2570. brecht, supra. » C. C. P. § 2570. " Est. of ■ Behr, N. .Y. L. J., Sept. 26, 1914 (N. Y: Surr.) . ■ ■ 752... § 698 GUARDIANS AND INFANTS persons as to whom the act was done acted in good faith.^' The guardian is not liable for such an act done in good faith," § 698. Id.: Hearing, Decree and Effect. — On return of a citation issued on a petition to revoke a guardian's letters the surrogate must give the guardian a hearing.^" The letters cannot be revoked ex 'parte}^ The surrogate may make a decree either revoking the let- ters pf guardianship ; or dismissing the proceeding, upon such terms as justice requires./'* The :entry of a decree revoking a guardian's letters causes the guardian's powers to cease; ^^ but does not affect the validity of any act by the guardian within the powers conferred by law on him or make him liable therefor if the act is done before service of a citation in the proceeding in which the decree is made and the party to whom the act relates acted in good faith; or if the act was done after service of the citation but before entry of the de- cree, provided no order was made suspending the guardian's pow- ers; or if the surrogate, notwithstanding the pendency of the pro- ceeding, permitted him so to act.^^ The surrogate , has discretion by his decree to require the guardian to account for all moneys and other property received by him and to pay and deliver over such moneys or other property: in his hands either to the, surrogate's court, the guardian's successor in office, or such other person as is authorized to receive such money or property. i' The surrogate may also make such decree without prejudice to any a;Ction,,or special proceeding then pending or thereafter to b^ brought for the pur- pose of requiring the guardian to account and pay over the money or property in his hands to the proper depositary.^* On revoking a guardian's letters the surrogate may require him to account and deliver over a:ll property received by him to his successor.^' When a decree is made upon the revocation of the letters of a guardian in which the guardian is personally charged with, or directed to pay a sum of money (upon a finding that he has made , an unlawful in- vestment or disposition of the estate in his hands) if the security or other instrument by yhich such investment or disposition is evi- denced, or the property in the purchase of which such investment or disposition has been made is not a part of the assets which the successor may be legally required to receive, the decree of revocar tion rnust direct tliat such security or other instrument, or such property, if practically capable of delivery under such direction, be w C. C. P. §§ 2570; 2555. " C. C. P. § 2555. " C. C. P. §1 2555 ; 2570. " C. 0. P. § 2555. 12 C. C. P. § 2570. " C. C. P. § 2555. 1* Matter of Bngelbraehtj 15 A. D. " Phillips v. Liebmann, 10 A. D. 541 (1897), or 44 Supp. 551. 128, 41 Supp. 1020 (1896), old Code 1* C. C. P. § 2571. § 2603. « C. C. P. § 2555. N. Y. B. & S.— 48. 753 NEW YORK ESTATES AND SURROGATES §§ 699, 700 forthwith deposited with a safe deposit company, authorized by law to do business as such, in such manner as to prevent the withdrawal of such security or other instrument or property except upon the order of the surrogate.^" § 699. Administration Expenses.— The expenses of administer- ing an infant's estate consist of such just, reasonable and necessary outlays as a guardian may lawfully make in its management. They include the reasonable expense of obtaining and continuing his bond; such compensation for legal services rendered him in con- nection with his official duties as are just and reasonable ; and his commissions.* Upon his accounting, the surrogate may allow a guardian a reasonable sum not exceeding $10 for each day necessa- rily occupied in preparing the account and decree thereon.* A guardian's expenses and disbursements must be set forth in his ac- count (as paid) , so as to be settled by the surrogate.' The surrogate has no power to direct payment by a guardian of the premium on his bond; but the guardian inay pay it, subject to approval of such payment on his accounting.* No allowance can be made a mother of a fatherless child as his guardian for her efforts in securing cus- tody of his person, if they were made before appointment as guard- ian and in the capacity of mother.' A person given by will custody of the testator's infant is propeiely allowed the costs in obtaining the original court decision that he should hot be given such custody : but not the costs of appeals from this decision.'. A sinall amount paid by a general guardiah from an infant's estate for the burial expenses of the infant's indigent mother is proper ajpid will be al- lowed, although objected' to by the infant's special guardian.'' A guardian who with his own money rebuilds buildings burned on his ward's lands cannot recover the money from his ward.' § 700. Disposition of Infants' Realty.— Sections 2345 to 2364 of the Code of Civil Procedure give statutory authority for the dispo-; sition of the real property of infants, by way of sale, conveyance, mortgage, release or lease, in certain prescribed contingencies. Out- side of statute it is generally true that no interference with infant's ^'C. ,C. P. § 2700. , ' 'Matter of (Jrant, 56 A^,D. 176 iC. C. P. §§ 2692. 2753. ,(1900), or 67 Supp. 654; aff'd 166 « C. C. P. § 2747. ■ ■ N. Y. 640, 60 N. E. 1111. ' C. C. P. § 2692. _ « Matter of Pruyne, 68 A. D. 584, On allowance as costs of admibis- 73 Supp., 859 (3i902). tration of expenses of business car- 'Est. of Connoly, 88 Misc. 405, ried on by guardian, see note in 40 150 Supp. 559 (1914). L.R.A.(N.S.)'231; 'Hassard V. Rowe, 11 Barb. 22 *Est. of Bttttacavolt, N. Y. L. J., (1851). Sept. 5, 1914 (Kings Surr.), C. C. P.- § 2692. 754' § 700a GUARDIANS AND INFANTS realty will be tolerated. A guardian has no estate in the lands of his ward, but only a power of management.' § 700a. Disposition of Infant's Realty: In General. — The real property, or an interest therein, of an infant may be disposed of by I. Action ; or II. Application in a Special Proceeding. A court of equity has no inherent power to direct the sale or mortgage of infante' realty: it has only the power given it by statute; not even the consent of infants' guardians ad litem to the order of sale or mortgage will conclude the infants.'" An infant may be deprived of his title to real estate only on the consent of someone authorized to act in his behalf; statutes divesting an in- fant's title and transferring' it to another must be strictly construed, and their every requisite beneficial to the infant must be strictly complied with ; and every conveyance by an infant's special guard- ian must be — not by general authority but — ^by special approval of the court on report to it and special authority by it to vest title in tihe purchaser;'* An infant's "contingent future estate," "contin- gent remainder in fee," or estate "in expectancy" is an estate in land which may be sold.'" A petition to sell the real estate of an infant over fourteen must be joined in by him whether made in his behalf by his geiieral guardian, the guardian of his property, a relative or friend.^' A petition for sale of an infant's realty by — , next friend, stating that the infants had an interest in the premises, sufficiently shows that the application was for and on their behalf, by a party entitled to represent them.^ A rule of court re- quiring infants oyer fourteen years old to join in such a petition is a mere regulation as to the practice which the court has the pow- er to waive, and which does not affect the jurisdiction of the court when there has been a substantial compliance with the law.* Nei- •Post V. Hooven, 33 N. Y. 593 On estoppel of guardian to deny (1865). that he received the amount stated in '» Losey v. Stanley, 147 N. Y. 560, his report of a sale, see note in L.R.A. 42N. E."8 (1895). 1916A, 639. The following notes may prove of On reimburseruent or suhrogation interest when deahng with ques- of purchaser on annuUirig'sale by tions involving the sale of infant's guardian, see note in 69 L.R.A. 45. xealtv:. "> EUwood v. Northrup, 106 N., Y. On notice of application by guard- 172, 12 N. E. 590 (1887). ian for leave to sell infant's real es- '° Matter of Dodge, or Dodgf v. tate as jurisdictional, see note in 8 Stevens, 105 N. Y. 585, 12 N. E. 759 L.R.A.(N.S-.) 1215. (1887).' On necessity of bond on sale of in- *' Rosenfield v. Miller, 131 A. D. f ant's land, see note in 33 L.R.A. 761. 282, 115 Supp. 692 (1909). As to applicability of rule caveat ^ Cole v. Gourley, 79 N. Y. 527 emptor to sales by guardian of mi- (1879). ' nors as regards ward's title, see note ^ Cole v. Gourley,' supra. in L.R.A.1915E, 834. 755 NEW YORK ESTATES AND SURROGATES § 700a ther: need, such a petition be by the infant's general guardian or show that the infant had none.^ Although proceedings for sale of an infant's realty may be irregular if he is over fourteen years old and did not join in the petition and if the coutt directed part payment of the proceeds to his guardian without the giving by the. latter of security, yet the ward is bound by such proceedings if the guardian received such part of the proceeds and his executor, accounted there- for in a proceeding to which the ward was a party by his new guard- ian and if the ward elected to ; affirm i the sale on becoming of age.* The court can authorize the mortgaging of real property belonging to an infant and the mortgage covers whatever' interest the infant has, whether in, possession or a vested future estate.^ i The court's discretion will be exercised against the conveyance by a guardian of his ward's interest in certain realty to a corporation incorporated to hold the realty in exchange for some of- its stock when the results will be to change the natvire of the infaint^s property from an avail- able and enforcible: to, an unavailable and unenforcible unconverti- ble asset; the guardian would be a minority stockholder; the stock's value would be uncertain and unsalable ; the guardian's judgment would be tied; and on arriving at majority the infants' property would be tied up in unavailable securities.^ When one who is ad- ministrator of an estate and general ; guardian of the infant heirs thereto applies, as administrator for leave to sell tlie realty, 'his appli- cation as administrator is so antagonistic to the infants' interests as to entitle the latter to have someone other than the administrator appear, as their guardiaUj and if none such is appointed the sale is void.'' The fact that one petitioning to be appointed speciar guard- ian to sell, etc, an infaaat's realty is the latter's, creditor and sought the sale to reimburse himself for advances made as next, of friend in maintaining litigation in defense of the infant's estate does not raise a i jurisdictionail' question, although it presents a . state of things requiring the exercise of uncomnion care by the court.' In- fants having by devise a,n interest in mortgaged lands foreclosed by; action in which they, were served with propess but in which no guardian was appointed. for them may set aside the judgment of foreclosure against them as voidable, or may compel the mortgagee who bought in the property for less than its value by frai:idulerit ' Cble V. Gouxley, supra;.; ; * Matter of Evans, 82 Mise. 193 * Allen v. Kelly, 55 A. D. 454 (1913), or 143 Sup.p. 839; Real (1900)^ or 67 Supp. 97; 171 N., Y. 1, Prop. L. § 116. 63N. E. 528 (1902), C. G. P. §23ei> ''Havens v. Sherman, 42 Barb. General Rule Practice, 59. ;. ' 636 (1864). * Graver v. Jermain, 17 Misc. 244, ' Battell v. Torrey, 65 N. Y. 294 40 Supp. 1056,(1896), old Code, § (1875). 2348. 756 § 700b GUARDIANS AND INFANTS agreement with the executor of the deceased owner knowing of their infancy to pay them back their share over and above the mortgage debt.^ On sale of an- infant's realty the court's duty is to see to it that the proceeds are properly invested, except such portions of the proceeds as may be necessary for the maintenance and education of the infant or his family or other statutory purposes.^" It is entirely proper for the court to turn over to an infant's general guardian proceeds of the sale of the infant's realty found necessary for the infant's support and maintenance.^^ . When the proceeds of a sale by order of the county: court of an infant's real estate have been deposited with the county treasurer he cannot be compelled to pay them to the representative of the infant on the latter's death save by order of such; county court. ^^ A deed signed by a special guard- ian under an order requiring him as special guardian to execute a sufficient conveyance of the infant's realty, but not requiring that the conveyance should be in the infant's name^ is sufficient.^' § 700b. Id.: By Action: When, By Whom, Judgment.— I. An action may be maintained against an infant to procure a judgment directing a conveyance of such realty or interest therein: (A) When the infant is seised or possessed of such realty or interest therein by way of mortgage or only in trust for another ; (B) When a valid contract for the sale or conveyance of such realty or interest therein has been made, but a conveyance itself cannot be made by reason of the infancy of the person in whom the title is vested.^** Those who may bring the action are (1) a person entitled to the conveyance, and (2) in an action of class "(B)" supra, the execu- tor or administrator (a) of the person who made the contract; or (b) of a person who died seised or possessed of such realty or in- terest; or (c) by an lieir or devisee of either the person who made the contract or who died seised or possessed of such realty or in- terest, to whom such realty or interest descended or was devised."* A jjidgment directing, such a conveyance must not be rendered un- less the court, after hearing the paitieis, is satisfied that the convey- ance ought to be made.^*° Upon rendering final judgment, to that effect, the court has power to direct the guardian of .ttip infant's property, or a special guardian appointed in the action, to execute 9 McMnrray V. McMurray, 66 N. Y. 83 Misc. 495 (1914), or 146 Supp. 175 (1876). 123; C. C. P. §§ 2359 and 751. " Allen v.' Kelly, l71 ' N. Y. 1 " Cole v. Gourley, 79 N. Y. 527 63 N. E. 528 (1902), C. C. P. §§ (1879). 3360,2361. "» C. C. P. § 2345. " Allen V. Kelly, 171 N. Y. 1, 63 ^^^ C. C. P. § 2346. N. E. 528 (1902)^ C. C. P. | 2361. !»"= C. C. P. § 2346, 1^ People ex rel. Jenny v. Brown, 757 NEW YORK ESTATES AND SUBROGATES §§ 700c, 700d any conveyance, or to do any other act which is necessary in order to carry the judgment into effect."* § 700c. Id.: By Application in Special Proceeding: By Whom and When. — II. An application by petition of the general guardian, or guardian of the property of an infant, or relative or other person in behalf of an iiifant (in which the infant if fourteen or more years old must join) to sell, convey, mortgage^ release or lease (A) Eeal property of an infant in being; or (B) A term, estate or other in- terest in real property of an infant in being; or (C) The contin- gent interest therein of an infant not in being; or (D) An inchoate right of dower in real property belonging to an infant, or (E) The possibility that upon breach of a condition a right of re-entry will vest in or real property will revert to an infant or his heirs solely or in common with others, may be made: (1) When; the personal property and the income of the real property of the infant are to- gether insufficient for (a) the payment of his debts or (b) the maintenance and necessary education of himself and his family; (2) when the interest of an infant in being or the contingent in- terest of an infant . not in being requires or will be substantially promoted by such disposition (a) on acQount of the real property or term or estate or other interest in real- property being exposed to waste or dilapidation, or (b) being wholly unproductive, or ,(c) for the purpose , of raising , funds tp preserve or to improve the same, or (d) for other peculiar reasons or on accoij,nt of other peculiar circumstances; (3) when (a) the infant is seised or pos- sessed of, such realty or interest .therein by way of mortgage or only in trust for another; (4) when ,a;Valid contract for the sale or conveyance of such, realty or interest therein has been made but a conveyance itself cannot be made by reason ,of the infancy of the person in whom the title is vested; (5) when the, interest of the in- fant will be substantially promoted by releasing or joining with others in releasing for a valuable consideration the possibility that upon breach of a condition a right of rt-entry will vest in or real property will revert to the infant or his heirs solely of in common with others.^* Real property or an interest therein cannot be sold, leased or mortgaged contrary to the provisions of a will by which it was devised or a conveyance or other instrument by which it was transferred to the, infant.^* § 700d. Id. : Petition. — ^The petition for sale, conveyance, mort- gage, release or lease: (1) Must be made by the general guardian, or guardian of the property of the infant; (2) Must be joined in by the infant if fourteen or more years old; (3) Must be presented "* C. C. P. § 2346. " C. C. P. § 235'X. 1* C. C. P. § 2348. 758 §§ 700e, 700f GUARDIANS AND INFANTS at a term of the supreme court held within the judicial district in which the property or a part thereof is situated, if made to the su- preme court; (4) Must be verified in like manner as a verified pleading in an action in the supreme court; (5) Must set forth the grounds of the application ; and must also state — in every case save when for sale of an undivided interest of an infant in one or more parcels of land in order to avoid an action of partition by the in- fant's cotenants or for the dower of a widow therein — (a) the particulars and value of the real and personal property; (b) the amount of the income of the infant; (c) the disposition which has been made of the infant's personal property; and (d) an account of the debts or demands, if any, existing against the infant's estate.'® When sale of an undivided interest of an infant to avoid partition by cotenants. or for dower of a widow is applied for, the petition must state the particulars and value of the real property in respect to which a sale is desired. '' § 700e. Id. : Special Guardian and Bond. — ^Upon an application to sell, mortgage, release or lea^6 real property or an interest there- in of an infant, the court mvist appoint a suitable person to be the infant's special guardian, with respect to the; proceedings, who must thereupon file with the clerk a bond, with either individual or cor- porate surety, approved by the court as to form, amount and suffi- ciency oJF surety, conditioned for the faithful discharge of his trust ; for the paying over and, investing of, and accounting for all moneys received by him in thespecial proceeding, according to the direction of any court having authority to give directions in the premises; and for the observance of the directions of the court in relation to the trust." Any trust company a,uthorized by the laws of this state to. act as general guardian of the estate of an infant without giving security may be appointed such special guardian and in such case the court in the order of appointment, may dispense with the giving and filing of any such bond.'' Upon a breach of a condition of the bond, the court may direct it to be prosecuted for the benefit of the person injured." § 700f. Id.: Reference.— Upon the presentation of the petition and the filing of the bond (when necessary) the court must appoint by order a suitable person as referee to inquire into the merits of the application,, who must examine into the truths of the allegations of the petition, hear the allegations and proofs of all persons in- terested in the property, or otherwise interested in the application, i " C. C. P. §§ 2349, 2350. . " C. C. P. § 2352. " C. C. P. § 2352. w C. C. P. § 2353. 759 NEW YORK ESTATES' AND SURROGATES §§ .700g-700i and report his opinion thereupon, together with the testimony, with all convenient speed.*" § 700g. Id.: Order for Sale, Mortgagey Lease, etc.— Upon the fil- ing of the referee's report, and after examining into the matter, the court must make a final order upon the application.* In. a i proper case, a fin,al order confirming the; referee's report, must direct that the real property or term, estate, possibility of reverter (i. «. possir bility that upon a breach of a condition a right of re-entry will vest in or real property will revert to the infant or incornpetent person or his heirs solely or in common with others), or other interest in real property or a part thereof, or an inchoate right of dower there- in, as is necessary, or as justice requires, be (a) mortgaged,: (b) let for a term of years, (c) sold, (d) released or (e) conveyed by the special guardian appointed.* The final order must also contain such directions respecting the time, manner and conditions of the sale, release or conveyance directed thereby as the court thinks proper to insert therein.* § 700h. Id.: Agreement for Sale, etc., and Deed, etc., by Guard- ian. — Before a sale, mortgage, release of lease can be made pursu- ant to the final order, the special guardian mUst enter into an agree- ment therefor, subject to the approval of the court, ahd. must report the agreement to the court under oath.* Upon the confirmation thereof by the order of the court, he must execute, as directed by the court, a deed, mortgage, release or lease.* When the final order directs the execution of a conveyance in the first instance, for' the purpose of fulfilling a contract, or because the property is held by way of mortgage, or in trust only, the guardian executing the con- veyance must report the conveyance to the court under oath.* § 7001. Id.: Effect of Deed, etc.— A deed, mortgage, release or lease made in good faith either' on an application in behalf of the infant or pursuant to the directions contained in a judgment ren- dered against him has the same validity and effect as if executed by the infant and as if the infant was of full age; and is valid and effectual to vest in any ptifchaser or purchasers any interest therein of any infant not in being at the time of the sale ; and any mortgage so executed is a valid lien and charge upon the contingent interest of any infant not in being at the time of its execution and delivery ; and a release of an inchoate right of dower has the same effect as if the wife had joined with the husband in a deed or conveyiance of 2° C. C. P. § 2354. ' * C. C. P. § 2356. 1 C. C. P. § 2355. 6 C. C. P. § 2356. « C. C. P. § 2355. 8 C. C. P. § 2356. s C. C. P. § 2355. 760 §§ 700j, 700k GUARDIANS AND INFANTS the property affected thereby and had duly acknowledged it in the manner required by law to pass the estate of a married woman.'' § 700j. Id.: Proceeds Remain Realty Save on Infant's Death. — A sale of real property or an interest therein (other than a pos- sibility of reverter) of an infant does not give the infant any other or greater interest in the proceeds of the sale than he or she had in the property or interest sold.' Those proceeds are deemed proper- ty of the same nature as the estate or interest sold, until the infant arrives at full age.® The proceeds of the release of a possibility of reverter must be deemed and treated as if they were proceeds of real property of which the infant was seised and possessed." If the infant should die before arriving at full age not leaving any person- al property or not leaving sufficient personal property to pay funeral expenses and expenses that may be necessary or necessarily in- curred, then in either or each case the proceeds are to be deemed personal property so far as may be necessary to pay the funeral and other necessary expenses.^^ The proceeds are to be paid upon order of the surrogate's court or court having jurisdiction of the estate of the deceased to an administrator appointed by the surrogate to ad- minister upon decedent's estate, and after paying all funeral ex- penses and expenses of administration and any indebtedness, the re- mainder, if any there be, shall, upon the order of the surrogate, be paid into the hands of the trustee who held the same, to be distribut- ed as tlie law directs.^* § 700k. Id.: Disposition and Investment of Proceeds: In Gener- al. — From, the time of the fiUjig of a petition by or on behalf, of an infant praying for an order directing a conveyance, or a sale, mort- gage, or lease of his ,r,eal. property or an interest in real property, the infant is considered a ward of the court with respect to that real property or interest and the income and proceeds thereof.^' The court must by order direct the disposition; of the proceeds of such a sale, mortgage, release or lease." It must direct the investment of any, portion thereof belonging to the infant which is not needed for the payment of debts or the safe-keeping or immediate mainte- nance and education of himself or his family, or for the preserva- tion or improvement of his real property or interest therein." The order must require a report under oath of the disposition and in- vestment thereof to be made as soon as practicable and must compel 'C. C. P. § 2358. 12 C. C. P. § 2359. « C. C. P. § 2359. " C. C. P. § 2360. » C. C. P. § 2359. " C. C. P. § 2361. " C. C. P. § 2359. " C. C. P. § 2361. "C. C. P. § 2359. i 761 NEW YORK ESTATES AND SURROGATES § 7001 periodical accounts to be rendered thereafter by each person who: is intrusted with the proceeds or any part thereof.^* § 7001. Id.: When Dower Involved. — When the real property or the estate, term or other interest thcDein directed to be sold is sub- ject, absolutely or contingently, to a right of dower or an restate for life or is subject to an estate for years in the whole or any part there- of y the person having the prior right or estate may manifest in writing his consent either to receive from the proceeds of the sale a gross sum to be fixed according to the principles of law applicable to annuities in satisfaction of his right or estate^ or to have a pro- portionate share of the proceeds of the saleinvested and the interest thereof paid to him from the time of the investment or of the com- mencement of his right or estate, as ijustice. requires, until the de- termination of his rightor estate." . Upon filing the consent with the. clerk, the final order may in the discretion of the court direct a sale of the entire property to, which the right or estate attaches." In such case the court must, aftjer the sale, ascertain the value of the right or interest of the person so consenting, and the final order must either direct the payment from the proceeds, of the sale of the gross sum so ascertained as the value, or the investment of a just proportion of the proceeds and the payment to him of the interest thereof:^' But such a gross sum cannot be paid nor such an invest- ment riiade until an effectual release of the right or estate' of the per- son so consenting, executed to the satisfaction of the court, and duly acknowledged or proved, and certified, in like manner as a deed to be recorded in the coUnty, has been filed with the clerk.*' When the iriterest df the infant consists of a right of dower or an estate for life Or for years, the final order may authorize the special guardian to join with the person or persons holding the re- versionary estate in a conveyance ' of the property to which the interest attaches so as to release the right of dower or fully convey the particular estate, on receiving from the proceeds of the sale a gross sum in satisfaction of that interest, or a proportionate part of the proceeds, to be invested until the determination of the particu- lar, estate ; and, in either case, to be ascertained according to the principles of law applicable to annuities. W^hena proportion of the proceeds is so received by, the guardian for investment, the final order must provide for the inyestment thereof until the determina- tion of the particular estate ; and, then for the payment thereof to the person entitled thereto.^ When an inchoate right of -dower is released and such release is 16 C. C. P. § 2361. 19 C. C. P. § 2362. " C. C. P. § 2362. 8" C. C. P. § 2362. " C. C. P. § 2362. 1 C. C. P. § 2363.' 762 § 700m GUARDIANS AND INFANTS to accompany a sale by the husband of the property to which the inchoate right of dower attaches, the court must make an order re- quiring one-third of. the amount reaUzed on the sale of the proper- ty to which the inchoate right of dower attached to be invested by the special guardian or to be paid into court to be held for the bene- fit of the husband during his life and upon his death for the benefit of the wife during her life ; or the court may direct such amounts to be paid to the husband upon his giving a bond in the penalty of at least double the amount so received for such release, with at least two sureties, who must justify in double the amount of such penalty, conditioned for the repayment as the court shall direct by his executors or administrators of such amount. upon the death of the husband.* When an inchoate right of dower is released and at the time of the application the property to which such right at- taches has already been sold by the husband and the wife has not joined in the conveyance or otherwise released her inchoate right of dower, the court must make an order that, as the consideration for the release, or as part of the consideration therefor, there be paid to the special guardian, or into the court, an amount to be fixed by the court as equal to one-third of the fair market value of the property, to be invested by the special guardian or held by the court for the benefit of the person making such payment during the life of the husband and upon his death for the benefit of the wife during her life, and upon her death to be returned to the person making such payment or to his executoirs, administrators or assigns ; or in lieu of such payment the court may allow a bond to be given in the penalty of at least double the amount so fixed as equal to one- third of the fair market value of the property, with at least two sureties, who must justify in double the amount of such penalty, conditioned for the payment as the court shall direct, upon the death of the husband leaving the wife surviving, of such sum so fixed as equal to one-third of the fair value of the property,, to be held for the benefit of the wife during her life and upon her death to: be returned to the person giving such bond or to his executors, administrators' or assigns.* § 700m. Id. : When Af ter-Born Infants Get Interest, — In case, by any contingency, infants not in being may thereafter become possessed of any interest in the premises so sold, mortgaged or leased, the, court, in case of a sale, must cause the proceeds of the sale, after paying the costs and expenses of such sale, to be placed at interest for the benefit, of the persona who are, or who paay ulti- mately be entitled thereto, and must not authorize the distribution thereof in advance: of such contingency except upon a petition of 2 C. C. P. § 2361. ' C. C. P. § 2361. 763 NEW YORK ESTATES AND SUBROGATES §§ 700n-701 some person entitled thereto and upon filing a bond in such penal- ty as the court directs, with two or more sureties approved by the court, and conditioned that in case of any contingency by which any infant not then in being shall thereafter become entitled to any of the proceeds of the sale, the petitioner will pay to such person or persons his or their proportionate share of the money so paid over to such petitioner; and in the case of the mortgaging of such real estate the proceeds thereof, after paying costs and expenses, must be paid out and disbursed under the direction of the court only for the purpose of paying lawful charges thereon or repairing, im- proving, building upon or otherwise enhancing in value any real estate so mortgaged.* § 700n. Id.: When Infant Is Non-Resident.-^In the case of an infant residing without the state and having in the state or country where he or she resides a general guardian or person duly appointed under the laws of such state or country, and entitled by such laws to the control and custody of the money of such infant, the court, upon satisfactory proof of such facts and the sufficieney df the bond or securities given by such general guardian or person in such state or country by the certificate of a judge of a court of record in such state or country, or otherwise, may direct that the portion of such infant arising upon such sale be paid over to such general guardian or person.* § 700o. Id.: Payment of Infant's Debts. — In the application of money arising' from a sale, mortgage or lease made for the purposis of paying debts, the special guardian of the infant must pay all debts in equal proportion without giving a preference to a debt founded upon a specialty or upon which a judgment has been taken.^ § 701. Accounting: Jurisdiction. — The surrogate's court has ju- risdiction, in the cases and in the manner prescribed by statute, to settle the accounts of (a) guardians, (b)' a father, mother or other relative having the rights, powers and duties of a guardian in soc- age.'' The legislature's intent in conferring jurisdiction upon the surrogate to settle guardians' accounts was to provide an inexpen- sive and summary process for such settlement; and the surrogate's court is invested with all the jurisdiction formerly in the court of chancery, to be exercised as prescribed by the statutes, which, as remedial in character, are to receive a favorable construction such as will give them the force and efficiency intended by the legisla- ture.' The surrogate may not only require a guardian to account, 324 * C. C. p. § 2361. ^ C. C. P. § 2510. 5 C. C. P. § 2361. ' Seaman v. Duryea, 11 N. Y. s C. C. P. § 2364. (1854). 764 § 702 GUARDIANS AJSTD INFANTS but to pay over to the wai'd; and on non-compliance may issue an attachment against the guardian for contempt.* A guardian is subject to the surrogate's decree for payment and delivery over of the trust property at any time and cannot evade liability by claim- ing that he has converted the property to his own use and is, there- fore, a mere contract debtor.^" A claim by a guardian for services by him and his counsel and for disbursements in an action for the infant's benefit cannot be allowed by the surrogate on settlement of the guardian's accounts as might be done on settlement of an execu- tor's or administrator's accounts.'^ § 702. Id.: Definitions. — The expression "intermediate account" denotes an account filed in the surrogate's court for the purpose of disclosing a guardian's acts as such and the condition of the estate or fund in his hands.'* The expression "final account" denotes an account filed, in the surrogate's court with the intent definitely to conclude parties interested for all purposes; so that no further account will be necessary. The expression "judicial settlement," applied to a guardian's account, whether intermediate or final, sig- nifies the making by the surrogate of a decree by which such account is made conclusive upon the parties to the accounting pro- ceeding, either for all purposes or for certain purposes specified by statute.^' An account so made conclusive by surrogate's decree is said to be "judicially settled." ' Settlement by j)arties interested in a guairdian's account may be had by recording in the surrogate's office an instrument executed by at least one guardian and at leas-t one ward who has attained full age.^ A guardian of an infant's property must, in, the month of January of each year, as long as any of the infant's property, or of the proceeds thereof, remains under his control, file'in the surrogate's court an account, etc.* This account is known as the guardian's "annual" account. . The four classes of accounts are, therefore: (1) Intermediate accounts; (2); Final accounts; (3) Accounts recorded and settled by interested parties^ and (4) Annual accounts. An account bietween a guardian and his ward of full age settled by their own act in recording an instrument executed by them can, of course, only be a voluntary account. But an intern^ediate accounting and a judicial settle- , ment of an account may be either voluntary or compulsory : — voluntary When on the guardian's own initiative; * and compulsory 8 Seaman v. Dnryea, 11 N. Y. 324 12 C. C. P. § 2768. (1854). " c. C. P. § 2768. 1* Seaman v. Duryea, 10 Barb. 523, > C. C. P. § 2768. (1851), aff'd 11 N. Y. 324. ■ « C. C. P. §2719. "Matter of Tyndall. 48: Misc. 39 » C. C. P. § 2660. (1905), or 96 Supp; 222; old Code, § *€. C. P. §§ 2721, 2723, 2729. 2731. 765 NEW YORK ESTATES -AND SURROGATES §§ 703, 704 when by order of court,' whether made by the surrogate bti his ow Diaper v. Anderson, 37 Barb. 168 «C. C. P. § 2572. (1862). ^ C. C. P. § 2731. 2 Matter of Hawley, 104 N. Y. 250. « C. C. P. § 2731. 10 N. E. 352 (1887), old Code, § 9 C. C. P. § 2731. - 2847, new Code, § 2726. 10 Matter of Twiehell, 117 A. D. 'Matter of HaWley, 36 Hun, 258 301, 102 Supp. 163 (1907). (1885). 772 §§ 711, 712 GUARDIANS AND INFANTS and thereafter of the accounts, inventories and affidavits of guardi- ans or upon the report of the special examiner: (1) that a guardian of an infant's property has omitted to file his annual inventory or account or the affidavit relating thereto; (2) that, in the surro-- gate's opinion, the interest of the ward requires that the guardian should render a more full or satisfactory inventory or account, (3) that the surrogate has reason to believe that sufficient cause exists for the guardian's removal.* The rules of your surrogate's court may state what steps will he taken if a guardian does not file his annual accounts.* § 711. Id.: Compulsory: Intermediate: Without Settlement: Peti- tion, — ^An intermediate accounting may be compelled at any time when the surrogate deems it discreet to compel such an account fajj^ order of the surrogate made on the latter's own initiative or on the petition of any person interested.* A petition to compel a guardian to file his intermediate account may be presented at any time by any person interested.' The contents of a petition for a compul- sory intermediate accounting are in general the same as the con- tents of a standard petition in any proceeding in a surrogate's court.''* The particular matters which should be stated are the facts upon which the court's jurisdiction depends, the nanies of those in- terested, and the relief sought. The facts on which the court's, ju- risdiction rests include the petitioner's interest in the fund, the ap- pointment and qualification of the guardian, and the circumstances which, in the petitioner's opinion, render an intermediate account- ing proper. The names of those interested need not include others' than the guardian's. The prayer should be for an order requiring the guardian to file in the surrogate's office an intermediate account. § 712. Id.: Order to Account. — The surrogate has discretion in determining whether or not to order a guardian to file his interme- diate account.' This discretion of course exists when the surro- gate is considering of his own motion whether or not to require an intermediate accounting; but it exists equally well when such an accounting is sought by a person interested in the fund.' The ap- pellate court will not; interfere with this discretion unless it is abused." A surrogate's order in a proceeding to compel an inter- mediate accounting by a guardian should require the guardian to ffle such accounts." It may also require the guardian to attend and * C. C. P. § 2663. 8 c. c_ p_ § 2721, s See, e. g. these Rules: Cattarau- » C. C. P. § 2721. gus, 16; Suffolk, 10. ""Matter of Merritt, 35 A. D. 337, eC. C. P. § 2721. 54 Supp. 955 (1898),— administra- ' C. C. P. § 2721. tor's accounting. ■'^ See § 787, infra. » C. C. P. § 2721. 773 NEW YORK ESTATES AND SURROGATES §f 713-715 be examined under oath touching ^ his receipts and disbursements and any other matter relating to his administration of the filnd.*^ § 713. Id.: Proceedings on Order's Return. — On the return of an order requiring a guardian to file his intermediate account, the guardian may take one of four courses : First, he may obey the order and file the account ; Secondly, he may present a petition for the judicial settlement of his account; Thirdly, he may show good cause why his account should not then be filed; or. Fourthly, he may fail to appear, file his account, or show cause why he should not do so.^' A petition presented by a guardian on or before the return of an order compelling him to file his intermediate account pray- ing for a judicial settlement of his account necessitates a consolida- liion of the proceeding pending against him for a compulsory, in- termediate accounting with the proceeding so instituted by him for the judicial settlement of his account.** The subsequent steps are the same as those in a voluntary proceeding for the judicial settle- ment of a guardian's accounts ; *' except that the citation required in the latter proceeding need not be directed to the petitionei* in the proceeding for the compulsory, intermediate accounting.** On the return of an order that he should file his intermediate account, the guardian may show good cause why he should not do so.*' If on the return of an order requiring him to file his intermediate ac- count the guardian neither files such account nor presents a petition for its judicial settlement nor shows good cause why his account should not be filed, the surrogate must make a second order direct- ing the guardian to account within such a time and in such manner as the order prescribes ; and to attend from time to time before the surrogate for that purpose.*' § 714. Id.: Compulsory: Intermediate: Settlement. — The surro- gate, either on his own motion or upon the petition of any person interested in the fund held by a guardian, may by order direct such guardian to make and settle his account.** The pro- ceedings upon the return of the order are the same as though the respondent had filed his petition for a voluntary intermediate ju- dicial settlement, and the decree entered has the same force and ef- fect as if made in such a proceeding.^" § 715. Id.: Compulsory: Final: Settlement: Petition. — Aguard- ian may be compelled by surrogate's order to have his final account judicially settled either on the surrogate's own motion or on peti- *8 C. C. P. § 2721. *' C. C. P. § 2722. *3 C. C. P. §§ 2722; 2729. *« C. C. P. § 2722. ** C. C. P. § 2722. *9 C. C. P. § 2724. *= C. C. P. § 2722. 20 Id, *6 C. C. P. § 2722. 774 g§ 716, 717 GfUARDlAiSrS AND' INFANTS tion by certain specified persons.* A jiidicial settlement may be compelled of the final account of a guardian by the surrogate's court from time to time in any of the following cases: (1) "When the ward has attained the age of twenty-one (21) years: (2) When the ward has died; (3) When the guardiain is a guardian in socage; (4) When the guardian is the guardian of the infant's person only; (5) When letters issued to the guardian have been revoked; (6) When the guardian's powers have ceased.* A petition to cornpel the judicial settlement of the final account of a guardian is allowed to be presented from time to time : (1) When the ward has attained the age of twenty-one (21) years; (2) When the ward has died; {3) When the guardian is a guardian in socage; (4) When the ^ardian is guardian of the infant's person only; (5) When letters issued to the guardian have been revoked; (6) When the guardian's powers have ceased.' A petition agaiiist a gua'rdian praying for the judicial settlement of his final accounts and that he be cited to show cause why he should not render and settle his final account may be presented in a proper case: (1) By the ward after he has become twenty-one (21) years of age; (2) By the executor or administrator of a ward who has died; (3) By the ward when the guardian has been acting as a guardian in socage; (4) By a duly appointed guardian of the ward when the cited guardian has been acting as a guardian in socage ; (5) By a surety on the official bond of the guardian; (6) By the legal representative of a deceased surety on the ofiicial bond of the guardian; (7) By the successor of a guardian whose letters have been revoked; (8) By the remaining guardian when the letters of another or others have been revoked; (9) By the attorney-general of the state of New York when any of the property or fund may belong to the state of New York by reason of the death of any testator, intestate or person interested (a) without leaving known heirs-at-law, or next-of-kin, as the case may be, or (b) leaving heirs-at-law or next-of-kin who are unknown. § 716. Id.: Citation. — On presentation of a petition to compel ju- dicial settlement of a guardian's final account, a citation must be issued to the guardian requiring him' to show cause why he should not render and settle such account.* § 717. Id.: Proceedings on Citation's Return. — On the return of a citation issued on a petition to compel judicial settlement of his final account the guardian may follow one of four courses: First: he may render and settle his account; Secpndly, he may himself present a petition for judicial settlement of his account: Thirdly, IC. C. P. §§2626; 2627. « C. C. P. § 2727. " C. C. P. § 2726. *C. C. P. §§ 2728; 2727. 775 NEW YORK ESTATES AND SUBROGATES § 718 he may show good, cause why his account shpuld not be rendered and settled; or, Fourthly, he may fail to ; appear, file his account or show good cause why he should not do so.* If a guardian cited to show cause why his final account should not compulsorily be settled does show good cause, he need npt, of course, account. If a guardian cited to show cause why he should hav^ his final account judicially settled renders and files his account on the return of the citation, he has satisfied the citation. If a guardian cited, to show cause why his final account should npt compulsorily be settled does show good cause, he need not, of course, account. . A petition by a gufirdian, presented, on or before the return of a citation to compel judicial set- tlement of his account, by which he prays for a voluntary settlement and that all necessary aufi proper parties be cited to show cause why such settlement should, not be had, necessitates a consolidation of the compulsory and voluntary proceedings.® The subsequent pro- ceedings are like those on judicial settlement pf a guardian's volun- tary, final account; except that, the citation need not be directed to the person who has petitioned to compel the settlejnent. If a guard- ian cited to show cause why his final account should not compulso- rily be settled fails either ito appear^ file his account or show good cause why he should not file it, or convert the compulsory into voluntary accounting prpceediijgs, the surrogate must by order di- rect him to account within such a time and in such a manner as the surrogate prescribes, and to attend from tim,e:t.p time before the, surrogate for that purpose.'' A guardian is bound by such an order; without service thereof.' If it appears that there, is a surplus dis- tributable to creditors or persons interested the surrogate may at any time issue a supplemental citation directed to the persons who must be cited, on the petition for the judicial settlement of a guard- ian's account.' § 718. Id.: The Account. — The general subject of the account is discussed in the chapter on "Administrators," to which reference is made.*" The intermediate account filed by a guardian on order of the surrogate must be accompanied by the vouchers supporting it.^' Jf it appears that the account can then be judicially settled, a supplemental citation may be issued, directed to the persons who must be cited on a petition for a judicial settlement of the guard- ian's account.'^ The same proceedings are then had as on a ju- dicial Settlement.^* A father to whom the income of a trust fund « C. C. P. §§ 2728; 2729. »* See § 335, supra. 8 C. C. P. §§ 2728; 2729. i? C. C. P. § 2721. ' C. C. P. § 2728. " C. C. P. § 2722. « C. C. P. § 2728. « C. C. P. § 2722. s C. C. p. § 2728; See § 708, supra. 776 §§ 719-721 GUARDIANS AND INFAl^TS for his infant's support and maintenance was paid by supreme court decree by the infant's guardian, on subsequent appointment as guardian himself, Heed not on his accounting produce the same kind of vouchers as would be required had he been appointed by the surrogate's court in the first instance without the supreme court's prior decree." § 719. Id.: Contest and Objections. — The Subject of "contest and objections" to an account is treated under that heading in the chap- ter on "Administrators," to which reference is made.^^' § 720. Id.: Hearing and Decree.-^The subject of the "decree" on an accounting is treated in the chapter on "Administrators," to which reference is made."*" Any order, judgment or decree in any- action or proceeding to settle the accounts of a guardian in socage may be enforced to the same extent and in like manner as in the case of general and testamentary guardians.^* § 721. Accounting: When Barred. — The statute of limitations is of no avail as a defense by a guardian to a deinand or action by his ward for an accounting unless the guardian has accounted or repu- diated his trust within the statutory period, as such a guardian is a trustee of an express trust. *° The statute of limitations does not run in favor of a guardian to prevent him from being called to account by his wards, however many years beyond majority they may attain, so long as the property remains in his possession and unaccounted for." The statute of limitations is' no bar to a proceeding by a Tvard become of age to compel a guardian to account when the ■ward on becoming of age believed the guardian had no money be- longing to him and there has been no act of the guardian known to the ward in repudiation of the guardianship." It is the equitable practice to allow a ward one year after becoming of age to investi- gate his guardian's conduct toward him." Examination by a ward shortly after becoming of age of his guardian's accounts, admission by him of their correctness and expression by him of intent to give the guardian a receipt does not estop his administrator from chal- lenging the guardian's accounts.^' The statute of limitations is not available to a father, appointed guardian of his son's property by IS Matter of Plumb, 24 Misc. 249 recover on his bond see note in 47 (1898),or 53 Supp. 558. L.R.A.(N.S.) 451. 1** See §§ 336 et seq., supra. Matter of Petition of Camp, 126 "* See § 341 et seq., supra. , N. Y. 377, 26 N. E. 799 (1891). "Dom Kels L § 83 "Matter of Sack, 70 A. D. 401 452, 156 Supp. 76 (1915). (1885). On limitation of actions or suits 20 In the Matter of Gill, 3 Hun, 20 to compel guardian to account or to (1874). 777 NEW YOEK ESTATES AND SURROGATES §§ 722-724 the mandate of a court of another state, as a defense to an action of the ward for an accounting in this state, unless the guardian has a,ccounted or repudiated the trust.* A, petition by a ward after he becomes of age to compel his erstwhile guardian to account is barred by the statute of limitations when filed six days only before he be- comes thirty-one years old, and when after becoming of age the guardian told him all the fund had been spent and this was said without fraud or concealment by the gu£ir4ian and the ward always had full access to the guardian's accounts.* An infant may compel a guardian to account at any- time after becoming of age in the absence of some repudiation by the guard- ian of his trust, because the trust relation of the guardian during infancy continues after infancy until repudiated.^* § 722. Payment: Jurisdiction, — The surrogate's court has juris- diction in the cases and in the manner prescribed by statute, to compel the payment and delivery by (a) guardians, or (b) a father, mother or other relative, having the rights, powers and duties of a guardian in socage, of money or other property belonging to their wards.' § 723. Payment: In General. — A father receiving, without au- thority, as guardian for his infant child, the amount of the re- covery in a negligence action on the infant's behalf, who gives no security, is not a trustee of an express trust, but a mere creditor of the infant ; so that the infant's right to recover the amount from his father or the latter's executor on beconaing of age is governed by the six year statute of limitations.* § 724. Payment: For Support and Maintenance: Petition and Grounds. — A petition for an order directing the application by a guardian of an infant's property, to the support and education of the infant, of such sum as the surrogate deems proper out of the income of the infant's property, or, if inadequate for that purpose, out of the principal, may be made by (a) the guardian of the in- fant's person, (b) the guardian of the iiifaiit's property, (c) the infa:nt, (d) any relative in the infant's behalf, or (e) any person in the infant's behalf.* The rules of court should be consulted to ascertain if the infant must jbiii in the application.* The petition 1 Mitchell V. Mitchell,, N. Y. ,L. J. tion of guardianship but befpre Jan. 6, (1916). settlement of account see note in 26 2 Matter of Barker, 4 Misc. 40, 24 L.R.A.(N.S.) 789. Supp. 723 (1893). » C. C. P. § 2510. ^^ Matter of Camp, 50 Hun, 389, 3 * Brown v. Brown, 83 Hun, 160 31 Supp. 335 (1888), old Code. § 2847. Supp. 650 (1894), aff'd 146 N. Y. On right of ward to maintain an 385; 42 N. E, 543. action at law against guardian for * C. C. P. ,§ 2664. guardianship funds, after termina- * ^si., of Thoden Infants, N. Y L 778 § 725 GUARDIANS AND INFANTS should in general, conform to the standard petition in any surro- gate's proceeding.' It should state the petitioner's status, the in- fant's condition, and the condition of the infant's property ; and it should pray for the appropriate relief. When the support, main- tenance and education of an infant is the matter in issue, the rules of a great many surrogate's courts provide for various things: e. g., that the petition must show the filing of the guardian's annual ac- count, or why it has not been filed; that the infant may have to join in the petition; that no previous application has been made; that the general guardian or parent consents to the application, etc.* § 725. Id. : For Support, etc. : When and What Allowed. — A gen- eral guardian has power to apply the income, and, if not sufficient, the principal of the infant's property to the latter's support and edu- cation ; and the surrogate's court has power to authorize such ap- plication.' A guardian can only use principal of a fund held by him for his ward's support and maintenance when he shows on his accounting, either by court order or undoubted proof, that the in- come was insufficient to the necessary, just and proper demands of his ward in view of the circumstances and conditions of the case.*' A guardian can be excused and allowed for expenditures on behalf of infants which are considerably beyond the amount received from a trust fund for their benefit, only on a showing of clear and satisfactory reasons, when they were of such, an age as to make their services valuable to themselves, and had living a father upon whom devolved the primary duty of supporting them, without resort to the trust income.** A surrogate has discretion to order executors to pay to an infant-legatee's guardian a sum from income of the legacy, payable on the infant's majority, for the infant's support ; and without ordering a reference if the petition is support- J. Feb. 11, 1915, Kings Suit, holding her interest, and .someone being will- infant over 14 must join (Rule 24). ing to lend on pledge as security of ■^ See § 787, infra. policy. 8 See, e. g. these Rules: N. Y. 13; *" Matter of Wandell, 32 Hun, 543 Kings, 25; Bronx, 6; Queens, 26; (1884)— an income of $673.75 a Westchester, 7; Herkimer, 11; Cat- year is sufficient for a girl of from taraugus, 17 ; Suffolk, 11 ; Chautau- 14 to 17 years old, in good health, of qua, 10. ' highly respectable social position and ' Clare v. Mutual Life Ins. Co. 201 of a considerable degree of refine- N. Y. 492, 35 L.R.A.(N.S.) 1123, 95 ment, but an additional sum of N. E. 10/5 (1911), old Code, §§ 2472, $327.25 from principal is proper for 2846, 2821, new Code, §§ 2510, 2664, such a girl from 8 to 22 years of age,, 2643, 2649, infant desired to be edu- to be used in her support and educa- cated for profession, only source of tion. pecuniary interest being infant's con- **Kelaher v. McCahiU, 26 Hun,, tingent interest in policy on mother's 148 (1881). life, she beinaf willing to surrender 779 NEW YORK estate's AND SURROGATES § 725 ed by affidavit not denied in the executor's answer.^* To be allowed amounts spent for his ward's maintenance, etc., (mainly in an adult family) all that it is necessary for the guardian to show is the approximate part which the irifant's estate should pay of the expenses of the household: it is not necessary that the guardian present an accurate account of the expenses of maintaining the in- fant from infancy.*^ The situation and fortune and not the posi- tion of infants determine the proper annual allowance to their guardians for their maintenance and Support." When the aggre- gate fortunes of two infants; three ^d'eight years old, is $580,034- .50, producing $24,000 a year if invested at 4%, $5,000 allowance a year to each is proper. ^^ If a guardian could have had a court order fixing the amount of disbursements for his ward on a former application, which he did not, however, make, the order will be granted nunc pro tunc on his later accounting.** When a fathei* of infants petitions as their guardian for an an- nual allowance for their future support and maintenance, an alle- gation in his petition that he is unable to support them is es- sential." Allowance can only be made a general guardian who is also father of the ward for the latter's support, maintenance and education whein the father shows he himself was unable to meet the obligation on, him of such suppoiH;, maintenance and education." The courts will not direct an allowance to a father who is also guardian of his child's estate of an amount from such estate for the child's support, maintenance and education when the father as an individual has sufficient means to be able himself to support, main- tain and educate the child.*' The general rule that a father is bound, if able, to support his infant children though they have property of their own does not prevent him as executor of his wife's and their mother's will to use the income of a trust, to be used by her will to pay to and for the support, maintenance and education of such infants, "for their support, as the will shows the express desire of the mother that this be done.'*" An application to the " Matter of Lehman, 2 A. D. 531 " Matter of Klunek, 33 Misc. 267, (1896), or 37 Supp. 1086; L. 1891, 68 Supp. 629 (1900). e. 173, $25 a month for 3 years or- "Matter of Brown, 80 Misc. 4 dered paid. (1913), or 141 Supp. 193; old Code, 18 Matter of Klunek, 3'3 Misc. 267, § 2804; new Code, § 2689. 68 Supp. '629 (1900). "Matter of Putney, 61 Misc. 1, "Matter of Brown, 80 Misc. 4 114 Supp. 556 (1908)— accounting. (1913), or 141 Supp. 193; infants 3 "Matter of Wilber, 27 Misc. 53 and 8 years old, annual income of (1899), or 57 Supp. 942; father's each $24,000, application for $18,000 annual income $9000 and no one but annual allowance, $5000 given each. child to support. "Matter of Brown, 80 Misc. 4 *" Freeman v. Coit, 27 Hun, 445 (1913), or 141 Supp. 193. (1882). 780 §725 GUARDIANS AND INFANTS supreme court to direct executors and trustees to apply the iucome, and its accumulations, of a fund in their hands undeir a will of a mother showing her intent that her child should be supported therefrom if there was necessity to resort, thereto, to the mainte- nance of such child, an infant, will be entertained only if the earn- ing capacity and financial ability of the father is shown to be in- adequate properly to care for the child.* The surrogate's court has no power to compel a guardian to pay his ward's property to the latter's grandfather on behalf of the infant: the proper course is to seek authority for the guardian himself to apply such prop- erty to the infant's support.^ Although a step-father is under no legal obligation to maintain his step-children and is, on the other hand, not entitled to their custody and earnings, yet when the step-children live, with the step-father he stands m loco parentis to them, is liable for their support and is entitled to their earnings.* Although, in the absence of an express agreement, a step-father who takes a stepchild into his family and supports him as his own child, is not entitled to pay; yet, on final accounting, the surrogate should allow the mother (as guardian) for payments to the step-father from pension moneys to which the child was entitled if the step-father knew the child was entitled to the, income from such pension moneys when he married the mother, and was told, he would have it for the child's, support till the child became old. enough to, support himself.* No allowance can be mt^de the mother of a fatherless child for board of the child while living with her and his step-father when she never paid her second husband (the child's step-father) for such .board.* A surrogate eiither at or before a guardian's accounting may hear and determine a claim, on petition of the guardian or any other person for the infant, ,niade for an allowance for past or future rnairitenance and support of the infant, whether the application is approved or not by the guardian.® A surrogate has power to en- tertain an application for payment by a general guardian to the applicant, who has cared for the minor, of the amount due for past support.'' The ' surrogate's court has ho power to make an iSiiesens v. Daiker, 117 A. : D. * Matter of Grant, 56 A. D.' 176 668, 102 Supp. 919 (1907). (1900), or 67 Supp. 654; afif'd 166 N. 2 Est. of Gardiner, N. Y. L. J. Feb. Y. 640', 60 N. E. 1111. 3, 1915 (N. Y. Surr.) « Matter of Estate of Hasl(;hurst, 3 Williams v. Hutchinson, 3 N. Y. 4 Misc. 366 (1893), or 25 Supp. 827; 313, 53 Am. Dec. 301 (1850). old Code, § 2846. On step-parents' liability for nee- ''Matter of Wentz, 9 Misc. 240 essaries furnished step-child see (1894), or 30 Supp. 211; old Code, note in 42 L.R.A.(N.S.) 535. §§ 2742, subd.,7, and 2846, *Hill V. Hanford, 11 Hun, 536 (1877). 781 ' NEW YORK ESTATES AND SURROGATES §§ 726, 727 order nunc pro tunc directing an administrator to apply a certain sum for the maintenance and support of infants, as the right of an administrator to be allowed sums for maintenance and education are determined on his accounting.* No authority is in the surro- gate to grant a guardian's application for reimbursement by trustees of money expended before the guardian's appointment for past maintenance of his wards or expenses for their benefit; ' or for serv- ices rendered before appointment, as a guardian's compensation for services is limited to the commissions allowed by law." While a surrogate cannot order testamentary trustees directed by the will to apply the trust fund's income for a minor's benefit to make pay- ment to the minor's general guardian, on his application, in reim- bursement for the infant's past maintenance, yet the surrogate can order that they in the future pay stipulated weekly sums for the minor's support, maintenance and education when they have accumulated a considerable sum of income and have not applied any of it to the infant.** A general and natural guardian, on sale of his ward's interest in realty, should be allowed for back support of the infant when the latter had no property except such interest.*'' § 726. Id.: For Support, etc.: Notice and Order. — The notice to be given and the persons to be notified are entirely in the surro- gate's discretion: he may not require notice to anyone or he may require it to anyone.*' The order to be made is likewise in the surrogate's discretion : he may direct the application by the guard- ian of the infant's property of such sum as seems to him proper for the infant's support and education: out of the income of the in- fant's property if adequate, and, if inadequate, out of the princi- pal.** If moneys are needed for an infant's maintenance and sup- port, no order can be made authorizing their payment direct to the infant, but an order can be made permitting his general guardian to apply part of funds in his hands as such to the infant's mainte- nance and support.** § 727. Payment: Receipt For. — Any instrument acknowledging payment of moneys pursuant to the provisions of decrees for the judicial settlement of accounts of guardians may be recorded in the « Est. of Gleason, N. Y. L. J. Dec. *« HoveU v. Noll, 10 Misc. 546, 31 21, 1914 (N. Y. Surr.) Supp. 439 (1894). » Matter of Brown, 80 Misc. 4 « C. C. P. § 2664. (1913), or 141 Supp: 193; Clowes v. **C. C. P. § 2664. Van Antwerp, 6 N. Y. 466 (1852). ** Matter of Levy, N. Y. L. J. Sept. *' Clowes V. Van' Antwerp, supra. 25, 1914 (N. Y. Surr.) C. C. P § 1* Matter of Scherrer, 24 Misc. 351 2664. (1898), or 53 Supp. 714; old Code, §§ 2804, 2805. 782 § 728 GUARDIANS AND INFANTS surrogate's office as follows: (1) application must be made by some one person interested; and (2) the instrument to be recorded must be acknowledged, or proved and duly certified.^® The record of such instrument, or a certified copy of the record, is presumptive evidence: (1) of a satisfaction and discharge of the decree as to any payment of money or delivery of property acknowledged in the instrument; (2) of the contents of the instrument; and (3) of the due execution of the instrument." The value of Services rendered by a ward while boardjng in his guardian's family are properly allowable as an offset to reduce the guardian's charge for the ward's board.** § 728. Compensation. — The subject of guardians' compensation — wh^her by way of commissions or otherwise — has been treated in connection with the discussion of the compensation of "Admin- istrators," and reference is made to that discussion.** " C. C. P. § 2553, " Matter of Clark, 36 Hun, 301 " C. C. P. § 2552, (1885)— sewing. *' See § 360 supra. 783 CHAPTER VIII. REPRESENTATIVES OF DECEASED REPRESENTATIVES. A. Definitions, Duties, Powers and Liabilities in General, § 729, B. Actions and Proceedings, § 730. C. Accountings: 1. In General, § 731, : - 2. Surrogate's Jurisd,iction, § 732. 3. Voluntary Settlernent: a. Petition, § 73^.' b. Citation, % 734. ' c. Proceeding and Decree on Citation's Return, § 735. 4. Compulsory Settlement: '' a. Petition, § 736. b. Citation, % 737. c. Proceedings and Decree on Citation's Return, % 738, 5. For What Accountable, § 739. 6. When Barred, § 740. 7. Delivery Over, § 741. 8. Compensation, § 742. § 729. Representative of Deceased Representatives: Definitions,. Duties, Powers and Liabilities, In General. — The executors and administrators of every person who, as executor, either of right or in his own wrong, or as administrator, has wasted or converted to his own use any goods, chattels or estate of any deceased person, are chargeable in the same manner as their testator or intestate would have been if living.^ § 730. Id. : Actions and Proceedings. — An executor of an execu- tor has no authority to commence or maintain any action or pro- ceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof, as such executor.^ § 731. Id.: Accounting: In General. — A final account is final only as to the matters accounted for; it is not final in the sense that the accountant can never again be brought to account. The only oc- iDeced. Est. L. § 114. _ «Deeed. Est. L. § 121. On right of continuing or surviv- On whether executor or administra- ing executor or administrator against tor of grantee named may exercise former coexecutor or coadministra- power of sale see note in 50 L.R.A. . tor or latter's representatives see note (N.S.) 621. in47L.R.A.(N.S.) 995. 784 § :732 REPRESENTATIVES OP DECEASED REPRESENTATIVES casion when a final account can be rendered is when it is to be ju- dicially settled. A judicial settlement of a final account may be either voluntary or compulsory: — voluntary when had on the pe- tition of the executor or administrator of a deceased administrator, executor, testamentary trustee or guardian; and compulsory when required by order of the surrogate. The judicial settlement of the account of the executor or administrator of a deceased, administra- tor, executor, guardian or testamentary trustee may be had by a distinct proceeding therefor instituted after the latter's death or by a continuation of a proceeding pending at the latter's death for an accounting by or against him. The executor of a deceased execu- tor or other deceased representative cannot be compelled to admin- ister the estate of the decedent who first died : he can only be com- pelled to account for such deceased representative or to deliver over property in his possession or control belonging ta the estate of the first decedent ; as he is merely the temporary custodian of such part of the unadministered estate of the first decedent as may come into his hands and has no -power to compel delivery to himself.* § 732. Id. : Surrogate's Jurisdiction, — The jurisdiction of the sur- rogate in an accounting by a representative of a deceased repre- sentative may be exercised in three classes of cases: (1) When the representative of th© deceased representative voluntarily seeks such accounting; (2) When a person, interested petitions to compel the representative of the- deceased representative to account; an^ (3) When an accounting proceeding by or against the deceased rep- resentative was pending in the surrogate'3 court on such representa- tive's death.; (1) When an executor^ : administrator, guardian or testamentary trustee dies, the surrogate has jurisdiction of the voluntary account- ing by the decedent's executor or administrator for the acts and do- ings of the decedent and for the trust property which has come either into his hands or into the possession of the decedent.* ,,(2) When an executor, administrator, guardian or testamentary trustee dies, the surrogate's court has the same jurisdiction to compel the executor or administrator of the decedent to account as it would have against the decedent, if his letters had been revoked,* or he had been removed, by a surrogate's decree — ^if a person who would be required to be cited upon a voluntary judicial settlement of his account makes the petition.* A surrogate may direct the executor of a deceased guardian to account.' The surrogate has 5 Matter of Hayden, 204 N. Y. 330 " C. C. P. § 2725. (1912) Deced. Est. L., § 121, § 2606 'Matter of Camp, 91 Hun, 204 old Code, § 2725, new Code. (1895), or 36 Supp. 1123; old Code, * C. C. P. § 2725; ' ' § 2606. N. Y. E. & S.— 50. 785 NEW YORK ESTATES AND SURROGATES § 733 no jurisdiction to call to account the administrator of a deceased general guardian when it is not charged that such administrator has received any portion of the ward's estate: the remedy is in equity.' The surrogate has no power to call to account in his court the administrator of a trustee appointed by the supreme court.' A surrogate cannot settle the accounts of a deceased general guardian on a proceeding against the latter's administrator.' On an involuntaiy accounting by the representatives of a deceased rep- resentative the question of the liability of the deceased representa- tive's corepresentative as an ihdividual by reason of his participa- tion in the misconduct of the deceased representative cannot be considered.'" When an executor, administrator, guardian or testamentary trustee dies while an accounting by or against him, as such, is pending before a- surrogate's court, such court has jurisdiction in such proceeding if the decedent's executor, administrator or success- or either voluntarily makes himself a party thereto or has been brought in by a citation to show cause why he should not be made a party; and the surrogate has jurisdiction to proceed with such accounting, determine all questions, and grant any relief he would have power to determine or grant in case such decedent had not died or in case the representative of the deceased representative had voluntarily petitioned for an accounting.^' § 733. Id.: Voluntary Settlement, Petition. — An executor or administrator of a deceased administrator, executor, guardian of testamentary trustee may voluntajily account for the acts and do- ings of his decedent; or may voluntarily make himself a party tO' an accounting proceeding by or against his decedent pending be- fore a surrogate's court on the death of the decedent.'^ In the former case a petition should be made conforming in general to the petition for an accounting by the deceased administrator, exec- utor, guardian or testamentary trustee himself, which should set forth the death of the administrator, executor, guardian or testamentary trustee, the appointment of the petitioner as his executor or administraitor, the necessity and propriety of the Accounting sought; and should pray that all persons who would be necessary parties to a proceeding commenced by the '' Farnsworth v. Oliphant, 19 Barb. " Matter of Seudder, 21 Misc. 179 30(1854). (1897), or47Supp. 101; administra- ' Matter of Hazard, 51 Hun, 201 tor of deceased administrator who de- (1889), or 4 Supp. 701; old Code, §§ posited estate funds in bank which 2472 and 2606, new Code,. §§ 2510 failed, and 2549, 2584, 2725, 2734. " C. C. P. § 2725. 9 Aijdrade v. Cohen, 32 Hun,- 225 '" C. C. P. 2725. (1884), afif'd 99 N. Y. 608. 786 § 735 REPRESENTATIVES OF DECEASED REPRESENTATIVES deceased administrator, executor, guardian or testamentary trustee for judicial settlement of his accounts, and the successor of the de- cedent, be brought into the proceeding.^' The surrogate cannot allow a representative of a deceased representative into whose hands no part of the trust estate ever has come voluntarily to account for the latter's devastavit of the estate committed to him, so as to get a decree against himself as such representative of the deceased repre- sentative, and enforce it against the sureties which the deceased rep- resentative gave as trustee." § 734. Id.: Citation. — ^If an executor or administrator of a de- ceased administrator, executor, guardian or testamentary trustee has voluntarily made himself a party to an accounting proceeding by or against the decedent pending at the latter's death, no cita- tion need issue, unless it be to the successor of the decedent, if he has not also voluntarily made himself a party to the proceeding.^* But if no proceeding is pending and the decedent's executor or ad- ministrator has petitioned to start one, a citation must issue to the decedent's successor and all persons who would be necessary parties to a proceeding commenced by the deceased administrator, execu- tor, guardian or testamentary trustee for judicial. settlement of his accounts.^* The citation should conform generally to the citation in the latter proceeding. Contingent remaindermen under a will must be cited on the accounting of the executors of a deceased trustee nominated in such will." When the executor of the will of a husband who was the representative of an estate of which his widow has been appointed administrator c. t. a. accounts, a person interested in the estate represented formerly by the husband and now by his widow is a proper party, because the estate in which such person is interested is entitled to be represented on the account- ing by someone not antagonistic to its interests, as the widow might be." § 735. Id.: Proceedings and Decree on Citation's Return. — If an executor or administrator of a deceased administrator, executor, guardian or testamentary trustee and the latter's successor have voluntarily made themselves parties to an accounting proceeding by or against the decedent pending at the latter's death, or if the successor has been brought in by citation after the decedent's execu- tor or administrator has appeared in the proceeding pending, the surrogate'^s court may continue the pending accounting proceed- " C. C. P. § 2725. 16 C. C. P. § 2725. 1* Matter of Williams, 26 Misc. 636 " Est. of Dessauer, N. Y. L. J. Dec. (1899), or 57 Supp. 943; old Code, 24, 1915, N. Y. Surr. § 2730, C. C. P. . § 2606. " Matter of Walton, 38 Misc. 723 » C. C. P. § 2725. (1902), or 78 Supp. 296. 787 NEW YORK ESTATES AND SUEEOGATES . §736 ing, proceed with it, determine all questions and grant any relief that the surrogate would have power to determine or grant in case such decedent had not died or the executor or administrator of such decedent had voluntarily petitioned for an accounting:^' If no proceeding is pending and the deceased administrator's, executor's, guardian's or testamentary trustee's executor or administrator has voluntarily petitioned for an accounting, the surrogate must settle the account and direct payment and .delivery by the accounting party of the estate. If, upon such accounting, the surrogate finds that there can he a distribution in whole tO' the parties entitled thereto, he may malce a decree acco^rdJagly; and if he finds! there can be a distribution in part, he may nJS^e a decree accordingly and also direct in the decree the payment and delivery by the account- ing party of the balance of the, estate upon such, terms and security as may be proper. For the purpose of such payment and distribu- tion the accounting party has all the powers and duties of the de- ceased administrator, executor, guardian or testamentary trustee.^" § 736. Id.: Compulsory Settlement, Petition. — Any person who would be required; to be cited upon a voluntary judicial settlement of an administrator's, executor's, guardian's, testamentary trustee's account may, on such administrator's, executor's, guardian's or testamentary trustee's death, petition for an accounting by the ex- ecutor or administrator of such decedent;,^ or may petition that such executor or administrator of tl ; decedent be cited to show cause why he should not, if an accounting by or against the dece- dent was pending at his death, be made a party theret,*'^' '"*f''* oo ccc /■,o'7a\ ^'^^ estate is set forth in note m 22 i (,??.{:. ^ .. . l.r:a.(N.s.) 1094. On hability of sureties on guard- 14 Gottsberger v, Taylor, 19 N. Y. ian's bond for defalcation prior to -[50 (1859). the execution thereof, see note in 39 is Allen v. Kelly 171 N T 1 63 X.R.A.(N.S.) 961. N. E. 528 (1902), General Rule p'rae- " Baucus V. Barr, 45 Hun, 582 tice § 59. 809 NEW YORK ESTATES AND SURROGATES § 758 the surety relieved because he cannot collect from such a dis- tributee.'^ Sureties made parties to their principal's accounting by the surrogate's order allowing them to come in, but also direct- ing that a decree formerly entered charging him with a certain amount, are bound by such former account unless they have it modified or vacated on proceedings ilnder such order, and cannot ask the court to retry the issue they should have tried on such pro- ceedings." § 758. Id.: In Money. — Proof that a principal (trustee) received the trust fund and failed to turn it over and converted it justifies a recovery against his surety for the principal of the fund but not for the interest when it is not shown that the trustee received any interest, as a trustee is not liable to pay interest on a fund greater than what he receives.-^' A surety on the bond of a principal whose letters are revoked is properly chargeable not only with the amount of corpus in which his principal is in default but with interest thereon from the date of revocation, as that date set the time it be- came the principal's duty to pay back.'' The sureties of a deceased administrator are properly chargeable with the amount of the de- posit by him as administrator in a bank of which he was an ofiicer when he knew its financial condition was such as to bring into conflict his duties as officer and administi'ator, with interest at the rate indemnifying for the loss of interest suffered, less the de- duction of the amount of dividends paid by the bank's receiver at the respective times of payment.^" The sureties on an administra- tor's bond are liable for the costs of a second reference accorded the administrator on settlement of his accounts in his attempt to reduce a liability reported against him on the first reference if the second reference was allowed on condition that he personally would pay its costs; because such a provision touches his administration of the estate and noncompliance with it constitutes a default on his bond.' Sureties liable under a bond on failure of a guardian to pay over any sum which the court has authority to require him to pay in any proceeding which it can entertain against him are re- 's Matter of Gall, 47 A. D. 490 As to the penalty as the limit of (1900), or 62 Supp. 420. liability on a bondj see note in 55 '■'Eberle v. Bryant, 31 Misc. 814, L.R.A. 392. or 63 Supp. 963; aff'd 32 Misc. 195, «» Matter of Seudder, 21 Misc. 179 65 Supp. 728. (1897), or 47 Supp. 101. "People ex rel. Collins v. Done- 'Beckett v. Place, 12 Misc. 325 hue, 70 Hun, 317 (1893), or 24 Supp. (1895), or 33 Supp. 634; sureties 437. held for guardian ad litem's allow- " Hood V. Hayward, 48 Hun, 330 anee on second reference. (1888), or 1 Supp. 566; mod. 124 N. Y. 1, 26 N. E. 331. 810 § 759 SUEETIES AND BONDS sponsible for costs imposed on a guardian on his accounting pro- ceeding when execution on the decree has been returned unsatis- fied.* The sureties on the bond of one as special guardian who is also a general guardian are liable not only for the principal of a fund which their principal as special guardian received and con- verted but for the interest thereon, in spite of the claim that he must be deemed to have received the interest as general guardian ; because the investment was made in violation of court order and the interest as well as the principal was made payable to himself as special guardian.* § 759. Id. : To Co- and Dual-Principals. — Sureties on the bond of joint principals (co-administrators) are liable not only for their principals' joint but for their several acts; so that if one of them deposits trust funds in his own private bank while he is insolvent without the knowledge of his co-principal the sureties are liable for the loss occasioned the estate on the depositing principal's fail- ure even though the co-principal is sole distributee of the estate, as he did not act jointly with the insolvent principal.* A surety on the bond of co-administrators is bound to answer to one of them for the default of the other in misappropriating estate funds when such liability has been established by decree and return unsatis- fied of execution thereon ; ^ and the fact that he has a remedy against the administrator holding him in the administrator's per- sonal capacity does not lessen his liability to such principal in the latter's representative capacity.* One of two joint administrators may sue a surety on their bond for recovery of estate money con- verted by the : other administrator who had the whole administra- tion of the estate, when the surety is not such for the suing admin- istrator, as the latter is not in such a case suing his own surety.''^ A principal may sue the surety of his co-principal for the latter's misdeeds even though he participated in the investments resulting in the loss to the estate and such surety cannot avail himself of the defense of such principal's participation unless such principal is insolvent.' Sureties on the bond of a person as guardian who is also administrator are liable for the amount which a decree directed him as administrator to deposit in his name as guardian even though he had misappropriated all the amount before he was ap- * Phillips V. Liebmann, 10 A. D. * Sperb v. MeCoun, 110 N. Y. 605, 128, 41 Supp. 1020 (1896), old Code 1 LR.A 490, 18 N. E. 441 (1888). SS of^'^v O'^'^H Sperb v. McCoun, supra. 3 Q \r ?■ r>oV w 13 V. fioo ■'Nanz v. Oakley, 120 N. Y. 84, 9 3 Swarthout v. Oaks, 52 Barb. 622 j^.r.a. 223, 24 N. B. 306 (1890). (1868). 'Hood V. Hayward, 48 Hun, 330 * Matter of Adams, 30 Misc. 184, (1888), or 1 Supp. 566; mod. 124 N. 61 Supp. 751 (1899). Y. 1, 26 N. E. 331. 811 NEW YORK ESTATES AND SURROGATES § 760 pointed guardian ; because such amount was rejceivpd by bim or . came intO; his possession by virtue of .letters previously issued to him in another capacity.^ Sureties on a guardian's bond are liable for funds transferred by himseilf as executor to himself- as guardian even though there, were denied opportunity to show that a decree settling his executorial accounts was erroneous ip, that it, credited him with payment to himself as guardian when there was nothing due by him to his ward.^" Although the sureties on, the bond of a non-resident executor may not be liable by its tenpas for acts of their jDrincipal when acting as trustee, yet they are liable , for wrongful acts of the executor with reference- to real, estate; given in trust to sell and invest the proceeds; on the ground; th,at equitable conver- sion makc'3 the real estate personalty and legal assets for which the executor is accountable,^^ The sureties on the,, bond of one as special guardian who is also a general guardian axe liable not only for the principal of a fund whicjbi the^r .principal as special guardian received and converted but for the interest thereon, in spite of the claim that he must be deemed to have received the interest as general guardian; when the investment was made in violation of court order, and the interest as well as the principal was made pay- able to himself as special guardian.'^ § 760. Id.: Actions and Suits Against. — Generally, sureties be- come liable to suit only after failure of their principal to obey some proper mandate of the court and establishment in court of their principal's default or • authorization by the court to prosecute his bond.^' Before an action at law can be maintained upon the bond given by sureties, an accounting by the principal in the surrogate's court is necessary. 1* No action can be maintained against sureties on the bond of a general guardian until there has been an account- ing before the surrogate and a decree or order establishing the de- 9 Matter of Noll, 10 A. D. 356 3 N. E. 74 (1885) ; Hood v. Hood, (1896), or 41 Supp. 765; aff'd 154 85 N. Y. 561 (1881); Perkins v. N.,Y. 765, 49 N. E. 1101. Stimmel, 114 N. Y. 359, 11 Am. St. On a decree directipg a ti;9.ijsfer R.ep. 659, 21 N. E. 729 (1889) ; Al- of a fund by an executor or adminis- len v. Kelly, 55 A. D. 454 (1900), trator to himself in aHother fiduciary or 67 Supp. 97; Seharman v. Schoell, capacity, as afeecting the liability of 38 A. D. 528 (1899), or 56 Supp. his sureties, see note in 40 L.R.A. 498. (N.S.) 1136. On tlje right to sue an executor or 1" Matter of Brown, 71 Hun, 16p adlninistrator on his bond in a state (1893), or 25 Supp. 694. other than that of his appointment, "Hood V. Hood, 85 N. Y. 561 see note in 35 L.R.A. (N.S.) 344. (1881). , ' 1* Perkins v. Stimmel, 114 N. Y , " Swarthout v. Oaks, 52 Barb. 622 359, 11 Am. St. Rep. 659, 21 N. E. (1868). , , 729 (1889), general guardian. 18 Haight V. Brisbin, 100 N. Y. 219, 812 §T60 SURETIES AND BONDS ' • fault and the extent of the deficiency; and an order on petition of a' substituted guardian vacating the accounts of the former guard- ian and ordering payment over to the successor is not sUch an ac- counting.^* No action at law can be maintained against the sureties of an executor or administrator except on disobedience by the latter of some order of the surrbgate, and. on authorization given by tlio surrogate to prosecute the bond.^* A decree against the principal, his refusal or neglect to perform it, or an execution returned un- satisfied, are prerequisite to an action against his sureties, for the reason that it must first be determined if there are estate assets up- ' plicable to the claim; and when the surrogate, on failure of the principal to appear on the return of his accounting proceeding, neither proceeds to take the account, revoke his letters nor issue an attachment, but simply institutes a proceeding to punish for con- tempt and fines the principal for contempt, the surejiies are not bound or suable." When a surrogate, on petition of a survivor of more than one executor, administrator, guardian or testamen- tary trustee, has compelled a co-administrator to account for and pay over funds of the estate he had misappropriated, and the ex- ecutions on the decree have been returned unsatisfied, the surviving;' executor, administrator, guardian or testamentary trustee may maintain an action on the official bond to recovei'the sum decreed to be paid him.^' An accounting by the principal is not a pre- requisite to an action against his sureties on his bond if the extent of the principal's liability appears without the accounting, e. g. , when the sureties demur to a complaint alleging conversion by their principal ; ^' or when an order is taken by default requiring their principal to pay an amount he is alleged to have misappro- priated, on his failure to appfear on the return day of an order to show cause and account, as such failure is an admii^sion.^" Although a court of equity may give a remedy against sureties when no order for the prosecution of their bond has been made, it will only do so when special circumstances are shown establishing the neces- sity of the equitable remedy.^ So, while ordinarily no action could be brought against the sureties on the bond of an executor or ad- ** Rouse V. Pa3Tie, 120 A. D. 667 of eoexecutor permitted to manage (1907), or 105 Supp. 549. , the estate is taken. up in note in 11 16 Hood V. Hood, 85 N. Y. 561 L.R.A.(N.S.) 306. (1881). " Girvin V. Hickman, ,21 Hun, 316; 1' Loop V. Northrup, 59 Hun, 75 (1880) — guardian's bond. (1891), or 13 Supp. 144. 2" Centre v. Finch, 22 Hun, 146 18 Sperb V. McCoun, 110 N. Y. 605, (1880 ) . 1 L.R.A. 490, 18 N. E. 441 (1888), iHood v. Hood, 85 N. Y. 561 old Code § 2607, new Code § g583. (1881). The liability on a bond for default 813 NEW YORK ESTATES AND SURROGATES § 760 ministrator until proceedings for the latter's accounting had been had and his default established, or leave secured, to prosecute the bond, -yet if the accounting is impossible or impracticable, e. g., by reason of the principal's death in another state insolvent and intestate, with no representatives in this state, an equitable action to establish the extent of his liability and to charge his sureties is proper.* For the same reason, while no action can be had against the sureties on an administrator's bond who is always in the ju- risdiction and available until he has disobeyed some order or man- date of the court,* yet if he has collected and converted the estate's assets and absconded from the state {ot, possibly, concealed him- self in the state), no order to have him account avails, and action may be brought against the sureties without any accounting pro- ceedings.* Although no action at law against sureties can be had till after settlement of their principal's (guardian's) account and his refusal to pay according to a decree rendered thereon requiring him so to do, yet a suit in equity may be maintained against them without these steps when an accounting by the guardian or the appointment of an administrator of the guardian's estate cannot be had because of his removal from the state, and his death there in- solvent-i leaving no assets here.* An administrator d. b. n., without obtaining leave of court, may sue the sureties on the bond of his predecessor conditioned , to obey all lawful decrees and orders of the surrogate's court, even though there has been no literal breach of the bond, when the predecessor, having appropriated the pro- ceeds of property belonging to his decedent's estate, has removed to and died in a foreign state, leaving no personal property or rep- resentatives in this state.° Sureties on the bond of a priiicipal con- ditioned that he will obey all lawful idecrees and orders of the sur- rogate's court touching the administration of the trust fund, etc., may be sued without establishing first the principal's default by his accounting, a decree against him and the return of execution unsatisfied, when he has resided for years without the state, has re- fused to obey the surrogate's order that he account, and cannot be served in the state with process; for otherwise the court would be 2 Otto V. Van Riper, 164 N. Y. 536, ' Seharman v. Schoell, 38 A. D. 79 Am. St. Rep. 673; 58 N. E. 643 528 (1899), or 56 Supp. 498. (1900), affirming 31 A. D. 278, 52 * Scharman v. SchoeU, supra. Supp. 773 (1898) ; Dunne v. AiHeri- * Parker v. Dominick, 105 A. D. .can Surety Co. 43 A. D. 91 (1899), 440, 94 Supp. 249 (1905). or 59 Supp. 429; Bishoffl v. Engel, * Dunne v. American Surety Com- 10 A. D. 240 (1896), or 41 Stipp. pany, 34 Misc. 584, 70 Supp. 391 S15. (1901), old Code §§ 2606 to 2609. 814 § 760 SURETIES AND BONDS powerless to give relief.'' Action may be maintained against the sureties on a special guardian's bond without having him account and without establishing his default, when he has received moneys for which he is accountable, has not accounted therefor, has appro- priated them to his own use, has fled the state, his whereabouts are unknown, and he is insolvent.* Even though a bond of a non- resident executor who misappropriated assets of the estate cannot be prosecuted against his sureties in the surrogate's court, because the executor has not refused or omitted to perform any decree made by the surrogate against him or because no surrogate's decree has been filed and docketed and execution thereon returned unsatis- fied, yet it may be prosecuted in equity.' When the effect of a sur- rogate's decree is to establish that at his death an execirtor, admin- istrator, guardian or testamentary trustee had no property out of which the amount due the legatee, distributee, ward or beneficiary could be collected, it is not necessary that execution issue and be returned unsatisfied before recovery can be had by the legatee, distributee, ward or beneficiary against the sureties on the bond of the executor, administrator, guardian or testamentary trustee." Though an executor, by reason of his death, has not accounted and cannot be shown to have refused to obey any decree of a surrogate, and there has-been no surrogate's decree against the deceased exec- utor's administrators, yet a successor to such executor can sue in equity the sureties on such executor's bond and his administrators on alleging the executor's devastavit and the insolvency of his estate.^^ The right to commence an action upon a bond without issuing execution applies equally in the case of a decree on a vol- untary as on an involuntary accounting.*^ In a joint action against the wife and all the legatees of a deceased testate surety, to recover, as for a debt of the decedent, on his liability as surety, the assets of the estate may be marshaled, the proportionate sum to be paid by each defendant ascertained and the amount to be paid by each separately awarded by the judgment." 'Yates V. Thomas, 35 Misc. 552 67 Supp. 97 (1900), 171 N. T. 1, (1901), or 71 Supp. 1113. 63 N. E. 528 (1902), old Code §§ « Duck V. McGrath, 160 A. D. 482 2606, 2607, new Code § 2584— guard- (1914), or 145 Supp. 1033; affd ian. 212 N. Y. 600, 106 N. E. 1032. " Trust and Deposit Co. v. Pratt, The liability of sureties on judg- 25 Hun, 23 (1881). ment bond of administrator as af- '^ Van Zandt v. Grant. 175 N. Y. fected by special bond is discussed 150, 67 N. E. 221 (1903), old Code in 43 L.'R.A.(N.S.) 308. §§ 2606 and 2607, new Code § 2583. 9 Haines v. Meyer, 25 Hun, 414 " Duck v. McGrath, 160 A. D. 482 (1881), by administrator' c. t. a. d. (1914), or 145 Supp. 10."3; affd 212 b. n. N. Y. 600, 106 N. E. 1033, C. C. P. i" Allen V. Kelly, 55 A. D. 454, § 1838. 815 XEW YOEK ESTATES AND SURROGATES § 761 § 761. Surety's Remedies. — "A surety . . . is entitled to full .tndemmty against theiconsequences of the default of the^ principal,, and is therefore entitled to call upon him for reimbursement not. only of what he may have been obhged to pay in discharge of the obligation for which he was surety, but also of all reasonable ex- penses legitimately incurred in consequence of such default, or for his own protection. These do not include expenses incurred in de- fending himself against the just claim of the creditor, nor remote or consequential damages sustained by the surety, such as sacrifices of property for the purpose of meeting his liability, loss of time, injury to business, expenses incurred in seeking to avoid payment, etc. . . . they do include expenses reasonably incurred for the purpose of securing the application of the property of the principal to the debt in exoneration of the surety."** A surety compelled to pay under his liability on his principal's bond may have recourse for contribution against the estate of his deceased co-surety.** 'A surety on the bond of co-administrators can call on one to make good a payment by him on failure of the other to pay over an amount directed by the surrogate, though this results in rendering an administrator liable for the torts of his co-administrator.** A surety compelled to pay on suit against him on his bond the amount for which execution by distributees against the principal-adminis- trator was returned unsatisfied is subrogated to the distributees' remedy by attachment against the administrator; and the surro- gate's decree was not merged in the judgment against the adminis- trator, as the decree was the principal debt and the bond was only a collatei'al security therefor; so that a judgment upon the collat- eral did not merge the principal.*'' A surety appointed on an ad- ministrator's bond after objection had been made to his failure to list a stock exchange seat in his decedent's name as an asset in his account, and the matter had been referred, is entitled to have an order sending back to the referee the matter (after the latter's re- port had been filed, for the purpose of taking further testimony as to the administrator's contention that the seat was a fjrm and not an I individual asnct) modified so that the surety might have oppor- tunity to prove tliat any devastavit of the estate so far as the seat went took place before he became surety.*' On a judicial settle- ment of a temporary administrator's accounts his surety cannot ** Thompson v. Taylor, or Matter *' Townsend v. Whitney, 75 N Y of Matteson, 72 N. Y. 32 (1878). 425 (1878). *" Johnson v. Harvey, 84 N. Y. 363, *' Matter of Grant, 122 A. D. 602 38 Am. Rep. 515 (1881). 107 Supp. 375 (1907). *« McCoun V. Sperb, 53 Hun, 165, 6 Supp. 106 (1889). 816 § 761 SURETIES AND BONDS compel restoration of assets fraudulently obtained by a third per- son from the administrator; because this is no claim against an estate of which a surrogate has jurisdiction, but an issue between two living persons based on their own acts after the decedent's death." "Matter of Wiesell, 51 Misc. 325,101 Supp. 273 (1906). N. Y. E. & S.— 52. 817 CHAPTER X. JURISDICTION. A. Concurrent and Conflicting Jurisdiction of Supreme and Surrogated Courts : 1. When Complete Relief Obtainable in One Court: a. In General, § 762. b. Accountings, § 763. e. Term of Office of Representative or Trustee, § 764. d. Wills, § 765. 2. Over Guardians: a. Surrogate Court's Jurisdiction, § 766. b. Supreme Courfs Jurisdiction, § 767. 3. When Relief Inadequate in One Court, § 768. 4. Court First Acquiring Jurisdiction, § 769. B. Jurisdiction of Surrogates and Their Courts: 1. In General, § 770. 2. To Complete Predecessor's Business, Certify and Sign Papers, Take Oaths, etc., § 771. 3. Equitable Jurisdiction, § 772. 4. Common Laiv and Incidental Jurisdiction, § 773. 5. Attacking Jurisdiction, § 774. 6. Preventing Exercise Of, § 775. 7. General Jurisdiction Over Administrators, § 776. 8. General Jurisdiction Over Executors, § 777. 9. General Jurisdiction Over Testamentary Trustees, § 778. 10. Jurisdiction Over Indians, § 779. § 762. Concurrent and Conflicting Jurisdiction: Surrogate's and Supreme Courts: When Complete Relief Obtainable in One Court: In General. — An action in the supreme court to recover a distribu- tive share, under the laws of another state, of the estate of a dece- dent found by the surrogate to have died an inhabitant of this state, whose will was here admitted and letters on it here issued, will not be entertained when brought less than a year from the grant of .such letters, and when it would, necessarily, deprive the surrogate's court of jurisdiction of a matter pending before it to a certain ex- tent and continue such jurisdiction to a certain extent, thus result- ing in two several adjudications by different courts as to the dispo- sition of one estate.* The supreme court has no jurisdiction to direct a temporary administrator of the estate of one who was de- fendant in an action pending in the supremo court and who has iFlatauer v. Loser, 211 N. Y. 15, 104 N. E. 1123 (1914). 818 § 763 JURISDICTION died pending its determination to pay the amount of the recovery to the claimants ; because the surrogate alone has this power.* An appeal from a surrogate's order in a proceeding in his court does not make the matter an action pending in the supreme court so as to bring the whole matter of administration of the estate in the supreme court and allow it to appoint a receiver of the estate.' The supreme court will not at special term entertain a motion for a new trial for newly-discovered evidence in a surrogate's proceeding in which a decree has been affirmed in the appellate division and court of appeals,, as the surrogate's court has original and the su- preme court appellate jurisdiction, only, and it cannot, therefore, proceed de novo.* § 763. Id. : Accountings. — ^In order to obtain an accounting in the supreme court an executor must set forth special facts and cir- cumstances showing that complete justice cannot be had in the surrogate's court.' The supreme court ordinarily will not enter- tain an application to compel an accounting.® The point that the supreme court will not entertain an action by a testamentary trus- tee to settle his accounts but will leave such settlement to the; surro- gate except when special circumstances exist cannot be taken by demurrer but is properly determined by the court when the action is brought on for trial.' Although the supreme court, will not en- tertain jurisdiction of an action for an accounting only, yet if matters are also involved of which the surrogate's court has not jur- isdiction, the supreme court will stay an accounting proceeding, be- gun in the surrogate's court after the action in the supreme court, if the issues in the action have been so joined that all matters of difference between the, parties can be settled in the action as well as in the proceeding.* Such circumstances exist as to warrant the supreme court to exercise its concurrent jurisdiction with the sur- rogate over accountings when there is question as to an executor's power over larids, as to whether an annuitant has a direct lien there- on, and a conflict grows out of this; ' or when the fund to be ac- counted for is held by the accountants in two capacities and a con- « Matter of Swan, 158 A. D. 568, 161 N. T. 633; 57 N. B. 1117; Hynes 143 Supp. 910 (1913), old Code § v. Alexander, 2 A. D. 109, 37 Supp. 2680. : 527 (1896) ; Sanders v. Soutter, 126 'Matter of Hancock, 27 Hun, 575 N. Y. 193, 27 N. E. 263 (1891) ; (1882) — order vacated decree admit-. Chipman V. Montgomery, 63 N. Y. ting will to probate. 221 (1875). * Howell v. Howell, 30 Hun, 625 ' Mildeberger v. Franklin, 130 A. (1883). D. 860 (1909), or 115 Supp. 903. s Ungrich v. Ball, 152 A. D. 824, « Matter of Farrell, 125 A. D. 702 137 Supp. 722 (1912). (1908), or 110 Supp. 41. 'Matthews v. Studley, 17 A. D. » Do^giag v. Yost, 64 Hun, 155 303 (1897),: or 45, Supp. 201; aff'd (1892), or 18 iSupp. 830. 819 NEW YORK ESTATES AND SURROGATES § 763 struction of a codicil is neeessaty on the accounting.*" The supreme court will take jurisdiction of an action to compel an executor arid testamentary trustee to account, pay over a life tenant sumS due and set aside intermediate accounting decrees in the surrogate's court, when the answer alleges indebtedness by the life tenant to the estate and application' of part of his iiicbme to satisfy the debt and the reply denies the indebtedness, as' the surrogate's court could not determine the validity of the debt which is a preliminary requisite to the determination of the trustee's right of deduction froni the income to satisfy it.** The" supreme court will not entertain an action to compel an accounting by the representative of a deceased testamentary trustee for the same reason that it would not enter- tain such an action against the trustee himself, viz., that the sUrro- gaite's court can give the full relief asked. *^ The surrogate's court is the appropriate 1>ribunal for an accounting by executors dnd tes- tamentary trustees and the supreme cburt will ordinarily exercise its jurisdiction only Wh6n the surrogate's court may not have full jurisdiction to decide all questions involved, e. g., when the sale of real estate is involved.** The supreme court will entertain an ac- coiinting by an administtatbi' ' c. t. a. as part of an auction to cour strue the will when (a) ^11 parties so ask, (b) the supreme court has in the action already deterniined practically all the questions which would arise on an accounting before the surrogate, (c) noth- ing remains to be done aside from distributing' the estate, (d) part of the estate must remain subject to the Supreme' court's control, and (e) a large nurtiber of persons are interested in the estate (some of them nonresidents) of whom the supreme court- has ju- risdiction:** The suprfenie' court will entertain an accounting pro- ceeding by a sister against her' brother for her interest in their father's estate of which the brother was administrator when she had appointed him her agent to maiiage such interest, even though he had accounted in the' suri'ogate's court as administrator, fpi the reason that a decree in the latter court was no adjudication as to her pt'operty and rights which he had managed as her agent, and particularly as to her real estate;.*' or an accounting proceeding in *''Foote V. Brugger&bf, 66 'Hun, Goetz, 120 A. D. 10 (1907), or 104 406 (1892), or 21 Supp. 509. Supp. 832; Mattel* of Smith, 120 iiMeeks v. Meeks, 122 A. D. 461 A. D. 199 (1907), or^ 105 Supp. 223; (1907), or 106 Supp. 907. Volhard v. Volhard, 119 A. D. 266, 12 Post V. Ingraham, 122 A. D. 738 104Stipp. 578 (1907). ' (1907), or 107 Supp. 737; old Code **Utica Trust & Deposit Co. v. §■ 2606, new Code g 2725. Thompson, 87 Misc. 31 (1914), or 13 Bushe V. Wright, 118 A. D. 320 149 Supp. 392. (1907),or 103 Supp. 410; afPd 195 *' Frethy v. Durant, 24 A. D. 58 N. Y. 509, 88 N. E. 1116; Matter of (1897), or 48 Supp. 839. 820 §703, , ^ JURISDICTION which 9, question relating to the title to real :est9.te will haveito be decided before an accounting should be ordered, as the surrogate has no jurisdiction, to pass upon such a question.^* The supreme court of this state,, will at the invocation of all parties interested aiid at a time so , far removed from the testator's death as to obviate any possibility of there still being creditors in the state of the testa- tor's domicil assume, jurisdiction to settle the accounts of a trus- tee substituted by it of a will of a resident of; another state probated here involving the construction of the validity of a bequest deter- minable by the laws of the testator's residence :affecting a fund in this state." When an action by a surviving of three partners for a partnership accounting is pending in the supreme court, the surro- gate's court on such survivor's accounting as executor of one of the deceased partners will not try questions on objections as to the amount credited, the testator for his interest in the firm, because the estate of the otl^er deceased partner is not represented before the surrogate's court and the supreme court can, therefore, only give the proper and adequate relief.^' Although a tirustee's inter- mediate accounting from the date of his last accounting is pending in the surrogate's court, the supreme court will entertain an action to remove the trustee, appoint a successor and a receiver pendente lite, and settle the trustee's accounts in which claim was made of the execution by the decedent of a trust deed ; because an issue was raised as to the trust deed which the surrogate had no jurisdiction to determine, and the accounting (not being final) did not include the time that would intervene before the trustee's removal.^^ Equity will compel trustees peremptorily directed by will to sell realty, though given discretion as to the manner of sale, to fully exhibit the condition of the trust fund to a legatee whose income is still -.undetermined after the trustees' possession of the estate for a period of years, even though they claim that most of the income has been paid for taxes and care of the real estate, and the complaint does not show unreasonable lack of diligence by them in protecting the legatee's rights.^" The inability of a surrogate's court to review the erroneous determination of the supreme court prevents it on an insolvent father's, accounting as general guardian to diredt payment to the ward of a fund in which the father (guardian ad litem in a supreme court action of partition of property in which the child. i« Matter of Fogarty, 117 A. D. " Westerfield v. Rogers, 174 N. Y. 583 (1907), or 102 Supp. 774. 230, 66 N. E. 813 (1903). " U. S. Trust Co. V. Wood, 1^6 A. 2" Haneox v. Wall, 28 Hun, 214 D. 75l (1911), or 131 Supp. 427. (1882), dist'g'd. 95 N. Y. 535. " Matter of Martens, 39 Misc, 512 (1902), or 80 Supp. 376. ' " 821 NEW YORK ESTATES AND SUBROGATES §§ 764, 765 was interested) had been given curtesy by the supreme court, be- cause, as a result of the supreme court's decision, the father was entitled to the income for life.^ Either of two courts having ju- risdiction may order an obligor to account when his bond is condi- tioned to account according to the order of any court having au- thority to give direction in the premises.* § 764. Id.: Term of Office of Representative or Trustee.— The supreme court will not entertain an application to remove a testa- mentary trustee unless' special facts are pleaded which show the exercise of its jurisdiction to be necessary ; but will remit the parties to the surrogate's court.^ Although the supreme court will not un- dertake to remove a testamentary trustee in an action because the same end can be attained by a proceeding in the surrogate's court, yet the question whether the surrogate's court can give the relief cannot be raised by demurrer in the action, as the supreme court can remove for any cause, while the surrogate's court can remove only for specific statutory causes.* Although a proceeding to revoke let- ters of administration is pending' in the surrogate's court and resort can be had to the administratrix' sureties to recover any damage, yet the supreme court- will entertain an action by one seeking revo- cation of such letters when the administratrix obtained letters by fraudulent allegations of being the decedent's widow ; and has sunk and is sinking the decedent's personalty in improvements of tealty; because .the surrogate's court has no jurisdiction to declare a lien on such realty or prevent sale thefedf to a hoiia fide ptirchaser by injunction or Zis pendens.* § 765. Id.: Wills. — The supreme court will not take cognizance of an action to construe a will when the complaint does not set forth facts sufficient to show that adequate relief cannot be had in the surrogate's court.* The surrogate's court is the proper forum to which to apply for probate of a will of personalty ; and the supreme court will, therefore, not entertain an action, by persons claiming personalty under an unprobated will against persons claiming it under another alleged, later, unprobated will and a transfer by the decedent o-f it to them, to adjudge that the later will and the trans"- fer were obtained by fraud and undue influence.'' The supreme » Matter of Ransier, 26 Misc. 582,, (1910), or 122 Supp. 256; aflE'd 199 57 Supp. 650 (1899). N. Y. 538, 92 N. E. 1099. 2 Matter of Spelman v. Terry, 74 ,^1?,^^^°^ ^- ^undy, 59 N. Y. 320 N. Y. 448 (1878)— special guardian's ^^^J^' ^ ^ K„„j V / r 6 8 Moore v. De Groote, 158 A. D. sr-'v.-!^ nv,■^^ «=Tv/r- .,„ ^^S (1913), or 143 Supp. 873; dism'd schilds V. Childs, 68 Misc. 472 213 N. Y. 642, 107 N.B. 1082 (1910), or 124 Supp. 550. ''Delabarre v. McAlpin, 71 A D *Pyle V. Pyle, 137 A. D. 568 591 (1902), or 76 Supp. 301. 822 § 766 JURISDICTION court will not entertain an action ostensibly to construe a will giving the residuary estate to the testator's heirs and next of kin as in intestacy, as this is simply an attempt to obtain a determi- nation that parties claiming to be a widow and heirs are not such before the distribution of the estate on the accounting, when the surrogate would have full power to determine to whom legacies and distributive shares were payable.® § 766. Id.: Over Guardians: Surrogate Court's Jurisdiction. — The question of the jurisdiction of the court over guardians is treated whenever possible in direct connection with each subject with which a guardian deals, and only those general matters which can- not be discussed in that manner are here considered. The surro- gate's court has jurisdiction, in the cases in the manner prescribed by statute, to direct and control the conduct of guardians." A surrogate, in or out of court, as the case requires, has power to re- quire, by order, a guardian subject to the jurisdiction of his court, to perform any duty imposed upon him by statute, or by the surro- gate's court under the authority of a statute. ^^ A surrogate, in or out of court, as the case requires, has power to enjoin, by order, a guardian to whom a citation or other process has been duly issued from his court from acting as such until the further order of the court. ^* The surrogate's court has jurisdiction to administer jus- tice in all matters relating to the affairs of decedents.^' The stat- utes granting powers to surrogates fall far short of making chancellors out of them in their jurisdiction over minors and their property; and the surrogates' courts have no authority to direct a conversion of an infant's property from personalty into reajty, whereby the infant will be bound on becoming adult, or whereby the infant's executor is bound if the infant died while still such.^* A surrogate has no authority by order to direct an insurance com- pany to cancel a policy on which an infant's guardian has bor- rowed, in the event of default in payment of the loan; and to apply its cash surrender value under such cancelation to such loan and in- terest.^* The surrogate has no power to exhaust the principal of a ward's estate for his support and maintenance while the interest re- mains uncollected and the debtors solvent ; or direct, generally, that the infant have control of his funds ; or that the guardian pay bills which may thereafter be incurred by the ward.^^ A surrogate may 9 Grouse v. Wilson, 73 Hun, 353, »* Matter of Bolton, 159 N. T. 129, 26Supp. 923 (1893). 53 N. E. 756 (1899). " C. C. P. § 2510. " Matter of Bartsch, 60 Misc. 272, "C. C. P. § 2490. 113 Supp. 286 (1908). 12 C. C. P. § 2490. " Matter of Plumb, 52 Hun, 119, "C. C. P. § 2510. 4 Supp. 831 (1889). 823 NEW YORK ESTATES AND SURROGATES § 767 determine the justice, of a disputed d?imand for application by a guardian not only of income but.pf principal to a ward's support,*'' The surrogate's court has power to ^ant an application by a.igen- eral guardian for an order permitting him to intervene in his ward's behalf in an action in a court of a foreign country, when the interest of the ward in such action renders the intervention neces- sary.* § 767. Id.: Supreme Court's Jurisdiction.^The supreme court has jurisdiction to award the custody and care of the persons and property of infants who or which are within its jurisdiction ; * and general jurisdiction; over guardians.' It is not the legal domicil of the infant which determines the court's jurisdiction ; but the residence of the infant or the situation of the infant's property within the state.^ Bringing the infant into this state by stratagem for. the purpose of giving jurisdiction will not, however, avail.^ Apart from any statTite the supreme court has inherent power , to protect the property of infajnts, who are its wards, even against the decree of an inferior court which jeopardizes such property.* The supreme court will not turn over to the surrogate's jurisdiction of guardians appointed by the former court or direct payment of a fund in it (deposited in bank by its order), received in an action prosecuted by a guardian ad litem appointed by it on behalf of the infant, to a general, guardian lappointed without bond by the sur- rogate's court and a clerk in the surrogate's office so th^t applica- tion may be made to the surrogate's court for withdrawgil of part of the fund to pay for medical a,ttention and other expenses of the infant: the guardian ad litem should make a direct application as such to the supreme court if he wishes to secure such money.' A court of equity has no inherent, or original juijisdiction to direct the sale of infants' lands ; but can do so only as authorized by stat- ute.* Whenever any court other than a surrogate's appoints a gen- eral guardian of an infant's person or property, or both, that guard- ian is subject to all the duties and liabilities of a general guardian appointed by the surrogate's court, and must file a certified copy "Matter of Kerwin, 59 Hun, 589 1092; afl'd 169 N. Y. 603, 62 N. E. (1891), or 14 Supp. 353, qld Code llOO; Hang v. Hewitt, 87 Misc. 67 §§ 2846 and 2472, new Code § 2664. (1914), or 150 Supp. 236. * Est; of McCready, N. Y. L. J., * Matter of Stevens, 114 A. D. 607 June 23, 1915, N. Y. Surr., C. C. P. (1906), or 99 Supp. 1070; aff'd 188 §, 2510, subd. 6,— the coiirt was the N. Y. 5^9, 81 N. E. 1176. . superior court in Canada. ' * Benson v. Siemons, 92 Mise. 509, 2 Matter of Hubbard, 82 N. Y. 90 156 Supp. 1 (1915,). (1880). «0'Donoghue v. Boies, 159 N. Y. , ^Stru^be v. Kings Co. Trust Co. 87, 53 N. E. 537. (1899). 60 A. D. 548 (1901), or 69 Supp. 824 § 7G8 JURISDICTION of the order or decree of appointment and of the bond or undertak- ing given by him in the surrogate's court of the county in which the infant, if a resident, resides, or, if a nonresident, has real or personal property ; and a minute thereof must be made and indexed in the book kept by the surrogate in which orders or decrees ap- pointing guardians are entered.'' No penalty is prescribed for not filing in the surrogate's court proceedings in the supreme court for the appointment of a general guardian of an infant's person or property, or both.' § 768. Id.: When Relief Inadequate in One Court. — The duty of the supreme court to make use of its fuller powers when those of the surrogate's court are inadequate is niade clear by the following examples. When two of three executors sue the third, who is their common testator's surviving partner, for appropriating the partner- ship property to his individual "use, and demand that he account and be enjoined from use of the partnership assets, the supreme court, on its equity side, will take jurisdiction and not relegate the parties to the surrogate's court; because the latter court could not grant the injunction prayed.' When annulment or setting aside a release made between parties interested in an estate and the executors is sought on the ground of fraud, the supreme court will take jurisdiction." When an executor or administrator is insolvent or is acting in collusion with a debtor of the estate so that a creditor of the estate cannot rely on the executor or administrator to collect the debt the supreine court will entertain the creditor's equitable suit joining the executor or administrator and debtor as parties de- fendant." The lack of general equitable jurisdiction in the surro- gate's court prevents it, or a referee appointed by it, from adjudi- cating upon and setting aside as fraudulent and void a bill of sale of decedent's property made in his life which disposes of property claimed to belong to his estate. ^^ The jurisdiction of the surrogate to give to a temporary administrator of the estate of a decedent whose will is in litigation power over the decedent's realty is such that the supreme court, on an application for appointment of a re- ceiver of such realty in an action before the court for its partition, will not make the appointment; but will refer the applicants to the surrogate who granted letters of temporary administration.^^ The 'C. C. P. § 2653. "Bate v. Graham, 11 N. Y. 237 'In re Littmann, 88 Misc. 403 (1854). (1914), or 150 Supp. 607, C. C. P. ^^jiatter of Sehnabel, 136 A. D. § 2653, dictum. 522 (1910), or 121 Supp. 54; aff'd 9 Simpson v. Simpson, 44 A. D. 202 N. T. 134, 95 N. E. 698. 492 (1899), or 60 Siipp. 879. "Weiher v. Simon, 41 Misc. 202, "Sanders v. Soutter, 126 N. Y. 83 Supp. 927 (1903)— old Code § 193, 27 N. E. 263 (1891). 2675 Uke new Code § 2600. 825 NEW YORK ESTATES; AND SURROGATES § ,709 supreme court will not entertain an action simply to distribute a testator's personal property among those entitled, because the law gives his executors custody of such property and the surrogate's court jurisdiction to control them." The supreme court will ordi- narily not entertain an application for payment of a legacy, involving a judicial settlementof the estate and directions as to the payment not only of legacies but of debts.^' The supreme court ordinarily will not entertain an application for compulsory deposit of estate securities." The supreme court, as a court of equity, has authority to permit a comprQmise of claims against a trust estate for its preservation, binding on infants not bom whose interest is the same as that of other infants who were parties to the action.^' § 769. Id.: Court First Acquiring Jurisdiction. — When both the supreme and the surrogate's courts have jurisdiction over the same subject-matter, that one of the two courts which first exercises the jurisdiction concurrent in them both will be allowed to conclude the matter so as to avoid multiplicity of suits and consequent dimi- nution of the estate or fund ; " but the supreme court has discretion to, and generally will decline to exercise its jurisdiction when com- plete relief can as well be had in the surrogate's coiirf,*' although if complete relief cannot be had in the surrogate's court it is the duty of the supreme court to exercise its fuller jurisdiction,*" even though by so doing it take away from the surrogate's court juris- diction of some part of the issue as to which it can give the needed relief.* The rule that whichever of two courts, the supreme or the surrogate's, first exercise jurisdiction over a matter in which their authority is concurrent will be allowed to finish the matter, is illustrated in the following instances. An action in the supreme court for a distributive share is not maintainable when the surro- gate has the jurisdiction necessary in a proceeding pending before it; becausoj if exercised, it would not only deprive the surrogate 1* Strong V. Harris, 84 Hun, 314 or 100 Supp. 495; Garlock v. Van- (1895), or 32 Supp. 349. devort, 128 N. Y. 374, 28 N. E. 599 ** Pratt V. Roman Catholic Orphan (1891); Haughian v. Conlon, 39 Asylum, 20 A. D. 352 (1897), or 46 Misc. 584, 80 Supp. 586 (1903)— ae- Supp. 1035 aff'd 166 N. Y. 593, 59 counting; Matter of Gary, 77 Misc N. E. 1120. 602 (1912), or 138 Supp. 682. " Wood V. Brown, 34 N. Y. 337 " Wager v. Wager, 89 N. Y 161 (1866). (1882); Borrowe, v. Corbin, 31 A. "N. Y. Life Ins. & Tr. Co. v. D. 172, or 52 Supp. 741; aff'd on Conkling, 159 A. D. 337, 144 Supp. opinion below 165 N. Y. 634, 59 N 638 (1913). E. 1119 (1898). " Westerfleld V. Rogers, 174 N. Y. 2" Westerfleld v. Rogers, supra- 230, 66 N. E. 813 (1903) ; Schuehle Sanders v. Soutter, 126 N. Y. 193 V. Reiman, 86 N. Y. 270 (1881); (1891). Matter of Llado, 50 Misc. 227 (1906), * Westerfleld v. Rogers, supra 826 §769 JURISDICTION, of such jurisdiction, but would leave in the surrogate's court the determination of other rnatters relating to the estate and so would result in two distinct adjudications by different courts, as to the disposition of one estate.^ The suprem.e court will keep juris- diction of a suit begun by service of a summons a few days before a petition for an accounting was filed in the surrogate's court, when the papers filed in the supreme court to obtain the facts necessary to frame a complaint show the scope of the action will completely cover any question which could be raised in the proceeding.^ The supreme court will leave in the surrogate's court the determination on an administrator's accounting of his claim that rponey collected by him and returned as part of the estate was his personal property and that persons interested in the estate had given him their in- terests in it.* The supreme court, when asked to construe a will, should not decline on the ground that the will might be construed in the surrogate's court unless at the time of the institution of the equity suit in the supreme court there were already a proceeding pending before the surrogate in which the construction sought might as well have been had.* The supreme court will not permit a proceeding for removal of a perfectly responsible corporate ad- ministrator for past acts to continue in a surrogate's court when begun only after the administrator, who was also a creditor had brought suit in the supreme court against claimants against the estate for an accounting to determine the administrator's liability to the estate; to adjust the administrator's claims on the proceeds of collateral for its claim against the estate.* It seems that the su- preme court should take jurisdiction of an accounting proceeding if the surrogate's court has not already taken it when application is made to the supreme court.'' A petition by an administrator for an accounting by a trustee in the surrogate's court is properly dis- missed when he individually (though not as administrator), all the decedent's heirs and next of kin and the trustee were made par- ties to a prior and pending action in the supreme court for an ac- counting by the trustee; because it was unnecessary to make him party as administrator when all those he represented as such were made parties, and because he could intervene in the action in which the supreme court could completely dispose of the whole matter.' « Flatauer v. Loser, 211 N. Y. i5„s * Ludwig v. Bungart, 48 A. D. 613 104 N. E. 1123 (1914)— old Code (1900), or 63.Supp. 91. §§■2472-3. * Metropolitan Trust Co. V. Stallo, » Matter of Llado, 50 Misc. 227 No. 1, 166 A. D. 639, 152 Supp. 183 (1906), or 100 Supp. 495. . (1915). * Sexton V. Sexton, 64 A. D. 385 '' MeeKs v. Meeks, 34 Misc. 465 (1901), or 72 Supp. 213; affi'd 174 (1901), or 69 Supp. 737. N. T. 510, 66 N. E. 1116. » Matter of Ayrault, 81 Hun, 107 827 NEW YORK ESTATES AND SURROGATES § 769 When the supreme court has entertained jurisdiction of a ward's action to set aside a surrogate's decree on his guardian's accounting because of fraudulent transactions upon which it was based, it can retain jurisdiction of the whole cas6 for the purpose of determining the amount due the ward upon an honest accounting ; as the su- preme court may in any event require a guardian to account to it.® The judgment of the supreme court has at least the same force as the surrogate's decree would have." The statutory provisions re- spectively vesting in the supreme court a trust on the death of a sole surviving trustee and giving the surrogate's court power of appointment of a sucCessor-trustee must' be construed together so as to keep jurisdiction in the surrbgate, once he has acquired it on an application for appointment of a sucbessor, even though appli- cation is made to the supreme court for the same relief. ^^ When the sole executor and trustees of one estate was also co-executor with his wife (who was also residuary legatee) of another estate and joined with her in asserting claims against the estate of which he was sole representative, equity will probe the matter although there be no conspiracy, because the beneficiaries of the estate of which he was sole representative are left without adequate protection ; and will, having taken jurisdiction, continue it through an accounting without relegating the parties to the surrogate's court.*'' A denial by one of two courts having concurrent jurisdiction of a inotion in the proceeding on a pqint not affecting its merits does n6t make the case res adjudicatd in the other court;. because it is not oh the mer- its." ■ ' ■ ■' ■ ' ' ^ ' The due exercise by any surrogate's court over any matter of jurisdiction excludes the subsequent' exercise by any other surro- gate's court of jurisdiction over the same matter or any of its in- cidents, save for specific exceptions under peculiar circumstances.** Therefore, when letters testamentary or of administration have been duly issued from, or a guardian has been duly appointed by, or any other special proceeding has been duly coinmenced in a surrogate's court having jurisdiction, all further proceedings taiken in a surrogate's court with respect to the same estate or matter must be taken in the same court.*' (1894), or 30 Supp. 654; affl'd 146 *2 g^ej^j^ay v. VonBernuth, 82 A N. Y. 389, 42 N. E. 542. D. 596, 81 Supp. 883 (1903). 9 Douglass V. Ferris, 138 N. Y. 192, *» Matter of Spdman v. Terrv. 74 34 Am. St. Rep. 435, 33 N. E. 1041, N. Y. 448 (1878). (1893). ' ** C. C. P. § 2514. 1" Douglass V. Ferrj?, supra. V *' C. ,0. P. § 2514. ** Matter of Brady, 58 Misc. 108 (1908), or 110 Supp. 755— old Code § 2818 like new Code' § 2638. ' 828 § 770 JURISDICTION § 770. Jurisdiction of Surrogates and Their Courts : In General.— ■ The authority of the surrogates' courts is not defined by the Con- stitution; and their jurisdiction and powers must be found in the statutes of the state.^* The New York state i Constitution of 1894 continued the then existing surrogates' courts and gave them and .their surrogates the jurisdiction and powers then possessed by sur- rogates and their courts until the legislature otherwise provided.^'' It is doubtful if the legislature can add unto the surrogates' courts any jurisdiction which they did not have at the time of the adop- tion of the Constitution of 1894 : it probably can only regulate, take away, cut down or limit such jurisdiction.^' The surrogate and his court have no jurisdiction except that which is conferred by stat- ute, together with the incidental powers requisite to exercise the jurisdiction actually granted by statute.^' A surrogate, in or out of court, as the case requires, has power: (a) To issue citations and other process authorized to parties in any matter within the juris- diction of his court; (b) To compel the attendance of a party in a case prescribed by law; (c) To adjourn from time to time a hearing or other proceeding in his court; (d) To adjourn, before proceed- ing further, a hearing of other proceeding when all the persons who are necessary parties have not been notified or cited, and citation or notice has not been waived by appearance or otherwise, and to issue supplemental citation or require the petitioner to give an ad- ditional notice, as may be necessary (and to so adjourn under such circumstaiices is mandatory upon the surrogate) ; (e) To is- sue, under a seal of, the court, a subpoena requiring the attendance of a witness or of a person residing or being in any part of the state for examination as to any matter or subject about which it is neces- sary or proper for the surrogate to inquire in order that he may properly perform any duty imposed upon him by law ; (f ) To issue a subpoena duces tecum, under, the seal of the court, requiring the attendance of a witness or; of a person residing or being in any part of the state and the production of a book or paper material to an inquiry pending in the court; (g) To enjoin, by order, an execu- tor, administrator, testamentary trustee or guardian to whom a citation or other process has been duly issued from his court from acting as such until the further order of the court; (h) To require, by order, an executor, administrator,, testaraentary trustee or guard- ian subject to the jurisdiction of his, court to perform any duty " Matter of Bolton,, 159 N. Y. 129, !» Matter of Martin, 211 N. Y. 328, 53 N. E. 756 (1889). 105 N. E. 546 (1914); Matter of "N. Y. Constitution of 1894, Art. Bolton, 159 N. Y. 129, 53 N. E. 756 VI. sect. 15. (1899); Eiggs v. Crag^, .89 N. Y. " Matter of Bunting, 98 A. D. 122 479 (1882) ; Bevan v. Cooper, 72 N. (1904), or 90 Supp. 786. Y. 317 (]878). ■ 829 NEW YORK ESTATES AND SURROGATES § 770 iiriposed upon him by statute or by the stirrogate's court under the authority of a statute; (i) To open, vacate, modify or set aside or enter as of a former time for fraud, newly discovered evidence, cler- ical error or other sufficient cause, but only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers, a decree or order of his court; (j) To grant a new trial or a new hearing for fraud, newly discovered evi- dence, clerical error or other sufficient cause, but only in a like ease and in the same manner as a court of record and of general jurisdiction exercises the same powers ; (k) To punish any person for a contempt of his court, civil or criminal, in any case in which it is expressly prescribed by law that a court of record may punish a "person for a similar contempt, and in like manner; (1) To com- plete, subject to the provisions of law relating to the disqualification of a judge in certain cases, any unfinished business pending before his predecessor, including proofs, accountings and examinations ; (m) To complete and certify and sign in his own name, adding to his signature the date of so doing, all records or papers left un- completed or unsigned by any of his predecessors; (n) To exem- plify and certify transcripts of all records of his court, or other papers remaining therein; (o) To proceed with respect to any mat- ter not expressly provided for in this paragraph in all matters sub- mitted to the cognizance of his court according to the course and practice of a court having by common law jurisdiction in such mat- ters, except as otherwise prescribed by statute ;.'(p) To exercise such incidental powers as are necessary to carry into effect the powers expressly conferred; (q) To administer oaths, to take siffidavits, to take the proof and acknowledgment of deeds and all other in- struments in writing and to certify them with the same force and effect as if taken and certified by a county judge; and (r) To ad- minister oaths, talce aflfidavits, take testimony, take depositions, and to certify them at any place within the state of New York with the same force and effect as if taken in his county, in any proceeding of which he has jurisdiction.*" Each surrogate must hold, within his county, a court, which has, in addition to the powers conferred upon it, or upon the surrogate, by special provision of law, jurisdic- tion, as follows: (1) To administer justice in all matters relating to the affairs of decedents, and (2) upon the return of any process to try and determine all questions, legal or equitable, arising be- tween (a) any or all of the parties to any proceeding, or (b) be- tween any party and aiiy other person having any claim or interest therein who voluntarily appears in such proceeding, or is brought in by supplemental citation, as to any and all matters necessary to «• C. C. P. § 2490. 830 § 770 JUEISDICTION be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice re- quires; and in the cases and in the manner prescribed by statute (3) To talce the proof of wills; and to admit wills to probate; (4) To take and revoke probate of heirship; (5) To grant and revoke letters testamentary; (6) To grant and revoke letters of adminis- tration; (7) To appoint a successor in place of a person whose let- ters have been revoked; (8) To direct and control the conduct of (a) executors, (b) administrators and (c) testamentary trustees; (9) To settle the accounts of (a) executors, (b) administrators and (c) testamentary trustees; (10) To remove testamentary trustees; (11) To appoint a successor in place of a testamentary trustee; (12) To enforce the payment of debts; (13) To enforce the pay- ment of legacies; (14) To enforce the distribution of the estates of decedents; (15) To enforce the payment or delivery, by (a) executors, (b) administrators and (c) testamentary trustees of money or other property in their possession, belonging to the estate or fund; (16) To direct the disposition of real property and in- terests in real property of decedents, and the disposition of the pro- ceeds thereof; (17) To appoint guardians for infants; (18) To remove guardians for infants; (19) To compel the payment and delivery by guardians of money or other property belonging to their wards; (20) To direct and control the conduct of guardians; (21) To settle the accounts of guardians; (22) To settle the ac- counts of a father, mother or other relative having the rights, pow- ers and duties of a guardian in socage; (23) To compel the delivery and, payment by a father, mother or other relative having the rights, powers and duties of a guardian in socage of money or other property, belonging to the ward; (24) To determine the validity, constructioji or effect of any disposition of property contained in any will proved in his court, whenever (a) a special proceeding is brought for that purpose, or whenever (b) it is necessary to make such determination as to any will in a proceeding pending before him, or (c) whenever any party to a proceeding for the probate of any will, who is interested thereunder, demands such determination in such proceeding.* Once the jurisdiction of a surrogate's court over any matter is shown it may decide every question which occurs in the proceeding,* whether legal or equitable.* The decision of a surrogate's court in a proceeding of which it has jurisdiction, whether correct or not, is held binding in every other court; * but a » C. C. P. § 2510. (1885) ; Matter of U. S. Trust Co. 2 The Chemung Canal Bank v. Jud- 175 N. Y. 304, 67 N. E. 614 (1903). son, 8 N. Y. 254 (1853). * The Chemung Canal Bank v. Jud- ^Hyland v. Baxter, 98 N. Y; 610 son, supra. 831 NEW YORK EiSTATES AND SUEEOGATES § 771 determination by a surrogate's court in a matter of which it has not jurisdiction is null and void.' Not even a direct assent by all the parties interested in any proceeding before a surrogate's court; can confer upon it jurisdiction which it is not given by statute.^ Consent of parties cannot confer jurisdiction to a surrogate when it does not, exist by lawJ The jurisdiction of the surrogate's court does not depend upon the recital in a decree or other determination of the existence or proof of jurisdictional facts, or the taking by a party of any intermediate proceeding required by law to be taken; but upon the actual existence of the jurisdictional facts prescribed by statute.' Therefore, the surrogate's court obtains jurisdiction in every case to make a decree or other determination by the existence of the jurisdictional facts prescribed by statute; and, when a jurisdictional fact actually exists, but the decree or other determination fails to recite its existence,, or any party has failed to take any intermediate proceeding required by law to be taken, the surrogate's court, in its discretion, may allow such a defect to be supplied by amend- ment; and an objection to such a decree based on such a defect is available only upon appeal.® The surrogate's court, being one of limited and special jurisdiction, can assert it only in accordance with statutory provisions, except as to powers properly incidental thereto; and when certain facts are to be proved to it as a basis for its action, a total defect of evidence as to any essential fact will make its action void, while some proof of every such fact may en- able it to proceed.^' . , § 771. Id.: To Complete Business, Certify and Sign Papers/ Take Oaths, etc. — A surrogate, in or out of court, as the case requires, has power to complete, subject to the provisions of law relating to the disqualification of a judge in certain cases, any urifiriiahed busi- ness pending before his predecessor, including propfs, accountings and examinations.^^ A surrogate, in or out of cburt, as the case re- quires, has power to complete and certify and sign in his own name, a,dding to his signature the date of so doing, all records or papers left uncompleted or unsigned by any of his predecessors.'^ A sur- rogate, in or out of court, as the case requires,, has power to exem- plify and certify transcripts of all records of his court, or other papers remaining therein.'* The surrogate may sign orders, de- 5 The Chemung Canal Bank v. Jud- ' C. C. P. § 2512. son, supra. » C. C. P. § 2512. 6 Dudley v. Mayhew, 3 N. Y. 9 " Potter v. Ogden, 136 N. Y. 384, (1849). , 33 N. E. 228 (1893). ; ■? Matter of Sei-es, 73 Misc. 488, '^ C. C. P. § 2490. 133 Supp..406 (1911), to probate '^ C. C. P. § 2490. nonresident's will , ,. . " G; C. P. § 2490, 832 § 772 JURISDICTION crees, letters testamentary, of administration and of guardianship, and approve bonds, wherever he may be at any time.'^* A surrogate,, in or out of court, as the case requires, has power to administer oaths, to take affidavits, to take the proof and acknowl- edgments of deeds and all other instruments in writing and to cer- tify them with the same force and effect as if taken and certified by a county judge." § 772. Id.: Equitable Jurisdiction. — Each surrogate's court has jurisdiction in the cases and manner prescribed by law to try, and determine by such order or decree as justice requires, upon the re- turn of any process, all questions, legal or equitable, as to any and all matters necessary to be determined in order to make a full, equitable and complete determination of the matter, arising be- tween any or all of the parties to any particular proceeding, or be- tween any party and any other person having any claim or interest in the proceeding who voluntarily appears therein or is brought in by supplemental citation.^* Each surrogate's court has jurisdiction in the cases and manner prescribed by law to administer justice in all matters relating to the affairs of decedents.^* In discussing, before the Surrogate's Code the power of the surrogate's court to de- termine whether or not a transfer of personalty made without con- sideration by a decedent during life was fraudulently void as to a judgment creditor, Hatch, J., said in Matter of Bunting, 98 A. D. 122 (1904) : (p. 126) "Assuming, however, that the legislature intended to confer such power and authority upon the surrogate's court as is claimed for it by the petitioner the statute" [Pers. Prop. L., § 7] "would be clearly condemned by the provisions of section 15 of article 6 of the Constitution. So far as applicable this section reads : 'Surrogates and surrogates' courts shall have the ju- risdiction and powers which the surrogates and existing surrogate's courts now possess, until otherwise provided by the legislatures.' We have already seen by the authorities cited that surrogates' courts neither before nor since the adoption of this provision of the Con- stitution possessed general equitable powers, and there exists no no authority in the legislature to confer it upon them. They have such jurisdiction and such only as they possessed at the time of the adoption of the constitution, and may exercise such jurisdiction until otherwise provided by the legislature. The language excludes authority to add to the jurisdiction possessed by such courts. The only power reserved in the legislature is to regulate, take away, cut down or limit the jurisdiction thus conferred; but no authority exists to add to it. If it did the Constitution would not have im- »»» C. C. P. § 2504. « C. C. P. § 2510. 1* C. C. P. § 2490. 16 c, C. P. § .2510. N. Y. E. & S.— 53. 833 NEW YORK ESTATES AND SURROGATES §772 posed any limitation or be a bar to the conferring of the most ample jurisdiction, both legal and equitable, which could be provided by law. Manifestly such is not its construction. It may withhold power, but it cannot grant it beyond the limitation of its exercise existing at the time when the Constitution was adopted. . . ." Van Brunt, P. J., Patterson^ and O'Brien, J. J., concurred; but Laughlin, J., in concurring with the actual decision, said: (p. 127) : "I concur except as to discussion of the power of the legislature to extend jurisdiction, which I think is not essential to the decision; but I am of opinion that the Constitution confers such authority." Speaking of § 2510, C. C. P., which contains the grant of gen- eral equity powers not contained in the Code before the Constitution of 1894, Surrogate Fowler has said : "This is a very broad provision and was intended to be such. But as the new surrogate's law of 1914 was enacted under the old Constitution it is doubted, and I think with much reason, whether the legislature had the power to enlarge the equitable jurisdiction of the surrogates of this state. Section 15, art. 6., Const. 1894; Matter of Bunting, 98 App. Div. 122, 90 N. Yi Supp. 786 (opinion of Hatch, J., concurred in by Justices Van Brunt, Patterson, and O'Brien) . The appeal, it is to be observed, in Matter of Bunting, was dismissed in the court of appeals without opinion, 182 N. Y. 552;, 75 N. E. 1128. Conse- quently this decision still confronts the profession of the law when- ever the new equitable powers of the surrogates are drawn in ques- tion." " The general equitable power of the surrogate to administer jus- tice in all matters relating to the affairs of decedents, etc., must yield to the statutory restrictions upon it or the directions as to it, and when the statute prescribes when and how it shall act, it can- not act otherwise." Under his statutory power to determine all questions, legal or equitable, arising between any and aU of the parties as to any and all Hiatters necessary to be determined in order "In re Kent, 155 Supp. 383 C. C. P. § 2736 did not authorize (1915), or 92 Misc. 113, C. C. P. delivery ira specie on such a consent, § 2510. because the remainderman was not a 1^ Matter of Holzworth, 166 A. D. "legatee, or distributee." The court 150 (1915), or 151 Supp. 1072; aff'd further held that § 2510 gave the 215 N. T. 700, 109 N. E. 1079, C. surrogate no power to exercise his C. P. § 2510. In this case remainder- full equity jurisdiction and decree men of a trust fund of certain stock that the trustee accept such stock in which the trustee was authorized to specie, because the general grant of, hold in kind filed their consent, dur- equity power in such section was ing the hf e of the life tenaht to take limited by the words following it, such stock in specie, but the trustee viz., "and in the cases and in the . filed no such consent and the fife manner prescribed by statute" to do tenant objected. The court held that certain things; and said: "As I un- 834 § 772 JURISDICTION to make a full, equitable and complete disposition of the matter by such order or decree as justice requires, a surrogate may pass upon equitable defenses to releases presented by virtue of which an ac- countant claims to be relieved from the duty of accounting to the beneficiaries of his trust.^' Certainly before Surrogates' Code effect- ive Sept. 1, 1914, the surrogate's court had no jurisdiction to declare a trust and to enforce it by decree, or to try the question of a dece- dent's title to realty by virtue of a tax deed, so far as that ques- tion involves the application of equitable principles.^" Qnsere, if the surrogate's court now has such jurisdiction.^ The statu- tory jurisdiction of a surrogate to administer justice in all matters relating to the affairs of decedents, to try and deter- mine all questions, legal or equitable, arising between any or all of the parties to any proceeding, or between any party and any oth- er person having any claim or interest therein who voluntarily ap- pears or is brought in by supplemental citation, as to any and all matters necessary to be determined in order to make a full, equita- ble and complete disposition of the matter by such order or decree as justice requires, is guarded by provisions which indicate that the questions which the court may determine must be "between parties to the proceeding" or "between any party and any other persons having any claim or interest who voluntarily appears or who i^ brought in by supplemental citation;" as well as by the further- provision that such questions must pertain to matters "necessarily to be determined" in order to make a disposition of "the patter." ^ The "parties to the proceeding" are not those unlawfully impleaded but those only whose interests in the subject matter, whether favor- able or adverse, are such that their presence on the record is either necessary or proper.? The jurisdiction is given to bestow greater powers for the disposition of questions already normally inhering to a proceeding in which there are parties lawfully impleaded. *^ derstand the law of statutory con- statute prescribes when and how it struction, all general phrases in a shall act, it cannot act otherwise than statute must yield to a particular is prescribed." specification contained in the same ^' Matter of Brewster, 92 Misc. statute. As to the subdivisions of 339 (1915), or 156 Supp. 588, C. C. section 2510, just quoted, the eases P. § 2510. and the manner in which the surro- ^Hastrich v. Pileher, 171 A. D. gate may exercise his equitable juris- 470, 157 Supp. 613 (1916). diction are specified particularly. ^ Id. Where there is such a specification, * Matter of Kenny, 92 Misc. 330 it must exercise its jurisdiction in (1915), or 156 Supp. 827, C. C. P. accordance with the specification. Its §§ 2510, 2730. general equitable power must yield * Matter of Kenny, 92 Misc. 330,., to the statutory restrictions upon it supra, or 156 Supp. 827. or directions as to it, and where the * Matter of Kenny, supra. 835 NEW YORK ESTATES AND SURROGATES § 773 ■'The matter" as to which the jurisdiction pertains is the proceed- ing.* So, in an accounting by an executor, a debtor of the estate or a trustee of a voidable trust attempted by the decedent is neither a necessary nor a proper party.® When testimony in a proceeding in a surrogate's court discloses that the real question involved is one of title to personal property as between living partis, an order .^should be entered dismissing the proceeding, as such question is properly adjudicated in anotheir forum.' In an action to enjoin one named as executor in a second will from probating it on the ground that the first will is irrevocable because made in considera- tion of the transfer of real estate to the testator, it is proper to make such person a party defendant individually, because, he has the statutory right to offer the second will for probate, even though he may not intend to accept letters.' § 773. Id.: Common Law and Incidental Jurisdiction. — A surro- gate, in or out of court, as the case requires, has power to proceed with respect to any matter not expressly provided for by statute, in all matters submitted to the cognizance of his court, according to the course and practice of a court having by common law juris- diction in such matters, except as otherwise prescribed by statute.' A surrogate, in or out of court, as the case requires, has power to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred by law upon him and his court. ^^ The testamentary common law, as part of the common law in force in the province of New York, was continued in force by the first Constitutiton of the state.^* It is questionable if a surrogate has pow- er to strike from a propounded codicil alleged scandalous, scurril- ous, improper and non-dispositive matter; and if the power exists it should be exercised only in a grave case.^* On a petition to re- voke an executor's letters the surrogate may strike from an affidavit used on the application objectionable matter which is without bear- ing on the application; but rather than have it removed from the files, he will have it sealed.*' While a court probably has power to order its clerk to deliver papers to a party for destruction, it should exercise the power with the greatest caution and in the most excep- tional cases, e. g., when filed by mistake or containing libelous or scandalous matter, etc., but not when regular records containing no s Matter of Kenny, snpra. » C. C. P. § 2490. 8 Matter of Kenny, supra, bank, in " C. C. P. § 2490. which decedent left bank account in ** Matter of Smart, 84 Misc. 336 own name in trust for another. (1914) , or 145 Supp. 838. ' Est. of Moller, N. Y. L. J., June ^^ Matter of Meyer, 72 Misc. 566 7, 1916 (N. Y. Surr.). (1911), or 131 Supp. 27. ' Cobb V. Hanford, 88 Hun, 21 i' Matter of Magoun, 4l Misc. 352 (1895), or, 34 Supp. 511. 84 Supp. 940 (1903). 836 § 774 JURISDICTION unnecessary aspersions." The surrogate has no jurisdiction to com- pel attorneys to disclose the addresses of legal representatives if no proceeding is pending in his court in which such attorneys appear for such representatives." The surrogate's court cannot compel an attorney described to be such for a representative, but not alleged in the petition to be such in any proceeding pending in the court (and when no proceeding is pending in relation to the dece- dent's estate in which he appears as attorney) to disclose such rep- resentative's address.^* The fact that acknowledgment was made of service of the moving papers by such attorney signing his name immediately above the words "Attorney for — , Administrator" is not an acknowledgment that such attorney is attorney for the rep- resentative on the application at bar.^* An order of substitution of attorneys, and a direction to turn over papers, can only be made by a surrogate's court in a proceeding pending before it." The surro- gate has no jurisdiction to set aside a stipulation between executors and persons interested in an estate by which the latter have acquired rights which they have acted on without objection for years and by which the former have expended large sums of money without competent evidence that the executors have done anything improp- er or been guilty of fraud.^' When the validity of conveyances or releases by a remainderman to one claimed to be the equitable life tenant of a trust fund is not questioned the surrogate may deter- mine their effect on the trust in decreeing a proper distribution of the estate." The surrogate has power to consider an assignment by a devisee for life of rents and profits of real estate in order to deter- mine whether or not on its face it is void : this demands no function of a court of equity.^" A surrogate will deny an application ad- dressed to his discretion by a nonresident executor who has refused to obey the surrogate's order to account and who, by reason of his nonresidence, cannot be reached so as to be held in contempt — at . least until he obeys the surrogate's accounting order.* § 774. Id.: Attacking Jurisdiction. — "When in special proceed- ings in courts or before officers of limited jurisdiction, they are re- quired to ascertain a particular fact, or to appoint persons to act in such proceedings having particular relations to the parties or the subject-matter; such acts, when done, are in the nature of adjudi- " Shecker v. Woolsey, 2 A. D. 52 " Matter of Richardson, 118 A. D. (1896), or 37 Supp. 292. 164, 103 Supp. 22 (1907). "Est. of Wolbarst, N. Y. L. J., "Matter of U. S. Trust Co. 175 May 5, 1916 (N. Y. Co.) N. Y. 304, 67 N. E. 614 (1903). 16 Matter of Schroeder, 93 Misc. ^ojjatter of Garside, 165 A. D. 404, 157 Supp. 42 (1916). 897, 149 Supp. 647 (1914). " Est. of Carson, N. Y. L. J., Oct. ^ Matter of Wade, 38 Mise. 154, 9, 1915, N. Y. Co. 77 Supp. 163 (1902). 837 NEW YOEK ESTATES AND SURROGATES § 774 cations, which, if erroneous, must be corrected by a direct proceed- ing for that purpose, and if not so corrected, the subsequent pro- ceedings which rest upon them are not affected, however erroneous such adjudication may have been." * A decree, order or determi- nation by a surrogate when he had no jurisdiction either of the sub- ject-matter or of the parties, and no right under any circumstances to deal with the matter to which the decree, order or determination relates can be attacked at any time and in any way.* For example, on the trial of an action by an administrator to recover damages in New York for his intestate's death, the surrogate's jurisdiction to grant him letters may be attacked on the grounds that the intestate was a nonresident and left no property in the state, so that the sur- rogate never acquired any jurisdiction to appoint an administrator of his estate.* The jurisdiction of a surrogate's court to make a de- cree may be contested, e. g., the validity' of the appointment of any one as ancillary administrator c. t. a. or executor except the person named in the foreign letters or otherwise entitled to possession of the decedent's property under the law of the latter's domicil or one to whom such foreign representative consents that letters shall issue.* An objection that a party to a proceeding in a surrogate's court was not served and that an appearance for him therein by at- torney was unauthorized, wherefore the judgment was rendered without jurisdiction, cannot be taken collaterally but must be taken by motion in the original action.® The reason is that when an attor- ney of the court appears for a party, his appearance is recognized, and his authority will be presumed, to the extent at least of giving validity to the proceeding.' Neglect by the surrogate to enter in a book debts against an estate adjudged valid by him ; or the taking of a bond in penalty less than double the value of land to be sold; or omission to post notices of sale, are all errors in proceedings before the surrogate after jurisdiction was acquired, and must be corrected on appeal and cannot be taken advantage of in a collateral proceed- ing.' The determination of a surrogate that a decedent died a resi- dent or inhabitant of the county of his jurisdiction, possessed of personal property, leaving a last will probated by the surrogate on which letters testamentary were granted cannot be collaterally at- 2 Porter v. Purdy, 29 N. T. 106 Supp. 738 (1904) ; aff'd 183 N. T (1864). 55, 75 N. E. 1096. 3 Harrison v. Clark, 87 N. Y. 572 * Washbon v. Cope, 144 N. Y 287 (1882)— 0. 359, L. 1870, see C. C. P. 39 N. E. 388 (1895) ; Ferguson v § 2513; Kamp v. Kamp, 59 N. Y. Crawford, 70 N. Y. 253 (1877). 212 (1874) — divorce action. ' Ferguson v. Crawford, supra. * Ziemer v. Crucible Steel Co. 99 ' Sibley v. Waffle, 16 N. Y 180 A. D. 169 (1904), or 90 Supp. 962. (1857). 5 Baldwin v. Rice, 44 Misc. 64, 89 838 § 774 JURISDICTION tacked in an action in the supreme court.' A suiTogate's determina- tion on a proceeding to mortgage real estate of the amount of assets in an administrator's hands is conclusive upon the parties, because the surrogate had jurisdiction to determine the question ; ^'' and so of his adjudication that a person died a resident of his county leav- ing property and a will ; ^* or his judgment admitting a will of per- sonalty to probate.^* The letters of administration issued by a sur- rogate and his decree granting them may be collaterally attacked when allowed on a petition alleging the subject's death on information and belief, when no grounds for the belief or rea- sons therefor were given ; because a surrogate must determine death has happened before he can issue letters and some proof or evidence must be before him to enable him so to determine.^' Ancillary letters issued without the filing by the grantee of the statutory con- sent by the foreign representative may be collaterally attacked be- cause the surrogate had no jurisdiction to issue them.^* The fact that a decedent was not a resident of the county of the surrogate who granted administration of his estate, when this was the sole ground for such grant, may be shown in an action brought by vir- tue of such appointment.^* When a surrogate's determination is collaterally attacked it is not sufficient to show that there is doubt about the jurisdiction ; but it must be made to appear clearly by a fair preponderance of the evidence that no jurisdiction was ac- quired and that the recitals to that effect in the decree are false.^* When a surrogate court's jurisdiction to make a decree or other determination is drawn in question collaterally, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclu- sively established by an allegation of the jurisdictional facts con- tained in a written petition or answer, duly verified, used in the surrogate's court.^'' The fact that jurisdiction of the parties to a pro- ceeding was obtained by a surrpgate's court is presumptively proved by a recital to that effect in the decree made in such proceeding." A surrogate's jurisdiction to grant administration will be presumed although there was no proof of the intestate's death or his widow's 'Platauer v. Loser, 211 N. Y. 15, (1905), or 89 Supp. 738; afl'd 183 104 N. E. 1123 (1914). N. Y. 55, 75 N. E. 1096. i» Graham v. Linden, 50 N. Y. 547 ^^ McCarthy v. Supreme Court of (1872). Foresters, 107 A. D. 185, 94 Supp. " riatauer v. Loser, 211 N. Y. 15, 876 (1905). 104 N. E. 1123 (1914). "Hayes v. Kerr, 19 A. D. 91 '* Vanderpoel v; Van Valkenburgh, (1897), or 45 Supp. 1050 — party 6 N. Y. 190 (1852). served with citation in accounting 1^ Roderigas v. East River Savings proceedings ; place of service mis- Institution, 76 N. Y. 316, 32 Am. takenly stated; some doubt, perhaps, Rep. 309 (1879). thrown on fact of service. 1* Baldwin v. Rice, 100 A. D. 241 " C. C. P. § 2513. 839 NEW YORK ESTATES AND SURROGATES § 775 renunciation when the order of appointment recited that it satis- factorily appeared to the surrogate that the grantee was entitled to letters; and the intestate inhabited the county in which he died and from which letters issued. ^^ So, when the surrogate has deter- mined that notice necessary to be given in order to vest him with jurisdiction has been given, his judgment cannot collaterally be overhauled, because an adjudication by a court or judicial officer in the exercise of rightful functions is final between the parties.*' So, too, a recital that infant parties were duly cited is sufficient, on collateral attack, to sustain a finding of service upon them> in the absence of proof to the contrary.*" § 775. Id.: Preventing Exercise of Jurisdiction. — A writ of pro- hibition by the supreme court is the proper way to prevent a surro- gate from exercising power over matters not within his cognizance or exceeding his jurisdiction.* So, a writ of prohibition will issue to restrain a surrogate from enforcing a decree removing an adminis- trator on an ex parte application and the appointment of a particu- lar person in his stead; * but it will not lie to prevent the progress of a probate proceeding which the surrogate has refused to post- pone on the plea of subscribing witnesses that criminal indictments were pending against them, as the continuance or adjournment lies in the surrogate's discretion, abuse of which can be remedied by appeal only.^ An injunction is the proper method to prevent a surrogate's court from exercising its acknowledged jurisdiction over matters which are more properly determined in another court.* The supreme court will enjoin proceedings in the surrogate's court to remove an administrator begun after the administrator had be- gun suit in the supreme court for an accounting and to determine how much such administrator, which was also a creditor, could keep from proceeds of collateral for its debt, as well as the liability of the estate to claimants in general; because the removal sought in the surrogate's court was for past acts of the administrator as to whose responsibility there was no question.^ Peremptory manda- " Sibley v. Waffle, 16 N. Y. 180 Supp. 556; aff'd 156 N. Y. 689, 50 (1857). N. E. 1121. 1' Sheldon v. Wright, 5 N. Y. 497 * People ex rel. Sprague v. Fitz- (1851) — determination as to publica- gerald, supra. tion of order tinder old procedure for ^ People ex rel. Patrick v. Pitz- sale of realty, C. C. P. § 2513. gerald, 73 A. D. 339 (1902), or 76 '"Mott V. Fort Edwards Water Supp. 865. Works Co. 79 A. D. 179 (1903), or * Schuehle v. Reiman, 86 N. Y. 270 79 Supp. 1100— old Code § 2473, (1881). now in new Code § 2513 — proceeding ^ Metropolitan Trust Co. v. Stallo, to sell realty to pay debts, etc. No. 7, 166 A. D. 639, 152 Supp. 183 * People ex rel. Sprague v. Fitz- (1915). gerald, 15 A. D. 539 (1897), or 44 840 -§ 77(i JURISDICTION mus does not lie against .a surrogate because he judicially requires notice to an administrator before he issues execution against him.* § 776. Id.: General Jurisdiction Over Administrators. — Ques- tions of the jurisdiction of the surrogate or his court are discussed in every case, when possible, in connection with the particular sub- ject to which the question of jurisdiction relates; but it is not possi- ble to cover all questions of jurisdiction in that way, and points re- lating to the general jurisdiction of the surrogate and his court over administrators in their management of the estate are here discussed. Each surrogate has jurisdiction in the cases and manner pre- scribed by law to direct and control the conduct of administrators.'' A surrogate, in or out of court, as the case requires, has power to require, by order, an administrator subject to the jurisdiction of his court, to perform any duty imposed upon him by statute, or by the surrogate's court under the authority of a statute.' A surrogate, in or out of court, as the case requires, has power to enjoin, by order, an administrator to whom a citation or other process has issued duly from his court from acting as such until the further order of the court.® Each surrogate's court has, in addition to the powers conferred upon it or its surrogate by special provision of law, juris- diction to administer justice in all matters relating to the affairs of decedents.^" The surrogate's court has no jurisdiction to determine controversies over property descending directly to heirs or going by will directly to devisees.^* "A surrogate has no jurisdiction to pass upon an issue of title to property between an administrator as an individual and third parties, when neither party alleges that the property in dispute forms part of the estate to be administered, but both insist that the decedent parted with title thereto prior to his death." *^ The surrogate's court has no power to authorize an admin- istrator to grant an extension of a mortgage which constitutes an asset of the intestate's estate.^' The surrogate has jurisdiction of an issue raised by a reply of fraud to affirmative matter (viz., dis- tribution inter sese) set up as defense in an answer to a petition for an accounting.** A surrogate cannot try the question of the alleged fraud in a transfer by decedent while alive of property to another; 8 People ex rel. Saekett v. Wood- "Matter of Finn, 44 Misc. 622 bury, 70 A. D. 416, 75 Supp. 236 (1914), or 90 Supp. 159. (1902). "Est. of Bradford, N. Y. L. J., ' C. C. P. § 2510, subd. 3. Nov. 10, 1915, N. Y. Surr. «C. C. P. § 2490. "Matter of Fox, 166 A. D. 718, 9 C. C. P. § 2490. 132 Supp. 431 (1915), C. C. P. § " C. C. P. § 2510. 2510. "Matter of Van De Walker, 79 Misc. 661 (1913), or .141 Supp. 325 — old Code. 841 NEW YOKK ESTATES AND SURROGATES § 777 because this would involve equitable jurisdiction which a surrogate cannot exercise.*' § 777. Id.: General Jurisdiction Over Executors. — The question of the jurisdiction of the surrogate and the surrogate's court is con- sidered, whenever possible, in connection with the particular sub- ject to which the question of jurisdiction relates; but jurisdictional points which cannot be covered in that way are here considered in general. Each surrogate has jurisdiction in the cases and manner prescribed by law to direct and control the conduct of executors.*' A surrogate, in or out of court, as the case requires, has power to require, by order, an executor subject to the jurisdiction of his court, to perform any duty imposed upon him by statute, or by the surrogate's court under the authority of a statute." A surrogate, in or out of court, as the case requires, has power to enjoin, by order, an executor to whom a citation or other process has duly issued from his court, from acting as such until the further order of the court.** Each surrogate's court has jurisdiction, in the cases and in the manner prescribed by statute to enforce the payment or delivery by executors of money or other property in their possession, belonging to the estate.*' Under his authority to direct and control the conduct, and settle the accounts of executors, and to administer justice in all matters relating to the affairs of deceased persons, the surrogate may decree that executors pay to a decedent's widow the value of decedent's property exempted by statute and set apart by statute to remain in her possession, which the executors had sold without her consent.^" In the exercise of its power to direct and control the conduct of executors the surrogate's court may deter- mine whether, under an antenuptial agreement between the deceased, testate husband and his surviving widow, the former's ex- ecutors should set apart to the latter specific, articles by statute ordi- narily set off to a widow.* A surrogate, in the absence of a judicial determination of an executor's bad faith, cannot make and enforce a decree requiring an executor to apply a bequest to an infant lega- tee, when its, payment was postponed to the latter's majority with discretion in the executor to apply it to the infant's needs.^ A sur- rogate's court has no jurisdiction to decree specific performance of *6 Matter of Bunting, 98 A. D. 122 <"> Sheldon v. Bliss, 8 N. Y. 31 (1904), or. 90 Supp. 786; Matter of (1853). Schnabel, 202 N. Y. 134, 95 N. E. * Matter of Est. of Young v. Hicks 698 (1911). . . 92 N. Y. 235 (1883)— old Code § *8 C. C. P. § 2510, subd. 3. 2472, subds. 3 & 6. *■' C. C. P. § 2490. « Matter of McCnllough or Break- *8 C. C. P. § 2490. iron, 165 A. D. 946, 153 Supp. 1107 *9 C. C. P. § 2510. (1914). 842 §§ 778, 779 JURISDICTION a contract by an executor.' The surrogate may compel an executor guilty of fraud to place the estate's securities in his possession where his co-executors may get at them ; and may intervene and give such executor directions as to the manner in which he shall perform his duties.* § 778. Id.: General Jurisdiction Over Testamentary Trustees. — The question of the jurisdiction of the court over testamentary trustees is treated whenever possible in direct connection with each subject with which a testamentary trustee deals, and only those general matters which cannot be discussed in that manner are here considered. The surrogate's court has jurisdiction to direct' and control the conduct of testamentary trustees.* A surrogate, in or out of court, as the case requires, has power to require, by order, a testamentary trustee subject to the jurisdiction of his court, to perform any duty imposed upon him by statute, or by the surro- gate's court under the authority of a statute.* A surrogate, in or out of court, as the case requires, has power to enjoin by order a testa- mentary trustee to whom a citation has been duly issued from his court (or other process) from acting as such until the further order of the court.'' 'The surrogate's court has jurisdiction to administer justice in all matters relating to the afifairs of decedents.' A surro- gate may ascertain and determine the meaning of a clause creating a trust when necessary in order to give a proper direction as to dis- tribution of the fund.' § 779. Jurisdiction Over Indians. — It has been held that the sur- rogate's court has no jurisdiction over the estates or wills of Indi- ans.'* The private property of the Seneca Indians is not within the jurisdiction of state laws respecting administration; letters of guardianship granted to them and for them by surrogates are void ; and the distribution of Indian property according to their customs passes a good title which our courts will not disturb." An Indian whose tribe has no peacemaker's court or legal tribunal to regulate its own affairs may have the surrogate's court act to grant adminis- tration on a deceased relative's estate.*^ When a wrong to an Indi- » Matter of Bronson, 69 A. D. 487 « C. C. P. § 2510. (1902), or 74 Supp. 1052. 'Matter of Raymond, 73 A. D. 11 *Wood V. Brown, 34 N. Y. 337 (1902), or 76 Supp. 355. (1866)— under 2 R. S. 220, § 1, '» § 2, c. 679, L. 1892; Matter of subds. 3 & 6, holding such power Jack, 52 Misc. 424 (1907), or 102 should be invoked only in aid of Supp. 383 — to probate will, some regular, statutory proceeding "Dole v. Irish, 2 Barb. 639 against executors or administrators. (1848). s C. C. P. § 2510. " Matter of Printup, 121 A. D. « C. C. P. § 2490. 322 (1907), or 106 Supp. 74; Indian ' C. C. P. § 2490. Law, § 5, Tuscarora. 843 NEW YORK ESTATES AND SURROGATES § 779 an cannot be remedied in the peacemaker's court of his tribe the civil courts of the state will not deny him relief if the statutes can be construed to give him entrance to such courts, especially if such relief will not contravene any custom or law of the tribe to which he belongs.^^ The surrogate's court of the county in which is sit- uated an Indian reservation has jurisdiction of the estate of a de- ceased Indian living there to the exclusion of the peacemaksi's court in such reservation by authority of law, and will distribute his estate according to New York law, in defiance of the Tenth Day or Dead Feast at which distribution is made according to Indian custom, and will determine the tribe of a child by his father's in- stead of his mother's, according to Indian custom." The surro- gate's court has jurisdiction, exclusive of any Indian court or cus- tom, to grant administration on the estate of an intestate Tonawanda Indian residing on the state reservation.^* »« Peters v. Tallchief, 121 A. D. "Hatch v. Luckman, 155 A. D. 309 (1907), or 106 Supp. 64— Tusea- 765 (1913), or 140 Supp. 1123; In- rora, Indian Law, § 5. dian Law, §§ 5, 47. *8 Hatch V. Luckman, 64 Misc. 508 (1909), or 118 Supp. 689; a£E'd 140 Supp. 1123. 844 CHAPTEE XI. PROCEEDINGS; PAPERS AND PLEADINGS; PROCESS; PARTIES;. AND PRACTICE. A. Proceedings: 1. In General, § 780. 2. Dismissal Of, § 781.. 3. Stay and Injunction Of, § 782. 4. Postponement Of, § 783. 5. Consolidation Of, § 784. 6. Abatement and Revivor Of, § 785. B. Papers and Pleadings: 1. Contents, Verification, Acknowledgment, Filing, etc., § 786.- 2. Petition: a. Definition, Form and Contents, § 787. b. Verification and Service, § 788. c. Amendment, § 789. 3. Answer: a. Definition, Form and Contents, § 790. b. Verification and Service, § 791. 4. Objection: a. Definition, Form and Contents, § 792. b. Verification and Service, § 793. c. Withdrawal, § 794. 5. Reply, § 795. 6. Demurrer, § 796. C. Process: 1. Kinds, Return and Execution In General, § 797. 2. Surrogates' and Their Clerks' Jurisdiction, § 798. 3. Citation: a. Form and Contents, § 799. b. Return and Amendment, § 800. C. Service: aa. Zm General, § 801. bb. Service In State: aaa. Personal, § 802. bbb. Substituted, § 803. ccc. Bi/ Publication, § 804. ee. Service Out of State, Personally or By Puhlieation, § 805. dd. mo Ma?/ Make, § 806. ee. Time of Making, § 807. 4. Supplemental Citation, § 808. 5. Order To Show Cause, § 809. 6. Subpcena and Subpoena Duces Tecum, § 810. 7. Notices, § 811. 8. Proof of Service of Process, § 812. 845 NEW YORK ESTATES AND SURROGATES D. Parties: 1. Definitions, § 813. 2. Jurisdiction, § 814. 3. Appearance: a. In General, § 815. b. Notice Of, § 816. e. By Special Guardian, § 817. d. By Consul, § 818. e. Compulsory, § 819. f. Efect, § 820. E. Practice: 1. Testimony Out of Court: a. In General, § 821. b. By Surrogate Before Whom Proceeding Pending, § 822. c. By Surrogate of Another County, § 823. d. By Clerk of Another County, § 824. e. Preservation Of, § 825. f. Reference: aa. When Ordered and Who Appointed, § 826. bb. Kinds Of, § 827. cc. Referee's Powers and Duties, § 828. dd. Hearing and Notice, § 829. ee. Referee's Repott and Surrogates Determination There' on, § 830. ff. Termination Of, § 831. gg. Compensation, § 832. g. Commission or Letters Rogatory In General, § 833. h. Commission: aa. When Open and When Closed, § 834. bb. Form Of, § 835. ce. Interrogatories, § 836. dd. Filing Testimony and Commission, § 837. 2. Testimony in Court: a. Jury Trial: aa. When Proper, § 838. bb. Demand, Waiver and Notice, § 839. cc. Where Had and Order Directing, § 840. dd. Drawing the Jurors, § 841. ee. The Trial, § 842. ff. Verdict and Decision, § 843. b. Non-Jury Trial or Hearing, § 844. c. Exceptions, § 845. Z. Decrees and Orders: a. In General, § 846. b. Amendment, § 847. c Opening, Vacating, Modifying, Setting Aside, and Entering as of Former Time: aa. Jurisdiction, § 848. bb. Who May Apply and When, § 849. cc. Grounds, § 850. dd. When Barred, § 851. ee. When Appeal Proper Remedy, § 852. d. Effect, In General, § 853. e. Docketing, § 854. 846 § 780 PROCEEDINGS E, 3 — continued. f . Satisfaction, § 855. g. Enforcement: aa. Service, § 856. bb. Execution and Attachment, § 857. ce. Contempt, § 858. 4. Contempt, § 859. 5. New Trial or Hearing, § 860. 6. Motions, § 861. §. 780. Proceedings, In General. — All matters of which a sur- rogate's court may take cognizance are called special proceedings; and must be commenced by the filing of a petition.* A proceeding .is governed by the practice in force at the time the petition there- in is filed.* If no petition is filed the surrogate's court cannot settle the dispute in the proceeding; but need not, however, dismiss the proceeding, as it may hold it until a petition is filed.' An appli- cation for an examination to discover assets is a special proceeding.* An application by an attorney to vacate a satisfaction of a decree on the ground it was made in disregard of his lien, and coUusively, after notice of such lien by the executor and distributees, is a special proceeding.' It has been held (erroneously, it is believed) that an application to open, vacate, modify or set aside a probate decree and for leave to intervene in the probate proceeding, based on a notice of motion supported by a petition, affidavits and certified copies of documents (no testimony being taken or hearing had) is a special proceeding; and that a decree and decision should be filed, preced- ed by a proposed decree and decision, with notices of settlement re- turnable before the surrogate on the usual notice ; rather than that sach an application is a mere motion on which an order only should be entered.® The general rules of practice are binding upon all the courts in this state and all judges thereof except the court for the trial of impeachment and the court of appeals.' Such rules provide that when neither they nor any statute cover any point, the proceedings shall be according to the customary practice as it for- merly existed in the court of chancery or supreme court in cases not provided for by statute or by the written rules of these courts.* All other portions of the Code of Civil Procedure than the surro- 1 C. C. P. § 2518. 4 Matter of Slingerland, 36 Hun, 2 Matter of Seoville, 88 Misc. 364, 575 (1885), old Code § 2706. 150 Supp. 1070 (1914) ; Matter of ' Matter of Regan, 167 N. Y. 338, LovineUa, 88 Misc. 224, 150 Supp. 60 N. E. 658 (190i). 689 (1914) . 8 Estate of Frank Leslie, N. Y. L. 3 Matter of Joslin, 74 Misc. 332, J., Eeb. 4, 1916 (N. Y. Co.) 134 Supp. 229 (1911)— account filed 'Judiciary Law, § 94. ■without filing of petition, but objec- ' Rule 84. tions to account nevertheless made. 847' NEW YORK ESTATES AND SURROGATES § 781 gates' Code, and the general rules of practice, apply to surrogate'^ courts and to the proceedings therein, so far as they can be applied to the substance and subject matter of a proceeding without regard to its form, except wlien a contrary intent is expressed in or plainly imphed from the context of a provision of the surrogates' Code.' An attorney may be changed by consent of the party and his at- torney; or upon application of the client, upon cause shown, and upon such terms as shall be just, by the order of the court or a judge thereof ; and not otherwise.!'!' ■ _A reference in a surrogate's proceed- ing to hear and determine is subject to the general rules of prac- tice.^' But the right to a physical examination is not available in a proceeding for letters testamentary in the Surrogate's Court.''* § 781. Id.: Dismissal Of. — When a petition for probate has been filed and the parties are before the surrogate the proceeding cannot be arrested or dismissed so long as any person cited before the sur-r rogate supports the will ; because the proceeding is on behalf of all interested to prove the will, whp can themselves take steps to prove it or contest it.^* Probably the surrogate would have to dismiss a probate proceeding if all parties cited, being of full age, should ask such dismissal, no one appearing in support of the will; or if all such parties should formally admit that the will was not legally executed or that the testator was incompetent." The surrogate ha& power on motion to dismiss a proceeding for revocation of probate of a will on the ground that the person instituting the proceeding had wilfully j.-efrained from serving citations on persons before the return day.'* As an executor named in a later will must be cited as such in proceedings to probate a prior will, he cannot be per- mitted to withdraw or discontinue proceedings he has begun for jjrobate of such later will ; but the proper practice is to try both wills together.'*' On the return of a citation issued on a petition praying revoca- tion of letters or removal of a trustee the surrogate has discretion to dismiss the proceedings upon such terms as justice requires.'* If it appears in a proceeding to compel payment of funersd ex- 9 C. C. P. § 2770. "Matter of Will of Lasak, siipra. 1" General Rules of Practice, No. '* Matter of Friedell, 20 A. D. 382 10. (1897), or 46 Supp. 787; old Code "Matter of Leffingwell, 30 Hun, § 2481, subd. 11. 528 (1883). '*'In re Potter's WiU, 155 Supp. ""Matter of Leiand, N. T. L. J., (A. D.) 939 (1915), C. C. P. § 2610 j June 8 and July, 7, 1916 (N. Y. aff'g on opinion of court below — see Surr.), C. C. P. §§ 2770, 873. . 154 Supp. 1140. « Matter of WiU of Lasak, 131 N. « C. C. P. § 2571. Y. 624, 30 K. E. 112 (1912) ; Her- man V. Hill, 2 Hun, 409 (1874). 848 § 782 PROCEEDINGS penses that no money has come into the executor's or administra- tx)r's hands the proceeding must be dismissed without costs and without prejudice to further applications showing that since such dismissal the executor or administrator has received money belong- ing to the estate.'* On the return of a citation issued on a petition to compel an ex- ecutor or administrator to pay a creditor's claim, a specific bequest, legacy or other pecuniary provision under a will, or a distributive share of an estate, the surrogate may dismiss the petition.^'' § 782. Id. : Stay and Injunction Of. — A stay for proceedings in a surrogate's court must be sought in that court: but an injunction may be had, on proper facts, from the supreme to the surrogate's court. ^' The supreme court will leave to his surrogate's court's ample remedy one seeking to determine solely the question wheth- er a trustee had a right to deduct from income an amount suffi- cient to pay himself back for overpayments claimed by him to have been made by mistake to a beneficiary.'^ When a temporary ad- ministrator executes a receipt as such to a transferee of the member- ship of his decedent in the New York Exchange, reciting a suffi- cient consideration which was never received, and is superseded by the appointment of an executor, his accounting in which it is sought to surcharge him with the price of such seat should be stayed pending an action by the receiver in bankruptcy of such transferee against the stock exchange, in which he has been inter- pleaided, to recover the proceeds of sale of such seat, as the title there- to will be determined in sUch action.^" A surrogate has no power to stay the execution of a decree from which an appeal has been taken.' The supreme court will gxant an injunction restraining a person from petitioning the surrogate's court for revocation of letters is- sued to such person when the ground of the petition is that the petitioner is the decedent's widow and was not cited in th© proceed- ing in which such letters were granted, if those appointed (whose letters she seeks to revoke) were sued by her for services and settled the suit on her solemn asseveration in writing that she was not the decedent's lawful wife.* A perfected appeal stays all proceedings to enforce the decree or order appealed from save that the surrogate or surrogate's court from whose or which's determination the appeal is taken may pro- 's C. C. P. § 2686. ' Est. of Hatch, N. Y. L. J., Sept. " C. C. P. § 2687. 19, 1914 (N. Y. Surr.). '* Rutherford v. Myers, 50 A. D. * Pettigrew v. Foshay, 12 Hun, 483 298 (1900), or 63 Supp. 939. (1878). '^ Rutherford v. Myers, supra. 20 Matter of Grant, 132 A. D. 739, 116 Supp. 767, 1152 (1909). N. Y. E. & S.— 54. 849 NEW YORK ESTATES AND SURROGATES § 782 ceed in any matter included in the special proceeding and not af- fected by the decree or order appealed from or not embraced within the appeal; ' except as follows; (1) An appeal from a decree revok- ing letters testamentary, of administration or of guardianship; or from a decree or order suspending an executor, administrator or guardian, or removing or suspending a testamentary trustee, or appointing a temporary administrator, or an appraiser of personal property, does not stay the execution of the decree or order appealed from.* (2) An appeal from a decree of a surrogate granting let- ters testamentary or of administration, or admitting a will to pro- bate; or from an order or judgment of the appellate division of the supreme court affirming a decree of the surrogate admitting a will to probate, or granting letters testamentary or of administration does not stay the issuing of letters when the preservation of the estate, in the opinion of the surrogate manifested by an order; requires that the letters should issue.* (3) An appeal from a de- cree or order directing the commitment of an executor, adminis- trator, testamentary trustee, guardian, other person appointed by the surrogate's court, or an attorney or counsel employed therein, for disobedience to a direction of the surrogate's court or for neg- lect of duty; or directing the commitment of a person refusing to obey a subpoena or to testify when required according to law : does not stay the execution of the decree or order appealed from unless the appellant gives an undertaking with at least two sureties, in a sum therein specified, to the effect that if the decree or. order ap- pealed from, or any part thereof, is affirmed, or the appeal is dis- missed, the appellant will, within twenty days after the affirmance or dismissal, surrender himself in obedience to the decree or order, to the custody of the sheriff of the county wherein he was directed to be committed.* (4) A notice of appeal by an executor, admin- istrator, testamentary trustee or guardian in every case except when his letters have been revoked or he has been removed, or by any other person appointed by the surrogate's court, from a decree di- recting him to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property ; or by an executor or administrator from an order granting leave to issue execution against him; does not stay the execution of the decree appealed from unless the appellant gives an undertaking with at least two sureties, in a sum therein specified, to the effect that if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages which may be awarded against him upon the appieal, and will pay the sum so directed to 8 C. C. P. §§ 2557 and 1310. » C. C. P. § 2557. 4 C. C. P. § 2557. « C. C. P. §§ 2557 and 2761. 850 § 783 PROCEEDINGS be paid or collected, or, as the case requires, will deposit or distribute the money, or deliver the property, so directed to be deposited, dis- tributed, or delivered, or the part thereof as to which the decree or order is affirmed.'' The statutory provision that proceedings are stayed till payment of costs of a motion is applicable to a proceeding in a surrogate's court with regard to an order by the supreme court ; so as to give the surrogate power to make such disposition of a motion before him (hke the one formerly made in the supreme court on which costs remain unpaid by the motioner) as he sees fit.' § 783. Id.: Postponement Of. — A surrogate, in or out of court, as the case requires, has power to adjourn from time to time a hearing or other proceeding in his court.' A surrogate must ad- journ before proceeding further a hearing or other proceeding when all the persons who are necessary parties have not been noti- fied or cited, and citation or notice has not been waived by appear- ance or otherwise, and must issue supplemental citation or require the petitioner to give additional notice, as may be necessary.^' The clerk and deputy clerk of a surrogate's court may severally exercise, concurrently with the surrogate, the power to adjourn to a definite time, not exceeding thirty days, any matter, when the surrogate is absent from his office or unable, by reason of other engagements, to attend to it.*^ A surrogate is guilty of no abuse of discretion in refusing to postpone the closing of a probate trial until an insane witness could be produced when it would certainly be months before he could, if ever, testify.^* No adjournment to obtain witnesses not shown to be material, to procure whose attendance no steps had been taken, will be allowed after a claimant has proceeded to in- troduce witnesses to support his claim.^' After making an order for mortgage, sale or lease of a decedent's real property, the surro- gate must adjourn the judicial settlement of the representative's account to await the proceedings taken under the order. ^* Rules of various surrogate's courts provide for adjournments of proceed- ings by written stipulation duly filed," or on failure to appear on the return of process.^' When an appeal has been taken from a Supreme Court judgment declaring void a will (and its probate by the Surrogate's Court), and a prior will has been offered to the 'C. C. P. § 2760. 312 (1905), or 96 Supp. 866; aff'd 'Matter of McTevey, 93 Misc. 384 185 N Y. 559, 77 N. E. 1183. (1916), C. C. P. § 779. V Lfl mILT" ^^ -^twerp, 6 N. 3C.C.P.§2490. "cip.'-2707 10 C. C. P. § 2490. 15 See e. g.,' Rule 8, Queens. "C. C. P. § 2502, subd. 4. "See e. g., these Rules: HerH- 12 Matter of Burbank, 104 A. D. mar 2 : Cattaraugus, 9. 851 NEW YORK ESTATES AND SUBROGATES § 784 Surrogate for probate, or administration as in intestacy has been asked of him, he should suspend proceedings until the determina- tion of the appeal, meanwhile appointing a temporary administra- tor.^^" An adjournment of a probate proceeding lies in the discretion of the Surrogate to grant or refuse,' subject only to review for abuse of the exercise of such discretion. ^'^ The pendency of a criminal proceeding against the proponent of, or a witness to, the will, does not change this rule ; ^*° so that a claim of privilege from examina- tion in the probate proceedings by the witnesses to the will does not prevent the Surrogate from refusing to postpone the proceed- ings until the indictments against them are tried out.^®* When two petitions for probate of different "alleged wills of the same decedent are presented, the one to one Surrogate's Court and the other to another, it is proper for the Surrogate to whom the later petition is presented to adjourn the proceeding till the other Sur- rogate can determine if he has jurisdiction by reason of the decedent's residence in his county.^*' § 784. Id. : Consolidation Of. — Two or more proceedings pending in a surrogate's court and involving matters which are the same either in whole or in part may be consolidated by the surrogate in his discretion at any time upon such terms as appear to him to be equitable and just; but without prejudice to his power to make any subsequent order or decree in either or any of the consolidated pro- ceedings.^'' If a petition is presented by an executor, administra- tor, guardian or testamentary trustee for judicial settlement of his account at or before the return of a citation to him, on petition of an interested party, to show cause why he should not file his ac- count, the two proceedings (viz.,. by the representative for his volun- tary accounting and by an interested party for the representative's compulsory accounting) must be consolidated." The way for an executor to avoid two trials of the same questions as to his account when a legatee seeks his compulsory accounting, and the way for the executor also to bind others than the legatee, is to petition for a voluntary accounting and so to have consolidated the compulsory and voluntary accountings." An order consolidating a voluntary and a compulsory proceeding for an accounting is properly made 18" Matter of Cavanaugh, 72 Misc. "<= Matter of Buckley, 41 Hun, 106 584 (1911). (1886). !«" Matter of Kiee, 81 A. D. 223 " C. C. P. § 2535. (1903), 81 Supp. 68; aff'd 176 N. Y. " C. C. P. § 2728. 570. "Matter of Rainsforth, 37 Mise. "old. 660 (1902), or 76 Supp. 314; old 161 People ex rel. Patrick v. Fitz- Code §§ 2727, 2728. gerald, 73 A. D. 339 (1902), 76 Supp. 865. 852 § 785 PROCEEDINGS though the petition for the voluntary proceeding was not filed till after the return of the citation in the compulsory proceeding, if the parties to the compulsory proceeding stipulated for its adjourn- ment to a date subsequent to that on which the voluntary proceeding was begun; because if such stipulation did not legally adjourn the compulsory proceeding it at least estopped the parties from objecting to the court's decision in accept- ing their agreement.^" A motion to consolidate contested pro- ceedings for the probate of two testamentary scripts is addressed to the surrogate's discretion;^ and (in New York county) to the discretion of the surrogate who presides at the trial term.^ An action to establish a debt against a testator's estate and to have his realty sold to pay it and an action, based on a will, seeking parti- tion, cannot be joined.' A surrogate may of his own motion con- solidate a proceeding by one administrator for an accounting with an accounting proceeding later begun by his coadministrator.* On application of the administrator c. t. a. oi & testator whose executor has died, a proceeding by him for settlement of his accounts as ad- ministrator c. t. a. may be consolidated with a proceeding sought of his accounts as such administrator at the compulsion of the ex- ecutor of the deceased executor.* § 785. Id.: Abatement and Revivor Of. — ^When a party to a pro- ceeding pending before the surrogate dies the surrogate is not di- vested of jurisdiction ; and if the survivors go on before him with- out objection they are bound by the determination made, whatever effect the omission to_ bring in the deceased party's heirs or repre- sentatives may have upon their rights.* A special proceeding pend- ing in the supreme court cannot be revived as of right in the name of the representatives of one dying during its pendency.'' A sur- rogate cannot of his own motion and without notice decree that a proceeding for a compulsory accounting has abated by the death 2" Matter of Mulry, 31 Misc. 78, * Matter of Martin, 80 Misc. 17 64 Supp. 576 (1900), original cita- (1913), or 141 Supp. 784. tion in compulsory accounting re- ^Matter of Martin, supra, turnable Oct. 31, 1899 ; adjourned by * Letson v. Evans, 33 Misc. 437, court's oral direction on parties' ap- 68 Supp. 421 (1900), C; C.P. § 484, pearance to Dec. 15, 1899, though no subd. 9. order entered; stipulated in writing * Matter of Smith, 40 Misc. 331 by attorneys on Dec. 14 that time (1903), or 81 Supp. 1035. to file account extended to Dec. 22 ® Matter of Shipman, 82 Hun, 108 and that "time to enter the order re- (1894), or 31 Supp. 571. quiring the executors to file their * Brick v. Brick, 66 N. Y. 144 accounts be extended to Dec. 23, if (1876). the accounts are not filed on . . . '' Matter of Palmer, 115 N. Y. 493, Dec. 22;" on Dec. 18 voluntary ac- 22 N. E. 221 (1889)— C. C. P. §§ counts filed. 755, 757 apply to actions. 853 NEW YORK ESTATES AND SURROGATES § 786 of the administrator.* A probate proceeding does not abate because of the death of the contestant, the executor or any of the next of kin ; and a decree entered after the death of one of the next of kin and heirs, whose personal representative voluntarily submitted to the court's jurisdiction, binds.' A proceeding to remove testamen- tary surviving trustees abates on the petitioner's death even though an opinion shall have been rendered in writing denying the peti. tion, and certain proposed findings shall have been marked "al- lowed" or "disallowed" and a proposed decree shall have been sub- mitted ; so that the decree cannot be settled and signed and entered nunc pro tunc as of the date of the decision, as the written opinion, mairks of findings and conclusions do not constitute a legal deter- mination before the petitioner's death.^" § 786. Papers and Pleadings: Contents, Verification, Acknowl- edgment, Filing, etc. — A question of pleading is to be determined by the Code provision in force when the proceeding comes on for determination — not by the provision in force when the pleading was drawn.^^ All petitions, answers and objections must contain a plain and concise statement of the facts constituting the claim, objection or defense, and a demand for the decree, order, or other relief, to which the party supposes himself to be entitled ; and must be duly verified.^* The surrogate may require that a copy thereof be served upon any person interested in such manner as he may direct.*' A party who fails to comply with such requirement, may be treated as a party in default.** When a pleading is verified, each subsequent pleading must also be verified. *° But the verifica- tion may be omitted, in a case in which it is not otherwise specially prescribed by law, when the party pleading would be privileged from testifying as a witness concerning an allegation or denial con- tained in the pleading.** A pleading cannot be used in a criminal prosecution against the party as proof of a fact admitted or al- leged therein.*'' The allegations or denials in a verified pleading must, in form, be stated to be made by the party pleading.** Un- less they are therein stated to be made upon the infonnation and « Matter of Armstrong, 72 A. D. *" Est. of Snyder, N. T. L. J., Jan. 286 (1902), or 76 Supp. 37;— old 27, 1915 (N. Y. Surr.). Code. See Matter of Sejilesinger, 36 ** Sibley v. Waffle, 16 N. Y. 180 A. D. 177 (1899), or 55 Supp. 514, (1857). for discussion of abatement of pro- ,, 2" 9,' E" I ^^^^- ceeding settling executors' accounts ^ ^ p p' 2 pKiq and discharging them. „ c. C. P. §§ 2520; 523. " Est. o± Hermann, 91 Misc. 464 le ^ C P §§ 2520 • 523 (1915), or 154 Supp. 957; aff'd 157 n c! C. p'. §§ 2520 ^ 523" Supp. 1128. *»C. C. P. §§ 2520; 524. 854 § 786 PROCEEDINGS belief of the party, they must be regarded for all purposes, includ- ing a criminal prosecution, as having been made upon the knowl- edge of the person verifying the pleading." An allegation that the party has not sxifl&cient knowledge or information to form a be- lief with respect to a matter must, for the same purposes, be regard- ed as an allegation that the person verifying the pleading has not such knowledge or information."" The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows: (1) When the party is a domestic corporation, the verification must be made by an officer thereof; (2) When the people of the state are, or a public officer, in their behalf, is the party, the verification may be made by any person acquainted with the facts; (3) By the agent of or the attorney for the party (a) When the party is a foreign corporation, (b) when the party is not within the county where the attorney resides, or, if the latter is not a resident of the state, the county where he has his office, and capable of making the affidavit, (c) if there are two or more parties united in interest and pleading to- gether, when neither of them, acquainted with the facts, is within that county and capable of making the affidavit, (d) when the pro- ceeding or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney, or (e) when all the material allegations of the plead- ings are within the personal knowledge of the agent or the at- torney.'" The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true.'"* When it is made by a person other than the party, he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge, and the reason why it is not made by the party. ^ A paper or pleading required by law to be "acknowledged, veri- fied or proved, and duly certified" must be acknowledged or proved and certified in the Same way as must a deed to entitle such deed to record; and this way is told in the note' which quotes the Eeal "C. C. P. §§ 2520; 524. edgment can be made only by the ^^^ C. C. P. §§ 2520 ; 524. person who executed the conveyance, 'o C. C. P. §§ 2520; 525. and such proof can be made only by '"* C. C. p. §§ 2520; 526. some other person, who was a wit- ^ C. C. P. §§ 2520 ; 526. ness of its execution, and at the same ' Real Prop. L., § 292. By Whom time subscribed his name to the eon- Conveyance Must Be Acknowledged veyance as a witness. or Proved. Except as otherwise pro- Id. § 298. Acknowledgments and vided by this article, such acknowl- Proofs Within the State. The ao- 855 NEW YOKK ESTATES AND SUBROGATES :§ 786 Property law as to these points: § 292, By Whom Conveyance Must Be Acknowledged or Proved; § 298, Acknpwledgments and Proofs knowledgment or proof of a convey- party or parties executing such con- ance of real property within the veyance shall he or reside in Porto state may be made at any place with- Rico, the Philippine Islands, Cuba, in the state, before a justice of the or in any other place over which supreme court; or within the dis- the United States of America at the trict wherein such officer is author- time has or exercises sovereignty, ized to perform official duties, before control, or a protectorate, the same a judge, clerk, deputy clerk, or spe- may be acknowledged or proved be- cial deputy clerk of a court, a notary fore: (1) A judge or clerk of a public, or the mayor or recorder of court of record thereof, acting within a city, a justice of the peace, surro- his jurisdiction; (2) a mayor or 525. ^ Matter of Fox, 166 A. D. 718, 8 C. C. P. § 2520; 526. 152 Supp. 431 (1915)— petition' for ' C. C. p. § 2520 ; 526. accounting by trustee ; answer alleged 1" C. C. P. § 2519. ' distribution inter^ sese by- beneficia- ^^ Matter of Smyk, -^ Misc. — ries ; reply set up fraud. ' ■ (1916), N. Y. L. J. :Peb.:i4, 1916, "Hatter of Kelly v. Lamggvin, 153 Bronx Surr. C. C. P. § 2546, peti- A; D.i322j 137 Supp. 1099 (1912). tion for administration. " C. C. P. §§ 2522 and 2738. 869 NEW YORK ESTATES AND; • SURROGATES § 798: liim and in the enforcement of his i orders arid deprees.*^ Every process or mandate of a surrogate's court must be made' returnable before the stiBrog&te's court from which it is issued, except when it is otherwise specially prescribed by. law ; '* and may , be served. or, executed in any county of the state.'' A ! warrant, .of attachment must be, directed to the. sheriff of the, county of -the surrogate who issues it." The sheriff i may execute it; in any county of the state,;; and must convey the person arrested, to the place where the w,ar- rant is returnable. '* A citation cannot be made returnable; more than four months from its date.'*. Process issuable in the case of public administrators is discuased.in the, note.**" § 798. Id. : Surrogates' and .Their Clerks' Jurisdiction. — A surro- gate, in or out of court, as the case requires, has power to compel the attendance of a party in a case prescribed by law.' A surro- gate, in or out of courtj as the: case requires, has power to issue cita- tions to parties in any matter within, the jurisdictipn^of his court.^ A surrogate, in or out,o;f court, as the case requires, has power to is- sue supplernental citation or requi^re the petitioner .to giye an ad- ditional notice, as may be necessary, in a hearing -or oth^r proceed- ing when all the persons ytho are necessary parties have not been notified or cited, and a citation or notice has not been waived by appearance or otherwise.' A siirrogate, in or out of court, as the case requires, has power to issue process other than citation to parties in any matter within the jurisdiction of his court.* A surrogate, in or out of court, as the case requires, has power to issue, under the seal of his court, a subpoena requiring the attendance of a witness or of a person, residing or being in any part of the state, for ex- amination as to any matter or subject about which it is necessary or proper for the siirrogate to inquire iu order that he may proper- ly perform any duty imposed upon him by law.* A surrogate, in or out of court, as the case requires, has power to issue a subpoena duces tecum under the seal of his court requiring the attendance of a witness or of a ^ person, residing or being in any part of the state and the production of a book or paper material to an inquiry pend- ing in his court.' The: clerk or deputy clerk of the surrogate's court may severally exercise,' concurrently with the surrogate, the power to issue any citatioii> subpoena, or other mandate to which i« C. C. P. § 2522. 1 C. C. P. § 2490. " C. C. P. § 2522. « C. C. P. § 2490, ", C. C. P. § 2522. 8 C. C. P. § 2490.' " C. C. P. § 2522.-, , 4 C. C. P. § 2490.: • " . " C. C. P. § 2523. s C. C. P. § 2490/ 80N. Y. Co. "Public Administra- « C. C. P. §2490.; • tors" Law, §§ 7, 8, 9 and 19 (L. 1,898, c. 230, §§ 7,. 8, 9, and 19). i 870 § '790 ' ' PROCEEDINGS' a party is entitled as of course, either unconditionally or on the filing of any paper; and may sign, as clerk of the court or as deputy elerk of the coutt, as the case may be, arid affix the seal of the court to any mandate issued from the court." When certain facts are to be proved to the surrogate's court as ground for issuing its process, if there be a total defect of evidence astoainy essential fact, the process is void ; but when the proof has a legal tendency to make out a proper case for issuing process, then the process is valid until set aside by a direct proceeding for that purpose;* § 799. Id.: Citation: Form and Contents. — A citation must sub- stantially set forth: (1) The name of the petitioner; (2) The resi- dence of the petitioner; (3) The name of the person to whose estate or fund the proceeding relates (and, in a proper case, such person's residence) ; (4) The names of all the persons to be cited who have not (a) waived issue and service of the citation, or (b) appeared, so far as they can be ascertained; (5) The time (not more than four months after its date) when the citation is returnable; (6) The place where the citation is returnable; (7) The object of the pro- ceeding in regard to which the persons cited arei Required to show cause; (8) The date when the citation issues; (9) The attest of the citation in the name of the surrogate and by the seal of his court.' In addition to those matters which the citation must in all cases set forthj it must substantially set forth in the following peculiar and specified cases the matters required in each of such cases: First: When the names of some persons to be cited who comprise a class are unknown, there shall be set forth substantially in the ci- tation : (a) The names of those persons of the class who are known ; (b) a general description of all other persons belonging to the class other than those whose names are known, showing (1) their con- nection with the decedent and (2) their interest in the property or matter in question; (c) If the petitioner is ignorant of the name of a person to be cited, the petitioner may designate that person in the citation by a fictitious name, or by so much of his name as is known, adding a description identifying the person intended; Secondly: When the persons to be cited are unknown, there shall be set forth substantially in the citation: (a) A general description of such persons, showing (1) their connection with the decedent, and (2) their interest in the property or matter in question; (b) If the petitioner is ignorant of the name of a person to be cited, he may designate that persofi in the citation by a fictitious name, or by so much of his name as is known, adding a description identifying » C. C. P. § 2502, subd. 2. 9 0. C. P. § 2523. •Staples V. Fairchild, 3 N. T. 41 (1849). 871 NEW YORK ESTATES AND SURROGATES §§ 800, 801 the person intended.^" Thirdly: If it appeal's in any- case either that there is no heir-at-law or next of kin, as the case may be, or that it is not known whether or not there be such, or all of the parties interested are nonresident aliens, there shall be set forth in the citation the name of the attorney-general of the state' of New York as one to whom the citation is issued." § 800i Id.: Citation: Return and Amendment.— A citation must be made returnable before the surrogate's court from which it is issued, except when other provision is expressly prescribed by law.^^ A citation cannot he/ made returnable more than four months from its date.^' No order can be entered amending an original citation and order of publication by changing'the name of one of the. parties, after a copy of the citation has been served and the publication has been started.^* ■ § 801. Id.: Citation: Service: In General. — Service of citation is provided for in four ways: (1) Personal service within the state of New York; (2);Substituted service within the ! state of New York; (3) Service by publication within the state of New Ydrk,; (4) Serv- ice personally or by publication without the state of New York.**. A citation may, be served in any county of the state of New York.*^ When the' time in which to begin any proceeding in a surrogate's court is limited, a. citation (or order to show cause) on the petition commencing the proceeding must be issued and served, within Sixty days of the filing of such petition, upon the adverse party^ or upon one of two or more adverse parties who are jointly hableor other- wise united, in- interest; or the first publicatipn of the citation, must be made within the same tinae pursuant to an order of publication,*'' Service of a copy, of si citation on persons not; named in it gives the court no jurisdiction of them." Service of a citation, on persons naraed in it but whose Christian names were not given can be made good iby .aimend.ihetitt*' Service of ;a citation on personal rep^ resentatives of persons named in it after the death of' the latter, with- out procuring a new , qitatioh, gives :the court no jurisdiction of the personal representatives.^" On 'death of a legatee before the ;ac- counting of the executor of tiig testator, service of the citation on his personal, representatives as the persons in, .whom legal title to his legacy vested , ordinarily suffices; b;ut whei}; such personal rep- resentatives of the, deceased legatee are also the execu-torg of the tes- 1" C. C. P. § 2524. *6C. C. P. §,2522. " C. C. P. § 2524. " C. C. P. § ^518. « C. C. P. ^2522. "Matter of Geor^l, 35 Misc. 685, "C. C. P. § 2523. 72 Supp. 431 (1901). 1* Est. of Schoerteman, N. T. L. J. " Matter of Georgi, supra. Mch. 5, 1915 (N. Y. Surr.). ""Matter of Georgi, supra. 15 C. C. P. § 2525 et seq. 872 ■§802 PROCEEDINGS ' '■ ' ' tator, the legatees or next of kiii of the' deceased legatee must them- selves be brought into the aeconnting proceeding.^ Whenever a paper is directed to be deposited in the ' "post-office,"' such deposit may be made in any post-office or letter-box maintained and ex- clusively controlled by the United States' Government.^* § 802. Id.: Personal Service in; State.— ^ (1) Personar service is made differently as the person' to be served falls within' one or an- •other of the following six (6) -groups: (a) Adults'and infants four- teen (14) or O'ver ' fourteen (14) years of age; (b) Infants under fburteeti (14) years of age; (c) Incompietents ; (d) ' Domestic tot- porations; (e) Foreign corporations; and (f) Public officers. (a) Personal service of citation within the state upon either an adult person or an infant of the age of fourteen (14) years or up- wards must be made by delivering a copy of the citation to the adult or infant, as the case may be.^ When a persoii cited or to be cited is an infant the surrogate, in his discretion, with or without an application therefor and in the interest of, such infant, may make an order requiring that a copy' of the citation be delivered, in behalf of the infant, to a person designated in the order ; and that service ■of the citation shall not be- deeined complete until such delivery.' (b) Personal service of citation within the state upon an, infant under the age of fourteen (14) years must be made by delivering ■one copy of the citation to the infant in person and another copy to the father, mother or guardian of the infant; or to the person having the care and control of the infant, the person with whom the infant resides, or the person, in whpse service th^ infant is em- ployed, if there is either no father, mother or gufirdian of the in- fant within the state,* or the infant does not reside with his or her parent. When a person cited or to be cited is an infant thei surrogate, in his discretion, with or without an application therefor and in the interest of such infant, may make an, order requiring that a copy of the citation be delivered, in behalf of the infant, to a person designated in the order ; and that service of the citation shall not be ■deemed complete until such d^ivery.* Service of citation on a person [designated to be served on behalf of an infant is ,merely a service in addition to service On the infant, and does not replace the latter kind of service ; so , that a general guardian's account cannot be judicially settled when the former 1 Fisher v. Banta, 66 : N.; T.' 468 » C. C. P. § 2530. ' (1876). . ■' ■ 4C. G. P. §'2525. ■ 1" C. G; P. § 2768. ; , « C. C.'P- § 2530^' J ' 2 C. G. P. §§ 2525 & 431. 873 NEW YORK ESTATES ANP SURROGATES § 802 kind of service alone is proven.* The appointment of a guardian ad litem for an infant will not. cure failure to serve the infant with citation in the manner prescribed by statute, e. g., service by simply leaving a copy with his mother.'' (c) Personal spryice of citation within the state upon a person judicially declared to be incompetent to manage his or her affairs by reason of lunacy; idiocy, or habitual drunkenness, must be made by delivering one copy of (the citation to the incompetent in person, and another copy to the committee appointed for such person;* When a surrogate, in his opinion, , has reasonable grounds to be- lieve that a person cited, or to, be cited, is an habitual drunkard, or for any cause, is mentally incapable adequately to protect his or her rights, although not judicially declared to be incompetent to man- age his or her affairs,' thei surrogate, in his discretion, with or with- out an application therefor and in the interest of such person, may make an order requiring that a copy of the citation be. delivered, in behalf of th^t, person ,to a person de,signated, in the, order; and, that service of the citation shall, not be deemed complete until such de- livery.' , I , (d) Personal service , pf, citajtion yyithin the state upon any do- mestic corooratioh, except a, municipal corporation, must be made by delivenng a copy of the citation to one of the following persons: The president or other heact of the /corporation; The secretairy to the eorporatioQ;" ' ' '■ The clerk to the coifporatioh ; The easliier of the corpdratioii ; ' ' The treasurer of the corp6ration'| A director of the corporation ; or A managing agent of the corporation.®* Personal service of the citation upon the city of New York (The mayor, aldermen and commonalty of the City of New York) must be made by delivering a copy of the citation to one of the fwUowing persons: The mayor of the corporation ; . : . ; ; The comptroller of the corporation; or The counsel to the corporation.'" Personal service of the citation upon any city other than the city of New York must be made by delivering a copy of the citation to one of the following persons : The mayor of the city ; ' ' ' « Ests. of Brooks Infants, N. Y. L. « C. C. P. §§ 2525; 431. J. Jan. 22, 1915 (N. Y. Surr.). » C. G. P. § 2530. ''Hogle V. Hogle> 49 Hunj 313, 2 '"C. C. P. §§ 2525; 431. Supp. 172 (1888),, old Code §§ 426 '"c. C. P. §§ 2525; 431. and 2526. :; 874 § 802 PEOCEEDINGS The treasurer of the city ; ' The counsel to the city ; The attorney of the city; The clerk of the city ; or The officer performing corresponding functions to those of any of such persons, though under another name, if such city lacks any one of such offibers.*' (e) Personal service of citation within the stat« upon a foreign corporation must be made by delivering a copy of the citation to one of the following persbns : The president of the corporation ; The vice-president of the corporation ; The. treasurer of the corporation; The assistant treasurer of the corporation ; The secretary of ^ the corporation ; The assistant secretary of the corporation; or The officer performing corresponding functions to those of any of such persons, though under another name ; A person designated for the purpose of service of process as pro- vided in section 16 of the General Corporation Law ; The cashier, a director or a managing agent of the corporation within liie state if (a) a designation under section 16 of the Gen- eral Corporation Law is not in force, or'(b) if, being in force, nei- ther the person so designated nor the president, vice-president, treasurer, assistant trfeasurer, secretary, assistant secretary of the cor- poration or officer of the corporation performing 'corresponding functions under another name, can be found with due diligence in the state; Eind (c) t\e corporation either has property within the state or the cause of proceeding arose therein ; The secretary of state under the following circumstances : (1) If the person designated Tinder section 16 of the Gtoeral Corpora- tion Law either dies or removes from the plaCe' where the corpora- tion has its principal place of business within the state; (2) the corporation within thirty (30) days after such death or rem.^val, does not designate in like manner another person upon whom proc- ess against it may be served within the state; (3)' the proceeding is either upon any liability incurred within the state or the corpora- tion has property within the state ; and (4) the service is made upon the secretary of state after such death, removal or revocation and before another designation is made by the corporation.* (f) Personal service of citation within the state upon a public " C. C. P. §§ 2525 J 431. » C. C. P. §§ 2525 and 432. 875 NEW YORK ISCCATES AND, SUBROGATES § 803 officer must be made by delivering a copy of the citation either to such officer or one of his duly constituted deputies,* >,- 1 n , ii , § 803. Id.: Substituted Service in State.— (3)'), Swb^titiited: serv- ice of citation within the state upon a resident of .'thg state may be made by order of the surrogate from whose court the citation is issued in tl^ei following cases ; .■jau,; .,, . ..■■■■ •: , (a) When it appears, by affidavit, to the surrogate's satisfaction^ (1) that proper and diligent! effort has been made to make personal service of the citation upon a resident of the state whose place of residence or of business is known; and (2), that, the person to be served cannot be found at his or her residence or place of business ; and (3) that such person, ^^annot be served elsewhere within the state within a reasonable time; - ; ; (b) When it appears,,: by affidavit, to the surrogate's satisfaction, (1) that proper and diligent effort has been made to make persdhal service of the citati-on upon a resident of the state ;whose plac6 of residence ofi of: business as kiiown; and (2) that the ipeicson to be served can be found but evades service, so thai it, cannot be, made.* Substituted : service of citation can be made only by order of the surrogate from ; whose court the citation issued. The order must direct the service of the citation to be made as follows : Upona domes^ corporation, joint stock or other unincorporated association,, if j upon reaspnahles application, admittance can be ob- tained tp sufsh corporation's or association's principalroffice or place of business, by leaving a copy both of the citation and of the order at such office, or place of business ; or, if ,upon reasonable application, admit|taiiQ£f cannot be obtained, by first affixing a copy both of the citation and of the order to, the opter or other door of ?|ich office or place of business, an:d; ; secondly, by depositing aijother :Copy of such citation, and order, properly inclosed in a postpaid , wrapper, addressed to, such corporation or association at, its principal office or placeof business, in the px)stoffice in the place where, suqhvoffice or place of business is located ; Upon a natural ; person if, upon reasonable application, admit- tance can be obtained; at sufibjEftrson 's: residence, by leaving .a copy both of thei^taitionjand of the order at such residence, with a person of proper, age;, or, if upon : reasonable application, admittance can- not be obtained, by. fii:st affixing a copy both of the citation and of the order: to the outer or other; door of such person's) residence, and, secondly, by depositing another copy of such cit^jtioo! and order, properly inclosed in a postpaid wrapper, addressed to such person «C. C. P;„§r:2S25, , ; , » C. C. p. ■§ 25g^. , 8T:6 § 804 PROCEEDINGS ' ■ ' at his or her-place of residence, in thepoStoffice in the place where such residence is located.* Apparently service cannot be made of a citation by Orde'r as it can of a summons, when proof is made by affidavit that no resi- dence of a natural person to be served can be fouud, in such manner as the court may direct.^ '■ ' ' An: order for substituted service of a citation cannot be made when it appears from the 'moving petition that the place of residence of the person to be servedds unknown.^ When substituted service Of citation is made by 'order, the order and the papers uj)oti which the order was granted must be filed, and' the service must be madei, within ten (10) days after the order is granted ; otherwise the order becomes inopefativeiJ On filing an affidavit showing service of the citation according to the order the citation is deemed served ;' and, the same proceeding may be taken thereiipon as if it had been served by publication, pur- suant to an order fbr that purpose.' § 804. Id,: Service by Publication in State.— (3) Service of cita- tion within the state by publication rqay be made, in any, .special proceeding; upon known creditor's of a decedent, or' persons claim- ing to be such, when the following conditions exist or appear: (a) That it is necessary to cite known, creditors; (b) That the number of creditors OT persons claiming to be such residing within the state of New York, upon whom citation is required to be served, ex- ceeds fifty (50) .' The service may be made, first, by pt^blication of t!he citation in such newspaper or newspapers published in .the county, ^nd fo.r such length, of time, as shall be fixed by th^ surro- gate; and.if.no newspaper is. published in the. county, in the jiewsr paper printed at^ Albany in which legal notices are required by law to he published ; and in addition, secondly, by mailing, at least twenty (20) days prior to the return day of the citation, a. copy thereof to each of, ^Usch^ creditors or persons clajiming to be such, in this way: by depositing in the postoffice, such copy, properly in- closed in a postpaid, sealed '(^ra.pper,,, addressed to; .ea<3h of such creditors or persons, claiming to, be. such, at his, her or its last known postoffice address as stated iii the , ,oi'id^r of ' the surrogate.^ The surrogate, in , his discretion,, may also direct the publication of the citation in any other, newspaper puj^lished in the, same or another county, as he deems proper for tJie purpose of giving notice to the « C. C. P. §§ 2525 ^ 43.&. ■ . , 20, 1914 (N. T. Sun-.), G. C. P. | »Last sentence C. C. P. § 436 & 2525. also § 2525. .,7 0. C. P. §§ 252S; 437. 6 Est. of Flanagan, N. Y. L. J. Oct. « C. C. P. § 2525. 877 NEW YORK ESTATES AND SURROGATES § 805 persons intended to be served; or notified.' Whenever a paper is directed to be deposited in the "post-office," such deposit may be made in any post-office or letternbox maintained and exclusively controlled by the United States, Government.^' The General Rules, of Practice provide that publication of a ci- tation in any newspaper in the First Judicial Department not desig- nated by the appellate division of such, department shall not be deemed a compliance, with any provision of the Code,, or other pro- vision of law, or order of any court or judge.^" Every citation or notice required by , any provision of law to be published in any newspaper published in a county must, when such publication is required or ordered in Bronx county, be published; in at least two newspapers published within said county; and no publication is deemed a compliance with any law requiring it, unless such pubH- cation is made in at least two such newspapers. ^^ § 805. Id.: Service by Publication or Personally Out of State.-^ (i) Service of citation without the state personally or by pubHca- tiou may be made by order of the surrogate from whose court the citation is issued in any of the following cases: (a) When the citation is to be served upon either a foreign cor- poration or a person who is not a resident of the,sta;te; (b) When the person to be served is a resident of. the state and substituted service upon him or her or it cannot be authorized as hereinbefore explained; (c) When the citation is to be served upon ,a party or a person required to be made a party, whose name, or residence, cannot be, ascertained; (d) When the citation is to be served upon one or more unknown creditors, next of kin, ' heirs, legatees or other persons, either in- dividually or included in a class, to whom a citsitibn has been direct- ed, designating thetn by a general description.*^ The grsmting of an order for service of citation by publication, or personally without the state, does hot prevent the persbnaV service of such citation within the state." The applicaition for ah order permitting service without the state of New York of a citation personally or by piiblication must be made upon either the petition or an affidavit, which must set forth to the satisfaction of the surrogate in every case that the petitioner or affiant haS used due diligence to ascertain the names and post- « C. C. P. § 2532. « C. C. P. §§ 2526 & 2532. 9» C. C. P. § 2768. " C. C. P. § 2528. "Rule 86. " L. 1913, c; 823, added as § 9a to "Bronx County" Law. 878 § 805 PROCEEDINGS office addresses of the parties whose names or pbsl^office addresses are unknown, and also the facts which show that the' case comes within one of the following four (4) specified cases: (1) That the corporation or person to he served is a foreign corporation or not a resident of the state; (2) That the person to be served is' a resident of the state but that substituted service upon him or her cannot be authorized; (3) That the citation is to be served upon a party or person required to be made a party whose name or residence cannot be ascertained; or (4) That the citation is to be: served upon one or more unknown creditors, next of kin; heirs, legatees or other per- sons, either individually or included in a class, to whom a citation has been directed, designating them by a general description.^* The order for service of citation by publication must direct as follows: (1) That the citation be served upon the person named or de- scribed in the order by publication of the citation in a newspaper or newspapers published in the county designated in the order and if no newspaper is published in the county, in the newspaper printed at Albany in which legal notices are required by law to be published — one (1) newspaper if it appears from the petition or affidavit filed that the estate or fund amounts to less than five! thousand dol- lars ($5,000), and two (2) newspapers if it appears from such peti- tion or affidavit that the estate or fund amounts to five thousand dollars ($5,000), or more; (2) That publication be made for such specified time as the sur- rogate deems reasonable, which must be not less than once in each of four (4) successive weeks; (3) Either that a copy of the citation, contained in a securely closed, post-paid wrapper directed to the person or persons to be served at a place or places specified in the order, he. deposited on or before the day of the first publication in a specified post-office, or that such mailing be dispensed with to persons whose names or ad- dresses are alleged in the petition or;affidavit to be unknown; - (4) That service of the citation bemade by both mode^viz., by publication and mailing thereof, or, by either mode without em- bodying the other; I (5) If the person to be served is an infant under the age of four- teen (14) years, either that, in addition to the copy of the citation niailed the infant, a further copy, likewise contained in a securely closed, post-paid wrapper directed (a) to the- father or mother or guardian of the infant; and (b) to the person with 'whom the infant is sojourning, at a place specified in the order, be deposited on or before the day of the first publication in a specified po^t-office ; or " C. C. P. § 2527. 879' NEW YOKK ESTATES AND' SURROGATES § 805- that such mailing be dispensed witih..to persons whose names or ad- dresses are alleged in the petitioii or afiSdavit to be unknown.** The surrogate, in his discretion," may also direct the publication of the- citation in any other newspaper published in the same or another- county, as he deems proper for the purpose of giving notice to the persons intended to be served or notified.'-* : Whenever a paper is direcited to be deposited in the "post-oflfice," such deposit may he made in any post-oflBce or letter-box maintained and exclusively controlled -byi the United States Government.*** There is a. distinction between a requirement that publication of j^rocess shall be "once a week for six successive weeks" and a require- ment that it be "once in each of six successive weeks; " and the lat-. ter requirement is satisfied by, e. g., one publication on Monday of one week and the next on Saturday of the ensuing week (leaving an interval of eleven days)', etc." A direction for publication of a cita- tion once a week for six successive weeks means a distinct publica- tion in each of the, six weeks succeeding the, first." Publication in. the "Buffalo Daily Transcript" when the order required publication in the "Daily Transcripit" is good if there be no ;other paper pub- lished bearing; a similar nam©!*' Pleadings and process mailed to parties. who riiust have notice at addresses different from those re- quircidin the order of servicieupon them by publication and mailing- gives the court no jurisdiction. of such parties.^" No, jurisdiction is acquired of one served with citation by its being-imailed to him by order at 57 Rush St., Chicago, 111;, the residence given in the peti- tion being '59 Rush St., etc., and by publication pursuant to an order misdescribing the journals in which publication was to be- made.* An order directing' service of summons by deposit in the- "post-offiice at JSfew York" is ;a< sufficient specification of a post-of- fice; * btit if the' paper was not deposited) in the general; post-otfice in Manhattkn' but in a post box in an oflSce building the order is not complied with.* (But see CO. P. § 2768.) The General Rules' of i Practice tprovide that publication of a cita- tion in'any'newspapfef'.in the First Judicial Department not desig- nated by the appellate division of such department shall not be i^C. C. P. §§252S^'&'2532. J* Waters v. Waters* 7 Mise; 519 « G. C. P. :§ 2532. : > (1894), or 27 Supp. 1004. "» G. C. P. § 2768. ■ .. , ""Smith v.; "Vy ells,. 69 N.; Y. 600 i^Matter of Reed, 171. A. ,r». 21, {lSi77)— summons and complaint,, " 156, Smn 944 f 1916^ C C P § Matter of Harlow, 73 Hun, 433 ten ' ' ' TV. t '■' 1 ^'t^- ' '*^^y ^- ^^^^^> 136 A. D. 809' "Gray, v. The Jpjin;^aJ , of Finance (igio), or 121,Supp. 726: old Code- Pubbshing Co. 2 Misc. 260 (1893), § 440, amended. or 21 Supp. 967. * Gay v. Ulrichs, supxa. §§806,807 PROCEEDINGS deemed ,ai compliance with any provision of the Code, or other pro-* vision of law^ or order of any court or judge.* ■ § 806. Id.: Service, Who May; Make. — Service of a citation may be made by any person over eighteen (18) years of age, although a party to the special proceeding in which the citation is issued/ § 807, Id. : Service : Time of Making. — The time when a citation, must be served depends upon whether it is served (1) Personally in the state; (2) Personally out of the state-; (3) By publication; or (4) By substitution.® (1) Service of a citation personally within the^ state, whether up- on a resident, or a non-resident, must be made, if either within the county of the surrogate issuing the citation or an adjoining county, at least .eight (8) days before its return day;. and if in any other couaty of the state at least ten (10) days before its return day.® (2) Service of a citation personally without the state of New York pursuant to an ojrder therefor must be made, in (the- same manner required for the personal service of a citation within the state by delivering a copy of the citation if within the United States at least twenty (20) days before its return day, and if without the United States at least thirty (30) days before its return day.^ (3) Service of a -citation by publication must be made, first, by publication of it as prescribed in the order of the surrogate, and, secondly,, unless by the terms of the order mailing is dispensed with, by the deposit. on or before'the day of first publication in a speci- fied post-office of a copy of the citation contained : in a securely closed postpaid wrapper directed to the person to be served at a place specified in the order; and if the person to be selrved is an infant under, the I age of fourteen (14) years, a furthdr copy, unless by the terms; of the order mailing is dispensed withj must be de- posited on or, before- the day of the' first publication in a specified post-office, contained in a securely closed postpaid wrapper directed (a) to, the father, or the mother or the guardian of the infant, and . (b) to the person with. ;who:m the infant is sojourning;' (4) Substituted service of a citation by.ordei; must be made with- in ten (10) days afteff the order is granted-c otherwise the order be- comes inoperative.' ; ; . . If service is made on a nonr-resident in this state of a citation within the time before the return day in which service must be made on a resident the service is good.^' When service by publication is *Rule 86. «C. C. P. § 2525 & 437. » C. C. P. § 2529. 1" Matter of Wastburn, 12 Misc. • « C. C. P. § 2529; 242, 34 Supp. 44 (1895), old Code § ' C. C. P. § 2529. • 2520. « C. C. P. § 252?.;, N. Y. B. & S.— 56. 881 NEW YOEK ESTATES AND iSURROGATES §§ 808-812 made of process a full eight days need not elapse between the date of last publication and the return day. ^^ Personal service outside the state by court order the statutory number of days before the re- turn day of the citation is sufficient although less than the statutory number of weeks could intervene between the date of issue of the citation and the day named for its return and service by publica- tion would, therefore, have been ineffective. " § 808. Id.: Supplemental Citation. — If any person to be affected by the decree is not a party to the proceeding the surrogate must cause him to be brought in by supplemental citation.^* By supple- mental citation the surrogate can bring into a proceeding, already initiated, parties necessary to complete his adjudication.^* § 809. Id.: Order to Show Cause. — The statute specifically pro- vides for an order to show cause a!s one of the process of the surro- gate's court. ^* § 810. Id.: Subpoena and Subpcena Duces Tecum; — The statute specifically provides for subpoenas and subpoenas duces tecum}' The general rules of practice allow subpoenas duces tecum ijo be is- sued to certain officers, institutions, etc., only by a judge of the court in which the speeiaL proceeding is pending." § 811. Id.: Notices.-^Notice of application for an order appoint- ing a temporary administratorj required when delay occurs in the grant of letters testamentary or of administration, or in the probata ing of a will,^' must be served upon those entitled to notice (viz., each party to the delayed proceeding who has appeared), by serv- ing it upon the attorney for each such party, or upon the party: him- self if he has not appeared by attorney, in like manner as a notice may be served upon an attorney in a civil action brought in the supreme court ; unless the attorney or party either does not reside in the surrogate's county, or the attorney had died' and no other appearance for the party he represented has been filed in the sur- rogatei's office, in which case the surrogate may either dispense with notice to such party or may require notice to be given in any man- ner which he thinks proper." § 812. Proof of Service of Process. — Proof of service of a sub- poena, citation or other process issued from a surrogate's court must be made by the certificate of the sheriff, when sensed by him ; and" " Matter of Dentonj .40 Misc. 326, , " Matter of; Phalen,: 51 Hun,, 208 81 Supp. 1031 (1903) ; afC'd 88 A. D. (1889), or 4 Supp. 408; old Code § 359, 84 Supp. 613, old Code, § 2524, 2481, subd. 2. see new Code §,252qetseq. ■■ " C. C. P. § 2522. , ' : 18 Matter of Macaulay, 94 N. Y. " C. C. P. § 2490., - ' 574 (1884)— old Code § 2521 et seq. " Ruje 9. ' , new Code § 2526 et seq. " C C. P. § 259,7, ^ubd. 1.' " C. C. P. § 2738. , "C. C. P. §, 2602: 882 §812 , PROCEEDINGS in every other case by the affidavit of the person so serving it; ex- cept that when the person served is of full age and not incompetent, such service may be proven by a written admission, signed by him, accompanied by proof-T-by acknowledgment, affidavit or otherwise — of the genuineness of his signature.^" The affidavit of service must be made by the person making the service who cannot be less than eighteen (18) years of age. If made by any person other than the sheriff, it should set forth the following facts: (1) Either the age of the person making the service^ or that such person is more than twenty-one (21) years of age, (2) when he or she served the citation; (3) at what particular place he or she served the citation; (4) In what manner he, or she served the citation; (5) That the person serving knew the sperson served to be the person mentioned and described in the citaltion as the party namled therein-; (6) That the person serving left with such party (the person served), as well as delivered to such party, the copy of the citation.^ ' The affidavit of service by publication must be made by the affidavit of the print- er or publisher or his foreman or principal clerk.* The affidavit of deposit in, the post-office must be made by the affidavit of the, per- son who deposited the citation or subpoena in the post-office;* An affidavit of publication by a "manager" of a newspaper satisfies the statute, as its object is that the affidavit be made by some person who knows and can give proof of the publication.* It: would seem that, if a citation is served personally without the state, the affidavit of service must show that die person making it is (1) a resident or citizen of the state of New York, or (2) a sheriff, or under sheriff, deputy sheriff, constable of the county or other political subdivision in which the service is made, or (3) an officer authorized by the laws of this state to take acknowledgments of deieds to; be recorded in this state, or (4) an attorney and counsellor at law duly qualified to practice in the: state in which such service is made, or (5) by a United States marshal.* When such affidavit is made by a resident or citizen of this state, it would seem that his place of residence; aiid street number, if any, must be stated therein.* ■ It would seem, too, that the affidavit of ■ service made without the state shduld contain the official designation of the person making it and have annexed 20 C. C. P. § 2531, as amend'd L. ^C.iC. P. §§ 2531 and 444. ' 1916, e. 445. Prior to the amendment ^ Waters v. Waters, 7 MSsc. 519 the proof was required to be made (1894), or 27 Supp. 1004. ' "in the manner prescribed; bye law for * C, C. P. §. 443, subd. 5j as amend, proof pf service of, a summon^ issued L. 1916, c. 439, effective Sept. 1, out of the- supreme court." See C. 1916. .: ' - ■ C. P. §§ 434 and 444. « C. C. P. § 443^ suM.' 5 as amend. » C. ,C. P. § 2531, 434, & Rule 18 L, 1916, c. 439, :effeetive Sept. 1, 1916. Gen. Rules Practicp., - ;• ,, r ', , t ,' 883 NEW YOEK ESTATES AND SURROGATES §§ 813-815 thereto- a certificate of the proper bfficial showing that 'the person before whom the affidavit was sworn to was> at the time of adminis- tering the oath, qualified to act.* Rules of various surrogate's courts provide for the kind of. proof of service of process and the time for filing it; in court; '' and for substituted service.* ' § 813. Parties: Definitions.^-^The ■ word "respondeint" signifies every party to a special proeeediiig except the petitioner.' § 814. Id.: Jurisdiction.^-The surrogate's court, in any proceed- ing before it, hds jurisdiction of'the following' persons ;■ (1) The petitioner; (2) Parties wiho have been duly cited, including all those described as being persons belonging to a clasg, or as connected with the decedent, or. as interested in the propertj' or matter in question, whether designated by their full andTcorrect names or not; (3) Per- sons of full age who iiave not been: judicially declared incompet'ent to. manage their affairs (a) who either before or after the filing of the petition : shall) waive the issue or service or both of the citation in the proceeding by an instrument in writing signed, 'acknowl- edged or proved, and duly certified, and.(b) who whether named in the petition or citation or ncit appear personally in court and file writteny signed notice of appearance acknowledged or proved, aoad duly- certified,, and (c) who whether named in the petition or cita- tion oj: not appear by attorney whose authority in writing to appear; so signed, acknovtf lodged or proved, and duly certified, is filed in the court.'" It is, essential ito give effect to a surrogate's decree that he have jurisdiction of the person as well as of the subject-matter, i;' c, a person not made ai party in a proceeding is- not bound by a decree made/thereih;*^; The' obtaining ;by a surrogate's court? of jurisdic- tion of the parties to a .proceeding beforS it is presumptively proven by. a recital to that effect in the' decree 'madeih such proceeding.'^ White appearancei or consent* cannot confer upon the surrogate's court jurisdiction, of the subjeet-matter, it can: and does: of the per- son,?' , , ,, : f;!- .: ■ ' ' ' '■i.'.l ;■ ,:•:, : § 815, Id» : vAppearaace, In Qeneral; — Jurisdiction of the penson; i.,§., qfi%e partiesiimaytbeconfen-ed by. appearance; '* or by issue and sej^vice of a citation, or waiver thereof.'* The appeaajaaieel gen- ®Id. ■ did not know oi) brother of intes- '' See, e. g., these Rules : Kings, tate as one of his next of kin. 11; Bronx^; Queens-4; Westehester l« C. C. P. § 2'513. ' ' "' 2i; Suffolk, 7; Cattaraugus, 14; Cha:u- "Matter of Bingham, 127 N Y tauqua, 4. ' 297, 27 N. E. 1055 (1891)— sale of '* See, 6, g., Rule 7, Cattaiaugus. real estate tb pay debts. ' ' 9 CO. P. § 2768. "Meyers V. -American Locomotive IOC. C. P. § 2511. Co. 201 i;f. Y. 163, 94 N; E. 605 ?i Matter of Killan; 172 N. Y. 547, (1911). !!; : 63 L.R.A. 95, 65 N. E. 561 (1902),: -uniratter of Graham, 39 Misc. 226. administrator did not cite (because (1902), or 79 Suptt. 573 884 § 815 PROCEEDINGS eraily, may be in, person, or by attoraey.i* A waiyer of citation or consejit to>a decree or order must be made. after the court obtains jurisdiction.^'' In a surrogate's court any party to a special proceeding who is not an infant or Judieially declared to be, incompetejit to. manage Ms affairs, at his: election may appear in, prosecute and defend the proceeding either I (a) in^pei-son, (b) by attorney regularly, aidfiaitted to practice in the courts of record of the state ; except, that he must appear in person. (1) in a , proceeding to punish, hiba for contempt, (2) jwhen he isi required to, appear, in iperson^ by ^special order of the surrogate,! and (3), when he is required to appear in person by special provision of law.** A; surrogate cannot by order, substitute one attorney for another when there is.no cause pending in his court to which the order can relate, eveni; though all parties to the application request the order. ^^ To warrant the appearance of an attorney for a non-resident guardian, the acknowledged authority to the attorney to, appear must be filed. ^^ . One sued; indiyidualh' and as executor, may appear by separaite attorney in ea^h; capacity; because as executor he defends a claim against his testator, and as an individual, a claim against himself.^ ,,, An infant party may appear in a proceeding in the; surrogate's court by his general guardian; and a pa,rty who, is a lunatic, idiot or habitual drunkard, by his committee.^ ' One claiming as next of kin of a husband, who yfifh his wife, per- ished together, on the theory that the wife, died before the husband so that the husband. died, partially intestate, , should be allowed to interverie on the ac(?ouiiting of the husband's exeicutor as a person interested ; apd the surrogate should not dispose of the questiqn of survivorship on the mere motion to intervene but should decide it only after all iriteresfed parties have been brought in, especially as there is a grave question if an appeal to the court of appeals hes from a denial of a motion, whereas such an appeal wouM lie if an orderly course were taken by the surrogate!^ The rules of various surrogate's courts provide as to Appearances under different contihgehcies : that writteij authoiaty from a' party not cited or nonresident must be shown ; * that infants liiust appear "Matter of Graham, supTa. ' « c. C. P. § 2o3i. ' • " Matter of Graham, 'supra. ^ Matter of ' St. John, 104 A. D. " C. C. P. § 2533. 460 (1905), or 93 Supp. 836; old ^^Matter .bf /Krakauer, 33 Misc. Code §§2728; and 2514, subd. 11. 674 (1901), or 68 Supfp..K35.' * See, e. g., these Rules:. Chautau- 20 Est. of Geo. Ring, N. Y. L. J. qua, 6; Queens, 6; Steuhen,, 10. i . Dec. 29, 1914 (N; .Y. Surr.), , :'l -h;}-'.' ■>;:' 1 Roche V. 0'Cbn.aor, 99 A.: D.. 496, r; , .: ' 88 Supp. 968 (1904) , C. C. P. § 1815. ■ . ' 885 NEW YORK ESTATES AND SURROGATES §§ 816, 817 by special or general guardians and incompetents by committees; ° that notices of appearance must beifiled with answers and objections, etc.^ § 816. Id.: Notice of Appearance.T-The requisites of a notice of appearance in a surrogate's court depend upon whether or not the party appearing has been served with a citation in the proceeding in which he appears. Whether a party appearing has or has not been served with a citation, his notice of appearance must be in writ- ing and signed and filed; but if no citation has been served on the person appearing the notice can be signed only by him and must be acknowledged or proved and duly certified, while if a citation has been served on the party appearing the notice need not be acknowl- edged, proved or certified, and may be signed either by the party or his attorney.' If citation has been served on a non-resident, a notice of appearance filed for him is sufficient to give jurisdiction of his person.* ' ... § 817. Id.: By Special Guardian. — ^E very appearance in a pro- ceeding in a surrogate's court by or on behalf of a party who is not (1) an adult, (2) an infant appearing by his general guardian, (3) a lunatic appearing by his committee, (4) an idiot appearing by his committee, or (5) an habitual drunkard appearing by his com- mittee, must be by special guardian appointed by the surrogate; and, under certain circumstances, an appearance by or on behalf • of an infant, lunatic, idiot or habitual guardian, even though ap- pearing by geiieral ^Urdiah or comniittee, as the case may be, miist be by special guardian appointed by the surrogate.® ' ■ ' A competent and responsible person, not' nominated by either party, must or may Idc appointed by the surrogate to appear as special guardian for a party in the following cases: I. When the parly is ah infant the special guardian must be ap- pointed (1) if the infant does not appear by his general guai'dian; (2) if the infant doe's appear by his general guardian, but the 'sui-- rogate, on inquiry wljich he must make into the facts, finds either any ground to suppose thatitjie interest of the general guardian is adverse to that of tlie iiifant,; or, that for any other reason the in- terests of the infant require such appointment.^* II. When the party is a Innatic, idiot or habitual dfunkard the special guardian must be appointed (1) if ttie lunatic, idiot or ha- 5 See, e. g., these Rufes: N. Y. 15, ' Est. of Berman, N. Y. L. J.' July Westchester, 8; Herkimer, 9; Cat- 13, 1915 (N. Y. Surr.)-^aceountirig taraugus, 9. proceeding. .K « See, e. g., these Rules : N. Y. 14 ; » c_ c. P; § 2534. Kings, 12; Bronx, 18. " C. C: P.' § 2534. "I C. C. P. § 2533. ; ,. 886 § 818 PROCEEDINaS bitual drunkard does not appear by his committee, (2) if the luna- tic, idiot or habitual drunkard does appear by his committee, but the surrogate, on inquiry which he must make into the facts, finds either any ground to suppose that the interest of the committee is adverse to, that of the lunatic, idiot or habitual drunkard; or that for any other reason the interest of the lunatic, idiot or habitual drunkard. require such appointment." Ill, When the party, is an infant, habitual drunkard or mentally incapable adequately to protect his rights for any cause although not judicially declared incompetent to manage his affairs the special guardian must be appointed." IV. . When there are either unknown persons or persons whose whereabouts are unknown the special guardiajn, in the surrogate's discretion, may be appointed.^" Before entering upon his duties the special guardian must file his consent to act as such.** An order appointing a special guardian to appear and defend in behalf of an infant cannot be made until the infant has been served with process; because until then the court has no jurisdiction over the infant.** A surrogate on motion will vacate his order appoint- ing a person to receive as special guardian a citation for one alleged in the petition to be mentally but not judicially incompetent on proper shoeing by affidavits against such allegations ; so as to allow the alleged incompetent to appear and contest in person or by at- torney ; but he will not strike out such allegations from the peti- tion.*' . The "party" referred to in the statute, for whom a special guardian must be appointed, means a party to be cited: e. g., an infant grandson of a testator whose father is living and who is bene- ficiary of a trust created by the will is not one for whom a special guardian should be appointed in the proceeding for the will's pro- bate, if he is not I designated in the will as executor, testamentary trustee or guardian, as the only other capacity in which he would be entitled to citation is as heir or next of kin, which he is not while Ills father lives.** ; ■ ■ § 818. Id,,: By ConsuL^Treaties between the United States and foreign countries often give to the consular representative of such countries the right to appear in the courts of the various states of the United States oh behalf of citizens of those countries which the consuls represen,t here. Under the most favored nation clause of ** C. C. P. § 2534. , ceeding; testator's child alleged in- i^Ingersoll v. Mangan, 84 N. T. competent. 622 (1881), by analogy to guardian ** Matter of Redfleld, 94 Misc. 20 ad litem. ,;■ : ■ (1916), see C. C. P. §§ 2534 and 18 Matter of Haynes, 82 Misc. 228, 2610. 143 Supp. 570 (1913)— probate pro- 887 NEW YORK ESTATES AND SURROGATES -fi 818 sucli: a treaty,^' a consul may appear and execute necessary waivers and consents in a proceeding to probate a will of a decedent, lor adult heirs and next of kin of sucbtdecedent who are subjects of the country represented here by such consul; '* but if such subjects be infants, jurisdiction can be had of them only by a citation duly issued and served." Under a treaty giving the consul-general of a foreign country the right to "intervene," on an accounting by the public admiiiisti'atbr of the estate of a decedent whose sol-e next of kin was a subject of the country represetited by the consul-gen- eral the latter has the right to receive from the public administrator property belonging to such next of kih.^' Alien minor next of kin of a deceased subject of a foreign country may be repi^esented on the accounting of the administrator of such subject's estate by the consul for such country ; and when appearance for such minors has been duly made by an attorney designated by such cgnsul a subse- quent appointment of ^special guardian for such minors is, improv- ident and will be sei aside.''' Although a consul of a foreign cqun- try may appear for and; receiye the. shares of minor disl;ripvitees Ticsiding in his country, on the accounting by an administrator of an intestate, under the most favored nation clause in a treaty between this and that, country, yet he cannot do so .for, minor legatees of a testator leaving a will appointing an executor, or such, executor's accounting; but citation must issue to such infant Ijegate^y as such an executor is entitled to his discharge under the usual procedure of this state, and if such conduct by a consul were permitted, alien infants would have greater privileges than citizen infants, because a general guardian appointed for the latter cannot waive the issue and service of citation for his wards.^' ^^ The clause read : "The citizens tion of the estate . . . for the of each of the contracting parties benefit of the, creditors and legal shall have power ito dispose of their, heirs" ,(1853 treaty with Argentine personal goods within the jurisdic- and 1872 Commercial Treaty with tion of the other by . . . testa- Italy). ment . . . and the ' repreisehta- ^^ Matter of Peterson^ 61 Misc. 367 tives being citizens- of the other :(1906), or 99 Supp. 883; affi'd 115 party, shall, succeed to ; the: personal A. D. 92.0, ., , ,,,. . r. goods . . . and, may take pos- " Matter of PeteKoiij supra, session thereof . . . by them-. " Matter of Davenport or Fioren- selves'or others' acting for them, tine, 43 Misc. 573 (1904), or 89 . . . If any citizen of either of Supp. 506. the two con ttiacting parties shall die ,*' Matter of Bristow or Tepedino, without wiU or testament . .. '. 63 Misc. 637, 118 Supp:- 686 (1909). the consul . . . shall have the ' *" Matter of Nyahayi or Ilkow; 66 tight to -intervene in the possession, Misc. 418, 121 Supp. 207 (1910). administration and judicial liquida- ' ' ! : ' ' §§819,820 PROCEEDINGS § 819. Id.: Compulsory Appearance. — A surrogate, in or out of court, as the case requires, has power to compel the attendance of a party in a case prescribed by law.^ § 820. Id.: Effect. — ^If the court has jurisdiction of the subject matter, a voluntary appearance completes the jurisdiction and au- thorizes any decree or judgment the court may make.* When a party ' appears voluntarily by general notice of appear- ance the court obtains jurisdiction of his person and the service (if not the issuance) of a citation is waived:* The appearance by a temporary administrator on a motion by a widow for an allowance to her pending the contest of her husband's will waives any objec- tion that no citation was issued to him.* Filing of a petition and voluntary appearance by the parties malces the proceeding good though no citation is issued, as such appearance waives the need of citation.* A person appearing to contest a will becomes a party to the probate proceeding.® Service and filing of notice of retainer by a person as attorney for non-resident parties who have been sensed with citation is a general voluntary afipearance and precludes a sub- sequent denial by his clients of the court's jurisdiction because of their non-residence arid lack of property in the state.' An appear- ance, not made specially, on an appeal, cures an irregularity in the proceeding that the citation was not properly issued by the clerk.' An objection to a citation is cured by the appearance of those named therein by their attorneys and the disclosure of their proper names.* Appearance by parties cited charges them with knowledge of all re- lief asked in the petition even though the citation did not mention part of the relief asked. ^^ When a person does not intend to subject himself to the jurisdiction of the court, he must appear specially. ^^ An appearance does not result from the interposition of; an answer asserting an appearance solely to object to the, surrogate's jurisdic- tion on the ground .that the service of the citation was irregular ; but if the answer also raises objections to the petition on the merits and puts some of the petition's allegations of fact in issue, a general £ip- ' C. C. P. § 2490. ' Reed v. Chilson, 142 N. Y. 152, 36 * Everts v. Everts, 62 Barb. 577 N. E.-884 (1894)V (1862)'. ' Matter o£ Hurlburt, 43 Hun, 311 * Matter of McMuUen, 85 Misc. (1887). ,.,,,! 661 (1914), or 148 Supp. 1092; old » Matter of Geprgi,. 35 Mise. 685, Code § 2528, new Code § 2511; C. C. 72 Supp. 431 (1901). P. § 424. "Matter of Brady, 58 Misc. 108 * Matter of Hitchler, 21 Mise. 417 (1908), or 110 Supp. 755;— prayer (1897), or 47 Supp. 1069' in aecountirig proceeding asked ap- * Matter of Postj-30 Mise. 551, 64 pointmeHt of' successor trustee, -wliieh Supp. 369 (1900). < citation did not mention. 6 Matter of Sinith, 95 N. Y. 516 " Reed v. Chilson, 142 N. Y. 152, (1884). 36 N. E. 884 (1894). 88P NEW YOEK ESTATES AND gURROGATES §§821-823; pearance does result^ in spite of the protest that the appearance is special, and the surrogate acquires jurisdiction so that an objection to the service of the citation cannot be raised.*^ The surrogate, on; motion of one who is heir at law and next of kin of a testatrix alid stated to be "mentally incompetent to protect her rights, although not judicially declared to be incompetent to manage her affairs" in; the petition for probate, will vacate- general orders designating a per- son to receive citation for her and appointing such person special, guardian for her, on proof that she is not incompetent ; but will not' strike out such allegations from the petition.^* § 821. Practice: Testirnony Out of Court: In General. — Thetes-' timony of a witness in a proceeding in the surrogate's court may be: taken outside of the court in which the proceeding is pending under certain conditions by these persons: (1) By the surrogate of the court in which the proceeding is pending; >* (2) By the surrogate of another county; ^^ (3) By the clerk or deputy clerk of the surro- gate's court of another county^ and also, if Such .other county be that of New Yorkj Kings or Queens, by one or more other clerks employed in the surrogate's office when thereunto authorized or deputized by the clerk of the court; ^* and (4) By a referee." § 822. Id.: By Surrogate Before Whom Proceeding Pending. — The surrogate, in his discretion, may proceed to the place in which a witness is and there take his examination as in open court, when it appears .to the surrogate's satisfaction that the witness' testimony is material and necessary.*' The party applying for the examina- tion must give to other parties to ihe proceeding such notice of the time and place of taking the examination as the surrogate pre- scribes.'* § 823. Id.: By Surrogate of Another County .^The testimony of a witness may be takeh by the surrogate of a county other than the one in which the proceeding is pending: (1) when the surrogate of the court in which the proceeding is pending has good reason to believe that either a subscribing or material witness who is in anoth- er county of the state, cannot conveniently attend before him; and (2) when no issue is pending in such other county.*' The author- ity of the surrogate of such other county to take the testimony of the witness is an order made by the surrogate haviiig jurisdiction of the proceeding which 'must (a) direct that the witness be exam- « Matter of Maeaiiiilay, 27 Hun, " C. C. P. § 2543.4. 57:7 (1882), aff'd 94 N. Yi 574.. "C. C. P. §i2543-4. . "Matter of Haynes, 82 Mise< 228, "C. C. P. § 2543. 143 Supp. 570 (1913),. " C. C. P. § 2543. 1* q. C. P. § 2543-4. , '" C. C. P. § 2544, as amend'd L. 15 C. C. P. § 2543-4.; 1916, c. 446. 890 M 8^4-826 ' : ■ , . PROCEEDINGS ... ined before the surrogate of the county in which he is; and (b) specify the nature and manner of the examination.^ The Surrog^ite making, the lorder must transmit to the surrogate who is to execute it,' designatied therein, a copy of it.* If the testimony to be taken relates to the. execution of a written will, the surrogate piaking the order must transmit, to the surrogate who is to i execute it, with the copy of the order, the original will involved in the proceeding.' An examination so taken has the same effect as if' taken by commis- sion.* § 824. Id.: By Clerk of Another County. — The testimony of a witness may betaken by the clerk or deputy clerk of the surrogate's court in another county (and, if such county be that of New York, Kings, Queens or Bronx: by one or more other clerks employed in the office of the surrogate of such counties when thereunto author- ized or deputized' by the clerk of such surrogateis court with the lat- ter's approval) only when the surrogate of such other county has been duly appointed, by order of the surrogate having jurisdiction of tlie proceeding to take the testimony.* An examination so taken has the same effecti as if taken by commission.* § 825. Id.: Preservation of Testimony .^The following steps must be taljen about the' testimony of a witness examined out of court: (1) It must be reduced to writing; (2) It must either (a) be subscribed by the witness or (b) be otherwise duly authenticated ; (3) A statement must be made of the proceedings upon the execu- tion of the order, viz., upon the examination; (4) The examination and statement must be certified by the surrogate or clerk taking the examination, and attested by the seal of the court; .(5) The ex- amination and statement must be returned (with the original will when the testimony relates to its execution) without delay to the surrogate who directed the examination ; and (6), The examination and statement (with the original will when the testimony relates to its execution) must be filed by the surrogate who directed the examination in his; office.'' . , § 826. Id.: Reference: When Ordered and Who Appointed. — Sub- ject always to the right of trial by jury of any question of fact, the surrogate of any county may in his discretion appoint a referee in airy proceeding in his. court except one instituted for probate of a will; * and, in New York county, even in a proceeding instituted in 1 Id. « C. C. P. § 2544, as amend'd ;L. aid. - 1916, c. 446. »C. C. P. § 2544,. as amend'd L. » C. C. E. § 2544. 1916, e. 446. » C. C. P. § 2536, .*Id. i'l',: :• ■:;,'• SC. C. P. § 2544, as amend'd L, 1916, c. 446; and C. C. P. § 2502. 891 NEW YORK ESTATES AND SURROGATES § 826 his court to probate a will, on the written consent of all parties ap- pearing in the probate proceeding:* In a probate proceeding in New York conQty, instead of a referee, thes surrogate may appoint an assistant.*" But whether the surrogate appoint a referee or an assistant in a New York> county probate proceeding; the ireferee's or assistant's power cannot be more than to take and report the testi- mony, without authority to pass updn the issues involved in the probate proceeding.*^ A surrogate may appoint a referee to take the testimony of a subscribing or a material witness if he has good rea- son to believe such witness is in another county of the state aiid can- not conveniently attend before him.** The referee miist report the testimony to the appointing surrogate, and; the examination has' the same effect as if taken by commission.*' It is discretionary with a surrogate to refer a matter arising in a proeieeding in his court. He may, for instance, of hig own motion order a reference for his own information on a proceeding to revoke an executor's letters, although the Statute of Limitations is interposed by answer;**; In the exercise of his discretion the surrogate will not refer an attorney's claim of $1200 for services to 'an estate in gross of less than $4000 value,, when, although obj'efction, has been filed to such claim as listed in the administrator's account, the latter gave no proof either, of the necessity or value of sUch services, and doubt was thrown on his pay- nieht thereof through- proof of his failure to' pay other items listed in the account as paid.*' Both legal and equitable olaimsi -against the estate of a deceased person may be referred.^* The siarrogate has hc> authority to refer part of an account and objections to a referee to hear and determine, e. g., by first dispbsing of all questions of ' law and referring only the matters of fact.*'' A surrogate has power' t<} order a referee to tak& testimony and report as to an atr torney's lien and' td find what the amount of the lien is; but he can- not direct that execution issue against the. i^xecutors individually for the amount found due.**' The misnomer: of "auditor" in an order appointing a referee does not vitiate' the. order so long as the person appointed could not exercise and did not exercise! any 'power which a referee would not possess.*' - "Trial by a refei-ee is an excep- «C. C. P..§2536. , , , , *6 Matter of, Zinke, 90 Hun, 121 *";€. C. P, I 2536. (1895) or 35 $upp. 645. * ** C. C. P: § 2S36. ' ■ *' Matter of Keiit,'92 Misc. lU 12 C. C. P. § 2544, as amend'd L. (1915), or 155 Supp. 383; C. C. P 1016,0.446. '■■ ■ > •' > §§2536,2510. : *'Id. *8 Matter of Smith, 111 A. D. 23 ** Matter of Hale, 45 A. D. 578. (1906), or 97 Supp. 171;' C. C. P 5 61 Supp. 596 (1859), old Codle' § 66. : . 2546, like new Code § 2536. *' Buchan v. Rintoul, 70 N T 1 *6 Matter of O'Hara, 50 Misc. 495, (1877). . -r,". 100 Supp. 635 (1906). ■. 't ■■ . ■ ,.:■ ; , , ,■ 892 § 827 PROCEEDINGS tional mode of judieial procedure, and when it is sought to coerce a suitor into a submission to it, the burden is upon the party apply- ing for a reference to show by satisfactory proof that the case is within the excepted class," whether the reference be by the court on A party's application or of its own motion.*" General Rule of Practice 79 provides who may, and who may not be appointed referee: no person can be sole, referee 'unless he is an attorney in good. standing except^ by consent; nor can a partner or clerk or counsel for the applicant be referee; nor one in any way connected in business with: such counsel or who occupies the same office with him.'-i, § 827. Id.: Reference: Kinds of. — ^Various kinds of references may be ordered by a surrogate in a special proseeding in his court: — (1) To take and report to the surrogate the evidence upon the facts in the proceeding; * (2) To take and report to the surrogate the evi- dence upon a specific question of fact in the proceeding; ' (3) To examine an account rendered, whether intermediate or final, when both the estate (or fund) accounted for exceeds. $1,000 in value and the item or items in such account to which objection! has been made is or aggregate' more than $200; and to make report theredn; sub- ject to confirmation or modification by the surrogate; * (4) To hear a.nd determine all questions arising upon the settlement of an ac- count rendered,' whether intermediate or final, which ^the surrogate has power to determine, when both the estate (or fund) accounted for exceeds $1,000 in value and the item or items in such account to which objection is made is or aggregate more than $200; and to make a report thereon; subject to confirmation or modification by the surrogate ;* (5) To make a report on questions arising upon the settlement of an account' rendered which the surrogate has power to determine, subject, however, to confirmation or modification of such report by the surrogate.* (6) To take and report the testimony in a; proceeding in New York county for probate of a will (but with- out authority to pass upon the issues involved) if all the parties ap- pearing consent in writing to' such a reference.' (7) To tkke the testimony of a suj^scribing or material witness whom, the surrogate has good reason to believe is, in another county of fhe state and can- not conveniently attend before him.''' A directioii of a refeipence to report, with the referee's opinion, up- on the evidence' taken , is in substance the saine as a reference to «» Cassidy v. MeFarland, 139 N. Y. * C. C. P. § 2S36. 201, 34 N. E. 893 (1893). = C. C. P. §2536: 1 G. R. P, 79.:., ..:- L,. ■! .1 6 C. C. P. § 2536. « C. C. P. § 2536. ' a C. P. .§= 2536. ; » C. C. P. § 2536. '" C. C. P. § 2544i -:- 893 NEW YORK ESTATES AND. SURROGATES § 82S report on a question of fact pending before the surrogute-and is with- in the surrogate's authority to make.' A referee appointed to take the testimony of a witness must report the testimony he takes to the surrogate who appoints him.® An examination of a witness so taken by a referee has the same. effect as if it was taken by commis- sion." § 828. Id.: Referee's Powers and Duties. — A referee appointed by a surrogate according to statute has the same power in the special proceeding as a referee appointed by the supreme cburt for the trial of an issiie of fact in an action y arid the provisions of the Code of Civil Procedure apphcable to a reference by the supreme court apply to a reference by the surrogate so far as they can be applied in sub- stance without regard- to the form.of proceeding.** The Iniles appli- cable to references in the supreme court are applicable also to refer- ences in the surrogate's court.** A referee is the surrogate as to trying the issues before him and settling a case prepared to review his work. *^ A referee has discretion to require a bill of the particu- lars of the claim of an executor against the estate ;> and his discretion is not reviewable unless it was abused.** A referee to hear and deter- mine objections to an account may grant any amendment which' the surrogate could on a trial j i. e., any amendment which does not in- clude a, transaction subsequent to the return lof the citation in the accounting, pifoceeding, e. g., he may allow an amended account charging aJegal representative with the profits" of a business instead of a prior account shdwiing all items of disbursements for which the accountant could' not (produce vouchers.*^ A referee to hear and de- termine objections to an involuntary accounting: may permit the accountants to fileia supplemental' account showing as paid their at- torney's foe listed;but, not shown as paid in the original accounting, and. afCtually I paid: after the original account so that it might be so U3te(J.iin the supplen)ental>: account.** ISdnew citation is necessary because, the parties to, whom it would; issue are .before: the court on the citatipn to the original accounting.*'' Ai;referee appointed in a proceeding, to, sell real ^J;3,tie.to, pay debts has the same power tp pass •Matter of Ferrigan,'4^ A. 1). 1 ' **iWeller v. Weller, 4 Hun, 195 (1899), or 58 Supp. gefrj'^ff'd 160 (1875). '"■' ■ ' '' N. Y. 689, 55 N. E. 1095— old Code *8'Estate of Muiizor, 4 Misc. 374 § 2546 like new Code § 2536. i (1893 ) , or 25 Suppi 818 ; old Code §§ 9C. C. P. § 2544, as amend'd L. 2538 to 2546; Matter o:? Geams, 27 1916; c. 446. * Misc. 76, 58 Supp. 200 (1899). *" Id. *8 Matter of Schneider, 1 A. D. 39. i*C. C. P. § 2536: i 36 Supp. 972 (1896), old Code § *2 Matter of Leffingwell, 30 Hun, 2546. 528(1883). <' *■' Matter of Schneider, supra. *» Matter of Bayer, 54 Hun, 189, 7 . i : , Supp. 566 (1889)'.- ■. ■')' ■ S9i .§§829,830 .- ■:■.:: PROCEEDINGS •' on questions of the admissibility or exclusion of evidence as has a referee appointed by the supreme! court to try an issue of fact in an action." The power of a referee to fine a witness is disctissed in Matter of Husted, 37 Misc. 237. (1902) or 75 Supp.^ 252. General Rules of Practice 79, 30 and 56 prescribe a referee's duties in vari- ous contingencies... § 829. Id.: Hearing and Notice. — There is no statutory provi- sion as to notice to. be given of a hearing before a referee ; and all that is necessary is reasonable notice.'? Ten days' notice to the adverse party is ample.*" General Rule of Practice 30 provides for the sig- nature by the witnesses of their testimony. § 830. Id.: Referee's Report, and Surrogate's Determination Thereon. — A referee: must separately state facts found and conclu- sions of law.' Although good practice requires referees in surro- gates' courts' proceedings separately to state and number findings of fact and conclusions of law, a report precisely stating the facts and rulings on all matters at issue will not be sent back, when ex- ceptions have been taken, after the decree, appeal and printing of the record.'' Either party to a reference may submit in writing a statement of the facts he deems established by the evid'enc,e, and of the rulings upon questions of law which he desires the referee to make; and the referee must note in the margin how he disposes of each statement; but if a paarty, whose rights are injured by the ref- eree's refusal so to do, does not apply to the surrogate to compel the referee to pass on the requests, only bringing the report to the sur- rogate with the evidence — to be disposed of in the surrogate's jtidg^ ment — he waives his rights.' One report of a referee entitled in two proceedings for an accounting, one of which was first begun by one of two administrators and the second of which was later begun by the other administrator, is sufficient, when the report is not con- fusing.* Referees' practice in the surrogate's is assimilated! to that in the supreme court; and, therefore, a surrogate court's order di- recting an executor within ten days to take up a referee's report and pay" the balance of the referee's and stenographer's fees is unau- thorized when based on an affidavit made on inforrnation and belief " Matter of Walker, 43 Misc. 475, §§ 2536. and 2770 make C. C. P. § 89 S,upp. 459 (1904), old Code § 1022 applicable to reports of surro'- 2546, like new Code § 2536. ' gates' referees. "Matter of Fertigan,^..42 A. D. 1 ^ji^tter of Schroeder, No. 2, 113 (1899), or 58 Supp. 920; aff'd 160 A. D. 221-(1906), or 99 Snpp. 174 N. Y. 689, 55 N. E. 1095, to report » Matter of Melleii, 56 Hun, 553 with opinion on evidence taken. (1890), or 9. Suppj 929. "" Matter of Ferrigan, supra. * Matter of Smith, 40 Misc. ' 331 'Matter of Baldwin,, N. Y. L.- J. (1903), or 81 Supp. 1035. June 11, 1915 (N. Y. Surr.), C. C. P. 895 NEW YORK ESTATES AND SURROGATES § 830 of an attorney and when the referee's report has neither been filed nor any bills or affidavits from the referee and stenographer have ibeen submitted, nor fees taxed.* The failure of witnesses before a referee to ,si^ their testimony cannot be taken advantage of after it has been taken,- considered and reported to the surrogate with the referee's opinion.® The time to object to testimony' filed by a ref- eree in a surrogate's -court, if dissatisfaction exists with it is before the motion to- confirm it is heard and determined.'' A motion to set aside a referee's report and for a new trial should properly be madp , when its confirmation is moved so as to have all questions determined on one motion ; but there is no reason why such a mo- tion should not be made after the report has been confirmed, judg- ment entered thereon and appealed from.' In a proper case the surrogate can send back to a referee his report to make corrections and pass on questions of fact not noticed in it.^ A surrogate- may set aside a referee's findings and himself determine upon the evi- dence submitted to the referee any question presented.^" A surrogate must examine the evidence on return of the report of a referee to examine and report only and must determine the questions present- ed by the exceptions filed to the report; and his order on such re- port, rendered on his refusal so to determine, wilL be reversed.*^ A referee's report is deertled to have been confirmed as of course by the surrogate unless passed upon and confirmed, approved, modified or rejected by the surrogate within ninety days after it has been submitted to him ; and a decree iconfirming the report may be en- tered by any party interested in the proceeding upon two days' notice.'", No attack, can be made on a suirogate's decree entered on a referee's report, but sustaining objections thereto on the ground that the surrogate, diid not pass on, thp; report within ninety days and thftt thjB^efore.it was confirmed, as of course vfhen the, point is only raised for the first tim^ on appeal; especially when the attack is legally groundless even if the objection had been made before the surrogate." To confirm a referee's report and decree dlstribuT tioh the' surrogate must have laefore hina as parties either the dece- » Matter of Dunn, 164 A. D. 134, 7 Silpp. 566 (1889), C. C. ?. g 149 Supp. 530 (1914). 1023. « Matte* I of Hirsch, No. 1,. 116 A. • J" Matter of Schaefer, 65 A. D. 378 D. 367 (1906), or 101 Supp. 893; (1901), or 73 Supp^ 57 aff'd 171 N. aff'd 188 N. Y. 584, 81 N. E. 1165, Y. 686, 64 N. E. 1125, old Code § General Riile of Practice 30. ; ■ 2546, in new Code § 2536 — acbouht- ■ ''Matter of Dietzelj 36 A. :D.' 300, ing. • 55, Supp. 323, (1899); " Matter of B«dfotd, 30 Hun, 551 ' Bauman V. Moseley; 63 Hun, 492, (1883). ' ■- . 18 Supp. 563 (1892), reference of '^ c_ c. P. § 2536. ' disputed claim. . , • < '*Mptter of > Hoffman, 136 A. D. s Matter of Baver, 54 Hun, 189, S16, 121 Supp. 184 (1910). 896 § 831 PROCEEDINGS dent's representatives or, if they be dead, their representatives, e. g., he has no jurisdiction when a sole temporary administrator dies after the filing of the referee's report ; but he has jurisdiction when one of two executors died in the same way, as he can charge the estate to the surviving executor as joint tenant.^* A referee's report is properly' referred to in the surrogate's decree as having been made on a reference to hear and determine all disputed matters raised when no objection was made before either the referee or surrogate that the former could not determine such questions because the order of reference only ehipowered him to examine and report. i* A party aggrieved at a referee's finding affecting a material matter should except thereto and appeal from the decree entered on the referee's report containing such finding, because if he do not do so and the time to appeal has expired it is doubtful if he can thereafter seek to correct his error by motion.'* An order of reference to re- port on an account and objections made ex parte two years after the account and objections were filed will be opened to allow the repre- sentative charged therein with substantial amounts to sustain claims for allowance of such charges when the order was entered on such representative's default while absent from the state and without knowledge thereof; although the representative's counsel appeared at the time and objected to the order as improper.^'' The rules of various surrogate's courts provide for the manner of filing a referee's report; its confirmation; hearing on exceptions to it; etc." The General Rules of Practice provide for filing a referee's report.'* § 831. Id.: Termination of. — The statutory provision*" that a referee's report must within sixty days from final submission of the matter either be filed with the clerk or delivered to the attorney for one of the parties does not apply to a reference by a surrogate.*' The right to terminate a reference when the referee's report is not filed and delivered within sixty days from the time the case is finally sub- mitted does not exist in references in special proceedings but only in actions.' Failure by a referee to file his report within sixty days frona final submission of the case does not lose him his fees unless some party elects to terminate the reference because of such failure ; '* Matter of Steendken, 51 A. D. '* General Rule Practice 30. 417 (1900), or 64 Supp. 660. *» C. C. P. 1019. '6 Matter of Lefflngwell, 30 Hull, *' Old Code § 2546, new Code § 528 (1883). 2536; Matter of Robinson, 53 Migc. 16 Matter of Seaman, 63 A. D. 49 171, 104 Supp 588 (1907). (1901), or 71 Supp. 376. 'Bennett v. Pittman, 48 Hun, 612 '■'Matter of Gorman, 49 A. D. 637, (1888), or 1 Supp. 27; old Code § 63 Supp. 123 (1900). ' 1019, reference to take proof in pro- '* See, e. g., these Rules : N. T. 16 ;' ceeding to, compel attorney to pay Bronx, 15. over money. ' ' N. T. E. & S.— 57. 897 ' NEW YORK ESTATES AND SURROGATES § 831 otherwise his report, though filed after sixty days, is good.* The point that a reference was terminated by failure of the referee to file his report within sixty days of the final submission of the case can- not be raised for the first time on appeal.^ A reference cannot be terminated for failure by the referee to file his report within the time limited by statute when he notified the attorney for one side that it was ready for delivery and delivered it after offering to file it in the proper office and did not so file it because such attorney, after receiving it, asked that it remain in the referee's office while the attorney arranged for payment of the referee's fees.* When a referee's report is not filed till more than sixty days after the final submission of the matter a party to the reference may terminate it by serving notice of election so to do; and the. revival of the ref- erence by court order on motion of another party without informing the court of the exercise of election to terminate ma,y be vacated on motion by him who served the notice of termination even though he has filed objections to the report made under the order of reviv- al.^ But if no decree is presented to the surrogate after the expira- tion of ninety days from the submission to him of a referee's report and before he has acted on it, the surrogate, although more than ninety days have passed since such submission, may make and enter a decree directly opposite to the referee's report.^ If an ex- tension for a specified time be given a referee to make his report, either party may terminate the reference if the referee does not de- cide within such extended period.'' A reference to ascertain and re- port the amount of an attorney's lien on a client's cause of action and papers, and the amount; of compensation to which the attornej' is entitled, cannot be terminated by service of a, notice of election so to do because of failure by the referee to file his. report.' Al- though; a joint letter by the parties to a reference addressed to the referee after the expiration of his time to file his report stating that they had long ago submitted the cause and thought they would drop him a joint note to refresh his recollection "and .procure a. de- cision in the future" amounts to an extension of the time, yet it does * Nealis v. Mayer, 21 Misc. 344 tamentary trustee over 90 days after (1897),.or 47 Supp. 165. referee's report submitted to effect * Nealis v. Mayer, 21 Misc. 344 that none of charges against trustee (1897), or 47 Supp. 165. , were well founded. . *Winckler v. Winckler, 149 A. D. 'Patterson v. Knapp,, 83, Hun 2S0, 133 Supp. 768 (1912), C. C. P. 492 (1895), or 32 Supp. 32; old § 1019. Code § 1019. ^ Matter of Santos, 31 Misc. 76, 64 ' Matter of Doyle v. Mayor 2(i Supp. 572 (1900), C. C. P. § 1019, Misc. 61 (1899), or 56 Supp. 441; old Code § 2546. comes under C. C. P. § 827 and not « Matter of Clark, 168 N. Y. 427, under C. C. P. § 1019. 61 N. E. 760 (1901)— removing tes- 898 § 832 PROCEEDINGS not warrant an indefinite extension, and either party may properly serve notice of election to terminate the reference when 28 days after the note have passed without any report; and a subsequent report by the referee is irregular.* § 832. Id.: Referee's Compensation. — Acceptance of a reference is a voluntary act by which the referee agrees to rely for payment of his fees either on the interest of the prevailing party to take up the report, or on his common law action to recover them after filing l^is report in due season : a tender of his report within the time lim- ited for its filing is not equivalent-to its delivery to the attorney for one of . the parties.** Ordinarily a referee must look for his com- pensation to the party who takes up the report and not to the ad- verse party.** All parties to a special proceeding are liable for the fees of a referee and unofficial stenographer employed by consent of all parties — even those parties who objected to the appointment of the referee.** The* committee of an incompetent who took part in a special proceeding is also liable for the fees of the referee.** A referee appointed by a surrogate under his statutory powers is en- titled to the same compensation as a referee appointed by the su- preme court in an action for the trial of an issue of fact.** A referee is entitled to $10 for each day spent in the business of the reference unless at or before the commencement of the hearing or trial a dif- ferent rate of compensation is fixed by the consent of the parties other than those in default for failure to appear or plead; manifest- ed by an entry in the minutes of the referee, or otherwise in writing,. or a smaller compensation is fixed by the surrogate in the order ap- pointing him.'' The total amount of a referee's fees is only deter- minable on taxation of costs as it is a disbursement allowable only on presentation of evidence thereof to the taxing officer.*^ If the referee insist on payment before delivery of his report (as he may because he has no: lien for ser^•ices after delivery) he does so upon the legally implied condition th^t if- the amount paid prove greater than what the court thinks proper on taxation he will return the excess.*'' And his responsibility to the court for what he did while referee continues after his capacity as an officer of the court ceases 9 Gill V. Clark, 31 Misc. 337 (1900), ** Bottome v. Alberst, 47 Mise. 665 or 65 Supp. 406; aff'd, 54 A. D. 617, (1905), or 94 Supp. 348. 66 Supp. 1132. C. C. P. § 1019. *3 Bottome v. Alberst, supra. *» Little V. Lynch, 99 N. Y. 112, ** C. C. P. § 2536. 1 N. E. 312 (1885),. C. C. P. § 1019: *5 C. C. P. § 3296; Duhokop v. but see Geib v. Topping, 83 N. Y. 46 White, 13 A. D. 293 (1897), or 43 (1880). Supp. 190. ** Attorney-General v. Continental ** Duhokop v. White, 13 A. D. 293 Life Ins. Co. or Matter of Winfield, (1897), or 43 Supp. 190. 93 N. Y. 45 (1883). *'' Duhokop. v.. White, supra. 899 NEW YORK ESTATES AND SURROGATES § 832 on delivery of his report.** A referee appointed by a surrogate on an executor's accounting can get an order from the surrogate re- quiring the executor to pay his fees after his report has been made without payment within a reasonable time ; because the referee is an officer of the court holding the fund; but if a stipulation on the referee's minutes waiving the statutory fees of the referee be repudiated, the court can grant only the statutory compensa- tion.*' Nothing should be paid a stenographer for attendance at a reference on days when adjournments were had until and unless a stipulation has been made for such payment.*" It is only just to clients that agreements made by cdunsel which may enhance the burden and costs of litigation should be made tipon their judgment and professional responsibility, and an attempt to impose an indef- inite liability upon parties to a proceeding ought not to be sanc- tioned.^ Therefore, an oral agreement, taken down in substance by the referee's stenographer at the first hearing that it should be left to the referee to fix his own fee probably does not suffice to en- able the fees fixed by the referee to be taxed as costs against the un- successful party.* If a referee stipulate that his fees "be: taxed as a cost against the estate in the first instance," he agrees not to look to the parties individually until the costs have been taxed by the surrogate.' If it be stipulated on his record by and between the parties that the stenographer's fees be so and so, and be made a part of the referee's fees, and paid out of the estat^Cj on the taking up of the referee's reporty no action can successfully be maintained to recover the referee's and stenographer's fees from theadmiriistrators individually.* But if the stipulation on a referee's tninutes fix his fees and state "the same to be taxed as a cost against the estate in the first instance," yet they may be recovered personally from the rep- resentative if the referee's report show a large deficit in the estate, even though an ancillary representative in another state have ample funds to pay ^uch fees and refused to do so on demand; because there was no agreement to confine the claim to compensation for services rendered at the domestic representative's instaiice to the estate/ there was no privity between the ancillary representative 1' Duhokop V. White, supra. ' Albert v. Miller, 85 Misc. 16 19 Matter of Hurd, 6 Misc. 171 (1914), or 147 Supp. 50,— aecount- (1893), or 26 SuiJp. 893. ing. *" Matter of Maritch, 29 Misc. 270 ' tBottome v. Neely,: 54 Misc. 258 (1899), or 61 Supp. 237. (1907), or 104 Supp. 429; afE'd 124 * First Nat. Bank of Cooperstown A. D. 600, 109' Supp. 120— surro- v. Tama jo, 77 N. Y. 476 (1879). gate's court reference to take evi- ^jFirstNat. Bank of Cooperstown dence and report in proceeding to T. Tamajo, supra, old Code of Pro- increase administrator's bond. 908 §§ 844, 845 PROCEEDINGS rogate's court, if not set aside by the judge before whom the quc>lion is tried, must be certified to the surrogate's' court by the clerk of the court in which the trial took place.' The verdict' is conclusive except upon appeal; and the surrogate has no power to set aside Iho verdict or grant a motion for a new trial.* It is not proper to u^o a concise direction for judgment when concurrent' claims or de- fenses may possibly be defeated or supported, in the alternative; or the determination as to a claim is that it is subject only to one or more of several defenses and not to the others.® ■ § 844. Id.: Non-Jury Trial or Hearing.-i-The surrogate must make ihis: decision upon a trial before him without a jury.^* The decision must be in writing and must direct the decree to be en- tered.^^ It need not contain either the facts found or the conclu- sions: of law.'* Issues may be separately tried in the Surrogates' Courts by order.*** § 845. Id.: Exceptions.— Exceptions are taken only on trials of issues of fact.*' Exceptions are taJcen to the same matters, at the same time and in the same manner, whether the trial of "the issue of fact be before a surrogate alone, or with as jury.** Exceptions, though taken on trials of issues of fact, can only be taken to rul- ings therein made by the surrogate on questions of law which then arise; '^ save tha:t any party to a jury trial may. except to the sur- rogate's determination on the challenge either of a juror, or to the panel or array of jurors ; '* and save that any party to a trial without a jury may except to a finding of fact without any evidence to sus- tain it, as this is considered a^ruling upon a question of law.*''" Exceptions to a surrogate's rulings must be taken orally at the time the ruling ' is made,'* and must then either be reduced to writing by the exceptant or entered in the minutes^'® save that on a jury trial an exception to the charge, to the jury may be taken orally not only when made but at any time before the jury have rendered their verdict; *" and save that on a trial without a jury an. exception to a ruling made after the cause is finally submitted may be taken by filing a notice thereof in the office, of the clerk of .the surrogate's court and serving a copy of suchi notice upon the attorney for the adverse party at any time before the expiration of the ten (10) '^ C. C. P. §§ 2538-9. ' "C.'C. P.§§2542j 2757; 992; 993. . 8 C. C. P. §§ 2538-9. i*C. C. P. §§. 2542; 2575. 'Matter of Hibbard, 89 Mise. 707 ■ « C. C. P. § 2542; 2575; 992. (1915), or 153 Supp. 1097. " C. c. P. § 2542; 2757;. 992; 1180. i» C. C. P. § 2541. "C. C. P. § 2757; 2542; 992; 993. " C. C. P. § 2541. 1? C. C. P. §§ 2542 ; 2751 ; 992 ; 993. 1*0. C. P. § 2541. 19 C. C. P. §§ 2542; 2757; 995. 12* Matter o£ Fox, 166 A. D. 718^ *" C. C. P.V§§ 2542; 2757; 995. 152 Supp. 431 (1915). - 909 NEW YORK ESTATES AND SURROGATES § 846 days after service upon the exceptant's attorneys of a copy of the court's decision (or referee's report) and a written notice of the entry of the order or decree thereupon.^ If the notice of exception is filed. before the entry of the final decree, it must be inserted in the judgment roll; if, afterwards, it must be annexed to the judgT ment roll, but in either case it constitutes a part of the papers upon which an appeal from the cause is to be heard.* A ruling to which an exception is taken can be reviewed only upon an appeal from the decree rendered after the trial; except when a motion for a new trial may be made on the ruling excepted to.* A question as to the right of a surrogate to make an award of compensation to a special guardian on a contested accounting is a question of law which should be raised in the appellate court by an exception.* Exceptions to the report of a referee appointed to hear and deter- mine, overruled by the surrogate, are sufficient to present a case on appeal, without the necessity of filing exceptions to the surro- gate's decree itself;^ because in denying confirmation of, or modi- fying the report, the surrogate, acts in an appellate or supervisory and not in an original capacity.' It is sufficient for the surrogate to confirm the referee's report by order in order to make the referee's decision his own.® § 846. Decrees and Orders: In General.-|-Every direction of a surrogate's court made or entered in writing except a determination of the rights of the parties to a special proceeding in the surrogate's court is an order ; and may be enforced in like manner as a similar order made by the supreme court in an action.'' A determination of the rights of the parties to a special proceeding in a surrogate's court is a deereej* A final determination of the rights of the parties to a special proceeding in a surrogate's court is styled in- differently a final order or a decree, but not a judgment.® As an application for probate and an application for letters of administra- tion are separate proceedings, distinct decrees (a) denying probate, and (b) granting letters of administration should be submitted." The surrogate may, on application, order contestants of wills to furnish bills of particulars as to matters alleged in their answers or »C. C. P. §§ 2542; 2757; 994; 995. 286 (1902), or 74 Supp. 755, old " C. C. P. §§ 2542; 2757; 994. Code § 2545-6. 3 C. C. P. §§ 2757; 2542; 996. '' C. C. P. § 2548. 4 Matter of Dunham, — Misc. — » C. C. P. § 2548. (1916) N. Y. L. J., Mch. 16, 1916, C. 'Matter of Gibson, 195 N. Y 466 C. P. § 994. , 88 N. E. 1100 (1909), old Code § 6 Matter of better, 44 A. D. 404 2550. (1899), or. 61 Supp. 175; aff'd 162 " Est. of Dunham, N. Y. L J Nov N. Y. 615y 57 N. E. 1129.: 5,, 1914 (N. Y. Surr.) C. C P 8S « Matter of Woodward, 69 A. D. 2521 and 2588. 910 §§ 847, 848 PROCEEDINGS objections, e. g., the names of persons exercising the influence al- leged in the answers or objections to have been unduly exercised, or to have exercised restraint or fraud.^^ § 847. Id.: Amendment. — If the exigencies of the case require it, a surrogate may amend his order notwithstanding an appeal from it.^^ A surrogate may amend nunc pro tunc his order revoking an administrator's letters so as to change the cause from absconding from the state to incompetency to act through improvidence, when the original moving papers justify this finding, even though he may not have had statutory power to remove the administrator for absconding." A surrogate has power to amend a decree entered by him by inserting in it things shown by his decision to have been omitted from the decree by mistake or inadvertence, e. g., the right of legatees to the immediate payment by an executor of amounts he claims to withhold from their legacies on the ground he had overpaid them; as otherwise such legatees would be remediless be- cause they could not appeal from the decree as entered, their peti- tion not having been denied.^* A motion to change a decree giv- ing a fund to a life tenant without conditions by imposing the condition that he give bond for its Reservation is entirely in the court's discretion when no permission to make such a rdotion is contained in the decree.^* The rules of various surrogate's courts require that amendments proposed to decrees and orders be sepa- rately stated and not by submission of a whole new proposed decree or order. ^* § 848. Id. : Opening, Vacating, Modifying, Setting Aside and En- tering as of Former Time: Jurisdiction. — A surrogate, in or out of court, as the case requires, has power to open, vacate, modify or set aside or to enter as of a former time a decree or order of his court ; only, however, in a like case and in the same manner as a court of record and of general jiirisdiction exercises the same pow- ers.^'' The surrogate has inherent jurisdiction to open his decrees at the instance of parties brought into court by citation but who, through mistake, inadvertence or any excusable cause, fail to ap- pear.^* The rule to be applied in deciding upon an application to open, vacate, etc., a surrogate's decree is that in force when the 1* Matter of Heimburger, N. Y. L *^ Hitchcock v. Peaslee, 145 N. Y. J. Jan. 7, 1916, Bronx Surr. 547, 40 N. E; 211 (1895). 12 Matter of Plumb, 52 Hun, 119, i^ See, e. g., these Rules : Bronx, 16 ; 4 Supp. 831 (1889). Kings, 18 ; Queens, 24. « Harrison v. Clark, 20 Hun, 404 " C. C. P. § 2490, subd. 6. (1880). "Matter of Doig, 125 A. D. 746, ,1* Matter of Robertson, 51 A. D. 110 Supp. 93 (1908). 117 (1900), or 64 Supp. 385; aff'd' 165 N. Y. 675, 59 N. E. 1129. 911 NEW YORK ESTATES AND. SURROGATES §-849' application is made and no,t that in effect when the decree in ques- tion was rendered.^' The jurisdiction! < of the surrogate to open, vacate, modify, set aside or enter nunc pro tunc a decree or order of his court must be deternjiped, hy the practice pursued by courts of" record . of general jurisdiction in exercising the same powers.^" Therefore, when the ground advanced for setting aside a .decree is the; infancy, of the applicant or the existence of irregularities in the course of the proceeding the application must be made, within one year after the minor afrives.at, majority if two years have elapsed from the entry of the decree.* An application to setjaside- because ;of; fraud, collusion, vqidness for any, reasoia or lack of ju- risdiction of the person against, whom the decree was rendered is .not governed by such, a limitation,* Although a surrogate may have jurisdiction in a particular case to open, vacate, modify, set aside or enter nunc pro tunc his decree or order he will not, exercise his pow- er when the parties; were all duly represented on the hearing and have been injured, if at all, thrpugh their own or their representa- tives' acts.^ An apphc3,tion by a major to open, and set aside a pro- bate decree entered,, >vhile he, was a minor will be denied wh was had; shortly after becoming twenty-one the infant in court executed a release and received his legacy, with its accumulations.** § 851. Id.: When Barred. — The Umitations of time for the exer- cise of their powers to open, vacate, modify, set aside or enter as of a former time their decrees and orders put upon other courts do not bind the surrogate.* No limitation of time is placed upon him.'' A petition to have a decree settling an administrator's accounts opened and amended so as to direct payrnent to the petitioner of a legacy instead of to its legatee on the ground that the latter had assigned the legacy to the petitioner will be denied when for ten years the petitioner made no attempt to give notice of the assignment or present his claim except to an executor who had been dead fifteen yearsf; of whose death he could have found out at any time by ap- plication to the surrogate of the proper county ; when no notice of the assignment is shown to have been given to the administrator sought to be charged; when the validity of the assignment is de- nied ; and when the accounting is complete and the funds have been paid out pursuant to the accounting decree.' After affirmance on appeal has been generally had, it is doubtful if the surrogate's court has the power to open, vacate, modify, set aside or enter nunc pro tunc such decree.* After the appellate division has denied an ap- plication to, open a surrogate's decree which it has passed on, the surrogate cannot order the same decree opened and further testi- mony taken.* Eeopening of a decree settling an executor's account is properly refused when the application is made nine years from the time the decree was entered, on the ground of an error of $280.02, on inconclusive evidence that the error exists.* § 852. Id. : When Appeal Prpper Remedy. — An error of sub- stance, whether of fact, or law, in a surrogate's decree is ground only for appeal and. not for opening the decree.'' Errors of substance *" Matter of Wickwire, 80 Misc. pra; Matter of Johnston, 76 Misc. 137 (1913), or 14i Supp. 783; old 374 (1912), or 137 Supp. 92; vaca- Code § 2481, subd. 6, new Code § tion of order of adoption. 2490. : 8 Matter of Cook, 68 Hun, 280 1 Matter of Flynn, 136 N. Y. 287, (1893), or 22 Supp. 969. 32 N. E. 767 (1892), old Code § 2481, * Matter of Peterson, 68 Misc. 10 subd. 6, like new Code § 2490; Mat- 124 Supp. 907 (1910)— old Code § ter of Henderson, 157 N. Y. 423, 52 2481, subd. 6, now in new Code § N. E. 183 (1898), to correct clerical 2490. error in decree settling executor's ac- * Matter of Westerfleld, 61 A. D counts; but see C. C. P. § 2490. 413 (1901), or 70 Supp. 641. * Matter of Flynn, supra; Matter * Matter of Dego, 36 Hun, 512 of Mather, 41 Misc. 414 (1903), or (1885), aff'd 102 N. Y. 724, 7 N E 84 Supp. 1105; aff'd 90 A. D. 382, 819. 85 Supp. 657, decree assessing trans- ' Matter of Wallace, 28 Misc. 603 fer tax; Matter of Henderson, su- (1899), or 59 Supp. 1084 918 § 852 PBOCEEDINUS in a surrogate's decree can only be corrected by appeal and not by modification for fraud, newly discovered evidence, clerical error or other sufficient cause.* Errors of substance in accounts can only be corrected on appeal and not on an application to vacate.' A surrogate's decree settling accounts, sent back to be readjusted as to certain items, is conclusive as to all other items.*" The sur- rogate cannot elitertain a motion to modify his decree in a case in which relief could be had by appeal, e. g., by striking out a pro- vision allowing commissions.*^ A surrogate has no power to open, vacate, modify, set aside or enter nunc pro tunc a decree or order when the proper remedy is an appeal from such decree or order. *^ A petition that the petitioner's attorney was mistaken as to the law of distribution when the decree sought to be vacated was en- tered gives the suirdgate no authority to so vacate it when on the return day ih the proceeding all parties were represented by at- torneys, the decree was settled on notice to and consent by them all and was made as they all then believed in accordance with law.*' Unless a surrogate grants a reargument or rehearing on an ad- judication made of a question submitted to his court of which it had jurisdiction and on which a decree or order has been had, the determination is filial aiid reviewable only on appeal.** A surrogate's determination, ih allowing three full commissions, that an estate amounted to $100,000, said to be wrong because of the improper inclusion of certain personal property, is not a clerical error, but an error of law reviewable on appeal only.*' That "other sufficient cause" which is ground for vacating a decree must be some fact other than that the decree was erroneous, which must be raised on an appeal to be taken from it.*^ An alleged erroneous construction.: of a will is. not "other sufficient cause" to furnish ground for opening the decree, as such a cause is not of like nature 'Matter .of; Wfilrath or Cray tor, trustee committeij, for contempt, no 37 Misc. 696, 76 Supp. 448 (1902), new facts being presented justifying old Code § 2481, subd. 6. reargument on rehearing. ' 9 Matter of Mount, 27 Mise. 411, *' Matter of Monteith, 27 Mise. 163 59 Supp.; 176 (1899); (1899), or 58 Supp. 379. *» Adair v. Brimmer, 95 N. T. 35 *8 Matter of Douglas, 52 A. D. 303 (1884). (1900), or 65 Supp. 103,— surrogate ** Matter of Humphreville, 8 A. D. cannot vacate decree charging exec- 312 (1896), or 40 Supp. 939; old utor with certain bonds about which Code § 2481, subd. 6. no question was made till 6 years ** Matter of Sehlosser, 63 Mise. 163 later when he sought to credit him- (1909), or 116 Supp. 796. self with some of them, as there was ** Matter of Sehlosser, supra. no fraud, newly discovered evidence, ** Matter of Hayward, 44 A. D. clerical error or other sufficient cause, 265, 60 Supp. 636 (1899), old Code old Code § 2481, subd. 6. § 2481, subd. 6, in new Code § 2490; 919 NEW YORK ESTATES; AND SURROGATES §§ 853, 854 to^fraud, newly discovered evidence or. clerical error and is an error of law only." A, motion to open the, probate of a, will and for a rehearing is not the proper , remedy (to Tevie\7 a surrogate's deci- sion as to the due execution and proof of a will as these are ques- tions of fact for the surrogate's, court to decide and if thought to have, been wrongly decided appeal was the proper, remedy..^!' §, 853. Id.: Effect, In General. — Every decree of a surrogate's court is conclusive: (1) as to all matters embraced;. in it; .(2) against every person of whom, jurisdiction was obtained;^® The effect of decrees in various proceedings, e. g., accountipg, probate, etc., is treated under that particular proceeding. "The, presumption that a foreign court of general, jurisdiction had jurisdiction to niake a decree does not apply to a decree of a foreign probate court; proof must be made that the law ,cif the foreign state authorized rendition of the decreoy and that- such law's necessary step^ to ac- quire jurisdiction both of the person and subject rnattpr were tajf en ; because a probate court is one of limited and inferior jurisdiction.^" An adjudication by a surrogate in a proceeding to which a minor, regularly represented in accordance with the practipe of the CQurt, is a party, has the same , effect as a .similar adjudication betwieen adults ; and the relief, which the minor ; has from an erroneous or irregular adjudication is the same as tb,at of i^ adiilt, except as to the period of time within which an application for, relief from an irregular judgment must be made.^ § 854. Id.: Docketing.— A. decree of a surrogate's court directing the payment of a sum of money either into coiirt or to oiieor more persons designated in the dpcree may be docketed in the office of any county clerk in the state by the taking of the following ,«teps: (1) Any person may apply to the surrogate , oi* the clerk of the surrogate's court, (who rhust furnish the transcript or trans- cripts) for one or more transcripts, dtily attested, stating all the particulars with respect to the decree which are required by law to be eititered in the clerk's docket-book in a ease in which a judg- ment for a sum of money is rjeiid'ered in the supreme court, so far as the provisions of, law directing such entries are applicable to such a decree; (2) Any person may present to' any county clerk .such a transcript and paly the county clerk's fees for filing and dock- eting it; and such, clerk miist then imrnediately file the transcript a,nd docket the decree in the, appropriate docket-book kept in his "Matter of Beech, 3 Misc. 393. " C. C. P. § 2550. 24 Supp. 717, old Code § 2481, subd. i^o Matter , of Law, 56 A. D 454 6. (1900), or 67 Supp. 857. , " Matter of Ga£Ene.y,,116 A. D. 583 ^ , i Matter of Hawley, 100 N. Y. 206 (1906), or 101.. Supp. 882; afFd 180 3 N. E..68 (1885). N. Y. 503, 81 N. E. 1165. . . ,■ 920 §§ 855-857 PROCEEDINGS office as prescribed by law for docketing a judgment of the supreme court.* A decree of a surrogate's court directing the payment of a sum of money into court or to one or more persons designated in the decree, when duly docketed in the office of any county clerk, has the same force and effect as if it were a judgment. The lien of such a decree may then be suspended or discharged; and the decree itself may be assigned or satisfied, as if a judgment.* The. right to docket a surrogate's decree settling an administrator's accounts so as to give it the effect of a judgment does not make it any the less the surrogate's decree, and only he or his clerk can enforce it by issuing execution or by punishing for contempt, though the mode of procedure in issuing an execution on a supreme court judgment appli&s in the surrogate's court.* § 855. Id.: Satisfaction. — A surrogate's decree must be satisfied as is a judgment of record: and when the certificate of satisfaction is executed outside the state the certificate of the county clerk as to the authority of the officer taking the acknowledgment must specify that he was authorized by the la.ws of that state to take the proof and acknowledgment of deeds.* § 856. Id.: Enforcement: Service.^-Enforcemgnt may be made by service of a decree of a surrogate's court which either directs the payment of money or requires the performance of any other act. The service must be of the decree itself or a certified copy of the decree upon the party against whom it is rendered or the officer or person who, either by the dfe'cree or by law, is required to obey the decree.* § 857. Id.: Enforcement: Execution and Attachment. — ^Execu- tion to enforce a decree directing the payment of money into court or to one or more parties may be enforced against the property of the, party directed, tO; make the payment.' The peculiarities of such an execution in a special proceeding in the surrogate's, court are these:, (1) The execution must be issued by the surrogate or the clerk of thei surrogate's court; (2) It must be under the seal of the surrogate's court; and (3) It must bp naade returnable to the sur- rogate's court.' In all other respects the decree of the surrogate is regarded as a judgment of the supreme court except in proceedings supplementary to, tiie execution in all counties (except New York, Kings, Queens, ^ronx and Eichmond) when the decree of the sur- 2 C. C. P. § 2551. 55 (1892), or 21 Supp. 780; old Code 8 Id. § 2553, § 1260, L. 1848, c. 195, §§ 1 * People ex rel. Sackett v. Wood- and 2, amend'd L. 1867, c. 557, §■ 3. bury, 70 A. D. 416, 75 Supp. 236 «€. C. P. § 2554. (1902), old Code §§ 2553 to 2555. '' C. C. P. § 2553. s Matter of Wilcox Estate, 1 Misc. ' Id. 921 NEW YOEK ESTATES AND SURROGATES § 857 rogate is regarded as a judgme;ai; of the county court. In New York,, Kings, Queens, Bronx and Richmond, counties -the decree,, even, in proceedings supplementary , to execution, is regarded as a judgment of, the supreme court.® "All final decrees against an ad- ministrator which adjudge money of the estate in his, hands due iand payable to parties entitled run against him personally and dehquis propriis,,iov. they may be dpeketied and become a general lien and be enforced by execution which i;anges oyer all his • property." ^^ Execution on a decree directing executors to pay certain sums to cer- tain persons should be issued against the property of theiindividuals who are executors and not against the goods of the decedent. ^^ iVn execution permitted. by order to, issue against an ; executor qt ad- ministrator precludes him, except by a-ppeal, from claiming that there are not. sufficient; assets, in his hands to satisfy the sum for which the execution is issued,,!, e., the ordep itself is conclusive evi^, dence of the sufficiency of assets, in the absence of, an appeal.^* An application to reach assets, by execution against an administra- tor, wilL be, denied unless at is alleged that there are, at the time, assets in the administrator's hands." Before authority will be granted to is.sue execution, on a judgment against an executor it must be shown not only that he has estate assets in his hands but that they are available and applicable to payment of the judgment." An execution against the property of an executor, individually, is proper when it is issued by the supreme court, recites the, surrogate's court's decree requiring the executor as such to make a payment, recites the filing of the transcript of the decree and its docket, and requires the sheriff to make satisfaction out of the personal property of "said judgment debtor." " Execution may issue on a judg- ment against an administrator for his intestate's funeral expenses, against the proceeds in the administrator's hainds of a settlement of an action by him for negligence causing his intestate's death.** The income of a trust fund cannot be levied upon under an execu- tion and such a levy is illegal.*'' Execution may be issued to eri- fbred payment of moneys directed to be paid by surrogate's decree whether the sum to be paid Consists of costs alone or otherwise.** 9 Id. ** Matter of Quackenbos, 38 Mise. 1" Power V. Speckmaa, il26 N. Y. 66, 76 Supp. 964 (1902). 354, 27 N. E. 474 (1891). ," Matter of McDermott, 49 Misc. iiMatter of Waring, 7 Misc. '5t)2 402, 99 Supp. 829 (1906), C.C. P. (1894), or 28 Supp. 393; old Code § 1903, as amend'd L. 1904, c. 515. §§ 2554, 2555. "North American Trust Coi v. 18 C. C. P. § 2549. Aymar, 33 Misc. 576 (1901), or 68 *« Matter of Thurber, 37 Misc. 155, Supp. 870 ; C. C. P. § 644. 74 Supp. 949 (1902). ; ** Matter of Hirschy 185 N. Y. 598, "Matter of Lazelle, 16 Misc. 515 78 N. E. 294 (1906). , (1896), or 40 Supp. 343. i , , . 922 § 857- PROCEEDINGS Costs awarded on judgment against an administrator in his action to recover damages for negligence causing his intestate's death can- not be collected by execution issued against him as administrator because the costs are not obtained in an action relating to the estate of the intestate. ^^ If an execution against an administrator per- sonally is returned unsatisfied, a suit in equity against the admin- istrator as such is proper, iand, if it results in a judgment directing payment out of the estate funds, leave of the surrogate must then be had before execution can issue against the administrator as such, so that the surrogate may determine if priority to one creditor of the estate over another should be allowed by the issuance of such an execution.*' "Where a surrogate has made a decree for the payment of money by an administrator, he may enforce the payment of it by attach- ment. . . . It is not needed that the process to attach shquld recite all the facts and proceedings necessary to confer jurisdiction ; as it is enough if on its face it appears to have been issued in a pro- ceeding in which the surrogate had jurisdiction, and states in sub- stance the cause for arrest and specifies the act or duty to be per- formed." * It has, however, been held that a warrant of attachment cannot be authorized against executors because the estate property in their hands is trust property to be dealt with as such for the bene- fit of all having an interest in it.* Although estate creditors cannot issue execution without surrogate's leave, creditors of a business which a testator's will authorizes his executor to continue are not creditors of the estate, and may get attachments against such busi- ness binding on so much of the testator's estate as was in the busi- ness at his death; and as to such creditors and to so much of the estate the executor may confess judgment.' An execution may be allowed by a surrogate on a judgment re- covered against the executor of a decedent, but no supplementary proceedings for the examination of a third person owing the estate as to estate assets in his hands can be had, because it might be fol- lowed by the appointment of a receiver for money appropriated under the judgment, which would do away with the equality among creditors of a decedent designed by statute.* " Matter of McCullough, 18 Misc. » Columbus Wateh Co. v. Hoden- 721 (1896), or 43 Supp. 968. pyl, 61 Hun,,557 (1891), or 16 Supp. ^oSartorelli v. Ezagni, 64 Misc. 337; aff'd 135 N. Y. 430, 32 N E 115, 118 Supp. 46, (1909), C. C. P. 239. §§ 1825, 1826; old Code § 2719. * Collins v. Beebe, 54 Hun, 318 1 Dunford v. Weaver, 84 N. Y. 445 (1889), or 7- Supp. 442; C. C. P. §§ (1881). 1822 & 1825. ^Metealf v. Clark, 41 Barb. 45 (1864). 923 NEW YORK ESTATES AND SURROGATES §§ 858, 859 An execution placed by an administrator (given power by the surrogate to prosecute only but not to collect or compound) in the hands of a sheriff is irregular, if not void, and should be vacated; and the fact that such administrator obtained from the surrogate full power to collect^ after a motion had been made to vacate the execution, is immaterial.* § 858. Id. : Enforcement, Contempt. — The enforcement of a de- cree by contempt proceedings is treated under the general heading of "contempt," which immediately follows. § 859. Contempt.— A surrogate, in or out of court, as the case requires, has power to punish any person for a contempt of his court, civil or criminal, in any case in which it is expressly pre- scribed by law that a court of record may punish a person for a similar con temp t> and in like manner.* The persons who may be committed for disobedience to a direction. of the surrogate's court or for neglect of duty are executors, administrators, testamentary trustees, guardians^ other persons appointed by the surrogate's court, or attorneys or counsel employed therein.'' The persons who may be committed for refusing to obey a subpoena or to testify when required according to law are any persons who so refuse.' Enforcement, by punishing for a contempt of court, of the whole or a part of a decree of a surrogate's court directing the payment of money or requiring the performance of any other act may be made upon the party against whoni the decree is rendered or the officer or person who, eithier by the decree or by law, is required to obey it, if, after service of the original, or a certified .copy of the decree, he either refuses or wilfully neglects to obey it, in any of the fol- lowing cases: (1) When the whole decree cannot be enforced by execution; (2) When part of the decree cannot be enforced by execution — and in this case only the part or parts which cannot be so enforced; (3) When an execution duly issued to the sheriff of the surrogate's county has been returned by him wholly or partly unsatisfied; (4) When the delinquent is an executor, administrar tor, guardian or testamentary trustee and the decree relates to the fund or estate over which he has control — and in this case the surrogate may enforce the > decree by punishment for contempt either without issuing an execution, or after the return of an execu- tion, as he thinks proper.^ "Where an execution can be issued against the property of one who is ordered by a decree of the surro- gate to pay money to a party, such an execution must be issued, apd 'Lambert v. Metropolitan St. R. * C. C. P. §2490. R. Co. 33 Misc. 579 (1901), or 68 ''C. C. P. § 2557. Supp. 877; aff'd 56 A. D. 624, 67 'C. C. P.:§ 2557. Snpp. 1137. 9 C. C. P. § 2554. ~ 924 §859 PROCEEDINGS returned unsatisfiedy in whole or in part, before proceedings for a conternpt ... can be instituted, and until such an execution has been issued and returned unsatisfied, the surrogate has no jurisdic- tion to punish fbr contempt." ^^ No order to punish for contempt can be made for failure to file a new bond.^* A civil and not a crim- inal contempt arises from disobedience by trustees of a court order requiring them to pay a sum of money "forthwith on demand." '^ The surrogate cannot punish by imprisonment for nonpayment of costs.^* The surrogate inay properly make an order punishing an executor as for a criminal contempt of court and fining him the , amount of legacies he had been directed to pay, on his failure so to do.^* An ofiicial' stenographer is properly punished for con- tempt who refuses to supply a copy of the minutes till his demand for twenty cents a folio as paid, unless there is some agreement to pay him more than ten cents, as there is no custom so well estab- lished as to make twenty cents a folio the implied agreement.^* If the stenographer is asked to procure the minutes in a hurry he can stipulate for more than ten cents a folio, and if more than ten cents is refused he need only supply them "with all reasonable dili- gence." " One who disregarded a judge's order because only a copy was served on him without the original being shown him is never- theless punishable for contempt, because the service was only irreg- ular so that it could be set aside, and not void; though he will be let out of jail on inability to pay a fine imposed on condition that he comply with the order, if he acted on advice of counsel." A surro- gate has jurisdiction to make and is justified in making an order im- posing upon an executor a fine to the extent of moneys not paid over by him as required by a decree settling his account and imprisoning him until he paid such fine arid the ' costs of the contempt pro- ceeding when he admitted in such proceeding the service of the decree and the facts of the neglect constituting its violation." An executor is properly held guilty of contempt who does not obey an order requiring him to account on the alleged excuse that an agree- ment between the parties in interest supplemented his work as exec- " Matter of Dissosway, 91 N. Y. D. 267, 79 Supp. 687 (1903) ; aff'd 235 (1883) ; Matter of Watson v. 176 N. T. 604, 68 N; E. 1118. Nelson, 69 N. Y. 536 (1877). " Cavanagh v., O'Neill, 20 Misc. "Estates of Eeldman Infants, N. ff' 45 Supp 489 (1897), C. C. P. Y. L. J., Oct. 7, 1914 (N. Y. Ste.). ^^s.^i,.'^'' n kZ-d i, ^n ,9„ 1 1 -ni • -D-i or ": Billings V. Carver, ,54 Barb. 40 TT ^«? nf«7f' ' ^' ^ ^^' (1868)-advice of comsel does not Hun, 087 (laoi). g^yg from contempt, however. " Matter of Humphreville, 154 N. "Matter of Snyder, 103 N. Y. 178, T. 115, 47 N. E. 1086 (1897). 8 N. E. 479 (1886), old Code § 2555, 1* Matter of Holmes No. 2, 79 A. new Code § 2554. 925 NEW YORK ESTATES AND SURROGATES § 859 utor so that he no longer acts as such as this excuse could only be advanced when the application to compel him to account was made ; or who files a printed account blank in which the word "nothing" is inserted in each schedule, as this is a mere sham to secure de- lay.^' An executor should not be punished as for contempt for fail- ure to comply with the directions of a surrogate's decree until his time to appeal has expired if he satisfies the court that an appeal will be taken which may result in a reversal in whole or in part of the surrogate's decree and in a modification thereof.^' A demand on an executor individually owing money to the estate is a pre- requisite to proceeding against him for contempt for: its nonpay- ment; and inability to pay is an answer to the motion to punish him for contempt for nonpayment because the debt is not fiduciarj- in character and does not rest in tort.^" The surrogate has no au- thority to enforce the payment of costs decreed to be paid by a legal representative by contempt proceedings against the latter.^ An executor or testamentary trustee is properly punished for con- tempt for wilfully disobeying a decree which is conclusive evidence that he has sufficient assets to pay the sum decreed and from which he has not appealed.^ When a decree directs payments to sepa- rate persons not united in interest one of such persons on his own motion can obtain process by which, the trustee shall be fined, in a sum representing the amounts payable under the decree to him- self only and not to persons other than himself.* An executor whose debt to his testator was decreed and an execu- tion therepn I against whom was returned unsatisfied is properly punished by imprisonment for, contempt unless h^- shows Ms in- solvency ;,beq9.use( the decree is conclusive ;evidence of the sufficiency of assets in his hands.* An prider, committing tp jail for iCORtempt granted by a surrogate for failure of a person to answer interroga- tories propounded, directing the witness to be kept jailed till he answer suqh legal aind proper ,inteiTQga,tories as, may be propound- ed to him: is, improper: the order should recite the questions to be answered (preferably in haec verba) and comniit until such ques- tions are answered, so as to give him opportunity to purge himself "Matter of People^s Trust Co. 37 «: Matter of Scheuer, 161 A D 525 Misc. 239, 75 Snpp. 254 (1902). 146 Supp. 707 (1916) ; Matter of 1' Matter of Arkenburgh; 15 Mise. Waring, 1 A. D. 29, 36 Supp 529 416 (1896), or 38 Supp. 178. (1896). ^^ Matter of • Ockerhausen, 59 Hun, 'Matter of Ball, 94 Misc 112 200 (1891), or 13 Supp. 396. (1916). 1 Matter of Grant, 130 A. D. 706, * Matter of Strong, 111 A. D. 281 115 Supp. 283 (1909), temporary or 97 Supp. 459 ; aff'd 186 N. Y. 584', administrator— had no estate funds 79 N: E. 1116. with which to pay costs. 926 § 860 : ! ■ • PROCEEDINGS of contempt by answering the questions and paying a fine.' An administrator against whom costs are personally awarded by the surrogate on settlement of his accounts cannot be punished for con- tempt by imprisonment.^ On application by a guardian, not ap- pointed for an infant beneficiary till five years after settlement of the accounts of an executor directed by the accounting decree to pay over such infant beneficiary's share to the latter's guardian on his giving legal security, to punish the executor for contempt, the court's decree will not go further than to hold the executor in con- tempt and commit him if he does not pay the guardian, within ten days of service upon him of the order, the amount mentioned in the accounting decree less sums paid for the infant's support to the stepfather with whom he lived, whether credited in the account, or paid before, but not credited in the account by inadvertence; if the guardian admits them to have been paid.'' No interest will be charged against the executor for any period before he was served with a 'copy of the guardian's bond.' Mere general statements by a trustee imprisoned for contempt till he pays to one whom he has injured the fine imposed or till the court sees fit to discharge him that he has no property or means of earning money except his per- sonal services will not support his motion to be discharged.* An application for an executor's discharge from jail for failure to pay over an amount due his successor, based on his inability to pay the amount, should be by motion in the court or before the judge who issued the order of commitment and not on habeas corpus? When an executor committed for conteitipt has been jailed five months, has lost his employment, is in serious physical condition and can- not pay the fine imposed upon hirn, he may be released from jail, with leave to renew the application to punish as for contempt if a change in his condition and ability to pay can be etablished." Imprisonment for a contempt or, a levy upon property of a delin- quent does not bar, suspend or otherwise affect an action against sureties on the , delinquent's official bond, if he has given an of- ficial bond."' , , § 860. New Trial or Hearing. — A surrogate, in or out of court, as the case requires, has power to grant a new trial or a new hearing * People ex rel. Jones v. Davidson, Misc. 443, 116 Supp. 800 (1909), or 35 Hun, 471 (1885): ■' 120 Supp. 1125. 6 Matter of Banning, 108 A. D. 12, „„\^?°P'« ^^ '"^l- JDean v. Markell, 95 Supp. 467 (1905). C. C. P. §, 15 ^^ jNIisc. 427, 131 Supp. 383 (1911), old Code § 2555, new Code § 25I4. ^"1^^ ^^^ |§ J^*' ^^^^, ., ^ 7 Tir ^x £ cs I. —i ^ n^ ^r- Matter of Scheuer, 161 A. D. T Matter of Sehweibert, 25 Mise. 528, 146 Supp. 709 (1914), Judiciary 464, 55 Supp. 649 (1898). Law, § 775. . « Matter of Geyer or Alexander, 62 "» C. C. P. § 2554. 927 NEW YORK ESTATES AM) SURROGATES § 860 for fraud, newly discovered evidence, elerical- error or other suf- ficient cause, but only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same pow- ers.^^ "It is essential to the granting of a new:trial on the ground of newly discovered evidence i , that it shall appear that the addi- tional evidenxJC; was not known to ithe party at the time of ihe previous trial, and could not with due diligence have been ascer- tained, and that its character is such that if received it would probably have changed the result." ^* A surrogate cannot grant a new hearing of newly discovered .eyidence unless it appears that the new evidence could not with i reasonable diligenCe have been obtained on the original trial.^' An order, by the surrogate's court for a new trial on the ground of newly discovfeired evidence can only be made on a motion upon a case containing the evidence as well as upon affidavits,' although, if the parties consent that the motion may be heafd. upon the pleadings and affidavits without a case the court has power. to entertain it.^* A new trial of awill should not be granted when the court is satisfied that justice has been done, even for a misdirection to the jury." The surrogate will not grant a new hearing before a referee in an accounting proceeding after the first hearing has been coiicluded, on the grounds that the accounting administrator and guardian had dis- covered new vouchers, which had been mislaid, and desired to call eight or ten witnesses who could give material evidence but whom he had omitted; through oversight, to call on the former hearing ; because he hadi full chance and time to present all his evidence on the first hearing.^* No revivor of the accounting of an executor who died pending the report of the referee on his' account cain be had on proceedings taken after an order requiring the deceased ex- ecutdr's executors to account, rhade in a proceeding in which all parties interested were: before the cburt and acquiesced." When one of two executors who is also a legatee dies' pending their ac- counting it can proceed so as to adjust the accounts of the surviv- ing executor, deternjine the amount of the estate in his hands' and 12 Matte* of Rose, 153 A. D. 263, "Matter of Rose, 153 A. D 263 137 Supp. 1079 (1912), old Code § 137 Supp. 1079 (1912), C C P S 2481, subd. 6, new Code § 2490., 997.,,;'; ,,.; ,. ' '• 13 Matter of McManus, 66 A. D. "Post v. Mason, 91 N Y 539 43 53 (1901), or, 73 Supp. 88; old Code Am., Rep. 689 (1883). ': '§ 2481, subd, 6— testator's executor ' i^j^^fter of Kranz, 41 :B[un' 463 fis administrator of an estate had note (1886), old Code § 2481, subd. 6. due his decedent which, mad^ no at- "Matter of Tredwell, 85 A t) tempfi for 18 months to collect, other 570, 83 Supp.' 242' (1903). '' ' creditors meanwhile collecting many times amount of , -note. ■ r , , " 928' § 861 PEOCEEDINGS adjudge against him the costs of the litigation; but distribution cannot be made until the legal representative of the deceased ex- ecutor and legatee has been appointed and brought into court." The General Rules of Practice treat of motions for new trials providing for the conteints of the order denying or granting a new trial.19 § 861. Motions. — The surrogate's court cannot on a motion de- cide whether money deposited in a savings bank in the joint name? of a decedent and another is the latter's property, when the form of the deposit does not as a matter of law vest the ownership of the money in either, but leaves the question dependent on the decision, as a question of fact, of what the intent was.^" A contestant of a will can get by subpoena duces tecutn or court order any paper which he can designate' as in th6 pbssession of the temporary administra- tor and as containing evidence material to his contest ; but he can- not obtain an order that the temporary administrator file in court a heterogeneous mass of the decedent's papers to enable him to in- spect and examine them in the absence of any allegation that any papers exist favorable to the contestant.^ Contestants of a will need- ing inspection of any books or papers of the decedent may apply to the court for compulsory production and discovery thereof.* A bill of particulars of the names of persbiis claimed in objections to the will to have exercised undue influence on the testator will not be required prior to the trial as the will's terms usually indicate the particular individuals who are So benefited by its provisions as to create a suspicion in the minds of those less favored that undue in- fluence was exercised.' A person who should have been made party to a proceeding in which a decree was entered is riot to be remitted to a mere motion — addressed to the court's sourid discretion — to open its decree, but may de novo demand the relief to which he is entitled as though no decree had ever been entered; because he is not seeking a favor but is enforcing a substantial right.* A credi- tor not made party to an accounting proceeding in which the ac- count, and the decree thereon, included his claim at its full amount and alleged its payment, may, if his claim has not been paid, move to make the decree conform to the truth, if he can establish that his claim has not been paid; so that he may then rely upon the de- ls Matter of Cook or Koch, 33 = Matter, of Eno, 92 Misc. 658, 157 Misc. 672, 68 Supp. 938 (1901). Supp. 491 (1915), C. C. P. § 803 19 Rule 31. and 809j 20 Matter of Hess, 85 Slisc. 659 ' Est. of Vett&r„.N. Y. L. J., Apr. (1914), or 148 Supp. 1054. 5, 1916, N. Y.-Surr. '1 M&,tter of Stokes, 28 Hun, 564 * Matter of Killan, 172 N. Y. 547, (1883). 63 L.R.A. 95, 65 N. E. 561 (1902). N. Y. E. & S.— 59. 929 NEW YORK ES5:A3:ES AND SUEROGATES § 861. cree to establish the existence of his claim.* A motion to amend a nptice of appeal already filed and- served by adding to it the- names and addresses of , alL persons who had not appeared in the proceeding and who have or claim an interest, and to serve the amended notice nunc pro tunc on all parties is one to bring in parties and must be made in the appellate division and not in the surrogate's court.^ It. can only be made after the appeal is perfect- ed by proper service upon tho^e who were parties in the surrogate's^ court.® A motion for a reargument will be denied unless the peti- tioner states in his moving papers the nature of the testimony he intends to introduce to effect the modification of the decision there- tofore rendered.'' The rules of your surrogate may specifically pro- vide for reargument of motions.' A contested motion for consoli- dation of two proceedings for probate of distinct wills is to be heard. only before, the surrogate presiding at trial term.® Rules of various surrogate's courts provide for motion calendars." The rules of the court of appeals provide for the practice in such court on mo- tions.^^ The General Rules pf Practice provide that motion papers must be specified in the order made on the motion; what the effect of not filing papers is ; and for the entry of the order ; ^^ and also that all motions for relief to wliich a party is not entitled as matter of right must be 1 made upon papers showing merits, and the good: faith of the prosecution or defeiise^ which, may be shown by any proof that satisfies the court. ^* Whenever application is made ex- parte on affidavit to a judge or court for an order, the affidavit must state whether any previous application has been made for such order, and, if made, to what court or .judge, and what order or de- cision was , made thereon, and what, new facts, if any, are claimed to be shown.** For failure so to. do, any order made on such appli- cation may be revoked or set aside." If notice of a motion before a surrogate or surrogate's court is jiecessary, it must, if personally served, be served, at least eight days before the time appointed for the hearing, unless. the surrogate or surrogate's court, upon an af- fidavit showing gro)inds therefor, makes an order to show cause • why the application should not be granted and in the order directs 5 Matter of Murphy, 59 Mise. 131, i* See e. g., :these Rules; N. T. 2 & 112 Supp. S!20 (1908). 3; Kings, 20 & 22; Bronx, 3; Queens, « Matter of Marks, 128 A. D. 775, 2 & 3; Westchester, 4; Herkimer 2: 113 Supp. 104 (1908), old Coae § SufColk, 2.; Nassau, 1. 2573, new Code § 2755. " Rules 11, 12, 13 and 14. ' Est. of Pollock, N. Y. L. J., Sept. i^ Rule 3. 28, 1915, N. Y. Suit. is Rule 23. ' See e. g.. Rule 27, Queens. ** General Rules of Practice, No 9 Matter of Martin, 80 Misc. 17 25. (1913), or 141 Supp. 784. » Id. 930 § 861 PROCEEDINGS that service thereof less than eight days before it is returnable be sufficient ^^ (in which case the affidavit or a copy must be sei-ved with the copy of the order)" except, it may be, that if the attorneys for the respective parties reside or have their offices in the same city or village such notice may be & notice of five days." If the oppu- site party does not appear to oppose, the party making the motion in entitled to the order moved for, on proof of due sei'vice of the notice or order and papers required to be served by him. unless the court shall otherwise direct." The General Rules of Practice provide that the motion be denied if the moving party fail to appear; that special and sufficient reason must be shown for notice of less than eight days ; that if ten days' notice is given answering affidavits may be required to be served five days before the return-day, etc. — all of which may or may not apply to surrogates' courts.'"' ** C. C. P. § 780. though there is no real reason why it " C. C. P. § 782. should not. 1* Id. and General Rule of Prac- " General Rule of Practice, No. tice No. 37, but it is doubtful if such 37. Rule applies to surrogates' courts, ^'Rule 37. 931 CHAPTER XIL APPEALS. A. To Appellate Division: 1. In General, § 862. 2. How Entitled, § 863. 3. From What May Be Taken, § 864. 4. Who May Take: a. Party, § 865. b. Person Not a Party, § 866. 5. When Barred, § 867. 6. Notice Of Appeal: a. Contents, § 868. b. Service, § 869. 7. On What Heard: a. When No Testimony Taken, § 870. b. When Testimony Taken, § 871. 8. Undertaking On Appeal: a. When Needed, § 872. b. Bequisites Of, § 873. c. Who May Prosecute, § 874. 9. Power of Appellate Division On Appeal: a. To Decide Questions of Fact, § 875. b. To Receive Testimony or Evidence and Appoint Beferee, § 876. c. On Appeal From Determination Opening, Vacating, Modify- ing, Setting Aside, Entering as of Former Time a Decree or Order; or Granting New Tried, § 877. d. To Review Surrogate's Discretion, § 878. e. To Reverse, Modify or Affirm: aa. In General, § 879. bb. To Beverse, § 880. cc. To Modify, or Affirm, § 881. 10. Proceedings on Order On Appeal, § 882. 11. Effect of Appeal: a. In General, § 883. b. From Decree Granting Letters or Admitting Witt, § 884. c. From Decree or Order of Commitment, § 885. d. From Decree to Pay, Distribute, Deposit, Deliver or For Execution, § 886. e. From Decree Revoking, Removing, Suspending, etc., § 887. 12. Argument of Appeal, § 888. B» To Court of Appeals: 1. Jurisdiction, § 889. 2. How Entitled, § 890. 3. From What May Be Taken, § 891. 4. Who May Take, § 892. 5. When Barred, § 893. 932 §§ 862, 863 APPEALS B — continued. 6. Notice of Appeal: a. Contents, § 894. b. Service, % 895. c. On What Heard, § 896. 7. Undertaking On Appeal, § 897. 8. Proceedings on Order On Appeal, § 898. 9. Effect Of Appeal, § 899. § 862. Appeals: To Appellate Division: In General. — ^Appeals from a decree of a surrogate's court or from an order either of a sur- rogate or of his court are taken to the appellate division of the su- preme court.^ Appeals from the determination of the appellate division on an appeal from a decree or order of the surrogate's court are taken to the court of appeals. The persons taking the appeal are called appellants.* All parties to the appeal who are not ap- pellants are called respondents.' An appeal to the appellate divi- sion from a special proceeding in a surrogate's court m'ay be taken : (1) Upon questions of law; (2) Upon the facts; or (3) Upon both questions of law and upon the facts.* An appeal from a decree entered or order made in a proceeding in a surrogate's court brings up for review by each court to which the appeal is carried each decision to which an exception is duly taken by the appellant.* On appeal from an order of reference the appellate division will not go into the merits of the application but will wait till the trial.* Nei- ther the Code nor the General Rules of Practice in terms requires that the notice of entry of a decree or order from which an appeal may be taken be formally addressed to the person upon whom serv- ice is to be made ; so that the fact that such a notice is addressed to a lawyer as attorney for one named person does not limit its effect upon the right to appeal of another person for whom such lawyer is also attorney if neither the lawyer nor such other client was in any way misled as to the effect of the order or decree.'' When the only objection to the regularity of service of a citation is that it is not shown that it was published once in each week for six successive weeks it cannot be raised for the first time upon appeal.' § 863. Id.: How Entitled. — After an appeal is taken to the ap- pellate division (i. e., after service of the notice of appeal) from a decree entered or order made in the proceeding in the surrogate's ^C. C. P. § 2754; Matter of Mar- 'Matter of Hale, 45 A. D. 578 tin, 80 Misc. 17 (1913), or 141 Supp. (1899), or 61 Supp. 596. 784 ''Matter of Heldmann, 153 A. D. «C. C. P. § 2758; 1295. I%f^ Supp 59 (1912) old Code 3 r P P 8 97(^8 • 19Qf? § ^^^^> °^^ ^°^^ § 2756, G. R. P. 2. . S' ^ o lil' * Matter of Reed, 171 A. D. 21, *C. C. P. § 2757. 156 s^pp. 944 (1916), C. C. P. § 5 C. C. P. § 2757. 2528. 933 NEW YOEK ESTATES AND SUBROGATES §864 court from which the appeal is taken, the name of the appellate division must be substituted for that of the surrogate's court in the title of the special proceeding. The na;me of the county may be omitted. Otherwise the title must not be changed in consequence of the appeal.' § 864. Id.: From What May Be Taken. — An appeal to the ap- pellate division may be taken: (1) From a decree of a surrogate's court; and (2) From an order affecting asubstantial^right made in a special proceeding either by a surrogate or his court ; unless ren- dered or made upon the default in appearance of the party aggrieved thereby.^' The opening of a decree by a surrogate, though discre- tionary with him, is reviewable on appeal.^^ An appeal cannot be taken from an opinion rendered by a surrogate in the absence of an order or decree.^^ . , , Besides the statutory exception to the right of appeal from a de- cree of a surrogate's court, or an order of a surrogate or his court affecting a substantial right, viz., that an appeal does not he from such a decree entered or such an order made upon default in ap- pearance of the party aggrieved thereby,^' other exceptions to the right of appeal exist, e. g., that no appeal lies from an order grant- ed on consent and fro forma, to permit the appeal, and without any examination by the lower court of the merits of the case ; " that no appeal lies from an order or decree made ex parte, on the surrogate's own motion, with notice of the death of the legal repre- sentative to whom the proceeding related. ^° An appeal does not lie from a surrogate's ex parte order ; but a motion should be made to vacate the ex parte order and an appeal taken from the order denying the motion.^* Naturally, no appeal lies from a referee's decision when his report is subject to confirmation or naodification by the surrogate, as the latter's decree is the first binding adjudica- tion from which an appeal may be taken." No appeal lies from a decision on a question of procedure.^' 9 C. C. P. § 2758; 1295. "Matter of Johnson, 27 Hun, 538 " C. C. P. § 2754. (1882)— ea; parte order vacated for- ** Matter of Tilden, 56 A. D. 277 mer ex parte order giving executor (1900), or 67 Supp. 879; old Code 25 additional days to serve case and § 2481, new Code § 2757; exceptions. 12 Matter of Callahan, 66 Hun, 118 " Matter of Barefleld, 177 N. Y (1892), or 20 Supp. 824; dism'd 139 387, 101 Am. St. Rep. 814, 69 N E N. Y. 51, 34 N. E. 756. 732 (1904). " C. C. P. § 2754. 1' Whitney v. Townsend, 67 N. Y. 1* Brown v. Brown, 64 A. D. 544, 40 (1876)— filing judgment roll; 72 Supp. 309 (1901). Matter of Whittlesey v. Hoguet, 66 "Matter of Armstrong, 72 A. D. N. Y. 358 (1876). 620, 76 Supp. 40 (1902), aff'd 76 Supp. 1019. 934 § 864 APPEALS Orders affecting a substantial right made by a surrogate or his court, and therefore appealable, do not include an order reviving a proceeding' for vacation of an order dischai-gihg a trustee, made on the death of the trustee pending a reference on the petition for such vacation, as such order left undetermined the question wheth- er the order discharging the trustee should be vacated ; ^^ or an order which it is in the surrogate's discretion to make, e. g., deny^ ing leave to intervene, or a motion for a resettlenient,*" or an order for payment of referee's fees ; ^ or a decision in writing (which is an order*) made on settlement of interrogatories to be annexed to a commission allowing an improper question, because no substan- tial harm is done as the objecting party can protect himself at the trial by then making objections.' An order which in effect refuses to dismiss a special proceeding merely upon the issue joined does not affect a substantial right and is not appealable, e. g., an order overruling an executor's "demurrer" to the sufficiency of a petition for revocation of his letters because of misconduct, waste and irre- sponsibility.* No appeal lies from a denial of a motion to open a decree because the motion is addressed to the surrogate's sound dis- cretion and its denial involves no substantial right.* An order denying a motion to dismiss a proceeding to revoke a probate de- cree on the ground that persons named as executors and legatees were not cited as executors, when they were admittedly personally served as legatees and their names appeared twice in the citation, is not appealable, because it involves no substantial right, certainly if no decree has been made, as the probate may be affirmed.* No appeal lies from a surrogate's order disallowing and overruling ob- jections of administrators to the court's jurisdiction when jurisdic- tion was not exercised as it is not final and does not involve a sub- stantial right.'' Orders affecting a substantial right made by a surrogate or his court, and therefore appealable, do include a decision (on settle- ment of interrogatories to be annexed to a commission) disallow- ing pertinent questions ; ' or an order allowing an open commission (even though in some degree dependable upon the surrogate court's 19 Matter of Whittlesey v. Ho^et, * Matter of Kelly v. Langevin, 153 66 N. Y. 358 (1876). A. D. 322, 137 Supp. 1099 (1912). aoMntfpr nf Hfll to take it has expired, al- though the parties may always stipulate to allow it.* If an appel- lant seasonably and in good faith serves the notice of appeal upon a respondent or his attorney or upon the clerk of the surrogate's court, or vice versa, but omits through mistake, or excusable neg- lect: (1) to serve the notice of appeal upon the clerk or a respond- ent or his attorney, as the case may be ; or (2) to stay the execution of the decree or order appealed from; or (3) to do any other act. necessary, to perfect the appeal, the appellate court, on proof by affidavit of the facts, may in its discretion permit the omission' to be supplied or an amendment to be made on such terms as justice- requires.^ § 870. Appeal: On What Heard: When No Testimony.— A hear- ing in a surrogate's court based only on affidavits, records or certi- fied copies, of documentsi in which no testimony is taken, is brought up for review not by making a case, but by entering thetorder of the surrogate's court made on the hearing and appestlim'g there- from.^ As the papers on the appeal there should be pniited those recited in the order, which should be either certified, by the court as correct or stipulated by the parties to be correct.* The papers on appeal from a surrogate's order denying a motion to open a- de- cree and for its reconsideration consist of prin,ted copies of those papers used in the court below which are specified in the order certified by the clerk or stipulated by the parties to be true copies ; and if the order appealed from, does not specify the papers used in the court below no appeal can be had thereon.*' 19 C. C. P. §§ 2756; 1302. » Matter of Sprathoff, 50 Misc. 109 ?<>C. C. P. §§ 2756,: 1302. (1906), or 98' Supp. 921. 1 Matter of Williams, 6 Misc. 512, * Matter of > Sprathoff, supra. 27 Supp. 433 (1894), old Code § * Matter of Gowdey, 101 A. D. 275, 2574. 91 Supp. 662 (1905), Gen. Rules, "C. C. P. §§ 2758; 1303. Practice, No. 41. 941 NEW YOEK ESTATES AND SURROGATES § 871 § 871. Id.: When Testimony Taken. — ^An appeal to the appellate division from a decree rendered upon the trial of an issue of fact by the surrogate, either alone,* or with a jury,'' must be heard upon a case to be made and settled by the surrogate.' The trial of an issue of fact on appeal from which a case must be made means a trial in which testimony is taken, and not a hearing based only on affida- vits, records or certified copies of documents.' A case on appeal to the appellate division must contain: — (1) so much of the evidence and other proceedings upon the trial as is material to the questions to be raised thereby; and (2) the excep- tions taken by the party making the case.^* The case must include all evidence which any party to the proceeding may claim to be material to the determination of questions to be passed upon by the appellate division, so that such court may decide if "the except- ant was necessarily prejudiced" by any evidence.^^ The exceptions provided for by section 994 of the Code apply only to cases in which the appellant confines himself to exceptions to conclusions of law; and if he intends to rely on other exceptions a case on appeal must be made containing the evidence.^* Appeals from surrogates' de- crees in which a review of the facts is sought should be heard on a case containing the evidence and settled by the surrogate." The appeal book on an appeal from the decree of a surrogate confirming a report of a referee on objections to an account should consist sole- ly of those papers which the surrogate had before him for consider- ation in making the decree appealed from, which must be on file in the surrogate's court and should be certified by its clerk ; and the appellate division should have the testimony before the referee to determine whether the surrogate's decree was correct.'* If the ex- ecutor, administrator, testamentary trustee or guardian is not sat- isfied with the testimony as filed by the referee, he should object in the surrogate's court before the motion to confirm the referee's re- port is heard and determined.** Exceptions taken by a prevailing « C. C. P. § 2541; Matter of Sprat- " C. C. P. §§ 2541; 2757; 997 hoff, 50 Misc. 109 (1906), or 98 "Matter of Goldsticker, 54 Mise Supp. 921; old Code § 2576, new 175, 105 Supp. 931 (1907)— probate Code § 2541. appeal; C. C. P. § 2757. ' C. C. P. § 2757. " Savage v. Potter, 159 A. D. 729. »C. C. P. §§ 2542; 2757; Matter 145 Supp. 78 (1913). of Goldsticker, 54 Misc. 175, 105 " Matter of Wabrath, 69 Hun 403 Supp. 931 (1907)— probate appeal; 23 Supp. 648 (1893), old Code 5 Matter of Will of Stewart^ 135 N. 2576. Y. 413, 32 N. E. 144 (1892) , old i* Matter of Dietzel, 36 A. D. 300 Code § 2576, like part of new Code 55 Supp. 323 (1899). ' § 2757. IS Matter of Dietzel, supra. » Matter of Sprathoff, 50 Misc. 109 <1906), or 98 Supp. 921. 942 § 871 APPEALS party are not properly part of a case on appeal prepared by an unsuc- cessful party unless special reasons exist for making them such part.^^ Whenever it is necessary to make a case, or a case and excep- tions, it must be made and a copy served on the opposite party, in the surrogate's court, within thirty days after service of a copy of the decree or order and notice of the entry thereof." The party served may, within ten days thereafter, propose amendments thereto and serve a copy on the party proposing a case or exceptions, who may then, within four days thereafter, serve the opposite party with a notice that the case or exceptions with the proposed amendments will be submitted for settlement at a time and place to be specified in the notice to the surrogate or referee before whom the matter was tried.'* Whenever amendments are proposed to a case or excep- tions, the party proposing such case or exceptions must, before sub- mitting them to the surrogate or referee for settlement mark upon the several amendments his allowance or disallowance thereof, and must also plainly mark thereon and upon the stenographer's min- utes the parts to which the proposed amendments are applicable, together with the number of the amendment." If the party pro- posing the amendments claims that the case should be made to con- form to the stenographer's minutes, he must refer at the end of each amendment to the proper page of such minutes.^" The sur- rogate or referee. must thereupon correct and settle the case.' The time for settling the case must be specified in the notice, and must not be less than four nor more than ten days after the service of such notice.^ The lines of the case must be so numbered that each copy shall correspond.' Cases reserved for argument and special ver- dicts must be settled in the same manner.* The parties may agree on the facts proven to be inserted in the case, instead of the testi- mony, on the approval of the surrogate.* On a reference to ex- amine an account rendered and hear all questions arising on its settlement, the referee and not the surrogate is to settle the case for appeal.® The surrogate, on appeal from his court, may by order allow further time for the doing of any of the acts to be done on such appeals ; but no order extending the time to serve a case, or a case containing exceptions, or the time within which amendments "Matter of Levy, 91 A. D. 483, 'Id. (1904), or 86 Supp. 862; aff'd 179 '^U. N. Y. 603, 72 N. B.,1144. * General Rules of Practice, No. "General Rules of Practice, No. 32. 32. * Id. " Id. 5 la. "General Rules of Practice, No. « Matter of Niles, 47 Hun, 348 32. (1888). 20 Id. 943 ^■EW YORK ESTATES ,AND SUBROGATES § 872 thereto may be served, can be made unless the party applying for such order serve a notice of two days upon the adverse parties of his intention to apply therefor, stating the time and place for mak- ing such application.'' The surrogate's court may relieve one from failure to serve his case and exceptions on time, and may allow such service after the expiration of; the time limit.* If a party omit to make a case within the time limited he is deemed to have waived his right thereto; and when a case is made and the parties omit, within the several times limited, the one party to propose amendments, and the other to notify an appearance before the sur- rogate or referee, they are respectively deemed, the former to have agreed to the case as proposed,. and the latter to have agreed to the amendments , as proposed.^ The General Rules of Practice provide for the contents of a case and exceptions ; the printing of exhibits ; and the penalty, for failure to comply with the requirements of the mles.'" Such rules also provide who must furnish the papers on- appeal ; when they must be filed, in the office of the clerk of the appellate division ; when they must be served on the other side and how many copies must be served ; what such papers coiisist of ; how they must be certified or stipulated as correct; ths, statement which must be prefixed to them ; what advantage may be taken of failure to file and serve them; ^^ what exchange of briefs and delivery of papers nqust be made ; ^* how the cases and points must be printed and indexed; how many copies mijst be furnished the clerk and when; the form of the index to the printed papers on, appeal, etc." § 872. Undertaking on Appeal: When Needed.— An appellant must give an undertaking in ofder to render his notice of appeal effectual for ajny purpose," except; (1) when the undertaking is waived, by the written consent of the respondent; " (2) when the appellant deposits with the clerk.,Qf the surrogate's court with whom the decree or order appealed from is entered, a sum of money equal to the amount for which the undertaking is required to be given ; ^^ (3) when the appellant appea.ls from a decree which directed him. as executor, admiiaistrator, testaijientary trustee, guardian or oth^r person appointed by the siarrogate's court, to pay or distribute money, or to deposit money in a bank or trust company ; or to de- liver property ; provided such appellant's letters as executor, admin- istrator or guardian have been revojted or he has been removed as '' General Rules of Practice, No. 8 Matter of Williams, 6 Misc. 512, 27 Supp. 433 (1894), Sup. Ct. Rule 32. ' General Rules of Practice, No. 33. 944 "No. 34. "Rule No. 41. 18 Rule JTo. 42. "Rule No. 42. 1* C. C. P. § 2759. «C. C. P. §§ 2758: 2759; 1305. "C. C. P. §§2757; 2758; 1306. § 873 APPEALS testamentary trustee;^'' (4) when the appellant as executor or ad- ministrator appeals from an order by the surrogate from whose court his letters were issued granting leave to issue execution against him on a judgment for a sum of money provided such appellant's letters have been revoked; ^' or (5) when it is specifically prescribed by law that security is not necessary to perfect the appeal.^' The surrogate's court has no jurisdiction to direct an appellant to file, security for costs on appeal ; but as the sufficiency of the notice of appeal is dependent upon the giving of such security, the respond- ent's remedy would seem to be a motion to dismiss in the appellate division.^" Generally, the only undertaking other than one not exceeding $250 for costs ever required on appeals from , surrogates' decrees is when executors^ administrators, testamentary trustees, guardians or other persons appointed by surrogates' courts appeal. "■ On an appeal from a surrogate's decree settling an executor's ac- counts the only undertaking needed to stay proceedings is the one not over $250 for costs, if other persons than the executor who are interested appeal.^ "When a legatee (and not an executor) takes an appeal from a decree of a surrogate on the executor's ac- counting no undertaking can be required except the one for $250, on giving of which the appeal is perfected and operates as a stay of proceedings to enforce the decree.* § 873. Id. : Requisites of. — The requisites of an undertaking on appeal from a decree entered or an order made in a proceeding in a surrogate's court are these: (1) It must be written; * (2) It must be given by the appellant; * (3) It must have on it at least two sure- ties ; * and must give the name and residence' of each of them; '' (4) It must be to the people of the state; * (5) It must be to the effect that the appellant: will pay all costs and damages not exceeding two hundred and fifty dollars, ($250) which may be awarded against him upon the appeal; ® (6) It must be approved either by the sur- rogate or a judge: of the appellate court;" (7) It must be filed in the office of the surrogate;*^ and probably with the clerk of his "C. C. P. §§ 2759; 2760. 'Matter of Arkenburgh, 17 Mise. "C. C. P. §§ 2759; 2760; 1825., 543, (1896), or 41 Supp. 287; aff'd 19 C. C. P. § 2759. 11 A. D. 44, 41 Supp. 287, 43 Supp. 20 Est. of Costea, N. Y. L. J., July 1150, old Code § 2577. 24, 1915 (N. T. Surr.). * C. C. P. § 2759. 1 Matter of ArkenbiOTgh,,No. 1, 11 » C. C. P. § 2759. A. D. 44, 41 Supp. 287,, 43 Supp. « c. c. P. § 2759. 1150 (1896), old Code § 2577, new '' C. C. P. §§ 2759; 2762. Code § 2759. « C. C. P. §§ 2759; 2762. 8 Matter of Arkenburgh, No. 1, 11 » C. C. P. § 2759. A. D. 44, 41 Supp. 287, 43 Supp. i" C C. P. §§ 2759; 2762. 1150 (1896), old Code § 2577, new " C. C. P. §§ 2758; 2762. Code § 2759. N. Y. E. & S.— 60. 945 NEW YORK ESTATES AND SURROGATES § 873 court ; •* and if the adverse party has died since the making of the order or the rendering of the decree appealed from, or if the decree appealed from was rendered after the adverse party's death (in a case prescribed by law) (8) It must recite the fact of the adverse party's death.*' The requisites of an undertaking on appeal from a decree directing an executor, administrator, testamentary trustee, guardian or other person appointed by the surrogate's court to pay or distribute money, or to deposit money in a bank or trust com- pany, or to deliver property; or from an order granting leave to issue execution against an executor or administrator (when the let- ters of the executor, administrator or guardian have not been re- voked or the trustee has not been removed), are the same as the requisites of an undertaking on appeal in general; except (1) that the sum therein specified must be fixed by the surrogate or a judge of the appellate court, and (2) that it must be to the effect that if the decree or order, or any part thereof is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or, as the case requires, will deposit or distribute the money, or deliver the property, so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is affirmed.'* The requisites of an undertaking on appeal from a decree or order of a surrogate's court committing the appellant, given to stay the execution of such decree or order, are the same as the requisites of an undertaking on appeal in gen- eral; except (1) that the sum therein specified must be fixed by the surrogate or a judge of the appellate court; and (2) that it must be to the effect that if the decree or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appel- lant within twenty (20) days after such affirmance or dismissal will surrender himself to the custody of the sheriff of the county in which he was directed to be committed, in obedience to such decree or order.** In fixing the sum of the undertaking the surrogate or judge of the appellate court may require proof by affidavit of the value of any property, or of such other facts as he deems proper.*^ There is no statutory provision' requiring sureties in ah undertaking or bond given to perfect an appeal or for any other purpose to at- tend before the surrogate and be examined as to their sufficiency ; and the surrogate may determine their suffidency from the affida- vits of justification accompanying such undertaking and bond; so that the surrogate has discretion to determine their sufficiency from 12 C. C. P. § 1307. « c. C. P. §§ 2557; 2761; 2762 IS C. C. P.:§§ 2758; 2759; 1297. " C. C. P. §§ 2557; 2761; 276'' "C. C. P. §§ 2760; 2762. 946 §§ 874, 875 APPEALS such affidavits or to require the sureties to attend before him and be examined, and whichever course he adopts, once he has approved the undertaking or bond the only remedy of the person interested, if the sureties are insufficient or become insolvent, is to apply for an order for a new bond or undertaking or new or additional sure- ties." § 874. Id. : Who May Prosecute. — ^An action upon an undertak- ing given to pay all costs and damages awai'ded against an appel- lant upon an appeal ; to pay a sum directed to be paid or collected or deposit or distribute money or deliver property directed to be paid, collected, deposited, distributed or delivered by an executor, administrator, testamentary trustee, guardian or other person ap- pointed by the surrogate's court ; or to surrender himself to custody when an executor, administrator, testamentary trustee, guardian or other person appointed by the surrogate's court is directed so to do may be prosecuted by any aggrieved person authorized to do so by an order of the surrogate, made at any time in his discretion.^* Such an action may be authorized either in the aggrieved person's own name or in the name of the people of the state, and may be prose- cuted in the same manner and with the same effect as an action upon an administrator's bond. The proceeds of an action upon an undertaking must be paid or distributed as directed by the sur- rogate to or among the persons aggrieved to the extent of the pecu- niary injuries sustained by them ; and the balance, if any, must be paid into the surrogate's court.^' An undertaking on appeal from a judgment recovered by plaintiffs as executors may be enforced by them in their individual capacity.^' § 875. Id. : Discharge. — A bond or undertaking on appeal or to insure the performance of an act, as to which no accounting is re- quired by law for its discharge may be discharged in whole or in part upon application to the surrogate's court by any party to the bond. Notice of the application must be given to all parties in- terested in the subject matter or in the proceeding in which the bond or undertaking was given. The court by order may certify thereupon either that the whole obligation or liability on the bond or undertaking is discharged, or may direct that such obligation or liability be discharged in such amount as may be just ; and that the bond or undertaking shall thereafter have the same force and effect as if given in .terms for the remainihg obligation or liability.*" "Matter of Sheldon, 117 A. D. " c. C. P. § 2762. 357 (1907), or 103 Supp. 177, C. C. " Morris v. Hunken, 40 A. D. 129 P. §§ 1335 and 812 and 1308; old (1899), or 57 Supp. 712. Code §§ 2575 and 2597, new Code 2" C. C. P. § 2586. |§ 2758, 2577. 947 NEW YORK ESTATES AND SUKEOGATES ■ §.875a § 875a. Id.: Power of Appellate Division: To Decide Questions of Fact.^When an appeal is taken upon the facts, the appellate divi- sion has the same power to decide questions of fact which the surro^ gate had.^ On appeal from the facts the appellate division may examine and determine the case anew, and rule on the evidence quite aside from the surrogate's ruling, and talce further testim'ony.* It is the duty of the supreme court on appeal from a surrogate's court to decide all questions of fact which were before the surro- gate.' Although a motion for a new; trial may be necessary to en- able the appellate division to review the facts after a jury trial, it is not necessary when a trial is had before a surrogate alone.* The appellate division is not limited to a. consideration of the question of whether or not sufficient evidence was adduced to support a sur- rogate's decision, but should decide- for itself whether the i surrogate correctly determined the facts.* On appeal from ^surrogate's de- cree denying probate the supreme court can award such judgment as the surrogate should have given when the case was before him.® On a puobate appeal, the hearing being de novo, the appellate court may determine the appeal on the competent evidence appearing, disregarding such as is incompetent "An appeal on the facts feosm the decree of a surrogate admitting or refusing to admit a will to probate brings up for review . ■ .; . the question of the sufficiency, weight, or preponderance of evidence, and the general merits of the decision i and . . . it is not necessary that any exceptions should have been taken to the: findings of fact, or that there should have been, any request for findings. . . . But where the appeal is also upon the law, only suCh questions of law can be considered as havp been properly raised by exception." ' Ari appeal by admin- istrators as such, from a decree settling and allowing; their accounts does jiot bring before the appellate court the question of the right ^C. C. P. § 2763;']katter of Eog- (1901):, or 70 Supp. 406; old Code ers, 10 A. D. 593 (1896), or 42 Supp. § 2586, new Code § 2763; Matter of 133. Arkenburgh, 58 A. D. 583 (1901), ^Matter of Gaines, 84 Hun, 520, or 69 Supp. 125 ; same Code sections ; 32 Supp. 398 (1895), ^fi'd 154 N. Y. Matter of Warner, 53 A. ,D. 565, 65 747, 49 N. B. 1097. Supp. 1022 (1900), same Code sec- * Matter of McGraw v.' Cornell tions ; Matter of Drake, 45 A. ,p. 206 University, 45 Hun, 354 (1887), aff'd (1899), or 60 Supp. 1020, same Code 111 N. Y. 66, 2 L.R.A. 387, 19, N. E. sections, appeal on facts from decree 233, and l36 U. S. 152, 34 L. ed. 427, probating will. 10 Sup. Ct. Rep. 775, old Code §§ « Pilling v. Pilling, 45 Barb. 92 2568; 2570; 2576; new Code §§ 2754, (1865). 2757. ^ ■ i"' Tpoote v. Beeeh'er, 78 N. Y. 155 4 Matter of Will of Stewart, 135 (1879). N. Y. 413, 32 N. E. 144 (1892), gen- ' « Burger v. Burger, 111 N. Y. 523, eral term appeal.: 19 N. E. 99, 21 N. E. 50 (1888) 5 Matter of Hall, 61 A. D. 266 948 § 87G APPEALS of one of tliem ih his individual capacity to recover his claim against the estate.^ Only that one of several provisions of a decree appealed from in which the appellant has an interest on which he can base an appeal will be considered.*" § 876. Id.: To Receive Testimony or Evidence and Appoint Ref- eree. — The appellate court, on an appeal on the facts, may, in its discretion, receive further testimony or documentary evidence, and appoint a referee." The power of the appellate court to receive further testimony or documentary evidence should be cautiously used as it practically opens the case and gives' a rehearing on new evidence ; and if one side is allowed to introduce new evidence the other ought to have the same privilege.*^ The new evidence should be of such importance as to justify the exercise of the appellate court's power. *^ The new evidence may be taken by commission.** When the issiies were capable of more thorough presentation below upon both sides,' and involved not only dollars and cents but legiti- macy, a reference to take new testimony will be directed.** The appellate division will appoint a referee to take testimony and re- port with his opinion to it when a question arises on an appeal on the facts as to the propriety of the removal of an executor, e. g., a charge that he omitted to include in the account rendered by him his large indebtedness to the estate, which is claimed to have been paid as shown by deposits in bank listed in the account.** When it appears on a probate appeal that a will proven in another state may overthrow the will here proved, the appellate division may direct that a commission be issued by the surrogate to take proof of the will proven without the state.*' The hearing on a probate appeal is de novo and the appellate court may determine the appeal on the compettent; evidence appearing, disregarding such as i.= in- competent.** ' Matter of Mayer, 84 Hun, 539 *' Matter of Hannah, supra ; re- (1895), or 32 Supp. 850. fused to take testimony of little or *" Matter' of Allen, 81 Hun, 91 no correspondence for many years (1894), or 30 Supp. 683; aff'd 151 between testatrix and only daughter N. Y. 243, 45 N. E. 554. (living in ditferent countries) as ** C. C. P. § 2^63; Matter of showing former's weakness of mind. Gaines, 84 Hun, 520, 32 Supp. 398 ** Matter of Hannah, supra. (1895), in whifeh testimony was tak- *5 In re Pfarr's Est.. 113 St. Rep. en, although in the same case it was 639 (1903), App. Div., 2d Dept. earlier refused, 74 Hun,' 94, 26 Supp. *« Matter of Burr, 116 A. D. 518 312. This power of the appellate (1906)^ or 101 Supp. 776. division was' exercised also in Matter *'' Matter of Horton, 163 A. D. 213, of Beck, 6 A. D. 211, 39 Supp. 810 148 Supp. 18 (1914)— old Code § (1896) ; and Matter of Burr, 116 A. 2481, like new § 2763. D. 518, 101 Supp. 776 (1906). *8lPobte v. Beeeher, 78 N. Y. 155 12 Matter of Hannah, 45 Hun, 561 (1879). (1887). 949 . NEW YOBK ESTATES AND SURROGATES §§ 877, 878 § 877. Id.: On Appeal From Determination Opening, Vacating, Modifying, Setting Aside, Entering as of Former Time a Decree or Order, or Granting New Trial. — Upon an appeal from a determi- nation of the surrogate made upon an application to open, vacate, modify, set aside, enter as of a former time a decree or order of his court, grant a new trial or a new hearing for fraud, newly discov- ered evidence, clerical error or other sufficient cause, the appellate court has the same power as the surrogate and his determination must be reviewed as if an original application were made to the appellate court. ^^ So, on appeal to review the action of a surrogate on a motion to open or vacate his decree settling an account the questions involved come before the appellate division in the first instance.^" Such a motion will be granted when no vouchers were filed with the account, in spite, of the fact that they were open to the inspection of the objectants and were not filed because too bulky. 1 The higher court can review and open a surrogate's decree just as well as if the application had been made to it loriginally.* A surrogate's court may open its decree admitting a will, and direct a new hearing for fraud, when appellate division has re- versed the surrogate's decree revoking probate thereof, and excep- tions on a motion for a new trial or a verdict of competency and freedom by the testator, are before the appellate division.^ § 878. Id.: To Review Suri^ogate's Discretion. — The powers of review of the appellate division comprehend the right to review an exercise of discretion by the surrogate's court and the right to exer- cise its own independent discretion when the facts or circumstances of the case are such as to justify it.* The appellate division, on an appeal bringing up the question of the allowance of interest, which involved a determination of the fund out of which it should be paid, may review the surrogate's determination as to income, though no appeal was taken therefrom.' The arbitrary, as distin- guished from the legal exercise of his discretion by a surrogate, if it results in a violation of justice may become the invasion of a sub- stantial right which may be reviewed on appeal; but mere post- ponement of an asked construction of a will by a residuary legatee "C. C. P. § 2763. (1903), or 81.Supp. 101;— old Code ""Matter of Wioke, 74 A. D. 221 §§ 2585-8; see new Code § 2557. (1902), or 77 Supp. 558— old Code *Piertraroia v. N. J. & H. R. R. § 2481, subd. 6; new Code § 2763. * n^V-,mn^^^l^•. ^- *^*' ^^ ^- ^■ 1 Matter of Wicke, supra. ^^^ • (1910) "Reviewing grant of ad- « Matter of Harlo'w, 7^3 Hun, 433 Tuf 0^^011^°"'^' ^"*'^"' '^ (1893), or 26 Supp. 469; old Code 5 Matter of Frankenheimer, 195 N § 2481, subd. 6. T. 346, 133 Am. St, Rep. 803, 88 n' "Matter of Murphy, 79 A. D. 541 E. 374 (1909). 950 §§ 879, 880 APPEALS when no immediate prejudice to anyone will result is not such an abuse of the surrogate's discretion.* The appellate court will not interfere with the exercise of a surrogate's discretion in determin- ing the management of an estate by personal representatives unless it is shown there has been an abuse of such discretion and a viola- tion of justice.' The appellate division has power to review a dis- cretionary order of the surrogate or his court and to determine if there has been an abuse of discretion so as to work substantial in- jury to him who claims to be aggrieved.' The appellate division has power to review a decree of a surrogate in which the latter abused his discretion in making allowances to guardians for an in- fant beneficiary of a trust estate.' Moreover, it may review a sur- rogate's discretionary right to grant or deny commissions on the ground of a representative's misconduct.*' The appellate court will not interfere with the surrogate's discretion in refusing to vacate a decree probating a will when fraud, improper influence or a clear misconception of facts is shown.** § 879. Id.: To Reverse, Modify or Affirm, In General.— The ap- pellate division may reverse, modify or affirm (as to all or any of the parties) any decree, order, or intermediate order specified in the notice of appeal, which it is authorized by law to re^dew; or may grant a new trial or hearing, if necessary or proper.*^ § 880. Id.: To Reverse. — Whether an appeal to the appellate di- vision be taken on questions of law, or upon the facts, or both, the decree or order appealed from must not be reversed for an error in admitting or rejecting evidence unless it appears to the appellate division that the exceptant was necessarily prejudiced thereby.*^ The appellate division has great reluctance to reverse a surrogate's decision upon a pure question of fact, because of the surrogate's chance to inspect the witnesses, etc.** In determining if an except- ant has been necessarily prejudiced by error in the admission or rejection of evidence so as to require a reversal, various forms of expressing the viewpoint of the appellate division have been em- ployed, e. g., that an appeal must fail unless it is apparent that ' Matter of Powell, 136 A. D. 830, surrogate's allowance of commissions, 121 Supp. 779 (1910). old Code § 2730. 'Matter of Adler, 60 Hun, 481 "Bailey v. Hilton, 14 Hun, 3 (1891), or 15 Supp. 227; old Code (1878). § 2602, new Code § 2698. *2 C. C. P. § 2763; Wostenholme 'Matter of Doig, 125 A. D. 746, v. Wostenholme, 64 N. Y. 272 (1876). 110 Supp. 93 (1908). *»C. C. P. § 2757; Matter of Will 9 Matter of Stevens, 114 A. D. 607 of Snelling, 136 N. Y. 515, 32 N. E. (1906), or 99 Supp. 1070; afC'd 188 1006 (1893)— old Code § 2545. N. Y. 589, 81 N. E. 1176. i*WilUs v. Mott, 36 N. Y. 486 "Matter of Gall, 107 A. D. 310 (1867). (1905), or 95 Supp. 124; reversing 951 NEW YORK ESTATES AND SURROGATES , : § 880 without the improper evidence the respondent would not have suc- ceeded ; 1^ that it is not enough that incompetent evidence was re- ceived, but it must satisfactorily appear that with the excluded evidence the appellant had not failed in his proof, or that without the improper evidence the respondent's case was deficient; ^* that the presumption of injury from error in the admission or rejection of evidence by trial court which might otherwise obtain is destroyed by the statutory mandate; *'' that reversal and new trial is not prop- er merely because evidence has been improperly received if it satis- factorily appears that the decree was correct ; ^* that the admission of improper evidence furnishes no ground for reversal if the facts established by legal and competent testimony are plainly sufficient to uphold it; ^^ that an error in the admission or rejection of evi- dence maj' be disregarded if it could have had no influence on the determination of the case.^" But if competent^ 'important and ma- terial evidence is rejected and the appellate court cannot say that notwithstanding the error the decree is right, or if it entertains a reasonable doubt on the subject, it must hold that the exceptant was necessarily prejudiced, and reverse.^ The effect of this is that an appeal must fail unless it is apparent that without the improp- er evidence the respondent would not have succeeded;* and that the presumption of injury that niight otherwise obtain is de- stroyed.' The appellate court should not reverse and order a new trial if it is satisfied upon the case that the decree is correct, merely because evidence has been improperly received.* The admission of improper evidence furnishes no ground for reversing the deci- sion if the facts established by legal and competent testiinony are plainly sufficient to uphold it.' When the court of review finds that incompetent evidence was received or competent evidence was rejected it must determine if the error prejudiced the party against whom it was committed; and if that evidence was important and 15 Matter of Benton, 71 A. D. 522 40 N. B. 788 (1895)— old Code § (1902)— old Code § 2545 like new 2545. § 2757; or 75 Supp. 859; Loder v. ' Matter of Wilson, 10 A. D. 371 Whelpley, 111 N. Y. 239, 18 N. E. (1896), or 41 Supp. 1006. 874 (1888)— old Code § 2545. * Matter of Benton, 71 A. D 522 16 Snyder v. Sherman, 88 N. Y. (1902)— old Code § 2545 like new 656 (1882)— old Code § 2545.- , Code § 2757. "Matter of Newcomb, 192 N. Y. * Matter of Newcomb, 192 N Y 238, 84 N. E. 950 (1908)^old Code 238 (1908), old Code § 2545 like new § 2545. Code § 2757. 1* Gardiner v. Gardiner, 34 N. Y. ' * Gardiner v. Gardiner, 34 N. Y. 155 (1865) — testamentary capacity. 155 (1865) — testamentary capacity 19 Clapp V. FuUerton, 34 N. Y. 190, ^ Clapp v. FuUerton: 34 N. Y. 190 90 Am. Dec. 681 (1866). . (1866). 2« Matter of Miner, 146 N. Y. 121, . ■ - 952 § 881 APPEALS material and the court cannot say that notwithstanding tlie error the judgment is right, or if it entertained a reasonable doubt upon the subject, a case is presented where the party excepting was neces- sarily prejudiced.' When on trial of issue of fact by surrogate the evidence is so nearly balanced, that a determination either way would not be reversed on appeal, the admission of material testi- mony of an incompetent witness is reversible.'' Except when the trial under review was had before a jury, the appellate division on reversal may render whatever decree justice requires,' i. e., upon an appeal from a decree or order of a surrogate, it may reverse or affirm wholly or partly, or may modify not only the decree or order appealed from but each intermediate decree or order which it is authorized to review, as specified in the notice of appeal ; and there- upon render judgment of affirmance, reversal, and final judgment upon the right of any or all of the parties, or judgment of modifica- tion thereon according to law, except in cases in which it may be necessary or proper tO grant a new trial or hearing, when it may do so-^ Upon reversal by the appellate division of a surrogate's deci- sion that a will was not duly executed, made without passing upon a claim that its execution was unduly influenced,^" or that it was altered after execution," it cannot direct the surrogate to admit the will to probate, but must remit the matter to the surrogate to deter- mine the claim of undue influence or alteration ; because otherwise the contestants would be left in the situation of having interposed a perfectly valid defense (of undue influence or alteration) if in fact true, and of seeing probate granted without any decision on the material issue thus tendered.,^^ In appeals from decrees admit- ting wills to probate the error complained of must appear to have prejudiced, the appellants to warrant a reversal." § 881. Id.: To Modify or Affirm. — ^Under its power to reverse, affirm or modify, the appellate, division may disallow an overpay- ment by an exQcutor to which objection was made in the surro- gate's court." When a decree or order appealed from is wholly or partly affirmed, or is modified, upon appeal, it must be enforced ® Matter of Smith, 95 N. T. 516 appellate division in dealing with evi- (1884) — old Gode § 2545. dence in equity suit). ■^ Matter of Eysaman, 113 N. T. 62, "Back v. Back, 84 N. Y. 663 3 L.R.A. 599, 20 N. E. 613 (1889). (1881). 8 Lamport v. Smedley, 213 K Y. " Matter of WUcox, 131 N. Y. 610, 82, 106 K E. 922 (1914), C. C. P. 30 N. E; 101 (1892). § 1317. '*Dack v. Back, supra; Matter of 9 Bonnette v. MoUoy, 209 N. Y. Will of Wilcox, supra. 167, 102 N. E. 559 (1913), C. C. P. "Matter of Begen, 89 Hun, 143, § 1317 (holding good under art. VI., 34 Supp. 1137 (1895), old Code § sect. 2, Constitution, enlargement bv 2545. c. 380, L. 1912, of jurisdiction of "Matter of Kellogg, 104 N. Y. 953 NEW YORK ESTATES AND SUBROGATES S 882 by the surrogate's court to the extent permitted by the determina- tion of the appellate court, as if the appeal therefrom had not been taken." When the decree or order appealed from is reversed or modified, the appellate court may mate or compel restitution of property, or of a right, lost by means of the erroneous decree or order, but not so as to affect the title of a purchaser in gdod faith and for value. ^^ When there has been no abuse of a surrogate's discretion the appellate division will not review his order denying a motion to vacate an order holding a representative in contempt which has been affirmed by the appellate division; but will also affirm the denial of the motion to vacate.^'' § 882. Proceedings on Order on Appeal. — An order made in the appellate division upon an appeal from a decree or order of a sur- rogate's court must be entered with the clerk of the appellate divi- sion; and a certified copy of it must be transmitted to the surro- gate's court, annexed to the papers sent up by the latter court on which the appeal was heard; and the surrogate's court must enter the judgment or order necessary to carry into effect the determina- tion of the appellate division.^* ; When the appellate division sends down its remittitur to the surrogate's court, it loses jurisdiction of the proceeding.^' When a copy of a supreme court judgment de- claring invalid the probate of a will by the surrogate and the will void is filed in the surrogate's office, the surrogate should immedi- ately order revocation of letters issued thereunder and an accounts ing by the executor.^" It makes no difference how long a proceed- ing remains in the appellate division; at its end, i. e., when the appeal is finally disposed of the papers are to be remitted to the surrogate so that his decree may be entered.* On affirmance by the appellate court of a surrogate's decree directing payment of the balance of a fund found due the respondent from the appellant, the former may have the decree of affirmance enrolled and take execution thereon in the appellate court.* On reversing or modify- ing a surrogate's decree it is the appellate court's practice to remit the proceedings to the surrogate's court with instructions to the surrogate to enter a final decree upon the principles settled by the 648, 10 N. E. 152 (1887)— General (1903), or 83 Supp. 890; afif'd 93 Term. A. D. 618, 87 Supp. 768. "C. C. P. §§ 2763; 1319. 2" Matter of Cavanaugh, '72 Misc. 18 C. C. P. §§ 2763; 1323. 584, 131 Supp. 982 (1911 . " Matter of P^e, 23 A. D. 206, 48 * Matter ol Laudy, 35 A D 542 Supp. 865 (1897): (1898), or 55 Supp. 98. 18 C. C. P. § 2764. ■ « Howell v. Howell, 30 Huu, 625 19 Matter of Hopkins, 41 Misc. 83 (1883). 954' S;^ iS3~S?,5 APPEALS appellate court or to take such further proceediilgs as may be nec- essary.^ § 883. Appeal: Effect, In General. — A perfected appeal has the effect of staying all proceedings to enforce the decree or order ap- pealed from ; except that the surrogate may proceed in any matter included in the special proceeding and not affected by such decree or order, or embraced within the appeal.* The statutory provision that a perfected appeal has the effect to stay the proceedings to en- force the order appealed from applies to the collection of money, the requiring of the delivery of property, the committing for con- tempt or other of the things required to be done by the person against whom the: order was directed and not to an interlocutory, practice order, such as an order directing a case to proceed for trial before the surrogate.* An appeal, with: an undertaking, from a surrogate's decree removing a testamentary trustee and appointing a successor does not stay the appointment or prevent the substitu- tion of the successor as defendant in a pending action against the removed trustee.^ § 884. Id.: From Decree Granting Letters or Admitting Will. — If in the opinion of the surrogate, manifested by an order, the preservation of an estate of a decedent requires that letters testa- mentary or of administration should issue, an appeal from the sur- rogate's decree admitting such decedent's will to probate or grant- ing -letters testamentary or of administration on such decedent's estate, or from an order or judgment of the appellate division of the supreme court affirming such decree of the surrogate, does not stay the issuing of such letters.'' The taking of an appeal from a decree admitting a will and the giving of the security required to perfect the appeal stays the issuance of letters in chief unless the surrogate's opinion, manifested by his order, is that the estate's preservation requires the issuance of such letters ; and such an order will not be made when a temporary administrator is acting under sufficient bond and there can be no loss by retaining the estate's securities and there are no moneys in his possession required by the will to be invested ; because a temporary administrator can always be au- thorized to sell.* § 885. Id.: From Decree or Order of Commitment. — ^Unless the appellant gives the required statutory undertaking, an appeal from a decree or order of a surrogate's court directing commitment for 3 Howell V. Howell, 30 Hun, 625 « Stout v. Betts, 74 Hun, 266, 26 (1883). Supp. 809 (1893), old Code §§ 2576, 4C. C. P. §§2557; 1310. 2578, 2583 and 756. 5 Matter of Williams, 135 A. D. ' C. C. P. § 2557. 123, 119 Supp. 892 (1909), old Code « Matter of Gihon, 27 Misc. 626, § 2584, new Code § 2557. 59 Supp. 494 (1899). 955 NEW YORK ESTATES AND SURROGATES §§ 886-889 disobedience to a direction of such court, or for neglect of duty, or for refusal to obey a subpcsna, or to testify when required accord- ing to law, does not stay execution of the decree or order.^ § 886. Id.: From Decree to Pay, Distribute, Deposit, Deliver or For Execution.— Unless the appellant files the required statutory undertaking, a notice of appeal by him from a decree directing him as executor, administrator, testamentary trustee, guardian or other person appointed by the surrogate's court,: to pay or distribute money, or to deposit money in a bank or trust company; or to de- liver property ; or from an order granting leave to issue execution against him as executor or administrator (when the letters of ap- pellant as executor, administrator or guardian have not been re- voked, or the appellant as trustee has not been removed) , does not stay the execution of the decree or order: appealed from.'" § 887. Id. : From Decree Revoking, Removing, Suspending, etc. — An appeal from a decree or order of a surrogate's court revoking letters, removing a trustee, suspending a trustee or grantee of let^ ters, appointing a temporary administrator or an appraiser of per- sonal prbperty, does not stay the execution of such decree or order. ^^ § 888. Argument of Appeal. — The number of arguments to which an appeal is entitled and may have is in the discretion of the court in which the appeal is pending.^* The legaL questions in- volved in an appeal should be discussed upon the argument of the appeal when reached in its regular order upon the calendar and should not be disposed of on a motion to dismiss for alleged frivo- lousness." ' . ;■ :- § 889. Appeal to Court of Appeals: Jurisdiction.— The jurisdic- tion of the court of appeals is limited to a review of questions of law.^* The general ; design of the Constitution and laws of the state is to confine the jurisdiction of the court of appeals to the de- termination of questions of law only.^^ The jurisdiction of the court of appeals on appeal from a judgment of the appellate divi- sion affirmitig a surrogate's decree is limited to questions of law pre- sented by proper exceptions.^* The statutory provision " giving "the appellate court" the same power as the surrogate to decide questions of fact on an appeal taken upon the facts, and to open, va- cate, modify, set aside or enter nimc pro tunc a decree or order, or ^C. C. P. § 2557. "Matter of Ross, 87 N. Y 514 10 C. C. P. § 2760. (1882). " C. C. P. § 2657. " Matter of Boyop, 141 N. Y. 554 i« Hooper v. Beecher, 109 N. Y. 35 N. E. 1079 (1894), General Term, 609, 15 N. E. 742 (1888). appeal from decree-settling executor's 1' Hooper v. Beecher, 109 N. Y. account. 609, 15 N. E. 742 (1888). "Old Coda § 2586, new Code § i*C. C. P. § 1324; 191, subd. 3. 2763. 956 § 889 APPEALS to grant a new trial or hearing for fraud, newly discovered evi- dence, clerical error or other sufficient cause, with the added pro- vision that the surrogate's decree must be reviewed as if the original application were made to the appellate court, have reference only to appeals from surrogates' decrees or orders to the appellate divi- sion and not to appeals to the court of appeals.^* When there is an entire failure of proof upon the point as to whether the exami- nation of a long account will be involved so as to warrant a reference, a pure question of law is presented which the court of appeals may consider, although if there were conflicting evidence upon the point the decision of the court below would not be reviewed.'* There is no question of law so as to give the court of appeals juris- diction of an appeal in a proceeding to remove a testamentary trustee when the evidence before the surrogate tended to establish any of the statutory grounds for removal and his decision was affirmed by the appellate division on some evidence to sustain the decision.*" A finding of a testator's intention based only on the will and the surrounding facts and circumstances as found by the trial court presents, in the Judicial construction of the will, a ques- tion of law reviewable by the court of appeals, although the trial (surrogate's) court decree has been unanimously affirmed by the appellate division.' The appellate division cannot create a ques- tion of fact so as to bar consideration of its action in determining it by the cpurt of appeals by declaring that there is such a question ; and the first duty of the court of appeals is to examine the evidence to see whether it presents a material question of fact.* When it does not appear in an order of the appellate division appealed to the court of appeals that the reversal was upon the facts it must be presumed that the- judgment was not reVersed upon a question of fact but upon, the law only ; and the inquiry by the court of ap- peals is then limited to a consideration of whether, upon the deci- sion, upon the facts, the legal conclusion followed which the ap- pellate division arrived at; whether any material finding of fact was without evidence to support it ; and whether any material error was committed in ike admission or exclusion of evidence.* When "Davis v: Clark, 87 N. Y.- 623 Code §§ 2817-8. (1882); Matter of BnU, 111 N. Y. ' 'Matter of Thompson, 217 N. Y. 624, 19 N. E. 503 (1888), old Code HI* lU N. E. 762 (1916). 5 2547; C. C. P. § 1337; (Court of * Matter of Totten, 179 N. Y. 112, LT^X,.. P1p«.,^ '^O L.E.A. 711, 71 N. E. 748, 1 Ann. Common Fleas). ^ „„„ /lookv -Cassidyv.McFa.land, 139 N.Y. ''TkeKii/y v!' Hessen, 202 N. Y. 201, 34 N. E. 893 (1893). 24, 9S N; E. 32 (1911), C. C. P. § 20 Matter of McGillivray, 138 N. 1338; Wright v. Smith, 209 N. Y. Y. 308, 33 N. E. 1077 (1893), old 249 (1913). 957 NEW YOEK ESTATES AND SURROGATES § 889 the appellate division reverses a surrogate's decree, or order upon the law only the court pf appeals has but three questions open, viz.: (l),The correctness of the rulings as to the admission and re- jection of evidence; (2) Whether any material finding of fact is without evidence: to support it;. and (3) Whether the . conclusions of law are supported by the facts found.* The court of appeals upon an appeal to it from an order or decree of a surrogate in which questions of fact arise upon conflicting evidence can only consider the evidence with a view to seeing if there is any evidence sufficient to sustain such order, or decree; and cannot reverse be- cause it thinks on a review of all the evidence, that the decree is against the weight of the evidence.^ In other words,, the decision of the surrogate upon questions of fact, although reviewable in the appellate division, are not reviewable in the court of appeals pro- vided there is any evidence to support the decision.* Especially is there no ground for review by the court of appeals of a surrogate's decision when made not only upon evidence at least conflicting but also in a matter in which he might exercise discretion which has not been unfairly exercised.' When a reversal by the appellate division is upori the facts as well as upon the law, if there was a material question of fact the court of appeals cannot consider the action;of the appellate division in detcrpaining it, because the court of appeals is confined by the Constitution to the review of questions of law.* , When a reversal is made by the appellate division of a surrogate's decree by an order which does .not state to the contrarj' it must, be assiime(i by the, court of appeals on a,ppeal to. it, from the appellate division's order that the reversal was upon a question of law only.^ When .a surrogate has passed upqn a question of fact on conflicting evidence and thei appellate division has affirmed his decision, it is not reviewable by the court of appeals." The court of appeals cannot entertain jurisdiction in cases of appeal frorii ordei's of reversal by the appellate division of judgments entered oh jury trials when such orders are silent as to the grounds thereof unless it affirmatively appears that the oi'ders denying motions for * Matter of Keefe!, 164 N. Y. 352, 'Matter of Snyder, 103 N. Y. 178, 58 N. B. 117 (1900)— probate pro- 8 N. E. 479 (1886), C. C. P. § 1337. eeeding. - 'Matter of Totten,>179 N. Y. 112, s Davis V. Clark, 87 N. Y. 623 70 L.R.A. 711, 71, N. E. 748, 1 Ann (1882)— C. C. P. § 1337 (C.i .C. P. Cas. 900 (1904). ' § 2763 applies only to appellate divi- ' Matter of Keefe, 164 N. Y. 352 sion); Matter of Ross, 87 N. Y. 514 58 N. E. 117 (1900)— probate pro- (1882) ; Hewlett v. Elmer, 103 N. Y, eeeding. 156, 8 N. E. 387 (1886). "'Matter of Higgins, 94 N. Y. 554 'Matter of Valentine, 100 N. Y. (1884). 607, 2 N. E. 451 (1885), C. C. P. § 1337. 958 §§ 890, 891 APPEALS new trials were affirmed on the facts or that appeals therefrom were dismissed." Appeals from judgments in jury cases only bring up the facts for review when the appeal is also from an order de- nying a motion for a new trial,^^ i. e., appeals from judgments alone in jury cases bring up exceptions ohly.^' An appeal from the last judgment of the appellate division does not bring to the court of appeals for review the first judgment.^* § 890. Id. : How Entitled. — After an appeal is taken to the court of appeals from the appellate division of the supreme court the name of the court of appeals must be substituted for that of the appellate division in the title of the special proceeding; otherwise the title should not be changed in consequence of the appeal.^* § 891- Id.: From What May Be Taken. — An appeal to the court of appeals from the appellate division may be taken: (1) As of right, from judgments or orders ^* finally determining special pro- ceedings in surrogate's court; (2) As of right from orders granting new trials on exceptions if the appellants stipulate that upon affirm- ance judgment absolute shall be rendered against them; (3) When the appellate division so allows, from its determinations upon its certificate that one or more questions of law have arisen which in its opinion ought to be reviewed by the court of appeals." "The right of a party to have all disputes in which he has an interest de- termined according to judicial forms, in a court possessing original jurisdiction, is absolute. . . . But when he seeks to have the judgment reviewed in this court" (the court of appeals) "he must be able to point to some, statute giving him the right and conferring the jurisdiction." ^' An order is not necessarily "final" because it ends the litigation.*® The right of the court of appea:ls to review an order which reverses a judgment in an action and grants a new trial does not extend to ah order reversing a decree of a surrogate's court and directing a new hearing, e. g., a reversal of a surrogate's deci'ee denying probate and a remittance of the proceeding to the " Wright V. Smith, 209 N. Y. 249, King, 155 N. Y. 325, 49 N. E. 866 103 N. E. 154 (1913). (1898) ; N. Y. Security Co. v. Sara- »« Wright V. Smith, 209 N. Y. 249, toga Gas & Electric Light Co. 156 103 N. E. 154 (1913). N. Y. 645, 51 N. E. 297 (1898) ; City 13 Wright V. Smith, supra. of Johastown v. Wade, 157 N. Y. 50, 1* Matter of Will of Buolong, 126 51 N. E. 397 (1898). N. Y. 423, 27 N. E. 945 (1891) ; C. "Bryant v. Thompson, 128 N. Y. C. P. §§ 1316; 1317. 426, 13 L.R.A. 745, 28 N. E. 522 « C. C. P. § 1295. (1891). "Libbey v. Mason, 112 N. Y. 525, ^^ N. Y. Security Co. v. Saratoga 2 L.R.A. 795, 20nN. E. 355 (1889)- Gas & Electric Light Co. 156 N. Y. entry of judgment not necessary, as 645, 51 N. E. 297 (1898) ; City of appeal can be from order. Johnstown v. Wade, 157 N. Y. 50, "C. C. P. § 190; Van Arsdale v. 51 N. E. 397 (1898). 959 NEW YORK ESTATES AND SURROGATES § 891 surrogate's court without any direction for the admission of the paper to probate on such remittance is not appealable to the court of appeals.*" Probably if such a direction had been made it would have been deemed final so as to be appealable under art. 6, sect. 9 of the Constitution and sect. 190 of the Code of Civil Procedure.^ When the grant of an order by a surrogate is discretionary, an ap- peal from its affirmance by the appellate division does not lie to the court of appeals.* Orders finally determining special proceed- ings which are appealable include: — orders punishing witnesses for failure to answer ; * orders reversing a surrogate's decision deny- ing a motion to vacate accounting decrees made by him;* judg- ments reversing in part the surrogate's decree on an executor's accounting and remitting the decree in accordance with the judg- ment, because there was to be no further litigation or judicial in- quiry and no further exercise of judicial discretion, and the further action of the surrogate was simply to Conform his decree to the judgment ; ' an appeal from a surrogate's order fixing the fees of appraisers of the estate of a decedent; * an order affirming an order or decree of a surrogate's court settling an intermediate aCcbuntihg, awarding commissions thereon and determining the rights of the parties to the proceeding, so far as it actually adjudged them, as the fact that the accounting may be indeterminate in the sense that the estate is not now finally disposed of does not affiect the final character of the decree ; '' orders to pay legacies ; ' an order of a surrogate vacating a satisfaction piece by distributees to an executor on the application of an attorney who claimed it was given in dis- regard of his lien on a decree in the proceeding and by collusion after notice of his lien; ® an afiirniance by the appellate division of a referee's decision sustaining a disputed claim (which the lower *» Matter of Gibson, 195 N. Y. 466, Co. or Matter of Winfleld, 93 N. Y. 88 N. E. 1106 (1969). 45 (1883)— order for payment of ^ Matter of Gibson, supra, — die- referee's fees, turn. i : , ^ Matter of King v. Ashley, 179 * Matter of Baldwin, 158 N. Y. N. Y. 281, 72 N. E. 106 (1904). 713, 53 N. E. 218 (1899)— appeal * Matter of Tilden, 98 N. Y. 434 from aflSrmance of surrogate's order (1885) — General Term, vacating stay on probate, denying * Stimson v. Vroman, 99 N. Y. 74, application for issuance of letters 1 N. E. 147 (1885) — General Term, testamentary and relief from a stipu- ^ Mattei: of Harriot, 145 N. Y. 540, lation of denunciation by ati executor 40 N. E. 246 (1895) — General Term, and granting letters of administra- '' Matter of Prentice, 160 N. Y. 568 tion c. t. a.;. Matter of Halsey, 93 55 N. E. 275 (1899). N. Y. 48 (1883)— order denying 'Matter of Halsey, 93 N. Y. 48 leave to intervene or motion for re- (1883). settlement of order; Attorney-Gen- ^Matter of Regan, 167 N. Y. 338 eral v. Continental Life Insurance 60 N. E. 658 (1901). ' 960 § 891 APPEALS court, special term, had set aside).*" A dismissal of a proceeding by an interested party to compel an administrator's accounting, which resulted in a final decree, is appealable to the court of ap- peals.** Orders finally determining special proceedings in surro- gates' courts which may be appealed to the court of appeals do not include : — orders granting a new trial ; ** orders reversing surro- gates' orders and directing that the proceedings be remitted to the surrogate for an accounting as demanded by the petition ; *^ judg- ments reversing upon the facts surrogates' decrees admitting a will to probate and directing a new trial ; ** orders affirming surrogates' orders for an accounting, as these are simply initial steps in special proceedings in surrogates' courts ; ** orders affirming orders of sur- rogates' courts denying applications to open decrees in proceedings for the final judicial settlement of executors' accounts and to re- quire further accountings ; *® orders commanding executors to ac- count and referring , to ascertain their places of residence and whether they have offices in the state." An order of the appellate division modifying ' a surrogate's decree is not reviewable by the court of appeals on a direct appeal from the surrogate's court de- cree entered in accordance with such order, notwithstanding the notice of appeal gives notice of intention to bring up such order of review ; but only on direct appeal from such order or from the appellate division's final judgment affirming the surrogate court's decree entered in accordance with such order.*' An appeal to the court of appeals from an affirmance by the appellate division of a surrogate's decree brings up nothing for review when there was no appeal to the appellate division.** The court of appeals has no jurisdiction to entertain an appeal from an order of the appellate division affirming an order of a surrogate's court granting a mo- tion to open a default and to vacate and set aside a decree settling the accounts of an executor.*" *• Fredenburgh v. Biddleeom, 85 51, 34 N. E. 756 (1893)— General N. Y. 196 (1881). Term. ** Matter of KiUan, 172 N. Y. 547, *« Matter of Small, 158 N. Y. 128, 63 L.R.A. 95, 65 N. E. 56l (1902). 52 N. E. 723 (1899). *«Roe V. Boyle, 81 N. Y. 305 *' Matter of Halsey, 93 N. Y. 48 (1880)— new trial granted by Gen- (1883). eral Term about confirmation at Spe- *' Matter of Union Trust Co. 172 eial Term of referee?? report on de- N. Y. 494, 65 N. E. 259 (1902). f erred claim against estate. *' Matter of KeRogg, 104 N. Y. *3 Matter of Latz, 110 N. Y. 661, 648, 10 N. E. 152 (1887)— General 18 N. E. 260 (1888)— General Term. Term. ** Matter of Will of Budlong, 126 *" Matter of Robitscher or Fri- N. Y. 423, 27 N. E. 945 (1891). bourg, 216 N. Y. 665, 110 N. E. 1048 15 Matter of Callahan, 139 N. Y. (1915). N. Y. E. & S.— 61. 961 NEW YORK ESTATES AND SURROGATES §§ 892-895' § 892. Id. : Who May Take.— -Any party aggrieved may appeal to the court of appeals; except when the order or judgment of the appellate division of which he complains was made or rendered upon his default.^ A party in whose favor a judgment is ent&red; or an order is made cannot be aggrieved by it, and is, therefore, in no position to claim the right of appeal.^ The rules of the court of appeals provide that attorneys and guardians ad litem shall be deemed unchanged unless others are appointed or notice is given.*- § 893. Id.: When Barred. — An appeal to the court of appeals must be taken within sixty days after service upon the attorney for the appellant (a) of a copy of the order or judgment appealed from, and (b) of a written notice' of the entry, thereof.* The Code ^ and rules of the court of appeals^ provide for transmission to the court of appeals of the return and for the effect of failure so to do. § 894. Notice of Appeal: Contents.-^The requisites of a notice of appeal to the court of appeals from the appellate division are: — (1) That it be written; (2) That it be to the effect that the appel- lant appeals from the judgment or order, or from a specified part thereof; and, if the appeal is from a final judgment or order and the appellant intends to .bring up for review thereupon an inter- mediate order or interlocutory judgment, (3) That it distinctly specify tlie intermediate order or interlocutory judgment to be re- viewed-'' . ;', . u I ... ' • ■, ._- . § 895. Id.: Service.^— A notice of appeal to the court of appeals. must be gerved: — (1) upon the attorney for the adverse party; (2) upon the clerk of the appellate division with whom; the order or judgment appealed, from is entered,. by filing in his office: a written notice to the effeC;t that the appellant appeals, from the order or judgment o;r from a specified part thereof ; and (3) upon the clerk of the surrogate's court (on appeal from which the order was made) by filing the notice of appeal with him.' Service of a no- tice of appeal. to the court of appeals may.be nxade' upon the at- torney for the adverse party:— (1) Personally, by delivering it to hini; » (2) Through the post-office, by depositing the notice, proper- ly, inclosed in a post-p^iij wrapper, in, the post-office or in any postr office box regularly maintained by the United States government and under the care of the post-office, of the party or the attorney" serving it, directed to the person to be served at the address, within 1 C. C. P. § 1294. * C. C. P. § 1315. " Hooper V. Beecher, , 109 N. Y. * Rules 1 and 2. 609, 15 N. E. 742 (1888)-. , ^ C C. P. §§ 1300: 1301. ^ Rule 3. ■ ,« C. C. P. §, 1300. *C. C. P. § 1325. 9c. C. P. §§- 1300; 796. 962 §§ 806, 897 ' ' APPEALS the state, designated by him for that purposfe upon the preceding papers in the proceeding; or, if he has not made sUch a designation, at his place of residence, or the place where he Icefeps an office, ac- cording to the best information which- can conveniently be ob- tained concerning it; (3) Upon the partner, or clerk, or person having charge of the office of such attorney, during the latter's ab- sence from his office, hj leaving the notice with such partner, clerk or person ; (4) By leaving the notice in a conspicuous place in such attorney's office, if the office is open so as to admit of so leaving it, or by depositing it in a sealed wrapper directed to him, in his office letter-box-, if there is an office letter-box ; provided, in either case, that there is no person in charges of his office and the service is made between six o'clock in the morning and nilie o'clock in the evening; (5) By leaving it at such attorney's residence within the state with a person of suitable age and diseretioii if the office is not open so as to admit of leaving the notice in it and there is no office letter-box.'" Service of a notice of appeal to the court of appeals may be made upon the adverse party instead of upon his attorney only: — (1) If such attorney is dead; (2) If such attorney has been removed and notice of the removal has been served upon the appellant's attorney and another attorney has nofi been sub- stituted; or, (3) If for any reason service of the notice upon 'the proper attorney for such adverse party cannot with due diligence be made within, the state.'* When service is so made upon the ad- verse party it must. he. made in the.nianner prescrijaed by law for serving it upor^ an attorney.'^ •;Service of such notice and notice of all subsequent proceedings upon the adverse party may be made as directed: by. a jijdge of the cpurt of appeals if personal, service cannot be made, with due diligence within the state,'* § 896. Id. : On What Heard. — An appeal to the court of appeals from an order of the appellate division made on appeal to the lat- ter court from the surrogate's court,'?, must be heard by the court of appeals upon a case to be made and settled by a justice of the appellate division.'* 'The rules of the. court of appeals provide for the making, form, contents, service and filing of cases and points.'* § 897. Id. : Undertaking on Appeal. — An appeal to the court of appeals by an executor fi'om an order of the appellate division af- firming an order of a surrogate adjudging him in contempt is perfected when he gives ^ an undertaking for costs not exceeding "C. C. P. §§1300; 797. '^ C. C. P. §§ 2542; 2757; Matter " C. C. P. § 1302. of Goldsticker, 54 Misc. 175, 105 '^C. C. P. §1302i:see§869, snpra. Supp. 931 (1907)— probate appeal. " C. C. P. § 1302. . 16 Eules 4, 5, 6, and 7. '«C. C. P. § 997.' 963 NEW YORK ESTATES AND SUBROGATES § 898 $500 " pursuant to the appellate division's order staying on the giving of such undertaking, if on appeal to the appellate division he had already given an undertaking to surrender himself if the order be affirmed on the appeal dismissed.^* Upon the giving of such an undertaking all proceedings, designed to enforce the order appealed from are stayed." § 898. Id. : Proceedings on Order on Appeal. — On the reversal by judgment of the court of appeals of an order of ihe appellate divi- sion and a decree. of a surrogate admitting a will to probate, the surrogate, when the remittitur reaches him, must enter a decree ac- cordingly.^" It is probably enough if the surrogate Umits his order to a declaration making the court of appeals' judgment that of his court.^ He cannot make any change in such judgment; nor can he reverse the order of affirmance of the appellate division.' But if he do so, it does not invalidate his order so as to require its vacation.* A remittitwr of the court of appeals contains its judg- ment and is sent down to the court below as authority for the lat- ter's order. If there is any error in the remittitur, e. g., by its failure to order judgment absolute when the respondent is entitled to it, the court of appeals must amend it: the lower court's order must comply strictly with the remittitur, and cannot vary the judg- meiit of the highest court.* The surrogate cannot pass on the question of whether or not an administrator c. t. a. appointed for an estate before its appeal reached the court of appeals^ should have been substituted before the default of the executors was taken after the court of appeals has remitted the case to the surrogate's court by a remittitur dismissing with costs the executors' appeal; be- cause the directions of a remittitur hy the court of appeals bind the surrogate.* A notice of the entrj' of a notice of appeal is not "ir- regular and insufficient because it referred to the order as entered in the county clerk's office, when the final order or judgment was to be there entered ;" and such a notice is sufficient to limit the time of appeal.* The rules of the court of appeals provide for the form and contents of the remittitur, affirmance by default, etc' > " See C. C. P. § 1326. * Zapf v. Carter, 90 A. D. 407 " Matter. of Pye, 21 A. D. 266, 47 (1904), or 86 Supp. 175— lower court Supp. 689 (1897), old Code § 2579, cannot grant motion for judgment new Code § 2761. absolute wlien the appeal is merely 19 Matter of Pye, supra, C. C. P. dismissed by the highest court. § 1310. 5 Matter of Baldwin, 30 Misc. 169, 2" Matter of Hopkins, 95 A. D. 57 63 Supp. 727 (1899). (1904), or 87 Supp. 793. * Guarantee Trust Co. v. P., R. & 1 Matter of Hopkins, supra, A. E. R. R. Co. 160 N. Y. 1, 54 N 'Matter of Hopkins, supra. E. 575 (1899). 'Matter of Hopkins, supra. 'Rules 16 and 17. 964. § 899 APPEALS § 899. Id.: Effect. — On appeal to the court of appeals from the appellate division's decree affirming probate of a will and on giving the requisite security all proceedings to enforce the surrogate's de- cree of probate, including the issuance of letters, are stayed ; and all that the proponents, named as executors, can do is to apply for letters with limited, authority.' •Matter of Gihon, 29 Mise. 273 A. D. 635, 63 Supp. 1108; C. C. P. (1899), or 61 Supp. 244; afE'd 49 §§ 1326, 1327, 1310, old Code § 2582. 965 CHAPTEH XIII. COSTS. A. In Surrogate's Court : 1. WMt Are and Taxation, § 900. ^ • 2. By Whom or Whence Payable, § 901. 3. To Whom Awarded, § 902. 4. On Order, § 903. 5. On Decree: a. In Any Proceeding: To Petitioner, § 904. b. In Uncontested Proceeding, § 905. e. In Contested Proceeding, § 906. 6. To Special Guardian, § 907. B. In Other Courts: 1. On Appeal: a. To Appellate Division, § 908. b. To Court of Appeals, § 909. 2. On Reference, § 910. 3. Security for Costs in Actions By and Against Bepresentatives, § 911. 4. In Action by Representative, § 912. 5. In Action Against Representative, § 913. § 900. Costs: What Are and Taxation. — Costs in special proceed- ings in surrogates' courts consist of (1) a sum allowed for costs fixed by the surrogate, and (2) the necessary disbursements of the party to whom the costs are awarded, as follows: — The legal fees (a) of witnesses; (b) of referees; (c) of other officers; (d) for publication, when publication has been directed pursuant to law; (e) for a certified copy of a deposition or other paper, recorded or filed in any office, necessarily used or obtained for use on a trial; (f) for copies of opinions and charges of judges; The reasonable (g) compensation of commissioners taking depositions; (h) ex- penses of printing the papers for a hearing, when required by a rule of the court; (i) Prospective charges for the expenses of entering and docketing the decree; (j) The sherifif's fee for receiving and returning one execution on the decree, including the search for property, and such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by ex- press provision of law ; (k) Expenses of searches made and certified by title insurance, abstract or searching companies organized and doing business under the laws of New York state when (a) such searches affect any property situated in any county in which the office of county clerk or register is a salaried one; (b) the proceed- 966 ^ 901 COSTS iiig is one in >vhich official searches may be used; and (c) the rates laxed for the search do not exceed the cost of similar official search- es.^ The fees for services and traveling of (a) a referee, (b) juror, or (c) witness, in the surrogate's court, are the same as all9W'ed in the supreme court.^ A referee's fees cannot be taxed until his certificate showing the number of days he has spent in the reference has been tiled.* A stenographer's affidavit of services performed should also be filed.* Charges for stenographer's minutes unneces- sary to an appeal cannot be taxed.* Costs will not be allowed in the surrogate's court except upon papers showing compliance with the statutory prerequisites to allowing costs.® The statutory pro- vision in the Code effective September 1, 1914, that pending pro- ceedings proceed under the practice established refers to the formal requisites of taxation of costs, e. g., the time and manner of notice, the form of the affidavit required, etc., and not to the substantial question of the amounts to be allowed.' A motion for retaxation of costs and resettlement of the decree will be denied when the same objections are advanced in support of the motion as were urged by the objectant on the return of , the original, notice of taxation; be- cause the objectant is seeking a review of the surrogate's previous decision in taxing the costs and this can be had only by appeal.' Notice of taxation of a special guardian's bill of :costs should be given to all: parties.* The rules of various surrogate's courts pro- vide, as to costs, that none can be had in a proceeding to compel filing of an inventory utiless a request to do so has been refused;^" that taxation must be on certain notice, sustained by proof, etc. ; ^^ that allowances, whether of special guardians,** or others, must be on certain notice and proof ; *^ that costs of proponents of wills other than the executors are allowed only in certain contingencies, etc." § 901. Id.: By Whom or Whence Payable. — rCosts awarded by a decree or order may be made payable in such proportion as the sur- rogate may direct and justice requires (a) by the party personally, iC. C. P. §§ 2743; 3256. » Est. of Young, N. Y. L. J., Oct. « C. C: P. § 2752. 23, 1915, N. Y. Co. 'Est. of Brodil,.N. Y. L. J., Mch. » Est. of Huggins, N. Y. L. J., 24, 1915 (N. Y. Surr.). Aug. 4, 1915 (N. Y. Surr.). * Id. 1" See e. g., Bronx Rule 20. 8 Est. of Holme, N. Y. L. J., Apr. " See e. g., these Rules : N. Y., 20 : 23, 1916 (N. Y. Surr.). Bronx, -20; Chautauqua, 11. 6 Est. of Mulry, N. Y. L. J., Feb. ^^ See e. g., these Rules: West- 15, 1915 (N. Y. Surr.), C. C. P. §§ Chester, 10; Steuben, 14. 2746-7. 13 See e. g., these Rules : Bronx, 20, 'Matter of Cunninigham, 87 Misc. N. Y. 20; Steuben, 14; Chautauqua, 172 (1914), or 150 Supp. 431; C. 11. . ' i C. P. § 2771. " See e. g., Rule 15, Queens. 967 NEW YORK ESTATES AND SUBROGATES § 901 or (b) out of the estate or fund, or (c) out of the share or interest in the estate or fund of any person; or (d) from both the estate or fund and the share or interest therein of any person ; ^* except that costs payable out of the estate or otherwise cannot be awarded to an unsuccessful contestant in a probate proceeding unless such contestant be either a special guardian for an infant or incompe- tent person appointed by the surrogate, or named as executor in a paper propounded by him in good faith as the last will of the de- cedent, i* The statutory discretion vested in a surrogate in award- ing costs is so qualified by the limitation that they shall be granted "as justice requires" as to authorize the interposition of an appel- late court if there has been an abuse of discretion and a violation of justice.*'' A person is not a party to a proceeding in such a sense as to be subjected to liability for costs who is a mother of an infant and is made party to a proceeding for appointment of a guardian for such infant as being prima facie entitled to the in- fant's custody.*' A surrogate has discretion whether or not to per- sonally charge an executor with costs and his discretion will not be interfered with on appeal unless abused.*' Generally speaking an executor will be directed personally to pay costs when he denies assets and they appear.^' Costs should not be charged personally against an executor on the theory that he so made out his account as to attempt to get commissions to which he was not entitled when there is no finding of either his misconduct or mismanagement.* Costs, iiicluding counsel fees, of a proceeding against an executor who refused to give a required bond are properly charged against him individually.* ' A trustee removed for malfeasance as being indebted to the fund in a large sum is personally chargeable with costs.* A contestant in 'bad faith of a will must pay^ costs.* Costs may properly be allowed against sureties of one administrator in favor of his coadministrator when the latter was guilty' of no neg- ligence in not knowing of the misapplication of estate funds by the former, for which the sureties are held liable.^ A surrogate's direc- tion in a decree that a certain sum be paid from the share of an ■'■ , > ■ ■ 1 *5 C. C. P. § 2743; Marsh v. Avery, * Matter of Butcher, 102 A. D. 410 81 N. T. 29 (1880). (1905), or 92 Supp. 418. *8C. C. P. §§ 2743; 2746. ^Matter of O'Brien, 5 Mise. 136 *'' Matter of Selleck, 111 N. Y. (1893), or 25 Supp. 704. 284, 19 N. E. 66 (1888). » Matter of Cregan or Howell, N *' Matter of Valentiiie, 100 N. Y. Y. L. J., July 31, 1915 (Ct. of Ap- 607, 2 N. E. 451 (1885). peals). ** Matter of Long Island Loan & * Matter of Lowman'iS Estate, 1 Trust Co. or Northrup, 92 A. D. 5 Misc. 43 (1892), or 22 Supp. 1055. (1904); or 87 Supp. 318. » Matter of Cossey or Adams, 51 20 Matter of Long Island Loan & A. D. 619, 64 Supp. 591 (1900), aff'd Trust Co. or Northrup, supra. 166 N. Y. 623, 59 N. E. 1118. 968 § 901 COSTS executor-legatee as a fee to the latter's counsel is ultra vires.^ But the executor-legatee is bound by such direction if he procures per- mission to re-examine another part of the decree on condition that all the rest of it stand, did not object before the surrogate, and al- lowed the time to appeal to expire without objecting by appeal.'' A surrogate cannot legally direct satisfaction to be made of a judg- ment for costs obtained by executors against beneficiaries of a trust under the will from the income of the trust estate ; because not only would this require proceedings foreign to the jurisdiction of surro- gates' courts, but the theory of retainer is that the debt is an asset in an executor's hands and that a legacy to the debtor does not for- give it, and the legacy is absent here, there being but a trust to a third person for the benefit of the debtor and the trustee having no title to the debt or duty to collect it.' The expenses of an ex- ecutor's accounting, voluntary in form but required by the bene- ficiaries, which the executor did not seek to avoid, made three years after the last one, are properly charged one-half to the principal and one-half to the income of the estate.' When the necessity for judicial construction of a will arises from conflicting claims to in- come of a trust created by the will, even though an incidental con- struction as to the principal arises, the costs should be paid from the income and not from the principal : especially when their pay- ment from the principal would necessitate a sale of premises before the end of the trust and so would thwart the testator's intent.*" When a suit for the construction of a will is proper and each party succeeds in part the taxed costs of each party, plaintiff included, should be paid out of the personal estate remaining in the execu- tors' hands after payment of the specific legacies and retention by the executors of their own costs.** If the condition of the estate renders such a manner of payment of costs inequitable, other pro- vision should be made.*^ An award of costs will not be stricken out or made less on the ground that it is in excess of the amount properly allowable by statute when the party moving to have the award revoked or lessened not only did not oppose the allowance but procured a decree to be amended so as to obtain an award of costs * Marsh v. Avery, 81 , N. T. 29 " Denison v. Denison, 96 A. D. (1880). 418 (1904), or 89 Supp. 126; aff'd 'Marsh v. Avery, supra. 183 N. Y. 505, 76 N. E. 1093. « Matter of Knibbs, 45 Mise. 83 ** Oxley v. Lane, 35 N. Y. 340 (1904), or 91 Supp. 697; mod. 108 (1866); Brown, v. Brown, 41 N. Y. A. D. 134, 96 Supp. 40, 507 (1869). 9 Matter of Stevens, 47 Misc. 560, *^ Brown v. Brown, supra. 95 Supp. 1084 (1905). 969 NEW YORK ESTATES AND SURROGATES §§ 902, 903 not allowed in the original decree without objecting, as this is virtu- ally a consent.^' § 902. Id.: To Whom Awarded.— The sum allowed for costs must be awarded to the party." The sum allowed as costs must (a) be fixed by the surrogate, (b) be inserted in the decree or order made in the proceeding in which allowed, and (c) be awarded to the party entitled to them.*^ For example, on settlement of a tes- tamentary trustee's accounts the costs should be decreed as pay- able to the trustee and not to his attorney.^* Costs and allowances on executors' accountings should be made to the parties and not to their attorneys or counsel.^'' Costs in a special proceeding in a surrogate's court when not specifically regulated by' statute may be awarded to any party in the discretion of the court at the rates al- lowed for similar services in an action in a court of record and in like manner.^' In a decree by the surrogate in the nature of a de- cree in equity costs are in the surrogate's discretion ; and when both parties succeed in part in establishing their respective positions a direction that costs be paid out of the estate means costs to all parties.^' A proceeding by a trustee of a trust fund for leave to resign and to procure the appointment of a new trustee, necessarily involving the examination and settlement of the retiring trustee's accounts is such a special proceeditig, and the court cannot make allowances beyond the prescribed rates in special proceedings, e. g., to counsel of several beneficiaries, parties to the proceeding.*" Al- though the surrogate cannot allow a public administrator for' coun- sel fees, he may allow him costs within the statutory limits.^ § 903. Costs: On Order.— The costs upon granting or refusing to grant an order are in the discretion of the surrogate;'^ the sum allowed for costs itiust be fixed by the surrogate ; ^ and such sum must be inserted in the ordef.* The costs allowed on- granting or refusing to grant an order may be collected in the same manner as 1' Matter of Bogarfi, 46 A. D. 240, *' Lawrence v. Lindsey, 70 N Y 61, Supp. 671,(1899). 566(1877). 1* C. C. P. § ,2743; Matter of Greg- «» Matter of Application of Hold- an or Howell, N. t. L,. J., July 31, en, 126 N. Y. 589, 27 N. E 1063 1915 (Court of Appeals). (1891). « C. C. P. § 274i4. ■ ' 1 Est.- of Matthews, N. Y. L. J . " Matter of WooUey, 162 A. B. Feb. 25, 1915 (N. Y. Surr ) C C P 330, 147 Supp. 518 (1914). §§2746-7. ■ ' " ' "Matterof Wright, 121 A. D. 581 « C. C. P. § 2745: Estate of (1907), or 106 Supp; 369. Wright, 89 MiscilOS, 151 Supp. 378 " C. C. P. § 3240; Matter of Prot- (1915). estant Episcopal Public School, 86 ^0. C. P. § 2743 N. Y. 396 (1881). * C. C. P.§ 2743 970 §§ 904-906 COSTS costs allowed upon granting or refusing to grant an order in the supreme court.^ § 904. Costs: On Decree, In Any Proceeding: To Petitioner. — The surrogate, upon rendering a decree, may, in his discretion, fix such a sum as he deems reasonable,' to be allowed as costs to the peti- tioner, not exceeding $25 when there has been no contest, and $70 when there has' been a contest ; and, if a trial or hearing upon the merits necessarily occupies more than one day, $10 for each addi- tional day necessarily occupied in the trial or hearing and in pre- paring therefor ; and lastly, if the proceeding is a probate one and the petitioner is a person named as executor in the will, which he propounds for probate, in addition to costs, all necessary disburse- ments made by him and all expenses incurred by him in the at- tempt to sustain the will.* § 905. Costs: In Uncontested Proceeding.^^The surrogate, upon rendering a decree, may, in his discretion, fix such a sum as he deems reasonable, to be allowed as costs to any party to an uncon- tested proceeding (other than the petitioner) whose attorney has rendered services in the proceeding of substantial benefit to "such party or to the estate or fund, not exceeding $25 ; and, if a trial or hearing upon the merits necessarily occupies more than one day, $^10 ' for each additional day necessarily occupied in the trial or hearing, and in preparing therefor; and, further, if a motion for a new trial is made, $25 if it is granted, and $15 if it is denied.'' A surrogate by summons or direction to appear m&y require an attorney who prepared an account to' appear and submit to an oral examination as to his work in such preparation so as to determine their reasonableness' before allowing the charges against the estate for such services.* A party to an accounting other than the ac- countant can get only $25 costs, allowance and disbursements when there is no contest, and $70 with an additional $10 for each day beyond two of the trial when there is a contest ; but an accountant may, in addition, get an additional allowance of not more than $10 for each day of trial or preparation of the account or supple- mental account.^ The allowance of $10 for each additional day beyond two on a trial on the merits is applicable to a hearing be- fore a referee appointed by the surrogate.^" § 906. Costs: In Contested Proceeding.^— The surrogate, upon rendering a decree, may, in his discretion, fix such a sum as he » C. C. P. § 2745. Code §§ 2561, 2562, new Code §§ 6C. C. P. § 2746. 2746-7. in n TJ s OTAR Matter of Kreidler or Cridler, 68 '0. O. f. S ^<^^- Misc. 412, 124 Supp. 628 (1910). 8 Matter of Reeves or Denike, 48 lo Matter of Glark, .36 Hun, 301 Hun, 606, 1 Supp. 17 (1888), old (1885), old Code § 2561, 971 NEW YORK ESTATES AND SUBROGATES § 906 deems reasoiiable, to be allowed, as costs to any party to a contested proceeding (in addition to the petitioner) who has succeeded in a contest, not exceeding $70; and, if a trial or hearing upon the merits necessarily occupies more than one day, $10 for each addi- tional day necessarily occupied in, the trial or hearing and in pre- paring therefor; and, further, if a motion for a new trial is made, $25 if granted, and $15 if denied; and, lastly, in addition to costs, the surrogate may order a copy of the stenographer's minutes to be furnished to the contestant's counsel and charge the expense thereof to the estate. ^^ No -permission is given a surrogate upon rendeiring a decree in any contested proceeding to fix any sum to be allowed as costs to an unsuccessful contestant except upon a contested application for probate of a will, when costs, payable out of the estate or otherwise, can be awarded to an unsuccessful con- testant only if he is either a special guardian appointed by the sur- rogate for an infant or incompetent person, or a person named as executor in a paper propounded by him in good faith as the last will and testament of the decedent. The amount of costs which the surrogate, upon rendering his decree, may award such special guardian or person named as executor, is such a sum fixed by him as he deems reasonable, not exceeding $70 ; and, if more than one day is necessarily occupied in either a trial or a hearing upon the merits, or in preparing therefor, $10 for each additional day necessarily occupied in the trial or hearing and in preparing there- for; and, further, if a motion for a new trial is made, $25 if it is granted, and $15 if it is denied ; and, lastly, if the surrogate is satis- fied that the contest is made in good faith, in addition to costs, the surrogate may order a copy of the stenographer's minutes to be furnished to the contestant's counsel, and charge the expense there- of to the estate.'^ It is to be noted that the statute does not pro- hibit granting costs to an unsuccessful proponent of a will.^* Con- testants who practically withdraw their contest as to the factum of the will and succeed in getting a construction of the will favorable to themselves are,not"unsiiccessful contestants" within the mean- ing of the section so as to prevent an award to them of any costs at all.i* It is doubtful if such a contest arises as to permit of the allowance of costs to the contestants when mere formal proofs are given to sustain the will and then the contestants withdraw all ob- " C. C. P. § 2746. ' 6 Am. St. Rep. 405, 18 N. E. 110 On the validity of agreement that (1888) — old Code, § 2558, subd. 3. ■costs of contesting -will shall be paid i* Matter of Bogart, 46 A. D. 240 out of the estate, see note in 2 B. R. 61 Supp. 677 (1899) — old Code § C. 633. 2558, subd. 25-58, similar to new « C. C. P. § 2746. Code § 2746. i« Collyer v. CoUyer, 110 N. Y. 481, 972 § 906 COSTS jections to probate and consent to probate: probably some actual contest in the form of a trial upon the merits before the surrogate and the production of evidence to sustain the objections so as to put upon the surrogate the duty of determining disputed and con- tested rights is necessary.*' There is no contest so as to entitle a claimant asking for payment of an alleged debt due from an in- fant's estate to any costs above $25 because a reference is had to take testimony for the court's information and to give the infant opportunity to cross-examine the claimant.** When issues on an accounting proceeding have been made by the filing of an answer and the surrogate has regarded this as a contest, treated the points raised as questions of law, the facts being conceded, to which all the parties agreed, he may make allowances as though a contest had been had.*' Though the surrogate has power to order a copy of the stenographer's minutes to be furnished a contestant's counsel and the expense charged to the estate if he is satisfied the contest is made in good faith, he will not do so if the minutes are paid for by contestants before application for furnishing the minutes to them is made; but the application should precede the furnishing.*' It is an abuse of a surrogate's discretion for hini to impose costs on a contestant some of whose material objections were well founded and should have been sustained by the surrogate.*' No costs will be awarded on denial of probate to a contestant who had no interest, unless the decedent left realty which was shown on the hearing not to be so, as, though successfiil, the contestant objected purely la make mischief.^" When objections raised to an accounting are neither capricious nor unsubstantial the contestants should not be charged with the costs of a reference but the costs should' be paid by the estate.* A surrogate cannot award more than $10 a day, in addition to $70 costs, to an executor to be used to pay his at- torney on a contested probate proceeding ; hut the executor may pay the attorney more on his own respqnsibility, credit himself with such payment on his accounting and let parties interested object if they like.* An allowance for the expenses of obtaining the testi- *B Peck V. Peck, 23 Hun, 312 *» Matter of Corbin, 101 A. D. 25 (1880); afE'd 99 N. Y. 608. (1905), or 91 Supp. 797; old Code 18 Matter of Rylance, 25 Misc. 283, §' 2557. 55 Supp. 433 (1898), old Code § ^o Matter of Kiolin, 37 Misc. 187 2561. (1902), or 74 Supp. 937. " Matter of Hogarty, 62 A. D. 79 : * Matter of Titus, 86 Misc. 375, 148 (1901), or 70 Supp. 839; old Code Supp. 359 (1914). § 2561. * Matter of Hitchler, 25 Misc. 369 *8 Matter of Byron, 61 Hun, 278, (1898), or 55 Supp. 640; old Code. 16 Supp. 760 (1891), old Code § §§ 2558, 2561. 2558, new Code § 2746. 973 NEW YORK ESTATES AND SUBROGATES §§ 907, 908 mony of witnesses on a will contest piust ]be made on the taxation o,f the costs of the proceeding and not^ hj an application to make J:.he administrator, pay them.^ § 907. Costjs: To Special Guardian,— The amount of C0S;ts being in the surrogate's discretion, he raay' refuse to award any, or may fix the award he mafces; at any sum, he sees fit within the statutorj' limit.* More than the statutory linjiit of costs a surrogate cannot allow a special guardian from the, estate/ If any other sum is allowed the special guardian it must be awarded as compensation, counsel fee, etc., from' the estate of the infant or incompetent for whom the special guardian has, been appointed.* A committee of a lunatic who is an unsuccessful contestant in a probate proceeding cannot be awarded costs; not even if he be "regarded" as a special guardian ; becaujse it is only tq a person appointed by the surrogate that costs can be awarded.'' § 908. Costs on Appeal: Appellate Division. — Costs of an appeal from a decree or order of, the surrogate's court are the same as if they were awarded in the supreme court and may, be awarded by the appellate division to ,the successful party by directing that they abide the event either of a new trial or of the s^bsequent proceed- ings in the surrogate's cpuxt ; and in either case may be made pay- able either out of the estate or fund, or personally by the unsuccess- ful party, as directed by the a,ppellate division, or; by the surrogate's court, if the appellate division .does not make the necessary direc- tion.* The cost^of anapp.eal from a proceeding to, probate a will may be charged on the proponent of the alleged testamentary script when the appellate court thinks the appeal was improperly taken.^ 4- ^^S^^ representative of a decedent wilLbe surcharged with the costs of an appeal taken by him if he took it without the exercise of reasonable judgment, even though in, gpod faith." It is proper for the appellate court to affirm with costs a surrogate's 3 Matter of Mereellin, 25 Misc. 260, §§2558-2561; , jlatter of Budlong 55 Supp. 425 (1898). ' supra. ♦Matter of Budlong, 100 N. T. ''Matter of Davis, 60 Misc. 297, 203, 3 N. E. 334 (1885),— old Code 113 Supp. 287 (1908)— old Code § §§2558^2561. , : ■ i.,i' '' 2^58, similar to new .Code § 2746. 6 Matter of. Robinson, 160 N. Y. .^- ^-.P. §2751., 448, 55 N. E. 11 (1899)— old Code .. .--^^"can Seamen's Friend So- il 2557, 2561, on executor's acootint- "'l^iij- f "PPf^^S N. Y. 619 ^1865). ing; Matter of Budlong, supra; Mat- aonS^ "^ f-,Ff °^^^' ^L^^''^" ^^^ ter of O'Kefeffie, 80 A D 513, 81 £3'tn ^.^In fT" .^O^l -third qiir.r, 11R nQn4\ „ij rikjiS Of;fii ^PP^i^Vto appellate division ; and ap- iTrn^o 8^97afi^' ' P°'^^^25,^l' peal from third decision to court of Matter of Ruppaner, 7 A- D- U on disbelief of testimonv of sole wit- (1896), or 39 Supp. 763-old Code ness. 974 § 909 COSTS decree sustaining a plea of the Statute of Limitations to a petition for payment of legacies and denying the petition on that ground, as this is a final determination of the rights of parties to a special proceeding in the surrogate's court.^^ On reversal by the appellate division of a surrogate's decree "with costs," without specification of disbursements, the surrogate has no power to include disburse- ments in his taxation of costs, and the order on the remittitur in- cludes only costs for making and serving the case, and costs before and after argument (unless the appellate receives further direc- tion).^^ A judgment of the appellate division modifying a sur- rogate's decree "with costs" carries with it disbursements.^^ It seems that only on appeals from orders does an award of costs not carry with it disbursements.^^ When costs on appeal are in the appellate division's discretion, an affirmance by it of a surrogate's order with costs permits only that the costs of the appeal be paid to the respondents jointly, if they be several, and not that each of them be paid such costs.^* An award of costs by the appellate division against the contestants personally on an appeal from a probate decree refers to the costs of the appeal and has no effect on the surrogate's award of costs in his decree in the manner which at the time seemed to him just.^' If parties are dissatisfied as to the method of award of costs by the appellate division or embarrass- ment arises as to their division application should be made to the appellate division to make, its order more specific." No party has an absolute right to have costs awarded to him on appeal set off against costs awarded against him during the progress of the htigation; but such an application is addressed to the equitable discretion of the court which will not be exercised in his favor to the prejudice of an .assignment of his prospective costs on appeal to his attorney in consideration of services to be rendered." § 909. Id.: Court of Appeals. — If the court of appeals make no direction as to costs in any matter before it, each party must pay his own costs: the lower court has no power to fix the costs in the court of appeals.*' A grant of a new trial by the court of appeals " Cole V. Tarpenning, 27 Hun," 111 i» Matter of Kinn, 139 A. D. 766, .(1882). ., 124 Supp. 569 (1910).. 18 Matter of Moran, 60 Misc. 298, " Matter of Havemeyer, 27 A. D. 113 Supp. 276 (1908). 123 (1898), or 50 Supp. 126;— costs 1* Matter of Perry, 131 A. D. 284, to party in proceeding to hold him 115 Suppi 744 (1909), by analogy for contempt not set oS against costs to rule in .other courts, see C. C. P. against him in .proceeding' to revoke § 3256. his letters testamentary. 1* Matter of Einn, 139 A. D. 766, " Whitbeek v. Patterson, 22 Barb. 124 Supp. 569 (1910). 83 (1856). 16 Matter of Seagrist, 8 A. D. 298, 40 Supp. 940 (1896). 975 NEW YORK ESTATES AND SUBROGATES § 909 with costs to abide the event does not give costs in the court of appeals.^* When both parties appeal to the court of appeals neither should have costs.^' On remittitur the lower court cannot exer- cise its discretion as to costs but can only enter exactly the order which the court of appeals directed."" But when the court- of ap- peals "awards to a party costs in the trial court the award carries with it not only the taxable costs and taxable disbursements, but such further sum (if any) by way of an extra allowance as that court, in the exercise of a sound discretion, may award." ^ On af- firmance by the appellate division of a decree settling a trustee's accounts without costs the surrogate cannot thereafter settle a new account exactly like the former except that it allows the trustee the expenses of the appeal." When the appellate division reverses a surrogate's order "with costs" and says nothing of disbursements the surrogate cannot tax disbursements.* A court of appeals re- mittitur reversing the order of the intermediate court and affirm- ing the order of the original court "with costs" does not mean "with costs to each of the appellants." * When "costs to the respond- ents" are allowed on an appeal to the court of appeals it is not meant that costs should be given "to each respondent; one bill only should" be allowed.' A reversal of an appellate division order and an affirmance of a surrogate's decree or order "with costs" give* only the costs of the appeal in the court of appeals.^ If the appel- lant deems himself aggrieved his remedy is to apply to the court of appeals for an amendment of the order.'' The grant of a motion to withdraw an appeal "upon payment of all costs before notice of argument" means costs in the court of appeals.' WheiQ the judg- ment is purely for money and for the plaintifif; and on appeal to the appellate division it reversed "with costs to the appellant to abide the event of" a new trial which it granted; and on appeal to the court of appeals it reversed the ajppellate division and affirmed the surrogate "with costs," the plaintiff is entitled as of course to i*Loder v. Hatfield, 71 N. Y. 92 ^ Matter of Protestant Episcopal (1877). Public School, 86 N. Y. 396 (1881), "" Matter of Protestant Episcopal by analogy to reversal ' of General Public School, 86 N. Y. 396 (1881). Term and affirmanee of Special Term ^Hascall v. King, 165 N. Y. 288, order; Matter of Water Commission- 59 N. E. 132 (1901). ers of Amsterdam, 104 N. Y 677 10 "Matter of McEchron, 55 A. D. N. E. 545 (1887). 147, 67 Supp, 18 (1900). 'Matter of Water Commissioners * Matter of Steencken, 58 A. D. 85 of Amsterdam, supra. (1901), or 68 Supp. 444. 'The Broadway Savings Institu- * Isole V. Weber, 12 A. D. 267 tion v. Pelham, 148 N. Y. 737, 42 N (1896), or 42 Supp. 615. , E. 722 (1896). 5 Van Gelder v. Van Gelder, 84 N. Y. 658 (1881). 976 §§ 910, 911 COSTS his costs of the appeals to the appellate division and the court of appeals.* § 910. Costs on Reference. — A referee can award costs against an executor on a referred claim.'" A stipulation that the costs of the reference are to be taxed as the costs of the case means the ordinary expenses incident to the reference are to be so taxed, viz., disburse- ments, the referee's fees, witness fees, etc.'' On confirmation of a referee's report in favor of an executor, dismissing a claim against the estate, the executor is not entitled to costs as of right, though he may apply to the court's discretion for an allowance of costs, but only to disburseiments.'* § 911. Security for Costs in Actions By and Against Representa- tives.^-In an action by or against an executor or administrator in his representative capacity or by or against the trustee of an express trust or by or against a person expressly authorized by statute to sue or to be sued the court may in its discretion require the plaintiff to give security for costs." Security for costs cannot be required un- til after the action is commenced ; nor can the order for security be made until some costs have accrued which are payable to the party entitled to security in case of his success." But the security can be required of costs theretofore accrued or entered in a judgmient as well as of those that may thereafter accrue.'® An administrator will not be required to give security for costs in an action in which he is plaintiff unless evideiice is presented of his bad faith ; '^ unless in the court's judgment it is proper to do so for the defendant's pro- tection." Security for costs will not be required of a plaintiff who is administrator of an estate without assets in an action prosecuted in good faith and with a reasonable prospect of success in which there is a substantial issue as to the validity of payment by the de- fendant in recognition of a claim of a gift causa mortis.^^ The dis- cretion of the court to require security for costs from a representa- tive plaintiff is Judicial and must have a basis of fact to warrant its exercise so as to require security, as it is designed to prevent improv- ident litigation by representatives and not to defeat legal rights ; 9 Murtha v. Curley, 92 N. Y. 359 '« C. C. P. § 3271; Banes v. Rainey, (1883), General and Special Term 192 N. Y. 286, 85 N. E. 71 (1908). instead of appellate division and sur- '* Banes v. Rainey, 192 N. Y. 286, rogate, C. C. P. § 3228. 85 N. E. 71 (1908). " Fisher v. Biennett, 21 Misc. 178 " Banes v. Rainey, supra. (1897), or 47 Supp; ll4; old Code '« Davidson v. Bose, 57 A. D. 212 § 2718. (1901), or 68 Supp. 316. " Nichols V. Moloughney, 85 A. D ''' Pf eif er v. Supreme Lodge, 54 1 (1903), or 82 Supp. 949. A. D. 200 (1900), or 66 Supp. 604. '* Walker v. Gardener, 8 Misc. 468, '* Podmore v. South Brooklyn Sav- 29 Supp. 669 (1893), C. C. P. § ings Institution, 27 Misc. 120, 57 3229. Supp. 406 (1899). N. Y. E. & S.— 62 977 NEW YORK ESTATES AND SURROGATES § 911 e. g. a mere sworn statement by a defendant's attorney that he thinks a defendant in an action by a poor, widowed administratrix to recover dainiiages I for negligence, causing her ipiestate's death has a good defense, is not, a, sufficient basis for requiring her to^give security for costs.^? Defendant is entitled; to security for costs in an action by a, nonresident, adrpinistrator representing nonresident neixt of kin to recover damage^, suffered by the death . of the intes- tate who left, no property in,. this stat^.^" , The right to, demand se- curity for cos:ts of a plaintiff exist?; whether. they act in,a representa- tive capacity or not, and is not limited by any, consideratioii of, the liability of the plaintiff to pay costs personally on the ground of bad faith or mismanag-ement.^ ■; The .statutory authority for requiring a plaintiff to give security for costs up to and iincluding trial, and for costs on appeal,, dqes not;apply to, an action commenced by a de- cedent when revived in favor of his personal representatives.^ The court or a judge thereof must by or^er require a plaintiff to give an undertaking or make a payment into court additional to an unr dertaking ;.given or payment made into court pursuant to a prior order upon satisfactory proof by affidg,vit: (1) That the sum speci- fied lin the prior undertaking or the amount of the prior payment is insufficient; or (2) That one or more of, the sureties (a) have died; (b,) become iUiSolvent or ,(,c). His .or [their circums,tances have be- come so pr,eparious, that there is reason to apprehend the undertak- ing is insufficient for the defendant's security.' A defendant ac- cepting an undertaking filed, by plaintiff after service upon him of a notice by 'def e^idant to require ,ij; ^d failure to appear in court as required by the notice,tbut before entry of the order, requiring, the undiertaking, does not waive his right to additiorfal- security on the theory that the undertaking was filed voluntarily by the plaintiff.* There is no limit either to the amount of an additional undertaking or to the number of. times application therefor may bd mad©.° A motion for additional security for costs should be granted when a nonresident plaintiff who had given security for costs ^died, his non- resideiit executors were made plaintiffs in the revived action, and the surety on the undertaking for costs then died leaving an estate . " McNeil v.;Merriam, 57 A. D. 164 (1883), holding § 3246 does not limit (1901), or 68 iSupp. 16&, C. C. P. § 3271, C. C. P. /' §§ 1902, 3271. , , , '" Deneky v. McCloud, 21 Misc. 541 ; ^0 McKeaggan V. , Post and MeCord, (1897), or 47 Supp. 714; C. C. P 117 A. D: 12fi (1,907), or 102 Supp. § 3271. 276: 0, C, P. §§ 3271, 3268; Meaney , ' C. C. P. § 32^6.,, V. Post and McCord, 117 A. D. 563 * Banes v. Rainey, 192 N. Y 286 (1907), or 1G2; Supp. 611. ' S^N. E;. 71 (1908). * Tolman y. Syracuse, Bingham- ■ * Banes v. Rainey, supra, ton & N. Y. R. R. Co. 92 N. Y. 358 978- § 912 COSTS which was not good ,for the amount.® A surrogate cannot compel security for costs or indemnity against expense from a legatee se- curing the issuance of a commission, to take the testimony of sub- scribing witnesses to a will or codicil or to establish a testator's domi- cil as a condition precedent to his order on the ground that costs may be awarded against the legatee in case of his defeat or that the delay caused expense of temporary administration; because such delay and costs are properly laid to the executor who should have done this necessary thing and not to a legatee who has a right to rely upon the executor doing his dutyJ § 912. Costs: In Action By Representative. — In an action brought by an executor or administrator in his representative capacity or by the trustee of an express trust or by a person expressly authorized by statute to sue or to be sued, costs must be awarded as in an action by or against a person prosecuting in his own right ; but the costs awarded are exclusively chargeable upon and collectible from the estate, fund or person; represented, unless the court directs them, to be paid by the party personally for mismanagement or bad faith in the prosecution or defense of the action.' Executors, administra- tors and trustees of express trusts are exempt from liability for costs in actions by them in their representative capacity only when nec- essarily brought by theni in such capacity.^ If a person named ex- ecutor or appointed administrator bring suit in his representative capacity when he might have sued in his individual capacity he is personally liable, if he fail, to pay costs ; but if he had to sue in his representative capacity and expressly to name himself as executor or administrator he is not personally liable for costs, because the law does not presume him to be sufficiently cognizant of the nature and foundation of the claim he has tp assert." The test to use in deciding whether or not an executor or administrator had to sue in his represe?itative rather than, in his individual capacity is in an- swering the question: Did the cause of action accrue during the lifetime of the decedent or upon a contract made by him? If the answer is "Yes," the action must be brought in a representative ca- * Tracy v. Dolan, 31 A. D. 24 As to right of executor or adminis- (1898), or 52 Supp. 351; old Code trator to sue, defend, or appeal in § 3276. • , ; ' forma pauperis, see note in 68 L.R.A. f Matter of Scott, 80 A. D. 369, 81 418. Supp. 29 (1903). On allowance of attorney's fees in * C. C. P. § 3246. , suit for administratipn pf decedent's On personal UabiEty of executors estate, see note in 54 L.R.A. 820. or administrators for costs, see note ^ Bedell v. Barnes, 29 Hun, 589 in 14 L.R.A. 696. (1883). On costs in suit by or against exec- " Buckland v. Gallup, 105 N. Y. utor or administrator to enjoin exec- 453, 11 N. E.,843 (1887). utor sales, see note in 30 L.R.A. 122. 979 NEW YORK ESTATES AND SUBROGATES § 912 paeity.^^ When the claim sued for is one alleged to be due the estate which the plaintiff-executor or -administrator represented by virtue of transactions taking place between his decedent and the defendant's decedent while both were alive, the costs must be paid from the estate unless mismanagement or bad faith is shown in the prosecution or defense of the action, when the costs might be charged against the executor or administrator personally.^* Costs are payable from the estate and not by a plaintiff personally when he sues, unsuccessfully but in good faith, as administrator c. t. a. the executor of one alleged to have had in his possession at his death moneys of the estate of the plaintiff's testator which such executor refused to pay." Costs of an action instituted by trustees solely to determine the disposition of one of several trust shares in which the beneficiaries of the other shares were made parties only to determine this question should be borne by the share involved alone.^* "When the liability for costs depeiids upon the conduct of the party to the litigation during its prosecution, the determination of the court in the action upon such a question is final unless it is subsequently re- versed or set aside by a direct proceeding for that purpose." '* An administrator is personally liable without order of court for costs in an action brought by him on a cause accruing after the death of his intestate which he brought in his representative but could have brought in his individual capacity.''* An administrator is personal- ly liable for costs if unsuccessful in an action by him as such in which he claims to recover on a cause of action that arose after his intestate's death though concerning the intestate's property ; be- cause the cause of action is then in the administrator's favor as an individual." Costs are chargeable against an administrator d. b. n. c. t. a. individually and not against the estate when he is un- successful in an action for conversion by the defendant of assets of the testator in the possession of his exechtor at the time of the lat- ter's death, consisting of a teal estate mortgage and promissory note executed after the testator's death by such executor and payable to the latter individually, because the cause of action accrued wholly since the testator's death.*' No motion is necessary to charge in his " Buekland v. Gallup, 105 N. Y. " Lakin v. Sutton, 132 A. D 557 453, 11 N. E. 843 (1887). (1909), or 116 Supp. 820. "Hone V. De Peyster, 106 N. Y. "Mullen v. Guinn, 88 Hun, 128 645, 13 N. E. 778 (1887). (1895), or 34 Supp. 625; C. C. P. § 1' Spencer v. Strait, 40 Hun, 463 3246 applies only when the cause of (1886), C. C. P. § 3246. action arose in the decedent's favor. "Davies v. Davies, 129 A. D. 379 ** Buekland v. Gallup, 40 Hun 61 (1908), or 113 Supp. 872. (1886), aff'd 105 N. Y. 453, 11 N E « Hone V. De Peyster, 106 N. Y. 843, C. C. P. § 1814. 645, 13 N. E. 778 (1887). 980 § !'13 ■ COSTS individual capacity with costs one suing as executor on a cause of action arising after his testator's death if he fails, to get judgment.*' Costs are properly awarded against a plain tiff -executor in his in- dividual capacity when he brought the action, to construe the will, not in good faith to find who was entitled to the fund, but to pre- vent those lawfully entitled from promptly obtaining it; so that he might continue to use the fund in his business.^" When a cause of action accrues to the personal representatives of the decedent, as distinguished from a cause of action which accrued to the decedent, whether the personal representative prosecutes the action in his name individually or in his representative capacity, it is to be deemed, for the purpose of the taxation of costs, an action by him individually, and if the action be brought in his representative ca- pacity, and he be unsuccessful, the costs may be taxed against him individually without an application to the court.^ A cause of ac- tion for conversion which accrues to the personal representative of a decedent, as distinguished from a cause of action which accrued to the decedent, whether he prosecute it in his name individually or in his representative capacity, is to be deemed, for the purpose of taxation of costs,, an action by the personal representative individ- ually ; and if the action be brought in his representative capacity, and he be unsuccessful, costs may be taxed against him individual- ly, without an application to the court.^ Costs will not be charged against executors personally in an action brought by their testator and revived and appealed after his death by the defendants, when some of the executors objected to the appeal, unless the court is satisfied that the executors insisting on the appeal acted in bad faith or that their conduct amounted to mismanagement.* Costs recov- ered by defendants in actions by representatives, e. g., to recover rent alleged to be due on a lease by their decedent to defendants, which were not due during decedent's life, are entitled to priority of paynaent from the estate of the decedent as expenses of admin- istration, whether the estate be insolvent or not.* , : § 913. Costs: In Action against Representative. — ^In an action brought against an executor or administrator in his representative capacity costs must be awarded as in an action against a person de- fending in his own right, but are exclusively chargeable upon and " Roseboom V. Eoseboom, 15 Hun, 11 (1908), or 110 Supp. 179; old 309 (1878), aff'd 81 N. Y. 35.6. Code C. C. P. § 3246. 80 Smith V. EockefeUer, 3 Hun, 295 „„^ ^^^^^^"^ ''■ Strong, 49 A. D. ns7A^ 39, 63 Supp. 257 (1900), C. C. P. § [^±oi-±). 3246 1 Leavitt V. Seholes Co. 210 N. Y. 4 Matter of Friedlander, 160 A. D. 107, 103 N. E. 965 (1913). 475 (1914)^ or 145 Supp. 679; C. C. « Dunphy v. Callahan, 126 A. D. P. § 3246. 981 HEW YORK ESTATES AND SURROGATES § 913 collectible from the estate unless the court directs them to be paid by the party personally for mismanagement or bad faith in the de- fense of the action ; except that When the judgment rendered against the executor or administrator as such is for a sum of money onlj'-, costs must not be awarded against him personally unless it appears that the plaintiff's demand was presented within the time limited by a notice published ' as prescribed by law requiring creditors to present their claims and that the payment thereof was unreasonablj'' resisted or neglected,' when the court may award costs and disburse- ments, or disbursements without costs, against the executor or ad- ministrator to be collected either out of his individual property or out of the property of the decedent, as the court directs, having ref- erence to the facts which appear upon the trial.^ In order that costs in an action against an executor or administrator may be awarded to be collected either Out of his individual property or out of the property of the decedent it is necessary: (1) That the plaintiff's de- mand shall hSve beeii presented to the defendant within the time limited by a published notice to ci'editors to present their claims and that payment of such demand shall have been unreasoiiably re- sisted' or neglected; (2) That the facts have been certified' by the judge or referee before whom 'the trial took place if the action is brought either in the supreme or any county court; and (3) That the judgment shall have been (a) against the executor or adminis- trator (b) for a sum of inoney only (c) in an action brought against him in his representative capacity.* The general right of a successful plaintiff to costs ' is qualified ' sO that if his judgment be against an executor or administrator for a sum of money only- no costs' can be awarded him if the claim against the estate on which the judgment was rendered was not presented to the execu- tor or administrator within the time limited by a' published notice to creditors to ptesent their claims or if the claiiii Was not unreason- ably resisted or neglected.^ In order to get costs on a money judg- ment against a representative on a claim in a case in which notice to present clainis has-been published the plaintiff must have pre- sented his demand within the time limited by the notice and the de- fendant must have uilreaso'nably resisted or neglected payment.^* The class Of cases in which costs may not be recovered of an execu- SC. C. P. §§ 3246; 1825; 1836; (1894) ; Benjamin v. Ver Nooy, 168 Lamphere v. Lamphere, 54 A. D. 17 N. Y. 578, 61 N. E. 971 (1901) (1900), or 66 Supp. 270;— rejec- ' C. C. P. § 3228. tion prior to new Code; Siipplee v. ' C. C. P. §§ 1835; 1836. Sayre, 51 Hun, 30 (1889), or 3 Supp. 'Hopkins v. Lett, 111 N Y 577 627: 19 N. E. 273 (1888). ' ' 8C. G. P. §§ 1835; 1836; Matson "Horton v. Brown,' 29 Hun 654 V. Abbey, 141 N. Y. 179, 36 N. E. 11 (1883), afPd lOS iST. Y. 698: Niles v 982 § 913 COSTS tor or adhiinistrator because of the rendition of a judgment against him for a sum of mdhey only is composed of actionfe in which the complaint demands a judgment for money, and not, e. g., of actions to foreclose a mortgage securing a bond on which the decedent was liable.^^ The executor or administrator is entitled to exemption from costs iri an action against him as such to recover a sum of money only on account of a demand duly presenteid to, and unrea- sonably resisted or neglected by him until he has had one lawful trial.^^ When, therefore, the court, of appeals reverses "with costs to abide the event," the second trial is the first lawful judgment against the executor or administrator oh which costs may be awarded against him.^' The costs which the statute allpw,^ to be awarded against the iexecutor or administrator include not only the costs of the trial but of an appeal by him or a motion by him for a new trial as well.^* An award of costs against an executor or ad- ministrator is improper when the claim on which judgment against him was had was very substantially reduced on the hearing; and especially if the amount awarded was in part not warranted by the evidence ; as in such case the claim cannot be said to have been un- reasonably resisted ; ** or when the claim is for services for which no demand was made or heard of till decedent's death and the amount claimed was materially reduced on the hearing,^^ or the claim for services when and as presented was doubtful;" Costs should not be 'awarded against ah executor or administrator al- though unsuccessful when the defense interposed by him was rea- sonable and proper and in good faith ; aiid there was abundant rea- son in the complicated nature of the accounts, the great amount of business transactions and the supposed and actual existence of gra,v'e counterclaims to justify the defense actually made.^*. An executor, in good faith resisting an action by ^ the person erecting a stone for his testator's tomb on the ground: that it was not according to contract is entitled to be allowed by the surrogate statutorj'^ costs. witness fees' and reasonable counsel' ffees.^' Ah administrator will ' ■ -.1 ' • Crocker, 88 Hun, 312 (1895), or 34 ^^ Anderson v. McCann, 14 A. D. Supp. 761; Ehrenreich v. Lichten- 160 (1897), or 43 Supp. 689; claim berg, 29 Misc. 305 (1899), or 60 against executor reduced on hearing Supp. 513, under Co^e § 1836, before from $615 to $321, and evidence held 1915 amend'd, but good as cited. not to warrant award of $321 even. 11 Richards v. Stillman, 57 A. D. i" Ryan v. McElroy, 15 A. D. 216 182 (1901), or 68 Supp. 188; aff'd (1897), or 44 Supp. 196. 172 N. Y. 632, 65 N. E. 1121, C. C. " Matter of Raab, 47 A. D. 33, 62 P. § 1835. Supp. 332 (1900). 12 Benjamin v. Ver Nooy, 168 N. i^ j^jj^gon ^_ Myers, 103 N. Y. Y. 578, 61 N. E. 971 (1901). 666, 9 N. E. 55 (1886). 18 Benjamin v. Ver Nooy, supra. i^ Matter of Grout, 15 Hun, 361 1* Benjamin v. Ver Nooy, supra. (1878). 983 NEW YORK ESTATES .AND SURROGATES § 913 not be charged for costs in resisting allowance of a claim in reason- able manner and in good faith, e. g., when the intestate's papers in his own writing legitimately led the administrator to believe the fund in question was properly disbursed by the intestate in his life- time, and on two references the estate was held not liable for the fund, and only held on the third -reference.^" There is no reason why costs should be given out of the estate to plaintiffs seeking by action to compel an executor and testamentary trustee to account, who fail to show that they are beneficiaries under ijhe will.^ When an executor or administrator ma. si 68 1016 FORMS IV. Administrators, K. Burial Expenses — continued. Form No. 3. Answer to Petition 69 4. Order lor Payment 70 5. Order for Disputed Claim to Be Heard on Settle- ment of Account; or Dismissing Proceeding 71 6. Furtlier Petition to Compel Payment 72 L. Exempt Property: 1. Petition to Have Set Apart 73 2. Citation on "1" 74 3. Decree to Set Apart 75 tL Discovery of Withheld Property: 1. Petition for Discovery 76 2. Order for Discovery 77 3. Answer to "1" 78 4. Decree 79 ' N. Custody of Assets: 1. Petition for Direction as to Custody 80 2. Order to Show Cause 81 3. Order Directing as to Custody .....; 82 0. Appraisal and Inventory.: 1. Application for Appointment of Appraisers 83 2. " " " " Other Appraisers .. 84 3. Order Appointing Appraisers 85 4. " " Other Appraisers 86 5. Appraisers' Oath 87 6. Notice of Appraisement 88 7. Inventory 8i> 8. Oath to Inventory 90 9. Petition to Compel Inventory 91 10. Order Compelling " 92 T. Sale of Personalty: 1. Petition for Advice as to Sale 93 2. Order for Notice of "1" 94 3. Order of Advice and Direction 95 4. Notice of Application by Temporary Administrator for Authorization to Sell 96 6. Petition by Temporary Administrator as in "4" 97 6. Order Shortening Notice of "4" • 98 7. Order under "4" 99 Q. Debts of and Claims against Decedent: 1. Petition for Designation of Newspaper in which to Advertise for Claims 100 2. Order under "1" 101 3. Notice to Creditors to Present Claims 102 4. Form of Presenting Claim 103 5. Application for Authorization to Compromise Claim or Debt; or to Sell State Debt, etc 104 6. Order on "5" 105 1017 F0IIMS . . Form No. IV. Administrators, Q. Debts of and Claim , against Decedent — continued. 7. Petition to Compel Payment of Debt, Legacy or Distrib- litiye Share , .■ » 106 8. Citatipji on ".V 107 9. Order, on "7" 108 E. Disposition of Decedent's Realty: 1. Petition for Confirmation of, or for Deed Pursuant to Decedent's Contract to Sell 109 2. Citation on "1" 110 3. Decree on "I'f .,...,...,.,,, ..,,i..., Ill 4. Petition to Enter Into Possession of, Manage, Control and Receive Rents of Realty 112 5. Citation on "4" 113 6. Order on "4" ,,...., 114 7. Order for Mortgage, Lease or Sale of Realtyy^ 115 8. Bond under "7" ....' 116 9. Report " "7" , ,. 117 10. Order on; "9" , ... ^,^, ,,. ,., 118 11. Supplemental Account after Execution of Order .... 119 S. Account: ; , 1. Petition for Settlement of Limited Administrator's or Executor's 4-ecoujit , , 120 2. Account under . "1" 121 3. Decree under "1" 122 4. Voluntary Petition for Settlement of Acpount in Gen- eral 123 5. Petition to Compel Settlement of Account in General 124 6. Account . in General ; ■ ■ ^ ■ 125 7. AfSdavit to Account in General 126 8. Citation on Voluntary Accounting 127 9. " " Compulsory, " ; 128 10. Waiver of Citation and Consent to iSettlement 129 11. Objections to Account .'. '. 130 12. Decree Settling Account in General . . . .' 131 13. Bill of Costs on Accouiiting 132 V. Wills: A. Gerieiral Form of Will ..:.... ; 133 B. " " " Codicil ; 134 C. Attestation Clause to Will or Codicil I35 D. Production and Discovery of Will: , , v* 1. Petition for Order to Open Safe ' . , 136 2. Order to. Open Safe I37 3. Petition for. Exam, of One Retaining, etc., a Will, or to Compel its Production 138 4. Order on "3" .' .- : 139 E. Probate: 1. Petition for Probate: . a. Generally , 140 b. In Xew York; County 141 1018 FORMS V. Willa, E, FTob&te—contmued. Form No. 2. Affidavit Under Transfer Tax Law 142 3. Designation of Surrogate's Clerk Upon Whom Process May Be Served 143 4. Citation 144 5. Waiver of Citation and Consent to Probate 145 6. Order Designating Person to Receive Citation for In- fant 146 7. Consent of Special Guardian to Act 147 8. Affidavit and Report of Special Guardian 148 9. Notice of Offer of Will for Probate 140 10. Affidavit of Service of said Notice 150 11. Objections to Probate 151 a, b and c 12. Answer to Petition for Probate 152 13. Notice of Objection Filed to Probate, Combined with Notice of Offer for Probate 153 14. Petition for Order Directing Manner and Time of Serv- ice of Said Notice 154 15. Order Directing Service of Notice of Objection 155 16. Order for Jury Trial of Contested Probate 155A 17. Notice of Trial of Contested Probate: a. Proponent's Notice 15oB b. Contestant's Notice 155C 18. Note of Issue in Contested Probate 155D 19. Findings of Jury in Contested Probate 155E 20. Notice of Motion for Judgment Probating Will .... 155F 21. Decision on Findings of Jury in Contested Probate . . 155G 22. Depositions as to Will: a. Of Subscribing Witness 156 b. As to Genuineness of Subscribing Witness' Signa- ture 157 23. Decree for Probate and Issue of Letters 158 F. Validity, Construction and Effect of Wills: 1. Petition for Determination as to 150 2. Citation on "1" 160 3. Decree on "1" 161 G. Foreign Wills: 1. Filing Exemplified Copy in this State; a. Petition ; 162 VI. Executors: A. Petition for Letters, See 140 et seq. B. " " Ancillary Letters 163 C. Citation, See 144 D. Objections, See 151 E. Decree Granting Letters, See 158 F. Decree Granting Ancillary Letters 164 G. Letters Testamentary 16.5 H. Oath 16(i , I. Bond 167 1019 rOEMS VI. Executors — continued. Form No. J. Justification of Sureties, See 57 K. Renunciation 1^8 L. New Bond, See 58 et seq. M. Revocation of Letters, See i 61 et seq. N. Payment of Burial Expenses, See 67 et seq. 0. Setting Apart Exempt Property, See 73 et seq. P. Discovery of Withheld Property, See 76 et seq. Q. Custody of Assets, See 80 et seq. R. Appraisal and Inventory, See 83 et seq. S. Sale of Personal Property, See 93 et seq. T. Debts of and Claims Against Deceased, See 100 et seq. V. Disposition of Decedent's Realty, See 109 et seq. V. Accounting, See 120 et seq. W. Compulsory Payment of Legacy: 1. In General, See 106-108 2. For Support or Education: a. Petition 169 b. Citation 170 c. Decree 171 VII. Testamentary Trustees: A. Objections to Qualification, See 44 B. Oath, See 166 C. Bond, See 167 D. Justification of Sureties, See 56 E. New Bond, See 58 et seq. F. Removal of Trustee, See 61 et seq. G. Accounting, See ;; - 120 et seq. H. Compulsory Payment of Legacy, See 106-108 L « " " " for Support, See 169-171 VIII. Guardians: A. Appointment of General Guardian: 1. Petition Wten Infant under 14 172 2. " " " over 14..... 173 3. Citation 174 4. Waiver of Citation and Consent to Appointment .... 175 5. Designation of Person on Whom Process May Be Served 176 6. Renimciation 177 7. Oath 178 8. Bond .179 9. Justification of Surety on Bond 180 10. Decree Appointing 181 11. Letters 182 12. " of Testamentary Guardianship 183 B. Appointment of Ancillary Guardian: 1. Petition Ig4 2. Decree 185 3. Letters 186 0. Appointment of Limited Guardian, See .38, 45, 52 1020 FORMS Vlll. Guardians — oontimtei. Form No. D. Revocation of Appointment, See 61 et seq. E. Disposition of Realty in Supreme Court: 1. Guardian's Petition for Sale of Infants' Realty and Appointment of Special Guardian 187 2. Petition of Infant over 14 for Same 188 3. Affidavit by One to Be Appointed Special Guardian . . 189 4. Consent to Act as Special Guardian 190 5. Order Appointing Special Guardian 191 6. Petition of Special Guardian for Appointment of Referee 192 7. Order Appointing Referee 193 8. Referee's Report 194 9. Referee's Oath 195 10. Testimony Before Referee 196 11. Petition for Order for Special Guardian to Enter Into Contract of Sale 197 12. Order Confirming Referee's Report and Empowering Special Guardian to Enter Into Contract of Sale . . 198 13. Petition of Special Guardian Showing Prospective Contractee to Buy 199 14. Petition of Contractee of Willingness to Buy 200 15. Order Authorizing Specific Contract of Sale 201 16. Report by Special Guardian of Making of Contract of Sale 202 17. Contract of Sale , 203 18. Order Confirming Report and Contract, and Directing Deed 204 19. Deed 205 F. Accounting: 1. Annual: a. Affidavit of Guardian for 206 b. Account 207 c. Affidavit to Account 208 2. Voluntary Settlement, See 123 3. Compulsory " See 124 4. Judicial Settlement: a. Petition 209 b. Account 210 c. Affidavit to Account 211 d. Decree Settling Account , 21,2 IX. Probate of Heirship: A. Petition 213 B. Citation 214 C. Decree 215 X. Answer to Petition — General Form 216 XI. Subpoena 217 XII. Service of Citation: A. Affidavit of Persdnal Service 218 1021 No. 1 FORMS Xll. Service of Citation — cmiUnued. Form No. B. Substituted Service on Resident Whose Eeaidence Is Known but Cannot Be Found: 1. Affidavit for Order. 219 2. Order i 220 3. Affidavit of Service 221 C. By Publication: 1. On Residient Creditors Exceeding 50 in Number: a. Affidavit for Order 222 b: Order 223 c. Affidavit of Service 224 2. By Publication or Outside State in General: , a. Petition for Order 225 b. Order : 226 i;. Order in N. Y. County 227 D. Order Designating Person to Receive Citation for Infant .... 228 XIII. Notice of Appearance 229 XIV. Reference: A. Order to Take and Report Evidence 230 B. Order^to Examine Account, etc .'. 231 C. Referee's Summons L .........: 232 T>. Referefe's Report . . . ; . : 233 XV. Commission: ' > ' A. Notice, of Islotion for . . i'. J; . . ; . ..........>....: 234 B. Affidavit on Which to Get .■.'. 235 C. Order for . : 236 D. ftiterrogatbries (and Cross-Interrogatories) 237 E. Notice of Settlement of Interrogatories 238 XV. Decision of Surrogate in Non-Jury Trial .....; 239 XVI. Exceptions to Decision i . , '. 240 XVII. Decree after Non-Jury Trial 241 XVIII. Notice of Appeal from Decree and Order 242 XIX. Exemplification of Papers in Surrogate's Court 243 XX. Demand for Jury Trial in General . J 244 FORM NO. 1. Caption for Petition, Affidavit, Notice of Motion, Surrogates Order, Bte. Surrogate's (s*) Court, 1 County, f In the Matter of 1022 FORMS Nos. 2-5 FORM NO. 2. Caption of Surrogate CoM-t's Order or t>ecree. At a [special or trial] Term of the Surrogate's (s') Co\irt, held in and for the County of , at the County Court House [Hall of Eeeords, Borough of Manhattan, New York City], on the day of , 101 . Present: Hon , > Surrogate, In the Matter of FORM NO. 3. Beginning of Affida/Bit. State of .■ , ) County of ;..:..; , being duly sworn, deposes and says: {or, if two or more affiants) and , being sev- erally and duly sworn, each for himself [or, herself] says: FORM NO. 4. Ending or Jurat of Affidavit. Sworn to before me this day of , 191. . {Signature and official character of official taking oath.) FORM-NO. 5. Abk7iot6ledgment ly Individual. > State of ) County of On this ; : day of , in the year 191 > before me personally came .1'. . . '. ! . . {names of persons a^h'noieleiSging) , to me known and known to me to be the person (s) [or, one of the persons] described in and who executed the foregoing instrument, and acknowledged to me that he (she, or severally acknowledged that they) executed the same. {Signature OMd official character of official Jbefore ichom aehnowledgment is made.) 1023 Nos. 6, 7 rORMS FOEM NO. 6. Achncywledgment iy Corporation, Eta, State of 1 County of j ^*- On the day of in the year ,. before me personally came to me known, who, being by me duly sworn, did depose and say: That he resides in > that he is the ( e. g., president or other officer) of {name of corporation or institution ) , the corporation described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instrument iS such corporate seal; that it was so affixed by order of the board of directors of said corporation; and that he signed his name thereto by like order. {Bignature a/nd office of officer before whom aclcnowledgment is made.) If the corporation or institution has no seal, that fact must be stated in place of the statements required respecting the seal. FORM NO. 7. Verification by Individual. State of ^ County of ^^ , being duly sworn, aaya: That • he has read the foregoing ie. g., petition, consent, instrument, etc.] and knows the contents thereof; and that the same is true to the knowledge of deponertt, ^except as to the matters therein stated to be alleged upon information and belief, and that as to these matters deponent believes it to be true. ' {Signature of person signing petition, consent, instrument, etc.) Sworn to before me this day of , 191 . . . {Signature and office of official before whom oath is taken.) 1024 FORMS Nos. 8-10 FORM NO. 8. Terifieation hy Corporation, Etc. (name of officer of corporation) , being duly sworn, says: That he is the (e. g., president, treasurer, etc.) of {name of corporation), the corporation which executed the foregoing instrument; that — {continuing from * in Form No. 7). FORM NO. 9. Three First Pa/ragraphs to Petition. To the Surrogate's ( s' ) Court of the County of The petition of , respectfully shows: I. That the petitioner (s) reside (s) at FORM NO. ao. Petition for Adoption. A^ in Form No. 1, continuing: the Adoption of by Three first paragraphs as in Form No. 9, continuing: II. That the petitioner (s) is (are) desirous of adopting {name of person to be adopted) as his {her, or their) own lawful child and that the moral and temporal interests of said {person to be adopted) will be promoted by said adoption for the following reasons: {State reasons for adoption) . III. That {names and addresses of all persons whose consent is necessary to the adoption, specifying who each per- son is) consent to such adoption, as appears from their written consents, here- to annexed. IV. That, upon information and belief said {person to be adopted) is years of age and resides at with V. That hereto annexed is an instrument executed by the petitioner (s) and each person whose consent is necessary to the adoption, pursuant to law, for said adoption. VI. That the new name by which said {person to be . adopted) shall be known is VII. That there are no other persons than those mentioned interested in this application or proceeding. N. Y. E. & S.— 65. 1025 Nos, 11, 12 FORMS Wherefore, petitioner (s) pray for an order allowing and confirming said adoption; directing that said {person to be adopted) shall henceforth be regarded and treated in all respects as the child of petitioner (s) ; and directing that the name of said {person to he adopted) be changed to {new name. ) Add verifioation as in Form 7. FORM NO. 11. Affidavit as to Age of Person Adopted. As in Form No. .1, with title of proceeding, and iegiirming of affidavit as t» Form No. S, continuing: I. I am the (e. g., father, aunt, etc.) of {person to he adopted), above-named. II. The said {person to he adopted) is, [upon informa- tion and belief] , years of age, and was born on the day of ,. The source of my information and the grounds of my belief as to the age of said {person to he adopted) are ( state ) . {Signature of affiant). Jurat as in Form No. i. FORM NO. 12. Instrument or Agreement of Adoption. Agreement made , 191 . . , by and between {names of foster parents or name of foster parent) , of ,, first parties {y) ; and {name of each person whose con- sent is necessary to the adoption) , of second. parties {y) . Whereas, the first parties {y) desire (s) to adopt, and the second parties (y) are (is) desirous and consent that the first parties {y) do adopt, a person of male {female) sex, pursuant to the requirements of the Domestic Relations- Law of New York State, and, Whereas, the second parties are {e. g., parents, or what- ever their standing is as persons who must consent to the adoption) of the said person to be adopted by the first parties (j/). Now, therefore, in consideration of the premises, by this instrument, it is Mutually Agreed: I. That the first parties {y) agree («) to adopt and treat as their {his or her) own lawful child , the said person of male- {female) sex. II. That the a,ge of said person is 1026 FORMS Nos. 13, 14 III. That the new name by which the said person shall be known is In witness whereof the parties hereto have hereunto set their hands and seals. the day and year first above written. In the presence of (L. S.) {Foster parents or parent) . . • (L. S.) {Each person whose consent is necessary to the adoption). Add aoknotoledgments as in Form No. 5. FORM NO. 13. Consent to Adoption. The undersigned, {names and residences of parents or parent and all persons whose consent is necessary to the adoption) do hereby consent, by this written and acknowledged instrument, to the adop- tion of {name of person to 6e adopted) ,. a person of male {female) sex and years of age, by (names of foster parents or name of foster parent) ,. residing at , pursuant to the requirements of the- statute in such case made and provided. Add acknowledgment as in Form Nd. 5. FORM NO. 14. Consent By Person or Institution Residing in County Other Thorn, County in "Which Adoption To Take Place. The undersigned, {name of pa/rent^ person or institution, having the legal custody of person to he adopted), of {residence) , does hereby, by this written, acknowledged instrument, cons{ent to the adoption of {name of person to be a(U>pte.d), a, person of male {female) sex and years, by ..... , {name of foster parents or parent) in the County of , State of New York,. United States of America, pursuant to the requirements of the Domestic Relations Law of said State; and does execute this consent as equivalent to the undersigned's appearance and execution of any instrument required by said Law, because- 1027 No. 15 FORMS the undersigned resides in a county (state, or country) other than that in which said adoption is to take place. (Signature of parent or person; or of mstitution by its officers; having legal custody of person to be adopted.) Add acknowledgment as in Form No. 5 or 6, and Certificate by proper official (see § 26, text.) FORM NO. 15. Order For Adoption. As in Form No. 1, adding title of Form No. 10, and continuing: On reading and filing the petition of , verified the day of , 191 ... ; the afiidavit of , verified the day of , 191 . . . ; the consents of , duly acknowledged before the day of , 191 . . . ; and the agreement of adoption between and , likewise duly acknowledged the . : day of , 191...; and , and , and (names of foster parent (s) , person to be adopted, and all persons whose consent is necessary to the adoption) having appeared before me and been examined by me, and having presented to me an instru- ment or instruments containing (a) substantially the consents required by law, (b) an agreement on the part of said , as foster parent ( s) , to adopt and treat said (person to be adopted) as his (her, or their) own lawful child, (c) a statement of the age of said (person to be adopted) as nearly as the same can be ascertained, and (d) a statement of the new name by which said (person to be adopted) shall be known; and said instrument having been duly signed by said foster parent (s) and each person whose consent is necessary to the adoption, and severally, duly acknowledged by said persons before me, lor, the written consent of {parent or person or institution having the Jegal custody of person to be adopted and residing out of county), the parent (or person or institution) having the legal custody of said (person to he adopted), havihg been presented to me, duly acknowledged and certified as conveyances are required to be certifieid to entitle them to record in a county in this State ; and being satisfied that said (non- resident parent, person or institution having custody) resides in a county ( state, or country ) other than this one] ; and it appearing to my satisfaction that the moral and temporal interests of the said • (person to be adopted) will be promoted thereby, and that there is no reasonable objection to the change of name proposed, it is, for the reasons that (state reasons). Ordered and Directed, that the adoption of said , . 1028 FORMS No. 16 by said be and the same hereby is allowed and confirmed ; and that said {person to he adopted) shall henceforth be regarded and treated in all respects as the child of said (foster parent(s) ) , and that the name of said {person to be adopted) be changed to ■ • {name designated in instrument or agreement of adoption). FORM NO. 16. Agreement Abrogating Adoption. Agreement made , 191 . . . , by and between , first party, , second party, and third parties. Whereas the first party is the foster parent of the second party; and the third parties are all the persons whose consent would have been necessary to an original adoption of the second party; and the second party is an infant over the age of 12 years; and Whereas it is desired to abrogate the adoption of the second party by the first party effectuated by order of the Surrogate's Court of the County of , entered ; Now, therefore, in consideration of the premises, it is Mutually agreed: I. That the first and second parties relinquish the relation of parent and child acqviired by such adoption. II. Tliat , (one of the) parties of the third part, parent (s), {or guardian) of the second party [or, the institution having the custody of the second party] agree to reassume this (their, or its) relation of parent (s) and child [or guardian and ward, or otherwise]. In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written. (L-S.) (L.S.) (I'.S.) Add acknowledgments as in Forms 5 and 6. {Consent of Surrogate to be endorsed on Agreement.) 1029 mos. 17, 18 FORMS FORM NO, 17. JJLpplication iy One Other thwn, poster Parent for Airogation of Adoption from Institiution. As in Form No. 1, continuing: ' the Application of for the Abrogation of the Adoption of by Three first paragraphs as in Form No. 9, continuing: II. That the petitioner is #a minor, . ..;'.'. years of age, adopted by who resides at from , an orphan asylum {or charitable institution) ; [or #a cor- poration which was a party to the agreement by which , who resides with at , was adopted from , an orphan asylum ( or charitable institution) by said ] ; lor #a person making this application on behalf of , .;..., a minor, adopted by from ...;.■ , an orphan asylum {or, charitable institution)]. III. That , the said foster parent of said , now resides in the County of (in which the application must be made ) . IV. That the said minor was adopted by said in a proceeding, a copy of the order of adoption in which is hereto annexed, made part hereof and marked Exhibit A. V. That the petitioner allies for the abrogation of said adoption on the ground of cruelty {or, misusage; or, refusal of necessary provisions or cloth- ing; or, inability to support, maintain or educate such child; or violation of duty on the part of such foster parent toward such child) by reason of the following facts : {state facts, or annex affidavits or papers shoioing facts on which grounds for abrogation are based) . The petitioner therefore prays that said adoption be abrogated and that a citation issue requiring such foster parent to show cause why this application should not be granted. Add verification as in Form No. 7 or 8. FORM NO. 18. Citation on Application By One Other Than Foster Pa/rent for Abrogation of Adoption from Institution. Adapt from Form No. JfS. 1030 FORMS Nos. 19, 20 FORM NO. 19. Order Abrogating Adoption from Institution on Application of ^»e Other Than Foster Pa/rent. As in Form No. 1, with title as in Form No. 11, continuing: On reading and filing tiie petition of , herein, -verified , 191 . . . , and the affidavit of , verified , 191..., showing due service of the citation issued on said petition upon , foster parents of ; Now on the proofs made before the Surrogate and on tlie hearing on such citation, the Surrogate having determined that the ground (s) ■of for the application made by said petition exi9t(s), that the interests of said ( the child) will be pro- moted by granting said application, and that said foster parent has justly forfeited his right to the custody and services of such minor, it is Ordered that the adoption of by , ■eflfectuated by order of the Court, entered , 191. ... be and it hereby is abrogated; and it is further Ordered, that the status of said ( the child) shall ibe the same as if no proceedings had been had for his (or her) adoption. FORM NO. 20. Petition hy Foster Parent for Abrogation of Adoption from Institution. As in Form No. 1, continuing: -the Application of , Foster Parent, for Abrogation of his Adoption •of from , ^an Orphan Asylmn (or Charitable Institution). Three first paragraphs as in Form No. 9, continuing: n. That the petitioner is foster parent of , a minor, whom the petitioner adopted in pursuance of chapter 19, Laws of 1909 ( Domestic Relations Law ) , or an act repealed thereby, from , an orphan asylum (or, charitable institution). III. That the petitioner resides, as aforesaid, in the Coimty of (in which application r.-.ust be made). IV. That the petitioner adopted said in a proceed- ing in which an agreement and order of adoption by petitioner of said were made, copies of which are annexed hereto, marked respectively "A" and "B," and made part hereof (or the substance of the agreement of adoption may be given). V. That the petitioner applies for the abrogation of said adoption upon the ground # of the wilful desertion of such child from the petitioner, as foster 1031 Nos. 21, 22 FORMS parent, (lor, #of a misdemeanor, or ill-behavior of such child), by reason of the following facts : (state facts of desertion, misdemeanor or ill-behavior). The petitioner therefore prays an order abrogating said adoption and the issuance of a citation directed to such child and to the corporation which was a party to such adoption {or, if such corporation does not exist, to the superintendent of the poor of this county) requiring them to show cause why this petition should not be granted. Add verification as vn Form No. 7. FORM NO. 21. Order Appointing Special Guardian on Petition by Foster Parent to Abrogate Adoption from Institution. Adopt from Form No. 191. FORM NO. 22. Order Abrogating Adoption from Institution on Foster Parent's Application. As in Form No. 1, with title as in Form No. 20 continuing: On reading and filing the petition herein of ,..,,.. , verified ., 191. . ., and the affidavit of herein, verified , 191 . . . , showing due service of the citation issued on said petition upon , [the child) and , {the corporation) , all parties entitled to citation herein ; and having been by order entered herein , 191. . ., appointed special guardian to protect the interests of said ( the child), by reason of the failure of said {the corporation) to appear on the return of said citation, and said Special Guardian having reported • and the Surrogate having determined on the proofs made before him, on the hearing of such citation, that said {child) has vio- lated his duty toward , his {or, her) foster parent, and that due regard to the interests of both requij;e that such adoption be abrogated, it is Ordered, that the adoption of said by said , effectuated by order entered ., 19X ... in the Court, be and it hereby is abrogated; and it is further Ordered, that disposition of said (jfte child) be and hereby is made as follows : 1032 FORMS No. 23 FOEM NO. 23. Petition for Designation of Transfer Too: Appraiser, As in Form No. 1, continuing: an Application to Adjust the Transfer Tax Upon the "l Estate of , I Deceased. I Three first paragraphs as in Form No. 9, continuing : II. That your petitioner is the (e. g., executor, administrator, etc. ) of , deceased, and as such is a, person interested in the estate of the said deceased. III. That the said decedent departed this life on the day of , at ; that the said deceased was a resident of IV. That letters (testamentary or of administration) on the estate of said deceased were, on the day of , issued to your petitioner by the Surrogate's (s') Court of the County of , . and that h . . . . post-ofSce address is V. That, as your petitioner is informed and believes, the transfer of the property of said decedent, or some portion thereof or. some interest therein, is or may be subject to the payment of the tax imposed by the law in rela- tion to taxable transfers of property. VI. That all persons who are interested in said estate and who are entitled to notice of all proceedings herein, their degree of relationship to said de- cedent, and their post-oifice addresses, are as follows: The Compteollee op the State op New Yobk. Name. P. O. Address. Relationship. {Add names of all persons known to have a claim or interest in the decedent's property. ) That all of the above-named are of full age and sound mind, except: That no previous application has been made for an order granting the relief prayed for in this petition. That there are no persons, other than those herein mentioned, interested in this proceeding. 1033 Nos. 24, 25 FORMS Wherefore, your petitioner prays ' that you will designate an appraisei', as- provided by law, to fix, under Article X, Chapter 60 of the Consolidated Laws- of 1909, and the Acts amendatory thereof and supplemental thereto, the fair market value of the property which was of the above-named decedent, to de- clare the value of such interest or interests therein as may be subject to the payment of the transfer tax, to declare exempt from such tax such interest or interests as he may find to be exempt, and to do such other thing or things in the premises as he may be authorized to do, by virtue of his ofSee linder the said provision of law [or in counties other than New York * for the appoint- ment of an appraiser as provided by law]. Dated, 191.. Petitioner. Add verification as in Form No. 7 or 8. FORM NO. 24. Order Appointing Transfer Tax Appraiser, Caption as m Form No. 2, with title as in Form No. 28, continmng: On reading and filing the petition of ,, {executor or administrdtor, etc.) of said decedent, I do hereby, pursuant to the' requirement of Section 230 of Article X, of the Tax Law, direct Esq., one of the appraisers appointed by the State Comptroller xmder said statute, to fix under Article X, Chapter 60 of the Con- solidated Laws of 1909, and the Acts amendatory thereof and supplemental thereto, the fair market value of the property which was of the above-named decedent, to declare the value of such interest or interests therein as may be subject to the payment of the transfer tax, to declare exempt from such tax such interest or interests as he may find to be exempt, and to do such other thing or things in the premises as he may be authorized to do, by virtue of hi* oflSce under the said provision of law. FORM NO. 25. Affidavit of Assets for Transfer Tax Appraiser. Caption as in Form No. 1, with title as in Form No. 28, oontinuimg: State of New York, ( County of f • • administrator executor of the- estate of the above-named decedent being duly sworn in this proceeding for the 1034 rORMS No. 25 determination of the tax, if any, to be paid upon the assets of the said estate under the Law in Belation to Taxable Transfers of Property, deposes and says: I. — That the said decedent died a resident of the County of New York, State of New York, on the day of 191 . . , Intestate, leaving a Last Will amd Testament, a copy of which is herewith sub- mitted, which was duly admitted to probate ly the Surrogate's (s') Court of County, on the day of 191 .. , and that Letters of Administration testamentary were duly issued by the said Surrogate's (s') Court of County on the day of 191 . . , to this depo- nent, whose post ofSce address is '. vrhose post office address is and whose post office address is II. — Tbat as such administrator executor deponent is personally familiar with the affairs of said estate, the property constituting the assets therpof and their fair market value, and with the debts, expenses and charges properly and legally allowable as deductions therefrom. That the decedent at the time of h.... death had no safe deposit box except III. — Schedule Al sets forth each and every parcel of real estate in the State of New York of which decedent died seized and possessed, or in which he had any right, title or interest, and the liber and page of the record of the convey- ance thereof; together with a statement of the mortgages and other encum- brances thereon at the date of death, giving the amount of such encumbrances and date, place, liber and page of record thereof. It filso sets forth in the first marginal column the assessed valuation of said parcels and in second marginal column the estimated ma,rket valHie thereof (as appraised by a competent ex- pert in real estate values, whose supplemental affidavit is herewith submitted. ) Schedule A2 sets forth all of the moneys left by the decedent at the time of h . . death, whether in h . . immediate possession, standing to h . . credit or in which . . he had any right, title or interest, in banks of deposit, savings banks, trust companies, or other ^ institutions, whether individually or in trust for or jointly with any other person, giving also separately the accrued interest there- on, if any, down to the last interest day prior to decedent's death in the case of savings accounts, and down to the date of decedent's death in all other cases. Schedule A3 sets forth all wearing apparel, jewelry, silverware, pictures, books, works of art, household furniture, horses, carriages, automobiles, boats, and any and all other personal chattels of whatsoever kind or nature, left by the decedent, together with the fairly estimated market value thereof (as ap- praised by a competent expert, whose supplementary affidavit is herewith sub- mitted). It also contains a statement of all bonds and mortgages held by de- cedent and of all claims due and owing decedent at the time of h . . death, and of all the promissory notes or other instruments in writing for the payment of money of which . .he died possessed, of whatsoever nature, with interest there- on, if any (except such as are included in the statement of the decedent's in- terest in a co-partnership or business set forth in Schedule A5) giving the face values and estimated fair market values thereof and if such estimated fair market values be less than the face value, setting forth in brief the reason for such depreciation as to each item. Said Schedule AS also contains a statement 1035 No. 25 FORMS of any and all moneys payable to the estate from life insurance policies carried by decedent. Schedule AJt seta forth all the corporate stocks, bonds and accrued interest thereon to the date of decedent's death, or other investment securities owned by the decedent at the time of h. . death, with the market value thereof at such time, and in the case of unlisted corporate securities giving the State of incor- poration of the corporation issuing the same, its capitalization, the value and nature of its assets, its liabilities, its surplus, the book value of its stock, the dividends paid, and any other facts which may be pertinent affecting the value of said securities, also the amount of any dividends declared on such stocks but unpaid at date of death. Schedule A5 sets forth the interest of decedent at the time of h. . death in any co-partnership or business, a balance sheet of such business, and shows the nature and location thereof, the total capital employed, the gross profits, ex- penses and net profits, of the business for at least three years prior to dece- dent's death, and any other facts pertaining to such business as may be perti- nent to a fair and just appraisal of decedent's interest in said business and the good-will thereof. (Submitted to the Appraiser herewith is a certificate and two copies thereof showing the amount of the decedent's interest in such busi- ness and good-will thereof, made by a competent accountant.) Schedule A& sets forth in itemized form, together with the fair market value thereof, any other property owned or left by decedent at the time of h . . death and not included in the preceding schedules. IV. — Schedule Bl sets fqrth the funeral expenses. Schedule B2 sets forth the expenses of administration and counsel fees paid or estimated. Schedule B3 sets forth the valid debts due and owing by decedent at the time of h . . death and allowed as just and fair by the administrator, executor, together with a sep- arate list of such claims as have been contested or rejected by h. . (except liens and encumbrances upon real estate and except such as enter into the computa- tion of decedent's interest in any co-partnership or business as set forth in Schedule A5 ) . Schedule BS also sets forth all items claimed by the administra- tor executor as proper deductions herein, and not included in the prior schedules. V. — Schedule C sets forth all the property, real and personal, which passed at decedent's death by virtue of -the exercise by h . . of any power of appoint- ment vested in h.. by the will, deed or other instrument of another, together with the fair market value of each item thereof and a statement in brief of the source and derivation of such power, copies of which will, deed or other instru- ment are submitted herewith. Said Schedule C also sets forth the interest of decedent in any estate of another; and any property wheresoever situated of which decedent made any grant, bargain, sale or gift in contemplation of death or intended to take eflfeet in possession or enjoyment at or after the death of decedent. VI. — Schedule D contains a statement of the names of all persons beneficially interested in this estate at the time of decedent's death, the nature of their respective interests, their relationship, if any, to the decedent, together with the ages at the time of decedent's death of all minors, annuitants and beneficiaries for life under decedent's will, if any. It also contains a statement showing which of the beneficiaries named in decedent's will, if any, died prior to dece- 1036 FORMS No. 25 dent, the dates of their deaths, their survivors, and the relationship of such sur- vivor to decedent. VII. — That deponent has made due and diligent search fqr property of every kind, nature and description left by the decedent, and has been able to discover only that set forth in Schedules A and C, and that no information of any other property of the decedent has come to h . . knowledge, and that . . he verily be- lieves that decedent left no property except as therein set forth. That all the sums claimed as deductions in Schedule B are lawful, just and fair, that to the best of deponent's knowledge, information and belief the decedent made no gift, grant or conveyance of any property, real or personal, in contemplation of death, or to take effect at or after death, except as may be so specifically set forth in the appropriate schedule. Deponent further says that wherever in any of said schedules the word "none" has been written or wherever such schedule has been left blank, such word or omission is to be taken as equivalent to an affirmative allegation by deponent that the decedent left no property of the kind to which schedule relates. Jurat as in Form No. i. (Executor's or ad/mmistrator's signature). Schedule Al. Real property Assessed value For year of decedent's death Estimated market value Value as appraised In thls> proceeding EQUITY Schedule A2. Cash on hand and on deposit. Value as appraised Amount in this proceeding 1037 No. 25 FORMS SCHEDTTUt An. Personal chattels — bonds and mortgages, promissory notes, claims, insurance, etc. Estimated market value Value as appraised in this proceeding A4. Corporate Bonds and Stocks (including interest on bonds to date of death and stock dividends declared but unpaid). Estimated market value Yalue as appraised in this proceeding SOHEDUUfi AS. Interest of decedent in any co-partnership or business, together with balance sheet and profit and loss statement Estimated market value Value as appraised in this proceeding 1038 FOEMS SOHEDULB No. 25 Alt. Fropertj left by decedent of whatever kind or nature not included in the foregoing sub-schedules Estimated market value Value as appraised in this proceeding SCHEDXJUB Bl. Funeral Expenses. Claimed Allowed in this proceeding SOHBDTJI-E B2. Administration expenses Claimed Allowed in this proceeding 1039 No. 26 FORMS Schedule B3. Debts of decedent. Also deductions claimed and not included in the preceding sub-schedules Claimed Allowed in this proceeding Schedule C Property passing by decedent's exercise of any power of appointment; Interest of decedent in any other estate; Property transferred by decedent in contemplation of death or to take effect at death Estimated value Value as appraised in this proceeding Schedule D Beneficiaries and their interests, relationship to deceased, etc. FORM NO. 26. Affidavit to Secure Waiver of Comptroller in Transfer Tax Proceeding. Note: — To be used in its entirety when decedent died Apr. 26, 1916, or later. Omit bracketed clause [ ] if decedent died between May 20, 1915 and Apr, 26, 1916. Omit paragraphs V., VI., VII. and VIII if decedent died between July 21, 1911, and May 20 191 !5. 1040 FORMS No. 26 As in Form 1, with title as in Form 28, and three first paragraphs as in Form 9, continuing: II. That said decedent died on the day of , 191 . . . , a resident of , State of , intestate (testate), and letters of administration or letters testamentary were issued on the day of , 191 . . . , by the Court of the County of , State of The facts showing the decedent to be a resident of such State as follows: III. Tliat deponent was appointed executor ( administrator ) of this estate IV. That the decedent died seized and possessed of no real estate in the State of New York, and no goods, wares or merchandise physically in the State of New York. V. That decedent died seized and possessed of no intangible property evi- denced by or consisting of shares of stock, bonds, notes or other evidences of interest in any corporation, joint stock company or association, other than a monied corporation, a railroad or transportation corporation, public service corporation, or manufacturing corporation, and the property represented by such shares of stock, bonds, notes or other evidences of interest consisting of real property within the State of New York, except as stated in Schedule A hereto attached. VI. That decedent died seized and possessed of no interest in any partner- ship business conducted wholly or partly within the State of New York [and was not possessed of any money or capital invested in business in the State of New York, either as principal or partner], except as stated in Schedule A. VII. That decedent made no transfer by deed, grant, bargain, sale or gift in contemplation of death, or intended to take effect in possession or enjoyment after his death of any intangible property evidenced by or consisting of shares of stock, bonds, notes or other evidences of interest in a corporation, joint stock company or association, other than a monied corporation, a, railroad or transportation corporation, a public service corporation or manufacturing corporation, and the property represented by such shares of stock, bonds, notes or other evidences of interest consisting of real property within the State of New York, or of any interest in a partnership business conducted within the State of New York. VIII. That at the time of decedent's death there was no property held in the joint names of said decedent and any other person, or by decedent and another as tenants by the entirety, or in the joint names of decedent and another payable to either or the survivor, except as stated in Schedule A. (If decedent was a joint tenant or tenant by the entirety with another, give date of instru- ment creating such tenancy.)' N. Y. E. & S.— 66. 1041 No. 27 FORMS IX. That the following are the names, relationship and amount of interest of the persons among whom this estate is distributable. Name and Relationship Addrecs Amount of Interest That this affidavit is made for the purpose of securing the waivers of the Comptroller of the State of New York to transfer the following property owned by this decedent at the date of his death or in which this decedent had an interest: That decedent had no power of appointment under any will, deed or other instrument, except as hereinafter set forth. Jurat as in Form No. 4, Note. — ^If decedent died testate a copy of will should be attached to this affidavit. Attach County Clerks Oertifioate. FORM NO. 27. Waivers — Bank and Trust Oompamy Deposits. (Certificates of Letters Testamentary or of Administration Must Be Presented.) TILL OUT THIS BLANK NAME OP ESTATE: Resident or Non-Resident, Place of Death, 1042 Applicant and AddTess, FORMS No. 28 Ezeeutor or Administrator, with address Date of Death, Bank or Trust Company Amount If Savings Bank, No. of Bank Book FORM NO. 28. Order Fixing Transfer Tarn. Caption as in Form No, 2, contimnvng : -the Transfer Tax Upon the Estate of Deceased. On reading the report of , Esq., the appraiser, filed Tierein on the day of 191..., wherein it jippears that the said decedent died on the day of , 191 . . .', and on motion of , Attorney for the herein, it is Ordered and Adjudged that the cash value of the property referred to in said report, the transfer of which is subject to the tax imposed by the Act relating to taxable transfers, and the tax to which the said transfers are liable, are as follows: Beneficiary Kelation Amount of Exemption Cash Value of Interest Tax Assessed 1043 Nos. 29, 30 FORMS FORM NO. 29. Notice of Appeal from Order Fixing Tarn. Caption as m Form No. 1, with title as in Form No. 28, continuing: Take notice that , administrator of the goods, chattels and credits which were [or, executor of the Last Will and Testament] of , deceased, {or whoever else is aggrieved) hereby appeals to the Surrogate of the County of from an order entered herein . . , 191. . ., upon the Report of the Appraiser herein dated , 191. . ., fixing the "Transfer Tax upon the estate of said decedent, upon the following grounds; , ....,....,,,, Dated, , 191... Attorney for, etc. To The Clerk of the County Surrogate's Court; The State Comptroller. (Parties who have appeared.) FORM NO. 30. Notice of Motion to Remit Penalty. Caption and title as in Form No. 28, continuing: Take notice that on the annexed petition of , herein, verified , 191 . . . , and on all proceedings heretofore had herein, the undersigned will make a, motion at a special term of the Surro- gate's Court of the County of , to be held at , on the day of ; , 191 ... , at o'clock in the noo'n, or as soon thereafter as counsel can be heard, for an order re- mitting from 10% to 6% the interest upon the transfer tax fixed by order of this Court entered , 191 ... , on the estate of ., the above-named decedent, from the date of said decedent's death, viz , 191 . . . , to days frcHU the date of entry of said order, provided said tax be paid within said days. Attorney for, etc. To The State Comptroller. 1044 FORMS Nos. 31, 32 FORM NO. 31. Petition for Remission of Penalty. Caption and title as in Fprm No. 28, and three first paragraphs as in Form No. 9, continuing: II. That the petitioner is administrator of the goods, chattels and credits which were lor, executor of the Last Will and Testament] of , deceased, who died on , 191 . . . , a resident of III. That by reason of claims made upon said decedent's estate [or, neces- sary litigation, or other ■wnavoidable cause of delay] the transfer tax upon said estate could not be determined and paid within 18 months of the date of said decedent's death, or until , 191 . . . ; when the cause of said delay was removed; as more fully appears from the following facts: IV. That by reason of said delay, 10% interest will be charged on said tax from the time of said decedent's death until paid, imless such interest be remitted by this Court; and that the petitioner desires to have such remission made and to pay said tax. The petitioner therefore prays for an order charging 6% instead of 10% from the date of said decedent's death until a, date days from the entry of the order hereon, provided said tax be paid within said days. Add verification as in Form No. 7 or 8. FORM NO. 32. Order Remitting Penalty. Caption as in Form ITo. 2, with title as in Form No. 28, continuing: On reading and filing the notice of motion of , for remission of the interest on the tax herein from 10% to 6%, and the annexed afiidavit of , verified , 191 . . ; and on all the proceedings heretofore had herein ; and after hearing , attorney for said in support of said motion, and , attorney for the State Comptroller, in opposition, it is Ordered, that the penalty of 10% upon the transfer tax fixed by order en- tered herein , 191 ... , be remitted to 6% from , 191 . . . , the date of death of the above-named decedent to the date of payment of said tax, provided it be paid within days from the date hereof. 1045 Nos. 33, 34 FORMS FORM NO. 33. Notice of Motion and- Petition to Exempt From Transfer Tax. Usual Notice of Motion based on petition with caption as in Form No. 1, with title as in Form No. 28, a/nd three first paragraphs as in Form No. 9, continuing : II. That the petitioner is {e. g., executor, etc. ) of , the above-named decedent, who died a resident of the County of , State of , 6n , 191.... III. That Schedule A hereto annexed contains a statement of all property, real and personal, of which said decedent died seized and possessed. IV. That Schedule B hereto annexed contains a statement of all the debts, burial and administration expenses of said decedent and his estate. V. That Schedule C hereto annexed contains a statement of all the heirs at law and next of kin [or legatees, devisees and beneficiaries] of said decedent or his estate, the amount of their interest and their relationship to decedent; and that all of said persons are of full age and sound mind except The petitioner therefore prays an order declaring exempt from tax, imder the laws relating to taxable transfers of property, the property of which said decedent died seized and possessed as herein stated. Add verification as in Form No. 7. FOEM NO. 34. Order Exempting From Transfer Tax. Caption as in Form No. 2, with title as in Form No. 28, conti/nmng: On reading and filing the notice of motion to exempt from the transfer tax the estate of , the above-named decedent, and the petition of , thereto annexed, verified , 191. . ., and it appearing to my satisfaction that said notice and petition were duly served upon the State Comptroller and that the transfer of the property of said decedent is not subject to tax under the law relating to taxable transfers of property, on motion of , attorney for it is Ordered, that the transfer of property of which ^ the above-named decedent died seized and possessed and mentioned in said petition be and it hereby is declared to be exempt from tax under the law relating to taxable transfers of property. 1046 FORMS No. 35 FORM NO. 35. Petition for Appointment of Administrator. As in Form No. 1, continumg: the Application for Letteis of Administration on the Goods, Chattels and Credits which were of Deceased. Three first paragraphs as in Form No. 9, continuing: n. That , the above-named decedent, was at the time of h . . . . death a, resident of , in the County of , and died at , on the day of , 191.... III. That your petitioner is of full age and is the (e. g-, widow) of the deceased. 9^ IV. That your petitioner has made diligent search and inquiry for a will of said deceased and has not found any such will, nor has your petitioner ob- tained any information concerning or that decedent left any such will. V. That a search of the records of this Court shows that no application has ever been made thereto for letters of administration upon the estate of said deceased, or for the probate of a will of said deceased or for letters testamentary thereupon, and your petitioner is informed and verily believes that no such application has ever been made to the Surrogate's Court of any other county of this State. VI. That the said deceased died possessed of certain personal property in the County and State of , and that the value of all the personal property, wherever situated, of which the deceased died possessed, does not exceed the sum of Dollars. VII. That the estimated value of the real property in this State, of which said decedent died seized, is Dollars. VIII. That a right of action exists granted to the administrator of the decedent by special provision of law, the probable amount to be recovered in which cannot be ascertained and that it is impracticable to give a bond suffi- cient to cover the probable amount to be recovered in said action. IX. That said deceased left surviving a husband (vndow), who resides at , and the following only next of kin and heirs at law, whose names, degrees of relationship, post-office addresses and ages are as fol- lows: Name. Relationship. Post-office Address. Age. 1047 No. 36 FORMS X. That there are no other persons than those mentioned interested in this proceeding. XI. That a.11 of the above-named persons are of full age and sound mind, except Xn. That said deceased was in his lifetime a subject (citizen) of the United States. YOUR PETITIONER THEREFORE PRAYS for a decree awarding letters of administration of the Goods, Chattels and Credits which were of said deceased to him or to such other person or persons having a prior right as may be entitled thereto, and that a citation issue herein to all persons entitled thereto citing them to show cause why such decree should not be made. Dated, New York, , 191 '' Petitioner, Add verification as in Form No. 7 or 8. FORM NO. 36. Petition for Appointment of Administrator C. T. A, Adapt caption from. Form No. 33, and continue as therein to # continuing: III. That said deceased left a last Will and Testament, in and by which was {were) appointed Execut thereof, who duly qualified. IV. That the said last Will and Testament was duly admitted to probate by the Surrogate's (s') Court of the County of , on the day of , 191..., and was recorded in Liber of Wills, at page V. That the said Execut died, leaving certain property and assets of the said testat unadministered, the value of which does not exceed the sum of .• Dollars. VI. That the names and post-office addresses of the residuary, principal and specific legatees, husband, wife, next of kin, heirs and devisees and creditors of said deceased, qualified to act as administrators, as far as they are known to your petitioner, or can be ascertained by . . h . . . . with due diligence ar.e as follows : 1048 rORMS No. 3T VII. That all of the above-named persons are of full age and competent, except : VIII. That there are no persona interested in this application or proceeding other than those hereinbefore mentioned. Your Petitioner., therefore pray., for a decree awarding Letters of Admin- istration with the Will annexed, of the Goods, Chattels and Credits which were of said deceased to . .h or such other person or persons having a prior right as may be entitled thereto, and that citation issue herein to all persons entitled thereto citing them to show cause why such decree should not be made. Dated the day of , 191 . . . Petitioner. Add verification as in Form No. 7. FORM NO. 37. Petition for Appointment of Administrator D. B. N. Caption as in Form No. 1, continuing: Administration, with the Will Annexed, of the Goods, Chattels and Credits left unadministered, of Deceased. I To THE Subrogates' Coubt of the County or The Petition of respectfully shows: That your petitioner is a resident of No in the and is named in the last will and testament of deceased; that said departed this life at on the day of in the year one thousand hundred and leaving a last will and testament in and by which he appointed execut . . thereof; that the said last will and testament was duly admitted to probate by '. Surrogate of the County of , on the day of 191 . . 1049 Nos. 38, 39 rORMS And your petitioner further shows that the said the execut . . named in said will, leaving certain property and assets of the said testat... unadministered; that your petitioner has to the best of .... ability estimated and ascertained the value of the personal estate of which the said testat . . died possessed, and of the real estate so possessed and the proceeds thereof which may come to the hands of an administrator by reason of the provisions of said last will and testament, and that the same will not exceed the sum of dollars, according to the best of your petitioner's information and belief. That your petitioner has been informed and verily believes that said deceased left surviving only next of kin ; the said deceased was and was at or immediately previous to death a resident of the County of Your petitioner therefore prays that a decree of the said Surrogates' Court of the County of issue appointing your petitioner administrat .... with the will annexed, of the goods, chattels and credits of said deceased. {Petitioner's signature). Add verification as in Form No. 7 FORM NO. 38. Petition for Appointment of Limited Administrator or Executor. Follow Form No. S5 except tluit in lieu of paragraphs numbered "VJ" and "YII" in Form No. 35, it should ie stated {if such be the case) that decedent left no property except that the cause of action referred to i/n paragraph num- bered "Till" fxists. FORM NO. 39. Petition for Appointment of Tempora/ry Administrator When No Proceeding for General Administration or Probate it Pending. As in Form No. 1, continuing ■' . the Application for Letters of Temporary "l Administration of the Goods, Chattels L and Credits of I Three first paragraphs as in Form No. .9, continuing: II. That was (or, is) u, person of whose estate 1050 FORMS No. 39 "this Court would have jurisdiction, if lie were shown to be dead, by reason of these facts: [e. g., that he v>as a resident of the cownty, etc.] III. That said has disappeared (or, is missing) , his abode cannot, after diligent search, be ascertained, and the circumstances under which lie disappeared (or, is missing) afford reasonable ground to believe that he is dead (or has become a lunatic; or has been secretly confined; or' otherwise unlawfully made away with) as more fully appears from the following: (Here state facts showing diligent search made, facts of disappearance and circum- •stances affording reasonable ground to telieve person is dead, limatic, secretly confined or otherwise unlawfully made away with) . IV. That said was at the time of his disappearance a resident of , in the County of V. That the appointment of a temporary administrator is necessary for the protection of said 's property and the rights of creditors •or of those who will be interested in the estate, if it be found that the said is dead. VI. That the said property of said and its value con- sists of the following: VII. That the petitioner is (b. g., the widow ) of said VIII. That the following persons, whose names, degrees of relationship, post office addresses, are given would be the only next of kin and heirs at law of said were he dead : Names. Kelationship. F. O. Address. IX. That there are no persons other than those mentioned interested in this proceeding. X. That all of the above persons are of full age and sound mind except The petitioner therefore prays for a decree awarding letters of temporary administration of the Goods, Chattels and Credits which are or were of said to her or to such other person or persons hav- ing a prior right as may be entitled thereto and that a citation issue herein to all persons entitled thereto citing them to show cause why such decree should not be made. Add verification as in Form No. 7. 1051 Nos. 40, 41 FORMS FORM NO. 40. Notice of Motion for Appointment of Temporary Admimistrator When Proceed- ing for General Administration or Probate is Pending. Adapt Caption and title from Form 35 or HO, according as administration or probate proceeding is pending. Take notice that on the proceedings had herein and the annexed aflSdavit of verified the day of , 191. ., the undersigned will move this Court, at a special term thereof to be held at {e. g., County Court House, or Hall of Records, etc. ) on the day of , 191 . . ( the date must be at least 10 days after service unless the Surrogate shortens the notice to not less than 2 days), at o'clock in the noon, or as soon thereafter as coun- sel can be heard, for an order issuing letters of temporary administration of the goods, chattels, and credits Vfhich were of , the above-named decedent, to , and for such other and further relief as may be just. Dated, Attorney for , Off. & P. O. Address, etc. To: ( Each party to the proceeding for general administration or probate who has appeared) . FORM 'NO. 41. Affidavit in Support of Application or Motion for Temporary Administration when Proceeding for General Administration or Probate is Pending. Adapt Caption and title as from Form No. 35 or HO, and commencement as im, Form No. 3, continuing: I. I am interested in the above-entitled proceeding and in the estate of the above-named decedent as (e. g., creditor, toido-uo, etc., of decedent) ; ' II. The only parties to said proceeding beside myself who have appeared therein are : III. That delay has necessarily occurred in the granting of letters testamen- tary (or of administration; or in probating the will) of the estate of the above-named decedent, because of the following facts: (e. g., will contest, etc.) IV. That the value of the property left by said decedent and the income therefrom is as follows: {Give details, so that temporary administrator's bond may be fixed.) Wherefore I pray an order issuing letters of temporary administration to , or some one or more other persons. Jurat as in Form No. 4. (Signature of affiant.) 1052 FORMS No. 42 FORM NO. 42. Petition for Appointment of Ancillary Administrator. Caption as in Form No. 1, continuing: the Application for Ancillary Letters of Administration of the Goods, Chattels and Credits which were of Deceased. Three first paragraphs as in Form No. 9, continuing : II. That , the above-named decedent, was at the time of his death a, resident or , in the State of , United States of America (or foreign coun- try) and died at , on the day of , 191... III. That said decedent died leaving personal property within this county, IV. That no original letters testamentary or of administration or ancillary letters upon foreign probate have previously been applied for to, or issued by any Court of the State to anyone on this estate. V. That the petitioner is the person (a) entitled to the possession of the personal property of said decedent in said ( State, territory or country), [or, (b) in whose favor , the per- son (s) entitled to the possession of the personal property of said decedent in said ( State, territory, or country ) has ( have ) executed an instrument, filed with this petition, and duly acknowledged or proved, and certified, authorizing the petitioner to receive ancillary letters of administration in this State]. VI. That letters of administration upon the estate of said decedent have been granted within the state {or territory) where said decedent so resided at the time of his death, a, copy whereof, authenticated as prescribed in section 45 of the Decedent Estate Law is herewith presented [or, if decedent resided at death in foreign country: that the petitioner is entitled to the possession in said [foreign country) of the personal estate of said decedent, as appears from proof herewith presented, viz. ( specify pwof.)] VII. That the amount of security given on the original appointment of the administrator of said decedent's estate in said (name of State, Territory or Country) was VIII. That the name and residence of each creditor or person claiming to be a creditor residing within this State, and the amount of his claim so far as the same may be ascertained; and the name and address of the State Comptroller, are as follows: 1053 No.. 43 FORMS Name. Residence or Address. Amoimt of Claim. State Comptroller Albany, N. Y. IX. That the names and post-office addresses of all persons interested in thia proceeding who are required to be cited upon this application or concerning whom the court Is required to have information, so far as they can be as- certained with due diligence, are set forth above; and that there are no other persons than those mentioned interested in this application or proceeding. X. Tlie petitioner therefore prays for a decree granting him letters of an- cillary administration of the goods, chattels and credits which were of said , the decedent above-named, in this State, and that a citation issue herein to all persons entitled theret^o citing them to show cause why such decree should not be made. Add verification as in Form No. 7. Add necessary certified documents. FOKM NO. 43. Citation on Petition for Administration. THE PEOPLE .OF THE STATE OF NEW YORK, Bt xhb Gsaoe of God Fbee and Independibnx. To Send Greeting r Whereas, ^^lio resides at • has presented' a petition praying for a decree awarding Letters of Administration of the Goods,, Chattels and Credits, which were of deceased, lately residing at No jm the County of , State of New York. 1054 FORMS Nos. 44, 45 Now, therefore, you and each of you are hereby cited to show cause, before our Surrogate's Court of the County of , to be held at , in the County of , on the day of 191 . . , at .... o'clock in the . t . . . . noon, why such decree should not be made. In Testimony Whereof, we have caused the seal of our said Surrogate's Court to be hereunto affixed. [L.S.] Witness, Hon , Surrogate of our said County, at , in the County of , the day of 191 . . Clerk of the Surrogate's Court. Note: The body of the citation should 6e altered iy insertion of the words (a) "with the will annexed;" or (b) "with the will annexed of the goods, etc., left unadministered;" or (c) "limited" according as the adminis- tration sought is (a) C. T. A.; or (b) D. B. N.; or (c) Limited. FORM NO. 44. Oijections to Qrant of Letters or Qualification. Crption as in Form No. 1, with title of Proceeding continuing: To the Surrogate of the Coimty of : The undersigned, interested in the estate [or, fund] of , the above-named decedent, [or, infant], hereby objects and herewith files his ob- jections to the grant of letters to , about to receive the same [or, to allowing , about to qualify] as administrator ( or, executor, or guardian, [or testamentary trustee, to qualify and serve] ) , as follows : I. The undersigned's interest in said estate [or, fund) is as follows: II. The specific legal objection (s) to grant of said letters (or, qualification and service of said trustee) is (are) : This objectant therefore prays that the grant of said letters be stayed, [or, that qualification by said trustee (or, guardian) be refused] until this matter is disposed of; and for such other and further relief as may be just and proper. Dated, , 191... Add verification as vu Form No. 7. FORM NO. 45. Decree Qramting Letters of Administration. Caption as in Form No. 2, with title as in Form No. 35, continuing: On reading and filing the petition of for 1055 No. 46 FORMS letters of administration of the Goods, Chattels and Credits which were of , the above-named decedent, verified , 191 . . , and the affidavit of , verified , 191 . ., showing due service of the citation herein upon all parties interested in this proceeding [or recite those who have waived citation and consented to decree], And on filing the bond required by law in the premises, which said bond has been duly approved, It Is Decreed, that Letters of Administration of the Goods, Chattels and Credits which were of said deceased be awarded to the said , petitioner. Surrogate. Note: The caption and 'body of the decree should he altered hy insertion of the words (a) "with the will annexed;" or, (b) "with the will annexed of the goods, etc. left unadministered;" or (c) "limited" — according as the adminis- tration is (a) C. T. A.; or (b) D. B. N.; or (c) Limited. FORM NO. 46. Decree for Letters of Temporary Administration When No Proceeding for Gen- eral Administration or Probate is Pending. Caption as in Form No. 39, contimuing: On reading and filing the petition of , for letters of temporary administration of the Goods, Chattels and Credits which are {or, were) of above-named, and it satisfactorily appearing that the Sur- rogate of this County would have jiirisdiction of the estate of said were he shown to be dead, and that said has disappeared (or, is missing) so that, after diligent search, his abode cannot be ascertained; that said '■ ■ ■ has disappeared (or, is missing) under circumstances which afford reasonable ground to believe that he is dead (or has become a lunatic or has been secreted, confined or otherwise unlawfullv made away with) ; and that the appointment of a temporary administrator is necessary for the protection of his property and the rights of Creditors or of those who will be interested in the estate if it be found that he is dead; and on filing the bond required by law in the premises, which said bond has been duly approved, it is Decreed that letters of Temporary Administration of the Goods, Chattels and Credits which were ( or are ) of said jje awarded to , petitioner. Stirrogate. 1056 FORMS Nos. 47, 48 POEM NO. 47. Order for Temporary Administration when Proceeding for General Administra- tion or Proiate is Pending. Caption and Title of Proceeding, continuing : On reading and filing the notice of motion in the above-entitled proceeding with proof of due and timely service thereof upon each party to said proceeding who has appeared therein, and the affidavit of verified the day of , 191 . ., in support of said motion; and on all the prpceed,ings had in said proceeding; and after hearing in support of said motion and in opposition thereto; and it appearing to the satisfaction of the surrogate that delay has necessarily occurred in the granting of letters testamentary ( or in pro- bating the will, or in the granting of letters of administration) of the estate of the above-named decedent; it is, on motion of, , attor- ney for Ordered, that letters of temporary administration of the goods, chattels and credits which were of , the above-named do cedent, be issued to upon his executing. and filing a bond according to law, viz. {State details as to bond, and also include any directions proper as to manage- ment of estate by appointee.) FORM NO. 48. Decree for Letters of Anmlld/ry Administration. Caption as in Form No. 2, with title as in Form No. 42, continuing : On reading and filing the petition of duly veri- fied , 191. ., for letters of ancillary administration of the goods, chattels and credits which were of the above-named decedent, in this State; and upon the\duly authenticated copy of the letters of administration upon the estate of said decedent granted wituin the State (or territory) of , where said decedent resided at death heretofore filed herein; [and upon the duly acknowl- edged (or proved), and duly certified instrument executed by , the person (s) entitled to the possession of the personal property of said de- cedent in said State ( or Territory ) of , author- izing the petitioner to receive said ancillary letters, heretofore filed herein] ; and it appearing to the siirrogate's satisfaction . , (that there are not, or, that there are creditors in this State), it is Decreed, that Ancillary Letters of Administration of the Goods, Chattels and Credits which were of '. , the above-named de- cedent, in this State, be granted to , the pe- titioner, upon his taking and filing the oath required by law; [and executing and filing a bond according to law, with sufficient sureties in the penalty of .......:...;. dollars]. Surrogate. N. Y. E. & S.— 67. 1057 No. 49 FORMS FORM NO: 49. Letter's of Administration — In Chief, THE PEOPLE OF THE STATE OF NEW YORK, By the Grace of God FEsas and Independent. To , of late of the County of , Deceased : Send Gbeeting : * Whereas, the said deceased died intestate and #was at the time of death a resident of the County of , by means whereof the ordering and granting* of administration of all and singular the per- sonal property, goods, chattels and credits whereof the said intestate died pos- .sessed, and also the auditing, allowing and final discharging the accoimt thereof doth appertain unto us; and we being desirous that the personal property, goods, chattels and credits of the said intestate may be well and faithfully ad- ministered, applied and disposed of, do grant unto the said full power, by these presents, to administer and faithfully dispose of all and singular the said personal property, goods, chattels and credits ; to ask, demand, recover and receiye the debts yrhich unto the said intestate, whilst living, and at the time of his death, did belong; and to pay the debts which the said intes- tate did owe, as far as such personal property, goods, chattels and credits will thereunto extend and the law require; Jtereby requiring you to make; or cause to be made,: a true and perfect inventory of all and singular the personal prop- erty, goods;, chattels and credits of the said intestate within a reasonable time, and return a duplicate thereof, to our Surrogate of the County of within three months from the date of these presents; and if further personal' property or assets of any kind, not mentioned in any inventory that shall have been so made, shall come to your pdsstession or knowledge, to make or cause to be made, in like manner, a true and peffect inventory thereof, and return the same within two months after the disfibvery thereof; and also to render a just and true account of administration when thereunto required; and we do by these presents § depute, constitute and appoint you, the said administrator of all and singular the personal property, goods, chattels and credits which were of the said , deceased. In Testimony whereof, we have caused Wie seal of the Surrogate's ( s' ) Court of County to be hereunto affixed. Witness, Hon. , ,■..,'-: Surrogate of our said County, at the County of , this day of , 191 . . , in the Year of our Lord one thousand nine hundred and (Seal) {Bignatv/re of Surrogate or Clerk.) 1058 FORMS Nos. 50-52 FORM NO. 50. Letters of Administration 0. T. A.. As in Form No. J/S to * continuing: WilERBiiS , the said deceased, died, having pre- viously made and executed his last will and testament; and Whereas, the said last will and testament was duly admitted to probate by the Surrogate's (s') Court of the County of on the day of , 191. . ; and Whereas, the said decedent (continue on from # to § in Form No. 49, referring to the decedent, however, not as "intestate" but as "testator;" and from § continuing:) require you to observe and perform the said last will and testament, and to observe arid perform all the duties to which you would have been subject if you had been named executor thereof. And we do by these presents depute, constitute and appoint you, the said , administrator with the will annexed of all and .singular, etc. {conclude as in Form No. 49). FORM NO. 51. Letters of Administration D. B. N. As in Form No. 49 to ', continuing: WhebEAS, was duly appointed the administra- tor of the goods, chattels and credits which were of said intestate, and letters of administration were duly granted by the Surrogate of the County of to the said . ., , on the .... day of ; and Whereas the said has since died, leaving property, goods, chattels and credits of the said intestate still unadministered ; and Whereas, the said intestate {continue an from # in Forpi No. 4^ to §y and from § continue) depute, constitjite and appoint you, the said . . . , administrator de honis non, of all and singular the goods, chattels and credits which were of the said , deceased, intestate, left unadministered as aforesaid {conclude as in Form No. 49). FORM NO. 52. Letters of Limited Administratiort, Follow Form No. 4S, adding a paragraph just before the testimonium clause, as follows: And you are hereby restrained from compromising any right of action granted to you as administrator by special provision of law, and from enforcement of any judgment recovered therein, until the further order of the Surrogate on ad- ditional further satisfactory security. 1059 Nos. 53-55 FORMS FORM NO. 53. Letters of Temporary Administration. As in Form No. i9 to ' continuing: Whbeeas, , a person of whose estate this Court would have jurisdiction if he were shown to he dead, by reason of the fact (e. g., that he was a resident of the County of ) , has d,isappeared {or, is missing) under such circumstances as to afford reasonable ground to believe that he is dead {or, has become a lunatic; or, has been secretly confined, etc.); and Wheeeas, the appointment of a temporary administrator is necessary for the protection of said s property, and the rights of creditors, or of those who will be interested in the estate, if it be found that said is dead, Now Therefore, we, being desirous that the property, goods, chattels and credits of said '..'. be protected, collected and preserved, do grant unto you full power, by these presents, to take possession, collect and preserve and secure, the said property, goods, chattels and credits, with all other authority granted you by law, hereby requiring you to make immediately a true and perfect inventory of all and singular the goods, chattels and credits of said and return the same to our Surrogate of the County of within three months from the date of these presents, and also to render a just and true account of your adminis- tration as such temporary administrator whenever required by our said Surro- gate, and faithfully to deliver up the goods, chattels and credits of said to any person or persons entitled thereto by law and who shall be authorized to receive the same by said Surrogate. {Oontimue with testimonium Clause as in Form No. 49.y FORM -NO. 54. Letters of Ancillary Administration. Follow, in general. Form No. 49, reciting the grant of original letters in the State, Territory, etc., of decedent's domicil, and the proceedings in this State for ancillary letters; and appointing the petitioner ancillary administrator. FORM NO. 55. Administrator's Oath. State of New York,) County of ... I, , do solemnly swear and declare that I will well, honestly and faithfully discharge the duties of (a) administrator {or, (b) ad- ministrator with the will annexed; or (c) administrator of the goods, chattels and credits left unadministered ; or, (d) of limited administrator; or (e) tem- porary administrator; or, (f) ancillary administrator) of the goods, chattels 1060 FORMS No. 56 Mid credits which were of , deceased, according to law. {Jurat aa in Form No. 4). {Signatwre of affiant). FOEM NO. 56. Bond of Any Administrator. KNOW ALL MEN BY THESE PRESENTS, That We, are held and firmly bound unto THE PEOPLE OF THE STATE OF NEW YORK in the sum of Dollars, lawful money of the United States of America, to be paid to the said people; to which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of one thousand nine hundred and The Condition of this Obligation is such, that if the above bounden shall faithfully execute the trust reposed in as administrator ( or, ad- ministrator with the will annexed; or, administrator of the goods, chattels and credits imadmimistered ; or limited administrator; or temporary administrator; or, ancillary administrator ) of all and singular the goods, chattels ,^nd credits of late of deceased, and obey all lawful decrees and orders of the Surrogates' Court of the County of touching the administration of the estate committed to then this obligation to be void, else to remain in full force and virtue. Sealed and delivered in presence of , [L. S.J [L. S.] ........{L. S.] '..., .....:... ....:..[L. s.j Add acknowiledgment as t» Form No- 5. I know the within-named sureties to be the identical persons that they, repre- sent themselves to be, and to be responsible parties, and I believe them to bp worth at last $ each in good property. 1061 Nos. 57, 58 FORMS, FORM NO. 57., Justification of Sweties on Administrator's Bond, State of New York, Caunty of New York, ss.: .being; duly sworn, deposes and says that he is one of the sureties named in the annexed recognizance; that he resides at No '. . .". Street in the ..:..]' that he is a (house — or free) holder, and that he owns the following property, con- sisting of and that the same is of the value of not less than Dollars, and is suhject to no incumbrance except a mortgage of and that there are no unsatisfied judgments or executions against him, and that he is under no recognizance, nor is he upon any bond, undertaking or written obligation whatever. , and that he is worth in good- property, exclusive of property exempt- by law from levy and sale under an execution, not less than Dollars over and above all debts, liabilities and lawful claims against him, and all liens, incumbrances and lawful claims upon his property. Surety, Add jurit as in Form. No. 4. FORM NO. 58. Petition for New Bond. Caption as in Form No. 1, with title of proceeding, and three first paragraphs as v» Form No. 9, contimuing: ; and is a creditor lor, is a person interested in the estate] of , the decedent above-named, as follows: {state character of interest) II. That the said decedent died a resident of the County of , and letters (testamentary, or of administration) were grailted by the Surrogate of the County of to on the day of 191. . ., upon the said executing with and 1062 FORMS Nos. 59, 60 as sureties, and filing, a bond in the penal sum of $ conditioned on the faithful execution by said ;.. of the trust reposed in him as such ; and his obedience to all lawful decrees and orders of the Surrogate's (s') Court of the County of ' touching the administration of the estate committed to him. III. That the said , one of the sureties on the said bond, is insufficient {or, has removed from the State; dr, is about to remove from the State; or, is dead; or, that the said bond is inadequate in amount) because of the following facts : .;.... . ; IV. That the names and post-office addresses of all the persons interested in the proceeding who are required to be cited upon this application or concern- ing whom the Court is required to have information are as follows: Name P. 0. Address (prinoipal) V. That there ^re no other persons than these mentioned interested in this application or proceeding. 'the petitioner therefore prays that the said , principal in said bond, may be required to give a new bond, in a larger penalty, {or new, or additional sureties) ; or, in default thereof, that he may be removed from his office and that letters issued to him may be revoked; and that a cita- tion issue to said principal to show cause why the prayer of this petition should not be granted. {Sigitature of Bwety.) Add verification as in Form No. 7. FORM NO. 59. Neic Bond — Citation. Adapt from Form No. 4$. FORM NO. 60. Order for New Bond. Caption as in Form No. 1, with title of proceeding, contvnmmgi On reading and filing the petition of ; , verified , 191 . . . , and the proof of due service of citation herein 1063 Nos. 61, 62 FORMS upon {principal) ; and after hearing the allegations and proofs of the parties upon said citation's return; and some (or all) of the allegations in said petition being found to be valid, viz., that , it is, on motion of , attorney for , Ordered, that . . j , principal on said bond, give new ( or, additional ) sureties, [or, a new bond, in the penalty of $ ] within days (ndt exceeding 20) from the date hereof; and it is Further Ordered, that in default thereof, said be re- moved {or, his letters revoked). FORM NO. 61. Decree Revoking Letters for Failure to Obey Order to Give New Bond, etc. Caption as in Form No. 2, icith title of proceeding, eontirming: On reading and filing the petition of herein, duly verified , 191 . . . ; the affidavit of , duly verified ; . . ; , 191. .-., showing due service of the citation issued on said petition upon ; the order entered herein , 191 ... ; the affidavit of , verified ....i.'.'.i, 191.:., showing due service of said order upon said . . . ; ; and it appearing to the Surrogate's satisfaction that said order was duly served upon said and that days have elapsed since the date and said service of said order,. and that said has not complied therewith, it is, on motion of , attorney for , Decreed that the letters (testamentary, or of adminis- tration; or-' of guardianship ) heretofore issued to said be and they hereby are revoked [or that said '. , be and he- hereby is removed as testamentary trustee of the trust and fund created bv the will of , the above-named decedent] . ■•■TOEM NO. 62. Decree Revoking Letters Without Petition or Citation. Caption as in Form No. 1, with title of proceeding, continuing: It appearing to the Surrogate's satisfaction from ( state how following appears ) that ^ administrator {or executor, or testamentary trustee) of the estate of the above-named decedent is not a resident of New York State {or, is absent therefrom) and upon being duly cited to account, has neglected to appear upon the return of the citation without showing a satisfactory excuse therefor, and the Surrogate not having 1064 FOEMS N . 63 sufficient reason to believe that such an excuse can be made [or; that a citation {or order) issued to said in (any case prescribed by law) cannot be served upon him, by reason of his having absconded or concealed himself ; or, that by reason of said 's default in returning an inventory (or, neglect, or, refusal to obey an order (identifying the order) he has remained, for 30 days, committed to jail; or: that by the judgment of the Court (identifying the judgment), a court of competent jurisdiction, the will under which letters were issued to said is declared to be invalid ; or : that said has failed to give the bond required to sell real estate (or: to give a new bond; or a new surety) pursuant to an order (or decree) of this court (idei\tifying same) ; or: that said has been convicted of a felony ; or : that said has mingled the funds of said estate with his own ( or, has deposited the funds of said estate with a person (or, association, or corporation) authorized to do business under the banking law, in an account other than as such administrator (or, executor)], it is Decreed, that the letters (of administration or testamentary) heretofore issued to the said be and they hereby are revoked [or, that said be and he hereby is removed as testamentary trustee under the will of , the above-named decedent]. FOKM NO. 63. Petition for Revocation of Letters. Caption as in Form No. 1, with title of Proceeding, and three first paragraphs as in Form No. 9, continuing: ; and is a creditor of [or, a person interested in the estate (or fund) of; or: a surety on the bond of , administrator, or executor, or testamentary trustee of the estate of] , the above-named decedent. II. That letters of administration (or testamentary) were issued to said , on (or, that said testamentary qualified as such of ) the estate of said , (by the Surrogate's (a') Court of County) on or about , 191. . . . III. That said was, when appointed (or, when letters -were issued to him) incompetent (or disqualified) by law to act as such (or, has since become incompetent or disqualified), because of the following facts ......; and that the grounds of the said objection did not exist (or said objection was not taken by the petitioner, or by a person whom he represents) before the letters were granted (or the appoint- 1065 Nos. 64, 65 FOEMS ment made) ; \_or, recite any of the other grounds set forth in the 8 suldivisions to § 2569 of the Code, with the facts showing the ground}. IV. The names and post-office addresses, so far as they can be ascertained with due diligence, of all the persons interested in this proceeding who are re- quired to be cited upon this application or concerning whom the Court is required to have information, are (name of admin- istrator or executor, or testamentary trustee ) who resides at j V. That there are no other, persons than those mentioned interested in this application or proceeding. The petitioner therefore prays for a decree revoking the letters issued to [or, removing] said » ., and that he may be cited to show cause .why a decree should not, be made accordingly. Add verification as in Form A^o. 7. FORM NO. 64. Citation for Relocation of Letters or Removal of Trustee, Adapt from Form No. 43. FORM NO. 65. Order Suspending Administrator or Executor or Vesiamenta/ry Trustee Pending Proceeding to Revoke His Letters. Caption as in Form No. 1, with title of proceeding, continuing : On reading 'and filing the petition of v , verified '..........., 191'. . ., for revocation of the letters issued to [or, re- moval of] , and a citation having been issued accord- ing to the prayer of said petition, it is. Ordered that said : , — be and he hereby is suspended {state whether wholly or to what extent) from the exercise of his powers and authority as administrator ( eaeoMior or testamentary trustee) of the estate of , the above-named decedent, during the pendency of this proceeding for revocation of said 's letters (oj- for removal of said ;..... ) . 1066 rORMS Nos. 66, 67 FOEM NO. 66. Decree Revoking Letters on Petition. Caption as in Form No. 2, with title of proceeding, continuing: On reading and filing the petition of , verified , 191 ... , for revocation of the letters heretofore issued by this Court to on the estate of , [or, for removal of as testamentary trustee of] the above-named decedent; and the afiSdavit of , verified , 191 . . . , showing due service of the citation issued on said petition upon said ; and after hearing the proofs and allegations of the parties, it appearing to the Surrogate's satisfaction that the grounds for revocation of said letters exist, viz (state grounds ) , it is Decreed, that the letters of administration (or testamentary) heretofore is- sued to said be and they hereby are revoked [or that said be and he hereby is removed as smd testamentavxf trustee}. FORM NO. 67. Petition for Payment of Burial Expenses. Caption as in Form No. 1, with title of proceeding, and first three paragraphs as in Form No. 9, continuing: ; and has a, claim for the reasonable funeral expenses of , the decedent above named, in the amount of $ II. That , the above-named decedent, died a resident of the County of , on the day of , 191...; and that letters of administration (or testamentary) on the estate of said decedent were granted by the Surrogate of the County of to , on the day of , 191 . . . ; * that it is now over 60 days since said letters were granted; and that the petitioner's cla,im for said funeral expenses has not been paid. III. That the name and post-ofiice address of the only person interested in this proceeding who is required to be cited upon this application or concern- ing whom the Court is required to have information is ,...., the administrator (or executor) of the estate of the above-named decedent, who resides at IV. That there are no other persons . than the one mentioned interested in this application or proceeding. The petitioner therefore prays that the said administrator (or executor) may be cited to show cause why he should not be required to make payment of said funeral expenses. Add verification as in Form No. 7 or 8. 1067 Kos. (68-70 FORMS FORM NO. 68. Citation on Proceeding to Compel Payment of Ftmeral Ewpenses. Adapt from Form No. JfS. FORM NO. 69. Answer to Petition for Payment of Burial Expenses. Caption as in Form No. 1, with title of proceeding, contimuvng : , the undersighed, (by > lii* attorneys ) answering the petition of in the above- entitled proceeding: I. Denies the allegations contained in the paragraph of the petition num- bered II. Denies that he has any knowledge or information sufficient to form a belief as to the truth of any of the allegations contained in' the paragraph of the petition numbered ( or, of the allegation in the paragraph of the petition numbered that .'. (quotvng it). III. That he disputes the validity of the claim of the petitioner (or, the reasonableness of the amount thereof) by reason of the following facts: .... IV. That no money has come into his hands as such executor (or adminis- trator). . Attorneys for , eta. ■ Add verification as in Form No. 7 or 8. FORM NO. 70. Order for Payment of Funeral Expenses. Caption as in Form No. 1, with title of proceeding continuing: On reading and filing the petition of and the aflSdavi^ of , verified , 191. . ., showing due service of the citation issued upon said petition on , administrator (or executor) of the above-named decedent, verified , 191 .... and it appearing upon the return of said citation that , said executor {or administrator) has received moneys belonging to the said estate which are applicable to the payment of said for funeral expenses, and that said administrator ( or executor ) admits the validity of said claim and the reasonableness of the amount thereof, it is ' Directed and ordered that payment of the whole {or, a specified part) of said claim be made within 10 days of the date hereof. 1068 FORMS Nos. 71, 72 FORM NO: 71. Order Directing Disputed Claim for Fimeral Eicpenses to Be Eeard on Settle- ment of Aceoimt; or Dismissing Proceeding, Caption as in Form No. 1, toith title of proceeding, continuing-: On reading and filing the petition of , verified , 191 . . ; and the affidavit of , verified , 191..., showing due service of the citation issued upon said petition on , administrator ( or executor ) of the above-named decedent; and on the return thereof * the said executor {or ad- ministrator) having filed an answer disputing the validity of said claim {or, the reasonableness of the amount of said claim) [or, it appearing that no money has come into the hands of said executor {or administrator)] it is Ordered and Directed that *the said claim be heard upon the judicial set- tlement of the accounts of said executor {or administrator), [or, *that this proceeding be dismissed without costs and without prejudice to a fui'ther application or applications showing that since this dismissal said executor {or administrator) has received money belonging to said estate.] FORM NO. 72. Further Petition for Payment of Funeral Expenses. As in Form No. 67 to *, continuing : III. That on or about , 191... (more than 3 months since) an order was entered herein dismissing a proceeding by this petitioner for payment of said claim without prejudice to a further application, upon the ground that it appeared then that no money had come "into the hands of said executor ( or administrator ) . IV. That no answer was filed in said proceeding disputing said claim. V. That the petitioner believes that there are moneys in the hands of said executor {or administrator) applicable to the payment of petitioner's said claim, by reason of the following facts : ( state facts on which belief is iased) . VI. and VII. correspond to III. and IV. in Form No. 52, and prayer for relief is same. , Add verification as in Form No. 7 or 8, 1069 Nos. 73-75 FORMS FORM NO. 73., Peiition to Set Apwrt Exempt Property. Caption as in Form No. 1, with title of proceeding, and prat three paragraphs as in Form No. 9, oontinmng: II. That , the decedent above-named, died a resident of the County of , on the day of , 191... . ■ III. That letters of administration (or testamentary) on the estate of said decedent were granted by the Surrogate's (s') ■ Court of the County of to on the day of , 191 IV. That the petitioner is a surviving wife {or husband, or child) of said decedent, and as such is entitled to have set apart to him {or her) prop- erty of said decedent exempt to the petitioner, as prescribed by law, viz. ( describing property ) , of the value of $ ; and that said executor {or administrator) has failed so to set apart said property. V. That the name and post-ofSce address of the only person interested in this proceeding who is required to be cited on this application or concerning whom the Court is required to have information is said administrator {or executor ) , who resides at ; and that there are no other persons interested iii the application or proceeding. The petitioner therefore prays for a decree requiring said administrator {or executor) to set apart said property to the petitioner as prescribed by law; and, if it has been lost, injured or disposed of, to pay the value thereof or the amount of the injury thereto; and that said administrator {or executor) be cited to show cause why such a decree should not be made. Add verification as in Form No. 7. FORM NO. 74. Oitation on Application to Set Apart Exempt Property. Adapt from Form No. 43. FORM NO. 75. Decree To Set Apart Exempt Property. Oaption as in Form No. 2, with title of proceeding, contin/uing : On reading and filing the petition of , verified 191 . . . herein; and the afiidavit of , verified 1P70 FORMS No. 76 191.... showing due service of tlie citation issued upon said petition on , administrator {or executor) of estate of , the above-named decedent; and it appearing to the Surrogate's satisfaction that said administrator {or executor) has failed to set apart property for the petitioner as surviving husband {or widow, or child), as prescribed by law [r.nd that said property has been lost {or injured, or disposed of) by said administrator {or executor), and is of the value of $ .], it is Decreed that said administrator {or executor) set apart to the petitioner said property, viz {desoribing it) [or, that said administrator {or executor) personally pay to the petitioner the sum of $ , being the value of said property {or, the amount of the injury to said property ) ] . FORM NO. 76. Petition for Discovery of Withheld Property. Caption as in Form No. 1, with title of proceeding, and three first paragraphs as in Form No. 9, continuing: II. That , the above-named decedent, died on the day of . , , 191 . . . , a resident of the County of , and that letters of administration ( or testamentary ) on the estate of said decedent were granted to the petitioner by the Surrogate's (s') Court of the County of on the '...... day of , 191 ... . III. That to the petitioner's knowledge {or, on the petitioner's information and belief ) money or other personal property which should be delivered to the petitioner {or, included in an inventory or appraisal) is in the possession, under the control or within the knowledge or information of , who withholds the same from the petitioner {or, who refuses to, impart knowl- edge or information he has concerning the same or, to disclose {any other fact) which will aid the petitioner in making discovery of such property) as more fully appears by the afSdavit annexed hereto, and other written evidence annexed hereto, and from the following facts: {State facts on which petitioner's knowledge or information ami /belief is based.) IV. That the names and post-office addresses of all the persons interested in this proceeding who are required to be cited upon this application or concern- ing whom the Court is required to have information are: {State names and residences of person or persons who has or have possession, control, knowledge or information) ; and that there are no other persons than those mentioned interested in this application or proceeding. The petitioner therefore prays an inquiry respecting the matters set forth in this petition and that said {the respondent ) may be or- dered to attend the said inquiry and be examined accordingly, and to deliver the said property if in his control. Add verification as in Form No. 7 or 8: Annex any affidavit of facts or other written evidence. 1071 Nos. 77, 79 FORMS FORM NO. 77. Order for Discovery of Withheld Property. Caption as in Form No. 1, with title as in Form No. 76, continuing: On reading and filing the petition of herein, verified .,191. ., and the afiidavit of , verified , 191 . . , annexed thereto, and ; ( state any other written evi- dence accompanying petition) and it appearing to the Surrogate's satisfaction from said papers that there are reasonable grounds for an inquiry into the mat- ters set forth in said petition, it.ia . , . Ordered that do and he hereby is directed to appear before me forthwith ( or at o'clock in the noon of the day of , 191 . . ) to attend an inquiry, and to be examined accord- ingly, concerning money or other personal property which should be delivered to ,,, administrator (or executor) of the estate of , the above-named decedent, ( or should be included in an inventory or appraisal) ; and to deliver said money or property if in his control. ( Serve at any time hefore hearing, a obetified copy on, and pay or tender reg- ular witness fee to, each person named in order.) FORM NO. 78. Answer to Petition for Discovery of Assets. Caption as in Form No. 1, with title as in Form No. 76, continuing: i , the undersigned (by , his attorneys ) answering the petition Of ... ! , in the above- entitled proceeding: I. Denies that he has any knowledge concerning, or possession of, any prop- erty which belonged to ' ; , decedent above-named, In his lifetime. ....'.. or II. Alleges that he has title to (or tue right to possession of) all (or a stated part) of the property mentioned in said petition. (Conclude a^ in Form V^ 69.) FOKM NO. 79. Decree in Prooiedmg to Discover Assets. Caption as mi Form No. S, with title as in Form No. 76, continuing : On reading and filing the petition of ^ herein verified , 191 . . ; the affidavit of , annexed thereto, verified , 191..; (and any other written 1072 rORMS No. 8" evidence accompanymg petition) ; the order herein entered , 191 . . , the affidavit of , verified , 191 . . , showing due service thereof upon ; and the answer o? said , herein, verified , 191 • . ; and said having been duly sworn to answer truly all questions put to him touching the inquiry prayed for on said petition, and a hearing having been had and the issues raised by said answer having been heard and determined, it is Decreed that has title to [or the right to pos- session of] the following property {desoriiing it) ; and that has control thereof ; and that said be, and he hereby is, ordered to deliver said property to said FORM NO. 80. Petition for Direction as to Custody of Assets. Caption as in Form No. 1, with title of proceeding, and first three, pa/ragraplis as i/n Form No. 9, continuing: II. That the above-named decedent, died a resi- dent of the County of on the day of , 191... III. That letters of administration [or testamentary) on the esteite of said decedent were granted to and to ( add, the petitioner, if one of representatives petitions ) on the day of , 191 . . , by the Surrogate's ( s' ) Court of the County of , and that said resides at , and said at lY. . That the petitioner is a creditor of said decedent {or, a, person interested in said estate {stating hoto), or, one of said co-administrators {or co-execu- tors ) ] . V. That, as appears from the aflSdavit of , verified , 191 . . , hereto annexed, the said co-administrators {or co-executors) disagree respecting the custody of money (or other prop- erty) of said estate. VI. That the names and post-office addresses of all the persons interested in this proceeding who are required to be cited upon this application, or concern- ing whom the court is required to have Information have heretofore been given herein; and that there are no other persons than those mentioned inter- ested in this application or proceeding. The petitioner therefore prays an order requiring said co-administrators {or co-executors ) to show cause why the Surrogate should not give directions re- specting the custody of said money (or other property) of said estate. Add verification as in Form No. 7 or 8. Annex affidavit showing facts proving the disagreement respecting custody ' the character and value of the property, etc. N. T. E. & S.— 68. 1073 Nos. 81, 82 FORMS FORM NO. 81. Order to Show Cause as to Custody of Assets. Caption as in Form No. 2, loith title as in Form No. 80, continuing : On reading and filing the petition of ! , verified , 191.., herein ; and the afSdavit of , verified , 191 . . , annexed thereto ; and it appearing to the Surrogate's ( s' ) satisfaction therefrom that disagreement exists be- tween the co-administrators (or co-executors ) of the estate of , the above-named decedent, respecting the custody of money (or other property) of said estate, * it is Ordered that and , co-admin- istrators {or co-executors) of the estate of , the above- named decedent, show cause before me at .... o'clock in the noon of the .... day of . . . . , 191 .. , why I should not give directions in the premises. Let service of a copy of this order and of said petition and afiidavit on said and on or before o'clock in the noon of the day of , 191 . . , be sufficient service. FORM NO. 82. Order Directing Custody of Assets. Caption as in Form No. 1, with title as in Form No. 80, continuing : On reading the petition of ., verified , 191 . . , and the affidavit of verified , 191 . . , thereto annexed, both heretofore filed herein, and the order to show cause, en- tered herein on , 191. . ; and on reading and filing the affidavit of , verified , 191 . . , showing due service of said order, on and .v- ■ ■' the persons named therein; and after hearing the .parties on the return of said order, and it appearing to my satisfaction that disagreement exists, between the said and . . ; as ooadmiil- istrators {or co-executors) of the estate of ,. .^ the above- named decedent, and that I should give directions in the premises, it is Ordered and directed that ( specifying the money or property) of the pstateof ^ .^ ^ the above- named decedent, be deposited in (o safe place) in the Joint custody pf ' and coadministrators {or coexecutors) of said estate {or, subject to the joint order of the same persons) ; [or, that the money of said estate be deposited in {specifying safe iank or trust company) to the joint credit of the same persons; and to be drawn out upon their joint order! 1074 FORMS Nos. 83, 86 K)EM NO. 83. Application for Appointment of Appraisers. Caption da in Form No. 1, with title of proceeding, continuing: To the Surrogate's (s') Court of the County of ; I, , administrator ( or executor ) of the es- tate of i, , the above-named decedent, do hereby apply for an order appointing two disinterested appraisers to appraise the per- sonal property of said decedent.* Dated , 191... Administrator ( or Executor ) of the Estate of Bec'd. FORM no; 84. Application for Appointment of Other Appraisers. As in Form No. 83 to *, continuing : in addition to the appraisers appointed by order of this Court entered herein 191. ., by reason of the fact that some of the personal property of said decedent to be inventoried is in a different {or distant) place fropi that which said former appraisers were appointed to appraise, i. e., said personal property now to be appraised is at ,. . . Dated ,191.. FORM NO. 85. Order Appointing Appraisers. Caption as in Form No. 1, with title as vn Form No. 8S, continuing: On reading and filing the^ application herein of , as administrator [or executor) of the estate of the above-named decedent, dated , 191 . . , it is Ordered that and . . , two dis- interested persons, be and they hereby are appointed appraisers to appraise the personal property of the above-named decedent. FORM NO. 86. Order Appointing Other Appraisers. Adapt from Forms Nos. 84 and 85. 1075 Ncs. 87-89 FORMS FORM NO. 87. Appraiser's Oath. (To he inserted in the inventory so that no separate caption is needed.) 1, , residing at dO" solemnly swear that I will truly, honestly and impartially appFaiee the per- sonal property of • , the above-named decedent, ex- hibited to me, according to the best of my knowledge and ability. Jurat as in Form No. Jf. FORM NO. 88. Notice of Appraisement. Caption as in Form No. 1, with title as in Form No. 83, oontimiimg: To Legatees, or next of kin of the above-named decedent. Take notice that at .... o'clock in the noon of the , day of , 191 . . , appraisement will be made of the per- sonal property of , the above-named decedent. and a true and perfect inventory thereof made. Dated , 191. . Administrator {or. Executor) of the Estate of Decedent above-named. FORM NO. 89. Inventory. Caption as in Form No. 1, unth title of proceeding, continuing: Pursuant to the order of the Surrogate's Court of the County of entered herein , 191 . . , the undersigned appointed by said order to appraise the personal property of , the above-named decedent, do, in the presence of such of the parties interested as attend, esti- mate and appraise the property exhibited to us as follows: I. We have taken our oaths as follows: (Here insert oaths). II. We do set down each article separately with the value thereof in dollars and cents, distinctly, in figures opposite to the articles respectively, on the in- ventory of said property made by , administrator ( or ex- ticutor ) , of the estate of said decedent ; 1076 FORMS No. 89 III. We do particularly state in said inventory (1) All bonds, mortgages, notes and other securities for the payment of money, belonging to said decedent; (2) And all debts owing by said administrator {or executor) to said decedent (whether discharged by said decedent's will or not) ; With the name of the debtor in each security, the date, the sum originally payable, the amount due at decedent's death and the sum which in our judg- ment is collectible on each security; IV. We do particularly state all moneys belonging to said decedent which have come to the hands of said administrator {or executor) ; V. We do include and state in said inventory as property set off to said de- cedent's widow (husband or, minor child, or, minor children) the articles not deemed assets but set off to her (his or their) benefit. II. Value. Articles Other Than Those Set Off, Bonds, Securities, etc., Debts and Moneys III. (1) Bonds, Mortgages, Notes and Other Securities Name of Date. Sum Originally Am't Due at Sum Collectible. Debtor. Payable. Dec'd's Death. (2) Debts owing by Adm't'r {or Ex't'r) to Dee'd (whether discharged by Dec'd's Will or not) . IV. Moneys Belonging to Dec'd in Adm't'r's {or Ex't'r's) Hands. 1077 Nos. 90, 91 FORMS V. Property Set OflF to Dee'd's Widow (Husband, or, Minor Child, or, Minor Children. (1) {House keeping utensils, musical instruments, sewing machine and house- hold furniture used in wad about the house amd premises, fuel a/nd provisions, and decedent's clothing, in all not exceeding in vlJuc $500). (2) (The family Bible, family pictures and school-books, used by or in such family, amd books not exceeding in value $50, which were kept and used as part of the family library.) (3) {Domestic animals with their necessary food for 60. days, not exceeding in value $150.) (4) (Money or other personal property not exceeding in value $150.) In witness whereof we have made and signed said inventory in duplicate. Dated ,19 Appraiser. Appraiser. FORM NO. 90. Administrator's (or Executor's) Oath to Inventory. (To be indorsed upon or annexed tia inventory on its return by appraisers.) As in Form No. 3, continuing: I am administrator ( or executor ) of the estate of , deceased; the annexed (or foregoing) inventory is in all respects just and true; it contains a true statement of all the personal property of said decedent which has come to my knowledge, and particularly of all money belonging to said decedent, and of all just claims of said decedent against me, according to the best of my knowledge. FORM NO. 91. Petition to Compel Inventory. Caption as in Form No. 1, with title of proceeding and three first pa/ragraphs as in Form, No, 9, continuing : II. That , the decedent above-named, died a resident of the County of , on the day of , 191. . ; and that letters of administration (or testamentary) were issued on said decedent's estate on the day of 1078 FORMS No. 92 191 . . , to and , who duly qualified on the day of , 191 . . . III. That the petitioner is a creditor [or person interested in the estate of, or a co-administrator {or co-executor) of the estate of] said decedent. IV. That three months have passed since the qualification of , as said administrator {or executor), and that said administrator {or executor) has failed to return an inventory {or a sufficient inventory) as prescribed by law. V. That the names and post-office addresses of all the persons interested in this proceeding who are required to be cited upon this application or concerning whom the Court is required to have information are {give names and addresses of administrators or executors who have failed to file inventory) ; and that there are no other persons than those mentioned interested in this application or proceeding. The petitioner therefore prays an order requiring said , administrator (or executor) of the estate of de- ceased, to return an inventory {or a further inventory) of the personal prop- erty of said decedent; or, in default thereof, to show cause at a time and place to be specified in said order why he should not be removed or punished. Add verification as in Form No. 7 or 8. FORM NO. 92. Order Compelling Inventory. Caption as in Form No. 1, with title of proceeding, continuing: On reading and filing the petition of , herein, veri- fied , 191 . . ; and it appearing to the Surrogate's satis- faction that , administrator {or executor) of , the above-named decedent, is in default in re- turning an inventory ( or a further inventory ) of the personal property of said decedent, according to law, it is Ordered, that said , as administrator ( or execu- tor) of the estate of , deceased, be and he hereby is required to return an inventory {or a further inventory) of the personal property of said decedent, or, in default thereof, show cause at o'clock In the noon of the day of , 191. ., why he should not be removed or punished. 1079 Nofi. 93, 94 FORMS FORM NO. 93. Petition for Advice as to Sale of Personalty. Caption as in Form No. 1, with title of proceedmg, and three first paragraphs as in Form No. 9, contimiing: II. That , the decedent above-named, died on , 19 . . . . , a resident of the County of ; that letters of administration ( o;- testamentary ) were granted to the petitioner by the Surrogate's ( s' ) Court of the County of on , 191 . . ; and that the petitioner duly quali- fied as such administrator (or executor) and is acting as such. III. Tliat the assets of said estate consist of, among other things, personal property, viz., (descriie) which it is necessary (or proper) to sell for the following reasons ( state reasons ) . IV. That the value of said personal property is uncertain (or is dependent upon the time and manner of sale thereof ) for the following reasons : ( state reasons ) . V. That the names and post-olEce addresses of all the persons interested in the proceeding who are required to be cited upon this application or concerning whom the court is required to have information are ( give names amd addresses ) ; and that there are no other persons than those mentioned interested in -this application or proceeding. The petitioner therefore prays for an order directing who shall have notice of this proceeding or application and in what manner such notice shall be given; and for such advice and direction as shall seem for the best interest of the parties. Add verification as in Form 7 or 8. FORM NO. 94. Order for Notice of Application for Advice os to Sale of Personalty. Caption and title as in Form No. 93, continuing: On reading and filing the petition of , herein, verified , 191. ., it is Ordered, that all persons interested in this application as listed in said petition (or and and ) be given notice of said application by (e. g., serving on, or mailing to each of said persons a copy of said petition and this order ) ; and it is further Ordered, that said persons be and they hereby are required to show cause be- fore me at o'clock in the noon of the .... day of 191 . . , why the prayer of said petition should not be granted. 1080 FORMS Nos. 95, 96 FORM NO. 95. Order of Advice and Direction as to Sale of Personalty. Caption amd title as in Form No. 93, continuing: On reading the petition of verified , 191 . . , heretofore filed herein ; the order entered herein , 191 . . ; and on reading and filing the a£Sdavit of , verified , 191 . . , showing due service of copies of said petition and order on and and ; and after inquiring into the facts and circumstances (and hearing the opinions of witnesses) as to the value of the property described in said petition and the best manner and time of sale thereof ; and it appearing that it is for the best interest of the par- ties that the advice and direction hereinafter specified should he given, it is Ordered, {here state advice and direction given by Surrogate). FORM NO. 96. Notice of Application iy Tempora/ry Administrator for Authorization to Sell Personalty. Caption as in Form No. 1, with title of proceeding, continuing : Take notice that upon the annexed petition of , veri- fied ., 191. ., the undersigned will apply to the Surrogate of the County of , at a Special Term of the Surrogate's Court of said County to be held at , on , , 191 .. , a,t .......... o'clock in the noon, or as soon thereafter as counsel can be heard, for an order authorizing , as temporary administrator of the estate of . ,.....■. , deceased {or absentee) to sell, after ap- praisal, the following personal property of said decedent {or absentee). Dated , 191. . Attorney for Oflf. & P. O. Address, etc. To: 1081 Nos. 97, 98 PORMS FORM NO. 97. Petition by Temporary Administrator for Authorization to Sell Personalty. Caption as in Form No. 1, with title of proceeding, and three first paragraphs as in Form No. 9, continuing: ; and "was by order ( or decree ) of the Surrogate's ( s' ) Court of the County of , entered , 191 .. , ap- pointed temporary administrator of the estate of ,, who resided at , and who is dead (or absent) , and has dulj qualified, and is acting, as such. II. That included in said estate is personal property, viz ■ .. {specify it), which has been ap- praised at $ , , as appears f i;om ^ . . III. That it is necessary to sell said property for the benefit of said estate for the following reasons : , , IV. That the names and post-oflioe addresses of all the persons who have appeared in the above propeeding and interested in this proceeding who are re- quired to be cited upon this application or concerning whom the Court is re- quired to have information are as follows : V. That there are no persons other than those mentioned interested in this application or proceeding. (VI. That the safety of the estate requires that the statutory notice, of the relief hereinafter asked, of 10 or more days, be shortened, by reason of the fol- lowing facts : ) The petitioner therefore prays for an order authorizing the petitioner to sell, after appraisal, the following personal property of , deceased {or, absentee) : {specifying property) ; [and that the statutory notice required to be given of this application be shortened to not less than 2 days]. Add verification as in Form No. 7. FORM NO. 98. Order Shortening Notice of Application iy Temporary Administrator for Au- thorization to Sell Personalty. Caption and title as in Form 96, continuing: On reading and filing the petition of verified • • ) 191 • . , in the above-entitled proceeding and it appear- ing to the Surrogate's satisfaction that the safety of the estate of decedent {or absentee) above-named requires that the usual notice of not less than 10 days, of an application by a temporary administrator for authorization to sell personal property of his decedent {or absentee), should be shortened, it is, on motion of , attorneys for said Ordered that and 1082 I-'ORMS Nos. 99, 100 anil ; and show tause before the Surrogate of the County of at a Special term of the Surrogate's Court of the County of i , to be held at , at .... o'clock In the noon of : . ■ • , 191 .. , or as soon thereafter as counsel can be heard, why an order should not be made authorizing the temporary adminis- trator of , decedent (or absentee) above- named, to sell, after appraisal, the personal property specified in said petition. Let service of a copy of this order and of said petition on the persons named in said petition on or before be sufficient (at least 2 days' notice needed). FORM NO. 99. Order Authoriming Temporary Administrator to Sell Personalty, Caption and title as in Form No. 96, continuing : On reading and filing the notice of application [or order to show causej dated , 191 . . , and petition thereto annexed, verified , 191.., of ; , as temporary administrator of the estate of , the above decedent {or absentee), and the affidavit of verified , 191. ., showing due service of said notice [or order to show cause] on and , all the persons entitled to notice of said appli- cation; and it appearing to the Surrogate necessary to sell, for the benefit of said estate, the personal property hereinafter specified; and said property having been duly appraised at $ , it is Ordered, that , as temporary administrator of the estate of , the above named decedent ( or absentee ) authorized to sell the following personal property of said decedent (or absentee) : ( specify property ) . FORM NO. 100. Petition for Order Designating Newspapers in which to Advertise for Claims. As in Form No. 1, continuing: the Petition of ' as of Deceased for an order to designate newspapers in which to advertise for claims against the estate of said Deceased. To the Surrogate of the County of I, as 1083 Ncs. 101, 102 FORMS of deceased, hereby apply for an order of the Surrogate of the County of , designating the news- papers in which to publish Notice to Creditoi's of said deceased, to present their claims, according to law. Said deceased at the time of h death, resided at • ■ • County of t and was engaged in ; Dated, , 191. . . {Bignature of petitioner) ■ FORM NO. 101. Order Designating Newspapers in whAch to Advertise for Cla/vnis. Caption as in Form No. 100, continuing: On the petition of as of deceased, dated the day of ..., 191.., Ordered the said insert a notice once in each week, for six months, in the newspaper published in the County of , called the , requiring all persons having claims agf nst said deces^sed, to present the same, with vouchers thereof, to the applicant at. on or before the day of next. Dated, 191... Surrogate. FOEM NO, 10^. . Notice ;t0 Creditors to. Present Claims.. In Pursuance of an order of the Hon :'. ." ............... Surrogate of the County of , NOTICE is hereby given, according to law, to all persons having claims against , late of the , deceased, to present the same {or that they are required to exhibit the same), with the vouchers there- of, to the subscriber, at his place of doing business, at the office of his attorney (s) , Noj St., , New York, on or before the day of . . . ; ; next. Dated, , 191... 1084 i''OKMS Nos. 103, 104 FORM XO. 103. Form of Presenting Claim. Administrator {or Executor) of ^Estate of Deceased, To , Dr. (Sere state items of claim and interest.) Commencement of affidavit as in Form No. 4> oontinuing: The annexed statement is a full and correct statement of a claim due de- ponent as therein set forth; said claim is justly due deponent; no payments have been thereon save as therein stated; no part thereof is secured by any mortgage or judgment; there are no offsets against the same, to the knowl- edge of deponent. Jurat as in Form No. Jf. FORM NO. 104. Application for Authorization to Compromise Claim or Debt, or Sale of Stale Debt, etc. Caption as in Form No. 1, with title of proceeding, and three first paragraphs as in Form No. 9, continuing : II. That , the above named decedent, died a resident of the County of on the day of , 191. ., intestate (or testate, leaving a last will and testament and codicil which were duly admitted to probate by the Surro- gate of the County of , on the day of , 191 . . ) and that letters of administration (or testamentary) were duly granted to the petitioner by the Surrogate's (s') Court of the County of on the day of , 191... III. That the petitioner duly qualified as such Administrator (or Executor) and is now acting as such [and t}t my proceedings as such administrator, pursviant to the order of the Surrogate's Court of the County of '• ■ ■ , entered .> 191. ,, directing me to mortgage (or lease, or sell) the whole (or part) of the real property (or interest therein) of said decedent: I. I have fully executed said order as follows: I duly executed and filed with the Surrogate of the County of ; , on '...., 191. ., my bond as provided in section 2708 of the Code of Civil Procedure lor, I have filed no bond as required by section 2708 of the Code of Civil Procedure because said order directed the proceeds of said sale or mortgage to be paid to (a hank or trust company ) to my credit, sub- ject to the further order of the Court]. II. I executed said order by ( state ■what was done ) . III. I made a report of my proceedings thereunder to the Surrogate of the County of , who, by order entered , 191. ., confirmed (or rejected) said mortgage (or lease, or sale), [or extended said order to other parcels, or required a re-execution of said order upon the terms and conditions directed ; or, relieved said , purchaser as aforesaid, from his purchase upon the terms required in said order]. IV. (If a re-execution of the order of mortgage, lease or sale was ordered, state proceedings thereunder). V. I have, therefore, on hand (or on deposit with hank pursuant to Court's order) the sum of $ as the amount of the proceeds of said mortgage, lease or sale, subject to $ ., my expenses incurred thereunder, to be ac- counted for in connection with the judicial settlement of my account as ad- ministrator (or executor) of the estate of said decedent, to be disposed of as justice shall require. Add verification aa in Form No. 7 or 8. 1094 FORMS No. 120 FORM NO. 120. Petition for Settlement of Limited AdministratoT's {or Executor's) Accowat. As in Form No. 1 to *, continuing: the Judicial Settlement of the Account of Proceedings of As Limited Administrator ( or Executor ) of Petition. Deceased. Three first paragraphs as in Form No. 9, continuing : II. That limited letters of administration upon the goods, chattels and credits tor testamentary upon the will] of deceased, who at the time of h . . death was a resident of were granted to your petitioner . . by the Surrogates' Court of County, New York, on the day of 19... III. That, pursuant to said letters, petitioner instituted in the Court, an action granted to him by special provision of law; that said action has been compromised for the sum of $ (or that judgment in said action has been obtained in the amount of $ ) ; that the proceeds of said compromise [or judgment] are ready to be paid over; that said recovery is not a part of the estate of said decedent but goes by special provision of law to the following persons:— NAME RELATIONSHIP P. O. ADDRESS 1 IV. That the names and post-ofSce addresses of all creditors or persons claiming to be creditors of the decedent (except such as by vouchers filed with the account appear to have been paid), of the sureties on the official bond of your widow petitioner.., of the , of the decedent, of all the next of kin of the de- cedent (except such as by vouchers and releases duly executed and filed appear to have been paid), and of all other necessary and proper parties, are as fol- lows: 1095 No. 120 FORMS 2 NAME NATURE OF INTEREST POST-OFFICE ADDRESS 3 V. That there are no other persons than those above mentioned interested in this proceeding, and that all of said above mentioned persons are of full age and sound mind, Exoept who infant .... over the age of fourteen years,* And who Infant .... under the age of fourteen years.S VI. That the estate herein ainounts to , than five thousand dollars. less yil. That your petitioner is desirous of rendering to, said Surrogates' Court of County an account of his proceedings, relating to said fund and therefore pray that his account be judicially settled, and that the persons above mentioned and all necessary and proper persons be cited to show cause [or that such notice, in such manner and to such persons as the Surrogate deem* proper may be given] why such settlement should not be had and for such other and further relief as the Court may deem just and proper, and that an ordei; be granted according to law directing the service of the citation [or notice] personally without the State or, by publication upon the persons herein- before stated to be non-residents of the State or otherwise. Date, ^.. ...19..'.. Petitioner. Add verification as in Form No. 7. , , . , ; , , 1 In every case where it appears that there is no heir at law or next of kin, as the case may be; or that it is not known whether or not there be such; or when all the parties interested are nonresident aliens, the citation shall be issued to the attorney-general of the State ( § 2524 ) . 2 If any persons, or their names, residences and post-oflBce addresses be im- known, the petition must substantially set forth the facts which show what efforts have been made to ascertain the same and a general description of the parties, showing tfieir connection with the decedent and their interest in the mat- ter (§2521). 3 State, whether or not the infant has a general or testamentary guardian, whether or not his father, or, if he be dead his mother, is living, giving the pofet-office addresses of such persons, and the name and post-office address of the person with whom such infant resides (§ 2521). ■ * Erase unnecessary allegations. . • ' . 6 If any person, named be an adjudged, or an alleged, incompetent, state the facts regarding his incompetency, and the name and post-office address of a rela- tive or friend having an interest in his welfare; also the name and post-office address of the committee, if any, and the name and post-office address of the person or institution having the care or custody of the incompetent ( § 2521 ) 1096 FORMS Nos. 121, 122 FORM NO. 121. A.oo., 191 . . I instituted an action in the Court, granted to me by special provision of law, entitled vs. ; that I have obtained a compromise [or judgment] in said action in the sum of $ " Schedule A, hereunto annexed, contains an itemized statement of all the prop- erty which has come into my possession lor, which is ready to be paid over] as a result of said compromise or judgment. No other amount than that herein set forth, has come to my possession or knowledge. Schedule B, hereunto annexed, contains a statement of all moneys paid or to be paid by me for funeral and other necessary expenses of said action or settle- ment or for said estate, together with the reasons and object of such expendi- tures. Schedule 0, hereunto annexed, contains a statement of all other facts affect- ing administration of said estate, my right, and those of others interested there- in. I charge myself as follows: With amount of Schedule A $ I credit myself as follows: With amount of Schedule B Leaving a balance of $ to be distributed to those entitled thereto, subject to the deductions of the amount of my commissions and the expenses of this accounting. The said Schedules, which are severally signed by me are part of this account. Add affidavit as i/n Form No. ISO. FORM NO. 122. Decree on Judicial Settlement of Limited Administrator's {or Executor's) Account. J ilnpi from Form No. 131. 1097 No. 123 FORMS FORM NO. 123. Voluntary Petition for Settlement of Account. , As in Form N\o. 1, continwmg: the Petition of ' to Render and Settle Account as of Deceased. Three first paragraphs as in Form No. 9, continuing: n. That Letters lately residing at , in the • County of , deceased, were granted by this Court to your Petitioner. . on the , . day of , 191 . . , and that more than has expired since the issuance of said letters, and that a notice requiring all persons having claims against said deceased to exhibit the same, with the vouchers thereof, to petitioner . . on or before the day of , 191 . . , has been duly published according to la.w. III. That so far as can be ascertained with due diligence, the names and post- office addresses of all persons interested in this proceeding who are required to be cited, or concerning whom the Court is required to have information, are as follows : NAMES P. O. ADDRESSES That all the above are of full age and of sound mind, except .... That there are no .other persons than, those above mentioned interested in this proceeding. Your Petitioner . . therefore prays that accoimt may be judicially settled, and that the persons above named may be cited to show cause why such settlement should not be had. Dated the day of , 191. . Petitioner. Add verification as vii Form No. 7, or 8. Note: The petition for voluntary settlement of an intermediate account can readily be adapted from the above, as the same persons are cited and the same proceedings are had. 1098 FORMS FORM NO. 124. Petition to Compel Account, As in Form No. 1, contininng: Nos. 124, 125 the Petition of ' to Compel to Render and Settle Account as of Deceased. Three first paragraphs as in Form No. 9, continuing: That your petitioner , of , deceased, lately residing at That Letters on the estate of said deceased were granted by the Surrogate of the County of to ...':.'. That more than '. has expired since appointment, and the said has not Your petitioner therefore prays that he cited to show cause why he should not render and settle his account as as aforesaid. Petitioner. Add verification as in Form No. 7 or 8. FORM NO. 125. Account. In the Matter of the Judicial Settlement of the " Account of Proceedings of Deceased. To the Surrogates' Court of the County of Account of FroeeedingB. ".'. of the County of , do render the following account of proceedings as of deceased : On the day of > 19 ... . Letters were issued to ; . . On the day of , 1099 Ko. 125 FOEMS 19 ... . caused an inventory of the personal, estate of the deceased to be filed in this oiBoe, which personal estate therein set forth amounts, by appraise- ment by the appraisers duly appointed, to $ , Schedule A, hereto annexed, contains a statement of all the property con- tained in said Inventory, sold by ,, . , at public or private sale, with the prices and manner of sale ; which sales were fairly made by at the best prices that could then be had, with due diligence, as then believed ; it also contains a statement of all the debts due the said estate and mentioned in said Inventory, which have been col- lected, and also of all interest or moneys received by for which legally accountable. Schedule B, hereto annexed, cpntains a statement of all debts in said Inven- tory mentioned, not collected or collectible by together with the reasons why the same have not been collected and are not collectible; and also a statement of the articles of personal property mentioned in said Inven- tory unsold, and the reasons of the same being unsold, and their appraised value; and also a statement of all property mentioned therein lost by acoi- deutj, without any wilful default or negligence, the cause of its loss and ap- praised value. No other assets than those in said Inventory, or herein ^et forth, have come to possession or knowledge, and a,ll the ijicroase or decrease in the value of any assets of said deceased is allowed or charged in said Schedules A and B. Schedule C, hereto annexed, contains a statement of all moneys paid by for funeral and other necessary expenses for said estate, to- gether with the reasons and object of such expenditure. On or about the day of ■ • . . in the year 19 .... , caused a notice for claimants to present their claims against the said estate to within the period fixed by law, and at a certain place therein specified to be published in two news- papers, according to law, for six months, pursuant to an order of the Surro- gate of thfe County of ; to which order, notice and due proof of publication herewith filed, refer as part of this account. Schedule D, hereto annexed, contains a statement of all the claims of credi- tors, presented to and allowed by or disputed by and for which judgment or decree has been rendered against together with the names of the claimants, the general nature of the claim, its amount, and the time of the rendition of the judgment; it also contains a statement of all moneys paid by . . ; to the creditors of the ■deceased, and their names, and the time of such payment. Schedule E, hereto annexed, contains a statement of all moneys paid to the legatees, widow, or next of kin of the deceased. Schedule F, hereto annexed, contains the names of all persons entitled as liusband, widow, legatee, or next of kin of the deceased, to a share of estate, or fund, with their Post Ofiice addresses, degree of rela- tionship, and a statement of which of them are minors and whether they have any father, mother or guardian, and if so, their names and Post Office ad- dresses to the best of knowledge,, information and belief. Schedule G, hereto annexed, contains a statement of all other facts ?.flecting 1100 FORMS No. 126 administration of said estate or fund, rights tnd those of others interested therein. charge as follows: With amount as shown by Exhibit A. credit as follows : With amount of Loss on sales, as per Schedule B, $ " Debts not collected, as per do., " Schedule C, - - Schedule D, - Schedule E, - - - - Leaving a 'balance of - - $ to he distributed to those entitled thereto, subject to the deductions of the- amount of commissions, and the expetises of this accounting. The said Schedules, which we severally signed by are part of this account. Note: A voluntary, intermediate account, whether judicial settlement of it is sought or not, can readily be adopted from the above; and any compulsory account, as well. Accounts of all kinds of administrators are like the above- save for changes in verbiage. FORM NO. 126. Oath to Account. Caption and title of proceeding, continuing: State of New York, J County of .... ( of deceased; being duly sworn, say that the charges made in the fore- going account of proceedings and schedules annexed, for moneys paid by to creditors, legatees and next of km, and for necessary expenses, are correct, that have been charged therein all the interest for moneys received by and embraced in said account, for which a legally accountable;. that the moneys stated in said account as collected were all that were dollecti- ble, acdording to the best of ;... knoWledgfe, information and belief; that the allowances in said decrease in value of any assets, and charges therein, for the increase in such value, are correctly made; and that do not know of any error in said account or anything omitted therefrom whieU may in anywise prejudice the rights of any party interested in said estate or fund ; and that said account contains, to the best of knowledge and belief, a full and true statement of all receipts and dis- bursemehts on' account of said estate or fund, and of all money and other property belonging to said estate or fund which have come into 1101 No. 127 FORMS hands, or which have been received by any other person for -or by or by order or authority for use, and that do not know of any error or omis- sion in the account to the prejudice of any creditor of or person interested in said estate or fund. Sworn before me this day of X9.... FORM NO. 127. Citation on VoUmta/ry Aoootmtimg. The People of the State of New York Bt the Graob of God, Fbeb and Independent, To SEND GREETING: Whereas, , who reside., at No in , has pre- sented Account as of , deceased, lately residing at No , in , County of , City of and State of New York, and a petition praying that account may be judicially settled; Now, therefore, you and each of you are hereby cited to show cause before our Surrogate's Court of the County of to be held at in the County of ., ,. . ., on the day of , 191 ... , at ten o'clock in the forenoon, why such settlement should not be had. In Testimony Whereof, we have oausefi the Seal of our said Surrogate's Court to be hereunto affixed. Witness, Hon , , Surrogate of our said County, at .....,.,in the said County, the day of ... 191.... Clerk of the Surrogate's Court. 1102 FORMS Nos. 128, 129 FORM NO. 128. Citation on Compulsory Accounting. The People of the State of New York, Bt the Gbace of God, Fbee and Independent. To SEND GREETING; Whereas, , who reside at No , in , City of , has presented a petition praying for the judicial settlement of the Account of as of , deceased, lately residing at No , in , County of . . . , City of and State of New York ; Now, therefore, you and each of you are cited to show cause before our Sur- rogate's Court of the County of , to be held in in the County of , on the day of . . .i , at 10 o'clock in the forenoon, why you and each of you should not render and settle your account as such as aforesaid. In Testimony Whereof, we have caused the Seal of our said Surrogate's Court to be hereunto afibced. Witness, Hon , Surrogate of our said County, at , in the said County, on the day of , 191 .... Clerk of the Surrogate's Court. FORM NO. 129. Wadver of Citation and Consent to Settlement of Account. Caption as in Form No. 1, with title of proceeding, continuing: the undersigned, being of full age, heir and next of kin of , deceased, named in the petition herein, do hereby appear in person and waive the issuance and seryice of a citation in the above entitled matter, and consent that the account of , as of deceased, as presented, be judicially settled and that said matt^ proceed to a decree without further notice to me. Add acknowledgment as in Form i'o. 5. 1103 Adapt from Form No. Kos. 136, 131 FORMS FORM NO. 130. Ohjictiohs to Account, FORM NO. 131. Decree Settling Account, ■Caption as in Form No. 2, with title of Proceeding, continuing: of , deceased, having on the- day of , 191 . . .', presented account and a petition praying that the same may be judicially settled, and more than Slaving expired since the issuance of Letters and a notice requiring, all persons having claims against deceased to exhibit the same, with the vouchers thereof, on or before the ............ day of 19 , having been duly published according to law; And the Court having obtained jurisdiction of all the necessary and proper parties to this proceeding; And the Surrogate, having examined the said account and found the same correct, DOTH ORDER,' ADJUDGE AND DECREE, that the said account be and the same is hereby judicially settled. The following is a StJMMARY STATEMENT of the said Account as judicially settled nia,de and recorded pursuant to the Statute in such case made and pro- vided, that is to say: The said charged with The Amount of Schedule A, - - - Increase as shown by Schedule A, - Total, The said credited By amount of Loss on Sales, as per Schediile B, - - " Debts not collected, as per Schedule B, - Schedule C, - - - " Schedule D, - - - " Schedule E, ... Leaving a balance of $ Dollars in the hands of said with which sum hereby charged. 1104 FOEMS No. 131 And it is hereby further ORDERED, ADJUDGED and DECREED that said do and hereby ordered and directed to pay out and dispose of the said balance so remaining in hands as aforesaid as follows: That do retain the sum of Dollars ( $ ) as and for lawful commission to which entitled on this accounting. That do retain further the sum of . '. Dollars ($ ), which sum is hereby allowed to as and for reasonable Costs, Counsel Fees and other Expenses in this proceeding. That do then pay unto Note: The accounting decree may provide: (1) For the disposition of funds in a representative's hands fronv the mort- gage, lease or sale of the decedent's real estate, or interest therein, for the purposes specified in § 2703 C. C. P.— See C. C. P. § 2711; (2) For retention of sufficient funds to meet an undetermined claim arising in a proceeding mentioned in the last paragraph or otherwise, — see C. C. P. §§ 2713 and 2737; (3) For awarding relief to a husband, wife or minor child as to set off of exempt property, — see C. C. P. § 2735; (4) For delivery of an unsold chattel, assignment of an uncollected demand or other personal property to a party entitled in lieu of its money value, — see C. C. P. § 2736; ( 5 ) For adjustment of advancements, — see C. C. P. § 2738 ; (6) For payment of an infant's legacy or share,- — see C. 0. P. § 2739; (7) For payment of the legacy or share of a person either who is unknown (C. C. P. § 2740), or whose whereabouts are unknown (C. C. P. § 2741) ; ( 8 ) For revocation of the accountant's letters or appointment, or resigna- tion,— see C. C. P. § 2572; (9) For discharge of the accotintant's bond and sureties, — see C. C. P. § 2580. N. Y. E. & S.— 70. 1105 No. 132 FORMS FORM NO. 132. , ,,, Bills of Costs On Aceountmg. Caption as in Form NOi 1, with title of proceeding, continuing: COSTS DISBURSEMENTS Costs pursuant to Section For Serving Citation on 2746 of the Code of parties $ Civil Procedure, viz : " Publication Citation, Contest - No Contest .... " Publication Citation, Days occupied In the trial or hearing, less one " Referee's Pees Days necessarily occupied " Stenographer's Fees In preparing for trial " Afladavits and Acknowl- or hearing edgments - Motion for new trial " Postage " Certified Copies Orders Additional allowance to ac- " Certified Copy Decree counting party under " Satisfaction of Decree Section 2747, Code of " Certificate of Filing Civil Procedure, viz. : Satisfactions - Days necessarily occupied " , Necessary Copies in preparing account of papers - . . and in drawing, enter- ing and executing de- cree Totar Costs and Allowances Disbursements - - - " Attendance of Witnesses Total, ' Total, $ $ State of New York, County of ,. ■■\- being duly sworn, doth depose and say, that he is Attorney and Counsel for in the above-entitled proceedings ; that the foregoing dis- bursements have been' actually- made or will be necessarily incurred therein, and that such disbursements are correctly stated and are for reasonable and neces- sary expenses in this proceeding. -' -J .''• Deponent further says that the days stated in the foregoing Bill of Costs to have been occupied, as therein specified, were actually, substantially and neces- sarily so occupied and employed in this proceeding by deponent, and that the witnesses above named actually attended this Court the number of days above stated. That no compensation has been paid or given out of the funds of the estate of the said deceased for or on aecoimt of any services in the foregoing Bill of Costs specified. Subscribed and sworn this day ) of 191 ... C Notary Puhlio. 1106 FORMS No. 133 FORM NO. 133. General Form of Will. I, , of the County of , State of , being of sound and disposing memory, but mindful of the uncertainty of life, do make, publish and declare the following as and for my last will and testament: — To Pay Debts and Funeral Expenses. First: I direct my executor (s), hereinafter named, to pay my just debts and funeral expenses as soon after my death as practicable. Specific Legacy. Second: I give and bequeath to my nephew, John J. Johnston, my gold watch which has my initials on it. Demonstrative Legacy. Third: I give and bequeath to my niece, Jennie Johnston, the sum of $500 payable out of the proceeds of the following bond: {specifying a particular ioTid). General Legacy. Fourth: I give and bequeath to my sister, Janette Johnston, the sum of $1000. Bequest to Wife in Lieu of Dower. Fifth: I give and bequeath to my wife the simi of $200,000. This provision for my wife is to be in lieu of all right of dower in my estate. Residuary Bequest and Devise in Trust for Two Lives. Sixth: All the rest, residue and remainder of my estate, both real and personal, oif every kind and description, and wheresoever situated, which shall belong to me or be subject to my disposal at the time of my death, I give, devise and bequeath to my said executors, in trust, nevertheless, to have and to hold the same to them and the survivor of them, or such of them as ma}' qualify, and their successors or successor, and to /divide the same into four equal parts and( invest and keep invested and reinvest the same, and to receive the income and profits therefrom, during the natural lives of the two youngest of my grandchildren living at the date of my death, and the survivor of them, and to apply the income of each of said shares to the use of each of my four children, viz , , and ; and upon the death of the survivor of said my two young- est grandchildren, to pay and deliver over the principal of each part to each of my said four children, to each one the part originally set apart for him or her. If any child of mine die before the termination of the trust in this paragraph created, leaving issue him or her surviving, then to apply the in- come of the share of such dead child to the use of such issue in equal shares; or if any child of mine so dying leave no issue him or her surviving, then to apply the net income of such sliare to the use of the survivors of my said children and the living issue of every child of mine who shall have previously died leaving issue, in equal shares per stirpes and not per capita, such issue of any deceased child of mine taking by representation only the share which such deceased child would have taken if living. Po^oer to Executors: (A) To Sell Realty. 1107 No. 133 rOB.MS Seventh: I hereby authorize my said Executors or such of them as shall qualify to sell, at such prices and upon, such terms of credit or otherwise, as they shall think proper, all or any of my real estate, at public or private sale, and to give suflBcient deeds therefor; and to lease any real estate for terms not exceeding twenty-one years from the date of the lease upon such rents, terms and conditions as they see fit. (B) To Wind Up Partnership. I give unto my said executor full power to manage, close and wind up my partnership business and affairs and empower him to act as fully as I can under the Articles of Copartnership of my said partnership. (C) To Retain Investments. I direct that my said executors and trustees may in their discretion retain and hold as long as they see fit as part of the trust funds hereby created any bonds, stocks or other securities or property which may belong to me at my death. Interest on Legacies to Be Paid from Death. Eighth: Interest on all money legacies shall be paid at % per annum from the time of my death; and dividends on all legacies of corporate st6ck shall be paid the legatees thereof Semi-annually: until the principal of said legacies is paid or delivered. Expenses of Defending Will from Attack Payable from Estate. Ninth: I direct that any expenses incurred by my said executors, or such of them as may qualify, the successors or successor, survivors or survivor, of them, in defending any contest in or concerning this will or its provisions, shall be paid from my estate. Appointment of Executors, Trustees and Oua/rdiams. Tenth : I nominate, constitute and appoint and , Executors of and Trustees vmder this my last Will and Testament; and my beloved wife guardian of the person and estate of each child of mine who is ill! infant at the time of mp death. lixemptwf) Hame from, Giving Security. | Eleventh: I expressly declare that no person appointed Executor, Trustee or Guardian by this Will shall either give or be required to give any bond or se- curity for the performance of his or her duty as such. Revocation of Prior Wills or Codicils. Twelfth: I revoke any will or codicil heretofore by me at any time made. Testimonium Olwuse. In witness whereof I have to this my last Will and Testament, consisting of pages, set my haiid and affixed my seal, this day of , nineteen hundred and (LS.) U08 FORMS Nos. 134, 135 FORM NO. 134. General Form of Codicil. I, do make and publish this (first) Codicil to my last Will and Testament bearing date the day of , 191 .. , as follows : In all other respects except as herein modified I do hereby ratify my said last Will and Testament ( and all prior codicils thereto ) . In Witness Whereof I have to this my first codicil ( consisting of pages) to my said last Will and Testament set my hand and affixed my seal, this day of nineteen hundred and FORM NO. 135. Attestation Clause to Will or Codicil. ,(L.s.; tnie foregoing instrument, consisting of typewritten ( or manuscript, or engrossed) pages was, in the presence of us and of each of us, * subscribed and sealed at the end thereof by ; , the testator {or testatrix) therein named [or * was acknowledged by , the testator {or testatrix) therein named, to have been subscribed and sealed by him {or her) at the end thereof], who, at the time of making such sub- scription [or, acknowledging such subscription] declared and published the instrument so subscribed [or, acknowledged] by him {or, her) to be his {or, her) last will and testament [or, a {«■ 9-, first) codicil to his {or, her) last will and testament], and requested us and each of us to sign our names as witnesses at the end of said will {or, codicil) ; and we, thereupon, at said testator's {or, testatrix') request, and in his {or her) presence, and in the presence of each other, have hereunto subscribed our names as witnesses the day and year last above written. residing at residing at 1109 Nos. 136, 137 FORMS FORM NO. 136. Petition for Order to Open Safe to Discover Will. As in Form No^ 1, continuing: the Application for a Seareli of a Safe" Deposit Box for the Will of Deceased. Three first paragraphs as in Form No. 9, continuing: ; and is ( e. jr., a son ) of II. That the said died at on the day of , a resident of the County of III. That the said deceased had a private safe in the vault of the Safe Deposit Company, a corporation doing business in the County of IV. That petitioner believes that said deceased may have left a Will in the said private safe and requests that an order be made directing the President or other ofiScer of the said Safe Deposit Company, in the presence of a repre- sentative of the Comptroller of the State of New York, to examine the said safe for the purpose of ascertaining if a Will of said deceased be deposited therein, and if such be foimd, that the same be deposited in this Court. Petitioner, Dated , 191. .. , Add verification as in Form No. 7. I FORM NO. 137. Order to Open Safe to Discover Will. Caption as in Form No. 2, with title as in Form No. 136, continuing: Upon reading and filing the petition of , verified on the day of the Safe Deposit Company of is hereby ordered and directed and hereby authorized to allow to open the private safe of , deceased, in the presence of the President or other officer of the said Safe Deposit Company and a representative of the Comptroller of the State of New York, and examine the contents of the said safe for the Last Will and Testament of said deceased or any codicil thereto, and without remov- ing any other article therefrom, if said Will or Codicil be found therein, the said Safe Deposit Company is hereby ordered and directed forthwith to deposit the same in this Court. 1110 FORMS Nos. 138, 139 FORM NO. 138. Petition for Exanwnation of One Retaining, etc., Will. Petition for Production of Will. Caption as in Form No. 1, with title of proceeding, avid three first paragraphs as in Form No. 9, continuing: II. That , the decedent above-named, died on 191 . . . , a resident of the County of III. That the petitioner is interested in the estate of said decedent as fol- lows : {state interest) . IV. That there is reasonable ground to believe that residing at , has destroyed ( or, retained, or, concealed, or, io conspiring with others to destroy, etc.) a will {or testamentary instrument) of said decedent [or, has knowledge as to the facts of the destruction {or reten- tion, or, concealment) of a will {or, testamentary instrument) of said dece- dent] , because of the following circumstances : {state circumstances leading to belief). Tlie petitioner therefore prays an order requiring said to attend and be examined in the premises [and produce said will {or testamentary instrument).] Add verification as in Form No. 7, FORM NO. 139. Order for Eaamination of One Betainiiug, etc.. Will. Order for Production of Will. Caption as in Form No. 1, with tiile of proceeding, oontOAning: On reading and filing the petition herein of , verified , 191 . . . , and it appearing therefrom that said petitioner is a, person claiming to be interested in the estate of , the above- named decedent, and that there is reasonable ground to believe that has destroyed ( or, retained, or, concealed, or, is conspiring with others to destroy, etc.) a will {or testamentary instrument) of said de- cedent [or has knowledge as to such facts'], it is Ordered, that said be, and he hereby is, required to attend before this Court at o'clock in the noon of the day of , 191 . . . , and be examined in the premises [and to produce any will or testamentary instrument of said decedent which he has or can produce]. Note: Serve certified copy and pay or tender usual witness fee. 1111 No. 140 rORMS FORM NO. 140. Petition for Probate and Letters Testamentary. Caption as in Form No, 1, continumg : the Petition of to Prove the Last Will and Testament of late of the County of ... , deceased. Three first paragraphs as in Form No. 9, continuing: II. That the petitioner is the Execut named in the last Will and Testa- ment of , late of the County of , deceased. III. That the said deceased resided at the time of death at No. and died at , on the day of , 19.... . IV. That said last Will and Testament was made at the City of and relates to both Real and Personal Property, and bears date the day of , 19 .... , and was signed by as witnesses. V. That the petitioner . . do . . not know of any other Will or of any Codicil to said Will, or of any instrument purporting to be such, nor is there any to petitioner's best information and belief^ VI. That said deceased left h . . . . surviving widow, who resides at VII. That all the heirs at law and all the next of kin of said deceased are as follows, to wit: a of deceased, who resides at a ;.;.... of deceased, who resides at VII. That the names and post-office addresses of the legatees, devisees,^ execu- tors, trustees and testamentary guardians named or described in the said will or any other will filed in the Surrogate's- Office of this County, other than the persons named above and who are not heirs at law or next of kin of said deceased, are as follows: who resides at who resides at VIII. That all the persons above named are of full age and of sound mind. IX. That no petition for the probate of the said will or for letters of adminr istration on the estate of the said deceased has been heretofore filed in this or any other Surrogate's Court of the State of New York, and that no other will of the said deceased has been filed in the Surrogate's Office of this County, except as hereinbefore mentioned and described. X. That the value of the real property in the State of New York of which ■■ ' "'"'"■ i'li2' " ' rOEMS No. 141 the said deceased died seized is dollars and that the value of the personal property of which the said deceased died possessed is dollars. XI. That there are no persons interested in this application or proceeding other than those hereinbefore mentioned. YOUR PETITIONER THEREFORE PRAY : That a decree be made admitting the said last Will and Testament to probate as a will of real and personal property and that Letters Testamentary may he issued to the Execut who may qualify thereunder. That a citation issue herein to the persons entitled thereto, citing them to show cause why such decree should not be made. Dated the day of , 19 Petitioner, Add verification as in Form No. 7. .FORM NO. 141. Petition for Prolate and tetters Testamentary Used im New Yoric Courvty. SURROGATES' COURT, COUNTY OF NEW YORK. tn the Matter of Proving the Last Will and Testament of Deceased, When all parties waive citation all papers must be filed two days be- fore the day fixed for the hearing. As a Will of Rfial and Personal Property. To the Surrogates' Court of the County of New York: The petition of residing at No in the Borough of , City of New York, .... respectfully states That your petitioner '. execut named in the last will and testament of , late of the County of New York, deceased; That said last will and testament, herewith presented and hereby oflfered for probate, relates to both reftl and personal property, and hears date the day of , 19 . . . ., and is signed at the end thereof by the said testa and by as subscribing witnesses 1113 No. 141 FORMS That petitioner does not know of any codicil to said last will and testament, nor is there any to the best of li . . . . information and belief. I .. That the said deceased was, at the time of h . . . . death, a resident of the Coimty of New York and departed this life in said County, on the day of ,19 That the ., all the heirs, and all the next of kin of said testator, widow, each person designated in the will herewith presented and hereby offered for probate as executor, testamentary trustee or guai:diaii; and also each person named as executor, testamentary trustee, guardian, legatee, devisee or bene- ficiary in any other will of the same testator filed in the Surrogate's office and their residences and post office addresses are hereinafter mentioned in subdivisions a, b, c and d hereof, as follows: a. The following named persons who are OF FULL AGE AND OF SOUND MIND; 8 a of deceased who resides at a. of deceased who resides at S b. The following named persons who are INFANTS OVER FOUETEEN YEARS OF AGE; of deceased who resides at : . : *e. The following named persons who are INFANTS UNDER FOUETEEN YEAES OF AGE; of deceased who resides at Sd. The following named persons who are OF FULL AGE BUT OF UNSOUND MIND; who resides at of deceased 1114 rORMS No. 141 That the value of the real property in this State of which, the testator died seized is dollars and that the value of the personal property of which said • testator died possessed is dollars. That said testator left h. . surviving no . , ' child or children, no adopted child or children, no issue of any deceased child or children, no issue of any deceased adopted child or children, no father or mother, no brother or sister of the half or the whole blood, no issue of any deceased brother or sister, no uncle, and no aunt, and no issue of any deceased uncle or aunt, except those herein- before mentioned. That no petition for the probate of the will herewith presented and hereby offered for probate, or for letters of administration on said estate, has been heretofore filed in this or any other Surrogate's Court of this State and that no other will of said testator has been filed in the Surrogates' office of New York County, except as hereinbefore mentioned and described. That there is no person designated in the will herewith presented and here- by offered for probate as executor, testamentary trustee or guardian, except as hereinbefore mentioned. That there is no person named as executor, testamentary trustee, guardian, devisee, legatee or beneficiary in any other will of the same testator filed in the Surrogates' oflSce of the County of New York, except as hereinbefore men- tioned. That the names and post o£Sce addresses of the devisees, legatees and other beneficiaries named in the will herewith presented and hereby offered for pro- bate, are as follows: 1. The following named persons have been hereinbefore mentioned: Name of Legatee, Devisee Post Office Address. Value of Legacy or Devise. or Beneficiary. 2. The following nan\ed persons have not been hereinbefore mentioned. Name of Legatee, Devisee Post Office Address. Value of Legacy or Devise, or Beneficiary. That there are no persons interested in this proceeding other than those hereinbefore mentioned. 1115 No. 142 FORMS WHEREFORE YOUR PETITIONER PRAYS That a citation to show cause issue herein to the persons hereinbefore named, described, and included in subdivisions a, b, e and d hereof, citing them to show cause why the last will and testament herewith presented and hereby oflfered for probate should not be admitted to probate; That an order be granted directing the service of the citation personally without the State or by publicatioii upon the persons hereinbefore named, described and included in subdivisions a, b, c and d hereof who are not resi- dents of the State of New York, and also upon the persons hereinbefore de- scribed and included in those subdivisions who and whose names or residences and post oflSce addresses are unknown and cannot be ascertained; and That the last will and testament herewith presented and hereby oflfered for probate may be admitted to probate as a will of real and personal property and that letters testamentary may be issued to the execut .... who may qualify thereunder. Dated, New York, , 19... Add verification as im Form No. 7. Petitioner. 1 The petition shall describe any other wills of the same testator on file in the Surrogate's oflace of New York County. 2 If any person or his name, residence and post office address be unknown, the petition must substantially set forth the facts which show what efforts have been made to ascertain the same and a general description of the person, show- ing his connection with the decedent and his interest in the matter. 3 State the age of the infant and whether or not the infant has a general or testamentary guardian, whether or not his father, or, if he be dead, his mother, is living, giving the name and post office address of such person, and the name and post office address of the person with whom such infant resides. Section 2521. 4 State the age of the infant and whether or not the infant has a general or testamentary guardian, whether or not his father, or, if he be dead, his mother, is living, giving the name and post office address of such person, and the name and post office address of the person with whom such infant resides. Section 2521. 6 State the name and post office address of the committee, if any, and the name and post office address of the person or institution having the care or custody of the incompetent; also the facts regarding his incompetency and the name and post office address of a relative or friend having an interest in his welfare. Section 2521. 6 Erase unnecessary allegations. T If an executor, or trustee, is req^uired by the will to hold, manage, or in- vest, property for the benefit of another, he must execute a bond. Code Section 2639. FORM NO. 142. Affidamt Under Transfer Tax Law. Caption as in Form No. 35 et seq. or HO-1, with first three paragraphs as in Form No. 9, continuing: Tliat . . he is the administrator ( or executor ) herein. That the above named decedent was at the time of death a resident of 1116 FORMS No. 143 and died on the day of 191 . . That the estimated value of the real property in this State of which said de- cedent died seized is Dollars. That the value of personal property, wherever situate, of which said decedent died possessed does not exceed Dollars. That said decedent did during lifetime make any transfer of property ly deed, grant, bargain, sale or gift, in contem- plation of ..:... death, or intended to take effects in possession or enjoyment at or after death. That the following is a statement of the names and places of residences of all persons entitled to any portion of, the estate of said decedent, and the rela- tionship of such persons to said decedent. , Name. Amount of Legacy. Residence. Relationship. Jurat as vn Form No. 4. FORM NO. 143. Designation of Cleric as Person on Whom Process May Be Served. Caption and title as i» Form No. 35 et seq. or I40-I, continuing: State of New York.l County of f I a person ahout to be appointed admin- istrator of the estate of [or an execut named in the last will and testament of] .a, resident of ....,., the County of , deceased, do hereby designate the Clerk of the Surrogate's Court of the County of , and his successor in office, as a person on whom service of any process issuing from the Surrogate's Court of the County of , may be made, in like manner and with like effect as if it were served personally upon me, whenever I can- not be found and served within the State of New York after due diligence used. I am a resident of No St., Add acknowledgment as in Form No. 5, 1117 No. 144 FOEMS FORM NO. 144. Citation on Probate Proceeding. THE PEOPLE OF THE STATE OF NEW YORK, By the Gbace op God, Free and Independent. To the heirs' and next of kin of . . ,...,..... deceased, Send Greeting: Whereas, who :reBide's at has lately applied to the Surrogates' Court of our County of , to have a ; cprtain instrument in writing, ...;..'. ........:.....• ................ .relating : ..-f to both real and personal property, duly proved as t^.^ last will and testament of ' who was at tlie time' of h .... death a resident of the Countyof ^ . . ,.,.,, deceased. Therefore, you and each of you are cited to show cause before the Surrogates' Court Of our County of '. . .". ." i. •. . .-..., at , in the County of ....;.... , on the day of one thousand nine hundred "and' ; ; ; . . . . at half -past ten o'clock in .the forenoon of that day, 'why the Sscid will and testament should not be admitted to probate as a will of real "and personal property. In Testimony 'Whereof, we hav6' caused the seal of the Surrogates' Court of the said County of to be here- unto aflSzed. Witness, .Honorable ^ a Surrogate of our said County of , at said 111. S.] county, the day of , in the year of our Lord one thousand nine hundred and Clerk of the Surrogates' Court. 1118 FORMS No. 145 FORM NO. 145. Waitier of Citation and Consent to Probate, Caption and title as in Form No. lJfO-1, continuing: To the SuiTogates' Court of the County of the undersigned, and heir of and next of kin of , deceased, and of full age, do hereby appear in person and waive the issue and service of a citation in the matter of proving the last will and testament of said deceased bearing date , and consent that said will be admitted to probate forthwith. Dated, ,191 :} Signed in the presence of State of ,) > ss ■ Coimty of i ..,( Be itknown, that on. the . .■ . , day of one thousand nine hundred and , before me . it in and for the State of duly commissioned and swomy residing in the personally came and appeared ....:... to. me personally Jcnown, and known to me to be the same person described in and who executed. the above waiver and consent, and acknowledged the same to be act and deed. "In Testimony Whereof, I. have hereunto subscribed my name and afiSxed my seal, of office, the day and year last above written. Note: Outside the County, the County Clerk's certificate must be attached to the Notary Public's Certificate of Acknowledgment. Outside of the State of New York, use the following certificate for the County Clerk: 1119 No. 146 FORMS State of . . County of I, , Clerk of the Covmty of , ( and also Clerk of the the same being a court of record of the aforesaid county, having by law a seal) do hereby certify that , Esquire, whose name is subscribed to the foregoing certificate of aoknowledgmfut, proof or affidavit^ was at the, time of taking said acknowledgment, proof or affidavit, a duly commissioned and sworn and residing in said county, and was, as such, an oflBcer of said state, duly authorized by the laws thereof to take and certify the same, as well as to take and certify the proof and acknowledgment of deeds and other instruments in writing to be recorded in said state, and that full faith and credit are and ought to be given to his ofiicial acts; and I further certify that I am well acquainted with his handwriting, and verily believe that the signature to the foregoing certificate is his genuine signature. In Witness Whereof, I have hereunto set my hand and afiixed my official seal this day of 191 . . . FOKM NO. 146. Order Designating Person to Beoeive Citation for Infant. Caption as in Form No. 2y with title as in Form No. S5 et seq. or 1^0-1, con- An application having been heretofore made to have a certain paper writing proved as the Will ior, for letters of administration on the estate] of late of the County of , deceased, and it appearing to my satisfaction that of the persons to be cited infant under the age of fourteen years, and that the interest of j a person to whom copy of the citation herein was delivered in behalf of the above named infant is adverse to the interest of said infant . . ; It is Ordered that a copy of the citation herein be also delivered to and left with Esq., Counselor at Law, of in behalf of said infant. . at least eight days before the return day of said citation, and that the service of said citation shall not be deemed complete until such delivery. Surrogate. 1120 FORMS Nos. 147, 148 FORM NO. 147. Consent of Special Quardiam to Act. As in Form No. 1, contmumg: Proving the Last Will and Testament of Deceased. I, Counselor at Law, hereby consent to be appointed by the Surrogate of the County of , the Special Guardian of infant . . , for the sole purpose of appearing for and protecting interest in the above-entitled matter. Dated New York, 191 . . No St., State of New York) County of ( , being duly sworn, says, that he is an Attorney and Counselor at Law, and that he is the individual who signed the foregoing consent. Deponent further says that he is fully competent to understand and protect the rights of the above-named infant . . ; that he has no interest in this pro- ceeding adverse to that of said infant . . , and that he is not connected in busi- ness with any party to this proceeding or with the attorney or counsel of any such party. [Special Guardia/n). Jurat as m Form No. 4, iefore Surrogate's Clerk {or Assistant in N. Y. Co.) FORM NO. 148. Affidavit and Report of Special Chuardian. Caption and title as in Form No. HI, continuing : State of New York, Coimty of .... I" being duly sworn, says that he is a Counselor at Law; that since his appoint- ment as Special Guardian herein, he has to the best of his ability made himself N. Y. E. & S.— 71. 1121 No; 140 FORMS acquainted with the lights of his ward . . , and that he has taken all the steps necessary for the protection of such rights, to the best of his knowledge and as he believes; that he has examined, into the circumstances of the case, the in- strument offered for probate, the petition and other papers lierein; that he has attended on the retiurn of the citation and examined the testimony given by the subscribing witness. and that he has found no objections to the probate of said instrument, and that it appears to be for the best interest of his ward . . that the same should be admitted to probate. Sworn to before me, this ........ day) of 191.. I Special Guardian. Surrogate or Clerk ( or 'Assistant to the Surrogate in New York County ) . FORM NO. 149. Notice of Offer of Will for Probate. Caption and title as in Form No. IJft, continuing: To the following named persons: Take notice that the last will and testament of deceased, has been offered for probate; and that the names and post oflSee addresses of the proponent and of tlie legatees, devisees and. other beneficiaries, as set forth in the petition herein, who have lioi been cited or have not appeared or waived citation, are as follows : proponent whose post office address is Name of Legatee, Devisee orBeneflcikry. Dated, ....,191.. Post Office Address. Attorney for Proponent Off. & P. o: Address, etc. 1122 FORMS Nos. 150, 151a FORM NO. 150. Affidavit of Service of Notice of Offer of Will for Prolate. Caption and title as vn Form No. l^t, followed by Foifn No. S, continuing: that on the day of he deposited in the post oflBce, at the County of ., a copy of the annexed (or) within notice of probate, contained in a securely closed post-paid wrapper, directed to each of the following named persons respectively at the place hereinafter set forth, as follows: Jurat as in Form No. 4. FORM NO. 151a. Oijections to Prqhate. Caption a/nd title as in Form No. HI, continuing: To the Surrogate's (s') Court of the County of ...: The undersigned, interested in the event of the above-entitled proceeding as devisee {or, legatee; or othenoise) in the will {or, codicil) therein offered for probate; [or, interested as heir-at-law {or, next of kin, or, otherioise) in prop- erty, a portion {or all) of which is attempted to be disposed of or affected by a will {or, codicil) offered for probate in the above-entitled proceeding] {or, [interested as devisee {or, legatee; or, executor, or, testamentary trustee, or, guardian) in a will {or, codicil) other than that offered for probate in the above-entitled proceeding, which the undersigned alleges was made by the same testator and not duly revoked by him] hereby objects and files his objections to the will {or codicil) offered for probate in the above-entitled proceeding, on the following grounds : That {state grounds) . The undersigned therefore prays that probate of the instrument offered in the above-entitled proceeding be stayed until these objections are disposed of, and that he may have siidh otlier and further relief as is just and proper. Add verification as in Form No. 7. 1123 No. 151b, 151e FORMS FORM NO. 151b. Oijections to Probate. Caption as in Form No. 1, ieith title of proceeding, oontUming: To the Surrogate's (s') Court of the County of : , heirs at law and next of kin of , deceased, by , their at- torneys, contesting the paper writing propounded as the last will and testament of , deceased, dated , 191 • • » allege, on information and belief: I. That said propounded paper is not the last will and testament cf said de- cedent. II. That said propounded paper was never executed pursuant to the require- ments of the Statute in such case made and provided and it and its provisions are null and void. III. That at the time that said propounded paper purports to have been exe- cuted (if ever executed) said decedent did not have testamentary capacity. IV. That the said proponents, or one of them, or some other person unknown to these contestants, exercised such improper and undue influence in the ob- taining and execution (if ever executed) of said propounded paper in behalf and in favor of that it was made the residuary legatee therein to the exclusion of the natural objects of decedent's bounty, the heirs and next of kin of said decedent. Wherefore, these contestants do hereby in these objections demand a trial by jury of all the issues raised by these objections, and pray that the said pro- pounded paper may be rejected and the probate thereof refused, with costs to these contestants. v ■ Dated, ,191.. Attorneys for, etc. Add verification as in Form No^ 7. FOEM NO. 151c. Plijections to Probate. Caption as tn Form 2fo. 1, with title of proceeding, continuing: To the Surrogate's Court of the County of ; residing at ., a '. , ( e. if.,, legatee under the Last Will and Testament of ,,. .,....., the aboye-named decedent) objects to (e. g., the probate of said will and the grant of letters testamentary thereunder) , and specifically sets forth the following as and for his said objections: I. That (e. g., the paper purporting to be the Last Will and Testament of said decedent, nominating and appointing 1124 FORMS No. 152 as executor was not said decedent's free, unconstrained or voluntary act). II. That (e. g., neither at the time said paper purports to have been executed nor at any time when said paper was exe- cuted was said decedent of sound mind, memory and understanding, and that said decedent was incapable of making a valid testamentary disposition of his property) . III. That, ( e. g., said will was secured by fraud and undue influence on the part of all the legatees named therein save this contestant). The undersigned therefore prays that (e. g., the proceeding for the probate of said alleged Last Will and Testament be dismissed with costs) ; and the undersigned hereby demands a jury trial of the issues herein. Dated, , , 191. . . Add verification as in Form No. f. FORM NO. 152. Answer Contesting Proiate. Caption as in Form No. 1, with title of proceeding, contimwi/ng: The answer of (e. g., an heir at law and next of kin of , the above-named decedent) by , his attorney, respectfully shows (on informatioif and belief) : I. That the paper writiiig bearing date the day of , 191 . . , and purporting to have been executed on that day is not the last will and testament of said decedent. II. That on said . . . day of i . ., 191. ., siid .......;.. was not of sane mind or memory or capable of making a will. III. That the said paper writing was not freely or voluntarily made or exe- cuted by said .;.,.. as his last will and testament. IV. That the said paper writing was obtained and the subscription and pub- lication thereof, if in fact ever subscribed and published by, him, were procured by fraud and undue influence practiced upon said decedent by one and one or by some other person or persons act- ing in concert or privity with the said .or the said .............. or with both of them, whose name or names are at present unknown to thig contestant. V. That said alleged will was not duly executed by said , deceased; that he did not publish the same as his will in the presence of the; witnesses whose names are subscribed thereto; that he did not request said (.e. g., two) witnesses to be witnesses 1125 Nos. 153, 154 ■ EORMS thereto, and that the said alleged witnesses did not sign as witnesses in his pres- ence or in the presence of each other. Therefore, t;he above-named demands a jury trial of the issues tendered in this answer and prays that this proceeding be dis- missed with costs. Attorney for etc. Add verification as in Form No. 7. FORM JfO. 153. Notice of Objections Filed to Probate, Gornbined with Notice of Offer for Probate. Caption and title as in Form No. H7, continuing: To whose post-office address is , whose post-office address is the legatees, devisees and other beneficiaries named in the last will and testa- ment of deceased, who have not appeared by attorney. TAKE NOTICE that said last will and testament has been offered for pro- bate, that the name and post-office address of the proponent is and that objections have been filed to the probate of said will and that the same will be heard at a Trial Term of the Surrogate's Court of the County of , at , , in the , County of on the day of , 19 . . . at o'clopk in the noon of that day, or as soon thereafter as counsel can be heard. Dated, New York, , 191. .. . Attorney for Proponent. Office and post-office address FORM NO. 154. Petition for Order Directing Marnier and Time of Service of Notice of Objections to Probate. Caption and title as in Form No. IJft, and three first paragraphs as iti Form No. 9, continuing: II. That your petitioner is the execut named in the last Will and Testa- ment of , late of the County of , deceased. III. That said last Will and Testament was diily filed for probate, and that 1126 FORMS No. 155 proceedings for the probate of said last Will and Testament have been begun bj* your petitioner. IV. That objections have been filed to the probate of said last Will and Tes- tament by upon the grounds set forth in answer to the petition for probate of said will. V. That a notice of probate to the legatees, devisees, and other beneficiaries named in said will as specified in Section 2616 of the Code of Civil Procedure, has been filed in the Surrogates' Court. That said notice has the additional statement endorsed thereon that objec- tions have been filed to the probate of said will as required by Section 2618 of the Code of Civil Procedure. VI. That the names and post-oflice addresses of the legatees, devisees and other beneficiaries, as set forth in the petition for probate herein, who have not been cited, or have not appeared or waived citation, are as follows: Names. Post-ofSce Addresses. VII. That all of the persons named in said notice are of full age and of sound mind except and , who are infants under the age of fourteen years; and and , who are infanta over the age of fourteen years. Wherefore, your petitioner prays for an order directing in what manner and within what time such notice shall be served on each of the persona named in said notice of probate, and that the petitioner may have such other and further relief as the Court may deem proper and juat. Add verification as in Form No. 7. FORM NO. 15S. Order Directing Service of Notice of OijeoUons to Probate, and of Such Notice, Caption and title as in Form No. 1^1, continuvny: On reading and filing the petition of the executor named in the last Will and Testament of deceased, a resident of the County of , by which it appears that objections to the probate of said Will have been filed herein. NOW, ON MOTION of , Attorney for the petitioner, IT IS ORDERED, that the notice of probate filed herein and the notice of objections 1127 No. 155a FORMS (endorsed on said notice of probate) be served personally upon the persons named in said notice of probate who are residents of the State, such service to be made at least eight days before the day of , 191. . ., the day fixed for the hearing of said objections; (and that said notice state that said objections will be heard at a Trial Term of the Court of the County of ,. , held at , in said County, on the .' day of 191 . . . ) ; and IT IS FURTHER ORDERED, that service of said notices upon such of said persons as are not residents of this State shall be made in the manner follow- ing: by depositing at least sixteen (16) days before the said day of , 191 ... in the post oiBce in the , and State of New York, a copy of each of said notices, contained in a securely closed, postpaid wrapper, directed to each of the persons named in said peti- tion respectively, at the places therein designated as their addresses. Surrogate. FORM NO. 155A. Order for Trial hy Jury of Contested Prohate. Caption as in Form No. 2, with title of proceeding, continuing: A petition for the probate of a paper writing purporting to be the Last Will and Testament of . . ., deceased; verified the ....';.... day of , 191. . ., having been duly filed, by which it appears that said paper writing bears date of day of ., 191. . .■; and a toitation having been duly issued thereupon and objections to the pro- bate of said paper writing as the Last Will, and Testament of the above-named decedent having been duly filed; and it appearing by said objections tliat con- troverted questions- of fact have arisen in this proceeding and a trial by jury of such issues herein having been seasonably demanded; it is Ordered and Directed that there be had before the Surrogate and a jiiry,' at a Trial Term of the Surrogate's ( s' ) Court of the County of to be held commencing Monday, the . . .,, .,.,. . day of 191. . ii trial of the following issues of fact: I. I)id ..,,....,...,.,,,. ., the testator, subscribe the paper offered for pro- bate at the end thereof in the presence of the attesting witnesses or acknowl- edge to each of them that such subscription appearing on said paper had been made by hlmt II. At the time of making such subscription or acknowledgment did the said declare to the attesting witnesses that the paper offered for probate was his Last Will and Testament? III. Were there at least two attesting witnesses, each of whom signed hi» or her name at the end of said paper at the request of said ? IV. At the time of the execution of the paper oflfered for probate was the said of soimd and disposing mind and memory ? 1128 FORMS No. 155b V. At the time of the execution of the said paper was the said free from restraint? VI. Was the execution of the said paper by the said caused or procured by fraud, deceit or undue influence of the proponent, or any other person or persons? Sv/rrogate. (N. B. — ^The following is another form of statement of issues.) I. Is the said propounded paper the last Will and Testament of the de- cedent? II. Was the said propounded paper executed pursuant to the requirements of the Statute in such case made and provided? III. At the time that said propounded paper purports to have been executed (if ever executed) was the said (the decedent) of sound mind and memory and capable of making a. valid disposition of his real and personal property and did he have testamentary capacity? IV. Was the execution of the said propounded paper by the said ( the decedent ) , — if ever executed — caused or procured by the improper and undue influence of the proponents, or one of them, or some other person or persons unknown to these contestants in behalf and in favor of , to the end that it was made the residuary legatee therein ? Surrogate. FORM NO. 155B. Proponent's Notice of Trial. Caption as in Form No. 1, with title of proceeding, continuing: Take Notice that the issues (of fact) in this proceeding (or matter) will be brought to trial and a motion made to dismiss the objections therein ' at a Trial Term of this Court appointed to be held in and for the County of , at , in , on the day of , 191 . . . , at o'clock in the noon of that day, or as soon thereafter as counsel can be heard [pursuant to an order of the Hon Surrogate (or, one of the Surrogates) of the County of , dated the day of , 191. .]. Dated , 191... Attorney for Proponent, etc. To Attorney for Contestant (or Objectant) et al. 1129 Nos. 155c-155e FORMS FORM NO. 1550. Contestant's Notice of Trial. Caption as in Form No. 1, with title of proceeding, continuing: Take notice that the issues (of fact) in this proceeding (or matter) will be brought to trial and an inquest taken therein {contvniie as in Form No. 155B from * ) . Dated, , 191 Attorney for Oontesta/tit, etc. To Attorney for Proponent et al. FORM NO. 155D. Note of Issue. Caption as in Form No. 1, with, title of proceeding, contmuimg: , attorney for proponent, • ■ ,- , attorney for contestant {and names of other attorneys who have appeared). Issue joined , 191 .... Contested probate of a will. Issue of fact to be tried by Surrogate and jury. Noticed for trial for ......;.. term, 191 .. . . Notice filed by Attorney for FORM NO. 155E. Findings of Jury in Contested Prohate. Caption as in Form No. 1, with title of proceeding, continuing: The jury finds, in answer to the questions submitted to them as follows: 1- Did the testator, subscribe the paper offered for pro- bate, in the words and figures following, to wit: [Quote will, and codicil, if any, in full] at the end thereof in the presence of the attesting witnesses or acknowledge to each of them that such subscription appearing in said paper had been made by her? Answer: Yes or No. 2. At the time of making such subscription or acknowledgment did the said 1130 FORMS Nos. 155f, 155g declare to the attesting witnesses that the paper offered for probate was her last will and testament? Answer: Yes or No. 3. Were there at least two attesting witnesses, each of whom signed his or her name at the end of said paper at the request of said ? Answer: Yes or No. 4. At the time of the execution of the paper offered for prohate was the said of sound and disposing mind and memory? Answer: Yes or No. 5. At the time of the execution of the said paper was the said free from restraint? Answer: Yes or No. 6. Was the execution of the said paper by the said caused or procured by fraud, deceit or undue influence of the proponent, or any other person or persons? Answer: Yes or No. Bignatitres of Each of IS Jurori. FORM NO. 155P. Notice of Motion for Judgment Prdbatvng Will. Take notice that on the findings of the jury in this proceeding the under- signed will make a motion before Hon , Surrogate {or one of the Surrogates) of ; County, on , 191. . ., at a Trial Term thereof, held at .' : , in said County, at o'clock in the noon, or as soon thereafter as counsel can be heard, for a judgment of this Court ordering, adjudging and decreeing that the instru- ment offered for probate herein be admitted to probate as the Last Will and Testament of said , deceased, valid to pass real and personal property, and that said will be recovered and that letters testamentary be issued to the executors who may qualify thereunder. Dated, , 191... . Yours, ete. Attorney for, etc. To Attorney for, etc. FORM NO. 155G. Decision on Findings of Jury in Contested Prohate, Caption as in Form No. 1, with title of proceeding, continuing: The issues raised by the objections filed by in this pro- 1131 No. 156 . FORMS ceeding having regularly come on for » hearing before Hon Surrogate {or one of the Surrogates) of County;, and a jury, on the day of , 191 . . . , and the witnesses to the making of the will and the witnesses produced by the contestant having testi- fied, and the following questions having been submitted to the jury: [Same as in Form No. 155E] and the jury (by direction of the Court) having answered the first five questionsi i;a the affirmative, and, the sixth question in the nega- tive, I decide and find as follows: FINDINGS OF FACT. That the instrument in writing bearing date the day of 191 . . ,, propounded as and for the Last Will and Testament of , deceased, in this proceeding, is the Last Will and Testament of deceased, and was duly executed as required by law, and that said , , the testator, was at the time of the execution thereof in all respects competent to niake a wiU and was under no restraint. CONCLUSIONS OF LAW. That the said instrument offered for probate herein is entitled to be ad- mitted to probate and recorded as the Last Will and Testament ,of deceased; valid to pass real and personal property, and that , the executors named in said Last Will and Testament are entitled to letters testamentary thereunder, and that the proponent of the said will is entitled to his costs and disbursements, to be taxed, payable out of the estate herein. Let decree be made accordingly. Dated, , 191.... Surrogate. FORM NO. 156. w Deposition of Subscribing Witness to Will. Caption a/nd title as in Form No. 147, continuing: State of New York, J County of ^^^•' °f being duly sworn as a wit- ness in the above-entitled matter (and examined on behalf of the applicant to prove said will), says: I was (well) acquainted with now deceased. . The subscription of the name of said decedent to the instrument now shown to me and oflfered for probate as (a codicil to) h last will and testament, and bearing date the day of in the year 1132 POEMS No. 157 one thousand nine hundred and was made by the decedent at the City of . ..-.■.•.•.•.' , on the . . day of . '. ; in the year one thousand nine hundred and , in the presence of myself ond , the other subscribing witness. At the time of such subscription the said decedent declart'd the said instrument so subscribed by h . . . . to be h . . . . last will and testament; and I thereupon signed my name as a witness at the end of said instrument, at the request of said decedent, and in h. . . . presence. The said decedent at the time of so executing said instrument, was upwards of the age of twenty-one years, and in my opinion of sound mind, memory and understanding, not under any restraint or in any respect incompetent to make a will. I also saw said , the other subscribing witness, , sign . . h name . . as witness ... at the end of said will, and know that ..he did so at the request and in the presence of said decedent. I knew said decedent for years before the execution of said instrument. Witness sworn and examined before me this J day of , 191 J {Clerk, Prohate Clerk or Assistomt to the Surrogate.) FOKM NO. 157. Deposition as to Genuineness of Subsoribing Witness' Signature, Caption as in Form No. Ht, continuing: State of New York, ^ County of ............ | ' ' • of , , being duly sworn (as a wit- ness in the above-entitled matter, and- examined on behalf of the petitioner to prove said will) and examined before a Surrogate's Court of the County of , deposes and says : I was (well) acquainted with , late of and with h.... manner and style of handwriting, having often seen b.... write, and (I verily believe) that the signature, purporting to be h sub- scribed (as a witness) to the instrument in writing now produced and shown to me, purporting to be the Last Will and Testament of deceased, bearing date the day of in the year one thousand ...1.1 hundred and 1133 No. 158 FORMS U the proper signature and the true and genuine handwriting of said witness, ; (and that . .he died ) • Subscribed and sworn this day of , 191 Clerk or Probate Clerk, Surrogate's Court, County, N. T. (or Assistant to the Surrogate in N. Y. Co.) FORM NO. 158. Decree for Probate and Issue of Letters Testamentary. Caption as in Form No. S, with title as in Form No. 147, continuing : The citation herein having been duly issued, served, and returned, '. ; the allegations of the parties appearing having been heard, and the proofs hav- ing been duly taken by the Surrogate, among other things as to the execuilon of said instrument. ., bearing date and the probate of the said Will not having been contested, and it appearing to the Surrogate that the Will was duly executed, and that the testat . . . . , at the time of executing it, was in all respects competent to make a, Will and not under restraint: IT IS ORDERED, ADJUDGED AND DECREED, that the instrument.. offered for probate herein be and the same hereby is admitted to probate as the Last Will and Testament of the said Deceased, valid to pass personal property, and that letters testamentary be issued thereon to the execut . . . . who may qualify thereunder. Note: A decree probating a lost or destroyed will should recite that it has been proven to the Surrogate's satisfaction that the will was in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime; and that its provisions have been clearly and distinctly proved by at least two credible witnesses (a correct copy or draft being equivalent to one witness). 1134 FOEMS No. 159 FORM NO. 159. Petition to Oitain Determination as to Validity, Construction or Ejfeot of Testamentarrf Disposition. As in Form No. 1, continuing: the Petition of to Obtain"] a Determination as to the Validity, Con- I struction or Effect of a Disposition of Prop- I erty Contained in the Last Will and Testament] of . , , Deceased. I First three paragraphs as in Form No. 9, continuing: II. That , the above-named decedent, died on , 191 . . . , a resident of the County of , and that the Last Will and Testament of said decedent was admitted to probate by decree of the Sur- rogate's Court of the County of on , 191 ... . III. That letters testamentary (or, of administration with the will annexed) upon said will were issued to the petitioner by the Surrogate's Court of the County of , on , 191 . . . ; [and] that the petitioner is a person interested in obtaining a determination as to the validity, construction or effect of a disposition of property contained in said will, by reason of the following facts : ( state facts showing interest ) . IV. That the names and post ofBce addresses of all other parties interested in this proceeding are as follows: Names. P. 0. Addresses. V. That the particular portion of said will concerning which the petitioner requests the determination of this Court is as follows : (qvx>te pa/rticular portion of will.) VI. That there are no other persons than those mentioned interested in this application or proceeding. The petitioner therefore prays i>, decree determining as to the validity, con- struction or effect of said disposition, and that a citation issue to all persons interested in the question to be presented to show cause why said determina- tion should not be made. Add verification as in Form No. 7 or 8. 1135 Nds. 160-162 FORMS FORM NOV 160. Gitation on Petition to Determine Validity, etc., of Testantentory- Disposit^m. Adapt from Form No. ^S. FORM NO. 161. Decree on Petition to Oitain Determination of Validity, etc., of Testamentary Disposition. Caption as in Form No. 2, with title as in Form No. 162, continuing: On reading and filing the petition of , herein, verified , 191 . . . , and the afBdavit of , herein, veri- fied 191 .., showing, to the satiafaotion of the Surrogate, due service of the citation herein on all parties interested herein other than the petitioner; and the Surrogate liaving entertained the application contained in said petition; and after hearing , etc., it is Decreed and Determined that {whatever is determined as to validity, construction or effect of the pa/rtioular portion of the icill). FORM NO. 162. Petition for Filing for Record in This State an Exemplification of a Will. Caption as in Form No. 1, continuing: Filing for Record an Exemplification . of the Will of , Late of. the State of , Deceased. Three first paragraphs as in Form No. 9, continuing: II. That your petitioner is • j the last will and testa- ment of said deceased. III. That said deceased was at the time of death a resident of State of , and departed this life in on the day of :, 191. leaving real property or an interest in real property situated within this- county, to wit: which is devised by the said will of said deceased. 1136 FORMS No. 163 rV. That said will was duly executed in conformity with the laws of this Btate. V. That on the day of , 191 . . . , the said will of said deceased was admitted to probate within the state where the deceased so resided as aforesaid. VI. That said will is filed or recorded in the the same being the proper office as prescribed by the laws of said state of and that the said will, with the proofs and the records thereof, remains in said court. VII. That your Petitioner herewith presents a copy of such will, proofs and records prepared and exemplified as prescribed by sections 44 and 45 of the Decedent Estate Law. That no previous application herein has been heretofore made to this court. Your petitioner therefore prays that a decree may be signed' by the Surro- gate of this court, directing that said Copies be filed and recorded in his office. Dated, , ,191.... Petitioner. Add verification as in Form No. 7. FORM NO. 163. Petition for Ancillary Letters Testamenta/rji. As in Form 2fo. 1, continuing: the Application for Ancillary Letters" On the Last Will and Testament of Late of State of Deceased. First three paragraphs as in Form No. 9, eontinaing: II. That your Petitioner is of said deceased. III. That said deceased was at the time of h . . . . death a resident of , State of and departed this life in , State of , on the ...... day of , 191 . . . , having personal property within this county N. Y. E. & S.— 72. 1137 No. 163 FORMS IV. That heretofore (i.,e., on the day of , 191- ■ • ) a will of personal property, made by said deceased, was duly admitted to pro- bate by .' a competent court within the State of where the decedent so resided as aforesaid, and the said will was executed V. That said will is filed and recorded in the , the same being the proper office therefor, as prescribed by the laws of said State of , and the said will, with the proofs and the records thereof, remain in said court ' VI. That on the day of , 191 .... letters testa- mentary upon the estate of said deceased were duly issued by said court to '. as execut .... named in said will VII. That an exemplified copy of the will, and of the judgment, decree or order so admitting the same to probate as aforesaid, and also of the said letters, is hereto annexed VIII. That Petitioner has made diligent search as follows, to wit, by to discover ijuhether any creditors or persons claiming to be creditors of the decedent reside within this State, and he is also familiar with the financial affairs of the decedent, and he knows of his own knowledge that there are no creditors of the decedent within the State of New York. Except IX. That the amount of security given on the original appointment of said X. That the amoimt of personal property in this State left by the decedent does not exceed in value dollars. XI. That no previous application for ancillary liters has been made in this or any other Surrogates' Court of this State. XII. That there is no transfer tax assessable upon this estate. Your Petitioner therefore prays that said exemplified copies be recorded and that ancillary letters testamentary be issued to h . . . . upon h . . . . qualifying as prescribed by law, and that a citation issue directed to the creditors herein named and generally to all creditors oi the decedent within the State to show cause why such letters should not issue without a bond and for an order directing the publication of such citation. Dated, , 191... . Petitioner. Add verification as in Form No. 7. Note: — State amount of debts due by decedent. 1138 FORMS No. 164 FOKM NO. 164. Decree for Ancilla/ry Letters Testamentary. Caption as in Form No. 2, with title as in Form No. 16S, continuing: A copy of the record' of the will of late of the of and State of deceased, and of the judgment, decree or order of the Court of within said State, entered the day of , 19. . . ., duly admitting the same to probate (and of the letters testamentary issued thoreon to the execut in said will named) authenticated as prescribed by Statute, having been filed in this court on the day of ,19 ( together with an instrument duly executed by the said authorizing to receive ancillary leters testamentary upon the estate of said) and the said having therewith presented to and filed in this court ..he... verified petition praying for a decree awarding to h ancil- lary letters testamentary on said will, and the Surrogate having ascertained, to his satisfaction, that there are no creditors or persons claiming to be creditors of the said decedent residing within the State of New York, Now, on motion of attorney . . and counsel for said It Is Ordered and Decreed that said Will and Letters be recorded and that Ancillary Letters Testamentary on said Will of deceased, issue to the said upon . .h . . taking and subscribing the ■tatutory oath or afSrmation. Vote: — ^Provide for bond when one is required. 1139 Nos. 165, 166 FORMS FOEM NO.- 165. Letters testamentary. THE PEOPLE OF THE STATE OF NEW YORK By the Grace of God Free and Independent, To all to whom these presents shall come or whom they may concern, Send Greeting : Know Ye, That at the County of on the (lay of , in, the year of our Lord one thousand nine hun- dred and , before Honorable a Surrogate of our said county, the Last Will and Testament of . .''. '■ deceased, was proved, and is now approved and allowed by us ; and the said deceased having been at the time of death a resident of the county of , by means whereof the proving and registering said will and the granting administration of all and singular the goods, chattels and credits of the said testat and also the auditing, allowing and final discharging the account thereof doth belong unto us, the administration of all and singular goods, chattels and credits of the said deceased In any way concerning will, is granted unto execut in the said will named, being first duly sworn, well,. faithfully and honestly to discharge the duties of such execut (Seal) In Testimony Whereof, we have caused the seal of office of the Surro- gates' Court of the county of to be hereunto affixed. Witness, Honorable , a Surrogate of our said County of New York at said county, the day of , in the year of our Lord one thousand nine hundred and FORM NO. 166. Oath of Easecutor. Caption and title as in Form No. HI, continmng: State of New York 1 ^ 88. , County of J I , execut . named in the ..'........'.•..■...... ; last will and testament of late of ....'. 1140 FORMS No. 167 the County of New York, deceased, do depose and say that I am a resident of No in the Borough of ^ in the City and State of New York; that I am a citizen of the United States and am over twenty-one years of age, and that I will well, faithfully and honestly discharge the duties of execut of said last will and testament. Jurat aa in Form No. 4- FORM NO. 167. Executor's Bond. Know all Men by these Presents, that we. are held and firmly bound unto the People of the State of New York in the sum of , Dollars, lawful money of the United States of America, to be paid to the said people; to which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and seve/ally, firmly by these presents. Sealed with our seals. Dated the day of one thousand nine hundred and The condition of this obligation is such, that if the above bounden shall faithfully execute the trust reposed in as executor of the last will and testament of deceased, and obey all lawful decrees and orders of the Surrogates' Court of the County of touching the administration of the estate committed to then this obligation to be void, else to remain in full force and virtue. Sealed and delivered in presence of [L. s.] .[L. S.] I know the within-named sureties to be the identical persons that they represent themselves to be, and to be responsible parties, and I believe them to be worth at least $ each in good property. Acknoieledgment and justification of surety as in Administrator's Bond, Form No. 57. 1141 Nos. 168, 169 FORMS FORM NO. 168. Renunoiation of Right to liettera Teat(vmeniary. Adwpt from Form Wo. 177. FORM NO. 169. Petition for Payment of Legacy or Distributive Share for Support or Edwmtiou. As m Form No. 1, continuing: the Petition of for Payment or Satisfaction of a Testamentary Provision {or Dis- tributive Share) in his favor under the Will [or in the Estate ) of , deceased, or which he is in Actual Need for his Support or Education. First three paragraphs as in Form No. 9, conti/numg: II. That , the above-named decedent, died a, resident of the County of , and that by decree of the Surrogate's Court of said County entered on ....,,......, 191. ., said decedent's last will was duly admitted to probate (or, letters of administration on the estate of said dece- dent were granted to ) . III. That the petitioner is a person who will be entitled to the payment- or satisfaction of a testamentary provision under the will [or, a distributive share in the estate) of said decedent. IV. That the petitioner is in actual need of said testamentary provision {or, distributive share) for his support {or, education) by reason of these facts: (state facts showing need.) V. That the name and post-office address of the executor of {or, testamentary trustee under) said will {or, the administrator of said estate) are as follows: VI. That the names and post-office addresses of all the persons interested in this proceeding who are required to be cited upon the application or con- cerning whom the Court is required to have information are as above stated; and that there are no other persons than those mentioned interested in this application or proceeding.;. The petitioner therefore prays that the said testamentary, provision (or, distributive share) may be paid or satisfied in his favor and that said execu- tor {or testamentary trustee, or administrator) may be cited to show cause why said payment or satisfaction should not be made. Add verification as in Form No. 7. 1142 FORMS Nos. 170, 171 FORM NO. 170. Citation on Petition for Payment of Legacy or Distributive Share for Support or Education. Adapt from Form No. iS. FORM NO. 171. Decree for Payment or Satisfaction of Legacy or Distributive Shave for Support or Education. Caption and title as in Form No. 169, contirming: On reading and filing the petition of herein, verified , 191 .. , and the affidavit of herein, verified , 191 . . , showing due service of the citation issued herein on said petition in the Surrogate's discretion upon all persons entitled to citation herein; and it appearing upon the return of said citation that the amount of money and the value of the other property in the hands of , the executor of (or, testamentary trustee under) the last will [or, administrator of the estate] of , the above-named decedent, applicable to the payment of debts, legacies and expenses, exceeds by at least one-third the amount of all known debts and claims against the estate of said decedent, of all legacies which are entitled to priority of the same class as the petitioner's, and that the payment or satisfaction of that part (or the whole) of the testa- mentary provision (orr, distributive share) mentioned in said petition is neces- sary for the support ( or, education ) of the petitioner ( or, of his family ) , It is Decreed, that as executor of (or, as testamentary trustee under ) the last will ( or, as administrator of the estate) of , the above-named decedent, be and he hereby is directed to pay or satisfy a testamentary provision under said will (or, a distributive share of said estate ) in favor of , petitioner above named, to the extent of $ . ; , upon delivery by said petitioner to said executor (or, admin- istrator) of a bond, with two sufficient sureties, conditioned, that if debts against said decedent duly appear, and there are no other assets to pay the same, and no other assets sufficient to pay other legacies, the said peti- tioner will refund the legacy so paid, with interest thereon or such ratable portion thereof with the other legatees, as may be necessary for the payment of such debt-^, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to said petitioner; and that if the will under which said legacy is paid be denied probate on appeal or otherwise, that said petitioner will refund the whole of said legatiy, with interest, to the executor or administrator entitled thereto. 1143 No. 172 FORMS FORM NO. 172. Petiiion for Appointment of General Giwrdian for Infant Under If. Caption as in Form No. 1, continuing: the Application for tlie Appointment of "| a General Guardian of the Person and Estate of [ pe+j+jon An Infant under fourteen years of age. J First three paragraphs as in Form No. 9, continuing: II. That your Petitioner is of an Infant. III. That said Infant is a resident of the County of , and is under fourteen years of age, and was born on the day of , 19 . . , and resides with at IV. That , the Father of said Infant, is • living, and resides at V. Tliat . , the Mother of said Infant, is living, and resides at VI. That the names and post-office addresses of the nearest next-of-kin of full age residing ' in the County of , so far as they can be ascertained with due diligence, are as follows: Name. Relationship. Post-office Address. VII. That there are no other persons than those above mentioned interested in this proceeding. VIII. That said Infant is entitled to certain property and estate, and that to protect and preserve the legal rights of said Infant it is necessary that some proper person should be duly appointed the guardian of h . . . person and estate. Said Infant has now no General or Testa,mentary Guardian appointed by will or deed, or an acting Guardian in socage or a Guardian of the Person appointed pursuant to Section 86 of the Domestic Relations Law, to the knowledge or belief of your petitioner. IX. That the estimated value of the personal property to which the Infant is or will be entitled is dollars ; that the annual income from all other personal property to which the Infant is or will be entitled is , ! dollars ; 1144 FORMS No. 173 and that the annual rents of the real estate to which the Infant is or will be entitled to, do not exceed the sum of , dollars, or thereabouts. Wherefore your petitioner prays: That a. citation issue a decree issue appointing the Guardian of the person and estate of said Infant during h . . . . infancy. And your Petitioner will ever pray. Dated, New York, day of ,191 . Petitioner. Add verification as in Form No. 7. FOEM NO, 173. Petition for Appointment of General Guardian for Infant over H. Caption as in Form No. 1, continmng: the Application for the Appointment of a General Guardian of the Person and Estate of Petition. An Infant over fourteen years of age. First three pa/ragra/phs as in Form No. 9, contimuimg: II. That your Petitioner is a resident of the County of , an infant over fourteen years. of age and was born on the day of 19. ., and resides with at . , III. That ,..,.,......., your Petitioner's Father is , living, and resides at IV. That your Petitioner's Mother is living, and resides at ....:; < V. That the names and post-office addresses of the nearest next-of-kin of full age residing in the County of New York, so far as they can be ascertained with due diligence, are as follows: Name. Relationship. Post-Office Address. VI. That there are no other persons than those above mentioned interested in this proceeding. VII. That your Petitioner is entitled to certain property and esta,te, and that to protect and preserve the legal rights of your Petitioner it is necessary that some proper person should be duly appointed the guardian of h . . . . person and estate. Your Petitioner has now no General or Testamentary Guardian appointed by will or deed, or an acting Guardian in socage or a Guardian of 1145 2To. 174 FORMS the Person appointed pursuant to Section 86 of the Domestic Relations Law, to the knowledge or belief of your petitioner. That the estimated value of the personal property to which the Infant is or will be entitled is . . * dollars; that the annual Income from all other personal property, the principal of which will not come to the hands of the Guardian to which the Infant is or will be entitled is dollars ; and that the annual rents of the real estate to which the Infant is or will be entitled to, do not exceed the sum of dollars, or thereabouts. Wherefore your petitioner prays: That a citation issue That a decree issue appointing residing at General Guardian •of h person and estate. And your Petitioner will ever pray. Dated, New York, day of , 191 . . . Petitioner. Add acknowledgment as in Form No. 5, continuing: State of New York 1 r County of being duly sworn, doth depose and say, that he has read the statements contained in the foregoing petition as to the estimated value of the estate of said infant, and verily believes the same to be true. Sworn to before me, this 1 day of , 191... I FORM NO. 174. Citation on Petition for Appointment of General Ouardtan. THE PEOPLE OF THE STATE OF NEW YOKK Bt the Grace or God Feee and Independent. To , Greeting : Whebeas, who resides at 1146 FORMS , No. 175 has presented a, petition praying for a decree awarding Letters of Guardianship of the property of Infant , Now, THEEEFORE, you and each of you are hereby cited to show cause, before our Surrogate's Court of the County of , to be held at the Hall of Records, in the County of , on the day of , 191 .. , at ten o'clock in the forenoon, why such decree should not be made. In testimony wheeeoi', we have caused the seal of our said Surrogate's Court to be hereunto afSxed. Witness, Hon , Surrogate of our said County, at the Borough of , in the County of , the day of , 191... ( Cleric of the Surrogate Court. FORM NO. 175. Waiver of Citation and Consent to Appointment of General Guardian. Caption and title as in Form No. 112 or 173, contirming : The undersigned Name. Relationship. of the above-named Infant do hereby waive the issue and service of a citation herein and do hereby consent and pray that be appointed the General Guardian of the person and estate of said Infant. Add aolimowledgment as in Form A'o. .5. 1147 Nos. 176-178 FORMS FORM NO. 176. Designation by Guardian of Person on Whom Process May Be Served. Caption a/nd title as in Form No. 176, continuing: I, • the proposed Guardian named herein of the person and estate of .• , an infant, do hereby designate the Clerk of the Surrogates' Court of the County of , and his successor in oiEce, as a person on whom service of any process issuing from the Surrogates' Court of the County of may be made in like manner and with like effect as if it were served personally upon me, whenever I cannot be found and served within the State of New York after due diligence used. I am a resident of No Add acknowledgement as in_ Form No. 5. FORM NO. 177. Renunciation of Letters of Guardianship, Caption a/nd title as vn Form No. 172 or 173, continuing: I, , ••.•:•■■•■■ do hereby renounce all right to Letters of Guardianship of the person and prpp- erty of the above-named infants. Dated the day of 191. .. Add acknowledgment as in Form No. 5. FORM NO. 178. Oath of Guardian. Caption and title as Form No. 172 or 173, acowding as infant is under or over 14, continuing: State of New York County of I, ...• do depose and say that I am a resident of No in State of New York and that I am over twenty-one years of age; and I do solemnly swear and declare that I will well, faithfully and honestly discharge the duties of Guardian of the person and estate of Infant, according to law. Sworn to before me this 1 day of , 191... f • 1148 FORMS No. 179 FOEM NO. 179. Bond of General Ouardian. Know all men by these presents, that we, are held and firmly bound unto ■■ of The City of New York, a Minor fourteen years of age, in the sum of Dollars, lawful money of the United States, to be paid to the said Minor, executors, administrators or assigns; to which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors and administra- tors, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of one thousand nine hundred and Whereas, by a decree of the Surrogates' Court of County, dated the day of 19 ... . the above bounden was appointed General Guardian of said Minor, now therefore. The Condition of the Obligation ia such, that if the above-bounden will, in all things, faithfully discharge the trust reposed in h . . . . , and obey all lawful directions of the Surrogate touching the trust; and that he will, in all respects, render a just and true account of all money and other property re- ceived by h , and of the application thereof, and of h guardian- ship, whenever he required so to do by a Court of competent juris- diction, then this obligation to be void, else to remain in full force and virtue. Sealed and delivered in presence of L. S. L. S. L. S. Add acknowledgment as in Form iVo. 3. I know the within-named sureties to be the identical persons that they rep- resent themselves to be, and to be responsible parties, and I believe them to be worth at least $ . ■ ■ each in good property. 1149 Nos. 180-183 rOEMS FORM NO. 180. Justification of Surety to Guardian's Bond. Same as in Form No. 57. FORM NO. 181. Decree Appointing General Guardian. Caption as in Form No. 2, with title as in Form No. 172 or 173, contimuMff: On reading and filing the Petition of , verified , 191 .. , herein, for the appointment of as General Guardian of the person and property of , and on filing the Bond re- quired by law in the premises, which said Bond has been duly approved; It is decreed, that said be and .... he hereby is appointed General Guardian of the person .... and property of said infant . . . ., to serve until said Infant .... attain the age of twenty-one years, or a successor to said General Guardian shall be appointed and that Letters of Guardianship issue, on filing the oath as required by law. Surrogate. FORM NO. 182. Letters of Guardianship. The People of the State of New, York to , Send Greeting; Whereas, an application in due form of law, has been made to our Surro- gate of the County of , for the appointment of as guardian of .'. , an Infant over years of age, and Whereas, said has given and made and filed his consent, oath and bond, pursuant to law, for the faithful discharge of his duty as such guardian, and we {continue from # m Form No. 184, omitting the word "testamentary" when it occurs.) FORM NO. 183. Letters of Testam,enta/ry Guardianship. THE PEOPLE OF THE STATE OF NEW YORK. To of the testamentary guardian ap- pointed in the last will and testament of deceased, for , infant child of said deceased, Send Greeting : J150 FORMS No. 184- Whebeas, the last will and testament of said , deceased, was duly admitted to probate by the Surrogate of the County of , on the day of , one thousand nine hundred and , in and by which said is appointed as the testamentary guani ian of .• . . , the said Infant. And whereas, said. has taken and filed the oath of office [and has filed a bond], pursuant to law, for the faithful discharge of his duty as such testamentary guardian; and we being satisfied [of the sufficiency of said bond, and] that said is a good and reputable person, and is in every respect competent to have the custody of the person and estate of said Infant, do by these presents allow, constitute and appoint you the said the testamentary guardian of the person and estate of said infant, during his minority, hereby requiring you, the said guardian,* {con- tinue from * in Form No. X86.) FORM NO. 184. Petition for Ancillary Ouardianship, Caption as in Form No. 1, continuing: of , for Ancillary Letters of "j Guardianship of the (Person and) Property I of , an Infant. I Th/ree first paragraphs as in Form No. 9, o&ntinuing: II. That , an infant of the age of years, resides without the State of New York, and within # the United States [or # a foreign country] , viz., at III. That said infant is entitled to (personal) property within the State of New York [or, to maintain an action (or special proceeding) ] in a court thereof, viz., Court (respecting such personal property) by reason of the following facts: i IV; That the petitioner # has been appointed by a Court of competent juris- diction within the said State (or Territory) of , where the said- infant resides, guardian of said infant's property; and has there given security in at least twice the value of the personal property and of the rents and profits of the real property of said infant [or, # is authorized to act as guardian of said infant's property within said , (fweign country) , where said infant resides.] V. That (personal) property of said infant is situated in the County of , State of New York, as follows : VT. That there are (no) debts due or to become due from said infant to a resident of the State of New York (as follows) : VII. That the said security given by the petitioner is sufficient in amount to cover the property sought to be obtained by the letters granted through this petition. VIII. That said Court in the State (or Territory or Country) of 1151 Nps. 185, 186 FORMS ^lad jurisdiction of said infant; and that this petition is accompanied with # exemplified copies of the records and other papers showing that the petitioner has been so appointed [or, when not appointed iy any court # with proof th^t, pursuant to the laws of such foreign country, the petitioner has authority to act as such guardian in said foreign country and is entitled to the possession of said infant's personal estate.] IX. That there are no other, persons interested in this application or pro- ceeding than those mentioned. The petitioner therefore prays for ancillary letters of guardianship of the (personal) estate of said infant. Add verification as in Form No. 7. FOKM NO. 185. Decree for Ancillary Letters of Guardianship. Caption and title as in Form No. 184, continuing: On reading and filing the petition of •. . . herein, verified .... , 191.., and the exemplified copies of records and papers [or, proof] accompanying, said petition; and it appearing to. the Surrogate's satisfaction upon the papers presented that the case is one within section 2654 of the Cp^e of Civil Procedure and that it will be for interest that ancillary letters of guardianship on his estate should be issued to the petitioner; [and it further appearing to the Surrogate's satisfaction that all the persons to whom he directed citation herein to issue have been duly served therewith] ; and it further appearing that debts are due or owing from said infant to residents of New York State, as follows : > it is Decreed and Directed, that said debts be paid by the petitioner [or, that security for the payment tjf said debts be given by the petitioner as follows : ] ; and it is further Decreed, that on payment being made [or, security being given] as aforesaid, ancillary letters of guardianship issue to ,: , aa guardian of the estate of , an infant. FORM NO. 186. Letters of Ancillary Guardianship. The People of the State of New York. To of the County of State of , Greeting: 1152 POKMS No. 187 Whereas , who lias been duly appointed the General Guard- ian of the property of , a minor, by a court of competent jurisdiction within the State of . ., where the said minor resides, haa presented to the Surrogate's (s') Court of the County of a petition for his appointment as Ancillary Guardian of said minor; And wheeeas the Surrogate ( or one of our Surrogates ) has, on the day of , 191. ., made a. decree granting such petition, and direct- ing that such Ancillary Letters of Guardianship issue to the petitioner. We, in pursuance of said decree, do by these presents issue these Letters, constituting and appointing you, the said the Ancillary Guard- ian of said minor, until another Guardian shall be appointed, hereby requiring you, the said Guardian, *to safely keep the real and personal estate of said minor which shall hereafter come to your custody, and not suffer any waste, sale or destruction of the same, but to keep up his (said) lands, tenements and hereditaments, by and with the rents, issues and profits thereof, or with such other moneys belonging to him as shall come to your possession, and deliver the same to him when he becomes of full age, or to such other Guardian as may be hereafter appointed, in as good order and condition as you received the same, and also to render a just and true account of all moneys and prop- erty received (or secured) by you, and the application thereof, and of your Guardianship in all respects to any court having cognizance thereof, when thereunto required. In Testimony Whereof, we have caused the Seal of Office of the Surro- gate's (s') Court of the County of to be hereunto affixed. Witness, Hon ., Surrogate (or a Surrogate) of said County, at the County of , the day of , in the year of our Lord one thousand nine hundred and (L. S.) Clerk to the Surrogate's (s') Court. FORM NO. 187. Chtardian's Petition to Supreme Court for Sale of Infant's Realty and Appoint- ment of Special Quardimi. Siipreme Court, County. In the Matter -of-' The Application of as General Guardian of . , Infants, for the sale of the Real Property of said Infants, . Petition. To the Suprenle Court of the State of New York. ' The petition of .• ;...., as Genei:al Guardian of . . , Infants, respectfully shows, that your petitioner is the N. Y. E. & S.— 73. 1153 No. 187 FORMS father of , who reside with your petitioner at No^ , in the , County of , State of New York, and that, by decree of tlie Surrogate's Court of the County of ....dated , 191.., your petitioner was duly appointed Guardian of the persons and property of the said infants, who were then all under fourteen years of age, and ever since that time your peititioner has acted, and is still acting, as General Guardian of each of said infants. The said was born on , and was years of age On her last birthday; the said was born on , and was years of age on lier last birthday. The said infants are children of , who died on .... Said was the daughter of , who died on , leaving a Last Will and Testament, which was duly admitted to probate by the Surrogate of the County of By his said Will, the said created a life estate for his widow, .....;...: ,' with a remainder to his children, , and , and his grandchildren, and The said died on At the time of lier death the said residuary estate consisted of certain personal property, and of certain real property known as No , in the , City of ., State of New York. The infants are, by the terms of the said Will, now seized and possessed of an undivided one-fourth interest in the said real property, the remaining three-fourths interest therein passing under the said Will to the said , and The said rqal property is more particularly described as follows : The said premises are improved as one parcel, such improvement consisting of a foUr story and basement brown stone house; which was erected upwards of thirty years ago. During the past eighteen years the premises have been rented, the rental for many years past having been at the rate of a year. Tlie assessed value of the said property for the year 191 . . is $ The said premises are subject to a mortgage now past-due for $ bear- ing interest at the rate of five and one-half per cent, per annum. Your petition- er has for many years been engaged in the buying and selling of real estate in the City of , and in the erection of buildings and improvements on such real estate. I am familiar with values of property of the class here- inbefore described. In my opinion, the fair market yalue of the said real property does not exceed the sum of $. I have been informed that several appraisers put the value at less than that figure. -I am advised by the- Trustees under the Will of .' that, during recent years, the expenses for repairs to the said building have been heavy. I am advised that the said a tenant in common as afore- said of the said property, has acquired, by deed from jjjs title to and interest in the said premises, and that the said is now the owner of an undivided three-fourths interest in the said premises. I have been informed by the said that he is unwilling to continue to hold this property as tenant in common with the said infants because of the inconveniences and embarrassments necessarily involved in rent— 1154 FORMS No. 187 ing, selling, mortgaging, or otherwise managing real property where infants have an undivided interest, and that, to protect his own interest, he will be compelled to bring an action for the partition of the said premises, and for the sale thereof in said action, unless the infants shall procure leave of tliis Court for a, sale of their interest therein. The said further advises me that he is willing to purchase the interests of the said in- fants, at a price based upon the full market value of the property, provided the Court shall approve such purchase. Your petitioner believes and alleges that the interests of the said infants require, and will be substantially pro- moted, by the sale of their undivided one-fourth interest in the said real prop- erty, for the reason that, if their said undivided interest is not sold, an action for partition will be brought by their co-tenant, with the consequent large expense and loss to them. Your petitioner further believes that the amount the infants would receive for their one-fourth interest on a sale can be invested in legal securities at a rate which will provide a larger income than they will receive from their in- terest in the said property. ' Your petitioner, as General Guardian of the said infants, is desirous that proceedings shall be brought on their behalf for the sale of their interest in the said premises, and is willing and desires to be appointed the Special Guard- ian of the said infants for that purpose, and annexes hereto his consent duly acknowledged. Your petitioner alleges that he is a competent and responsible person to become such Special Guardian and to protect the rights of the said infants, and that he has no interests adverse to the said infants. Your peti- tioner, if appointed as such Special Guardian, proposes to give as security a- bond of a surety company authorized to. do business in this State in the form and in such amount as the Court shall direct. Your petitioner believes that, as hereinbefore shown, the total value of the interest of all of said infants ; in the said real property does not exceed the sum of $ , and he prays that the bond to be given by him, if the Court shall appoint him such Special Guardian, shall be based on that amount. That no previous application for the sale of the interests of these infants in this or any other real property, or for the appointment of a Special Guardian for that purpose,, has heretofore been made, either by your petitioner, or by or on behalf of the said infants. Your petitioner further alleges that the said infants are not interested, as tenants in common, or otherwise, in any other real property. ■ ; Wherefore, your petitioner prays that the real estate above described may be sold by and under the direction of this Court; that he may be appointed the Special Guardian of the said infants for the purpose of selling their interests in the said real estate; and that all such proceedings may be had in the prem- ises as may be proper and necessary for that purpose. Dated, , 191.. . Petitioner. m Add verification as in Form No. 7. 1355 Nos. 188, 189 FORMS FORM NO. 188. Petition of Infant over H for Sale of Realty and Appointment of Special (huurdicm. Caption and title as in Form No. 187, continuing: To the Supreme Court of the State of New York. The petition of respectfully shows : I am the daughter of , the petitioner named in the fore- going petition and the sister of , infant therein named. I am an infant over the age of fourteen years, having been born on the day of December, I am a resident of , and my home is with my father, at I have read the foregoing petition and understand the matters therein set forth. I believe all the statements in said petition to be true; so far as I have knowl- edge of the facts, they are true. It is my desire that my undivided one-twelfth interest in said real property shall be sold under the direction of this Court, and that my said father, shall be appointed Special Guardian herein for that purpose. I hereby join in said application for the sale of said real property, and petition this Court for the relief prayed for in the foregoing petition of said No previous application has been made for the relief asked for in the fore- going petition or in this petition. Dated, 191... Add verification as in Form No. 7. FORM NO. 189. Affidcmt iy One to he Appointed Special Guardian. Caption and title as in Form No. 187, inith beginnmg as in Form No. S, con- tinuing : That he resides at that he is the father of the above named infants, , and and is fully competent to understand and protect the rights of the said infants- that he has no interest adverse to the interests of the said infants, and is not connected in business with the attorneys or counsel of the adverse parties or any of them. That he is of sufficient financial ability to answer to the said in- fant for any damage which may be sustained by his negligence or misconduct in the prosecution of the proceedings, and is worth the sum of at least $ over and above, all his debts and liabilities, and besides property exempt by law from levy and sale under execution. Jurat as in Form No. 4. 1150 FORMS FORM NO. 190. Consent to Act as Special Chuurdian. Caption and title as in Form No. 187, contimmng: I hereby consent to become the Special Guardian of and , with respect to the proceedings referred to in my peti- tion, verified the day of , 191 . . . Dated, 191... Add acknowledgment as m Form No. 3. FOEM NO. 191. Order Appointing Special Oua/rdnan, Caption as in Form No. 2, with title as in Form No. 187, continuing: On reading and filing the petitions of and verified respectively , 191 . . , and , 191 .. ; and the affidavit and consent of , verified and acknowledged respectively , 191 . ., and , 191. . ; and it appearing that said is fully competent to understand and protect the rights of said , and of , infants and suitable to act as Special Guardian of said infants, and is not connected in business with the attorneys or counsel of any of the adverse parties and is of sufficient fiaiancial ability to answer to said infants for any damage which may be sustained by his negligence or miscon- duct in the prosecution of the proceedings and is worth the sum of at least $ over and above all his debts and liabilities, and besides property exempt by law from levy and sale under execution ; it is, on motion of , Esq., attorney for said ' Ordered, that said be and he hereby is appointed Special Gviardian of said infants with respect to the proceedings mentioned in said peti- tions, upon his filing a bond with the Clerk of this Court with individual sure- ty, approved by this Court as to form, amount and sufficiency of surety, con- ditioned for the faithful discharge of his trust, for the paying over and invest- ing of, and accounting for, all moneys received by him in said proceedings, according to the direction of any Court having authority to give directions in the premises, and for the observance of the directions of the Court, in relation to the trust. 1157 Nos. 192, 193 FORMS FORM NO; 192. , \ Petition of Special Guardian for Appointment of Referee. Caption and title as in Form No. 187, continuing: To the Supreme Court of the State of i\ew York: The petition of , as Special Guardian of and , respectfully shows : I. That by order of this honorable Court, entered herein on the .... day ot , 191 . . , your petitioner, upon his petition and the petition of . . . . , both verified the .... day of , 191.., and his consent and affi- davit of 'competency, acknowledged and verified respectively the .... day of , 191 .. , was appointed. Special Guardian of and the infants herein, and was authorized to prosecute for them as such Guardian, the proceedings mentioned in the said petition of your petitioner, on his giving, according to law, a bond of a surety company, authorized to do business in this State, in the penal sum of $ to each of the said infants. II. That in accordance with the said order, your petitioner has given and filed with the Clerk of this Court, two bonds of the Company, a corporation authorized to do business in this State, each in the penal sum of $ III. No previous application has been made for the relief asked for in this petition. WHEEErORE, your Petitioner asks that a Referee be appointed to inquire into the merits of the application set forth in the said petition of your Peti- tioner, verified the day of , 191 . . . Dated , 191.., Petitioner. Special Guardian for and Add verification as in Form Wo. 7. FORM NO. 193. Order Appointing Referee. At a Special Term of the Supreme Court, held in and for the County of at the County Court House in , in said County, on the day of ..., 191... Present: Hon Justice. Title as in Form No. 187, continuing: On reading and filing the petition of , as Special Guardian for and , verified the .... day of , 191 1158 FORMS No. 194 for the appointment of a Referee herein, whereby it appears that the bonds required by order entered herein on the . . day of , 191 . . , have been duly filed as required by said order; and upon the petitions of and , both verified the day of , 191. ., and the con- sent and aflSdavit of , acknowledged and verified respectively the day of 191 . . , all of said papers having been heretofore filed herein; and it appearing from said papers that a suitable person should be appointed Referee herein to inquire into the merits of the application for the sale of the said infants' realty; Ordered, that , Esq., be and he hereby is appointed Referee to inquire into the merits of the said application, to examine into the truth of all the allegations of the petition of the said , verified the .... day of , 191 . . , to hear the allegations and proofs of all persons interested in the property, or otherwise interested in the application and to report his opinion thereon, together with the testimony with all con- venient speed. Enter J. S. C. FORM NO. 194. Referee's Report. Oaption and title as in Form No. 187, continuing: In pursuance of an order of this Court in the above entitled matter dated , 191 . . , referring it to me, the subscriber, as Referee to inquire into the merits of the application for the sale of the above mentioned infants' realty; to examine into the truth of all the allegations of the petition of , the Special Guardian, in this proceeding, verified the .... day of , 191 . . , to hear the allegations and proofs of all persons interested in the property or otherwise interested in the application, and to report my opinion thereon, together with the testimony, with all convenient speed, I hereby report as follows: Before proceeding herein I duly took and signed an oath as Referee, the original of which is hereto annexed and filed herewith; that I then pro- ceeded to inquire into the merits of the said application, to examine into the truth of all the allegations of the said petition, to hear the allegations and proofs of all persons interested in the property or otherwise interested in the said application; and I do Further report that, upon such hearing, I was attended by , of counsel for the petitioner, and by the following witnesses, , and upon the testimony and evidence produced before me, and which is returned and filed with this report, I hereby find and report as follows: I. That and are infants under the age of fourteen years, excepting the said , who is an infant over fourteen years of age, and that they are the children of the petitioner, and , who died 1159 No. 195 FORMS II. That the said was the daughter of , late of , who died , and that, by the provisions of the Will of the said .i, his widow was given the income of certain property of which the said testator was possessed, in- eluding No in the city of , during her life, and upon her death said property was given to the testator's children, , and the children of his deceased child , who are the infants , and ; in this proceeding. III. That the said , died and that the said two infants are now seized of an undivided one-fourth interest in the said premises known as No , and that the remaining three-fourths interest is vested in the said of No i , one-fourth of the said three fourths interest vesting in him upon the death of the said , and the other two-fourths interest having been acquired by him by deed from the said IV. That the value of the premises known as No cltar, unencumbered, and as one undivided whole, is , that the said premises are subject to a past due mortgage of bearing inter- est at 5i per cent, per annum; that the value of the said premises over the said mortgage now a lien on said premises is $ , that the value of the undivided one-fourth interest of the said infants in the equity in said prem- ises is $ ; and I do Further report that the mortgagor of said premises has requested the owners of the property to make arrangements for the payment or extension of the said mortgage which is now past due;' that the said premises can be used only as an undivided whole, and profitably used only for residential purposes: that the said now seized of all of the interest in the said premises except the outstanding one-fourth undivided interest in said infants, is unwilling to hold said property as a tenant in common with said infants and threatens to bring an action to partition the said premises; that in my opinion, for. the reasons in this paragraph set forth, a sale of the undivided one-fourth intei-est of the said three infants in the said premises will be bene- ficial to them. Dated, Referee. FORM NO. 195. Referee's Oath. Caption and title as in Form No. ISf, continuing : I, , the Referee appointed in the above-entitled proceeding by order of this Court dated the .... day of , 191. ., being duly sworn before proceeding to hear the testimony, do say that I will faithfully and fairly hear and determine the questions referred to me, and that I will make a just and true report, according to the best of my understanding. Referee. Jurat as in Form No. 4. 1160 rORMS Nos. 19U, 197 FORM NO. 196. Testimony Before Referee. Caption and title as in Form No. 187, continuing: New York, . , , 191 . . > The parties met this day at the office of the Referee, No For the Special Guardian, j , Esq. ; The Referee duly took the oath required by law. It is agreed that copies of the following papers may be used in this pro- ceeding instead of the originals, with the right to the Referee, however, to demand the production of, the originals, if he so desire. Mr This is a special proceeding brought by as Guardian of , and , infants, for the sale of an undivided one-fourth interest in real estate owned by them. , being duly sworn, testified as follows : Direct examination by Mr Q A etc. Sworn to before me this" .... day ....,191.., Referee. FORM NO. 197. Petition for Order for Special Guardian to Enter Into Contract of Sale. Caption and title as in Form No. 187, continuing: To the Supreme Court of the State of New York: The Petition of as Special Guardian for and , infants, respectfully shows: I. That in accordance with an order of this Honorable Court entered the . . day of , 191 . . , the application of your petitioner as Special Guard- ian of the said infants for the sale of the said infants' real estate was referred to , Esq., as Referee, to inquire into the merits of the said appli- cation, to hear allegations and proof, and to report his opinion thereon, to- gether with the testimony; that in accordance with the said order the Referee has filed his report with the Clerk of this Court, showing among other things that the value of the premises sought to be sold, to wit. No , is $ ; that said premises are subject to a past due mortgage for $ ; that the one-quarter claim of the said infants in the equity of said property is worth $ , and that a sale of the one- quarter share of the said Infants will be to their interest. 1161 No. 198 FORMS II. That no previous application has been made for the relief asked for in this petition. Wheeefoeb, your petitioner asks that an order be made authorizing and permitting your petitioner on behalf of the said infants to enter into a con- tract of sale to be submitted to this Court and approved by it, whereby your petitioner as Special Guardian for the said infants, and on their behalf, shall agree to copvey the undivided one'-fourth interest in the said premises now vested in the said three infants to the responsible person oflfering the highest sum therefor, provided, however, that your petitioner shall not make any agreement of sale of said undivided one-fourth interest for a sum less than $ , which is the value of the said undivided one-fourth interest determined upon the basis of a value of $ for the whole of the said premises, clear and unencumbered, and deducting therefrom the past due mortgage of $ now on said premises. Dated, , 191.. Petitioner. Add acknowledgment as in Fornt No. 5. FORM NO. 198. Order Confirming Referee's Report and Empowering Special Guardian to Enter Into Contract of Sale. Caption as in Form No. 2, with title as in Form No. 187, continuing: On reading and filing the report of Esq., the Referee appointed in the above-entitled matter by this Court, bearing date the .... day of , 191.., from which it appears satisfactorily to this Court that a. sale of the undivided interests of the said infants in the premises referred to, and the sale of which is asked for, in the petition of as General Guardian of the said infants, dated the .... day of , 191 . . , is required by the interests of the said infants, for the reasons and circumstances in sueh report stated, and on reading and filing the petition of as Special Guardian for the said infants, requesting the authority and per- mission of this Court to enter into a contract of sale of the undivided inter- est of the said infants in the said premises with the highest responsible bidder therefor. Now, on motion of , attorney for the said petitioner, it is Oedeked, that the said report be, and the same is hereby confirmed, and it is further Ordered, that the said as Special Guardian for the said infants, and on their behalf be, and he is hereby authorized and empowered to enter into a contract for the sale of all the right, title and interest of the said infants in and to the said premises, to-wit, No with a responsible person offering the highest sum therefor, provided, however, that no agreement of sale shall be made in which the Undivided interest of the said 1162 FORMS No. 199 infants shall be sold for a sum less than $ which is the value of the said undivided one-fourth interest determined upon the basis of a value of $ for the whole of the said premises, clear, unen- cumbered and as one undivided whole and deducting therefrom the past due mortgage of $ now on said premises ; and it is further Obdebed, that before executing any deed or instrument of conveyance of the said premises to the purchaser thereof, the said Special Guardian do report to this Court on oath the terms and conditions of the agreement made by him for the sale of the interest of the said infants in said premises, and the name of the purchaser thereof. J. S. C. FORM NO. 199. Petition of Special ChiardAan Showvng Prospective Gontraetce to Buy. Caption wnd title as vn Form No. 187, contvnuing: To the Supreme Court of the State of New York: The petition of , as Special Guardian for and , infants, respectfully shows : I. That in accordance with an order of this honorable Court entered the day of , 191 .. , that your petitioner should enter into a contract of sale for the undivided interest of the aforesaid infants in the premises referred to in said order, to-wit. No , , your petitioner has secured from , of No , an oflFer of $ ... . for the undivided one-fourth interest of the said infants in the said premises, as will more fully appear from the annexed petition of the said '......:., dated the .... day of , 191 .. ; that the said offer is $ or per cent, larger in amount than the price for which your petitioner is authorized to sell the said interest by the said order of this Court entered , 191. ., because the said order authorized your petitioner to sell the one-fourth undivided interest of the said infants in said premises for the sum of $ or more, the said price being determined upon the value, as found by the Referee, of $ for the whole of said premises, clear and unencumbered, or $ , when the past due mortgage of $ on said premises is deducted, whereas the offer of $ by the said is based upon a value of the whole of said premises, clear and unencumbered, of $ or $ when the said past due mortgage is deducted. II. That because of the reasons set forth in the annexed petition of , to-wit, that as he was by the terms of his father's will made a trustee of the said premises he is, although he is advised that the said trust has terminated, unwilling to purchase the interest of the said infants in the said premises except by express order of this Court, the said is 1163 No. 200 FORMS unwilling to purchase the outstanding interest of the said infants unless by virtue of an order of this Court. III. That your petitioner as father and Special Guardian of the said infants deems it advantageous and to the best interest of the said infants that the contract of sale prayed for in this petition be entered into. IV. That no previous application has been made for the relief asked for in this petition. Whebefoee, your petitioner asks that he be authorized and empowered to enter into a contract of sale to be submitted to this Court and approved by it, whereby your petitioner, as Special Guardian of the said infants, and on their behalf, shall agree to convey to the said for the sum of $ the undivided one-fourth interest in the said premises now vested in the said Infants. Dated, , 191.. Petitioner. Add verification as in Form No. 7. FORM NO. 200. Petition of Contractee of Willingness to Buy. Caption and title as in Form No. 187, continuing: To the Supreme Court of the State of New York: The petition of , respectfully shows : I. That by an order of this honorable Court entered the .... day of , 1.91. ., , as Special Guardian for the above-named infants is authorized and empowered to enter into a, contract of sale for the undivided one-fourth interest of the said infants in premises referred to in said order, to-wit. No , with a responsible person oflfer- ing the highest sum for the interest of the said infants in said premises, pro- vided such sum be not less than $ . . . . which is the value of the interest of the said infants as found by the Referee appointed herein, upon the basis of a value of $ for the whole of said premises, free, unencumbered and as one undivided whole. II. That your petitioner under the will of his father, ; deceased, was named with others as Exequtor and Trustee of property of the said decedent, including the aforesaid premises; that your petitioner is advised that the trusts created by the said will have now been terminated because of the death of the life tenant; that upon the death of the life tenant your petitioner became seized" of an undivided one-fourth interest in the said prem- ises; that , upon the death of the life tenant, likewise became seized of an undivided two-fourths interest, and that the above- named infants upon the death of the life tenant became seized of the remaining undivided pne-fourth interest. III. That vour petitioner has acquired by deed from the said 1164 FORMS No. 201 her undivided two-fourths interest in the said premises, and is now seized of an undivided three-fourths interest therein; that your petitioner is willing to purchase the outstanding one-fourth interest in the said premises now vested in the said infants, but that, although your petitioner is advised that he no longer has any powers or duties as trustee with respect to tlie said premises because of the death of the life tenant and the consequent ter- mination of the trust, yet he is unwilling to purchase from the said infants their undivided one-fourth interest in the said premises unless by an express order of this honorable Court, which will avoid any question hereafter arising as to his right to purchase the same by reason of his having been previously a trustee with respect thereto. IV. That the said premises have been owned by your petitioner's father for many years, and your petitioner has lived there, and that your petitioner, therefore, is willing for sentimental reasons to make payment for the outstand- ing interest in the said premises now in the said infants upon the basis of a value of $ for the whole of said premises, clear and unen- cumbered, although the value thereof, clear and unencumbered, as found by the Referee herein was $. . ; that for these reasons your pe- titioner was willing to pay for the undivided two-fourths interest of , and is willing to pay for the remaining one-f ourtli interest now vested in the said infants, the sum of $ each , computed as follows : Considering the premises as worth $ free and unencumbered, and as one undivided whole, and deducting the past due mortgage thereon of $ , for which your petitioner agrees to be responsible, the net value is $ , one-fourth of which equals $ V. That no previous application has been made for the relief asked for in this petition. Wherefore, your petitioner asks that an order be made authorizing and permitting your petitioner to enter into a contract of sale to be submitted to this Court and approved by it, as more fully set forth in the petition of as Special Guardian for the said infants, annexed hereto, whereby your petitioner shall be authorized and empowered to enter into a contract with the said as the Special Guardian for the said infants and on their behalf, for the purchase of the undivided one-fourth interest in the said premises now vested in them for the sum of $ Dated, ,191.. Petitioner. Add verification as in Form No. 7. FORM NO. 201. Order Authorizing Specific Contract of Sale. Caption as to Form No. 2 and title as in Form No. 187, continuing: On reading and filing the petitions of and as Special Guardian for the above-named infants, dated respectively the 1165 No. 202 FORMS and the day of , 191 .. , from which it appears satisfactorily to this Court that a sale of the interest of the said infants in the premises therein referred to, to-wit, No , can be made to the said , to the advantage of the said infants, and for a sum larger in amount than that required by order of this Court dated the day of , 191. ., but that the said is unwilling to pur- chase the interest of the said infants in the said premises unless by express order of this Court, because of the fact that he was appointed a trustee of the said premises by the will of his father, the late of although the said is advised that his powers and rights as such trustee have terminated by virtue of the death of the life tenant under the said will. Jiom, on motion of , Esq., attorney for the said Special Guardian, it is Ordered, that the said , as Special Guardian for, and on behalf of the said infants, be and he is hereby authorized and empowered to enter into a contract with the said , subject to the approval of this Court, for the sale and conveyance of all the right, title and interest of the said infants in and to the said premises commonly known as No for the sum of $ ; and it is further Ordered, that the purchase of the interest of the said infants in the said premises by the said on the terms herein provided be and the same is hereby permitted and approved; and it is further Ordered, that before executing any deed or instrument of conveyance of the interest of the said infants to the said , the said Special Guardian do report to this Court, under oath, the terms and conditions made by him for the sale of such premises and the name of the purchaser. J. S. C. FORM NO. 202. Report ty Special Guardian of Making of Contract of Sale. Caption and title as in Form No. 187, contvnuirtg : To the Supreme Court of the State of New York: In pursuance of an order of this Court made in the above-entitled matter on the day of , 191 . ., I, as Special Guardian therein named, do report: That I have entered into an agreement of sale, subject to the approval of this Court, with , residing at No , for the sale of the undivided one-fourth interest of the above-named infants ^in and to the premises commonly known as No , in the said City, County and State, for the price of $ , as more fully appears from the original of the said contract of sale hereto annexed and made a part hereof; and I do further report: That the terms and conditions upon which I have made such agreement, sub- 1166 rOEMS No. 203 jeot to the approval of this Court, are the best terms upon which I could sell the said interest, and that in my opinion such sale is to the best interest of the said infants. Dated, , 191... Special Chuardian. Add verification-as m Form No. 7. FORM NO. 203. Contract of Sale. Agreement, made this day of , 191 . . , between and Infants, of , by , their Special Guardian, of the same place, parties of the first part, and residing at No , in the said County and State, party of the second part, Witnesseth: That subject to the approval of the Supreme Court of the State of New York in the County of , the parties of the first part agree to sell and convey, and the party of the second part agrees to purchase, all of the estate, right, title, interest, claim and demand whatsoever in law or equity, whether joint, several or in common, and whether under and by virtue of the terms of the Last Will and Testament of , deceased, late of said City, County and State, or otherwise of the said infants, and of the said , as Special Guardian for the said infants, in and to all of that plot or parcel of land in the said Borough, City, County and State commonly known as No , and more particularly described as follows : together with the appurtenances. It is covenanted and agreed. First: That the parties of the first part, by their Special Guardian, shall deliver a deed of the said premises to the party of the second part when this agreement of sale shall be approved by the Supreme Court of New York in the County of , in accordance with an order of the said court dated the day of , 191..' Second: That upon delivery of such deed the party of the second part shall pay to the party of the first part the sum of $ , the price to be paid for the said interest, which is an undivided one-fourth interest in the said premises. , . In Witness Whereof, the parties hereto have set their hands and , seals the day and year first above written.. In the Presence of : , By , Special Ouardiam. 1167 Nbs. 204, 205 FORMS FORM NO. 204. Order Confirmmff Report and Contract of Sale, Caption as in Form Wo. 2, amd title as in Form No. 1S1, continuing: On reading and filing the report of i > ^^^ special guardian of the above-named infants, dated the day of , 191 .. , made in pursuance of an order of this court dated the day of , 191. ., stating that as such special guardian and in pursuance of such order he has entered into an, agreement,, subject to the approval of this- court, vpith residing at No for the sale of the interest of the said infants in and to the premises com- monly known as No , in the said city and state, upon certain conditions and terms in such report and in the said agreement of sale thereto annexed stated. Now, on motion of , Esq., attorney far such Special Guardian, it is ORDERED, that the said report and the agreement thereto annexed, dated respectively the and days of , 191 . . , be, and the same hereby are ratified, approved and confirmed; and it is FURTHER ORDERED, that the interest of the said infants in the real estate described in the said agreement of sale be sold and conveyed by the said Special Guardian to the said in accordance with the terms and conditions in the said agreement specifiedj and that the special guardian in the name of the said Infants execute, acknowledge and deliver to the said a good and sufficient deed and con- veyance of all the estate, right, title and interest of the said infants in and to the said premises upon his paying the purchase price and fulfilling the other conditions and terms in the said agreement specified; and it is FURTHER ORDERED, that the special guardian hold the purchase price of the said premises subject to the further order of this court for the benefit of said infants. J. S. C. FORM NO. 205. I Deed. This Indenture, made the day of , nineteen hundred and ( 191 . ) , by and between and > Infants, by their special guardian. , parties of the first part, and , residing at No , , party of the second part. 1168 FORMS No. 205 Witnesseth : Whereas, The aforesaid , as general guardian for the aforesaid infants, presented his pdRtion dated the .... day of 191 . , joined in by tlie aforesaid infant , who is over fourteen years of age, by her petition of , 191 . . , to tlie Supreme Court of the State of New York, making application for the sale of thi; interests of the said infants in the premises in said petitions mentioned and hereinafter described, upon which petitions an order was made by the said Court, dated the day of , 191. . , appointing the aforesaid the special guardian of the said infants for the purposes of said application upon his filing certain bonds in said order specified, which were subsequently duly filed and approved; and Whereas, upon the petition of said special guardian dated .... March, 191 . . an order was made by the said court dated the .... day of , 191 . , referring the matter to , Esq., as referee, to ex- amine into the said application and report thereon, and such proceedings were thereupon had that by orders of the said court dated the .... and day.s of , 191 . , respectively, it was in substance ordered that the said special guardian be authorized to enter into a contract for the sale of the interest of the said infants in the said premises subject to the approval of the said court; and Whereas, The said special guardian in the manner and upon the terms in said orders specified contracted for the sale of the interest of the said infants in the said premises to , the party of the second part to this indenture, for the sum of $ , the highest sum offered for the said interest; and thereupon the said special guardian made his report on oath of such agreement to this court in accordance with the aforesaid orders of this court dated the .... and .... days of , 191 . , upon which this court by order dated the .... day of , 191., confirmed and approved such agreement of sale and directed the same to be carried into effect by the execu- tion, acknowledgment and delivery by the said special guardian to the said of a deed to the said premises upon his complying with the terms and conditions in the said agreement of sale contained; and Whereas, The said has complied with the said terms, Tiow, Therefore, This Indenture Witn,esseth: The said parties of the first part by , their special guardian, for and in considera- tion of the sum of $ , lawful money of the United States, to them in hand paid, the receipt whereof is hereby acknowledged, have bargained, sold, granted, released and conveyed, and 6y these presents do bargain, sell, grant, release and convey unto the party of the second part, his heirs and assigns for- ever, all of the estate, right, title, interest, claim and demand whatsoever in law or equity; whether joint, several or in common, and whether under and by virtue of the terms of the last wr.H and testament of , deceased, late of or otherwise, of the said infants and of the said as Special Guardian of the said infants, in and to the whole and every part of that plot or parcel of land in the County of , City of , N. Y. E. & S.— 74. 1169 No. 206 FORMS and State of New York, commonly known as No , and more particularly described as follows: together with the appurtenances. In Witness Whereof, the parties o* the first part by their Special Guardian aforesaid have hereunto set their hands and affixed their seals the day and year first above written. (L.S.i (L.S.i By Special Q^uardian. Add acknowHedgnient as vn Form No. 5 hy Special Oua/rdian as such. FORM NO. 206. Affidavit of ChiarcUwn for Arm/uat, Aocountiag, Caption as vn Form No. 1, continmng: the Annual Inventory and Account of' General Testamentary of Guardian . , Infant. _ State of New York,) County of ,f I, residing at No ^«"«^'^' Guardian of Testamentary infant . . , do depose and say that on the day of ^ I was duly appointed the Tesilm^ntlry ^""'iian of . . . . . . , , a Surrogate of .,_,,,._,, , infant.., by ^^^ gupreme Courf County of New York; that no money or property of any description has come into my hands, or been received by any other person by my order or authority for my use since , . . the date of my (appointment or last account) as such Guardian, and that there 1170 FORMS No. 207 is no money or property of any description remaining in my hands as Guardian of said infant on December 31, 19 ... . *Name of Sureties. Residence of Sureties. Jurat as in Form No. 4. •The names and residences of the Sureties on his bond; if natural persons whether they are living, and whether the security of the bond has become im- paired. FORM NO. 207. Annual Aocownt of Guardian. Caption a/nd Title as in Form No. SOS, continuing: I, residing at No. General _ , , Guardian of Testamentary infant . . , do make, render and file the following Inventory and Account for the year ending Dec. 31, 19 . . On the day of 191. ., I was duly appointed the _ . , Guardian of Testamentary . , , , one of the Surrogates . ., „ , . infant. . , by ., <-i ^ ^ "i tne County of ■' the Supreme Court •' Schedule A, hereinafter set forth (as part of said Inventory), contains a full and true statement and description of each article or item of personal property and the value thereof, and each sum of money, either principal or in • terest of said infant received by me since my appointment or my said last account to Dec. 31, 19 . . . Schedule B, hereinafter set forth (as part of said Inventory), contains a full and true statement and list of the articles or items of said property or moneys remaining in my hands Dec. 31, 19. . . . Schedule C, hereinafter set forth ( as part of said Inventory ) , contains a full and true statement of the manner in which I have disposed of the articles or items of said property or money not remaining in my hands Dec. 31, 19 ... . Schedule D, hereinafter set forth (as part of said Inventory), contains a full and true statement of the amount and nature of each investment of money made or held by me, and of the manner in which the fund is at present in- vested and the name of the bank in which any moneys are at present deposited and any interest Infant has in Real Property. , . Said Schedules A, B, C and D constitute said Inventory and are respectively signed by me. Schedule E, hereinafter set forth and signed by me, is a full and true sum- 1171 No. 207 FOEMS mary in form of debtor and creditor, of all my receipts and disbursements of money and of investments made or held by me since my appointment or since my account made for the year 19 . . , dated > and distinctly states the total amount of the balance remaining in my hands as shown by the last account; and the total amount of the balance in my hands to be charged to me in the next year's account, is the sum of , Dollars. Schedule F shows the name and residence of each surety on the bond if a nat- ural person, whether he be living at the time of the rendition of the account; and whether the condition of any surety on the bond have become so impaired as to materially affect his financial responsibility. All of which is respectfully submitted. Dated, , 191. . SCHEDULE A. Guardian. SCHEDULE B. Guardian. SCHEDULE C. Guardian. 1172 FORMS No. 208 SCHEDULE D. Guardian. SCHEDULE E. Guardian. SCHEDULE F. Guardian. FORM NO. 208. Affidavit to GuardioM's Annual Account, State of New York,) County of ( I, being duly aworn, do depose and say, that I am the ^ ^ jiejaTrao Guardian of lestamentary infant; that the foregoing Inventory and Account contain to the best of my knowledge and belief a full and true statement of all my receipts and dis- 1173 No. 209 FORMS bursements on account of my ward; and of all money and other personal property of my ward which have come to my hands or have been received by any other person by my order or authority or for my use since and of the value of all such property, together with a full and true statement and account of the manner in which I have disposed of the same, and of all the property remaining in my hands at the present time; and a full and true description of the amount and nature of each investment made by me since and that I do not know of any error or omission in the Inventory or Account to the prejudice of my ward. Jurat as in Form No. Jf. FORM NO. 209. Petition for Judicial Settlement of Ouardian's Aocoimt, As in Form No. 1, continuing: the Judicial Settlement of the Account of Proceedings of 1 Petition. Guardian of Infant. First three paragraphs as in Form No. 9, continuing: II. That letters of Guardianship upon the Estate of ^ infant the age of four- teen years, were granted to your petitioner . . on the day of 19 ... , by this Court. III. That the said infant. . on the day of , , 19. ., attained the age of years. IV. That the names and post-office addresses of the said infant . . , and the sure on the official bond of your petitioner . . and of all other neces- sary and proper parties, are as follows: Kame. Nature of Interest. Post-Office Address. 1174 FORMS No. 210 v. That there are no other persons than those above mentioned interested in this proceeding. VI. That your petitioner desirous of rendering an account of all . . h . . proceedings as such Guardian to the Surrogates' Court of this County, and of having the same judicially settled, and of being discharged. Wherefore, Your petitioner . . pray . . that a citation issue to the above- named person . . to show cause why account as such Guardian should not be judicially setled and why should not be discharged. Dated ,19... Petitioner. Add aoknoicledgment as in Form No. 5. FOEM NO. 210. Chiardian's Final Account. Caption and title as in Form No. 209, continuing: To the Surrogates' Court of the County of New York; residing at do hereby render the following account of proceedings as Guardian . . of Infant . . . On the day of 1. . ., Letters of Guardianship on the estate of said Infant. . were granted to by this Court. On the day of 1 . . . , caused to be filed in the office of the Surrogate of this County, a true and full inventory and account of each article or item of personal property belonging to said Infant . . , pursuant to Sections 2660 and 2661 of the Code of Civil Procedure; and annu- ally thereafter, to wit, on the caused to be filed in the office of said Surrogate annual inventories and accounts of the property of said Infant . . as prescribed by the Sections of the Code of Civil Procedure above specified; the last of which said inventories and accounts was so filed on the day of 1 . . . ; and the value of the property of said Infant then remaining in hands amounted to the sum of $ Schedule "A" hereto annexed contains a statement of all property belonging to Ward which came into hands upon assuming the office of Guardian. Schedule "B" hereto annexed contains a statement of all property which has 1175 No. 211 FORMS come into hands since said day of 1 . . . , together with a statement of all debta due said Ward collected by and also of all moneys and interest re- ceived by for which legally accountable. Schedule "C" hereto annexed contains a statement of all property of said Ward . . now remaining in hands and a full and true description of the amount and natvire of each investment made by since appointment. Schedule "D" hereto annexed contains a statement of all property charged in Schedules "A" and "B" not now remaining in hands, together with a statement of the manner and purposes of its disposal. Schedule "E" hereto annexed contains a statement in form of debit and credit of all moneys received and disbursed by on account of said Ward . . since the said day of 1 . . . , and distinctly states the balance now remaining in hands. Schedule "F" hereto annexed contains the name . . , age . . and place . . of resi- dence of the Ward . . for whom have acted as Guardian. Schedule "G" hereto annexed contains a statement of all other facts aflfecting administration as such Guardian. charge as follows : With amount of property as per Schedule "A" $ With amount of increase as per Schedule "B" $ Total $ credit as follows : With amount as per Schedule "D" $ With amount of Disbursements as per Schedule "E" $ Total $ Leaving a balance $ to be distributed to said Ward. ., subject to the amount of commission and the expenses of this accounting. The said Schedules which are severally signed by are a part of this account. Guardian . . of Infant. FORM NO. 211. Affidavit to Chia/rdian's Account. Caption a/nd title of proceeding, continuing: State of New YorkJ County of f Guardian . . of Infant . . , being duly sworn, do depose and say, that the foregoing account and schedules con- tain to the best of , . knowledge and belief a full and true statement 1176 FORMS No. 212 of all receipts and disbursements on account of said Ward . . , and of all money and other property of the said Ward . . , which have come to hands or have been received by any other person by order or authority or for use since appointment : and of the value of all such property, together with a full and true statement and account of the manner in which have disposed of the same, and of all the property remaining in hands at the present time, and a full and true description of the amount and nature of each investment made by since appointment; and do not know of any error or omission in the foregoing account or schedule to the prejudice of said Ward., or of any creditor of or person interested in said estate or fund. Ouardian, Sworn to before me, this 1 day of ; , 19 . . . FORM NO. 212. Decree Settling Guardian's Account. Caption as in Form No. 2, xmth title as in Form No. S09, continuing: Guardian of infant. . , having heretofore filed a petition, verified on the day of , 191 . . , in which application was made to the Sur- rogate of the County of , for a judicial settlement of account as such Guardian . . , and a citation having been thereupon issued, pur- suant to statute, directed to citing them to show cause before the said Surrogate, at his office in The County of , on the day of 19 . . , at ten-thirty o'clock in the forenoon of that day, why the account of said Guardian should not be judicially settled, and the said citation having been returned with proof of the due service thereof on The following persons in interest have waived the issuance and service of ei tation, and consent that a decree be made settling the account as filed, to wit: {Erase unnecessary allegations.) 1177 No. 212 FORMS and the aaid Guardian . . having appeared on the return day of said citation and the said Guardian . . having rendered account under oath, before the said Surrogate, and the account having been filed, and and the same matter having been duly adjourned to this day, the said Surrogate, after having examined the said account, now here finds the state and condition of the said account to be as stated and set forth in the following summary state- ment thereof, to wit: A Summary Statement of the account of proceedings of Guardian of infant . . , made by the Surrogate as judicially settled. The said Guardian chargeable as follows: To amount as per schedule The said Guardian credited as follows : With amount as per schedule Leaving a cash balance in hands of And it appearing that the said Guardian . .ha. . fully accounted for all the money and property of the estate or fund of said infant., which have come into hands as such Guardian . . , and account having been adjusted by the said Surrogate, and a summary statement of the same having been made as above and herewith recorded, it is hereby or- dered, adjudged and decreed, that the said account be and the same is hereby judicially settled. And it is further ordered, adjudged and decreed that 1178 FORMS Nos. 213, -214 FORM NO. 213. Petition to Prove Heirship, Caption as m» Form No. 1, continuing: the Petition of 1 to Prove Ms Heirship to , I , Deceased. J Three ■first paragraphs as in Form No. 9, continuing: II. That died a resident of the County of , on , 191 . . , intestate ( or, without having devised his real property), and seized in fee of real property within the State of New York. III. That the petitioner is #an heir of said decedent (or, #a person deriving title from or through , , an heir of said decedent) . IV. That this Court has acquired jurisdiction of the estate of said decedent and has issued letters of administration therein to , on , 191 . . [or, that no Surrogate's Court has acquired jurisdiction of the estate of said decedent; and that rpal property of which said decedent died seized is situated in the County of ] V. That said real property is described as follows : VI. That the interest {or share) of the petitioner and of each other heir of said decedent in said real property is as follows : VII. That the names and post-office addresses of all persons interested in this proceeding who are required to be cited upon this application or con- cerning whom this court is required to have information are given above; and that there are no other persons than those mentioned interested in this ap- plication or proceeding. The petitioner therefore prays for a decree establishing the right of in- heritance to said real property and that all the heirs of said decedent may be cited to show cause why the prayer of this petition should not be granted. Add verification as in, Form. No. 7. FORM XO. 214. Citation on Probate of Beirship, Adapt from Form No. 43. 1179 Nos. 215, 216 FORMS FORM NO. 215. Decree on Probate of HeirsMp. Caption as in Form No. 2, with title as in Form No. 21S, continuing: On reading and filing the petition of , herein, verified , 191 .. , and the afSdavit of , herein, verified , 191 . . , showing due service of the citation herein upon all the persons entitled to be cited in this proceeding; and this Court, upon the return of said citation, having heard the allegations and proofs of the parties and determined all the issues raised; and the petitioner having established the fact of the death of , the above-named decedent, the place of said decedent's residence at the time of his' death,' the intestacy of said decedent (as to the real property here in question), the heirs entitled to inherit the property in question, the name, age, residence and relationship of each such heir to said decedent, and the interest or share of each such heir in the property here in question; it is Decreed, that the property here in ques- tion is described as follows : ; and it is further Decreed and Declared that the right of inheritance to said property has been established to the Surrogate's satis- faction, according to the facts, as follows : , FORM NO. 216. Answer. Caption as in Form No. 1, with title of proceeding, continuing: 1> hy , my attorney, answering the pe- tition herein: T. Deny the allegations contained in the paragraph numbered of said petition. II. Deny the allegation contained in the paragraph of said petition numbered that i III. Deny that I have any knowledge or information sufficient to form a belief as to the allegation contained in the paragraph numbered of said petition that ; and therefore deny the same IV. Allege Wherefore I demand {the decree, order or other relief to which thr party supposes himself to he entitled.) A dd rcriflcatio'n (is in Form No. 7. 1180 FORMS Nos. 217, 218 FORM NO. 217. Subpoena. The People of the State of New York: To Greeting : We command you, That all business and excuses being laid aside, you and each of you appear and attend before the Surrogate of the County of , at a Surrogate's Court to be held in and for the County of at , on the day of at o'clock in the noon, to testify and give evidence in a certain special proceeding now pending in said Court, entitled In the Matter of and for a failure to attend you will be deemed guilty of a contempt of Court, and liable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit Fifty Dollars in addition thereto. Witness, Hon , Surrogate of our said County, at , the . ., day of one thousand nine hundred and L. S. Clerk of the Surrogate's Court. FORM NO. 218. Affidavit of Service of Citation. Caption as in Form No. 1, with title of prooeeding, and heginning as in Form No. S, continuing: That he is over twenty-one years of age [or, if tetween 18 and 21 years old, that he is years of age] ; that he made service of the annexed citation in the above entitled speciM proceeding on the persons named below, whom deponent knew to be the persons mentioned and described in said citation, as follows : On the day of , 191 .. , at in the City of , County of , and State of New York, a domestic corporation, by delivering to and leaving with , Managing Agent {or, president or other head, secretary, clerk, cashier, treasurer, or director) for said corporation, a true copy of said citation. On the day of ' , 191 . . , in the Town of , County of , State of New York, on , an 1181 No. 219 FORMS adult person {or, an infant of the age of 14 years or upwards), by delivering to and leaving with her, personally, a true copy of said citation. On the day of , 191 . . , at , on , an infant under the age of 14 years, by delivering to and leaving with said infant, personally, a true copy of said citation, and also, at the same time and place, on , father {or, mother, or guardian, or person having the care and control of said infant, or the person with whom said infant resides, or the person in whose service said infant is employed), by delivering to and leaving with said , personally, a true copy of said citation. On the day of , 191 . . , at , on , a person judicially declared to be incompetent to manage his affairs by reason of lunacy {or, idiocy, or, habitual drunkenness) by delivering to and leaving with said , personally, a true copy of said citation, and also, at the same time and place delivering to and leaving with , the committee of said .»....., a true copy of said citation. On the day of , 191 . . , at , on , a foreign corporation {as provided in § 432, C. C. P.) On the day of , 191 . . , at , on , a public officer, by delivering to and leaving with ^jtsaid , a copy of said citation [or # , one of said 's duly constituted deputies], a true copy of said citation. Jurat as in Form No. 4. FORM NO. 219. Affidavit for Order of Service of Citation iy Substitution on Resident Whose Place of Residence or Business is Knoum But Cannot be Served. Caption as in Form No. 1, with title of proceeding, and beginning as in Forni No. 3, continuing: ' ■ I. That deponent has made proper and diligent effort to serve the citation herein, hereto annexed, upon a person named therein^ a resident of this State, whose place of residence {or, of business) is known, viz., :■...'. , as more fully appears ffom the following detailed statement of deponent's effort to make said service : II. That said {the person to be served) cannot be found at his place of residence or place of business, and cannot be elsewhere served within this State within a reasonable time ( or, if fornid, that said evades service of said citation, so that it cannot be made.) The deponent therefore prays an order directing that service of said citation upon said may be made as prescribed in Sections 436, 437 and 2525 of the Code of Civil Procedure. Jurat as in Farm No. 4. 1182 FORMS Nos. 220, 221 FORM NO. 220. Order Dircciing Service of Citation hy Substitution on Resident Whose Place uf Business or Residence is Knoion But Who Camnot be Served. Caption (IK in Form No. 2, with title of proceeding, contimiing: On reading and filing the affidavit of verified , 191.., from which it appears to the Surrogate's satisfaction that proper and diligent effort has been made to serve the citation heretofore issued herein from this Court upon the person [or corporation] named below and in said citation, and that said person [or, corporation] is a resident of the State whose place of residence [or place of business] is known, and that said person can- not be found at his [or, its] said place of residence or business and cannot be elsewhere served within the State within a reasonable time [or, if fovmd, that said person evades service so that it cannot be made], it is Ordered, that it be and it hereby is directed that service of sa,id citation be made upon ( state names and residence or place of business) by leaving a copy thereof and of this order at the residence [or, principal office or place of business] of said with a person of proper age if upon reasonable application admittance can be obtained and such person found who will receive it; or, if admittance cannot be so ob- tained, nor such a person found, by affixing the same to the outer or other door of said 'a said place of residence {or business) , and by depositing another copy thereof, properly enclosed in a postpaid wrapper, addressed to said at his place of residence [or, business] in the post office at the place where he resides or where said place of residence [or business] is located. FORM NO, 221. Affidavit of Service of Citation by Substitution on Resident Whose Residence or Place of Business Is Known But Gomnot Be Served. Caption as in Form No. 1, with title of proceeding, and begirming as in Form No. 3, continuing: That he is over twenty-one [or, if between 18 and SI, — ] years of age; that he made service of the annexed citation and order of this court entered herein , 191 . . , in the above-entitled special proceeding on the persons named below and in said citation, whom deponent knew to be the persons mentioned and described in said citation, as follows :# On the day of , 191.., at , the residence [or principal office or place of business] of , named in said citation, on said , by delivering to and leaving with , , a person of proper age, a copy of said citation and order. 1183 No. 222 FORMS [Or, after failing to obtain admittance upon reasonable application to the residence [or, principal office or place of business] of named in said citation, on said > ^7 affixing a copy of said citation and order to the outer {or other) door of said a said place of residence or, of business, or office]. And, further, by depositing another copy of said citation and order, properly enclosed in a postpaid wrapper, addressed to said 3,t his lor, its] place of residence [or, principal office, or place of business] in the post office, at the place where he resides [or, where said office, or place of business, or residence, is located.] Jurat as in Form No. 4- FORM NO. 222. Affidavit for Order for Service ijf Publication on Resident Creditors Exceed- ing 50 in Number. Caption as in Form No. 1, with title of proceeding, and begvtming as in Form Tio. 3, continuing: I. That deponent is , and as such is fully con- versant with the facts in this proceeding. II. That in this proceeding it is necessary to cite known creditors or persons claiming to be such residing within the State of New York, upon whom cita- tion is required to be served, and who exceed 50 in number, as follows: Names. Last Known P. O. Addresses. et al. et. al. Deponent therefore prays an order directing that service of said citation on said creditors and persons claiming to be such be made by publication thereof in such newspaper or newspapers and for such length of time as shall be fixed by the Surrogate, and by mailing a copy of such citation to each of said persons by deposit of a copy thereof in the post-office, properly enclosed in =-, postpaid sealed wrapper addressed to each of them at his last known post- office address as stated in said order, at least 20 days prior to the return day thereof, Jurat as in Form No. 4- 1184 FORMS Nos. 223, 224 FORM NO. 223. Order for Service, by Puhlication on Resident Creditors Eaxeedvng 50 in Nttmher. Caption as in Form No. 2, with title of proceeding, continuing: On reading and filing the affidavit of , verified ., 191. . , that it is necessary to cite known creditors and that the number thereof or of persons claiming to be fiuch residing within the State of New York upon whom citation herein is required to be served exceeds fifty, and such persons or creditors being listed below, it is ORDERED, that service of the citation herein upon : {names and postoffioe addresses of creditors) be made by publication thereof in these newspapers : and , once in each week for successive weeks, and by mailing a copy thereof to each of said persons by deposit of a copy thereof in the postoffice, properly enclosed in a postpaid sealed wrapper addressed to each of said persons at his last known postoffice address aforesaid, at least 20 days prior to the return day thereof, FORM NO. 224. Affidavit of Service of Citation hy Mailing to Resident Creditors Exceeding 50 in Number. Caption as in Form No. 1, with title of proceeding, and begirming as in Form No. S, continuing as in Form No. 221, to :jj:, and then oontinnUng : — On the .... day of 191. ., by depositing a copy of said eitation- and order in the postoffice, properly enclosed in each one of postpaid, sealed wrappers, addressed respectively to the last known postoffice address of each of the following persons as stated in said order: — Name. Last Known Post-Office Address. Jurat as im Form No. 4. N. T. E. & S.— 75. 1185 NOS..225, 226 TOBMS FORM NO. 225; Petition for Order Directing Service of Citation Outside State or by Pub- lication. First three paragraphs as in Form No. .9, continmng : II. That lie js of the above-named decedent and is familiar with the proceedings had herein. III. That the corporations named in this paragraph and in the citationi herein, are foreign corporations, as appears from the following facts : (state names of corporations and facts showing they are foreign). IV. Tliat the persons named in this paragraph and in the citation herein, are not residents of New York State, as appears from the following facts : . . . . (state names, residences amd facts showing nonresidence ) . V. That the persons named in this paragraph and in the citation herein, are residents of New York State, and substituted service upon them cannot be authoi'ized as provided in section 2525 of the Code of Civil Procedure, by reason of the following facts: , VI. That the citation herein is to be served upon a party (or, a person re- quired to' be made a party ) whose name (or, residence) cannot be ascertained,. as appears from the following facts: VII. That the citation herein is to be served upon one or more unknown creditors (or, next of kin, or, heirs, or, legatees, or other persons) individually ( or, included in a class ) , to whom said citation has been directed, designated by the general diescriptioh of " . . ," as appears from. the following facts: VIII. That the petitioner has used due diligence to ascertain the names and postoffice addresses of the parties above-named' wliose names or postofncie ad- dresses are unknbwn, as appears from the following facts : . ' The petitioner therefore prays an order directing the service of said cir.a- tiony . personally without the state and by' publication (or one only of the ticxt ways) as provided in section 2528 of the Code of Civil Procedure. Verification as in Form So. 7. FORM NO. 226. Order Directing Service of Citation Outside State or by Publication. Caption as in Form No. 2, mth title of proceeding, continuing : On reading and filing the petition of , verified 191.., and it appearing- to the Surrogate's satisf^iction that the citation issued herein from this court is to be served upon a person who is not a resident of New York Sta.te. [or, upon a foreign corporation-; or, upon a resident of Now York State upon whom substituted service cannot be authorized as provided ■ in section 2525 of the Code of Civil Procedure; or, upon a party (or, a person 1186 FORMS No. 227 required to be made a party) whose name {or, residence) cannot be ascertained; or, upon one or more unknown' creditors ( or, next of kiu, or heirs, or legatees, or other persons) individually ( or, included in a class to whom said citation has been directed; designating them by a general description) ; and it further appearing to the Surrogate's satisfaction that the said petitioner has used due diligence to ascertain the names and postoffice addresses of the parties whose names and postoffice addresses are unknown, it is ORDERED, that service of said citation upon ( na-ming or describing persons) be made by delivering a copy of said citation without the state to each of said persons, in person; OR, at the said petitioner's op- tion, by publication of said citation in and {two newspapers or only one if estate or fund less than $5,000) once in each of four successive weeks; and it is FURTHER ORDERED, that said citation be also served by mailing a copy of said citation to each of said persons by the deposit, on or before the day of its publication, in Postoffice, of a copy of said cita- tion, contained in a securely closed post-paid wrapper, directed to the person to be served ; ' And it appearing to the surrogate's satisfaction that , one of said persons to be served, is an infant under the age of 14 years, it is FURTHER ORDERED, that a further copy of said citation, likewise con- tained in a securely closed post-paid wrapper, be deposited in said postoffice, directed to .........;.... the father ( or, mother, or guardian ) of said infant, and to ;,...., the person with whom said infant is sojourning. FORM NO. 227. Order in N, T. Cownty for Sermoe of Citation By Publication. Caption, a^ in Form So. .?, icith title of proceeding, continu ing : Upon filing the verified petition of J , deceased. late of the County of New York, by which the petitioner has made proof to my satisfaction that legatee ....:. or next of kin of said , deceased, and that not .... resident .... of this State, and that personal service of the citation herein cannot with due diligence be made upon '. within the State, and by which said petition the petitioner has also made proof to my satisfaction that there other legatees or next of kin of said deceased, whose names and post office addresses are 1187 No. 227 ■ FORMS unknown, and cannot after diligent inquiry be ascertained by the petitioner, and also that legatee or next of kin of said deceased, and that post office address are and residence are unknown and cannot after diligent inquiry be ascertained by the petitioner. Now, on motion of of counsel for the said , petitioner, Ordered: that the service of the citation in the above entitled matter, upon the aforesaid persons, viz.: be made by publication thereof in newspaper . , to wit : in the published in the County of New York, and in the , . . , published in the County of New York, once a week for four successive weeks; or, at the option of the petitioner . . , by delivering a copy of the citation to the above-named person, in person without the State. And it is further Ordered and Directed, That on or before the day of the first publication, the petitioner .... deposit in the post-office at the County of New York, cop of the citation, each contained in a securely closed post-paid wrapper, directed to the following person respectively, at the place designated below : And it is further Ordered, That service of citation in the above-entitled matter upon those persons whose names and places of residence are unknown, and cannot after diligent inquiry be ascertained by the petitioner herein, to wit: and also upon whose place of residence unknown, and cannot after diligent inquiry be ascertained by the petitioner herein, be made by publication thereof in newspaper , to wit: in the published in the County of New York, and in the published in the County of New York, once a week for four successive weeks; 1188 FORMS Nos. 228, 229 or, at the option of the petitioner , by delivering a copy of the cita- tion to the above-named person in person without the State. And I being satisfied by the said petition that the petitioner cannot with reasonable diligence ascertain a place or places where the said would probably receive matter transmitted through the post office, hereby dispense with the deposit of any papers therein. FORM NO. 228. Order Designating Person to Receive Citation for Infant. Caption os in Form No. 2, with title of proceeding, continuing: Upon the petition of '. of the Estate of late of the County of , deceased, and it appearing by the petition that It Is Ordered that a copy of the citation herein be also delivered to and left with Esq., Counselor-at-Law, of , in behalf of said infant at least eight days before the return day of said citation, and that the service of said citation shall not be deemed complete until such delivery. FORM NO. 229. Notice of Appearamoe. Caption as vn Form No. 1, with title of proceeding, oontinuing: Take notice that I am retained by and appear herein as attorney for , next of kin (or, other description) of (the above- named decedent), and demand that all papers herein be served upon me at my address given below. "••" • Attorney for Office and P. 0. Address, To the Clerk of the Surrogate's Court of the County of ^ et al. 1189 Nos. 230, 231 FORMS FORM NO. 230. Order of Reference to Take and Report Evidence on Facts. Caption as t» Form tlo. %, with title of proceeding, cantinwmg: The petition of Ordered, that said matter be and it hereby is referred to Esq., as Referee to. take and report to the Surrogate the eyidence upon the facts \^or upon a specific question of facf]. Sote: — In New York County reference may be had, on the written consent of all parties appearing, in a probate case, to take and report the testimony, but without authority to pass upon the issues involved therein. FORM NO. 231. Order of Reference to Etcamine Account, etc. Caption as in Form No. 2, -with title of proceeding, continuing: ^ , as {e. g., administrator of the goods, chattels and credits which were of , the above-named decedent) having duly rendered and filed liis account herein, duly verified , 191 . . , together with his petition, verified , 191 . . , for its judicial settlement, and a citation having been duly issued thereon and having been returned with due proof of its due service, and the matter having, duly appeared upon the calendar of this Court, and objections or answers having been filed to such account by , and the estate exceeding $1,000 and the items in such account to which objections have been made aggregating more than $200, it is Ordered, That said account be and it hereby is referred to ., Esq., Counselor at Law, to inquire into the necessary jurisdictional fact3, to examine said account, objections and answers, to hear and determine all questions arising upon the settlement of said account which the Surrogate has power to determine, and to make a report thereon to the Court with all con- venient speed; [and it is Further Ordered, that said Referee may sit for the purpose of taking testi- mony in any County in the State]. Dated, , 191.. 1190 FORMS Nos. 232-234 FOEM NO. 232. Referee's Summons. Caption as in Form No. 1, with title of proceed/mg, continuing: By virtue of an order of reference made and entered herein and bearing date the day of 191. .,1, , the Referee appointed thereby, summon you to appear at my office at , at .... o'clock in the noon of the .... day of , 191. ., to attend a hearing of all the matters in the said proceeding in reference before me as such Referee, pursuant to such order. Hereof fail not at your peril. Dated, , 191.. Referee. To , appearing by his attorney, et al. FORM NO. 233. Referee's Report. Caption as in Form No. 1, with title of proceeding, continuing: In pursuance of an order of the Hon , Surrogate of the Court, in the above entitled matter, entered , 191. ., referring it to me, the subscriber, as Referee, to • ( e. g., inquire into the necessary jurisdictional facts, to examine said account, to hear and determine all questions arising upon the settlement of said account which the Surrogate has power to determine, and to make a report thereon to the Court with all convenient speed), I hereby report as follows: [State that Referee took oath, took testimony, who appea/red, that witnesses aoere examined, (md Referees findings. See, generally, Form No. 194.} FORM NO. 234. Notice of Motion for Commission. Caption as in Form No. 1, with title of proceedJirig, contimimg: Take Notice that, upon the annexed affidavit of ; •: . , verified , 191 . . , and upon . . , and all proceedings had and taken herein, the undersigned will move this Court, at a term thereof to be held at , on the day of , 191 . . 1191 No; 235 FORMS at o'clock in the .... noon or as soon thereafter as counsel can be heard, for an order directing that commissions be granted in this proceeding, directed to ., Esq., , County of , State of , , or , Esq., ■. .:.., County of State of , or one or more other competent persons named therein for the examination on oath of ....'.., of ; as witness herein on behalf of said •. , upon written interrogatories to be annexed thereto, [or, upon oral questions] and for such other and further relief in the premises as may be just. Yours, etc.. To: Attorneys for OfSce & P. 0. Address, etc rOEM NO. 235. Affidavit on Which to Get Commissions. Caption as in Form No. 1, with title of proceeding wnd ieginmmg as in Form No. S, contimUrig: I. That he is {state relation to and interest in proceeding) . II. That this proceeding is '; . . (state character of proceeding and its condition), III. That . . ;.'... '; ..resides at , without the state, and his testimony is material to this affiant, as appears from the following: {state facts showing nonresidenoe and materiality of testimony) . IV. That affiant has fully and fairly stated to his counsel, who resides at , and whose office is at the facts which he intends to prove by said witness; and is advised by his said c>ounsel after such statement, and verily believes, that said witness is a ma- terial and necessary witness to affiant's said claim j and that said witness's testi- mony herein will be competent, rtlevtot and material in support of said claim- and that without said testimony this affiant cannot safely proceed. The affiant therefore prays that the testimony of said may be taken by commission issued by the Surrogate to a, competent person or persons named therein, authorizing him or one of them to examine the witness named therein under oath upon the interrogatories annexed to the commission [or, upon oral questions]; to take and certify the deposition of such witness; and to return the same and the commission according to the directions given in 1192 FORMS Nos. 236, 237 or with the commission, as provided in section 887 of the Code off, Civil Proce- dure of the State of New York. Jurat as in Form No. 4. FORM NO. 236. Order for Commission. Caption as in Form No. S, with title of proceeding, continuing: On reading and filing the notice of motion for a commission herein and the affidavit of ....'.;'....:....'.:;...., verified , 191.., by which it appears to the satisfaction of the Surrogate that the testimony of , therein named, is material to said aflBant as in the above-entitled proceeding, and that said is not within the State of New York, and that the issuance of a commission in sskid proceeding is necessary; aiid after hearing , Esq., attorney for said in support of the motion and , attorney for ;...... , in opposi- tion, on motion of , attorney for said ............ , it is ORDERED, that a commission issue in the above entitled proceeding directed to ■ . . of , to examine , of , the witness named in said affidavit of , under oath, upon the interroga- tories to be annexed to such commission [or, upon oral questions], to take and certify the deposition of said witness and to return the same with the commission according to the directions given in and with said commission. FORM NO. 237. Interrogatories. Caption as im Form No. 1, with title of proceeding, continuing: Interrogatories to be addressed to of , the witness to be examined under commission directed to be issued by an order entered herein on the day of , 191. ., proposed on behalf of the applicant ,.......,...., in the above-entitled proceeding. First Interrogatory. What is your name; where do you reside; what is your occupation! Second Interrogatory, etc. Lastly, do you know anything concerning the matters in question that may. 1193 Nos. 238, 239 FORMS tend to the benefit or advantage of . '. in showing ? If "Yea," declare the same fully and at large, as if you had been particularly interrogated concerning the same. The foregoing interrogatories are hereby allowed. Dated, , 191... {Note: Cross-interrogatories may be drawn in the same fashion, with the in- sertion of the word "cross"' before the word "interrogatories" and any other slight necessary changes.) FORM NO. 238. Notice of Settlement of Interrogatories or Cross Interrogatories. Caption as in Form, No. 1, with title of proceedmg, oontinimig: Take Notice that the annexed interrogatories [or, cross interrogatories], to be annexed to the commission granted by order of the Surrogate of this Court entered , 191 .. , will be presented for settlement to, Hon, , Surrogate of the County of , at Chambers, at .... o'clock of the noon of 191... Dated, ,., 191... Attorney for, etc. To: FORM NO. 239. Decision of Surrogate on Non-Jwry Trial. Caption as in Form No. 2, with title of proceeding, contimuvng : having presented to this court his petition, verified ' , 191. ., praying that '. , and' ......... .':. . having answered the said petition by answer verified by on ; ■ •, .191-, and . .• ; having, by permission of the court, intervened and' made themselves parties to said proceeding: and The issues thereby raised having been brought on for trial before me, and the proofs and all^ations of the respective parties having been heard, and After hearing '. , Esq., counsel for said petitioner, in support of said petition, and Esq., of counsel for said , in opposition to said petitioij. NOW, after due deliberation having been had I decide and find as follows: That , that the aforesaid petition of 1194 FORMS No. 240 should be dismissed and hia aforesaid motion denied, in all respects, on the merits, both on the law and on the facts, with $.. . ., eosts to the respondents; and That a decree should be entered accordingly. FORM NO. 240. Exceptiont. Caption as in, Form No. 1, with title of proceeding, eontinui/ng: , petitioner and moving party in the above entitled proceeding, hereby excepts to the decision made herein by Hon , Surrogate of the County of , and entered in the office of the clerk of said court on or about the .... day of , 191. ., in the following specific particulars: — I. To so much of said decision as finds, decides and concludes that n. To so much of said decision as finds, decides and concludes that (e. jr., in the proceeding for the probate of the will of said decedent all of the heirs at law and next of kin of the above named decedent duly appeared and consented to the probate of said will). III. To so much of said decision as finds, decides and concludes that and . . are heirs at law and next of kin of the above named decedent. IV. To so much of said decision as finds, decides and concludes that this ex- ceptant's petition should be dismissed and his motion denied in all respects upon the merits, both on the law and on the facts. V. To the decision that a decree should be entered dismissing this exceptant's petition and denying his motion. Dated, ,191... Attorney for Exceptant, Office & P. 0. Address, etc. To: The Clerk of the Surrogates' Court of the County of et at. 1195 Nos. 241, 242 FORMS FORM NO. 241. Decree. having presented to this court his petition, verified , 191. ., praying that and that he might have such other and further relief as to the court may seem just, and having moved this court by notice of motion, annexed to the aforesaid petition, and made on said petition, and the affidavits and other papers annexed to said petition and made a part thereof, for the relief prayed for in said petition; and , having answered the said petition hy answer veri- fied on , 191 . . , and , having, by permission of the court, intervened and made themselves parties to said proceeding; and The issues having been tried bpf ore Hon. , Surrogate of the County of ....... .,....., and the aforesaid parties ap- pearing by their respective attorneys, and the court having heard the allega- tions and proofs of the parties, and thSiCoifrt, after due deliberation, having duly made and filed its decision in writing, bearing date the . . day of , . , 191.., directing an entry of a decree as hereinafter set forth; NOW, on motion of , attorney for , it is ORDERED AND DECREED, that and it is further ORDERED AND DECREED that the said petition be and the same hereby is dismissed and the said motion be and the same hereby is denied, in all re- spects, on the merits, both on the law and on the facts, with $. costs to respondents. EORM NO. 242. Notice of Appeal. Caption as in Form No. 1, with title of Proceeding, continuing: Take notice that , petitioner in the above entitled proceeding, appeals to the Appellate Division of the Supreme Court in the Department from the decree made herein by Hon • Surrogate (or by the Surrogate's Court of the County of ) , and entered in the ofiice of the Clerk of said Court on or about the .... day of , 191. ., and from each and every part thereof. {OR, Take Notice that , moving party in the above entitled proceeding, appeals to the Appellate Division of the Supreme Court in the ; . . . Department from the order made herein by Hon Surrogate, ( or by the Surrogates' Court of the County of ) . and entered in the office of the Clerk of said Court on or 1196 FORMS No. 243 sbout the .... day of , 191 . . , denying said motion, and from each and every part thereof.] Dated, , 191... Attorney for , etc. To: The Clerk of the Surrogates' Court of the County of et al. FORM NO. 243. Exemplification of Papers in 8urrogatc?s Court. All which we have caused by these presents to be exemplified, and thf Seal of our said Surrogate's Court to be hereunto affixed. Witness Hon , Surrogate of the County of , at , the .... day of in the year of our Lord one thousand nine hundred and and of our independence the one hundred and Clerk of the Surrogate's Court. I , a Surrogate of said County and presiding Magistrate of the Surrogate's Court, do hereby certify that ,. whose name is subscribed to the preceding exemplification, is the Clerk of said Surrogate's Court of the County of , and that full faith and credit are due to his official acts. I further certify that the seal affixed to the exemplification is the seal of our said Surrogate's Court, and that the attestation thereof is in due form, and according to the form of attestation used in this State. Dated, 191... Surrogate. County of C ^. State of New York, | I , Clerk of the Surrogate's Court of the County of , do hereby certify that Hon. . .- , whose name is subscribed to the preceding certificate, is the presiding Magistrate of the Surrogate's Court of the County of , duly elected, sworn and qualified, and that the signature of said Magistrate to said certificate is genuine. In Testimony Whereof, I have hereto set my hand and affixed the seal of the- said Court, this day of , 191. . Clerk of the Surrogate's Court.. 1197 No. 244 FORMS FOKM NO. 244. Demand for Jury Trial. A. In Will Case, insert in tlie objections or answers: "a jury trial (of the issue of ) is demanded." B. In Any Other Case in Which, Objections or Answers Are Filed, demand should likewise be made in the answer or objections. C. In Any Other Proceeding, at any seasonable time therein, e. g., in the Notice of Appearance, as follows: "Take Notice that , appearing in the above entitled proceed- ing, demands a jury trial of the controverted question of fact as to arising herein." U98 INDEX TO FORMS. Abrogation of adoption: Form No. agreement abrogating adoption 13 from institution, by one other than foster parent, petition 17 from institution, citation, on petition by one other than foster parent 18 from institution, order, on application by one other than foster parent 1!) from institution, petition, by foster parent 20 order appointing special guardian 21 from institution, order, on foster parent's petition 22 Accoimt: annual, of guardian, affidavit of guardian' for 206 annual, of guardian, the account 207 annual, affidavit or oath of guardian to . . ; 208 bill of costs on '■ 132 citation on, voluntary ; 127 citation on, compulsory ...'."...:.:..'.. 328 decree settling ...',. ^ .... 131 of guardian, the account 210 of guardian, petition for settlement of 209 of guardian, affidavit or oath of guardian to 211 of guardian, decree settling 212 of limited administrator, the account 121 of limitG ' 63 Sale: of personalty, advice as to, see "Advice." of uncollectible, stale or doubtful debt or claim, see "Compositi6n." of personalty by temporary administrator, see "Temporary Administrator.'' Sale of infant's real estate in Supreme Court: aflBdavit by one to be appointed special guardian 1S9 consent of special guardian to act 190 contract of sale 203 deed '.,'.'. 205 oath of referee 195 order appointing referee 193 order appointing special guardian 191 order authorizing special guardian to enter into specific contract of sale 201 order confirming referee's report and empowering special, guardian to enter into contract of sale igg , order confirming special guardian's report and contract of aale ..... 204 petition for sale and appointment of special guardian 187 petition by infant if over 14 to same eflEeet 188 petition by special guardian for appointment of referee 192 petition of special guardian showing prospective purchaser 199 petition for order to special guardian to enter into contract of sale 197 ■ petition by would-be purchaser . 200 referee's report ......;... 104 report by special guardian of making of contract of sale 20;i testimony before referee 196 1216 INDEX TO POIJMS Sale, mortgage or lease of decedent's realty : ' Form No. bond .■.:i...:..... "i. ...;..:.'. iie order for ..;:...:.......: ^ : . 115 order on report of IIS report on .... ..;: .".\; .......... ;.' 117 supplemental account on ;■ ''.". .'I. llf» Service of Process : : . . , affidavit of service of offer of will for probate ..:'.'.: . '. 150 affidavit of service of citation . . : .:.;.. '. '. 218 affidavit for order for substituted service of citation on resident whose residence, etc., is known but cannot be served 219 affidavit of substituted service on resident whose residehce is known but cannot be served 22] affidavit for order of service of citation by publication on resident creditors exefifeding 50 in number 222 affidavit of service of citation by itiailihg to resident creditors exceed- ing 50 in number . . ; .....' 224 designation of clerk on whom may be served '. 143 designation by guardian of person on whom service may be made 176 order designating person to receive citation for infant 146, 228 order directing service of notice of objections to probate, and of such notice ; 155 order directing service of citation by publication or personally outside ■ ' ' ' of state ■....;.......'. .^ ... . . ; :\' ... 226 order directing service of citation by publication or personally in N. Y. county '.'. 227 order for service of citation by publication on resident creditors ex- ceeding 50 iri number i 223 order for substituted service on resident whose residence is known but cannot be served ...;.... .............'...'.:..'.... 22(1 petition for direction as to manner and time of Service of notice of objections to probate ...............: 154 ■ petition for order directing service by publication oi' personally out- side of state .........;:' ; 225 Settlement: consent to settlement of account . . . ... . . ;'. 129 of account, decree ...........;. 131 of limited administrator's account, decree ..;!..... 122 of account, of limited administrator, petitioii 120 of limited executor's account, decree 122 of account, of limited executor, petition for . '. 120 petition to compel, of account ...'..... .'. 124 petition for voluntary, of account .... .'j.'.l .......;.....•. 12."^ petition of guardian for, of account . 200 Special guardian : in proceeding in Supreme Court to sell infant's real estate, affidavit . . 189 consent to act 147 in proceeding in Supreme Court to sell infant's real estate, consent to act 190 N. Y. E. & S.— 77. 1217 INDEX TO- FORMS Special Guardian — continued. ' , Form No. I order appointing on abrogation of adoption 21 order appointing in proceeding in Supreme Court to sell infant's real estate 191 order empowering to enter into contract of sale in proceeding in Su- ; preme Court to sell infant's real estate 198 order authorizing to enter into specific contract of sale of infant's real estate in proceeding in Supreme Court : 201 order confirming his report and contract, of sale of infant's real estate in Supreme Court . . .„ 204 petition by, for appointment of, ref erep , in sale in Supreme Court of , , infant's real estate ,,......, , ,. . . 192 , petition for order to enter into contract of sale of infant's real estate ip. proceeding in Supreme Cojirt, 197 petition of, showing prospective purchaser of infant's • real estate in proceeding in Supreme Court tq sell same . . > 199 report of making contract of sale of infant's real estate in Supreme Court 202 Subpoena ...,.;...,....,,, ■ r ■ • ■ 217 Substituted service of .citation, see "Service, qf Process." Summons : of referee 232 Supple^qiental account: on sale, mortgage or lease of decedent's realty 119 Support and education^ see "Legacy" and "Distributive Share.?' Sureties : justifiQatiipn of. on ad;nin,istrator's bond 57 •justification of, on guardian's bond .• 180 Suspension: , , : . . . , ,. , ,,.,, ,,, of administrator, executor or testamentary trustee pending proceeding to reyoke, letters or remove .,,.,.. , ,;> . . ; .■„ 65 Tfjijiporary administrator; affidavit in support, oi motion to appoint 41 decree granting letters tq 47 letters of 53 notice of motion for appointment of 40 notice of application for authorization to sell personaltyi 96 .(Order appointing l , . . . ., ; 47 order shortening notice of applic^itiqn tq sell personalty 98 order authorizing to sell personalty ...,,., 90 , , petition for appointment 39 . , petition for authorization to sell personalty 97 Testamentary gusurdian, see "Guardian." Testamentary trustee: ,,^, accounting, see "Account." , decree removing, on petition gg- objections to qualification ^^ order suspending pending removail .j, .,,..... 65 petition for removal g ^ 1218 INDEX TO FORMS Testamentary Trustee — eontinued. Form JJo.' removal without . petition or citations, decree • . • •'2 removal for failure to give new bond, decree , v . .-. 61 Transfer tax: affidavit under law in relation to taxable transfers filed on application for letters 142 affidavit of assets for appraiser i. 25 affidavit to. secure waiver of comptroller 26 notice of appeal from order fixing i 2!) notice of motion to remit penalty : . . ; • 30 notice of motion to exempt from : 3." order appointing appraiser 24 order . fixing 2h order remitting penalty • , 32 order exempting from : 34 petition for designation of appraiser 23 petition to remit, penalty ., 31 petition to exempt from • 3.3 comptroller's waiver 27 Trial: decision ou findings of .jury in contested probate IS.'iG ' decision of surrogate on non-jury trial , 23!> by jury, demand for ■... 244 findings of jury i in contested probate . . ; ;....,.;- , IG.'iE note of issue < 15.5D notice of, by proponent '. ,. . . 155B notice of, by contestant ,..,.., , j . . 155C notice of motion for judgment probating will 155F order for jury trial in contested probate , ?^55A Trustee: ■ .i See Testamentary Trustee. ^ ,. Validity, construction and, ^Seat of will: ;....,,. citation on petition for determination of 16Q. ... decree determmmg ..,..., ,161 , petitioii for determination as to '. " 159 Verification: * ■• ■ by corporation '. 8 by individual 7 Waiver : in transfer tax proceeding, of comptroller, affidavit to secure 26 of citation and consent to probate 145 of citation and consent to appointment of general guardian 175 of citation and consent to settlement of account 129 of comptroller in transfer tax proceeding 27 Will: affidavit of service of notice of offer of will for probate 150 answer contesting probate of 152 attestation clause to 135 probate, citation on 144 1219 INDEX TO FORMS W 11 — oomtimued. Form No. d«cision on findings of jury in contest of ; . . 1556 decree for probate of .......:.... j 158 deposition of subscribing witness to 156 deposition of genuineness of signature of subscribing witness to will 157 findings of jury in contest of 155E foreign, petition to file exemplification of ; 162 general form of 133 note of issue of contested 155D notice of motion for judgment probating - 155!^ notice of objections filed to probate, combined with notice of oflfer for probate ; ; 153 notice of offer for probate 149 proponent's notice of trial of contest of 155B contestant's notice of trial of contest of . . ; .,. . ; '. 155C objections to probate of 151A, B & C order for examination of one retaining, etc. ..... i 139 order compelling production of 139 order directing service of notice of objection^ to probate, and of such notice 155 order for jury trial in contest of ...... .;; . . ,i 155A order to open safe to discover ; . . . . 137 petition to compel production of 138 petition for direction as to manner and tinle of service of notice of oibjections to probate 154 petition for determination of validity, construction or effect of testa- mentary disposition .> , . 159 petition to examine one retaining, etc 138 petition to open safe to discover 136 petition for probate 140 petition for probate in N. Y. county 141 probate, waiver of citation and consent to probate 145 Witness: " deposition of subscribing witness to will 156 deposition as to genuiness of signature of subscribing witness to will 157 1220 RULES AND SURROGATES OF SURRO- GATES' COURTS IN STATE. ALBANFY COUNTY, ALBANY, N. Y. Hon. Newton B. Van Desizee, Surrogate. No printed rules. The Court is guided by the rules of the New York County Surrogates' Court. ALLEGANY COUNTY, BELMONT, N. Y. Hon. Elba Reynolds, Surrogate. No printed rules. BECOME COUNTY, BINGHAMTON, N. T. Hon. Benjamin Basis, Surrogate. No printed rules. BRONX COUNTY, BRONX BOROUGH, NEW YORK CITY, N. Y. Hon. Geobge M. S. Schulz, Surrogate. Rules of Practice for the Surrogate's Cou,rt, County of Bronx, (In effect January 2, 1915.) Exile I. Papers. Every paper to be used in the court shall be indorsed with the title of the proceeding to which it relates, a description of the paper and the name and postoflBee address of the attorney presenting it., 1221 RULES No papei- on file shall be intrusted to any attorney, party or other person except for proper examination thereof in the clerk's office. If any referee appointed by this court shall request the delivery to him of any such paper for use before him, the same shall be delivered to him by a, messenger of the court upon his receipt therefor. '■ '■■ ■ ' Rule II. ' ■ ' '' ■ ' •" '''" Service of Process — Proof of. In all proceedings the proofs of service of process, notice of hearing, notices of motion and orders tq show cause shall be filed on or beifore 1 o'clock of the day preceding the day therein named for the return day thereof. Rule III. Calendars. ' A calendar of motions and of matters to be tried by the court without a jury will be called at 10 o'clock A. M. on Monday and Wednesday of each week, except in the month of August. . ■ A term for the trial of controverted questions of fact with a jury, including contested probates, in .which a jury trial of such questions has been ordered, shall begin on the first Monday of February, April, June, October land J)e- cember. A calendar of such contested matters will be called on said first Monday and on each day thereafter while the court shall sit for the purpose. Such matters will then be tried in their order unless adjournment is granted upon proof of legal excuse. ' i , ■ Rule IV. , , Probate. In a proceeding for the probate of a will not lost or destroyed, the will and a copy thereof ■ shall 'be filed with the petition. The co'rrectilSss of said copy shall be shown by the affidavit of two persons of full age, who shall have compared the copy with the original will. When all parties in interest have waived the service of citation all papers in the matt6i:'inust be filed with the probate clerk at least two days before the day fixed for the taking of proof. Rule V. Administration. Upon an application,, for letters of administration, where it appears that an intestate was at the time of death the subject of a foreign power, notice of the application shall be given to the consul representing such foreign power. 1222 RULES Rule VI. Guardianship. A petition for the application by a guardian of an infant's property; or any portion thereof, to the support, maintenance and education of the infant, shall show that an annual accounting has been duly filed or that good causu exists for disregarding the omission. The petition shall show the terms of any previous order for the application of any portion of the infant's property. And if no previous order has been made that fact shall be stated. When the infant is' over fourteen years of age he shall join in, subscribe and verify the petition. Whfen the application is made by a person other than the guardian of the property or a parent of the infant, the consent of such guardian or such jlarent shall bfe^ submitted or the application made on notice to him. When an infant over fourteen years of age applies for the appointment of a special guardian, or where an infant appears by his general guardian, or where a lunatic, idiot or habitual drunkard appears by his committee, the general or special guardiaii or the committee shall show that such general or special guardian or such committee is competent to protect the rights of the infant or incompetent and has no interest adverse to that of the infant or incompetent and is not connected in business with any party to the proceeding or the attorney or counsel of such party. It must appear whether or not such general or special guardian or committee is entitled to share in the distribution of the estate or fund in which the infant or incompetent is interested, and if the general or special guardian or committee is in any way interested in the estate or fund, the nature of such interest must be disclosed. No party to a ' proceeding will be appointed special guardian of any other party thereto. The petition for the appointment of such special guardian as well as the appearance filed by a general' guardian of the infant must in every instance disclose the name, residencp and relationship, to the infant of the I)erson with whom the infant is residing and whether or not said Infant, has a parent living. If a parent is living, it must be shpwn by the affidavit of the parent whether or not such parent has knowledge of and approves such application or appearance. In case the parent has an interest, adverse to the infant, the petition on the , application for the appointment, of such special guardian must be accompanied by the affidavit of the parent, showing in addition to such knowledge aforesaid that such parent has not influenced the infant in the choice of the special guardian. If the foregoing provisions of this rule are not strictly complied with the Surrogate will, on his own motion, appoint a special guardian for such infant or incompetent, as provided in section 2534, C. C. P., iiotwithstanding- the application of such infant or the appearance by the general guardian or committee. Rule VII. Accounting. On an accounting by an executor, testamentary trustee or administrator 1223 RULES with the will annexed, a. sworn copy of the will shall be filed with the petition and account. When an account is filed for settlement,, the accountant shall file there- with a copy of any statement of a claim which has berax presented to him and allowed, and which remains unpaid. ■ ■ Rule VIII. Before evidence is taken on a contested accounting the accountant, shall present to the court a statement in writi^jg, of the items for which no voucher is filed, the items as ,toi which he holds the affirmative, the objections which he concedes, to be well taken, and i the modifleations of the account to which the parties consent, ; and the objeetant shall present to the court a like state- ment of the , objections, which he withdraws. Rule IX. Upon a contested accounting any party interested, or a contesting creditor, shall serve a copy of his objections upon the accounting party, or upon his attorney in case he shall have appeared by attorney, within eight days after the filing of the account in the office of the clerk of the court where the account- ing is a compulsory pne, and within eight days after the return of the citation where the accounting is a voluntary one, or within such further or other time in either case as shall be allowed by the surrogate. The contest shall be confined to the items or matter so objected to. If it shall appear to the satisfaction of the court, by affidavit or petition, that an examination of the accounting party will be necessary to enable the contesting party to interpose his objections, such examination may be ordered by the court. . Rni,E X. In a proceeding for a ' judicial settlement of an account, wherein a special guardian shall be appointed to protect the interests of an infant party, no decjee will be entered tin default against such infant, but such decree shall be' so entered only on the written report of the guardian appearing for such infant to the effect that he has carefully examined the aefcount and finds it correct, and upon two days' notice of the settlement thereof to the guardian. ; . ... . \ Rtoe XI. With every: proposed decree on an accounting there must be submitted an affidavit of regularity, setting forth the necessary jurisdictional facts. A copy of the form of the affidavit required will be furnished by the clerk of the court. Rule XII. Trials. When on a contested probate the objections contain a demand for a trial <)f controverted questipns of fact with a jury and when in, any other pro- 1224 KULES ceeding such trial is demanded, llie party making such demand sliall pay a jury fee of $3 at the time of the demand and shall, within two days thereafter, serve on the opposing party or parties, with a two da^g' notice of settlement, a proposed order which, in addition to directing such trial with a jury, shall also state the questions of fact which he deems controverted and desires tried with a jury. And in default of the service of such order any opposing party may within three days after such demand is filed serve such proposed order stating the questions of fact, if any, which he deems controverted and desires tried with a jury with like notice of settlement. Rule XIII. Xotice of trial of such controverted questions of fact must be served at least fourteen days before the first day of the term at which the trial is to be had, and a note of issue stating in addition to the usual requirements the date of entry of the order directing the controverted questions of fact to be tried with a jury, must be filed at least twelve days before the first day of such term. Where a party has served a notice of trial and filed a note of issue, for a term at which the matter is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue, for a succeeding term; and the matter will remain on the calendar until it is disposed of. A petition for an order for notice of hearing under section 2618 of the Code of Civil Procedure shall in all cases where such notice is required be pre- sented by the proponent within five days lafter the filing of the objections, and on his failure so to do any contestant may present such petition. Notices of hearing of objections on contested probates where a jury trial has been demanded, as required by section 2618 of the Code of Civil Pro- cedure, shall specify as the day of trial the same date specified in the notice of trial. Rule XIV. If upon a trial any party shall offer in evidence a paper in his control, ■without having before trial submitted the same to opposing counsel for inspec- tion, the court may place the matter at the foot of the calendar or otherwise postpone the trial, in order that all papers intended for use on the trial, except such as may be reasonably reserved for the examination or contradiction of a witness, may be submitted to opposing counsel for inspection. Rule XV. ' ' Reports of Referees. When a referee's report is filed with the testimony said report shall be confirmed as of course, unless exceptions thereto are filed by any party inter- ested within eight days after a written notice of such filing and a copy of such report has been served upon the opposing party; and in case Exceptions are filed any party may bring on the hearing of the same on any stated motion day on eight days' notice. 1225 RULE§ Rule XVI. Orders, Decrees and Settlement Thereof. Two days' notice of the settlement of an order on a litigated motion or of a decree or decision shall be given in writing to all the parties who have appeared by attorney in the proceeding in which such order, decree or decision is to be made, and to any special guardian appointed therein. When a proposed order, decree or decision is served, with notice of settle- ment thereof, the party served shall not submit any complete substitute there- for, but may submit proposed amendments thereto, properly referring by page and folio to the papers sought tOi be amended and containing after each amendment a statement of the grounds therefor. Rule XVII. Miscellaneous. No petition for the probate of a will or for the grant of letters of adminis- tration or of guardianship, or for the appointment of a testamentary trustee, will be entertained during the pendency of a prior proceeding for the same or like relief, respecting the same estate or fund, or the estate or person of the same infant. Rule XVIII. A I respondent who files an answer or o^bjection shall file therewith a notice of appearance. Rule XIX. Special guardians shall file their reports within eight days from the time of their appointment, except where an answer is filed and an adjournment is had or the time to file the report is extended by order. Where a contest has taken place he shall file an affidavit stating in detail the work done by him and the number of days spent in its performance. Rule XX.. Costs. No costs will be allowed to the pe:feitioner who takes proceedings to compel the filing of an inventory by an executor or administrator, unless such executor I or administrator shall have unreasonably delayed to make and file such in- ventory after having been duly requested to do so by or in behalf of the ! petitioiier. ■ ' ' ■ ' ' Whenever a party to a decree shall deem himself entitled to costs, the ap- plication, will be considered and determined by the surrogate on two days' notice of adjustment. With said notice shall be served a statement showing the items of costs and disbursements , to which ,the party may deem himself entitled, which disbursements shall be duly verified, both as to their amount 1226 EULES and necessity. The disbursements for referee and stenographer's fees must be sustained by affidavits or detailed proof. At the same time, and on like notice, the surrogate! will pass upon any application for an additional allowance. Such application must be accom- panied by an affidavit setting forth the number of days necessarily occupied in the hearing or trial, in preparing the account for settlement and in the preparation for the trial; the time occupied on each day in the rendition of the services, their nature and extent in detail, including the drawing, enter- ing or executing of the decree. In case such trial shall have been had before a referee, the time necessarily occupied before him may be shown by his cerBflcate. Rule XXI. Compromise. Upon application for leave to compromise the petitioner's attorney, if any, shall state the total amount of compensation he has received or is to receive from all sources; the net amount to be received by the petitioner as a result of the settlement ; whether or not he has become concerned in the application or its subject matter at the instance of the party with whom the compromise is proposed, and whether or not he has received or is to receive compensation from such party, and the amount thereof, if any. Notice of the application must be given to the next of kin of the decedent of full age within the State who are entitled to share in the proceeds of the compromise, or the consent of such next of kin must be submitted with the application. Rote XXII. Transfer Tax Proceeding. A special guardian will be appointed to protect the interests of infants upon the return of the appraiser's notice of time and place of appraisal if it appears that their rights are involved and they are not otherwise adequately repre- sented. ' Upon the filing of the appraiser's- report in a transfer tax proceeding the petitioner shall submit an order determining the value of the property and the amount of the tax in accordance with the said report; upon the failure of the petitioner so to do within five days after the filing of the report any other party to the proceeding may submit such order upon notice thereof to the petitioner. The surrogate, upon the presentation of such order, will immediate- ly enter the same. The matter will not appear on the calendar at this stage, nor will the court then consider objections to the report. A party having objections to the report or^ the order entered thereupon may within sixty days after the entry of such order file a notice of appeal. Said notice must specify the grounds of objection, be served upon all parties appear- ing before the appraiser and be filed, with proof of service, in the ofiice of the clerk of the court. . Thereupon the proceeding will be placed upon the calendar for a motion day not less than eight days after the date of the filing of t)ie 1227 EULES notice of appeal, and may be noticed for hearing on at least eight days' notice thereof. Dated April 26, 1915. • ' George M. S. Schtjlz, Surrogate. CATTARAUGUS COUNTY, OLEAN, N. Y. Hon. Geokge A. Labktn, Surrogate. Bules of the Surrogate's Court, Cattaraugus County. EULB I. All petitions, orders and decrees must be endorsed with the title of the pro- ceeding and the name and postoffice address of the attorney. EtnLE II. It shall be the duty of the attorney or attorneys to prepare and present all papers that are to be acted upon by the Surrogate, and upon the granting of an order or decree it shall be the duty of the attorney to draft and submit the same to the Surrogate for his signature. ■ ' Rrn-B III. All orders and decrees in contested matters, unless settled by consent, must be noticed for settlement before the Surrogate by service of notice of such settlement with copy of proposed decree, at least five days before presentation of the same. EULE IV. In all proceedings for probate of a will, the original will, if in the posses- sion of the petitioner, or can be obtained by him, must be filed with the petition. If not so filed, the petM;ion must state the reason for failing so to do and the name and address of the person having possession of such will if the same is known ;or can be 'ascertained. EUI.E V. On the judicial accounting of every representative the accounting party must file, with his petition, his account and the vouchers in support of the same. Ettle VI. All objections to the probate of a will or to any account filed for judicial settlement must be in writing, duly verified and signed by the party objecting or his attorney and must contain a conoisp statement of the objections to be considered. 1228 RULES Rule VII. Wherever an order for substituted service of a citation is desired the petition must show whether the total estate, real and personal amounts to more or less than two thousand dollars. Rule VIII. All exemplified copies of foreign wills presented for record in this ofBoe must be accompanied 'by a petition and an order for recording the same. Rule IX. Upon the return day of a cdtation issujed in any proceeding should no one appear, the proceeding will be adjaurned to the next regular term of Surrogate's Court appointed to be held at the same place; and should there be no appear- ance on, such adjourned day the proceeding will be dismissed. Rule X. An infant may appear in any matter or proceeding by his general guardian,, and an incompetent person by his committee, and if no such appearance is made a special guardian will be appointed for the infant or incompetent. Such special guardian shall be selected by the Surrogate and shall execute and file the proper consent. . Rule XI. Such special guardian shall thoroughly examine all matters in the proceed- ing affecting the interest of the infant or incompetent whom he represents and no decree shall be made in any such proceeding until the special guardian shall fully report the results of his investigation. Such report may be in writing or stated orally in open court. Rule XII. All inventories returned for filing in this office must be accompanied by due proof of the posting and service of notice upon the legatees and next of Jcin as required by section 2711 of the Code of Civil Procedure; Rule XIII. No record or paper shall be removed from this office by any person; but proper facilities will be provided for the examination and transcribing of records by parties or attorneys. Rui,B xrv. In all proceedings where citation is issued, full and complete proof of service of such citation musfbe filed before any action is taken therein. 1229 RULES Rtjle XV. All proceedings for the appraisal of estates and assessment of tax thereon under the provisions of the Taxable Transfer Act will be had before i;he Sur- rogate. The hearing in such proceedings may be had at any regular term of Surrogate's Court upon proper notice given by the representative of the estate to those interested in such proceeding,; and also to the attorney for the Comptrol- ler appointed to represent him in Transfer Tax assessments. Upon such assessments the inventory, if filed, supplemeiited by the evidence of the repre- sentative of the estate wiU be taken as proof of the value of the personal estate. If no inventory has been filed, the representative must present an itemized statement of the personal estate and establish the value of the various items by his own evidence and that of two other disinterested witnesses. In all cases the value of the real estate must be established by the testi- mony of at least two co'mpetent and disinterested witnesses. The representative must also prepare and file an itemized statement of all deductions claimed for debts, funeral expenses, expenses of administraltibn or other causes and make proof satisfactory to the Surrogate regarding the same. No decree on judicial settlement will be signed in any estate liable to tax under the provisions of the taxable transfer act until the proper voucher is filed showing payment of such tax. RtTLE XVI. Guardians must filie their annual reports as required by law; and in case of their failure to do so proceedings will be promptly instituted against them and the costs of such proceedings will be sustained by such delinquents unless satisfactory excuse is shown. t EXTLE XVII. No order will be made permitting a guardian to use any portion of the principal ,of the estate of his ward' except upon the presentation of a duly verified petition showing fully all the facts making such expenditure neces- sary. Upon all such applications a copy of the proposed order must accompany the petition. Rule XVIII. Directly after any ward arrives at the age of ; twenty-one years his guardian ' shall institute proceedings for judicial settlement of hjs accounts. .In all cases where voluntary settlement is made between the guardian and ward, the guardian's petition for final discharge accompanied with the acknowledged receipt of the ward must be immediately filed in the oflSce of the Surrogate. RxttE XIX. All representatives of estates are required to take measures for judicial settlement of the same at the earliest practicable date after the expiration of one year from their appointment. In all cases where such settlement cannot then be made the Surrogate must be informed of the facts making delay necessary. '■■■'': ' ■ . ;.. Adopted December 13th, 1911. Oakbt D.' Davie, Surrogate. 1230 EULES CAYUGA COUNTY, AUBUEN, N. Y. Hon. Walteb B. Woodin, Surrogate. Court Days, Tuesdays and Fridays. No special rules except that; "In a proceeding foi; the probate of a will, not lost or destroyed, a true copy of the will, or at the option of the petitioner, the original will shall be filed with the petitiop." CHAUTAUQUA COUNTY, MAYVILLE, N. Y. Hon. Hart.ey N. Ceosbt, Surrogate. Surrogate's Court, Chautauqua County. The attention of Attorneys is called to the following Rules, established to regulate the practice in this Court, to take effect February 1, 1911, EtJtE I. In probate proceedings, the Will propounded must accompany the petition and he filed with the Surrogate or the Clerk of the Court. Rnt,E II. In voluntary proceedings for an accounting, the account must accompany the petition and be filed with the Surrogate or the Clerk of the Court. Rule III. In case of the death of a subject of Italy or of Austro-Hungary, leaving no known heirs, or testamentary executor designated hy him, a citation contain- ing notice of application for letters of administration shall be served according to law and the practice in Surrogate's Courts upon the Consul or Consular Agent in this Consular District of the above-named Country, as the case may be. The Clerk of this Court and Attorneys practicing in it, will see that this rule is observed, in accordance with treaties made between the Government of the United States and the Governments of said countries. EtTLE IV. In all cases proof of the service of a citation must be filed at least three days before the return day of the citation as follows: 1st. — If the citation is returnable at Mayville or Dunkirk, it must be filed with the Clerk at Mayville. ' it 2nd. — If returnable at any other place, it inust be filed with the Surrogate at Falconer. ' In case of failure to comply with this Rule, the inatter will not be taken up on the return day of the citation. 1231 RULES KuLE V. All petitions and answers in this Court, except as otherwise expressly pre- scribed by law, shall be in writing arid contain a plain and concise statement of the facts constituting the claim, objection or defense, and a demand for the decree, order or other relief to which the party supposes himself to be entitled, wliich petition or answer is required to be verified endorsed with the title of the estate and proceeding, and' the name and pbstoflSce address of the attorney. Rule VI. Appearances by or on behalf of a. patty against whom a citation has been issued and not served, must be made by filing with the Clerk a written notice of appearance. ' Rule VII. On any accounting ft' party entitled arid desiring to contest the account,. shall file specific objections, as provided by Eule V. and, except in eases where a preliminary examination of the accounting party is required, shall serve a copy thereof on the attorney for the accounting party, if he has appeared by an attorney, at least two days before the return day of the citation , issued therein, where the accounting is, had upon the petition of the accounting party, and at least two days before the day set for the hearing upon an accounting in all other cases. The original objections must be filed with the Surrogate- before a hearing is had thereon. : RtTLE VIII. ' ' No Special Guardian to represent the interests of an infant in any proceed- ing will be appointed on the nomination of a proponent petitioner or accounting party, or his attorney; nor rapon the application r of any person having an interest adverse to that of the , iiifa.nt. To authorize the appointment of a person as Special Guardian, on the application of an infant or otherwise in a proceeding in this Court, or to entitle any general guardian of such nfant to appear for him in such, proceeding, it must appear that such person or such gejjeral guardian, is competent to protect the rights of the infant; that he has nq interest adverse to that of the inftint, and is not connected in business with the attorney or counsel of any party to, the proceeding adverse to the- infant. Rule IX. All Special Guardians appointed by the Surrogate to protect the rights of. infants and incompejjent persona, shall report to the. Surrogate in writing. Such report shall co;,,tain (1) a, detailed statement of such Guardian's efforts in the interests of such in,fant or incompetent person; (2) a clear statement of the conclusions and findings of such guardian in relation to all matters intrusted to him; (3) that he has examined the proof of service of citation and the decree or order proposed to be entered therein, and state his findings. 1232 RULES in regard to the same; and, in case of an accounting (i) that he has also examined the account and vouchers, and state his findings in regard to the same. No allowance will be made to a Special Guardian unless he makes and files the report aforesaid. Rtile X. Xo allowance will be made for support or maintenance of infants undei- Section 2S46 unless an annual account for the last preceding year has been filed, and that fact must be alleged in the petition, and all applications under said section must, contain. a statement of previous orders made in the same estate, and when the application is made by any person other than the Guardian of the property, it must be made upon at least eight days' notice by service of citation upon the guardian of the property of said infants. Rtile XI. All motions and requests for costs and allowances in proceedings; in Sur- rogate's Court under Sections 2561 and 2562 of the Code of Civil Procedm'e, must be accompanied by an itemized Bill of Costs, verified by the party, or his attorney, unless for good cause the same shall ■ be dispensed with by the Surrogate. BULE XII. In all cases where an administrator or executor applies to the Court for authority to settle or compromise a claim for negligence, such application shall be by verified petition, setting forth the terms of the proposed compromise, the particular reasons why such compromise is proper and the names and ages of all parties interested in such comproinise, and whether all are of sound mind. Upon the filing of such petition, a citation shall issue to all interested parties, and! upon the return thereof, if any of the parties are of unsound mind or infants, the Court will appoint a referee to ascertain and report as to the truth of the allegations contained in the petition, with his opinion thereon, as to whether, or not the interests of the parties interested will be substantially promoted by the proposed compromise. All interested parties shall have notice of the time and place of the hearing before, such referee and may be represented by counsel thereon. Upon the filing of the referee's report, the Court will make such order as, shall appear to be for the interests of the parties. EtJLE XIII. Where application is made to the Surrogate for allowances to appraisers and no party in interest makes a request as to the amount to be allowed, in ordi- nary cases the fees of appraisers will be fixed according to the value of per- sonal property appraised as follows: $1,000 or less $2.00 per day. $1,000 to $1,500 .$2.50 per day. $1,500 to $2,500 $3.00 per day. N. T. E. & S.— 78. 1233 RULES « $2,500 to $5,000 ■ • $4.00 per day. $5,000 and upwards $5.00 per day. Haklbt N. Crosby, Surrogate. Surrogate's Court, Chautauqua County. The following additional rules are established to regulate the practice in this court, to take effect March 1, 1916. Rule XIV. With every petition for the probate of a will, or for the appointment of an administrator, there must be filed an affidavit, stating as accurately as may be the estimated value of all the decedent's real property, and a like estimate of the decedent's personal property, together with the names, addresses, and relationship to decedent of each of the persons entitled to share in the estate, and the value of the share of each. Ktjle XV. Where a representative of an estate is required lay law to pay. a transfer tax, no petition for a final accounting by such representative will pe received or filed in this office, and no decree in any such accounting will be signed, except upon the production of a receipt for the payment of transfer tax, sealed and countersigned, as provided by , Section 236 of the 'Tax Law. Exemption from payment of transfer tax must be shown by a copy of an order of exemption. Haklet N. Cbosbt, Surrogate. Note. — The foregoing Rule XtV is made in order to enable the Surrogate's Office to make a fuller report to the State Comptroller, to enable the Comptroller to determine whether or not estates are liable for inheritance tax. The State Comptroller advises that inheritance tax proceedings should be had in case of all estates which ijiclude real property. He also advises that, where estates consist wholly of persoiial property, and are clearly exempt from tax, if the representative of the ?ptate will file in hia office, an, affidavit showing, the date,of the decedent's death, and the da,te of issuing letters, the items of personal property and their market value, the debts and testamentary expenses claimed as deductions therefropi, and the names and relationship of ,the persons entitled to receive any part of the decedent's estate, either as leg3,tees or , distributees, his department will acknowledge receipt of such affidavit, note the .facts upon his records, and refrain from in^riting the repre- sentative of the estate further in reference thereto. 1234 RULES CHEMUNG COUNTY, ELMIEA, N. Y. Hon. Chas. B. Swaktwood, Surrogate. No special riiles of practice. CHENANGO COUNTY, NORWICH, N. Y. Hon. James P. Hill, Surrogate. No printed rules of Court. CLINTON COUNTY, PLATTSBUE6H, N. Y. Hon. Vkttob F. Boikb, Surrogate. Rules of Practice of Clinton County. Rule I. The regular Court day for the return of citations and t'lie transaction of other Court matters upon notice, shall be Monday of each week. The Surrogate's Court is open for the ordinary transaction of Court matters from nine o'clock A. M. till five o'clock P. M., except legal holidays and half- holidays. When a regular Court day falls on a legal holiday, matters returnable on such day will stand adjourneid, as of course, till the next secular day. Rule II. In probate proceedings, the will propounded must accompany the petition and be filed with the Surrogate or Clerk of the Court. Ritlb III. In voluntary proceedings for an accounting, the account must accompany the petition, be filed and remain on file. Rule TV. All petitions, answers and objections in any proceeding in this Court must be in writing and verified. , > , Rule V; The moving papers in any proceeding in this Court, must in addition to the ordinary information required', contain the address of all the parties at interest, and representatives or proposed representatives. No paper filed in this Court shall be removed or taken therefrom. 1235 RULES Eui-E VI. : i In case of the death of an alien leaving no testamentary executor designated by him, a citation containing notice of the application for letters of adminis- tration, etc., shall be served according to law and the usual practice, upon the Consul or Consular Agent, in this Consular District, unless the proposed repre- sentative is entitled to a share of the estate of the deceased as nis widow, heir, or next of kin, etc., etc. Etile VII. In all applications for permission to compromise, claims or causes of actions, the Court will designate the persons who shall be notified, and the length of notice required in each particular case, upon the presentation of the petition. COLUMBIA COUNTY, HUDSON, N. Y. Hon. John V. Whitbeok, Jb., Surrogate. No formal published rules. CORTLAND COUNTY, CORTLAND, N. Y. 1 : Hon. Joseph E. Eggleston, Surrogate. No printed rules. DELAWARE COUNTY, DELHI, N. Y. Hon. Lewis F. Raymond, Surrogate. No special set of rules. DUTCHESS COUNTY, POUGHKEEPSIE, N. Y. Hon. Daniel J. Gleason, Surrogate. Court days Monday and Tuesday, 10 o'clock, A. M., of each wedc, holidayt and vacation months excepted. No printed rules. 1236 RULES ERIE COUXTY, BUFFALO, N. Y. Hon, Louis B. Haet, Surrogate. Eules of Practice of Erie County. Ruu! I. Due proof of the service of a citation must be filed with the clerk of the Court, not later than nine o'clock of the day on which the citation is return- able, so that the clerk may certify to the Court that the service is in all respects regular; otherwise, the proceeding will not be heard on that day. EtTLE II. All proceedings wherein residents of the City of Buffalo or their attorneys appear will be first called at the opening of the Coiirt, each day. Proceedings wherein residents of other towns or their attorneys appear, thereafter. Rule III;.. Appearances by or on behalf of a party against whom citations have been issued and not served must be made by filing with the clerk a written notice of appearance. RtlLE IV. Persons not named in a citation, but who claim to be interested in a pro- ceeding and wish to intervene therein must file a similar notice of appearance, together with an affidavit or petition showing in what way they are interested in such proceeding. Rule V. Except when otherwise expressly prescribed by statute, all petitions, answers, objections and other pleadings shall be in writing and verified, and shall contain a plain and concise statement of the facts constituting the party's claim, objection or defense, and a demand of the order, decree or other relief to which such party considers himself entitled. Rule VI. No special guardian to represent the interests of an infant in any pro- ceeding shall be appointed on the nomination of a proponent or accounting party, or his attorney. Ru-le VII. In probate proceedings the will propounded must accompany the petition and be filed with the clerk of the Court. 1237 RULES Rule VIII. In any proceeding wherein a special guardian shall appear to protect the interests of an infant party, no decree shall be entered against such infant party by default; but such decree shall be entered only upon the written and verified report of such special guardian, to the effect that he has examined the account — where there is one — and also the decree to be entered, and finds the same correct. Rule IX. When a petition for an accounting is presented to the Court by an account- ing party, the account to which it relates must be filed therewith. On any accounting a party entitled and desiring to contest the account, shall file specific objections, as provided in Rule V, and serve a copy thereof on the attorney for the accounting party, if he has appeared by an attorney, at least two days before the return day of the citation issued thereon, 'wrhere the accounting is had upon the petition of the accounting party, and at least two days before the day set iov a hearing upon an accounting in all other cases, or within such further, or other time as shall for special reasons be allowed by the Court and the contest of such accolint shall be confined to the items so objected to. Rule X. A party contesting a will, must, upon the return day of the citation file a written and verified answer containing iis objections to such probate. But one adjournment may be had upon the applicaition of the contestant. Any further adjournments must be on consent of the proponent evidenced by a written stipulation filed with the clerk, or made in. open Court; No other adjournment shall be allowed except for legal cause shown by affidavit. Rtjle XI. Where a trial by jury has been lawfully demanded, the order therefor shall state distinctly aad plainly each question of fact to be tried; and, if the trial is to be had in the Surrogate's Court, the order shall set down the trial for a day therein appointed. Such order must be submitted for settlement at the time for the demand of a trial by jury, or in default therefor, it may be thereafter settled at the instance of any party in the same manner as if it was an order upon a litigated motion. RtTLE XII. Two days' notice of the settlement of an order on a litigated motion or of any decree or decision in writing, should be given to all the parties who have appeared in the proceeding, in which such order, decree or decision is to be made and to any special guardian appointed therein. 1238 RULES Rule XIII. No paper shall be removed from the files of this office by any person. Ample facilities will be provided for the examination and transcribing of all records by parties or their attorneys. ESSEX COUNTY, PORT HENRY, N. Y. HoK. Berne A. Pykke, Surrogate. Terms of Court: The first Monday of each month at Elizabethtow n, and every other Monday at Port Henry. Matters will be taken up at Port Henry on any day of the week by appointment. No rules formulated. ' FRANKLIN COUNTY, MALONE, N. Y. Hon. Fredebick C Paddock, Surrogate. Rules of Practice of Franklin County Surrogate's Court. I. The regular Court day for the return of citations and the transaction of Court matters shall be Monday of each week except during the month of August. Court will open at nine o'clock A. M. and continue until five o'clock P. M. II. This Court will be closed during the month of August in each year, and no Surrogate's Court matters will be entertained during that time. This Court will not be ' opened for business on legal holidays or half holidays. When the regular Court day falls upon a legal holiday all matters returnable on that day will stand adjourned as of course until the next secular day. III. No person other than ' a regularly admitted attorney at law shair be permitted to practice in this Court. IV. No paper filed in this Court shall be permitted to be removed or taken therefrom. v. A petition filed in this Court for the probate of a will must be accompa- nied by the original will, which will be filed and must remain in this Court until removed according to law. VI. A petition filed in this Court for the final settlement of the account of an executor or administrator must be accompanied by an account of pro- ceedings and proof of publication for claims. VII. No special guardian to represent the interests of an infant in any proceeding in this Court will be appointed on the nomination of a proponent or accounting party, or his attorney, or upon the application of any person having an interest adverse to that of the infant, and no allowance for services 1239 RULES -will be made to a cpecial guardian by the Court unless lie has made and filed his report in the proceeding in which he may be appointed. VIII. \yhenever an infant is ' interested in any proceeding in this Court, a special guardian will be appointed to safeguard his interests unless the general' guardian of such infant appears in person, and it appears that he has no interest adverse to those of said minor. IX. In a contested proceeding for the probate of a will, no costs will be allowed to the contestants in case the will is admitted to probate. X. All petitions and answers in this Court, except as otherwise prescribed ■of law, must be in writing, and must be verified. XI. A party seeking to contest the probate of a will must appear in person or by attorney and file a written answer, duly verified. XII. In any matter or proceeding in which there is a contest no hearing will be adjourned except upon good cause shown by affidavits filed with the ■court, unless all parties consent thereto. XIII. The Surrogate, on the written certificate of the person appointed under section 2844 of the Code, to examine the inventory and accounts of guardians filed in said Surrogate's ofiice, that a general guardian has omitted to file such inventory or account, or the affidavit required by section 2843, or that the interest of the ward requires that the guardian should render a more satisfactory inventory or account, will make an order requiring the guard- ian to supply that deficiency. Whenever it shall appear by the certificate of said person that the guardian has failed to comply with such order within three months after its due service upon him, or that there is reason to believe that sufficient cause exists for the guardian's removal, the Surrogate will appoint a special guardian of the ward for the purpose of filing a petition in his behalf and prosecuting the necessary proceedings for the removal of such guardian. XIV. AH bonds of administrators and general guardians must conform in all respects to forms prescribed by the Surrogate. XV. In proceedings for the sale of a decedent's real estate instituted under Title V of chapter 18 of the Code of Civil Procedure there must be filed an affidavit of regularity of the attorney before a final decree will be made by the Surrogate. XVI. The rules governing the prpcgdure in the Supreme Court, so fa.r as they may be applicable, will be adopted as controlling the practice in this Court. FULTON COUNTY, JOHNSTOWN, N. Y. Hon. T. CtTTHELL Caij>ebwood, Surrogate. Regular Court Day at Chambers in Johnstown Monday of each week and at Gloversville Friday of each week, when citations are usually made returnable. No special rules. 1240 • RULES GENESEE COUNTY, BAT A VIA, N. Y. Hon. Edwabd A. Washbubn, Surrogate. In matters in which citations are issued the return day of each citation must he Monday. No printed rules. GREENE COUNTY, CATSKILL, N. Y. Hon. Josiah C. Taixmadqe, Surrogate. Special Surrogate's Days are Monday and Tuesday of each week. No printed rules. HAMILTON COUNTY, LONG LAKE, N. Y. Hon. Timotht D. Sthxtvan, Surrogate. Terms of Court for 19l6. Until further ordered, the terms of Court of the County of Hamilton will he held during the year 1916 at the times and places hereinafter mentioned to-wit : For the trial of issues of law and fact, to be held at the Court House in the town of, Lake Pleasant, at the following times : MAY — Fourth Ttjesdat. OCTOBER — First Tuesday. A grand and trial jury will be drawn and required to attend each of said terms. Without a jury for the trial of issues of law, hearing of motions and other proceedings, to be held at the Chambers of the County Judge, in the town of Long Lake, the first Monday of February, March, April, May, June, September, Nbverciber and December, and in the town of Wells, the first Tuesday of January and July. Dated at Long Lake, N. Y., December 12th, 1914. Timothy D. Sullivan, : County Judge. 1241 RULES HEEKIMEE COUNTY, HERKIMER, N..Y. Hon. Chaeles Bell, Surrogate. Rules of the Surrogate Court of Herkimer County. Rtom; I. The regular court day for the return of citations and the transaction of Court matters shall be Monday of each week except during the month of August. Court will open at 10 o'clock A. M. and continue until 5 o'clock P. M. When the regular Court day falls on a legal holiday all matters returnable on that day will stand adjourned as of course, until the next secular day. '1:1' " ' ■ .;'/,' ■'"'!■> Rule II. Upon the return of a citation, issued in any proceeding, siiould no one appear on the call of the calendar the proceeding will be adjourned to the next regular term, and Should there be no appearance on such • adjourned day, the' pro- ceeding will be dismissed. Rtjle III., All petitions, orders and decrees must be endorsed with the title of the proceeding, title of the estate and name and post ofBce address of the attorney. Rule IV. ' Except when otherwise expressly prescribed by statute, all petitions, an- swers, objections and other pleading shall be in writing and verified, and shall contain a plain and concise statement of the facts constituting the party's claim, objection or defense and a demand of the order, decree or other relief to which such party considers himself entitled. .,', ' .Rule V. In all proceedings for the probate of a will, the original will, if in the possession of the petitioner, or can be obtained by liim, must be filed with the petition. If not so filed, the petition must state the reason for failing so to do and the name and address of the person having • possession of such will if the same is known or can be ascertained. Rule VI. In voluntary proceedings for an accounting, the accounting party must fill with his petition, his, account and all the vouchers in support of the same. Rule VII. All orders and decrees in contested matters, unless settled bv consent, must be noticed for settlement before the Surrogate by service of ' notice of such 1242 RULES settlement with copy of proposed decree, at least two days before presentation of the same. EtJLE VIII. It shall be the duty of the attorney to prepare and present all papers that are to be acted upon by the Surrogate and upon the granting of an order or decree it shall be the duty of the attorney to draft and submit such orders or decrees to the Surrogate for his signature. EtTLE IX. Whenever an infant is, interested in any Proceeding in this CouTt, a special guardian will be appointed to safeguard his interests unless the general guard- ian of such infant appears in person, and it appears that he has no interest adverse to the interest of said minor. EULE X. All special guardians appointed by the Surrogate to protect the rights of infants and incompetent persons shall thoroughly examine all matters in the proceeding affecting the interest of the infant or incompetent person whom he represents and no decreg will be made in any such proceeding until the special guardian shall fully report in writing the result of his investigation. Etjle XI. No order, will be made permitting a guardian to use any portion of the principal of the estate of his ward, except upon the presentation of a duly verified petition showing fully all the facts making such expenditure necessary. Upon all such applications a copy of the proposed order must accompany the petition. ■ ' EULE XII. Directly after any ward arrives at the age of twenty-one years his guardian shall institute proceedings for judicial settlement of his accounts. In all cases where voluntary settlement is made between the guardian and ward the guard- ian's petition for. final discharge accompanied with the acknowledged receipt of the ward must be filed without delay in the oflSce of the Surrogate. ' EULE XIII. All representatives of estates are required to take measures for judicial settlement of the same at the earliest practicable date. Etile XIV. All exempliified copies of foreign wills presented for record must be accompa- nied by a petition and order for recording the same. 1243 RULES Rtile XV. No record or paper shall be removed from the files of this ofBee by any person. Proper facilities will be provided for the examination and transcrib- ing of records and papers by parties and attorneys. ;, Dated July 22nd, 1914, Chables Bbll, Surrogate. JEFFERSON COUNTY, WATERTOWN, N. Y. Hon. Joseph Atwell, Surrogate. No written court rules. Inquire of clerk for few unwritten rules. KINGS COUNTY, BROOKLYN BOROUGH, NEW YORK CITY, N. Y. Hon. Herbert T. Ketcham, Surrogate. Rules of Practice in the Surrogate's Court, Kings County. Rule I. The Surrogate's Court is open for the transaction of business on every secular day as follows: From September 1 to June 30, from 9 a. m. to 4 p. m., except on Saturday; from July 1 to August 31, from 9 a. m. to 2 p. m., except on Saturday; on Saturday, from 9 a. m. to 12 m. Rule II. Every paper to be used in the Court shall be endorsed with the title of the proceeding to which it relates, a description of the paper and the name and postofflce address of the attorney presenting it. ' Rule III. Every petition received in the office of the Court, unless an order to the contrary shall be endorsed thereon, shall be forthwith marked with the date of its receipt and placed in a repository suitably labelled and displayed. Until disposed of by the Court such petition shall there remain, open to the inspection of the public, except when removed for proper examination. Rule IV. No paper in the office of the Court will be intrusted to any attorney, pa,Tty or other person except for proper examination thereof in the said' ofl^ce. If any referee appointed by this Court shall request the delivery to him of any such paper for use before him. the same shall be delivered to him upon his execution of a receipt therefor and by a clerk or messenger of the Court. 1244 RULES Rule V. In a proceeding for the probate of a will, not lost or destroyed, a copy of the will shall be filed with the petition and on or before the return of the citation the original will shall be filed. Etoe VI. Where two or more instruments are offered for probate, citation shall issue to each legatee, devisee or other beneficiary in being named or indicated in any one of such instruments, if any other of such instruments purporting to have been made after the instrument in which he is so named or indicated contains provisions which might adversely affect his interest. Rtjle VII. Upon application for letters of administration, where it appears that an intestate was at death the subject of a foreign power whose Consul is entitled by treaty to the right of administration or intervention, notice of the appli- cation shall be given to the Consul whose right is concerned. Rule VIII. No petition for the probate of a will, or for the grant of letters of admin- istration or of guardianship will be entertained during the pendency of a prior proceeding for the same or like relief respecting the same estate or the same infant. I Rule IX. On an accounting by an executor, testamentary trustee or administrator with the will annexed, a copy of the will shall be filed with the petition and account. Rule X. When an account is filed for settlement, , the accountant shall file therewith a copy of any statement of . a claim which has been . presented to him and allowed, and which remains unpaid. Rule XI. In all proceedings the proofs of service of process sh^ll be filed on or bpfore the day preceding the return, and the prodfs of the service of any notice ofi motion or order to show cause shall be filed on or before the day preceding the day therein named for the hearing of a motion. Rule XII; A respondent who files an answer or objection shall file therewith a notice of appearance. 1245 RULES Rtoe XIII. If upon trial any party shall offer in evidence a paper in his control;, with- out having before trial submitted the same to opposing counsel for inspectiouw the Court will in a proper case place the cause ai, the foot of the calendar, or otherwise postpone the trial, in order that all papers intended for use on the trial, except such as may be reasonably reserved for the examination or contradiction of a witness, may be submitted to opposing counsel for inspection. If any party shall offer in evidence any paper in his control without having previously submitted the same to , opposing, counsel for inspection, or if any party shall vexatiously question tlie authenticity of any paper which has been submitted to his counsel for inspection, the failure so to submit the paper or the making of such question will be regarded by the Court in the adjust- ment of costs or the consideration of any matter of discretion. Rule XIV. At the opening, of the trial of a proceeding for accounting the accountant shall present to the Court a statement, in writing of the items for which no voucher is filed, the items as to which he holds the affirmative, the objections which he concedes to be well taken and the modifications of the account to which the parties consent; and the objectant shall present to the Court a like statement of the objections which he withdraws. ,/;■ ' , '' .. R^E XV. Special guardians shall file their reports within eight days from the titne of their appointment, except where an answer is filed and an adjournment is had, or the time to file the report is extended by order. The report or an accompanying affidavit mi^st state in detail the work done and the number of days~ spent in its performance. Rule XVI. No allowance will be made to an accountant on the settlement of his account unless 'thfere is contained' in of appended to his bill of costs a verified state- ment df the services for tvhich he seeks allowance. Such statement shall show in detail the number of days upon which services were rendered in preparing the account, the time occupied on each day in such services and the nature of such services. If the accountant seeks allowance for services to be rendered in drawing, entering or executing the decree, such statement shall show the nature of s'uch services. Eui-E XVII. ■ ■ Two days' notice of the settlement of any order on a litigated motion or of any decree or decision in writing shall be given to all the parties who have appeared in the procpedjhg in which such order, decree or decision is to be made and to any special guardian appointed therein. 1246 RULES Rule XVIII. When a proposed order, decree or decision shall be served, with notice of settlement thereof, the party served shall not submit any complete substitute therefor, but may submit proposed amendments thereto, properly referring by page and folio to the portions of the paper sought to be amended and containing after each amendment a statement of the grounds therefor. EULE XIX. The Court will sit for the disposition of litigated business during the weeks commencing on the first, second and third Monday's of each moiith, except July, August and September, and during the week commencing on the third Monday of September. RULE XX. A calendar of returns of process and of motions will be called on each secular day of the year except Friday and Saturday. Upon the call of the Calendar on any da,y not sippointed for the disposition of litigated business, all cases in which an issue is joined and all motions which are opposed, except such eases or motions as shall be submitted or specially set down for early hearing by order, shall be adjourned to a day thereafter appointed for the disposition of litigated business. Rule XXI. A Calendar of cases in which orders shall have been made for the trial of any question before the Court arid a jury will be called on the first Monday of each month, except July, August and September, and on each day there- after while the Court shall sit for the purpose. Such cases, so far as any question therein shall require trial by jury, will then be tried in their order unless adjournment is granted upon proof of legal excuse. Rule XXII. A Calendar of motions and o|, cases to be tried by the Court without a jury w.ill be called on the third Monday of September , and on thp second Monday of each other month,, except July and August, and on each day there:, after while the Court shall sit for the purpose. Such motions and cases will then be heard unless the Court is occupied with the Calendar of Jury Cases, or adjournment is granted upon proof of legal excuse. Rule XXIII. Where a trial by jury has been lawfully demanded, the order therefor shall state distinctly and plainly each question of fact to be tried and if the trial is to be had in the Surrogate's Court, the order shall set down the trial for a day therein appointed. Such order must be submitted for settlement at the time of the demand for a trial by jury or in default thereof it may be thereafter settled at the 1247 RULES instance of any party in the same manner as if it was an order upon a liti- gated motion. Rule XXIV. Principals and sureties upon bonds and undertakings, if natural persons, must appear and qualify at the same time before the Administration Clerk. No bond for a sum less than fifty dollars will be approved. No bond given by a surety company, the penalty of which is more than two thousand dollars, will be approved unless it shall be accompanied by the certificate of the surety that the principal has made an agreement with it for the deposit of the moneys and other depositable assets of the estate in the manner declared to be lawful by section 813 of the Code of Civil Procedure, and that such agreement has provided for such deposit with one or more depositaries pre- viously designated in writing by the Surrogate. Etjle XXV. A petition for the application by a guardian of an infant's property or any portion therepf to the support or education of the infant shall show that an annual accounting has been duly filed or that good cause exists for disregard- ing the omission. The petition shall show the terms of any previous order for the application of any portion of the infant's property. The order thereon shall state the period during which the application of the infant's property shall continue and if an order for its continuance for more than one year is sought the petition must show the , circumstances whi(;h justify such order. When the infant is over fourteen years of age he shall join in, subscribe and verify the petition, and , when the petition ia made by a person other than the guardian of the property, a copy of the petition, together with two days' noticp of the time when it wi^l Jbe presented to the Court, shall be served upon such guardian. EtJLE XXVI, Upon application for leave to compromise, the petitioner's attorney, if any, shall state whether or Hot he has become ' tontcerned in the application or its subject matter at the instance of the party with whom the compromise is pi'op'osed and whether' or not he has received or is to receive compensation from such party. ' '' ' ■" "' Hb»bebt T. Ketcham, Surrogate. Dated, November 1, 1914. LEWIS COtTNTY, LOWVILLE, N. Y. Hon. Milton Cabtee, Surrogate. No special rules of- Court. i 1248 EULES LIVINGSTON COUNTY, GENESEO, N. Y. Hon. Lockwood E. Doty, Surrogate. Regular Term of Surrogate, Monday of each week. Matters may be made returnable on other days by special arrangement. No printed rules. MADISON COUNTY, WAMPSVILLE, N. T. Hon. Joseph D. Senn, Surrogate. No rules. MONROE COUNTY, ROCHESTER, N. Y. Hon. Selden S. Beown, Surrogate. Rules of Practice of Monroe County. There are no sessions of court on Saturday. Original citations, except as otherwise ordered, will be made returnable at 10 o'clock. Applications not on the calendar or stipulated motions and proceedings on uncontested mdltters will be heard at 10 o'clock. Cases to be adjourned will be adjourned until 10:30 of the day to which they are respectively adjourned, unless otherwise specially ordered. Appearances will not be noted unless filed with the Clerk, or indorsed on papers filed. Special guardians will not be appointed upon the suggestion of counsel. No applications will be entertained at 2 o'clock when a proceeding is on trial. In cases of applications for letters of administration or limited letters of administration, or for orders authorizing the settlement of actions brought to recover damages for death, or for judicial settlement of executor's or admin- istrator's accounts, in matters of the estates of subject^ of the King of Italy, notice of such application must be given to tbe representative of the Consul of Italy, to wit, the Consular Agent of the Kingdom of Italy, located at Rochester, N. Y., unless he or his attorney appear on said application or waive notice in writing of such application. In like applications made upon the estates of subjects of tjie Emperor of Austro-Hungary, similar notice shall be given to the Consul of the Empire o£ Austro-Hungary, located at the City of New York. N. Y. E. & S.— 79. 1249 RULES MONTGOMERY COUNTY, FONDA, N. Y. Hon. William Fenton Mtebs, Surrogate. Until ordered and designated otlierwise, the Surrogate of Montgomery county will attend and bold court as follows: At the Surrogate's Court Room in the old court house at Fonda each Monday at 9 a. m., except during the month of August. When Monday is a public holiday court will be held on the Tuesday following. At the Surrogate's Chambers, Room No. 9, Blood Building, on Market street, in the city of Amsterdam, each Saturday at 9 a. m., except during the month of August. When Saturday is a public holiday court will be held on the Friday preceding. , , Dated, February 1st, 1910. W. Fenton Mtbsbs, Surrogate. Rules of Practice of Montgomery County, Surrogate's Court. Rttle I. It shall be the duty of the attorney or attorneys to prepare and present all papers that are to be acted upon by the Surrogate; and upon the granting of an 'order or decree it shall be his or their duty to draft and submit such orders or decrees to the Surrogate ^ for his signature. A proposed order or decree should not be attached to any other paper. Rule II. All petitions, orders and decrees must be indorsed with the title of the proceedings, title of the estate, and name and postoffice address of the attornev. Rule III. In all probate proceedings, the original will, if in the possession of the petitioner or can be obtained by him, must be filed with the petition. Infor- mation must be given to the clerk as to which, if jiny, of the subscribing witnesses is dead, and the names of aiiy witnesses that are to be called in behalf of the will, at least one day before the return day of the citation. Rttle IV. When a petition for a voluntary accounting is presented, the account to which it relates must be filed therewith. Rule V. In application for the appointment of guardian of the person and prop- erty, or either, of an infant, when there are two or more infants, separate petition and bond must be filed in each case. 1250 RULES Rule VI. All petitions naming infants must state whether they are over or under fourteen years of age. Rule VII. All petitions naming incompetents must state the name and location of the institution in which confined and the name and address of the committee, if any. Rdi-e vm. No decree or order will be entered in any matter where an infant is inter- ested, without appointing a special guardian, although such infant has a general guardian, unless such general guardian shall file with the Court his appearance for and consent in writing to represent said infant in such matter.'' Rule IX. Upon the return day of a, citation issued in any proceeding, should no one appear on the call of the Calendar, the proceeding will be adjourned to the next regular term, and should there be no appearance on such adjourned day, the proceeding will be dismissed. Rule X. All exemplified copies of foreign will must be accompanied by a petition and order for recording the same. Rule XI. No paper shall be removed from the files of this ofiSce by any person. Prober facilities will be. provided for the examination and transcribing of all papers and records by parties or attorneys. NASSAU COUNTY, SYOSSET, N. Y. Hon. John J. Gbaham, Surrogate. A motion Calendar will be called each . Saturday at 9:30 o'clock, A. M., except during the month of August Rule I. To entitle a motion or proceeding to be placed upon the motion calendar, proof of service of all orders, citations, summons and other papers on which the motion or application is to be made, must be furnished to the Clerk of this Court at or before twelve o'clock noon, on the second day preceding the motion. 1251 RULES Ettle II. In probate proceedings, when all parties in interest have waived the service of citation, notice of at least two days must be given to the Clerk before the testimony of the subscribing witness will be taken. The original will and one verified copy of the same must be filed with the petition for probate. Rule III. When a petition for a voluntary accounting is presented, the account to which it relates and the vouchers in support thereof, must be filed therewith. NEW YORK COUNTY, MANHATTAN BOROUGH, NEW YORK CITY, N. Y. Hon. John P. Cohalan, Robert Lttdlow Fowleb, Surrogates. Rules of Practice of the Surrogates' Court, New York County. Rtjle I. — ^PAPBats. Each petition, decree, order, objection, answer, aflidavit, stipulation and other paper submitted to the court shall be indorsed with the title of the proceeding to which it relates, and a description of the paper and the name and postoflice address of the attorney presenting it. No decree or paper on file in this court will be intrusted to the attorneys or parties except for the purpose of proper examination in the o£Sce where it is deposited, and if any such document or paper shall be needed on a hear- ing before any referee appointed by this court the same shall be intrusted to a clerk or messenger of this court and delivered to the referee, who shall execute a receipt therefor. No paper will be received for consideration by the surrogate, or for filing in his oflBce, unless it is of the weight prescribed by Rule XIX, General Rules of Practice, or unless it is written or printed in black characters and con- forms in all other resppets, so far as practicable, to the requirements of said rule. No paper will be received by the clerk of the court after argument or submission of a matter subsequent to the date fixed by the surrogate for the receipt of th* sarnie, and no such paper shall be received unless a copy has been served upon the attorney or attorneys for the other party or • parties who have appeared in the proceeding. Ettle II. — Motion Calendar. A Motion Calendar will be called on Tuesday and Friday of each week at 10:30 o'clock A. M., except that during the month of July there will be a calendar on Tuesdays only, and from the last Tuesday "in July until the first Tuesday after the 15th of September there will be no calendar. 1252 RULES Rule TII. — When Motion oe Peocseeding Mat Be Entebed on Calendab; Adjotjknment op Motion. To entitle a motion or proceeding to be placed upon the Motion Calendar proof of service of all orders, citations and other papers on which the motion or application is made shall be furnished to the Clerk of the court at or before one o'clock on the day preceding the motion day. Except where a written stipulation of all the parties to the proceeding has been filed with the clerk of the court, a motion shall be adjourned only upon the return day thereof, upon showing legal grounds therefor to the satisfaction of the surrogate. Proceedings or motions which have been marked "reserved generally" may be restored to the calendar upon two days' notice to all parties who have appeared in the proceeding. KUI.E rV. ^PKOBATE; Will AND COPT TO Be FiLED. The will, if not lost or destroyed, shall be filed with the petition for pro- bate, unless, upon good cause shown by afBdavit, the surrogate dispenses there- with, in which case the will must be filed at least two days before the return day of the citation. In all eases a copy of the will must be filed with the petition. With such copy there must also be filed an afSdavit of two adult persons that they have compared the copy with the original will and that the copy is a true and correct one. Rule V. In probate proceedings when all parties in interest have waived the service of citation, notice of at least two days must be given to the probate clerk before the testimony of the subscribing witnesses will be taken. EtTLE VI. — Contested Peobates. A copy of any obxections filed to the probate of a last will and testament shall be served upon the proponent or his attorney in case the proponent shall have appeared by attorney. In a contested probate proceeding notice of trial shall be served and a note of issue filed as prescribed by section 977 of the Code of Civil Procedure. In eases of contests in probate proceedings, where a notice of objection filed is required by section 2618, C. C. P., and within five days after objections to the probate are filed, the proponent shall present a verified petition for and procure and enter an order directing such notice. If the proponent fails to present such petition and fails to procure and enter such order within five days after objections are filed, any other party to the proceeding may present such petition and order. Rule VII. — Juky Tkiais op Peobate Cases. Within five days after a jury trial is demanded in the objections filed to the probate of a will the party making the demand shall present on two days' 1253 RULES notice of settlement to the attorneys of all parties who have appeared by attor- ney a, proposed order directing sueh trial by jury. Such order shall state plainly and concisely the controverted questions of fact to be tried by jury. If a party demanding a trial by jury fails to serve and present a proposed order as aforesaid, such order may thereafter be presented by any party to the proceeding. RtTLB VIII. ACCOTOTINGS. When a petition for a voluntary account is presented the account to which it relates must be filed therewith. Upon an accounting of any executor, administrator c. t. a. or testamentary trustee a copy of the will must be filed with the petition and account.- Where a representative of an estate is required by law to pay a transfer tax, no petition for a final accounting by such representative will be received or filed in this office, and no decree in any such accounting will be signed, except upon the production of a, receipt for the payment of transfer tax, sealed and countersigned, as provided in § 236 of the Tax Law. Exemption from pay- ment of transfer tax must be shown by a copy of an order of exemption. Rule IX. — Contested Acxjotintinqs. On an accounting by an executor, administrator, guardian or trustee any party interested or a creditor desiring to contest the account shall file specific objections thereto and shall serve a copy thereof on the accounting party or upon his attorney in case he shall have appeared by attorney within eight days after the filing of the account, where the accounting is a compulsory one, and within eight days after the return of the citation or within eight days after the proceeding is marked for decree where the accounting is a voluntary one, or within such further or other time in either case as shall be allowed by the surrogate. A special guardian in an accounting proceeding shall file his report or objections within eight days after his appointment, unless for cause shown his time to file such report or objections be extended by the surrogate. The contest of the account shall be confined to the items or matter objected to. Rule X. — Affidavit or Regularity. With every proposed decree on an accounting there must be submitted an affidavit of regularity setting forth the necessary jurisdictional facts. Rule XI. — Entry op Decrees Against Infants in Accountings. In any proceeding for a judicial settlement of an account, wherein a special guardian shall be appointed or a general guardian shall appear to protect the interests of an infant party to such accounting, no decree shall be entered upon default against such infant, but such depree shall be so entered only on the written report of the guardian appearing for such infant that lie has carefully examined the account and finc'.s it correct, and upon two days' notice to the guardian of tlic settlement thereof. 1254 RULES Rule XII. — Admikisteation. Upon an application for letters of administration where it appears that the intestate was at the time of his death the subject of a foreign power, notice of the application shall be given to the consul or consular representative of such foreign power. EUI-E XIII. — GtTARDIANSHrP. A petition for the application by a guardian for an infant's property, or any portion thereof, to the support, maintenance and education of the infant, shall sbow the terms of any previous order for the application of any portion of the infant's property. When the application is made by a person other than the guardian of the property or a parent of the infant, the duly acknowledged consent of such guardian or parent shall be annexed to the petition, or tbe application must be made on notice to such guardian or parent. Rule XIV. A respondent who files an answer or objection shall file therewith a notice of appearance. EtTLE XV. — Appeabance of a Genekal Guardian ob Committee. Where an infant appears by his general guardian or where a lunatic, idiot or habitual drunkard appears by his committee the general guardian or the committee shall show that such, general guardian or such committee is com- petent to protect the rights of the infant or incompetent and has no interest adverse to that of the infant or incompetent, and is not connected in business with the attorney or counsel of or any party to the proceeding. It must appear whether or not such general guardian or committee is entitled to share in the distribution of the estate or fund in which the infant or incompetent is interested, and if the general guardian or committee is in any way interested in the estate or fund the nature of such interest must be disclosed. Where a general guardian appears for an infant, the name, residence and relation- ship to the infant of the person with whom the infant is residing must be disclosed, and also whether or not the infant has a parent living, and if a parent is living, whether or not such parent has knowledge of and approves such appearance, and such knowledge and approval should be shown by the aflSdavit of such parent. If the infant has no parent living, like knowledge and approval of such appearance by the person with whom the infant resides must be shown in like manner. If the foregoing provisions of this rule are not strictly complied with, the surrogate will appoint a special guardian for the infant or incompetent, as provided in section 2534, C. C. P., notwithstanding the appearance by the general guardian or committee. Rule XVI. — Referee's Report. A referee shall file with his report all the testimony taken and all the 1255 EULES papers and exhibits that were before him in the proceeding in which the report is filed. When a referee's report has been filed said report shall be confirmed a» of course unless exceptions thereto be filed by a pa;rty interested in the account- ing or proceeding within ten days after a written notice of such filing and a copy of such report shall have been served upon the opposing party; and in case exceptions shall be so filed, any party may bring on the hearing of said exceptions on any stated motion day on the same notice that would be required for the hearing of a motion. KtTLE XVII. — Justification of Suketies to Undertaking on Appeal. The respondent on any appeal from a, decree or order of this court may within ten days after the filing of the undertaking required on such appeal serve upon the attorney for the appellant a written notice that he excepts to the sufliciency of the sureties therein; whereupon and within ten days there- after such sureties, or other sureties in a new undertaking to the same effect, must justify before the surrogate, or a clerk designated for that purpose, on five days' notice of such justification, to be served upon the respondent's attorney, by each surety appearing in person before said surrogate or desig- nated clerk and submitting to an examination, under oath, on the part ' of the appellant, touching his sufficiency. If such sureties shall be found suffi- cient, said surrogate or designated clerk will indorse an allowance thereof upon the undertaking or a copy thereof, and a notice of such allowance shall be served upon the attorney for the exceptant; and the effect of any failure to so justify and procure such allowance shall be to avoid the undertaking. Rule XVIII. — Justification of Suketies to Bond of Executoe, Adminis- TEATOE, GUAEDIAN, ETC. Principals and sureties upon bonds and undertakings, if natural persons, must appear and qualify before the clerk designated for that purpose by the surrogate. , Whenever a bond with sureties shall be filed by an executor, admin- istrator, guardian or trustee any person interested in the estate may apply to the surrogate for an order requiring the sureties in said bond to appear before him or a clerk designated for that purpose and submit to an exam- ination under oath as to their sufficiency as such sureties. If it shall appear to the satisfaction of the surrogate that such examination is necessary he will make an order prescribing the time and place where such examination shall take place, a copy of which order shall be served upon such executor, administrator, guardian or trustee at least five days before the time fixed for such examination. If on such examination the surrogate shall be satisfied of the sufficiency of such surety he will indorse his approval upon the bond or a copy thereof; and in case such surety on such examination shall not in the opinion of the surrogate be sufficient the surrogate will make an order requiring the substitution of new sureties withii five days after the service of a copy of said order upon the executor, administrator, guardian or other trustee, or his attorney, if he shall have appeared by attorney on such examination. 1256 EtJLES RCII.E XIX. — Notice op Settlement of Okdees and Deckees in Litigated Motions. Two days' notice of the settlement of an order on a litigated motion or of a decree or decision shall be given in writing to all the parties who have appeared and to any special guardian in the proceeding in which such order, decree or decision is to be made. Rule XX. — Costs and Allowances. Whenever a party to a decree shall deem himself entitled to costs the matter will be considered and determined by the surrogate on two days'' notice of adjustment. With said notice shall be served a statement showing the items of costs and disbursements to which the party may deem himself entitled, which disbursements shall be duly verified both as to their amount and neces- sity. The disbursements for referee's and stenographer's fees must be sus- tained by affidavits or detailed proof. At the same time and on like notice the surrogate will pass upon any application for an additional allowance. Such application must be accompa- nied by an affidavit setting forth the number of days necessarily occupied in the hearing or trial, in preparing the account for settlement and in the prepa- ration for the trial, the time occupied on each day in the rendition of the services, their nature and extent in detail, including the serviees necessarily rendered or to be rendered in the drawing, entering or executing of the decree. In case such trial shall have been had before a, referee the time necessarily occupied in such trial before him may be shown by a certificate of such referee. Rule XXI. No petition for the probate of a will or for the grant of letters of admin- istration or of guardianship will be entertained during the pendency of a prior proceeding for the same or like relief respecting the same estate or fund or the estate or person of the same infant, except where there is unusual delay in prosecuting such proceeding, and then only upon application to tlie surrogate, with notice to the prior applicant. Rule XXII. — Compromise. Upon application for leave to compromise it should appear by the affidavit ■of the petitioner's attorney that he has investigated the subject matter of the eompromise or the facts of any alleged cause of action. If the attorney has become concerned in the application or its subject matter at the instance of the party with whom the compromise is proposed, or at the instance of any representative of such party, that fact miist be disclosed. Rule XXIII. — ^Tkansitee Tax Peocbeding. Upon the filing of the appraiser's report in a transfer tax proceeding the surrogate will en^er the order (upon the submission thereof) determining the value of the property and the amount of tax. The matter will not appear on the calendar at this stage, nor will the court then consider objections to the report. 1257 RULES A party having objections to the report, or the order entered thereupon, may, within sixty days, file a notice of appeal, which must specify the grounds of objection. Upon filing said notice of appeal with the clerk of the court, together with proof of service of said notice upon all parties that appeared before the appraiser, the proceeding will be placed upon the calendar for the next regular motion day without further notice. Upon the return of the appraiser's notice of time and place of appraisal a special guardian will be appointed to protect the interests of infanta if it appears that their rights are involved and they are not otherwise adequately represented. Adopted February 2, 1915. John P. COHAIAN, RoBEBT Ludlow Fowi-eb, Surrogates. NIAGARA COUNTY, LOCKPOET, N. Y. Hon. Norman D. Fish, Surrogate. Surrogate's Court Rules. The Surrogate will attend ' at the Surrogate's office in the court house in the city of Lockport every Monday and Saturday, at the common council chambers in the city of Niagara Falls every Wednesday at 2 o'clock P. M., and at the city court room in the city of North Tonawanda every Wednesday at 10 o'clock A. M.; except on legal holidays, during the month of August and when a trial term of the County Court is in session. Citations and orders will be made returnable at the Surrogate's Office in the city, of Lockport on Mondays and Saturdays, only, at the common council chambers in the city of Niagara Falls on Wednesday afternoons only, and at the city court room in the city of North Tonawanda on Wednesday fore- noons only. Business will he attended to at Surrogate's office in Lockport, at common council chambers in the city of Niagara Falls, and at Surrogate's Chambers in the city of North Tonawanda, whenever Surrogate is present, at one of which places he will be present as a rule. The Surrogate's office in the court house in the city of Lockport will be open all day every business day. The Clerk can issue citations and take the proof of a will unless demand be made for an oral examination of the subscribing witnesses or objections to such probate are pending. 1258 RULES ONONDAGA COUNTY, SYRACUSE, N. Y. HoH. John W. Sadleb, Surrogate. All return days of citations must be one of the first three days of the ■week. No printed rules. ONEIDA COUNTY, UTICA, N. Y. Hon. Michael H. Sexton, Surrogate. No printed court rules. ONTARIO COUNTY, CANANDAIGUA, N. Y. Hon. Haket I. Dunton, Surrogate,, Surrogate holds court every day at Canandaigua (Mondays preferred), and every first and third Fridays at Geneva. No printed rules of court. ORANGE COUNTY, GOSHEN, N. Y. Hon. John B. Swezet, Surrogate, No published rules. ORLEANS COUNTY, MEDINA, N. Y. Hon. Feed. L. Downs, Surrogate. No special rules. OSWEGO COUNTY, OSWEGO, N. Y. Hon. Clatton I. Milleb, Surrogate. No special rules. 1259 KULBS' OTSEGO COUNTY, COOPERSTOWN, N. Y. Hon; LEa,AND M. Cowi-es, Subrogate. No printed rules. Surrogate's Court, Otsego County. Terms for 1916. Cooperstown. — At the Surrogate's Office beginning eVery Monday, except during the month of August. Oneonta. — At County Court chambers January 6, February 3, March 9, April 6, May 4, June 15, July 6, September 7, October 5, November 2, DeeembetT. Unadilla. — At law offices of Ir. M. Cowles last Saturday of each month except during August. Leland M. Cowles, Surrogate. M. Belle Gsaham, Clerk. PUTNAM COUNTY, CARMEL, N. Y. Hon. J. Bennett Sotithaed, Surrogate. No rules. QUEENS COUNTY, JAMAICA, N. Y, Hon. Dakibx Noble, Surrogate. Rules of the Queens County Surrogate's Court. Rule I. — Bttsiness Hotjbs. The Surrogate's office is open for the transaction of business, except on Sundays, Saturdays and Holidays, as follows: Prom September 1 to June 30, from 9 a. m. to 4 p. fi. 5 from July 1 to August 31, from 9 a. m. to 2 p. m.; on Saturdays from 9 a. m. to 12 m. Rttle II. — Calendae. The regular calendar will be called at 10 a. m. on Tuesday of each week, except during the month of August. A calendar of cases in which orders shall have been made for the trial o» any controverted questions of fact by the Court, with a jury, will be called on the laat Tuesday of each month, except July, August, and September and on each day thereafter while the court shall sit for the purpose. Such cases will then be tried in their order unless adjournments be granted upon proof of legal excuse. 1260 RULES Rule III. — Cases not Answeked. Cases appearing on the calendar and not answered will be marked adjourned for one week; if not answered on the adjourned day they will be marked "off calendar" and can then be restored only upon two days' notice to, or the written consent of, all parties. Rule IV. — Phoofs or Sebvice. Proofs of service of citations or orders to show cause in all proceedings must be filed on or before the day next preceding the return day in order to have the cases placed on the calendar. Rule V. — Fokm op Papers. All petitions, decrees, orders, objections and other papers must be written or printed in black ink and endorsed with the title of the proceeding, indicat- ing the nature of the application, and the name and postoffice address of the attorney. A proposed order must not be attached to any other paper. All petitions, bonds, proposed orders and other papers must bo liled and entered in the office before being submitted to the Surrogate. Rule VI. — Appeaeances. Parties to proceedings may appear personally or by attorney. An attorney- appearing for a party duly cited must file a written notice of appearance, and when appearing for a party not cited he must, in addition to the notice of appearance, file a written authorization from such party, duly executed and acknowledged as a deed to be recorded. Rule VII. — Objections. Objections in probate, accounting and other proceedings must bfe in writ- ing, duly verified, and a copy must be served upon the petitioner or upon his attorney, in case he has appeared by attorney. Within five days after a jury trial has been demanded, the party making the demand shall present, on two days' notice of settlement to the attorneys of all parties who have appeared, a proposed order directing such trial which order shall state the controverted questions of fact to be tried by jury. If a party demanding a trial by jury should fail to serve and present such order, it may be presented by any party to the proceeding. Rule VIII. — Supulations fob Adjournments. Stipulations for adjournments must be in writing, signed by all parties who have appeared in the proceeding and filed on or before the day next preceding the date set for hearing. Rule IX. — Probate Proceedings. In probate proceedings the original will and a sworn copy thereof must be filed with the petition, unless upon good cause shown by affidavit the Surro- 1261 RULES gate dispenses with the filing of the original will, in which case it must be filed at least two days before the return day of the citation. Rule X. — Foreign Wills. All exemplified copies of foreign wills shall be accompanied by a petition and an order for recording the same. Rule XI. — Letters of Administration. No letters of administration will be issued while another application for letters on the same estate is pending. Rule XII. — Citizens of Foreign Countries. Upon application for letters of administration, where it appears that an intestate was at the time of his death the subject of a foreign power whose Consul is entitled by treaty to the right of administration or intervention, notice of the application shall be given to the Consul whose right is concerned. RiTLE XIII. — Contest of Probate of Will. A party seeking to contest the probate of a last Will and Testament must file with the Clerk of the Court, a written and verified answer, containing a concise statement of the grounds of his objection to such probate, and any facts he may allege tending to establish a want of jurisdiction of the Court to hear such probate. In case such jurisdiction shall be denied or the right of any objecting party to appear and contest shall be questioned, the Court will first hear and pass upon the question of jurisdiction, or the status of the contestant, unless, for the convenience of the parties or the Court, it shall be ordered otherwise. In all cases of contests in probate proceedings, the proponents shall, within five days after objections to the probate are filed, present a verified petition for and procure and enter an order directing notice of the time and place of hearing of such objections to be given, and prescribing the manner of giving such notice, to all pprsons in being who would take any interest in any property under the, provisions of the will, and to the executor or executors, trustee or trustees named therein, if any, who have not appeared in the pro- ceeding, as required by , Section 2617 of the Code, and such petition shall con- tain the names and addresses of such parties, and state whether any and which of them, are infants or of unsound mind. In case the proponents shall not present such petition and enter such order within the time aforesaid such petition may be presented and order entered by or on behalf qf any party or parties interested in the estate. Rule XIV. — Certain Persons Must be Made Parties in Probate Proceedings. AVhenever a party shall put in issue on probate the Validity, construction, «r the effect of any disposition of personal property under Section 2624 of the Code, if it shall appear that all persons interested in such construction are not before the Court, the determination of such question shall be suspended 1262 RULES until such persons shall be made parties; and the executor named in the will shall not be held to represent the legatees therein for the purpose of such construction. Rxju; XV. — ^When Person Not Executor Entitled to Costs. Whenever any person shall appear in support of the will propounded under Section 2617 of the Code, such person shall not thereby become entitled to recover any costs on the probate of said will unless it shall appear to the satisfaction of the Court that the interest of such person was not sufSciently represented and prosecuted by the executor named in the will and his counsel. Rule XVI. — ^Accounting. (Petition.) When a petition for a voluntary accounting is presented the eccount and vouchers to which it relates shall be filed therewith. Rule XVII. — Statement of Unpaid Claims. When an account is filed for settlement, the accountant shall file therewith a copy of any statement of a claim which has been presented to him and allowed, and which remains unpaid. RuIaE XVIII. — ^Account. (Copy of Will to Accompany.) On an accounting by an executor, testamentary trustee, or administrator with the will annexed, a copy of the will shall be filed with the petition and account. Rule XIX. — Appointment of Special Guardian for Infant. In the absence of a petition by an infant over fourteen years of age for the appointment of a special guardian in any , proceeding, the Surrogate will appoint a special guardian upon his own motion. No special guardian to represent the interest of an infant in any proceeding will be appointed on the nomination of the petitioner or his attorney, or upon the application of a person having an interest adverse to that of the infant. To authorize the appointment of a person as a special guardian on the application of an infant or otherwise in a proceeding in this Court, or to entitle a general guardian of such infant to appear for him in such proceeding, it must appear that such person. Or such general guardian, is competent to protect the right of the 1263 RULES infant, and that he has no interest adverse to that of the infant and is not connected in business with the attorney or counsel of any party to the pro- ceeding. Whenever an infant interested in any proceeding in said Surrogate's Court has a general guardian no decree will be entered without appointing a special guardian to represent said infant's interest therein, unless such gen- eral guardian shall file his appearance , in writing and his affidavit of no adverse interest, with the Clerk of said Surrogate's Court. Rule XX. — ^Reports of Special Guardians. Special Guardians ip. accounting proceedings shall file their reports within five days from the time of their appointment, except where objections are- filed and an adjournment is had, or their time to file report is extended by the Surrogate. The report or an accompanying affidavit must state in detail the work done and the number of days spent in its performance. Rttle XXI.— Bill of Costs. No allowance will be made tp an accountant on the judicial settlement of his account unless the bill of costs contains a detailed statement of the days employed in connection with the account, showing the time occupied on each day in the rendition of the services, and their nature and extent in detail. Rule XXII. — ^Notice of Settlement of Decree. In a proceeding where a notice of appearance and demand has been filed, or a special guardian appointed, two days' notice of settlement of decree must be given, unless all parties who have appeared consent to the entry of the- decree. Rote XXIIa. Where a representative of an estate is required by law to pay » transfer tax, no decree judicially settling the account of such representative will be entered in the court unless there has been filed in my office a receipt for the payment of such tax, sealed and countersigned as provided by Section 236 of the Tax Law, or it has been shown that the estate is exempt from taxation. Rotj! XXIII. — Hearing of Disputed ("laira. Where the parties consent that tlie Surrogate may hear and determine a' disputed claim against the estate of a decedent upon the judicial settlement of the account of an executor or administrator, as provided by Section 1822 1264 RULES of the Code of Civil Procedure, the attention of the Court must be directed to this fact on filing the petition for accounting in order that the matter may be placed on the appropriate calendar. Rtjm: XXrV. — Amendment of Proposed Decree, Etc. When a proposed order, decree or decision shall be served, with notice of settlement thereof, the party served shall not submit any complete substitute therefor, but may submit proposed amendments thereto, properly referring by page and folio to the portions of the paper sought to be amended and contain- ing after each amendment a statement of the grounds therefor. Rule XXV.^ — ^Papers Not to be Ilemoved from Office. No record or paper on file in this Court will be entrusted to the custody of the attorneys or parties, except for the purpose of proper examination, in the office where it is deposited; and if any such document or paper shall be needed before any Referee appointed by this Court, the same shall be entrusted to a Clerk or messenger of this Court and delivered to the Referee, who shall execute a receipt therefor, and for its redelivery. Rule XXVI. — ^Allowance for Support of Infants. No allowance will be made to infants for support or education under Section 2846, Code of Civil Procedure, unless the petition shows that an annual accounting has been properly filed or good cause is therein shown why it has not been filed. The petition shall show also the terms of any previous order in the same estate, or, if none has been made, that fact shall be stated. Except in exceptional cases, an allowance will be made for the period of one year only, and the order must so provide. Where the infant is over fourteen years of age, he shall join in the petition; and when application is made by any person other than the guardian of the property it shall be made on at least two days' notice to such guardian. Rule XXVII. — Motions for Reargument. All motions for reargument must be submitted on papers, showing clearly that some question decisive of the case, and which was presented by counsel upon the argument, has been overlooked by the Court; or that the decision is inconsistent with some statute, or with a controlling decision to which, through the neglect or inadvertence of counsel, the attention of the Court was not drawn. N. Y. E. & S.— 80. 1265 RULES Etjle XXVIII. — Transfer Tax Proceeding. 1. Upon the filing of. the appraiser's report in a transfer tax proceeding the Surrogate will immediately enter the order determining the value of the prop- erty and the amount of tax. The matter will not appear on the calendar at this stage, nor will the Court then consider objections to the report. 2. A party having objections to the report, or the order entered thereupon, may, within sixty days, file a notice of appeal. Said notice to be served upon all parties appearing before the appraiser, and proof of service must be filed with the clerk, with the notice of appeal. Thereupon the proceeding will be, placed upon the calendar for the next regular calendar day. This notice must specify the grounds of objection. 3. A special guardian will be appointed to protect the interests of infants upon the return of the appraiser's notice, if it appears that their rights are involved and they are not otherwise adequately represented. 4. A proposed order on a motion to exempt an estate from taxation, must be accompanied by a copy thereof. RENSSELAER COUNTY, TROY, N. Y. Hon. Calvin S. MoChesnet, Surrogate. No rules. RICHMOND COUNTY, RICHMOND (Staten Island), N. Y. Hon. J. Habet Ttebnan, Surrogate. Rules of Practice in the Surrogate's Court, Richmond County. RtTLB I. All motions shall be noticed for hearing, and proceedings made returnable on Monday or Tuesday of any week, at the Borough Hall, St. George, and on Wednesday at the Surrogate's Court, at Richmond, except during the session of the County Court, when all Surrogate matters shall be made returnable at Richmond on Wednesday at 2 P. M. There will be no Surrogate's Court during the month of August. Rule II. The calendar will be made up by the Clerk and called at 10:30 A. M. Proof of service in any matter before the Surrogate should be returned before the office closes on the day preceding the return of the citation. 1266 RULES Rule III. Upon the return day of a citation issued in any proceeding, should no one appear, the proceeding will be dismissed, or such other disposition made of the matter as may be directed. Rule IV. Proper forms for the conduct of the business in the Surrogate's Court will be furnished by the Clerk, but the Clerk shall not be permitted to prepare any petitions or account or in any way act as attorney in any matters in the Surrogate's Court. It shall be the duty of the attorney or the attorneys to properly prepare and present all papers that are to be acted upon by the Surrogate, and upon the granting of an order and decree it shall be the duty of the attorney to draft and submit the same for his signature. Rule V. All petitions, orders and decrees must be endorsed with the title of the proceeding, and the name and postoffiee address of the attorney. Rule VI. In a proceeding for the probate of a will, the original will, if in the pos- session of the petitioner or if it cannot be obtained by him then a copy thereof, must be filed with the petition for the probate thereof. Rule Vli. A party seeking to contest the probate of a last will and testament must file a notice of appearance and a written and verified answer containing a concise statement of the grounds of his objections to such probate, and any facts he may allege tending to show a, want of jurisdiction of the Surrogate's Court to hear such probate. Should a jurisdictional question be raised, or the right of any objecting party to appear and contest, be questioned, the Surrogate will first hear and pass upon the question of jurisdiction, or the status of the contestant, unless for the convenience of the parties or the ^Court the Surrogate shall order otherwise. Rule VIII. All exemplified copiies of foreign wills must be accompanied by a petition and order for recording the same. Rule IX. No decree or order will be entered in any matter where an infant or incom- petent is interested, without appointing a special guardian, although such infant or incompetent has a general guardian, or committee ; unless such guardian or committee shall file with the Court his appearance for and eon- sent in writing to represent said infant or incompetent in such matter, and 1267 RULES an afiBdavit showing that such general guardian or committee has no interest adverse to those of said minor or incompetent. Rule X. In applications for the appointment of a guardian of the person and prop- erly, or ei+;her, of an infant, when there are two or more infants, separate petitions and bonds must be filed in each ease; and such petition must state whether said infanta are over or under the age of fourteen years. All petitions naming incompetents must state the name and location of the institution in which confined, and the name and address of the committee if any. Rule XI. In any judicial accounting wherein a special guardian shall be appointed, or a general guardian shall appear to protect the interests of an infant or in- competent party to such accounting, no decree shall be entered upon default against such infant or incompetent, but such decree shall be so entered only on the written report of the guardian appearing for such infant or incom- petent that he has carefully examined the account and finds it correct. Rule XII. On an accounting by an executor, administrator, guardian or trustee, any person interested as legatee; next of kin, creditor or otherwise, who desires to contest the account must file specific objections thereto in writing, and such objection shall be verified. On an accounting by an executor, or adminis- trator with the will annexed, or testamentary trustee, a copy of the will must accompany the proposed decree. Rule XIII. An executor or administrator upon the issue of letters, or within five days thereafter, shall file with the Clerk of this Court an affidavit under the Transfer Tax Law, showing the estimated value of the decedent's real and personal property. An executor shall also state in such affidavit, the names and places of residence, and degree of relationship of the legatees and devisees named in the will, the amount of each legacy or distributive share, and the estimated value of any real property therein devised; and an ad- ministrator shall also state in such affidavit the names, places of residence and degree of relationship of all the next of kin and heirs at law. An executor or administrator who shall have paid any Transfer Tax, or taxes shall, without delay, file with the Clerk of this Court one of the duplicate receipts delivered to him by the State Comptroller. Rm.B XIV. Upon the filing of a petition by an executor, administrator, guardian or trustee, for the judicial settlement of his account, the account to which it relates, and the vouchers, must be filed therewith. 1268 RULES ROLE XV. All orders and decrees to be entered in litigated motions, unless settled by consent, must be noticed for settlement, and a copy of the proposed order served at least two days before the same shall be presented for settlement, and all decrees to be entered in contested probate or accounting proceedings shall be settled before said Surrogate on at least two days' notice, and the seryice qf, a copy of the proposed decree; and no such order or decree shall be signed in the absence of the opposing attorney except upon consent unless proof of admission of such service shall be presented to the Surrogate on such settlement. Rule XVI. No IJetters of Administration will be issued while another application for Letters on the game estate is pending. Rule XVII. No papers or records shall be removed from the files in this ofBee by any person. Rule XVIII. The rules governing the procedure in the Supreme Court, so far as they may be applicable, will be adopted as controlling the practice in this Court. ROCKLAND COUNTY, HAVERSTRAW, N. Y. Hon. William McCaulet, Surri^ate. Bnles of the Surrogate's Court of Rockland County. Rule I. AH petitions, orders and decrees must be endorsed with the title of the proceeding, and the name and postoffice address of the attorney. Rui.E II. It shall be the duty of the attorney or attorneys to properly prepare and present all papers that are to be acted upon by the Surrogate; and upon the granting of an order or decree it shall be the duty of the attorney to draft and submit the same to the Surrogate for his signature. 1269 RULES Rule III. No record or paper shall be removed from the files of this office by any person ; but proper facilities will be provided for the examinatioB and transcrib- ing of records and papers by parties and attorneys. Etob IV. All exemplified copies of foreign wills presented for record in this office, must be accompanied by a petition and order for recording the same. Rule V. Upon the filing of a petition by an executor, administrator, guardian or trustee for a judicial settlement of his account, the account to which it relates, and the vouchers, must be filed therewith. Rule VI. In a proceeding for the probate of a will, the original will, if in the pos- session of the petitioner, or can be obtained by him, or a copy thereof, must be filed with the petition for the probate thereof. Rule VII. A party seeking to contest the probate of a will must file with the Clerk a notice of appearance, together with a verified answer setting forth his grounds of objection to the will. Rule VIII. On an accounting by an executor, administrator, guardian, or trustee, any person interested as legatee, next of kin, creditor or otherwise, who desires to contest the account, must file specific objections thereto in writing, and such objections shall be duly verified. Rule IX. On an accounting by an executor, administrator with the will annexed or testamentary trustee, a copy of the will must accompany the proposed decree. Rule X. All petitions must state the residence of the persons named therein. Rule XI. Where an order to publish a citation is asked for, the petition must state whether the estate involved, real and personal, amounts to more or less than two thousand dollars; and if such order is asked for upon the ground that the name or residence of a party is unknown, it must also state that the name or residence or both of that party cannot, after diligent inquiry, be ascertained by the petitioner. 1270 RULES Rtjle XII. Upon the return day of a citation issued in any proceeding, should no one appear, the proceeding will be adjourned to the next regular term, and should there he no appearance upon the adjourned day, the proceeding will be dis- missed. Rtilb XIII. An infant may appear in any matter or proceeding by his general guardian, and an incompetent person by his committee, and if he does not so appear, a. special guardian shall be appointed for him. Where, however, an infant appears by his general guardian, or an incompetent person by his committee, the Surrogate will inquire into the facts, and will appoint a special guardian, if there is any ground to suppose that the general guardian or committee, as the case may he, has any interest adverse to that of his ward, or that for any other reason the interests of the infant or incompetent person require the appointment of a special guardian. Eui-E XIV. Special guardians will carefully and thoroughly acquaint themselves with the rights of their wards; and shall also carefully examine all process and papers, to see if they are regular, and have been duly served upon their wards; and no compensation shall he awarded to any such guardian until he shall haye made and filed his verified report. Rule XV. An inventory returned for filing in this office, must be accompanied by due proof of the posting and service of notice upon the legatees and next of kin required by Section 2711 of the Code of Civil Procedure. Etjle XVI. A decree shall not be entered upon the final settlement of the account of an executor or administrator until satisfactory proof is presented that any transfer tax or taxes due from the estate have been paid; or that the estate is exempt from taxation under the transfer tax law. Rtoe XVII. An executor or administrator upon the issue of letters, or within five days thereafter, shall file with the Clerk of this Court an affidavit under the trans- fer tax law, showing the estirnated value of the decedent's real and personal property. An executor shall also state in such affidavit, the names and places of residence and degree of relationship of the legatees and devisees named in the will, the amount of each legacy or distributive share, and the estimated value of any real property therein devised; and an administrator shall also state in such affidavit, the names, places of residence and degree of relation- ship of all the next of kin and heirs at law. 1271 RULES Rule XVIII. An executor or administrator who shall have paid any transfer tax or taxes, shall without delay flle with the Clerk of this Court, one of the duplicate receipts delivered to him by the County Treasurer. Rote XIX. In applications for the appointment of general guardian of the persons and property, or either, of an infant, when there are two or more infants, there must be a separate petition and bond in each case. Rule XX. All petitions naming an incompetent, must state the name and location of the institution, 'if any, in which he is confined, and the name and address of his committee, if any. Rtile XXI. All petitions and answers in this Court, except as otherwise provided by law, shall be in writing, and contain a plain, concise statement of the facts constituting the claim, objection or defense, and a demand of the order, decree, or other relief, which the party claims, and they shall be duly verified. Rote XXII. A petition naming an infant as a necessary party to a. proceeding, must state whether he is over or under fourteen years of age; and if imder that age, the name and address of his father, mother or general guardian; or if there is none within the State, the name and address of the person having the care and control of him, or with whom he resides, or in whose service he is employed. Rote XXIII. All bonds, undertakings, satisfactions of decrees, consents and waivers, must be duly acknowledged, proved and certified in like manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property, to entitle the same to be recorded in this County. Rote XXIV. All moneys or securities directed to be paid or delivered to this Coinl, must be paid or delivered directly to the County Treasurer to the credil of the matter or proceeding in which such direction shall have been made; and the party making such payment or delivery shall at the same time deliver to the County Treasurer, a duly certified copy of the order or decree containing such direction. The Surrogate will not in person receive any such moneys or securities. 1272 KULES EuiE XXV. The practice in this Court shall be governed by the general rules of practice of the Supreme Court, so far as they are applicable. Adopted September 2nd, 1909. William McCaxjijey, Surrogate. ST. LAWRENCE COUNTY, OGDENSBURG, N. Y. Hon. Ai-eic E. Heeeiman, Surrogate. No special rules other than that upon filing a petition for probate either the will or a copy thereof should be filed with the petition. SARATOGA COUNTY, SARATOGA SPRINGS, N. Y. Hon, William S. Ostkander, Surrogate. Rules of the Saratoga County Surrogate's Court. Rule I. No record or paper on file in this Court will be entrusted to the custody of any person except for the purpose of proper examination in the oflice where it is deposited, unless such document or paper shall be needed before some other Court or a Referee appointed by this Court, in which case the same shall be entrusted to the clerk of this Court for delivery to such other Court or Referee in accordance with the law, and upon due provisions for its return. Rule II. No allowance will be made to a party on the judicial settlement of an account vmless the bill of costs contains a detailed statement of the days lawfully employed in connection with the accounting and a detailed statement of dis- bursements. Rule III. On an accounting by an executor, testamentary trustee or administrator with the will annexed, a copy of the will shall be filed with the petition and account. Rule TV. At the time when letters testamentary or of administration are issued, an aflSdavit of the value of the estate shall be filed. 1273 RULES EuiE V. No allowance will be made to infants for their support and education unless the petition shows that an annual accounting has been properly filed, or good cause is therein shown why it has not been filed. The petition shall also show the terms of any previous order in the same estate, or, if none has been made, that fact shall be stated, except in unusual cases no allowance will be made for a period exceeding one year. Where the infant is over fourteen years of age he shall join in the petition and when application is made by any person other than the guardian of the property it shall be ma^e on at least two days' notice to such guardian. Adopted July 1, 1916. SCHENECTADY COUNTY, SCHENECTADY, N. Y. Hon. ALBacANDEE M. Veddee, Surrogate. No written rules. SCHOHARIE COUNTY, MIDDLEBUEGH, N. Y. Hon. Dow Beekman, Surrogate. Court held at Schoharie on Mondays, at Cobleskill on Saturdays, and at Middleburgh on Fridays — except holidays and during County Court. SCHUYLER COUNTY, WATKINS, N. Y. Hon. Oun T. Nte, Surrogate. No special rules published. Inquire of Surrogate. SENECA COUNTY, WATERLOO, N. Y. Hon. George F. Bodine, Surrogate. Rules of Practice of Seneca County. On and after January 1st, 1914, the following rules will be followed in the transaction of business in the Surrogate's Court of Seneca County, and further rules will be adopted from time to time as the necessity therefor is' suggested. . 127^! RULES EtILE I. The Surrogate -requests that all motions be noticed for hearing and pro- ceedings made returnable on Tuesday of any week at the Surrogate's Office, Waterloo, and on the third Wednesday of any month at the Court House in the Village of Ovid, except during the trial terms of County Court. There will be no Surrogate's Court during the month of August. Rule II. In a proceeding for the probate of a. Will the original or a copy thereof must be filed with the- petition for the probate thereof. Rule III. Upon the filing of a petition by an executor, administrator, guardian or trustee for the judicial settlement of his account, the account to which it relates and the vouchers must be filed therewith. Rule IV. No special guardian to represent the interests of an infant in any proceed- ing in said Surrogate's Court Will be appointed on the nomination of a proponent or the accounting party or their attorney. If an infant appear by his general guaj'dian or an incompetent person by his committee the Surrogate will inquire into the facts and will appoint a special guardian if for any reason he believes that the general guardian or committee, as the case may be, has any interest adverse to that of his ward or if for any other reason the interests of the infant or incompetent require the appointment of a special guardian. Allowances to special guardians will be made in each case com- mensurate with the work done, time consumed and the size of the estate. Rule V. Upon the application for the appointment of a general guardian of the person and property, or either, of an infant, where there are two or more infants there must be a separate petition and bond in each matter. Rule VI. All general guardians appointed by the Surrogate's Court will be required to file in the Surrogate's Ofiice in the month of January of each year, an inventory and account as provided by section 2842 of the Code of Civil Procedure. Rule VII. Where an order to publish a citation is asked for the petition must state whether the estate involved amounts to more than two thousand dollars. The petition must be accompanied by an affidavit setting forth the facts required by Sections 2522 and 2523 of the Code of Civil Procedure. 1275 RULES Rule VIII. Coats and allowances on judicial settlements will be made in conformity with Sections 2561 and 2562 of the Code of Civil Procedure, and attorneys are requested to include in the final account as filed and as a part thereof their charges for services rendered in preparing the same, so that on the final settle- ment the allowance will include charges only for services rendered and to be rendered after account has been prepared. STEUBEN COUNTY, BATH, N. Y. Hon. H. V. Peatt, Surrogate. Steuben County Surrogate's Court, 1914. / Surrogate's Court for Steuben County in 1914 will be held as follows: At the Surrogate's Office in the Village of Bath every Monday, except during the month of August, at 10 o'clock A. M. At the Court House in the City of Corning on the second Wednesday of each month, except August, at 10 o'clock A. M. At the Court House in the City of Horhell on the third Wednesday of each month, except August, at 10 o'clock A. M. In case the day designated for any court falls on a holiday, court will be held on the following day. RULES. The rules adopted by Hon. Monroe Wheeler, my predecessor in office, and filed in the Surrogate's Office in the Village of Bath, on the 5th day of December, 1911, are the present rules of the Surrogate's Court of Steuben County, and the attention of members of the bar is respectfully called to the following: Rule I. "All papers served or filed must be endorsed with the name of the attorney, or attorneys, or the name of the party if he appears in person, and with his or their office address or place of business." Rtole II. "It shall be the duty of the attorney, attorneys or party to properly prepare and present all papers to be acted upon by the surrogate, and when an order or decree has been granted upon his or their application, it shall be his or tl.eir duty to draft and submit such order or decree to the Surrogate for signature and entry." 1276 RULES Rule IV. "In presenting papers to the Court the attorney or party wUl attach and securely fasten the papers together so far as practicable." Etjle VI. "Special guardians must carefully and thoroughly acquaint themselves with the rights of their wards, also carefully examine all process and papers and see if they are regular and have been duly served upon their wards and that the court has obtained jurisdiction over the person of their wards.", KULB X, "When, an attorney or counsel appears for a party who is not a resident of this State, the authority for such appearance shall be in writing and shall be filed in the proceeding." Rote XII, "Qn filing a petition for a voluntary accounting of an executor, adminis- trator, guardian or trustee, the account and vouchers must be filed therewith." Rote XV. "In every proceeding for the judicial settlement of the account of an executor or administrator with the will annexed, or a testamentary trustee, there must be filed with the petition and account, a true copy of the last will of the testator or testatrix." Wayland, Dec. 15, 1913. H. V. Pbatt, Surrogate. Rules adopted by Hon. Monboe Wheexer, filed Dec. 5, 1911, RuiJE I. All papers served or filed must be endorsed with the name of the attorney, or attorneys, or the name of the party if he appears in person, and with his or their office address or place of business. Rote II. It shall be the duty of the attorney, attorneys or party to properly prepare and present' all ' papers to be acted upon by the Surrogate, and when an order or decree has been granted upon his or their application, it shall be his or their duty to draft and submit sucli order or decree to the Surrogate for signature and entry. Rule III. The standing rule of this Court against the removal of papers from the files, or records vrill be enforced, and attention is called to Section 2050 of the 1277 EULES Penal Laws touching this subject; and when an attorney or party desires an office copy or copies it is suggested that when he makes a draft of an order or decree to be signed that he make a copy of the same and send the same with the decree or order to the Surrogate, and the Surrogate or Clerk will make the same conform to the original thereof and return the same to the attorney or party. Rule IV. In presenting papers to the Court the attorney or party will attach and securely fasten the papers together so far as practicable. Rto,e v. All moneys paid into Court must be paid directly to the County Treasurer to the credit of the matter or proceeding. The Surrogate or Clerk will not receive such moneys. Rule VI. Special guardians must carefully and thoroughly acquaint themselves with the rights of their wards, also carefully examine all process and papers and see if they are regular and have been duly served upon their wards and that the court has obtained jurisdiction over the person of the wards. Rule VII. All bonds, undertakings, satisfactions of decree, consents and waivers must be duly acknowledged and certified by an ofBcer who is authorized to take and certify the acknowledgment of deeds to be recorded in the County of Steuben, and when taken by an officer not authorized to take and certify the acknowl- edgment of deeds to be recorded within said County, then the certificate of acknowledgment must have attached thereto the certificate of the County Clerk in the same form as where the acknowledgment of a deed has been taken by an officer not authorized to take and certify acknowledgments of deeds within the said County. See § 2528 of the Code of Civil Procedure. See § 310 of the Real Property Law. General Construction Law, § 10 and § 11. Rule VIII. Upon the application for the appointment of a general guardian of the person and property, or either, of an infant, where there are two or more infants there must be a separate petition and bond in each matter. RUT.E IX. AU petitions and answers presented to this court or filed therein, except as otherwise expressly prescribed by statute, must be in writing, and must contain a plain and concise statement of the facta constituting the claim, 1278 RULES objection or defense, and a demand for the decree, order or relief which the party claims, and the said petition or answer shall be duly subscribed and verified. Rule X. When an attorney or counsel appears for a party in this Court, if the party is not a resident of the State, the authority for such appearance shall be in writing and shall be duly filed in the matter or proceeding pending. ETO.E XI. In a proceeding to probate a will, the proposed will shall be filed with the petition for the probate thereof. Rule XII. 'On filing a, petition for a, voluntary accounting of an executor, adminis- trator, guardian or trustee, the account and vouchers must be filed therewith. Rum: XIII. In a Transfer Tax Proceeding, upon the filing of the appraiser's report, the Surrogate will immediately enter an order determining the value of the prop- erty and the amount of the tax, and if a party thereto has any objection to the report of the appraiser, or to the order entered thereon, he may, within the time prescribed by law, file a notice of appeal therefrom and serve said notice upon all the parties appearing before the appraiser, and proof of due service of such notice shall be filed with the Clerk of this Court with the notice of such appeal. The notice of appeal must specify the grounds of objection. A special guardian will be appointed in the matter to protect the interest of infants upon the return of the appraiser's notice, if it shall appear that their rights are involved, and that theyi are not otherwise adequately represented. Rm,E XIV. In every proceeding where a party shall ask for an allowance for services and disbursements, or either, to repay himself for services of his attorney or counsel, or either; and whenever a special guardian shall ask for an allowance for services and expenses in any matter, the affidavit of the party, attorney or special guardian, as the case may be, must be presented to the Surrogate and filed showing the actual services rendered by such attorney, counsel or guardian, and the expenses or disbursements paid or incurred, which affidavit shall state the number of days spent by such attorney, counsel or guardian for which pay may be asked. Rule XV. In every proceeding for the judicial settlement of the account of an executor or administrator with the will annexed, or a testamentary trustee, there must be filed with the petition and account, a true copy of the last will of the testator or testatrix. 1279 RULES Rtjle XVI. Rule Five of the General Rules of Practice forbidding an attorney to become a surety on a bond or undertaking is applicable to this Court and will be rigidly enforced by the Surrogate. Rtile XVII. In all applications of a party for leave to compromise a claim or claims in favor of an estate against another party, the application shall be made by the petition of the party, and be accompanied by the affidavit of the attorney for such party, which should show that such attorney has carefully and thoroughly investigated the facts and in his opinion the claiin should be com- promised in accordance with the prayer of the petition. The above Rules are hereby ordered adopted and filed by the Surrogate at Bath, N. Y., December 5th, 1911, and all other or previous rules are hereby revoked. MoNBOE Wheeler, Surrogate. SUFFOLK COUNTY, RIVERHEAD, N. Y. Hon. Seiah B. Strong, Surrogate. Surrogate's Court, Suffolk County. Rules of Practice. RtJLE I. The regular court day for the presenting of citation and transactions of court matters shall be Monday of each week, except during the month : of August. The calendar will be called at one o'clock P. M., on Monday, and when the regular court day falls on a legal holiday all matters returnable on that day will stand adjourned as of course until the next secular day. The Surrogate will also be at Riverhead at his chambers on Tuesday of each week/ The attention of the Bar is called to the reservation of these two days and all matters should be brought on before the Surrogate on either Monday or Tuesday of each week. Rtjle II. Upon the return day of the citation, issued in any proceeding, should no one appear on the call of the calendar the proceeding will be adjourned one week and should there be no appearance on such adjourned day the proceeding will be dismissed. 1280 RULES EULE III. All- petitions, orders and decrees must be endorsed with the title of the proceeding, title of the estate and name and postoffice address of the attorney. Rttlb IV. All petitions must state the relationship to the deceased of all persons named therein, and all petitions naming infants must state whether they are over or under the age of fourteen years, and if under fourteen the name and address of the father, or if the father be dead, the name and address of the mother, together with the name and address of the general guardian, if any, and the name of the person with whom said infants reside. RtTLE V. All petitions naming incompetents must state the name and location of the institution in which confined and the name and address of the committee, if any. Rule VI. In all proceedings for the probate of a Will the original Will, if in the possession of the petitioner, or can be obtained by him, must be filed with the petition, and if the Will is not so filed the petition must st^te the .reason for failing so to do and the name and address of the person having such Will. The petition for probate must also recite whether the witnesses are all living. Rule VII. Proof of personal service on all citations issuing out of this Court (and of all waivers) must be filed with the Clerk at least two days before the return day thereof. Rule VIII. In accountings the account and vouchers in support thereof must be filed with the petition at least five days before the return day of citation. Rtjie IX. It shall be the duty of the attorney to prepare and present all papers that are to be acted upon by the Surrogate, and upon the granting of an order or decree it shall be the duty of the attorney to submit such order or decree to the Surrogate for his signature not later than the next Court day. In contested matters a copy of the proposed decree must be served with notice of settlement of at least two days. Unless the papers to he acted upon and the order and decree are submitted to the Surrogate by the next Court day the proceeding will be deemed abandoned. N. T. E. & S.— 81. 1281 RULES RtiXE X. All guardians must in the month of January of each year file the annual inventory and account as required by § 2660 of the Code. Failure to file such account will be treated as cause for proceedings for removal of the guardian. Rtoe XI. No order will be made permitting a guardian to use any portion of the principal of the estate of his ward, except upon the presentation of a duly verified petition showing fully all the facts making such expenditure neces- sary. Upon all such applications, a copy of the proposed order must accom- pany the petition. Etoe XII. Directly after any ward arrives a}; the age of twenty-one years his guardian, shall institute proceedings for judicial settlement of his accounts. All repre- sentatives of estates are required to take measures for judicial settlements of the same at the earliest practicable date. EumXIII. The practice of this Court shall be governed by rules of the Supreme Court so far as rules are > applicable- Dated, Eiverhead, N. Y., January 1, 1916. Selah B. Steong, Surrogate. SULLIVAN COUNTY, MONTICELLO, N. Y. Hon. Geobge H. Smith, Surrogate. Begalar Surrogate's Court day is Monday, 2 P. M., citations preferably returnable on that day. No special rules except that when personal sureties are given on a bond the penalty of the bond must be double that of the fund secured thereby. TIOGA COUNTY, OWEGO, N. Y. Hon. Geoboe F. Andrews, Surrogate. No rules regularly adopted. 1282 RULES TOMPKINS COUNTY, ITHACA, N. Y. Hon. Willabd M. Kent, Surrogate. No printed rulee. ULSTER COUNTY, KINGSTON, N. Y. Hon. Waltee N. Gill, Surrogate. Court sits every Monday and Tuesday except in August, for hearing of matters on notice. Ex parte matters can be brought on at any time. No special rules. WARREN COUNTY, GLENS FALLS, N. Y. Hon. Geobge S. Ralet, Surrogate. Surrogate's Court, Warren County. I do hereby designate and appoint the terms of the Surrogate's Court for Warren County to be held at the chambers of the Surrogate in the City of Glens Falls, Warren County, N^. Y., on and after Janua,ry 1, 1916, as follows: Every Tuesday except in the month of August, the fourth Tuesday in Febru- ary, the fourth Tuesday in June, and the second Tuesday in November. Dated January 1, 1916. Geobge S. Ralet, Surrogate. No special rules. WASHINGTON COUNTY, SALEM, N. Y. Hon. Fredebice Fraseb, Surrogate. Surrogate's Court, Washington County, N. Y. The regular terms of the Surrogate's Court, in and for the County of Washington, for the year 1916, will be held as follows: On Monday of each week during said year, except in the month of August, in the Surrogate's Office, at the Court House, in the Village of Salem, in said County. On the second Wednesday of eacli month during said year, except the month of August, at the Court House, in the Village of Hudson Falls, in said County. At each of these terms the Court will open at 10 o'clock in the forenoon. 1283 RULES The Court is always open for the transaction of any business within its powers and jurisdiction. Dated, Salem, N. Y., December 1, 1915. Feedebick Feaseb, Surrogate. Filed, December 2, 1915. G. W. CuEBX, Clerk. Ko special rules. WAYNE COUNTY, LYONS, N. Y. Hon. Clyde W. Knapp, Surrogate. No special rules. WESTCHESTER COUNTY, WHITE PLAINS, N. Y. Hon. WiUiiAM A. Sawtee, Surrogate. Rules of Practice of the Surrogate's Court of Westchester County, N. Y. (In Effect April 15th, 1916). RtTLE L Papers. Every paper to be used in the court shall be indorsed with the title of the proceeding to which it relates, a description of the paper and the name and postofSce address of the attori^^ presenting it. No paper on file shall be intrusted to any attorney, party or other person except for proper examination thereof in the Clerk's Office. If any referee appointed by this court shall request the delivery to him of any such paper* for use before him, the same shall be delivered to him by a mes- senger of the court upon his receipt therefor. Rule It. Service of Process — Proof Of. In all proceedings the proofs of service of process, notice of hearing, notices of motion and orders to show cause shall be filed two days before the day therein named for the return day thereof. 1284 RULES Rule III. Filing of Objections. In any proceeding, if any party interested desires to file an answer or objection, same must be filed on or before the return day of the citation unless his time so to do is extended by a stipulation of all parties appearing, duly filed, or by the Surrogate on application therefor being made on the return day. Rule IV. Cases not answered. Cases appearing on the calendar and not answered will be marked adjourned for one week; if not answered on the adjourned day they will be marked "ofiF calendar" and can then be restored only upon two days' notice to, or the written consent of, all parties. Rtile V, Probate. In a proceeding for the probate of a will not lost or destroyed, the will and a. copy thereof shall be filed with the petition. The correctness of said copy shall be shown by the affidavit of two persons of full age who shall have compared the copy with the original will, or same shall be duly certified. When all parties in interest have waived the service of citation all papers in the matter must be filed with the Clerk at least two days before the day fixed for the taking of proof. Rtjlb VI. Appointment of General Guardian. Upon the application for the appointment of a general guardian of the person and property, or either, of an infant, where there are two or more infants there must be a separate petition and bond in each matter. Each application for the appointment of a general guardian must be accom- panied by an aflSdavit, made by some one other than the proposed guardian or a. surety on his bond, showing the amount of personal property of the minor, the amount of the yearly rents and profits of his real estate, and the yearly income from any other personal property. Rule VII. Applications to Expend Money of Minors. A petition for' the application by a guardian of an infant's property, or any portion thereof, to the support, maintenance and education of the infant, shall show that an annual accounting has been duly filed or that good cause exists for disregarding the omission. 1285 RULES The petition shall show the terms of any previous order for the application of any portion of the infant's property. And if no previous order has been made that fact shall tie stated. When the infant is over fourteen years of age he shall join in, subscribe and verify the petition. When the application is made by a person other than the guardian of the property or a parent of the infant, the consent of such guardian or such parent shall be submitted or the application made on notice to him. Except in exceptional cases, an allowance will be made for the period of one year only, and the order should so provide. Etoe VIII. Appointment of Special Guardians. When an infant over fourteen years of age applies for the appointment of a special guardian, or where an infant appears by his general guardian, or where a lunatic, idiot or habitual drunkard appears by his committee, the general or special guardian or the committee shall show by affidavit that such general or special guardian or such committee is competent to protect the rights of the infant or incompetent and has no interest adverse to that of the infant or incompetent and is not connected in business with any party to the proceeding or the attorney or counsel of such party. It must appear whether or not such general or special guardian or committee is entitled to share in the distribution of the estate or fund in which the infant or incom- petent is interested, and if the general or special guardian or committee is in any way interested in the estate or fund, the nature of such interest must be disclosed. Xo party to a proceeding will be appointed special guardjan of any other party thereto. The petition for the appointment of such special guardian as well as the appearance filed by a general guardian of the infant must in every instance disclose the name, residence and relationship to the infant of the person with whom the infant is residing and whether or not said infant has a parent living. If a parent is living, it must be shown by the affidavit of the parent whether or not such parent has knowledge of and approves such application or appearance. In case the parent has an interest adverse to the infant, the petition on the application for the appointment of such special guardian must be accompanied by the affidavit of the parent, showing in addition to such knowledge aforesaid that such parent has not influenced the infant in the choice of the special guardian. If the foregoing provisions of this rule are not strictly complied with, the Surrogate will, on his own motion, appoint a special guardian for such infant or incompetent, as provided in Section 2534, Code of Civil Procedure, notwith- standing the application of such infant or the appearance by the general guardian or committee. Rule IX. Special Guardian's Report. Special guardians shall file their reports within eight days from the time 1286 RULES of their appointment, except where an answer is filed and an adjournment is had, or the time to file the report is extended by the Surrogate. The report or an accompanying aiSdavit must state in detail the work done and the number of days spent in its performance. KULE X. Allowance to Special Guardians. All allowances to be made to Special Guardians in any proceeding must be fixed by the Surrogate upon application made to him for that purpose. Rule XI. Accounting. On an accounting by an executor, testamentary trustee or administrator with the will annexed, a sworn copy of the will shall be filed with the petition and account. No decree will be entered on a final accounting unless proof is produced showing that the transfer tax on the estate has been paid or that the estate is exempt from taxation. Rule XII.. Payment into Court. All moneys paid into Court must be paid directly to the County Treasurer to the credit of the matter or proceeding. The Surrogate or Clerk will not receive such moneys. RutE XIII. Trials by Jury. When, on a contested probate, the objections contain a demand for a trial of controverted questions of fact with a jury and when, in any other proceed- ing, such trial is demanded, the party making such demand shall, within two days thereafter, serve on the opposing party or parties, with a two days' notice of settlement, a proposed order which, in addition to directing such trial with a jury, shall also state the questions of fact which he deems con- troverted and desires tried with a jury. And in default of the service of such order any opposing party may, within three days after such demand is filed, serve such proposed order stating the questions of fact, if any, which he deems controverted and desires tried with a jury with like notice Of Settle- ment. A jury fee of $3 shall be paid to the Clerk before the jury is drawn. Notice of trial of such controverted questions of fact must be served at least fourteen days before the first day of the term at which the trial is to be had, and a note of issue stating, in addition to the usual requirements, the date of entry of the order directing the controverted questions of fact to be tried with a jury, must be filed at least twelve days before the first day of 1287 ■RULES such term. Where a party has served a notice of trial and filed a note of issue, for a term at which the matter is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue, for a, succeeding term; and the matter will remain on the calendar until it is disposed of. Ktoe XIV. Applications to Compromise Claims. The petition for leave to compromise any claim in favor of an estate, or accompanying affidavits, must set forth the facts from which the Surrogate can determine that the proposed compromise is for the best interests of the estate. Upon such application, the petitioner's attorney, if any, sTiall state the total amount of compensation he has received or is to receive from all sources; the net amount to be -received by the petitioner as result of the settlement; whether or not he hag becoiiie concei-ned in the application or its subject matter at the instance of the party with whom the compromise is proposed, and whether or not he has received or is to receive compensation from such party, and the amount thereof, if any. The order of compromise ' will not pass upon or fix the fee of such- attorney, but that question, if it should be raised by any person interested in the estate, will be determined upon the final accounting. Rule XV. Filing Foreign Wills. All exemplified copies of foreign wills presented for record in this office, must be accompanied by a petition praying that the same be recorded. Em,E XVI. Transfer Tax Proteeclings. In transfer tax proceedings, all orders must be submitted in dujtlicate. Bated, AprU 15th, 1916. Wm. A. Sawteb, Surrogate. WYOMING COUNTY, WARSAW, N. Y, Hon. Jaues E. Noeton, Surrogate. No rules. No rules.. YATES COUNTY, PENN YAN, N. Y. Hon. Gilbert H. Bakbe, Surrogate. 1288 TABLE OF CODE OF CIVIL PROCEDURE SECTIONS AND LAWS. CODE OF CIVIL PROCEDURE. ISec. Page Sec. Page Sec. Page Sec. Page 166 cited on 181 526 cited on 869 994 cited on 910 1817 cited on 142 191 (C 956 743 (( 992 995 " 909 1819 400 380 ft 149 745 te 992 (( 910 ee 621 391 ee 149 746 te 992 996 te 910 1820 -400 396 ee 284 997 te 942 te 622 403 (C 149 747 " 993 ft 963 1821 151 405 " 284 749 t( 992 1009 tt 905 1823 152 432 sc 875 750 te 992 1171 (t 907 1824 130 434 it 883 751 te 993 1172 et 907 1825 152 436 ee 877 752 ee 992 1180 et 909 te 945 459 " 736 753 ee 992 1294 ee 962 ee 982 468 ee 720 755 t( 131 1295 et 933 1826 152 469 te ee 134 tt 934 1827 352 431 ee 873 757 te 131 et 959 3828 138 et 874 " 134 1296 ee 938 3829 139 ee 875 758 ee 131 1297 tt 938 1830 153 437 te 877 tt 134 tt 946 1830 130 (t 881 760 ee 134 1298 et 939 1831 130 443, 5 2698 tt 260 It 261 2699 u 991 tt 992 993 2700 " 754 2701 tt 97 321 tt 322 2702 tt 223 tt tt .322 324 tt .327 tt 330.' " 331 2703 tt 223 tt 321 It 327 tt 329 ft 330 It 331 tt 332 " 333 2704 It 223 « 333 2705 " 324 ([ 331 tl 332 2706 " 328 It 333 It 383 2707 " 333 It 334 tl 335 tl 851 2708 " 335 2709 It 336 2710 tt 336 2711 " 322 • It 336 2712 " 337 2713 tt 338 2714 " 338 TABLE OF STATUTES Sec. , 2715 2716 2717 2718 2719 2720 2721 2722 2723 2724 2725 2726 2727 2T28 Page cited on 320 338 334 148 351 765 766 354 357 360 349 350 351 360 361 362 765 766 768 773 774 776 360 361 362 363 378 768 774 776 349 352 765 768 769 349 397 766 768 774 387 395 785 786 787 788 789 790 349 363 368 766 775 349 364 366 369 766 769 771 775 369 Sec. 2728 2729 2730 2730, 2731 2732 2733 2734 2735 2736 2737 2738 2739 2740 2741 2742 2743 2744 Page cited on 370 775 776 852 349 353 354 355 356 360 361 369 765 769 771 772 774 776 355 356 358 359 771 356 359 360 382 384 772 375 389 390 387 384 267 385 605 608 609 388 389 869 882 385 605 742 385 610 991 994 385 610 990 994 384 392 386 967 968 970 970 Sec. 2745 2746 2747 2748 2749 2750 2751 2752 2753 2754 2756 2757 2758 2759 1294 Page cited on 970 971 427 428 968 971 972 220 426 427 428 586 ' 696 432 423 424 427 495 909 974 263 967 220 222 405 412 415 416 419 420 421 424 426 427 430 584 586 588 696 754 933 934 936 939 940 941 909 910 933 942 944 951 963 933 934 938 939 941 944 945 946 944 See. 2759 2760 2761 2762 2763 2765 2766 2767 2768 2768, 2768, 2768, 2770 2821 2919 3228 3240 3246 3256 3271 3276 3296 33n 3343 3343, 3667 Page cited on .945 '946 851 S45 946 956 850 945 946 947 948 949 950 951 954 956 986 987 987 180 182 183 193 194 206 216 266 302 349 565 574 582 629 694 705 765 873 878 880 884 235 436 364 366 848 488 349 982 970 221 979 982 967 977 978 899 1014 996 132 135 678 2 4 11 NEW YORK CONSOUDATED LAWS. BANKING liAW. 185, cited on pp. 158, 172. 188, cited on pp. 158, 172. 239, cited on p. 651 et seq. 239a, cited on p. 659. BRONX COUNTY LAW. 3, cited on pp. 104, 106, 143, 168, 179, 193, 194, 195, 196, 198, 205, 221, 235, 2S5, 398, 1001. 9a, cited on p. 878. 11, cited on pp. 104, 168, 193, 205, 221, 398. COUNTY LAW. 232, cited on pp. 996, 1004. 233, cited on p. 1004. DECEDENTS' ESTATES LAW. 10, cited on p. 439. 11, cited on p. 440. 12, cited on p. 441. 14, cited on 446. 15, cited on pp. 439, 440. 16, cited on pp. 438, 439. 17, cited on p. 441. 21, cited on pp. -446, 447, 449, 453, 455. 22, cited on pp. 453, 458. 23, cited on pp. 471, 472, 473. 24, cited on p. 483. 26, cited on pp. 444, 460, 465, 466. 27, cited on pp. 442y 509, 510. 28, cited on pp. 466, 510. 29, cited on pp. 444, 599. 30, cited on p. 520. 31, cited on p. 520. 32, cited on p. 520. 33, cited on p. 521. 34, cited on pp. 459, 460, 461, 462, 469. 35, cited on pp. 460,: 464, 469. 36, cited on pp. 460,. 464. 41, cited on p. 447. 44, cited on p. 473, 45, cited on pp. 185; 187, 188, 473, 474, 476, 477, 566, 566, 735. 80, cited on pp. 48, 50, 53. 80, subd. 1, cited on p. 49. 80, subd. 4, cited on p. 34. 1295 81 82 83 84 85 86 87 88 88 subd. 1, cited on pp. 49, 64. cited on pp. 49, 64. cited on pp. 50, 64. cited on pp. 50, 64. cited on pp. 51, 64. cited on pp. 51, 52. cited on pp. 51, 64. cited on pp. 52, 53, 64, 64. subd. 4, cited on pp. 53, 54. subd. 5, cited on p. 54. cited on pp. 65, 56. cited on p. 60. cited on pp. 55, 166. cited on p. 64. cited on p. 65. cited on p. 61. cited on p. 68. cited on pp. 62, 63, 82. cited on pp. 48, 62, 70. subd. 1, cited on p. 72. subd. 2, cited on p. 73. subd. 3, cited on p. 73. subd. 4, cited on p. 73. subd. 5, cited on pp. 74, 75. subd. 6, cited on p. 73. subd. 7, cited on p. 74. subd. 8, cited on p. 74.. subd. 9, cited on pp. 76, 168. subd. 10, cited on p. 79. subd. 11, cited on p. 80. subd. 12, cited on p. 80. subd. 13, cited ,pn p. 79. subd; 14, cited on p. 75. subd. 16, cited on pp. 75, 76. subd. 16, cited on pp. 76, 166. , cited on pp. 64, 82. 100, cited on pp. 67, 71. 101, cited on pp. 306, 311. 102, cited on p, 312. 103, cited on p, 30Q. 110, cited on p. 340. 111, cited on pp. 115, 118, 647, 552, 644, 651, 660, 718. 112, cited on p. 136. , 113, cited on pp. 116, 548. 114, cited on p. 784. 115, cited on' pp. .138, 938. 116, cited on pp. 131j 134. 117, cited on p. 132. 118, cited on p. 133. 119, cited on p. 136. 120, cited on pp. 132, 133, 135. TABLE OF STATUTES § 121, cited on p. 784. § 122, cited on p. 262. § 586, cited on p. 552. DOMESTIC REIjATIONS LAW. § 24, cited on pp. 17, 76. § 52, cited on p. 248. § 60, cited on p. 58. § 64, cited on pp. 58, 444. § 66, cited on p. 28. § 80, cited on p. 707. § 81, cited on pp. 443, 711, 713. § 82, cited on pp. 713, 714. fi 83, cited on pp. 707, 708, 710, 777. . § 84, cited on p. 750. § 85, cited on p. 718. § 110, cited on pp. 18, 19, 27. § 111, cited on pp. 23, 24. § 111, subds. 1, 2, 3, 4, and subd. 5, cited on p. 23. § 111, subd. 2, cited on p. 20. § 111, subd. 3, cited on p. 20. § 111, subd. 4, cited on pp. 20, 25. § 111, subd. 5, cited on pp. 21, 23. § 112, cited on pp. 19, 21. § 112, subd. 1, cited on pp. 20, 21. § 112, subd. 2, cited on pp. 20, 21, 22. § 113, citeid on pp. 19, 22, 25. § 114, cited on pp. 26, 27, 28, 56, 57, 76, 77, 78. § 115, cited on pp. 20, 21, 22, 23, 27, 78. § 116, cited on pp. 27, 28, 29. § 117, cited on pp. 29, 30. § 118, cited on pp. 30, 31. INSURANCE LAW. § 65, cited on p. 547. § 212, eitted on p. 2!48. JUDICIARY LAW. § 15, cited on p. 997. §§ 16 et seq. cited on p. 997. § 94, cited on p. 847. § 474, cited oh p. 990. § 475, cited on p. 990. § 508, cited on p. 907. § 523, cited on p. 907. § 524, cited on p; 907. § 527, cited on p. 907. § 528, cited on p. 906. § 774, cited on p. 927. § 775, cited on p. 927. MEMBERSHIP CORPORATIONS LAW. § 69, cited on p. 232. 1296 PENAL LAW. § 922, cited on p. 71. § 3302, cited on pp. 116, 633. PERSONAL PROPERTY LAW. § 11, cited on p. 444, PUBLIC ADMINISTRATORS LAW. §§ 1-35, cited on pp. 102, 168. § ], cited on pp. 143, 179, 351. § 2, cited on pp. 106, 143, 179, 193, 194, 195, 196, 198, 221, 255, 407. § 3, cited on pp. 106, 193, 195, 196, 198, 209, 406. § 4, cited on p. 407. § 7, cited on pp. 235, 251, 254, 870. § 8, cited on pp. 235, 251, 254, 255, 870. § 9, cited on pp. 235, 251, 254, 870. § 10, cited on p. 235. § 12, cited on p. 193. § 13, cited on pp. 193, 194, 195, 209. § 14, cited on pp. 209, 221. § 15, cited on pp. 179, 195, 196, 198. § 16, cited on p. 193. § 17, cited on p. 235. § 18, cited on p. lOB. § 19, cited on pp. 168, 193, 194, 870. §§ 20, 21, 22, cited on p. 209. §§ 23, 24, cited on p. 14^. § 25, cited on p. 235. § 26, cited on p. 398. § 27, cited on p. 351. § 28, cited on p. 351. § 30, cited on p. 351. § 156, cited on p. 203. PUBLIC OFFICERS LAW. § 10, cited on p. 199. REAL PROPERTY LAW. § 12, cited on p. 59. § 13, cited on p. 59. § 42, cited on p. 445. § 97, cited on p. 642. § 105, cited on p. 639. § 106, cited on p. 640. § 107, cited on p. 640. § 108, cited on p. 633. § 111, cited on pp. 674, 681, 682, 684. § 112, cited on p. 687. § 112, subd. 1, cited on pp. 674, 689. § 112, subd. 2, cited on p. 674. § 116, cited on pp. 651, 659. § 190, cited on pp. 34, 35. § 191, cited on p. 36. § 192, cited on p. 37. 193, cited on p. 37. TABLE OF STATUTES § 194, § 195, § 196, § 197, § 198, § 199, § 200, § 201, § 202, § 203, § 204, § 206, § 207, § 256, S 268, § 292, § 298, § 299, § 300, § 301, S 302, § 303, § 306, § 307, § 308, § 309, § 310, § 311, ted ted ted ted ted ted ted ted ted ited ted ted ted ted ted ted ted ited .t€d ted ted ted ted ted ted ted ted ited on p. 37. on p. 37. on pp. 38, 39, 72. on pp. 38, 40. on pp. 38, 40. on pp. 38, 40, 41. on p. 34. on pp. 35, 38, 40, 41, 42. on p. 39. on pp. 38, 45. on p. 33.. on p. 45. on p. 45. 642. 91. 855. 855. 856. 856. 856. 858. 858. 858. 858. 858. 858. 859. 859. on on on on on on on on p. on p on p on p on p on p on p. on p § 312, cited on p. 859. § 519, cited on p. 91. REIilGIOtJS CORPORATIONS LAW. § 7, cited on p. 227. RICHMOND COUNTY LAW. § 2, cited on p. 235. TAX LAW. § 8, cited on pp. 116, 548, 550, 646. § 22, cited on p. 443. § 220, cited on p. 119. § 221, cited on pp. 120, 124, 125. § 221a, cited on pp. 124, 126, 127. § 222, cited on p. 119. § 224, cited on pp. 119, 120. § 225, cited on p. 120. § 226, cited on pp. 120, 121. § 227, cited on p. 121. § 228, cited on pp. 186, 192, 196, 204, 566, 567, 568, 570. § 230, cited on p. 122. § 231, cited on pp. 121, 122, 732. § 232, cited on p. 122. § 243, cited on p. 121. SESSION LAWS. 1849, c. 200, cited on pp. 48, 440. 1849, c. 375, cited on p. 48. 1860, c. 360, cited on p. 516. 1873, c. 830, cited on p. 19. 18y0, c. 232, § 2, cited on p. 204. 1896, c. 272, § 22, cited on p. 248. 1896, c. 272, § 51, cited on p. 738. 1897, c. 593, cited on p. 59. 1898, c. 230, §§ 1-35, cited on p. 102. 1898, c. 230, § 1, cited on p. 179. 1898, i;. 230, § 2, cited on pp. 103, 204. 1898, c. 230, § 3, cited on p. 406. 1898, c. 230, § 4, subd. 5, cited on p. 103. 1898, c. 230, § 6, cited on p. 103. 1898, c. 230, § 7, cited on pp. 235, 251, 254, 870. 1898, c. 230, § 8, cited on pp. 235, 251, 254, 255, 870. 1898, c. 230, § 9, cited on pp. 235, 251, 254, 870. 1898, c. 230, § 10, cited on p. 235. 1898, c. 230, § 13, cited on pp. 194, 195, 209. 1898, c. 230, § 14, cited on pp. 209, 221. 1898, c. 230, § 15, cited on pp. 195, 196, 198, 203. N. Y. E. & S.— 82. 1297 1898, c. 230, § 16, cited on p. 193. 1898, c. 230, § 17, cited on p. 235. 1898, c. 230, § 18, cited on p. 106. 1898, c. 230, § 19, :cited on pp. 168, 193, 194, 870. 1898, c. 230, § 20, cited on p. 209. 1898, c. 230, § 21, cited on p. 209. 1898, c. 230, § 22, cited on p. 209. 1898, e. 230, § 23, cited on p. 143. 1898, «. 230, cited on pp. 24, 143. 1898, c. 230, § 25, cited on p. 235. 1898, c. 230, § 26, cited on p. 398. 1898, c. 230, § 27, cited on p. 351. 1898, c. 230, § 28, cited on p. 351. 1898, c. 230, § 30, cited on p. 351. 1898, c. 548, cited on p. 179. 1899, c. 486, cited on p. 179. 1899, c. 486, § 1, cited on pp. 104, 143, 179, 199, 203, 204, 351. 1899, c. 486, § 2, cited on pp. 104, 106, 143, 198, 407. 1900, c. 501, cited on pp. 104, 179, 205. 1900, c. 501, § 1, cited on p. 200. 1900, c. 5ui, § 3, cited on pp. 179, 193, 194, 196, 198, 199, 209. 1900, c. 501, § 4, cited on p. 407. 1901, 0. 339, cited on p. 15. 1907, c. 742, cited on p. 15. TABLE OF STATUTES 1909, c. 715, cited on p. 232. 3910, c. 412, § 2, cited on pp. 104, 143, 168, 196, 203, 209, 221, 255, ;398. .- 1912, c. 548, cited on pp. 104, 200, 203, 1001. 1912, c. 548, § 3, cited on pp. 104, 168, 179, 193, 194, 195, 196, 198, 209, 221, 255, 351, 398, 407. 1912, c. 548, § 11, cited on pp. 104, 168, 193, 209, 221, 398, 407. 1913, c. 823, cited on p. 878. 1913, 0. 825, cited on pp. 104, 143, 407, 1001. 1914, c. 369, cited on p. 651. 1914, c. 443, cited on p. 179. 1915, c. 352, cited on p. 19. 1916, c. 160, cited on p. 1014. 1916, c. 323, cited on pp. 116, 119. 1916, c. 439, cited on p. 883. 1916, c. 443, cited on p. 993. 1916, i;. 445, cited on p. 883. 1916, c. 446, cited on pp. 891, 892. 1916, c. 548, cited on pp. 124, 125, 126, 127. 1916, c. 588, cited on pp. 118, 210, 259, 552, 553, 578, 690, 750. 1916, c. 624, cited on pp. 261, 262, 263. CONSTITUTIONS AND TREATIES cited on p. N. Y. Const, art. 1, § 903. N. Y. Const. 1894, art. 6, § 15, cited , on p. 829. U. S. Const, art. 6, § 2, cited on p. 169. Treaty, U. 8. — Argentina, 1853, art. 9, cited on p. 169. Treaty U. S.— Italy, May 8j 1878, cited on p. 169. 1298 INDEX References are to pages. ABANDONMENT as ground for separate domicil by wife, 11. as dispensing with notice in adoption, see "Adoption." ABATEMENT AND REVIVOR in surrogates' courts, see "Proceedings in surrogates' courts." in supreme court, not revived ot right by representatives of party dying pending, 853. of actions by and against executors and administrators, see "Actions." ABODE see "Residence" and "Domicil." ABROGATION OF ADOPTION agreement for in general, 28. who must execute, 28. to be filed and recorded, 29. before statute, not accomplished by passage of statute, 19. collateral attack possible, 28. consent to of surrogate or county judge to be endorsed on agreement for, 29. essential to, 28. effect of, 29. from individual . who must appear before surrogate or judge, 28. manner of, 28. from institution manner of, 29. petition, 29. contents, 29. grounds, 29. to what court, 29. who may make, 29. verification, 29. citation when issued, 29. ordinary rules apply to, 29. 1299 INDEX References are to pages. ABROGATION OF ABOVTIOi^— continued. from institution — continued. order of when made, 30. effect, 30. special guardian for minor, 30. compelling production of minor, 30. jurisdiction of surrogate when adoption was in supreme court, 28. when adoption was in county court, 28. of county judge, 28. of supreme court, 28. ABSENCE for seven years results in presumption of death, 4. when results in presumption of death though of less than 7 years, 4 when results in presumption of time of death, 6. as ground for appointment of temporary administrator, 95. ACCOUNTING of representative of deceased representative, see "Representative of De- ceased Representatives." on disposition of real estate, see "Disposition of Realty." jurisdiction of surrogate's and supreme courts, see "Jurisdiction." the account clear and accurate, 374. include everything with which chargeable, 375. form in general, 375. affidavit to, 375. vouchers, 375. will or copy filed with, 375. not include taxes not lien on decedent's property, 376. show any necessary abatement of legacy, 376. judgment for costs in representative's favor, 376. allowance for serving citations, 376. items to be left for subsequent account, 376. condemnation awards, 376. income or profits of realty, 376. rent, 376. ■ when executor, also devisee, not include realty, 376. land in which representative invested estate funds, 376. source of dividends, 377. change from inventory valuations, 377. first basis for second, and so on, 377. separate accounts for separate trusts, 378. amended account surrogate may allow, 377. substitutes for original, 377. 1300 INDEX References are to pages. ACCOUNTING— coniinued. amended account — continued. notice of application to file, 377. when not allowed as to conduct of business, 377. by parties interested inter sese definition, 34^. when may be had, 350. agreement between sole heir and claimant of promise by decedent to leave property, 350. by kin when no creditors, 350. by one of two kin, 350. by parties legatees as well as executors, 350. by administrator with kin wlien no creditors, 351. recording instrument of settlement; effect, 351. when barred by representative's removal if has assets, 370. by statute of limitations if assets unaccounted for, 371. after transfer of securities by executor to legatee, 371. when all estate distributed except realty not advantageously then distributed, 371. , when executor also life tenant, 371-2. of realty sold and rents and profits received, 371. when rieceipts given on prior settlement, 371. when settlement had out of court, 371. not except by discharge or repudiation of duties, 372. statute of limitations when no repudiation of duties, 372. statute of limitations to be pleaded, 372. when statutes of limitations apply in various contingencies, 373. statutes of limitations as applied to compulsory as distinguished from voluntary accountings, 373. death of accountant, 373. compulsory on surrogate's own motion, 374. creditor knowledge of whose claim is denied, 374. by acceptance by infant on majority of money, 374. compulsory — final settlement definition, 349. administrator's when compelled of administrator in chief, 363. temporary administrator, 363. of limited administrator, 363. petition who may make, 364. when administrator is c. t. a., 364. when administrator's letters revoked, 364. allegation of interest, when suffices, 364. i^in who has executed release may make, 365. grandfather cannot make when minor brother survives, 365. 1301 INDEX References are to pages. ACCOUNTING— contMiMed. compulsory — final settlement — continued. administrator's — continued. petition — continued. unpaid creditor failing to present claim, 365. when dependent on survivorship, 365. assignee of legacy may, 366. executor's petition who may make, 366. when executor's letters revoked, 366. when allegation of interest suffices, 366. when all claims paid and petitioner's interest disputed, 366. after executor's discharge, on discovery other assets, 366. one entitled to legacy only on executor's death, 366. against executor of indebted estate, 367. to compel collection of claim due estate, 367. by executor of decedent who had judgment against representa- tive of another estate, 367. showing of childship of petitioner sufficient by legatee or devisee of legatee or devisee, 367. lienor on legacy, 367. receiver in supp. pro. of legatee, 367. by creditor of decedent's business, 368. attorney having agreement for contingent fee, 368. contingent legatee, 368. testamentary trustee's when compellable, 368. petition who may make, 368. existence of fiduciary relation suffices, 369. in general petition, 369. citation, 369. proceedings on return of citation by accountant render and settle his account, 370. petition for account's judicial settlement, 370. show cause against settlement, 370. fail to do anything, 370. petition by accountant for voluntary settlement converts compul- sory into voluntary proceeding, 370. order to account if accountant's disobeys citation, 370. accountant bound by order without service, 370. supplemental citation if. anything distributed, 370. creditors of fund of deceased assignor to be cited on accounting by deceased assignee's representatives, 370. compulsory — intermediate in general vouchers must be filed with account, 362. contents of account, 362. 1302 INDEX References are to pages, ACCOUNTING— coniMMied. compulsory — intermediate — com ti/nued. in general — continued. good cause exists for not accounting when petitioner's claims being reviewed on appeal, 362. second order to account if first order disr^arded, 362. on surrogate's own motion, 360. on petition, 360. must be settled if can be, 360. order to account contents, 361. may require sworn examination of accountant, 361. order for in surrogate's discretion, 361. discretion of surrogate as to ordering not interfered with on appeal, 361. refused when petitioning creditor's claims being reviewed on ap- peal, 361. accountant may file account, 361. accoimtant may petition for judicial settlement of account, 361. accountant may show cause why should not file account, 361. accountant may neither appear, file account or show why should not file it, 361. converted into settlement and supplemental citation issued if possible on return of citation, 361. proceedings like on voluntary judicial settlement when converted into judicial settlement, 362. on conversion into judicial settlement no citation needed to peti- tioner in compulsory intermediate accounting, 362. contest and objections, see "Contest." decree or order as to what binding all matters embraced in account, 396. newly discovered or realized assets, 396. not preclude later decision of disposition of trust property, 396. matters not questioned in account as executors later questioned in account as trustees, 396. temporary administrator's account, 396. double commissions, 396. sufficiency of assets to make directed payment, 395. sufficiency of assets, against representative of deceased repre- sentative, 395. validity of sale of realty, 395. payment to guardian and infant when shows on face no funds therefor, 395. property turned over by accountants as executors to themselves as trustees, 395. only as to particulars enumerated, 394. not as to assets or debts not stated, 394. 1303 INDEX References are to pages. ACXiOVNTmG— continued. decree or order — contmued. as to what binding — continued. allowance for payments to creditors, legatees, kin, ben3ficiariea, wards, 394. all acts to time of entry, 394. all disbursements directed and accounts approved, 395. questions not decided but which could have been, 395. not as to rule of law governing later administration, 395. subsequent income accrued, 397. on matters included only in affidavit after citation, 397. intermediate compulsory account of testamentary trustee, 397. who bound those cited though others interested not cited, 393. life tenants not as to subsequent accoimts of trustee, 393. successive decrees, 393. creditor whose claim known but not presented, 393. successor-surrogate to surrogate who made decree, 393. all parties of whom jurisdiction had and all deriving title from them, 392. on compulsory intermediate accounting of guardian or trustee, 392. unknown kin not cited, 392. rival claimants to fund, 392. infant not personally a party, 392. • contingent remaindermen of realty sold, 395. costs, allowances and commissions, 391. discharging or reducing bond for reduction of bond, 391. discharge of bond by one required to hold, manage or invest realty or personalty for another, 391. in general surrogate to make on citation's return, 383. only when settlement sought, 384. object to conclude parties on matters in account, 384. notice on amendment of, 384. notice of settlement, 384. to provide for payment of administration and funeral expenses and debts, 384. distribution, delivery, payment, set-off distribution directed if proper, 384. set-off of exempt property or value to widow, child, etc., 348. when delivery in kind permissible, 385. payment of share or legacy of infant to guardian, 385. payment of share or legacy of person unknown or whose where- abouts are unknown, 385. payment by legatees to other legatees of overdrafts on legacies, 385. discharging executors and directing transfer to themselves as trustees, 387. directing distribution before estate reduced to money, 386. 1304 INDEX References are to pages. AOCOUNTING— conttnwed. decree or order — continued. distribution, delivery, payment, set-oflf — continued. directing delivery by fractional sliares of bulk, 387. directing payment of deceased cestui's share, 387. directing deposit of infant's share with chamberlain in default of appointment of guardian, 387. directing distribution should state amounts, 387. to allow credit for distribution according to prior decree or order of court, 387. revoking letters or discharging trustee only on full accounting and paying and delivery over, 391. crediting accountant not with profit or increase, 396. with purchase price of land decedent had contracted to buy, 396. with pro rata only of note of insolvent decedent accountant paid in full, 396. allowing retention of investments, value of which surcharged witli, 397. surcharging accountant not for decrease or loss without fault, 389. not when inference equally consistent with good as bad faith, 389. with judgment by decedent against accountant, 389. with legacy paid assignee without assignment, 390. with excess of claims over pro rata when assets insufficient, 390. not with amoimt of deficiency judgment not entered by account on foreclosure, 390. adjusting advancements by decedent to child in general, 389. no one accoiinting settles question on subsequent accountings, 389. judicial settlement of voluntary account to be such as justice requires after hearing, 360. on limited administrator's or executor's account to direct pay- ment and discharge, 360. retention or deposit of sum to satisfy debt or claim in general, 387. when assignment of share disputed, 388. when accountant's non-residence prevents adjustment, 388. pending determination by other court, 388. pending appeal to court of appeals, 388-9. by lessee against deceased lessor on covenant, 389. final definition, 363. when voluntary and when compulsory, 363. jurisdiction of surrogate to settle, 344. supreme court will not interfere with, 344. proof of debt owing representative by decedent, 345. 1305 iNuex Eeferences are to pages. ACCOUNTING — continued. jurisdiction of surrogate — continued. issue of title to property or debt between accounting party and any other party, 345. separate trial of issue of interest of petitioner, 345. advance by administrator to co-administrator for support intestate's child, 345. compel one both executor and trustee to account as trustee after removal but before revocation, 345. personal claim of administrator to amounts collected, 345. judgments against decedent discharged by bankruptcy, 345. adjudicate on account of proceeds of foreclosure by administrator, 345-6. legality of marriage of decedent, 346. if representative approved claim of one petitioning as creditor to compel accounting, 346. if representative abused powers as corporate director by voting extra compensation, 346. claim of executor's transferee to assets, 346. ownership of personalty alleged to be accountant's, 346. of accounting by surviving partner named executor, 346-7. if profits of business continued under will and invested in realty are assets, 347. claim of agreement by representative with decedent to hold assets in constructive trust for another, 347. accountant's claim for expenses not included in account, 347. construe will, 347. validity of testamentary provisions, 347. rights of cestvis que trustent, 347. issue of assignment or not of legacy, 347. title to trust fund under agreement, 347-8. antenuptial agreement, 348. effect of agreement as to trust fund, 348. settlement by representative of threatened litigation, 348. who are proper distributees, 386. rival claims to legacy, 386. adverse claimants' titles, 386. title as between assignee and creditor of distributee, 386. pronounce void sale by executor, 386. direct partial distribution pending settlement, 387. delivery of property to successor of deceased, absconded, removed or insane administrator, executor, guardian or trustee, 387. question of death of one other than decedent, 348. interest in land, 348. whether equitable conversion, 348. over proceeds of sale of realty under power in will, 348. return to corporation by representative of salary received when estate holds stock, 348. over testamentary trustee's account, 348. over testainentary trustee's account appointed in supreme court, 348 1.306 INDEX Eeferences are to pages. AOCOXmrmG-^ontmued. voluntary definition, 349. roluntarj — intermediate definition without settlement when may be filed, 351. by whom, may be filed, 351. by public administrator, 351. contents and scope, 351. ■with settlement when may be filed, 351. by whom may be filed, 352. petition, 352. citation when issues, 352. to whom, 352. form, 352. proceedings same after citation as if for final judicial settlement, 352, Toluntary — -final citation in general when issued, 355. when revocation of letters or discharge sought, 355. administrator's account form and contents, 356. in general, 355. who to have notice, 355. when accountant's letters have been revoked, 356. creditors for whom vouchers filed, 356. assignee of interest of decedent interested in estate ac- counted for, 356. lien of decedent interested in estate accounted for, 356. creditors who have assigned claims, 357. on death of person interested, 357. mortgagee of heir, 357. executor's account who to have notice, 358. in general, 358. receiver of judgment creditor entitled to legacy; specific legatee, 358. when wife cited as either legatee or doweress, 359. when no revocation of letter? had, 358. when revocation of letters had and successor appointed, 358. when revocation of letters had but no successor appointed, 358. judgment creditor of party interested who has assigned interest, 358. 1307 INDEX References are to pages. AOCOVNTHmG— continued. voluntary — final — continiied. citation — continued. of limited representative's account when issued, 357. who to have notice, 357. when recovery part of estate, 357. form and contents, 357. of testamentary trustee's account who to have notice in general, 359. when accountant not removed, 359. when accountant has been removed and successor appoint- ed, 359. when accountant removed but no successor appointed, 359. decree, 391. hearing allegations and proofs of parties to be heard, 360. examination under oath of accountant, 360. production of vouchers on demand, 360. proof of payments in absence of vouchers, 360. of limited administrator's or executor's account, 360. petition for of representative's account who may make, 353. when may be made, 353. form and contents, 353. when revocation of letters also sought, 353. of limited representative's account, 353. when may. be made, 353. form and contents, 354. of testamentary trustee's account when presented, 354. form and contents, 355. when discharge also sought, 355. ACTIONS by and against administrators and executors against in general cannot waive any legal defense, 151. not liable for debt or damages because of pleading falsely, 130. administrators answerable and accountable as executors, 132. must defend on foreclosure, 136. survival or abatement to compel accounting, 131. by husband for loss of wife's services, etc., 136. on death of one of more than one defendants, 134. on death of sole defendant, 134. 1308 INDEX Keferences are to pages. ACnONS— continued. by and against administrators and executors — continued. against — continued. survival or abatement — continued. not abate if cause of action survive, 134. for fraudulent representation, 135. for fraud in sale of laud, 135. on contract liability, 134. for libel, slander, criminal conversation, seduction, malicious prosecution, assault, battery, false imprisonment, do not survive, 135. for wrongs to property, rights on interest, generally sur- vive, 135. . marriage contracts, 134-5. of account and on contract, 134. on death of sole defendant, not against foreign representa- tive, 134. foreign representatives, do not survive, 134. appeal, administrator d. b. n., may, 138. when barred by claimant whose claim rejected, 149. specific cases, 150. co-administrators and co-executors inter sese for securities or money, 143. in equity though not at law, 142-3. in general, 142. all may be brought into court, 142. all considered one person, 142. for fraudulent scheme to control corporation, 143. counterclaim not of joint obligation against claimant, 138. of note against claim for foreclosure deficiency, 138. of demand due decedent, 137. execution only by order, 151. in general, 151. notice of, 152. when assets insuflBcient, 152. on judgment for legacy or distributive share, undertaking, 152. not against reaKy, 152. foreign in general, 139. attachment, 141-2. public administrators, 143. judgment does not affect decedent's real estate, 152. both individually and as representative, 152. when powers cease pending action, 153. when not enforceable against decedent's property, 129. 1309 INDEX References are to pages. ACTIONS — continued. by and against administrtators and executors — contmtied. against — continued. judgment — continued. not evidence of assets, 130. after representative's powers cease pending action of no force against estate or successor representative, 130. pleading and practice personally charged when powers as representative cease while action pending, 130. when individually and when as representative, 127. as representative except to charge personally, 129. on contract by decedent, as representative, 129. on contract after decedent's death, as individual, 129. "as executors," against in representative capacity, 129. how representative capacity alleged, 129. when both as individual and representative, 130. when sets out action both personally and as representa- tive, 130. when facts render uncertain in which capacity action exists, 130. when more than one action set forth in different capacity, 130 suflBciency, want or existence of assets cannot be pleaded, 130 supplemental summons or cross-action oh bringing in, 134, miscellaneous cases of joint debtors, 130-1. on account stated by representative, 129. for conversion, 129-130. for improper administration or payment or distribution, 147-8. for legacy, distributive share, . 148. by legatee, devisee, heir, distributee, 148. on note of representative substituted for decedent's note, 129. not parties in action for partnership accounting, 130. for partnership debt, 130. ' by receiver in supplementary receiver of deceased debtor, 130 for rent if landlord is administrator, 136. for bond-liability, if obligor is obligee's administrator, 136. for trespass, 136. ' ' temporary administrator power to maintain or defend, 96. only by surrogate's leave, 142. hy in general, 127. ■watch as assets in state to authorize bringing, 105. abatement and survivor application to continue, 138. successor may continue, 138. administrator d. b. n. may enforce and defend, 138. not by death or removal, 138. 1310 INDEX Eeferences are to pages. ACTIONS— continited. by and against administrators and executors — continued. by — contim/ued. abatement and survivor — oontinued. not if cause of action continues, 131. if several plaintiffs, 131. survives to on death of sole plaintiff, 131. on fire insurance policy, 133. of accoimt and on contract, 133. to recover debts and personalty, 132. to recover damages for injuries resulting in death, 133. for libel, slander, criminal conversation, seduction malicious prosecution, assault, battery, false imprisonment, 132. for wrongs to property rights or interests of one who might sue, 132. successor to sole representative may continue and enforce order, or judgment, 133. survivor of several representatives may continue, 133. appeal, administrator d. b. n. must defend, 138. assignee, 123'. assignee of foreign representative of deceased plaintiff may con- tinue, 133. counterclaim only if against decedent, 136-7. judgment on, against representative, 136. execution on against representative, 137. not for conversion by representative in action for debt due decedent, 137. not of breach of deceased lessor's promise to repair in action for rent, 137. not of debt of decedent in action on contract made by repre- sentative, 137-8. of rejected claim, 138. in general, 136. for death proceeds, see "Assets." interest from death, 146-7. father's death before verdict leaving mother not affect dam- ages, •146. amount of damages, 146. expenses payable from recovery, 146. how recovery distributed, 146-7. settlement or damages solely for husband, wife and kin, 146 practice when plaintiff dies, 146. when executor refuses to bring, 145. not if decedent at death was barred from bringing, 146. statute of limitations, 145. when husband, widow or kin aliens, 145. occurring in foreign state, 144. 1311 INDEX References are to pages. ACTIONS — contvnited. , by and against administrators and executors — contintied. by — continued. for death — continued. by foreign representative, 144. belongs to beneficiaries but brought only by representative, 144. is pecuniary right, 144. for wrong committed outside state, 144. only by statute, 143. against whom, 143. only when husband, wife or kin survives, 143. in general, 143. next of kin entitled to recovery, 144. execution, 138. foreign through assignee here, 139. not given letters here, may not sue foreign corporation, 139. given letters here ni3,y sue foreign corporation, 139. when get ancillary letters may sue for bank deposit made before, 139. filing authenticated copy of letters, 139. pleading and practice when individually and when as representative, 127. not of part owner .iji vessel, 128. amendment of complaint from executor to administrator c. t. a., 128. effect of nonjoinder of co-representatives, 128. effect of allegati(i>ns in complaint, 128. effect of omitting "as" (administrator or executor) in plead- ing, 128. on contract by representative, to be brought as individual, 128. on contract by decedent,. to be brought as representative, 128. for cause of action belonging to, in representative capacity, brought as such, 128. miscellaneous actions for trespass, 133. for I receiving, taking or, interfering with decedent's property, 136. on note to representative as sucli, 128. for improper or prenuiture payment ox distribution, 147. temporary administrators ^ot to compel transfer and determine ownership of corporate stock, 142. to take possession, secure, preserve or determine title to per- sonalty and collect choses in action, 142. when barred in general, 149. how time computed, 149. statutes of limitations, 149. 1312 INDEX References Are to pages. ACTIONS— continued. by and against administrators and executors — oontvrmei, when barred — conti/nued. costs in see "Costs." by and against devisees, legatees, heirs and kin against: on note of representative substituted for note of decedent, 129. against testamentary trustees when barred by statute of limitations, 673. tp enforce trust, only in equity and by beneficiary, 672. When accoimting had and sum ascertained may be at law, 672. all cestuis must be parties in equity, 673. on employment of broker to sell trust securities, 673. for injury sustained on trust property, 673. for moneys received as such, 673. by testamentary trustees of foreign testator may sue here for trust funds, 671. when abates, 672. to recover trust fund, 672. when refuse to bring, 672. ADEMPTION of legacy, see "Legacies." ADJOURNMENT see "Prooe^ings in Surrogates' Courts" and "Actions." of accounting on sale, etc., of real estate, see "Disposition of Realty." ADMINISTRATION see "Appointment and ;Letters."- based on common-law marriage, 13. by husband on wife's estate, failure, effect, 67-8. no inherent right of, 163. grant of proof of death, 3. allegations sufficient to prove death, 3. allegation on inforroatlpn and belief not sufficient, 3. ADMINISTRATION EXPENSES see "iExpenses." authority of temporary administrator to pay, 96. ADMINISTRATORS account of, see "Accounting." bond, see "Bond.'f actions by and against, see "Actions.'' jurisdiction of surrogates' and supreme courts, see "Jurisdietion." ancillary character not determined by letters, 99. definition, 97. TJ V TT! *: H .85 1Q1Q INDEX Eeferenees are to pages. ADMINISTRATORS— coratmwed. ancillary — contmued. power, authority, duty and liability may pledge assets, 98. depend on observing statutory prerequisites to appointment, 98. must transmit personalty to domiciliary state, 98. subject to court directions, 98. in general, 98. where contained, 98. directed to pay local creditors, 98. same as administrator in chief save as to realty, etc., 97-8. on note for advance on income, 108. ancillary c. t. a. definition cannot administer frust, 99. appointment see "Appointment." refused when executor if only because residue undisposed of by will, 90. refused when no debts, no suits, no ^personalty unadministered, 90. when refused because unnecessary, 90. , acts before letters validated by issue of letters, 105. co-administrators definition, 100. liability for consequences of acts of other, 100. to sureties when, they , Agreed hephould npt be, 101. ,, for notes clsiimed individually, ipi. county treasurer as in general, 102. may transfer mortgage taken as investmelit, 102. c. t. it. definition, 91. ''■ ,) .:. appointment of and letters ■'■ see "Appointment." when necessary, 91. duties, powers and liabilities laust 'observe aiid perform will, 91. same as executor, 91. to dispose of realty under power in will when will bo permits, 92. to sell realty under power in will when soine executors do not qualify, 92. when power discretionary, 93. when power imperative, 93. can when executor could unless expressly contra to will, 92. for collecting judgment by testator,, 92. , suit for debt , owing executors, 92. renewal of lease, 92. must pay legacies executor decreed to pay, 92. 1314 INDEX References are to pages, ADMINISTRATORS— coM.tm«ed. c. t. a. — oontinued. duties, powers and liabilities — continued, powers and duties given by will cannot exercise in imply particular confidence in executor, 91. cannot exercise, if to determine conditions, etc., of trust, 91. cannot exercise . those of trustee, 92. d. b. n. definition, 1, 94. rights, power, duties and liability same as administrator in chief, 94. may sue for goods \uiadministered, 94. appointment of and letters, see "Appointment.'' d. b. n. c. t. a. definition, 1, 94. for different states payment of debts by, 101. should remit to domiciliary representative all beyond payments to local creditors, 101. foreign definition, 99. law governing charge of assets with debt, 99. in chief ^ appointment of, see "Appointment." pending appeal to court of appeals, 106. definition, 90. not when will exists, 90. in chief and c. t. a. distinguished, 90. liability for debts incurred after intestate's : death, 108. under contracts for services to estate, 107. for contracts, 107. , ; for stenographer's fees oh reference, 108. on individual note for tombstone, 108. contracts, before appointment, 108. under contract by infant administrator, 108. for rent on deceased's unexpired lease, 109. under contracts of guaranty, 109. for interest, see "Interest" for money for refraining to do acts as to estate, 115. for fraud in estate, 115. for money and property in his hands or control when appointed, 115. for rent under deceased's lease, 109.' not chargeable on special promise to answer damages or pay debts of intestate, 116. for taxes, see "Taxes" for mortgages, see "Mortgages" for repairs, see i "Repairs" ' ' limited , . , definition, 94. 1315 INDEX Beferences are to pages. ADMINISTRATORS— continued, limited — continued. powers and duties cannot compromise action except by court order, 94, cannot enforce judgment, 95. oath of, see "Oath" partnership: rights, duties, powers and. liabilities as to intestate's, see "Partnership" powers cannot purchase estate investments from himself, 115. must invest, deposit and transact in representative name or be guilty, of misdemeanor, 118. may buy in intestate's land mortgaged to him, 115. under letters granted pending appeal from decree granting letters or decision of appellate division afSrming decree, 106. before letters, 105. under letters granted pending appeal from decree granting letters or decision of appellate division affitming decree, cannot distrib- ute, or pay legacy or sell real property, 106. to exercise option of purchase in lease of decedent, 109. may disaffirm intestate's chattel mortgage, 267. may insure realty against fire, 267. may not mortgage furniture, 267. may foreclose mortgage, 267. may give sureties title to intestate's notes, 268. like executor's till distribution, 90. over real estate, see "Disposition of Realty" public powers before letters, 105-6. definition, 102. in New York county, 102, note, in Kings county, 103, note. in Richmond county, 104, note. in Bronx coimty, 104, note. in counties where provision for not specifically made, 104, note, liability for taking personalty of owner, 103. cannot get jurisdiction to sue by bringing watch as assets into state, 105. revocation of letters, see "Revocation" sale of assets by, see "Sale of Assets" 43ale of realty by, see "Sale of , Realty" successive first has authority till letters revoked, 100. first has authority to recover from second, 100. second's acts are valid, 100. second, action by may be continued by first, 100. act to be done in specified time to be done within time from issue of first letters, 100. 1316 INDEX Beferences are to paee(< ADMINISTRATORS— co»ttfM*ed. successive — continued. act to be done within stipulated time from issuance of first lett^s unless first letters revoked for want of power to issue, 100. ■uccessor may complete execution of trust, 100. may continue action or proceeding, 100. may enforce order, judgment or decree, 100. surviving may complete administration, 100. may continue action or proceeding, 100. temporary appointmeHt for what purpose, 95. definition, 95. rights and powers and duties over real property to sell or encumber, M. to pay income tax, 97. by court order to sell personalty to pay funeral, administration and contest expenses, legacy, distributive share or debt, 96. to take possession of realty and collect rents, 96. to do any other act as to realty save sell, 96. to maintain or defend action as to realty, 96. to make provision for wife or child for maintenance, cloth- ing or education, 96. to pay rent for premises he uses, 96. by virtue of letters to possess, secure and preserve personalty, and sue for sudi a purpose, 95-6. to collect choses in action, 95-6. to publish notice to creditors, 95-6. to exhibit demands, 95-6. presumption of,.4eath necessary for appointment, 8. term of ofBce, see "Revocation" as affecting transfer tax, see "Transfer Tax" ADMISSION of claims, see "Debts of and Claims against Decedent." ADOPTION manner of, 19. exists solely by statute, 19. what law determines, 18. who may adopt, 19. who may be adopted, 19. adoption before statute not abrogated by passage of statute, 19. 1317 INDEX Eefeiences are to pages. ADOPTION— continued. abrogation of • .agreement for who must execute, 28. to be filed and recorded, 29. collateral attack possible, 28. consent of surrogate or county judge essential, 28. consent of surrogate or judge endorsed on agreement, 29. effect, 29. from individual who must appear before surrogate or county judge, 28. from institution ' ' manner of, 29. compelling production of minor, 30. petition, 29. citation when issued, 29. ordinary rules apply to, 29. order when made, 30. effect, 30. jurisdiction of surrogate when adoption was in county court, 28. of surrogate and coimty judge, 28. of Supreme Court, 28. of surrogate, when adoption was in Supreme Court, 28. special guardian for minor, 30. adult wife may adopt, 19. adult husband may adopt, 19. adult unmarried person may adopt, 19. adult husband and wife may adopt, 19. agreement of who to sign, 22. contents, 22. to be filed with county clerk, 23. need not be executed by consenting, nonresident parent or institution, 22. acknowledgment of, 22. appearance and examination of parties in adoption from institution of infant, under 18, 20. of infant 18 or over, 21. when major adopted, 21. of institution consenting unnecessary, 20. in adoption from individual of infant 18 or over, 21. of infant under 18, 20. of parent unnecessary if his abandoned child, is deprived of civil rights or child's custody, divorce, insane, drunkard, 26i of non-resident parent unnecessiiry if consent given, 20. 1318 INDEX Eeferences are to pages. ADOPTION— ooretMiued. before statute authorizing is good, 19. consent to adoption by individual of minor 38 or over, 23. of parent who has abandoned child, 23. of parent judicially deprived of child's custody, 23. to adoption by individual of minor under 18, 23. of wife, to adoption by husband, 23. acknowledgment of by non-resident parent, 24. of divorced mother, 24. ' of institution to adoption of minor, 23. to adoption of major, 23. of parent or institution, obviates execution of agreement, 22. definition, 18. as affecting distribution, see "Distribution." effect on adopted person, 26. between foster parents and child, 26. on blood parents, 27. on adopting person or foster parent, 27. on adopted child as to will, devise or trust made before June 25, 1873, 26. between adopted child and foster parent by latter's marriage and consent to child's adoption by consort, 26. on passing of property dependent on instrument and foster parent dying without heirs, 26. child not deemed foster parent's as to property the passing of which dependent on death without heirs, 27. exception to rule that adoptive and adopted persons became parent and child, 27. makes adoptive and adopted persons parent and child, 27. foster parents to be of religion of blood parents, 19. inheritance by and from and descent to and from adopted person, see "Descent." inheritance from blood parents unaffected, 27. by adopted child from heirs of foster parent, 27. illegitimacy of adoptee not to appear on record, 19. instrument of who to sign, 22. . contents, 22. need not be executed by non-resident, consenting parent or institution, 22. to be filed with county clerk, 22. acknowledgment of, 22. jurisdiction concurrent of surrogate and county judge, 19. county judge cannot review proceedings by surrogate, 19. 1319 INDEX Beferences are to pages. ADOPTION — continued. jurisdiction — continiied. proceedings to be in county in which foster parents reside, 19. proceedings to be in county in which minor resides if foster parent! non-residents, 19. major may be adopted, 18. new name, child to be known, by if order directs change, 26. new name of adoptee to be in agreement of, 22. order of when a court and when a judge's order, 25. contents, 25. to be filed with county clerk, 25. when made, 25. not to mention illegitimacy, 25. oral agreement, not sufficient,. ,25. presumption of destruction of papers of, 25. proof of, 25. succession from blood parent unaffected,, 28. taking name of another insufficient, 26. treatment as child insufficient, 26. under, foreign law, good in New York, 20. vacating agreement of in supreme court only, 28. voluntary, definition, 18. ADtJLTERY conviction of wife for, to bar dower, 39. ADVANCEMENTS decree adjusting on accounting, see "Accounting." , see "Descent." not reckoned with personalty if real property, 81. value of, how det^rinined, 61„ 82. gift not, when donor's express intention contra, 82. attendant circumstances determine whether money gifts are, 82. set off against children and descendants only, and not widow, 82. set off against distributive share, 82. as affecting descent, see "Descent" not set off against inheritance if intestacy partial, 62. set off, when intestacy exists,' 62. interest on, 63. grandchildren may insist on in determining descent or distribution, 63. estate or interest given under beneficial power is, 63. of what may consist, 62, 82. reckoned in determining inheritance, 61. personal property adjusted from distribution unless insufficient, 62. of real property adjusted from inheritance of real property unless insuffi- cient, 62. definition, 61. maintaining, educating, giving settlement or portion, are not, 63, 82. 1320 INDEX Keferenees are to pages. ADVICE OF COURT as to sale of assets, see "Sale of Assets." as to sale of Realty, see "Sale of Realty." AFTER-BORN descendant or relative may inherit, 85. descendants and next of kin, distribution to, see "Distri'butioil.'' mention of in will, see "Wills." AGREEMENT of abrogation of adoption, 28. who must execute, 28. to be filed and recorded, 29. of adoption acknowledgment of, 22. to be filed with couilty derk, 23, who to sign, 22. contents, 22. vacating in Su,preme Court only, 28. oral not sufficient, 25. by administrators, 103. rcleaijing dower during husband's life, 45. ^ during husband's life with husband, of no avail, 46. ALIEN inheritance by and from, and descent to and from, see "Deecent," as administrators, see "Appointment." see "Citizenship." ALIMONY not asset of wife's estate, 241. accrued prior to wife's death, claim for sorviTea, 241. AMENDED ACCOUNT see "Accounting." ANCESTOR definition, 48. definition of, as excluding half bloods, not of blood of ancestor, from in- heritance, 60. -1 ANCILLARY ADMINISTRATOR, EXECUTOR AND GUARDIAN see "Administrator," "Executor" and "Guardian.'' a{>pointment of and letters to, see "Appointment." c. t. a., see "Administrator." appointment and letters to, see "Appbintment." ANNUITIES as assets, see "Assets." 1321 Beferences are to pages. ANSWER definition form in general, 866. verification, 866. allegations and denials to be by party verifying, 866. must deny statements in petitio,ii, 866., ,, . , denials deemed of knowledge unless on info^matio^ and belief, 866. effect of allegation of insufficient knowledge, etc.,. to form belief, 868. to be filed before return day of citation, 866. to contain demand for jury trial, 866. must be verified, 866. wbo must verify under various contingencies, 866.' form of affidavit of verification, 867. , ;,,,,,, ; to state grounds of belief if not verified by party, 867. copy to be served if surrogate so orders, 867. , ^,. failure to serve copy when ordered puts^ party in default, 867. see "Actions," "Proceedings in Surrogates' Courts," and "Probate." APPEAL administrator d. b. n. may from judgment .vs. predecessor, 122. administrator d. b. n. must defend, 138. appointment of administrator in chief pending appeal to court of appeab, 102. , , ,,,, / expenses of, when, allowed admin;istrator, 210. ,„ , . powers of administrators appointed pending from decree granting letters or afiirpiancje thgreo^f , 102. cannot distribute, or pay, legacy, or, sell, real property, 102. in transfer tax proceeding, see "Transfer Tax." to appellate division from surrogate's court in general who are "appellants,'' 933. who are "respondents,',' .933; , , upon law or facts or both, 933. each decision to which exception taken reviewable, 933. from order of reference, merits of application hot considered, 933. notice of entry of order or decree appealed from need not be ad- dressed to respondents, 933. objection to regularity of service of process cannot be raised on, '■'■933. ■ •■■■'' '•■.- ■■ y. ' r., , title of proceeding after, 933. from what may be taken, 934. •' ;;'>;■/'■' ■ decree, 934. order affecting substantial right, 934. not when rendered on default in appearance, 934. not when granted pro forma, 934. not when made eas pa/rte after death of party, 934. not from referee's decision proper, 934. not from decision on question of procedure, 934. , 1322 INDEX Keferences are to pages. APPEAL — continued. to appellate division from surrogate's court — continued. what orders do not affect substantial right reviving proceeding to vacate trustee's discharge, 935. discretionary, 935. forbidding intervention, 935. refusing resettlement, 935. for payment of referee's fees, 935. denying resettlement of improper interrogatory, 935. refusing to dismiss on joinder of issue, 935. overruling demurrer, 935. denying motion to open, 935. disallowing objections to account, 935. what orders do affect substantial rights disallowing pertinent interrogatory, 935. allowing open commission, 935. adjudging assets in representative's hands, 936. fixing appraiser's fees, 936. dismissing motion to set aside citation when not served, 936. of sufficiency of personalty so that realty not saleable, 936. for examination to discover assets, 936. for representative to account for proceeds of foreclosure, 936. to compel account, 936. denying motion for order disallowing interrogatories, 936. what parties may take those aggrieved, 936. not when in default, 936. • who are aggrieved executor from decree denying probate to will, 936. executor from decree denying probate to codicil, 937. ' trustee from decree on accounting though life tenant and remainderman do not appeal, 937. executor whose letters revoked pending appeal, 937. testamentary trustee from allowance to infant beneficiary's guardian, 937. executor from judgment disposing of estate contra, 937. to testator's intent, 937. executor from refusal to compel transfer of stock, 937. who are not aggrieved parties executor and trustee when rivals to bequest acquiesce in deci- sion as to title, 937. executor when estate ample from decision of who is proper distributee, 937. administrator from decree as to whom he shall pay, 937. administrator c. t. a. from compulsory account by executor, 937. cross-appeal by parties not included or application to be made parties, 938. effect when all parties below not made parties on appeal, 938. 1323 INDEX Beferences are to pages. APPEAL — oonUnu^d. to appellate division from surrogate's court — contiamed. what persons not parties may take when entitled to be substituted for party, 938. when has acquired interest since determination below, 938. order of appellate division substituting, 938. dismissal on failure of order of substitution, 938. administrator d. b. n. from judgment for or against predecessor, 938. on death of one who if living would be respondenty 938. who brought in on death of one who would be party, 938. when surviving party may have order of appeal on death of other party, 939. substituting another for dead party to appeal, 939. order requiring persons interested in deceased •pai'ty's estate to show why appeal not be disposed of, 939. when barred when appellant enters order or decree, 939. when someone other than appellant enters order or decree, 939, notice of contents and form, 940. grounds not necessary, 940. facts before appellate court though no exceptions, 940. no questions of law considered unless exceptions taken, 940. failure to state to what court, 940. service . on whom, 940. manner of, 940. when appearance in person below, 940. when appearance by attorney below, 940. when service on attorney below impossible, 941. when service in state impossible, 941. through nmil, 941. correction of failure to serve, or to stay execution or do otiier act to perfect appeal, 941. on what heard when no testimony taken in general, 941. denying motion to open, etc., 941. when testimony taken cases on trial of issue of fact, 942. what is trial of issue of fact requiring case, 942. contents of ease, 942. case to be settled, 942. case on appeal from decree confirming referee's report on objections to account, 942. exceptions of prevailing party not part of case, 943. when case and exceptions to be served, 943. when amendments to case to be proposed, 943. 1324 INDEX References are to pages. APPEAL — continued. to appellate division from surrogate's court — continued. on what heard — continued. when testimony taJien — continued. marking proposed amendments on case, etc., 943. details of settling case, 943. numbering lines of case, 943. agreed facts instead of testimony in case, 943. when referee instead of surrogate settles case, 943. notice of application . to extend time to ijiake case, 943. relief from failure to serve case on time, 944. effect of failure to make ease on time, 944. printing exhibits in case, 944. penalty for failure to obey rules as to case, 944. who must furnish papers on appeal, etc., 944. miscellaneous rules as to case and points, 944, undertaking on when necessary, 944. waiver of, 944. deposit of money in lieu of, 944. when appellant's 'letters revoked, 944. remedy for failure to give, 945. only $250 undertaking usually needed, 945. requisites, form and contents, 945. penalty, 945. approval, 945, filing, 945. requisites when adverse party dead, 946. from decree for payment or deposit, 946. from decree cominitting, to stay execution, 946. proof of value to fix, 946. examination of sureties to, 946. prosecution may be by any aggrieved person authorized by order, 947. prosecution authorized in aggrieved person's or state's name, 947. disposition of proceeds of prosecution of, 947. enforcement against representatives individually, 947. discharge on application to surrogate, 947. notice of application for discharge, 947. discharge in whole or in part, 947. power of appellate division same to decide facts as surrogate, 948. motion for new trial necessary to review facts only after jury trial, 948. not limited to deciding: if sufficient evidence before surrogate, 948. on appeal from decree denying probate, 948. to decide on competent disregarding incompetent evidence, 948. from decree admitting will, 948. from decree settling accounts, 948. 1325 INDEX Eeferences are to pages. A PPE Ali — contimied. to appellate division from surrogate's court — contimied. power of appellate division — continued. only as to provision in decree in which appellant interested, 949. to receive further testimony or documentary evidence and ap- point referee in general, 949. cautiously used, 949. both sides equally treated, 949. new evidence must be important, 949. new evidence may be taken iby commission, 949. exerted when issues could be better presented, 949. exerted when legitimacy involved, 949. referee appointed as to removal of executor, 949. commission issued as to other will elsewhere, 949. as to opening, vacating, setting aside, entering tmnc pro time same as surrogate, 950. from settlement of account, 950. when no vouchers filed with account, 950. same as if before it originally, 950. to review exercise by surrogate of discretion, 950. to review determination as to income not appealed from, 950. examples when exercise of surrogate's discretion, reviewed and not reviewed, 950. ■ to reverse not for error in evidence Unless prejudicial, 961. reluctantly on question of pure fact, 951.: when exceptant prejudiced so as to warrant reversal, 951-2. when evidence below nearly balanced, 953. when trial- below before jury, 953. denial of probate not permit direction to admit, 953. to modify or affirm may disallow overpayment by executor, 953. must be enforced by surrogate, 953. may compel restitution, 954. of order denying motion to vacate order of contempt, 964. entry of order on in surrogate's court, 954. jurisdiction lost when remittitur sent to surrogate, 954. remission of papers to surrogate, 954. when execution allowed 'in appellate court, 964. instructions to surrogate on reversal or modification, 964. effect stays proceedings afl'ected by appeal, 956. no stay as to interlocutory practice order, 955. from decree removing trustee and appointing successor, 955. from decree admitting will or granting letters or affirmance there- •I > ■■ ' ' of, stays letters except on surrogate's order, 955. from decree or order of commitment, 955. from decree to pay, distribute, deposit or deliver, 956, 1326 INDEX Eeferenees are to pages. APPEAL — continued. to appellate division from surrogate's court — contimned. effect — continued. from order granting leave to issue execution, 958. from decree or order revoking, removing or suspending, 956. from decree or order appointing temporary administrator, 956. froni order appointing appraiser, 956. argument of number in court's discretion, 956. legal questions discussed then — not on motion to dismiss for frivolousness, 956. to court of appeals jurisdiction limited to review of questions of law, 956. has not same power as surrogate to decide questions of fact, and open, vacate, etc., or grant new trial, for fraud, new evi- dence etc., ,956. on entire failure of proof as to whether examination of long account involved, 957. on appeal to remove ^ trustee when evidence tends to establish ground, 957. of finding of testator's intent on facts found by trial court, 957. to go behind appellate division's creation of question of fact which bars highest court, 957. when order pf appellate division does not show reversal was on facts, 957! when appellate division reverses on law only, 958. when questions of fact arise on conflicting evidence, 958. , not over surrogate's decision on' facts, 958. when appellate division's reversal on • facts as well as law, 958. when appellate division's reversal not state not on law alone, 958. when appellate division has afiirmed decision of question of fact on conflicting evidence, 958. from orders of reversal on jury trials not stating grounds, 958. from judgments in jury cases, 959. from appellate division's last judgment does not bring up former judgments, 959. substitution of name after, 959. change in title, 959. from what taken as of right from judgments or orders finally determining special proceedings in surrogate's court; 959. as of right from orders granting new trials on exceptions on appellant's stipulation for judgment absolute on affirmance, 959. " ■ " •■ by permission on certified question of law, 959. when order is "final" so as to permit, 959. 1327 INDEX References are to pages, APPEAL — continued. to court of appeals — continued. froia what taken — contirmed. order reversing decree denying probate and not directing admia- sion, 959. on affirmance of discretionary order of surrogate, 960. order punishing witness for failure to answer, 960. order reversing surrogate's denial of vacation of his accounting decree, 960. judgment reversing accounting decree and remitting accordingly,. 960. order fixing appraiser's fees from affirmance of decree settling intermediate account, 960. order to pay legacy, 960. order vacating satisfaction piece in fraud of lien, 960. affirmance of referee's allowance of disputed claim, 960. from dismissal of proceeding to compel accounting, 961. from order granting new trial, 961. reversal of surrogate and remission for accounting, 961. judgment reversing on facts admission of will, 961. affirming, surrogate's order for accounting, 961. affirming surrogate's denial to open accounting, 961. compelling account, 961. what reviewable modification by appellate division on direct appeal from surro- gate's decree, 961. from affirmance of surrogate's decree when was no appeal to appellate division, 961. from order affirming order opening default, 961. vho may take party aggrieved, 962. party in default; 962. party in whose favor judgment or order made, 962. attorneys remain unchanged, 962. guardian ad litem remains- xinchanged, 962. when barred, 962. notice of requisites, 962. contents, 962. service on whom, 962. how made, 962. through post-office, 962. on attorney for adverse party, 963. on adverse party, 963. when personal service impossible in state, 963. 1328 INDEX References are to pages. APPEAL — oonUniued. to court of appeals — continued. on what heard ca^e, 963. rules ■ concerning case, 963. who must settle, 963. undertaking on, in contempt proceeding, 963. proceedings on reversal, 964. decree or order by surrogate on receiving remittitur, 964. correction of error in remittitur, 964. surrogate cannot pass on question determined by remittitur, 964. notice of entry of notice of appeal, irregular, 964. form and contents of remittitur, 964. effect from affirmance of probate, 965. APPEARANCE in adoption proceedings, see "Adoption." of parties, see "Parties." notice of, see "Parties." APPOINTMENT of administrators must be voluntary, 162. on renunciation of those having prior right, 162. on ground widow not applied, 163. not of deceased administrator dying out of state against wish of bis representative, 155, - depends on existence of death, 154. surrogate must follow statute, 154. not when intestacy is only partial of a, testator, 155. only when intestacy is of person, 154. when dependent on presence of unadministered personalty, 155. essential that decedent die or leave property in county, or property later come into county, 155. legalizes acts intermediate death and, 105. not in one proceeding while another pending, 172. refused when no debts, no suits, no property unadministered, 90. when refused because unnecessary, 90. refused if only to administer residuum undisposed of by will, if executor, 90. consent by one entitled to joint appointment of one not entitled, 170. withdrawal of consent, 170. ancillary only to person entitled to decedent's personalty in domiciliary state, 175. such title must be shown, 176. N. T. E. & S.— 84. 1329 INDEX References are to pagres. APPOINTMENT— continued. of administrators — continued. ancillary — continued. petition, 184. who may make, 184. must state security given in domieil, 184. authenticated copy of foreign letters, or proof of , applicant's title to estate in domieil must accompany, 185. form of authentication, 185. must give name of state comptroller, 185. prayer, 185. must give name of state comptroller, 185. when refused, 185. hearing and decree in general, 194-6. decree may provide for payment of or security for transfer tax, 196. citation when issues, 192. to whom issues, 192. published if no security for letters to be given, 192. , contents, 192. ancillary c. t. a. authorization by foreign representative to one not entitled, form, 176. to one of several named in domiciliary, foreign letters, 176. to one on authorisation of foreign representative, 176. debts due New York creditors -ascertained, 195. preferences order of, 176. citation to whom issues, 192. contents, 192. when no bond , to be given, 193. petition who may make, 186. contents, ,186. ^ , :, authenticated copy of foreign letters or will to accompany, " 186. form of authentication, 187. set forth creditors, etc., in N. Y., 187. set forth security given in foreign state, 187. comihittee of incompetent, 159. consuls notice to of application for administration, 168. under treaties, i'es. preference of, 168. security required of, 169. 1330 INDEX References are to pages, APPOl^TWEifrr— continued. of administrators — continued. c. t. a. on death of executor, 172. ■when necessary, 91. petition who may maJce, 181. contents, 182. must allege no executor, 182. must show petitioner's relationship, 182; must give names of creditors' and persons interested, 182. notice of application in surrogate's discretion, 182. not when no assets unadministered, 174. proof of petitioner's right if challenged, 174. proof of existence of unadministered assets, 174. preferences legatee to husband or wife or kin, 172. i general legatee to corporate guardian of sole infant residuary legatee and kin, 172. men to women, 173. whole to half-blood, 173. unmarried to married women, 173. corporations, 173. absolute as to classes, 174. discretionary as to persons in class, 173. discretionary as to one not entitled jointly with one en- titled, 173. discretionary to one not entitled solely on consent of all entitled, 173. order of, 172. citation to whom issued, 190. contents, 190. d. b. n. for what purpose, 94. preferences broliher of deceased widow who was administrator to original decedent's sister, 175. public administrator to representative of deceased father who was administrator and also to brother, 175. proceedings same as for administrator in chief save for bond, 174. when all qualified administrators dead, 174. all qualified administrators incapable, 174. all letters issued revoked,' 174.' petition not on, of non-resident alien, 182. must allege death, incapacity, or revocation of letters of all ' qualified administrators, 182. citation, 190. 1331 INDEX References are to pages. APPOINTMENT— continMed!. of administrators— co«.H«Med. guardian of infant in general, 158. afBdavit must sliow value of decedent's personalty, 158. hearing and decree had only when jurisdiction obtained, 194. denying letters if administration already had or no assets or no claims or objections sustained or insufficient proof of death, 194. in chief not when will exists, 90. pending appeal to court of appeals, 106. pending appeal from decree denying probate, 171. pending appeal from decree admitting will, 171. here on foreign will only if will here proven, 172. petition who may make, 180. contents, 180. must allege no will, 180. verification, 180. prayer, 180. interest of petitioner, 181. citation, 188. when issued, 189. to whom issued, 189. none necessary when none entitled in priority to petitioner, 189. , , corporate sole creditor need not have, 189. to consuls, 189. contents, 189. of estates of illegitimates preferences: widow or husband, children, descendants, mother, relatives of mother, 167. jurisdiction by former residence in his county, 155. surrogate first petitioned if assets in two counties, 157. personalty in two or more counties, 157. assets irregularly brought into state, 157. claim by nonresident intestate against domestic corporation, 16T. mortgaged property where deceased mortgagor resides, 156. bond, note, etc., personalty where situated, 156. debt personalty in debtor's county, 156. what jurisdiction surrogate has, 154. limited for what purpose, 94. to prosecute action to recover real property and damages, 94. 1332 INDEX References are to pages. APPOINTMENT— con/Mtted. of administrators — continued. limited — continued. to nearest friend when widow and children aliens and nonresidents, 175. petition who may make, 182. must allege right or cause of action to decedent or petitioner, 183.; must show impracticability of bond, 183. citation when issued, 190. to whom issued, 190. contents, 190. objections to, see "Objections" persons incompetent infants, 138. corporations, 158. not filing designation of clerk on whom process may be served, 158. unable to read and write, 158. in surrogate's discretion, 158. persons incompetent, in general, 157. aliens and non-inhabitants, 159. adjudged incompetent, 159. dishonesty in general, 161-2. not such disqualification for administrator as executor, 162. improvidence in general, 161. bond as cure for, 161. not such ^disqualification for administrator's executor, 161. want of understanding, 161. incompetency generally, 161. drunkenness, 162. felons in general, 160. what are felons, 160. non-residents, 160. preferences unmarried to married, 167. only among those of equal right, 167. effect of married women's acts, 167. discretionary among equally entitled, 164. whole to half blood only among those of equal right, 167. half-brother to whole sisters, 167. nonresident mother to resident half-brother, 167. test of whole and half blood, 167. 1.333 INDEX Eeferenees are to pages. APPOINTMENT— continued. ot administrators — continued, preferences — continued. men to women ■ father to mother, 166. brother to sister, 166. son to daughter, 166. half-brother to whole sister, 166. not when women of nearer kin, 166. not grand nephew to niece, 166. not maternal uncle to half sister, 166. not guardian of infant son to adult daugfhter, 166. relatives sharing in distribution public administrator preferred over brother if father is alive, 165. public administrator preferred over all if sole kin infant with- out guardian, 165. but not if guardian, 165. half sister preferred to maternal uncle, 165. only son of widower, 165. citizen niece over public administrator, 165. not sister if father living, 165. when kin of deceased spouse, 165. must have present interest, 165. discretionary to one not entitled jointly with one entitled, 164. men to women, whole to half blood, unmarried to married women, 164. of one class over another absolute, 163. over of: husband or wife, children, grand-children, fajther, mother, brother, sister, other kin, 164. why to blood and financial interest, 164. in general, 163. discretionary to appoint some of more equally entitled, 170, to appoint not entitled jointljr w(th entitled on latter's con- sent, 170. 1 only among persons in one cl^ss and not between diflFerent classes, 170. apply to administrators; c. t. a., 171. so to widow when latter denpe, 170. when no competent adult or committee of entitled incompetent, 159. when no competent adult or giuardian of entitled infant, 158. to legal representative of one solely entitled who dies, 162. to whom, if legal representative refuses, 162. public, 179. hearing and decree wlien granted, 194. 1334 INDEX Eeferences are to pages. APPOINTMENT— contimtted. of administrators — continued. public — tionti/mied. liearing and decree — continued. letters denied in New York county if decedent left will ap- pointing executor, or widow or relative, entitled to share, appointable, 195. effect of grant to such widow or relative, 195. notice of application, 193. attorney-general not entitled to notice, when, 193. when necessary, 102. revocation of no notice needed on application to revoke letters of one not en- titled appointed on consent of and jointly with one entitled, 171. successor when, 177. surrogate's power, 177. not when administrator or executor left except when will so re- quires, 177. petition, 188. temporary for what purpose, 95. when, 177. each case determined on own facts, 177. not limited to relatives and creditors, 177. when does and does not go to pferson appointed executor in con- tested will, 177-8. on decedent's estate only when delay in probate or grant of letters, 178. only when proceeding pending, 178. petition who may make, 183. on decedent's estate only when delay in probate or grant of administration, 184. must give names of those to be cited, 184. without petition by surrogate in delayed' proceeding pending for probate or administration, 183. notice (when no petition), 191. citation — when unnecessary, 191. length of notice, 191. of executors ancillary executors when possible, 564. who may petition for, 565. contents of petition, 565. 1335 INDEX References are to pages. APPOINTMENT— contintted. ancillary executors — contirmed. , instnunent authorizing petitioner to be appointed, 565. authenticated copy of foreign will and letters to accompany petitioi^ 566. petition and citation must name comptroller, 567. in general person named in will entitled till deprived of right, 563. what sufficient nomination in will of public administrator to entitle to, 563.: from time to time as qualified persons appear, 563. petition for part of probate proceeding generally, 563. distinct from probate if probate contested, 563. surrogate's jurisdiction when two or more surrogates conflict, 556. in general, 554. of successor, 554. to determine better title to, 554. of successive, under will,- 554. on appeal from decree of probate, 554. when att-aches, 555. debt owing by resident gives, 555. negotiable instrument from residen]t not give, 536. limited executors in general, 564. bond, when required, 564. petition for, part of probate petition, 564. to person entitled on contingency in general, 56^. petition, 564. to person named by one imder testamentary power in general, 564. selection to be filed within 15 days of probate, 564. no petition other than for probate needed, 564. persons incompetent drunkard, 559. improvident person, 560. improvidence greater, disqualification than for administrator, 560. person wanting in understanding, 560. dishonest person, 559. dishonesty more of disqualification than for administrator, 559. murderer "dishonest," 559. incompetence in general, 559. illiterate, 559. gambler, 559. poor person, 559. inadequate circumstances when such incompetency exists, 562. bond overcomes objection, 562. 1.336 INDEX References are to pages. APFOTNTMESNT— continued. persons incompetent — contintied. illiteracy, 563. failure to file designation of clerk as one on whom process may be served, 563. adjudged incompetent, 557. alien not an inhabitant, 557. alien becoming citizen before estate closed, 558. non-resident, 558. bond by non-resident, 558. felons, 558. pardoned felon, 558. misdemeanant not a felon, 558. in general, 556. non-resident on inadequate circumstances, 556. draftsmen of will, 557. successor corporation to one named as, 557. infant, 557. infant on becoming major, 557. citation in general, 568. for ancillary, to comptroller and creditors, 668. contents of, on ancillary, 668. hearing had on citation's return, 570. on ancillary, must determine debts to residents, 570. may be on affidavits or otherwise, 670. decree, 570. objections who may file, 569. when may be filed, 569. contents, 569. when filed, necessitate stay of appointment, 569. notice of probate to beneficiaries to be filed before, 569. form, 569. proof of mailing to beneficiaries, 569. renunciation order declaring, if not qualify in stated time, 561. who may apply for order declaring renunciation, 561. when order made declaring renunciation, 562. revocation of order declaring renunciation, 562. on retraction of, letters issued only on notice, 561. on retraction of, surrogate has discretion to appoint, 561, form, 560. filing, 560. oral in court, 560. agreement for in consideration of commissions, 560. 1337 INDEX References are to pages. APPOrNTMEiNT— contmtied. renunciation — continued. before testator's death, 560. retraction before and after letters issued, 560. form of retraction, 561. letters form of, 570. limitation in, 570. . force and effect of, 570. establish right to sue, 571. issued twice on same estate, 571. successor only when necessary to coniply with will, 567. administrator e. t. a., 568. when testator provides for in will, 568. petition, 568. supplementary when issued, 567. petition, 567. under will appointing one on death of another, 567. of guardians ad litem time of appointment, 736. on infant's application if over 14, 736. on whose application if infant under 14, 736. for infant defendant, 736. brother of surrogate as, 736. while infant, in court and consents, without petition, etc., 7ST. effect of failure to appoint, 737. by will, 733. by deed, 733. ancillary, 733. who can petition for, 733. when made, 733. proof accompanying petition, 734. authentication of proof accompanying petition, 734. proof and authentication of foreiign appointment, etc., 734. effect of petition and accompanying, authenticated proof, 735. citation who to have notice, 738. contents, 738. general petition by infant if over 14, 730. by anyone for infant under 14, 730. contents, 730-1. 1338 INDEX References are to pages. APPOINTMENT— confimued. of guardians — continued. general — continued, 'petition— continued. separate for several infants, 731. not if prior proceedings pending, 731. citation ■when issues, 737. who to have notice, 737. contents, 738. special or ad litem citation not needed, 738. hearing, 739. decree appointing all except special guardian, 739. order appointing special guardian, 739. decree appointing ancillary guardian, 739. contents of decree, 740. joint, 737. what jurisdiction surrogate has by statute, 722. to appoint successor, 722. to appoint general guardian, 722. while parent living, 722. manner of, 722. what surrogate has jurisdiction in general, 722. of ancillary giiardian, 723. of successor, 723. appellate court abides by determination of, 733. persons incompetent in general, 723. nonresident, cured by bond, 724. inadequate circumstances,^ cured by bond, 724, infants, 724. adjudges incompetents, 724. aliens and non-inhabitants, 724. felons, 725. incompetence, 725. gamblers, 725. illiterate, 725. poor person, 725. drunkenness, 725. dishonesty, 725. improvidence, 725. want of understanding, 725. inadequate circumstances, cured by bond, 727. illiteracy, 727. failure to file designation of one on whom process may be served, 727. preferences infant's best interest sole guide, 727. 1339 INDEX References are to pages. APPOINTMENT — continued. of guardians — continued. preferences — continued. not confined to parent or person nominated, 727-8. generally to parents and relatives, 727. not one having adveiiae interests to infant's, 728, when infant very young, 728. finances as determining, 728. character of candidates' homes, 728. religious faith as determining, 728. surviving parent, 729. between divorced parents, 729. renunciation or refusal by written instrument filed, 726. presumed after 30 days after probate if not qualified, 728, extension of time to qualify, 726. presumed after recordation of deed if not qualified, 726, special when, in proceeding before surrogate, 731. not one nominated by any party, 731. for whom appointed in surrogate's court, 731. not by surrogate till infant cited, 730. :. to petition for removal of general guardian failing to make proper annual account, 732. i in transfer tax proceedings, 732. of testamentary trustees by surrogate's court, of successor, 675. by surrogate, when sole trustee dies or resigns or, all resign or die, 676. by surrogate, of successor to act with trustees appointed by supreme court, 675. what surrogate has jurisdiction, 676. ,w ' . derived strictly only from will, 673.. . ^ , • ,,,: jurisdiction of supreme and surrogates' courts, 674. on death of last or sole surviving trustee, trust vests in supreme court, 674. by supreme court, security required, 674. notice required on, by supreme court, 674. by supreme court when no trustee appointed by will, 674-5. by supreme court, powers conferrred, 675. when beneficiary becomes sole trustee, 675. in surrogate's court when no trustee in office before entry of order accepting resignation of retiring trustee, 679. who may apply for, 679. what papers sufficient for, 679. jurisdiction, 679. when allowed, 679. cannot be referred, 679. 1340 INDEX References are to pages. APPOINTMEiNT — continued. of testamentary trustees — contimued. in surrogate's court — continued. when no trustee in oflBce — continued. necessary even though incumbent die on eve of decree direct- ing payment to beneficiary's guardian, 679. on death Of cestui when distribution not yet made under will, 679. persons incompetent in general, 676. infants, 676. adjudged incompetents, 676. alien not an inhabitant, 676. nonresident not giving bond, 676. felon, 677. incompetency, 677. illiterate, 677. poor person, 677. gambler, 677-8. improvidence, when cured by bond, 677. want of understanding, 677. inadequate circumstances and bond to cure, 678. renunciation or refusal from failure to qualify and allowing others to act, 678. retraction of, after co-trustees have acted, 678. decree, order or judgment form in surrogate's court, 683. form in supreme court, 683. discharging on accounting, see "Accounting." notice of in surrogate's court, 682. . in supreme court, 683. objections who may make, 682. when may be filed, 682. contents, 683. eflfect of filing, 683. by supreme court, 681. when allowed, 681. on death of sole or last surviving trustee, 08X not ex parte, 681. of express trust only, 681. tj surrogate's court, 680. when trustee in ofBce, 680. when permissible, 680. not unless for cestui's benefit, 680. when incumbent appointed by supreme conrt, 880. , 1341 INDEX Eeferenceg are to pagep. APPOINTMENT— contmued. of testamentary trustee — continued., by surrogate's court — continued. ■n'hen trustee in o&ce—conPmued,. costs of, 681. not by notice qf motion, 681. not while prior proceeding pending, 681. APPRAISAL AND INVENTORY appraisers' expenses, 263. appraisers' compensation, 263. affidavit needed to prove days of worli, 263. examples of compensation allowedj- 263. compulsory who may make petition, 266. when petition proper, 266. order, 266. of additional assets coming to representative,' 266. not compelled when no assets, 266. order to show cause, 266. effect i i . prima ■facie evidence of value of assets, 265. determines extent of representative's liability, 26i5. inventory contents, 264. articles set apart as exempt, 264. ' duplicates to be signed, 265. oath endorsed or annexed to, 265, to include assets in another state, 265. must show notitfe of giiien, 265. when to be made, 264. one representative may make, 264. one of several representatives making is solely entitled to administer, 264. of personalty coming to representative after original inventory, 264. notice of to whom, 262. time of, 262. service, 263. oath of appraisers form, 264. inserted in inventory use of transfer tax, instead of separate, 261. appointment of appraisers, 261. estimate and appraisal by appraisers, of personalty, realty and securities, 262. ■ ■ failure to set aside exemptions to widow' remediable on accounting, 66. transfer tax report to surrogate, 122. ' may subpoena witnesses and take testimony, 122. appraisal, 122. appraiser appointed by surrogate, 121. INDEX References are to pages. APPROVAL of administrators' bonds, 200. of other bonds, see "Bonds" and "Specific Titles.'' ASSESSMENTS for mimicipal improvements for payment of in connection with other claims, see "Debts of and Claims against Decedent" ASSETS appraisal and inventory of, see "Appraisal and Inventory" collection of, see "Collection" custody of, see "Custody" discovery of, see "Discovery" good will of partnership of which decedent a partner, 112. in state as authority for suit by administrator, 105. sale of, see "Sale of Assets" accounts, money, bank bills and circulating mediums, 241. exempt money and property for widow not, 241. commissions of representative, 242. costs, 242. bank deposits jointly in names of decedent and another, 242. money invested by one in another's name, 242. annuities, dividends and other payments due at fixed period under instru- ment executed after June 17, 1875, 241. dividends after death of one entitled thereto for life, 241. alimony, 241. choses in actions and all other species of personalty except fixtures, things descending to heirs or devisees, 246. money owing decedent for jointly working farm, 246. claim against nonresident, 246. note in executor's individual name to escape transfer tax, 246. note in joint name of husband and wife, 246. claim of decedent against executor, 243. corporate or joint association, 242. crops, 239. annual produce, 239. grass, grain, corn, potatoes, etc., 239. when severance makes personalty, 239. power of representative to sell growing crops, 239. debts secured by mortgage, bonds, notes or bills, 238. land bought by representative on foreclosure of mortgage held by decedent, 239. surplus moneys on foreclosure, 239. definition, 235. fire and life insurance as, see "Insurance" fixtures trade-fixtures, 237. test to determine when and when not fixture, 237. examples of numerous articles, 237. 1343 INDEX References are to pages. ASSETS — contitMed. goods, wares and merchandise are, 244. except statutory exemptions to husbalid, widow and child, 244. land of decedent taken by eminent domain, 236. real estate in which estate funds invested, 237. surplus of partition, 237. excess of sale of realty under power to pay legacies, 237. pews, 237. contract to buy land, 237. land held by decedent from year to year is, 236. estates held by decedent for life of another are, 236. interest of decedent in term of years after expiration of preceding term is, 236. interest in lands devised executor for years for payment of debts is, 236. money unpaid on contract of sale of land is, 236. leases for years are, 235. to decedent unexpired at death are, 236. liability of representatives occupying under, 236. liability of representatives for covenants in, 236. in form of grant of premises are not, 236. for years are chattels real, 236. proceeds of action ior death through negligence not general assets, 246. go to wife husband and kin, not as assets, 247. when recovery in another country or state, 247. rents reserved on lease made after June 17, 1875, 240. rents becoming due on day decMent dies, 240. rents accrued at death, 240. joint sharing in working of farm, 240. representative's duty to collect and aipply, 235. rights of public administrator as to, 235. ATTACHMENT see "Execution and Attachment." by surrogate to enforce decree, 921. what needed to authorize, 922. against representative, 922. by creditors of deceased's business, 922. against foreign administrators and executors, 153. ATTACK on jurisdiction, see Jurisdiction." ATTENDANTS, MESSENGERS AND INTERPRETERS appointment and removal, 1010. duties, 1010. compensation, 1010. interpreter's oath, 1011. 1344 INDEX References are to pages. ATTORNEY'S LIEN "retaining" diatinguished from "charging" lien, 987. client may settle action, 987. does not allow prevention of withdrawal by client of objections to probate, 987. when agreement between attorney and client allows settlement, 987. protected by notice to judgment debtor, 988. not on claim against but only in favor of client, 988. for probating will when will makes expenses charge on estate, 988. on deposit in decedent's name in bank, 988. on amount decreed due his client's estate, 988. on attorney's death, 988. surrogate may protect, 989. surrogate may vacate decree on which there is, 989. includes taxable costs and agreed fee, 989. special proceeding before surrogate to protect, 989. not on estate assets for services in administration, 989. enforced by surrogate for services to administrator only while proceeding pending in which latter interested, 989. determined by petition when client seeks withdrawal on consent of objec- tions to account, 989. on estate unadministered in any executor's hands, 989. for service to several executors, 989. for compelling accounting, 990. not protected by surrogate as part of accounting, 990. jurisdiction of supreme court to protect, 990. is on abstract controversy not on tangible property, 990. AUNTS inheritance by and descent to, see "Descent" AUTHENTICATION of foreign letters, see "Foreign Letters." of foreign wills, see "Foreign Wills." BANK DEPOSITS as assets, see "Assets." see "Collection.'' BEQUEST definition, 2. BIGAMOUS MAKKIAGE ' see "Marriage" BILL OF PARTICULARS as to names, etc., of those unduly influencing testator, in contested pro- bate, 910. N. Y. E. & S.— 85. 1345 INDEX Eeterences are to pages. BLOOD test of whole and half, 167. BOND , ;, discharged or reduced on accounting decree, see "Accounting." when joint, when several, 797. , , affidavit of justification, 797;^ by surety company equivalent to sureties, 798. by surety company through officers, 798. ., by surety company, certified copy of directprs' resolution attached, 798. acknowledgment, proof and certification, 798. name of obligee not vital, 798. for whose benefit, 798. "faithfully execute trust" clause, , 798. conditioned to pay all lawful claims, 798. to obey court's orders, 798. approval, 798. ., , approval endorsed on bond, 798. who may approve, 798-9. filing and recording, 799. of administrators ancillary .:. ,t': like those of administrators in, chief, 203. dispensed with in same way, 203. or because luo debts due New York creditors, 203. but then only when citatiou to. creditors published, eiie., 203. security for payment of transfer . tax, 204, county treasurer as like those of administrators in chief, 204. even though appointed only tenvporp,ry adniinistrator, 204. c. t. a, like those of administrators in chief save as to penalty* 202. need not recite principal is will wjtb will annexed,; 202. d. b. n., 175. decree discharging old on application by administrator in pending ac- counting, 207. releasing sureties who apply therefor, 207. revoking letters for failure to give, 208. requiring administrator's accounts to he settled when application is by sureties, 208. In chief to be executed and filed before letters, 200. dispensed with when entitled to whole estate, 200,. reduced when entitled to whole estate, 200. positive allegation of no creditors to dispense with, 200. requisites aiid condition of, 200. individual or corporate sureties, 200. 1346 INDEX References are to pages. BOND — contirmed. of administrators — continued. in chief — oontimued. penalty double creditors' claims only on consent after notice to creditors published, 201. requisites of such notice, 201. how ascertained, 201. fixed irrespective of debts, 201. according to value of personalty and probable recovery in action, 201. dispensed with or reduced when entitled to whole estate, 201. when estate so large full bond inadvisable, 201. approval, 202. temporary like those of administrators in chief, 203. even if to county treasurer, 203. no additional bond by public administrator, 203. new grounds for in general, 205. citation not necessary when sought by administrator himself pending accounting, 206. when sought by creditor or person interested, 206. when sought by surety, 207. hearing on application for, 207. petition . contents by person interested in estate or creditor, 205. contents by sureties, 205. who may make, 205. by person interested in estate, 205. by creditor, 205. by surety, 205. none necessary when administrator asks in pending account- ing, 206. order requiring on application by person interested or creditor or surety, 207. penalty may be fixed in surrogate's discretion, 20S. public, 204^ of executors, see "Executors." of guardian see "Guardians." on receipt of legacy or distributive share of ward, 388. prosecution in general, 799. 1347 INDEX References are to pages. BOND — continued. prosecution — continued. by him in whose favor decree made when allowed, 799. necessity of execution, 799. recovery, 799. by general guardian or guardian ad litem, 800. by successor in office for what action may be brought, 800. on failure of predecessor to account, 800. recovery part of estate or fund generally, 800. recovery when of statutory right of action, 800. recovery when disposed of by will, 800. against predecessor's sureties, 800. by person aggrieved for what action maintainable, 800. when action maintainaible, 801. recovery payable into court for successor, 801. in name of people, 801. order for, when in name of people, 801. notice to be given on order for, 801. receiver of one interested in estate, 801. next of kin when judgments had by ancestor against principal, 801. by assignee when runs to people, 802. order of surrogate authorizing, 802. when assignor himself principal, 802. on sale, etc., of real estate, see "Disposition of Realty." surety, see "Sureties'' testamentary trustee filing requisite to qualification, 683. when required to hold, manage or invest, 684. manner of execution, 684. approval of, 684. recording of, 684. of inadequate circumstances, 684. in supreme court, 684. BROTHER distribution to, see "Distribution." inheritance by and descent to when no lineal descendants; a father; a deceased mother on whose part inheritance came to deceased, 5S. BURIAL AND FUNERAL who has duty of burial, 226. who has right to body, 226. right to body a legal right, 226. public policy requires, 226. 1348 INDEX References are to pages. BURIAL AND FVSERAL— continued. damages for interference or injury, 226. delay and change in burial and removal of body, 227. expenses of of what consist, 227. determinable by decedent's station, etc., 232. how reasonable amount determined, 232. example of amounts allowed, 233. for tombstone or monument by will, 215. refreshments not, 228. mourning apparel as, 228. when include lot, 228. include tomb or headstone, 227-8. when include cost of bringing body froiB a distance, 228. personal liability of representative, 229. liability of estate and representative for, 229. even though person named executor in will warns against burial, 230. representative not allowed interest if does not pay promptly, 229. payable from recovery in negligence action, 229. unless directed by will to be paid, 229. payable from personalty and proceeds of realty, 229. preferred to debts but not administration expenses, 228-9. right of stranger tft recover for as charge against estate without con- tract, 229. compulsory payment action or suit by undertaker, 233. petition proper way to begin proceeding, 233. claim heard on judicial settlement if representative disputes, 233-4. contents and prayer of petition, 234. citation, 234. order directing payment, 234. dismissal of proceeding, 234. second petition for, when first dismissed, etc., 234. who may make second petition, 234. contents and prayer of second petition, 234. citation on second petition, 235. payment by temporary administrator, 235. temporary administrator's claim for, provable on accountiDg, 236. of married women in general, 231, expenses of charge on separate estate, 231. liability of husband for, 231. when living apart, 231. when wife dies after husband, 232. privileges in lot, 232. 1349 INDEX Eel'ei'cnces are to pages. CHANGE of domicil, proof of, 9. CHILD of deceased husband or wife distribution to, see "Distribution" distribution to, see "Distribution" exemptions to, by statute, see "Exemptions" CITATION contents and form, 799. returnable before surrogate issuing, 800, returnable not over 4 months from date, 800. not amendable after service or publication begim, 800. on abrogation of adoptioA from institution when issued, 29. ordinary rules apply to, 29. on appointment of all kinds of administrators, see "Appointment" to set aside exempt property, 245. to compel payment of funeral expenses, 234. on petition for new bond by administrators, see "Bonds" service in general, 872. , four ways of, 872. in any county of State, 872. issued and served or published within 60 days of filing of petition, 872. on persons not named in it, gives no jurisdiction, 872. , on persons named .but whose Christian names not given, 872. on representatives of deceased named person, 872. on representatives of legatee dying before acceunting^ 872. through post office, 873. personal, in state in general, 873. on adult, 873. on infant fourteen or over, 873. on person by order of surrogate in addition to infant, 873. on infant under 14, 873. on father, mother, guardian, or person having control, employing or with whom infant under 14 resides, 873. on person by order of surrogate in addition to infant under 14, 873. appointment of guardian ad litem does not cure failure to serve infant, 874. on one non compos mentis, individually, 874. to committee of non compos mentis, 874. to a person in addition to one non oom^os mentis, 874. on domestic corporation, 874. 1350 INDEX References are to pages. CITATION— contimierf. service — contivMed. personal, in state — contintied. on city of New York, 874. on any city except New York, 874. on foreign corporation, 875. on public officer, 875. by publication and mailing in state on creditors exceeding 50, 877. in what papers, 877. for what time, 877. copies to be mailed, 877. in Bronx county, 877. in what post-office copies mailed, 878. personal or by publication, outside State, 878. when allowed by order, 878. not prevent personal service in State, 878. petition or affidavit to obtain order for, 878. order for, 878. in what post-office copy to be deposited, 878. direction for publication for certain number of weeks, 878. mistake in direction of time of publication, 878. mistake in direction of place of publication, 878. mailing to address different from that in order, 878. in what papers publication allowed, 878. substituted, in State on resident when order authorizing obtainable, 876. grounds for to be shown by affidavit, 876. what surrogate may order, 876. on domestic corporation, joint stock or unincorporated associa- tion, 876. on natural person, 876. order and affidavit and papers on which order granted to be filed, 877. when deemed served, 877. who may make, 881. time of making in State and in same or adjoining county, 881. out of State, within United States America or foreign land, 881. by publication and mailing, 881. substituted service, 881. on nonresident in State, 882. personally out of State, 881. supplemental, 882. CITIZENSHIP of infant, 31. proof of, 31. of woman married to citizen, 31. 1351 INDEX Beferences are to pages. CIVIL DEATH not sufficient for descent or administration, 3. see "Death." CLAIM see "Debts of and claims against Decedent." for infant's support and maintenance heard at or before guardian's accounting, 725. surrogate's jurisdiction to allow for past, 725. notice to creditors to present in general, 273. publication by temporary administrator, 96. settlement by administrator before letters issued legalized by appointment, 105. CLERKS OF SURROGATES may talce and certify affidavits, proofs and acknowledgments of deeds and other written instruments, 1008. outside county, 1007. deputy clerks in New York, Kings, Bronx and Queens may act for clerk and deputy clerk, 1009. i. may not act as appraiser, attorney, referee or special guardian, 1009. may take proof of wills, 1009. eatries to be made by., in court and trust fund register, 1009. fees charged for various services, 1012. expense of going from place to place, 1013. may certify and signs records, 100,8:. may issue process and mandates, 1008. may sign and affix seal to letters and mandates, 1009. may certify papers, 1009., ,. ■ may adjourn matters, 1009. may administer oaths, 1009. may take and certify affidavits, 1009. liling and recording order appointing, 1007. deputy clerlfs in Monroe, Erie and other counties containing cities of first or second class, 1007. other clerks and their salaries, 1008. chief clerk :;in Kings couaty removable only on charges, 1008. tenure of office, 1007. compensation, 1008. ^ •■ powers, 1007 et seq. CO-ADMINISTRATORS AND CO-EXECUTORS, see "Administrators" and "Executors." action by and against, see "Actions" COHABITATION as proof of marriage, see "Marriage." 1352 INDEX References are to pagea. COLLATERALS inheritance of and descent to, see "Descent" distribution to, see "Distribution." COLLECTION of claim due estate compelled by accounting, 329. compelled by appointment another representative, 329. of assets and debts representative taking land in lieu of money, 256. belief of uncoUectability or lack of proof as protection to representa- tive, 256. debts of firm of which representative member, 256. one representative turning over to another uncollected, 257. compromise, 257. representativ.e's duty of, 255. can be made only through representative, 255. kin seeking property held by other kin to act through representative, 255. liability of representative failing to collect, 255. procedure when representative refuses to collect, 255. advice of coimsel as protection to representative failing to collect, 256. by foreign representative without ancillary letters if payment made willingly, 258. debtor protected by payment to, 258. by bank, 258. ancillary letters necessary to collect by compulsion, 258. not if appointed under foreign statute presuming death only, 258. may keep insurance policy redeemed outside state as against domestic representative, 259. when may not collect insurance policy, 259. in foreign jurisdiction by domestic representative though take out ancillary letters, must account here, 259. payment by bank of decedent's cheque, 257. payment by savings bank when pass-book lost, 257. representative liable for, when in his hands in , any capacity when letters issued, 257. of bank deposits jointly in name of decedent and another, 242. of cheque of decedent, 242. COMMISSION AND LETTERS ROOATORY definition, 902. order for necessary, 902. seal, 902. seal waived by stipulation, 902. commissioner to be named, 902. to state names of witnesses, 902. which method adopted, 901. properly refused when surrogate's term to expire, 901. 1353 INDEX References are to pages, COMMISSIONS AND LETTERS ROGATORY— cow discharge from jail for, physical condition, 927. imprisonment for, not affect against sureties, 927. CONTEST expenses of authority of temporary administrator to pay, 97. of accounting see also "Objections." ,, objections must contain all proposed claims, 380. independent action of court as to items not formally objected to, 380. objection to object to executor's account to charge him with Ms in- debtedness to testator accountant not bound by hearing when no, 380. 1359 INDEX Refereuces are to pages. CONTEST— oomWnwed. of acco\xntmg-^pontinued. on items to which no objections filed, 380. how special guardian should object, 380. objections to be separately alleged, 380. amendment of objections, 379. striking out objections on motion, 379. hearing surrogate's jurisdiction on, 383. affidavits on issues not evidence unless stipulated, 383. equitable principles govern, 380. burden of proof, i , on objectant to show existence of assets not inventoried or accounted for, 381. when executor given use as life tenant, 381. on objectant to contest debts and payments accounted for as paid and made, 381. on contestant when accountant produces vouchers, 282. to be had on citation's return, 382. accoimtant may be examined under oath, 382. statement by accountant of items supported by vouchers, what ob- jections conceded or withdrawn, 382. of issue, of ownership of property or debt |?etween representative and decedent, 383. any objection made must be passed upon, 383. of claim barred by statute of limitations, 383. notice of, 383. ■when objections may be made before decree, 379. barred by formal, oral waiver to item, 379. under wrong heading by life tenant on later accounting as to, 379. item not objected to on earlier one, 379. barred by laches, 379. after time to file has passed^ 380. who may file objections in compulsory accoxmting, 378. when compulsory converted into voluntary accounting, 378. when items passed on before in Supreme Court by general guardian nunc pro tunc when special guardian failed to file, 378. by co-executor, 378. CONTRACTS by executors, see "Executors." by testamentary trustees, see "Testamentary Trustees." by guardians, see "Guardians.'' by administrators, 106. by administrator before appointment to give all estate in consideration of support for life, 108. liability of administrator for services to estate, 107. 1360 INDEX References are to pages. OONTEACTS— co»itiw«efl!. liability of administrator for, 107. marriage , is, 13. of purchase and sale of realty, see "Eeal Estate" and "Disposition of Realty." fulfilling decedent's contract to convey, see "Disposition of Realty." fulfilling decedent's contract to buy, see "Real Estate" dower in, 36. COSTS as assets, see "Assets" execution and attacliment for, see "Execution and Attachment." distinguished from administration expenses, 220. in action against representatives as in action against individual but only from estate unless mismanage- ment on bad faith, 981. on judgment for sum of money only, no personal liability unless claim presented pursuant to published notice and payment resisted, 982. prerequisites to award against representative individually, 982. foreclosure of mortgage securing decedent's bond, 982. on money judgment, no resistance until one trial had, 983. include trial, appeal and motion costs, 983. not when claim on which judgment had substantially reduced, 983. not when claim for services first heard of on decedent's death, 983. not when claim for doubtful services, 983. not when defense justified, 983. not for iona fide resistance to claim for tombstone, 983. not to plaintiffs seeking accounting who show no interest against plaintiff on successful defense of action for legacy, 984. referee's report that plaintiff entitled to usual costs and disbursements not a certificate of unreasonable resistailce, 984. in action for money when referee gives no certificate of unreasonable resistance, none allowed, 984. no certificate from referee necessary when action begun in decedent's life, 984. as representative for money, none unless claim presented pursuant to published notice, etc., 153. In action by representative or trustee as in action by individual but from estate or fund unless mismanage- ment on bad faith, 979. none when necessarily bought in representative character, 979. test to determine if action necessarily in representative character, 979. on claim arising between plaintiff's and defendant's decedents, 980. to recover from another estate money claimed due his decedent, 980. to determine disposition of trust share, 980. dependent on conduct of party, court's decision not reviewable, 980. on cause arising after decedent's death, 980. on note made after decedent's death, 980. no motion needed to charge personally when so liable, 980. N. T. E. & S.— 86. 1361 INDEX References are to pages. COSTS — contiMwed. in action by representative or trustee — continliedi in action to delay those entitled from getting fund, 981. when might have sued individually, 981. for conversion, accruing after decedent's death, 981. on appeal of revived action, 981. costs against preferred as expenses of administration against estate, 981. of action for construction of will when from principal and when from income, 969. to parties, from personalty, 969. in Appellate Division same on appeal from surrogate's decree or order as from Supreme Court, 974. to successful party, 974. to abide event of new trial or later proceedings in surrogate's court, 974. from estate or fund, or by unsuccefssful party, 974. on probate appeal charged on proponent, 974. on representative personally if appealed unreasonably, 974. affirmance with costs of decree sustaining plea of statute of limita- tions, 975. on reversal "with costs?', surrogate cannot tax disbursements, 975. modifying "with costs" carries disbursements, 975. aflSrmance with costs gives respondents costs jointly only, 975. award of against contestants personally refers to appeal costs only, 975. application to determine division of, 975. set-off of, against costs awarded in course of litigation, 975. in Court of Appeals when no direction made each party bears own, 975. lower court cannot fix, 976. new trial with costs to abide • event not include, 976. when both sides appeal neither gets, 976. award of costs in trial court carries costs, disbursements and extra allowance, 976. aflSrniance of . decree settling account without costs,, 976. reversal "with costs," surrogate cannot tax disbursements, 976. reversing "with costs" not mean costs to each appellant, 976. award of "costs to the respondents" not mean to each respondent, 976. reversal of appellate division and affirmance of surrogate "with costs" gives oniy appeal costs, 976. , remedy of appellant aggrieved to ask . amendment, 9,76. permission to withdraw appeal "upon payment of all costs before notice of argument" means, 976. reversal of appellate division which gave appellants costs to abide event and affirmance of surrogate gives both appeals costs, 976. on reference against executor on referred claim, 977. stipulation that costs of' reference taxes as costs of case, 977. on' eonflrination Of report for executor dismissing claim,' 977. 1362 INDEX References are to pages. COSrCS—contmued. security for in actions by and against representatives or trustee in discretion of court, 977. not till action commenced, 977. not till some costs accrued, 977. of costs theretofore accrued, 977. by representative plaintiff only if bad faith or for defendant's pro- tection, 977. by representative plaintiff only on some tangible basis, 977. by non-resident representative, for negligent killing, 978. before commission allowed, 979. of representative plaintiff whether personally liable or not, 978. from representative reviving on plaintiff's death, 978. additional undertaking from plaintiff, when required, 978. limit of additional undertaking, 978. limit of number of applications for additional undertaking, 978. additional, where non-resident plaintiff' dies, non-resident representative revive and surety dies insolvent, 978. in surrogate's court what are, 966. disbursements, fees of witnesses, referees, officers, publication, certified copiesi commissioners, printing, docketing and entering decree, sheriffs, searches, jurors, 966. referee's fees taxable only on certificate, 967. stenographers' fees taxable on affidavit of services, 967. stenographer's minutes not needed not taxable, 967. papers must show compliance with statutory requirements, 967. in proceedings pending Sept. 1, 1914, 967. motion for retaxation when no new grounds, 967. notice of taxation of special guardian's bill, 967. in proceeding to compel inventory, 967. notice of taxation, 967. costs of proponents of wills, 967. when stricken out or reduced, 969. by whom and whence payable party personally, 967. out of estate or fund, 968. out of share or interest in estate or fund, 968. from both estate or fund and share or interest therein, 968. in surrogate's discretion, 968. must be awarded "as justice requires," 968. review of award if discretion abused, 968. mother of infant party to proceeding to appoint guardian for infant not liable for, 968. discretion of surrogate to personally charge executor, 968. representative not generally personally charged, 968. against executor preparing account to get commissions, 968. against executor refusing to give bond, 968. against trustee removed for malfeasance, 968. 1363 INDEX Eeterences are to pages. COSTS — oontmued. in siirrogate's court — oontmued. by whom and whence payable — continued. against one contesting will in bad faith, 968. against sureties of one administrator to co-administrator, 968. of fee in guise of, not allowed, 969. against income of trust fund, 969. of construction of will, from income, 969. of accounting, when divided between principal and income, 969. to whom awarded to party — not attorney, 970, to any party in surrogate's discretion, 970. when both sides succeed, 970. to public administrator, 970. on decree to petitioner in any proceeding not exceeding $25 when no contest, 971. not exceeding $70 if contest, 971. $10 for each day beyond one of trial, 971. disbursements too, in probate, when petitioner is executor and proponent, 971. to proponent in contested probate whether successful or not, 972. to will contestant, 972. when is such contest of will as to entitle to costs on, 972. what constitutes contest of accounting, 973. stenographer's minutes not furnished contestant gratis if paid for before free copy asked, 973. not on contestant partially successful, 973. against one contesting for mischief, 973. of obtaining testimony of witness to will, 973-4. to party other than petitioner in uncontested proceeding in surrogate's discretion, 971. only when attorney has rendered services, 971. not exceeding $25, 971. $10 for each day beyond one of trial, 971. for motion for new trial, $26 if granted, 971. $15 if denied, 971. on accountiilg, 971. to special guardian in surrogate's discretion, 974. limited by statute, 974. beyond statutory limit must be as compensation, 974. from infant's or incompetent's estate, 974. not to committee as, 974. to committee, 974. OOUNTEECLAIM see "Actions." 1364 INDEX Seferences are to pages. COUNTY TREASUEER aa administrator see "Administrators." in general, 102. may transfer mortgage taken as investment, 102. commissions and legal services as administrator, 407. COURT EXPENSES see "Expenses." CREDITORS local, directed to be paid by ancillary administrator, 98. CROPS as assets, see "Assets." CURTESY in purchase-price of land, 47. not affected by statute of descents, 46. not affected by married women's acts, 48. birth of living child necessary to, 46. death of wife necessary to, 46. definition of, 46. essentials of, 46. exists in N. Y. as at common law, 46. exists only after payment of wife's debts, 46. marriage necessary to, 46. seisin of wife necessary to during adverse possession, 47. defeasible fee, 47. remainder interest, 47. life interest, 47. under deed when no adverse claim enough, 47. recovery in ejectment sufiBcient, 47. constructive seisin of wild lands enough, 47. as lessee suflBcient, 47. possession, if constructive, not enough, 47. CUSTODY of assets as between co-representatives order to show cause to, 261. direction on return of order, 261. petition to settle between co-representatives who may make, 260. contents, 260. supporting affidavit, 260. prayed for relief, 260. 1365 INDEX References are to pages. CUSTODY— contijMted. of assets — contimied. representative or trustee to keep separate from own, 259. guilty of misdemeanor if does not, 259. cannot deposit or invest in own name, 259. liable for lack of care bringing loss, 259. as between co-representatives, 259-260. court may direct as to, between co-representatives; 260. when depository liable for mixture or conversion of estate witk individual deposits, 259. DEATH actions for damaged for negligence causing, see "Actions." allegations suflBcient to prove, 3. civil in prison, 3. distinguished from physical, 3. effect of. In general, 2. presumption of from less than 7 years' absence, 4. in cases of temporary administration, 5. after seven years' absence, 4. before another, 6. when arises, 4. in general, 4. with or without issue,;: 4. testate or intestate, 7. time of, 6. proof of in general, 3. by allegations on information and belief, 3. . allegations sufBcient, 3. time of grant of administration as adjudication as. to, 6. of wife necessary to curtesy, 46. DEBTS OF AND CLAIMS AGAINST DECEDENT authority of temporary administrator to pay, 96. collection of, see "Collection.'' to decedent not discharged by being appointed executor, 243. tried like claim by executor against estate, 243. of estate to executor not payable till established, 243. incurred after intestate's death, 106. payment by administrators for different states, 101. of partnership or deceased partner, see "Partnership."' of partner as such subordinated to debts as individual eo far as individual estate goes. 111. sale, mortgage or lease of real estate to pay, see "Disposition of Eealty." 1366 INDEX Keferences are to pages. DEBTS OP AND CLAIMS AGAINST DECEDENT— cowtinued. interest on, when begins to run, 300. interest on rejected claim, 300. interest on unliquidated claim, 300. retention of amount to cover by representative on consent, 300. effect of filing account before claims presented and undisputed were out- lawed, 300-1. set-oflf of amount due debtor for services against claim by debtor, 301. bar of claim by representative no statute runs till accounting, 286. unless appointed on revocation of letters to anotber, 286. by surrogate sustaining objection to an accounting, 286. time between presentation or commencement of action and surrogate's determination of on accounting no part of time limited for commencement of action, 286. short statute of limitations applies only when claim presented la rejected, 285. not by rejection if is judgment against decedent, 285. by statute of limitations prevents use of claim as set-off, 285. avoided by consent of parties in interest to payment, 284. statute of limitations strictly construed, 284. statute of limitations applies to claims determined only on decedent's death, 284-5. when notice of rejection given effect is to compel suit on, 283. otherwise tried on judicial settlement, 284. suit on claim not due when rejected, 284. suit on claim of infant when rejected, 284. when suit on results in nonsuit, new action, 284. once rejected cannot be presented in another form, 284. l^ estoppel, 282. against simple deposit with representative, 282. jurisdiction of surrogate to determine, 281. representative should plead anything in, 281. by statute of limitations, 281. for service or employment, 282. for legal services, 282. for rent, 282. under decree for sale of realty, 282. admission by representative not prevent objections thereto on accounting, 278. burden of objectant on accounting to show impropriety of, 278. only if against estate or representative, 276. not if against himself individually, 276. reasonable time to determine on, 277. in writing if before accounting, 277. 1367 INDEX Eefcrences are to pages. DEBTS OF AOT>. CLAIMS AG-AINST DECEDENT— comimued. admission by representative — continued. when may be, 277. retention and silence as, 277. by one of severs,! representatives, 277. by one before appointed representative, 277. compromise by court authority prerequisites to, 279. object to protect representative, 279. not prevent objections on accounting, i 279. order discretipnary with surrogate, 279. no order if representative should exercise own discretion, 279. without court authority, , power and duty of representative, 278. cannot be set aside except for bad faith and fraud, 278. suppression of fact as fraud, 278. notice published to creditors to present for protection of representative,, 273. when may be, 273. time limit for presentation, 273. place of publication, 273. vouchers and affidavit required, 273. purpose and eflfect of affidavit, 273. error of in published name of decedent, 273. failure to present bars claim against personalty when representative knew of claim and distributed, 285. to whom notice require presentation,,, 273. what claims presented, 273. relieves representative from liability, 273. distribution by representative having knowledge of claim, 274. representative distributing also next of kin, 274. publication by temporary administrator, 274. payment source of personalty, 299. marshalling assets, 299. order of personalty used, 299. of wife's from husband as her administrator, 30(X of wife's from surviving, husband's estate, 300. preferences in by law and common law,, 296. taxes assessed before death, 296. municipal assessments, 296. judgments docketed and decrees entered, 298. miscellaneous, 299. recognizances, bonds, sealed, instruments, notes, bills and unliqui- dated accounts and demands, 299. 1368 INDEX Eeferences are to pages. DEBTS OF AND CLAIMS AGAINST DECEDENT— confmued. payment — continued. duty of representative, 296. order of, 296. deferred to funeral and administration expenses, 296, preferences, 296-7. by compulsion in action • against devisees or heirs of testator order of payment and preferences, 314. when defendant has paid claim of class prior to plaintiff's, 314. Infancy does not delay action, 314. ■when defendant liable in several capacities, 314. method of apportioning defendant's liability, 315. ■when proceeding for sale, etc., of realty in surrogate's court pending, 312. action must be joint, 312. damages and costs apportioned, 312. what plaintiff must prove, 313. to what exteint defendants liable, 313. contents of complaint, 313. recovery collectible from aliened realty, 313. liable for debts by contract or specialty, 311. heirs or devisees of devisees or heirs not liable, 311. not paid because against heirs instead of devisees, or vice versa, 311. when will charges debt on realty, 312. when must be brought, 312. gainst legatees, kin, husband or wife of testator when defendant takes in several capacities, 309, 310. legatees of obligor on bond secured by mortgage, 311. to what extent defendant liable, 309. failure to present claim no bar, 309. joint or several action, 309. apportionment of damages and costs, 310. what plaintiff must prove, 310. order of liability and preferences, 310. when demands of prior class unsatisfied, 310. ■gainst heirs of intestate damages collectible from realty descended, 308. order of liability and preferences, 308. when defendant has satisfied demand of class prior to plain- tiff's, 308. infancy of party not delay, 309. defendant taking in several capacities, 309. limitation within which action brought, 306-7. if proceeding pending in surrogate's court for sale, etc., of realty, 307. 1369 INDEX References are to pages. DEBTS OF AND CLAIMS AGAINST DW^EBENT— continued. payment — contimted. by compulsion in action — continued. against heirs of intestate — continued. joint only, 307, apportionment of damages and costs, 307. what plaintiff must show, 307. form of complaint, 308. for debts on simple contract or specialty, 306. extent of liability, 306. heirs or devisees of heirs not liable, 306. not fail because defendants got property, as heirs instead of devisees, and vice versa, 306. against husband, wife and kin of intestate accounting not prerequisite, 306. order of liability and preferences, 305. when defendant has paid liability in prior class to plaintiff's, 305, defendant liable in several capacities, 305. posthumous child's liability, 306. recovery limited to defendant's share in estate, 304. on what debts maintainable, 304. neglect to present claim no bar, 304, joint or several action, 304. costs, 305. in equity when long time before claim became due, 304, by compulsion in surrogate's court by account of representative of mortgagor, 301. sur iite's jurisdiction, 301. join, interest of representsttive in claim not affect jurisdiction, 301. jurisdiction confined to claims against decedent, 301. procedure in force when collection sought governs, 301. petition who may present, 302. when presentable, 301. contents, 302. citation when issued, 302. to whom issued, 302, contents, 302. dismissal or direction of payment, 303. payment only if not prejudicial to other creditors, 303, protection to representative of order to pay, 303. answer must show defense, 303. effect of statement of claim in account, 303. by temporary administrator petition, 303. citation, 303. 1370 INDEX References are to pages. DEBTS OF AND CLAIMS AGAINST D'ECEDENT— continued. payment — contimted. by compulsion in surrogate's court — continued. by temporary administrator — contirmed. when citation issuable, 303. proceedings upon petition, 303. order of payment, when made, 304. payable from life insurance of decedent, see "Insurance." what claims presentable all kinds, 276. if against decedent or representative as such, 276. not against representatives on own contract, 276. double amount of claim presented in life, 276. order by husband to pay wife in suit against him, 276. when claims may be presented, 274. when presentation not made according to notice, 275. proper method of presenting, 275. affidavit in support of claim, purpose of, 275. how precisely claim must be stated, 275. service of claim on one of several representatives, 275. claim must be presented even if representative has knowledge of it, 276. proof of burden when representative pleads statute of limitations, 294-5. when provable in bankruptcy of decedent, 295. what satisfies burden on claimant, 295. of contest, when about representative's personal claims, 295. claim of representative on settlement of account only, 293. whether as representative or individually, 293. not in action, 293. contest between, and any party to accounting as' to debt from decedent to, triable, 293. of representative not payable by co-representative, 294. rules of evidence, 294. examples of -sufficient proof, 294. by legatees effect of legacy by creditor to debtor, 293. effect of legacy in lieu of dower or exemption, 293. effect of bequest of mortgage to mortgagor, 290. by relatives for services, etc., 291. rules of evidence, 291. dependent on whether lived or came to live with decedent, 292. when adopted child relative, 292. effect of finding evidence of, in debtor's possession, 290. effect of bequest to claimant, 291. when possible before referee, 291. 1371 INDEX References are to pages. DEBTS OF AND CLAIMS AGAINST DECEDENT— oowtinMed. proof of — continued. rules of evidence, 291. strong proof required, 288. what prima facie protects representative in paying, 288. effect of withholding during decedent's life, 288. effect of agreement by decedent with claimant that no light exist till hia death, 289. for board, attendance and service, 289. by partner for liquidating partnership, 290. for professional services, 290. rejection time of, determines running of statute, 279. may be by representative or surrogate, 279. by written notice only by representative, 280. objection on accounting if sustained constitutes, 280. to be unequivocal barred by statute, 280. by representative's attorney, 280. sufficient service of notice of, 281. service of notice of, by mail, 281. by notice to attorney, 281. revivor and admission of not when once barred, 286. kept in force by representative, 286-7. from inclusion in inventory, 287. by surviving partner's inclusion of, in firm list, 287. DECEDENT does not include one civilly dead, 3. see "Specific Titles." DECREES AND OEDEES amendments by surrogate after appeal, 911. nimo pro time to change cause of revocation of letters, 911. to insert things mistakenly omitted, 911. to require bond, 911. to be separately stated, 911. distinctions and definitions, 910. enforceable as in supreme court, 910. distinct, for probate and letters testamentary, 910. for bill of particulars, 910. docketing where, 920. by whom, 920. effect of, 921. in general, 921. 1372 INDEX References are to pages. DECREES Am) ORDEElS— continwecJ. effect in general conclusive as to matters embraced in, 920. conclusive against parties of whom jurisdiction had, 920. of foreign probate decree, 920. when minor a party, 920. concludes as to status of woman seeking as widow revocation of an- other's letters, 219. enforcement by service, 921. how served, 921. to set aside exempt property, 246. opening, vacating, modifying, setting aside, entering nwnc pro tunc in general not for one who has accepted benefits cannot restore, 913. not if applicant's fault, error not corrected originally, 913. for heir or kin not pited on probate, 913. by legatee to revoke probate, 913. administrator of life tenant to revoke probate, 913. one not party to probate, 913. to revoke probate had in supreme court, 913. of probate because of nonresidence of testator, 913. of probate because persons cited individually not also cited as representatives, 914. not when appeal proper remedy, 919. error of substance, 919. to strike out allowance of commissions, 919. mistake of law, 919. error of law, 919. erroneous construction of will, 919. improper execution and proof of will, 920. grounds in general, 914. fraud, newly discovered evidence,* clerical error or other snfSeient cause, 914. point raised on original hearing, 914. filing notice of appearance after retainer terminated, 914. that one appointed administrator was not husband, 915. to allow attorney-general to contest for unknown kin, 916. for clerical error after great delay, 915. what is "other suflScient cause," 915. untrue statement working injury, 915. appointee a dummy, 915. adoption when no notice to parent, 915. fixing transfer tax, '915-6. incompetency of party when cited, 916. parties cited told presence unnecessary, 916. heirs and residuaries not parties to appeal, 916. allegation that only one person interested false, 916. 1373 INDEX References are to pages. DECREES AND ORDERS— co»*t>iMed. opening, etc., — continued. grounds — contiivueA... one cited failed to appear because sick, 916. to allow judgment creditor to intervene, 916. laches, loss of books, etc., 916. guardian appointed was surrogate's brother, 917. to adjust commissions under agreement, 917. change of law as to admissibility of evidence, 917. failure of guardian to object to erroneous disbursements, 917. failure to recite papers used, 917. ; of probate under agreement made as to infant's share, 917. jurisdiction, 911. surrogate, as and how supreme court would, 914. at instance of one failing to appear, 911. rule in force when decree rendered governs, 912. for infant, only within one year after majority, 912. not when all parties represented on hearing, 912. not for major when entered while minor if represented, 912. to allow a supplemental account, 912. not when precise point raised before, 912. when barred , no limitation of time, 918. to direct payment to assignee 10 years after assignment, 918. after affirmance on appeal, 918. after appellate division has refused, 918. delay, 918. satisfaction how made, 921. certificate of authority of officer taking, acknowledgment to, 921, DEED guardian by, see "Guardian^." DEFINITIONS "administration expenses," 220. administrators ancillary, 97. in chief, 88. ancillary c. t. a., 99. co-admlnistrators, 100. c. t. a., 89. d. b. n., 90. d. b. n. c. t. a., 94. adoption, 18. adoption voluntary, 18. advancement, 61. ancestor, 48. 1374 INDEX References are to pages. DEFINITIONS— ctmttnwtT. ancestor, in connection with exclusion from inheritance of haUbloods, 60. assets, 235. bequest, 2. co-aulministratoTS, 100. compulsory accounting, 349. costs, 220. curtesy, 46. decedent, 2. devise, 2. devisee, 2. distributee, 3. distribution, 3. domicil, 7. dower, 34. drunkenness, 162. executors, 2. in chief, 526. limited executor, 528. ancillary executor, 528. foreign executor, 530. supplementary executor, 531. co-executor, 531. felons, 160. final account, 349. foreign administrator, 99. guardian, 2. heirs, 48. heirs at law, 3, 48. improvidence, 161. incompetency, 161. infants, 2. intermediate account, 349. intestate, 3. judicial settlement, 349. "lawful issue," 76. legacy, 2. legatee, 2. limited administrator, 94. lineal descendant, 49. next of kin and kin, 3, 70. public administrator, 102. quarantine, 33, 65. real property, as used in statute of descents, 49. residence, 7. statute of descfent, 3. statute of distribution, 3. subscribing witness to will, 507. 1375 INDEX Beferences are to pages. DEFINITIONS— corttimted. surrogate's witness to will, 508. temporary administrator, 95. testamentary guardian, 2. testate, 2. voluntary accounting, 349. will in general, 1, 436. in general, 1, 436. joint will, 437. mutual will, 437. nuncupative will, 438. holographic will, 438. duplicate will, 438. DEMONSTRATIVE LEGACY see "Legacies'' and "Definitions." DEMURRER none in surrogate's court, 869. motion to strike out in lieu of, in surrogate's court, 869. DEPOSIT by administrator in own name a misdemeanor, 11-8. of estate securities to reduce penalty of administrator's bond, 202. in banks and withdrawal, see "Collection" and "Assets." DEPUTY CLERKS see "Clerks of Surrogates." DESCENDANTS distribution to, see "Distribution" descent to, see "Descent." DESCENT general theory of, 48. what descends, 49. determined by statute in intestacy, 48. determined by lex loci rei sitw, 49. rules of may be changed, 57-8. to adopted children from institution same as natural child, 57—8. determined by law at foster-parent's death, 57-8. from foster-parent tjot through foster-parent, 57-8. not from spouse of foster parent, 57-8. not to defeat remainder conditioned on foster parent dying without heirs, 57-8. from blood parent, 57-8. from foster parent, 57-8. 1376 INDEX References are to pages. DESCENT— conttJMted. from adopted person in general, 56-7. as if legitimate except as to foster parent's subsequent spouse, 56-7. froTu foster parent though adopted before statutes, 57-8. from adopted adult, 56-7. not to blood parents except on adoption by surviving or divorced par- ent's spouse, 56-7. advancement definition, 61. reckoned part of inheritance, 61. see "Advancements'' to after-born descendant or relative, 55. from alien in general, 58. allowed, 58. statute allowing liberally construed, 58. not to descendant of alien heir, 58. to alien and inheritance by alien, 59. in general, 59. subject to conditions imposed by statute, 59. for 6 years after declaring intent of citizenship, 59. failure to file declaration of citizenship, 59. alienage of some heirs barring inheritance by others, 59. minor alien female heirs of alien who had declared intent of citizen- ship, 59. male heirs of alien who had filed declaration of citizenship, 59. women married to United States citizen, 59. ancestor, includes lineals, collaterals and others, 49. to brother or sister and descendants thereof descendants get share of deceased parent, 51. in reversion of mother but no father, 51. for life when no father or descendant but mother, 51. in reversion if mother but no father 51. in fee if no father or mother or lineal descendant thereof, 51. to collaterals in general, 52. equally to those of equal degree, 52. of unequal degree, 52. under common law in general, 64. inheritance never lineally ascends, 64. male issue admitted before female, 64. of two or more males in equal degree oldest inherits, 64. of two or more females in equal degree all inherit, 64. lineal descendants represent ancestor, 64. on failure of lineal descendants, collaterals, 64. N. Y. E. & S.— 87. 1377 INDEX References are to pages. DESCENT— contrnwed. under common law — coniinued. of blood of first purchaser inherit among collaterals, 64. male preferred to female stock, 64. to father in general, 50. barred if mother alive on whose part inheritance came, 50. in fee when no descendants, brothers or sisters, but inheritance csune on mother's part, 55. when no descendants but inheritance came on mother's part, 50. when no lineal descendants, 50. to father's parents if inheritance came on mother's part when no brother or sister of father or mother, or descendant of such mother or sister, and no mother's parents, 53-4. to father's brothers and (or) sisters and descendants thereof if came on part of mother but no brother or sister of mother or descendant thereof, 53-^;. to father's and (or) mother's relatives , according as came from relative of, by gift, devise or descent, 53-4. to heirs of both father and mother when came. from stranger, 53-4. ' . to father's and mother's brothers and sisters and descendants thereof as if .brothers and sisters of intestate, 53-4. when no qther heir and inheritance came on part of either father or mother, 53-4. to relatives and half-blood in general, 60. test of half-blood or whole blood, 60. equally with whole blood except when inheritance came from ancestor, 60. excluded if not of blood of ancestor in general, 60-1. who is sucli "ancestor," 60^1. heirs, or heir^ at law, definition, 48, to deceased husband's heirs when came to wife from husband and no descendant, father, mother, brother, sister, descendant of brother or sister, imcle, or aunt, cousin, etc., 55. to illegitimate not from ancestor of mother, 56. from mother if mother leaves no lawful issue, 56. from illegitimate in general, 55. to mother, 55.' to mother's relatives only if mother dead at intestate's death, 55. to lineal descendants in general, 49. definition, 50. 1378 INDEX References are to pages, DESCENT— coMtmwetJ. to lineal defendants — continued. of unequal degree, descendants of dead take dead's share, 50. of equal degree take equal parts, 49. legitimate child of deceased's illegitimate daughter not deceased's descendant, 50. to mother in general, 51, in fee if no father, brother, sister or descendant of brother or sister, 51. for life when brother, sister or descendant of brother or sister, 51. of inheritance on part of mother in general, 50, when a "gift" so comes, 50, when inheritance so comes, 50. to mother's parents if inheritance came on mother's part when no brother or sister of father or mother, or descendant thereof, 53-4. to mother's brother and (or) sisters and descendants thereof if came on part of mother, 53-54. sole or in common to one person is sole, 61. to several persons is in common, 61. statute of definition, 3. does not affect curtesy, 46. to uncle and (or) aunt and descendants thereof as if intestate's brothers and sisters, 53-54. when no descendant, father, mother, brother, sister or descendant of mother or sister, 53-54, to deceased wife's heirs when came to husband from wife and no descent, father, mother, brother, sister, descendant of brother or sister, uncle or aunt, cousin, etc, 55, DEVISE definition, 2. in lieu of dower, when bars dower; 43. of realty condemned in devisor's life does not carry proceeds, 599. DEVISEE liability for debts of and claims against decedent, see "Debts of and claims against decedent." actions by and against, see "Actions." DISAPPEARANCE resulting in presumption of death, 4. resulting in presumption of time of death, 6. 1379. INDEX , Kefereuces are to pages. DISCOVERY in general allowable When one has knowledge or information as well as posses- sion, 249. title or right of possession may be tried, 249. proceedings are constitutional, 249. by public administrator, 254. decree when and to what effect, 253. not for delivery by deposed representative of moneys paid for ex- penses, 254. not for delivery when indebtedness only appears, 254. hearing or trial when person to be examined sworn, 252. of issue of title or right to possession, 252. ordinary rules of evidence govern, 252. not if claim of third person only alleged, 252. when before surrogate and when before jury, 252-253. title to bank deposit triable, 253. when title claimed as surviving partner, 253. when banlc compelled to disclose what decedent's deposits were, 253. order to attend takes place of citation, 251. must issue if reasonable grounds, 251. not only to give information for suit, 252. when returnable, 252. service, 252. petition to what court, 250-261. who may make, 251. need not be definite, 251. cctntents, 251. accompanied by affidavit or evidence in suppott, 251. dismissed if does not show two executors if there are, 251. DISHONESTY as disqualification for administration, see "Appointment" as di9qualificaj;|»n of Executors, Testamentary Trustees, and Guardians, see "Such Titles." DISMISSAL see "Proceedings in Surrbgates' Courts," and "Actions." DISPOSITION OF REALTY of infant, see "Guardians." supreme court cannot approve sale by assignee of executors, 316. administrator's authority in general none in general, 316. 1380 INDEX Beferences are to pagea. DISPOSITION OF KEALTY— continued. administrator's authority in general — continued. when also mortgagee may buy in on foreclosure, 318. cannot collect rents save by order, 316. cannot spend personalty on realty, 316. when may sue personalty for benefit realty, 316-317. may do anything except sell, by order of surrogate, 316-317. to fulfil decedent's contract to convey power of executor or administrator, 318. deed must recite contract, 318. proceeds are personalty, 318. representative may extend time of buyer, 318. contractee may petition for representative's deed, 319. citiation on petition for confirmation, 319. decree on confirmation, 319. eflfect of decree confirming, 319. without court authority, 318. by court authority, 319. petition for court's authorization, 319-320. petition for confirmation of representative's unauthorized deed, 519. confirmation of representative's deed on his accounting, 319. to pay debts, liens, expenses, transfer tax, charged legacies for wliat liens, 329. not for mortgage liens, 329. for what funeral expenses, 329. for what administration expenses, 330. for what transfer tax, 330. for what legacy or charged debt, 330. creditors creditors' standing in proceeding, 328-329. not allowed when only debt is offset, 329. creditors whose claims are expressly charged can resort to supreme court only, 329. what debts interest becoming due after decedent's death, 328. costs in partnership action, 328. costs in action by decedent continued by representative, 328. widow's claim for acceptance in lieu of dower, 328. established debts only, 328. decedent's own debts or debts charged on specific realty or interest therein, 327. of one given money to pay off mortgage dying without doing so, 327. judgment against representative, 328. referee's fees or disbursements of action against representative of deceased debtor for debt, 328. 1381 INDEX Eeferences are to pages. DISPOSITION OF 'REALTY— continued. to pay debts, liens, expenses, transfer tax, charged legacies. — continuea. when barred exempt from levy and sale, 327. land purchased with pension money while pensioner lives, 327. when sale, mortgage or lease permitted, 322. in case of infant, incompetent, absent or unknown distributee, 323. only possible when accounting begun 18 ;months or less from grant of administration, 323. application for, separate from accounting, improper, 324. proceeds of partition subject to, 324. when devised expressly charged with debts or subject to power of sale for payment of debts, 324. not when valid and sufficient power under will, 325. power under will must be imperative to prevent, 326. power under will exercisable; to pay representative's own claim, 326. examples of what are sufficient testamentary powers, 326. not when testamentary power already exercised, 326-7. ■ determination of insufficiency of personalty a prerequisite, 324. if personalty sufficient but squandered by representative, 325. what administrator d. b. u. seeking sale must show, 325. debt due by insolvent administrator not considered in determining sufficiency of personalty, 325. order or decree of sale, etc. to protect rights of unknown party, 325. to direct payment of proceeds of sale in another court paid into surrogate's court, 335.' when made, 333. filing bond to avoid sale, etc. 333. refusal of, makes purchase pending appeal at buyer's risk, 333. contents, 333. order in which realty to be sold, 333. dower, curtesy, tenancy, etc., provided for in, 334. to determine rights of distributees, 334^5. adjournment of settlement of account pending proceedings on order of sale, etc., 335. bond of representative unless proceeds deposited, 335. requisites of, 335. Insolvent administrator by giving may sell, etc., 335. of successor, 336. widow's dower and exemptions to be provided for in order of sale, etc., 334, not prejudiced by sale, etc., 334. how value of, ascertained, 334. interest on, value of, 334. 1382 INDEX Eeferences are to pages. DISPOSITION OF 'KEAL.TY— continued. to pay debts, liens, expenses, transfer tax, charged lega/cies — continued. accounting by representative adjourned pending proceedings for sale, etc., 335. supplemental account on execution of order of saie, etc., 336. completion of settlement of account, 336. decree disposing of proceeds of sale, etc., realty part of judicial settlement, 336. decree establishes rights of those entitled to realty, 336-7. purchaser's title clear of dower, curtesy, estates when order' so provides, 334. if creditor is purchaser claim allowed on price, 337. how affected if purchased from heir or devisee, 337. proceeds not to be paid out save by court direction, 337. mortgagee's title how affected by sale, if mortgagor was heir or devisee, 337. •guardian for infant party due appointment presumed, 338. irregular if not appointed, 338. what may be sold, 331. proceeds of partition, 331. growing crops, 331. realty bought with pension money, 331. mortgage foreclosure surplus after mortgagor's death, 331. insurance moneys on realty, 331. notice of parties to accounting have, 331. others brought in by supplemental citation, 332. to creditors, 332. to tenants in possession, 332. remaindermen unborn, 332. hearing allegations to be proven, 332. statements in accounting sufficient proof, 332. who may show necessary facts, 333. heirs and devisees may contest debts, 333. judgment against representative presumptive evidence, 333. proceedings on order execution of order of sale, etc., 336. report of proceedings under order of sale, etc., 336. confirmation, rejection, extension, re-execution of order of sale, 336. successor may execute order of sale, etc., 336. to distribute when allowed, 330. executor's authority no advice by court as to sale when sale unnecessary, 317. personally liable for meddling without court or testamentary author- ity, 317. 1383 INDEX Beferences are to pages. DISPOSITION OF -REALTY— continued. executor's authority — contirmed. no allctwanoe for expenses on realty if no court or testamentary power over, 317. when directed by will to convert, 317. when discretionary power to sell, 317. jurisdiction of surrogate in general, 315. must first. obtain jurisdiction of persons, 315. what surrogate hag, 315. to set. aside sale, , direct resale, and repayment of purchase price, 315. to order one in possession of lands to surrender, 316. to determine validity of creditors' claims in proceeding to sell to pay debts, 316. to determine validity of debts of representative, 316. possession, management and collection of rents no authority in executor or administrator generally, 321. petition to enable, 321. what petition must show, 321. citation, 321. grant or refusal of petition, 322. representative to hold rents till accounting, 322. by temporary administrator, 322. rights of beneficiaries election by all entitled to propeeds to take realty, 343. election of legatees to take land on which legacies charged in lieu of legacies, 343. ,,. enjoining sale when ample personalty, 343. of heir to rents and profits until power of sale exercised, 343. estoppel of one consenting to sale, 344. devisee takes subject to exercise of power of sale, 344. creditor may compel in equity exercise of power of sale, 344. under testamentary power i . who may execute one qaulifying of several named executors, 338. surviving executor, 339. to be "jointly" exercised, 339. when power is to "divide," 339. life tenant named executor, 339. by court's appointee on ri^fusal to act, 339. discretionary and mandatory, 339. extinguished by failure, or accomplishment of purpose of power, 339 extinguished by deed of decedent in life, 340. may be at public or private sale and on discretionary terms, 340. limitation to cash or credit sale forbids exchange, 340. to loan or advance heirs, 340. ' when discretionary power must be exercised, 340. to sell does not permit mortgage, 340. 1384 INDEX References are to pages. DISPOSITION OF REALTY— contMiwed. under testamentary power — continued. to distribute and avoid partition, 340. loss from delay in sale, 340. remedy against executor improperly executing, 341. equitable conversion results from direction to divide indivisible realty, 341. results if necessary to accomplish intent, 341. results if time of sale only discretionary, 342. not if power discretionary, 342. examples of, when power discretionary aiid when imperative, 342-3. DISTRIBUTEE definition, 3. DISTRIBUTION decree for, on accounting, see "Accounting." statute of definition, 2. theory of, 70. applicable on failure to bequeath by will, 70. what law determines and governs, 71. domiciliary law determines, 71. proceeds of action for death, 398. by public administrator, 398. not by receiver in supp. pro. against executor, 398. relationship necessary to in general, 71. illegitimate nephew cannot take by, 71. proceeds of sale of realty under testamentary power are subject to, 71. by administrator appointed pending appeal, 102. to whom to mother of fatherless infant, 402. creditors of assigned partnership, 403. to consuls for foreign kin, 403. to adopted person from foster parent though adopted from institution, 78. but must be legal adoption, 78. but not from subsequent spouse of foster parent who adopts child, 79. not to defeat remainder rights conditioned on foster-parents' death without heirs, 78-9. determined by law at foster parent's death, 77-8. to adopted person from blood parent affected by adoption, 78. from adopted person as though were blood child of foster parent, 77. 1.385 INDEX References are to pages. DISTRIBUTION— cowtireMed. ; ■ from adopted person — continued. adoption by spouse of foster parent does not change child's next of kin, 77. to foster parent allowed, 77. not prejudiced by adoption by spouse of foster parent, 77. to blood parent not allowed, 76. but not prejudiced by adoption by spouse of blood parent, 76-7. as affected by advancements^ see "Advancements" when barred estoppel by release, 402. by change of relationship as distributee to one as creditor, 402. 1 1 by verbal assignment to administrator, 402. compulsory by comptroller, 402. by special proceeding-,. ; ., by petition, not by motion, 401. by ancillary administrator when petitioner indebted to estate in domiciliary jurisdiction, 401-2. when petitioner has been paid, 402. by assignee of distributee, 402. . when 3 months since letters and no notice to creditors pub- lished, 400-1. petition, 401. dismissal or direction to pay, 401. bond by distributee, 401. when distributee in need for support or education petition, 401. ',.-■- i, , I fiitation, 401. when petition granted, 401. decree and distributee's bond, 401. by action one year after granj; of letters, 400. cause of action accrues when account settled, 400. if guardian brings action must give bond, 400. widow may bring action, 400. when after born descendants and next; of kin take, 75. among collaterals , . when grandmother, aunt, cousin or uncle cannot take, 81. when nephews and grandnephev^s, all take, 81. when grand nephew or great grandchildren: first cousins cannot take, 81. when cousins: descendants of deceased cousins cannot take, 81. representation admitted among brothers' and sisters' descendants, 80. not admitted after brothers' and sisters' descendants, 80. 1386 INDEX Beferences are to paees. DISTRIBUTION— oontMitted. when children and descendants take in general, 73. when no widow, take all, 73. definition, 70. to descendants and next of kin of unequal degree take according to respective stocks in general, 80. brothers' and sisters' descendants take before uncles and aunts and their descendants, 80. first cousins take before second, 80. uncles and aunts take before cousins, 79. to descendants and next of kin of equal degree take equally, 79. mother and half-sister take equally, 79. to relatives of half blood representatives of, take as do representatives of whole blood, 79. take equally with whole blood of equal degree, 79. when child of deceased husband or wife take: no husband, wife, child, representative of child or next of kin, 75. from illegitimate in general, 76. relatives on part of mother, but no widow, descendant or mother, 76. mother, but no widow or descendant, 76. to illegitimate in general, 76. after intermarriage of parents as if legitimate, 76. except as to estate or interest vested or trust created before mar- riage, 76. illegitimate but no lawful issue, 76. not from mother's kindred, 76. jurisdiction . of surrogate to enforce, 398. to credit representative on accounting with excess payment of distribu- tive share, 398. stay of by surrogate pending appeal from decree of enjoining, 398. stay by supreme court of non-resident's estate, 399. separate certificate for each distributee on decree for payment, 399. of married women's property if leaves descendants, 71. when next of kin take in general, 74. representatives of deceased brothers and sisters take collectively shares of parents, 74. brothers and sisters take full shares, 74. brothers, sisters and descendants of deceased brothers and sisters, but no widow, child, descendant, father or mother, 74. 1387 INDEX References are to i)ages. DISTKIBUTION— comfmM6d. when next of kin take — continued^ all brothers and sisters but no widow, child, descendant, father or mother, 74. mother, brother, sister, nephew and niece take, 74. mother and half sister take equally, 74. mother, brothers, sisters or representatives of brothers or sisters, but no widow, child, descendant or father, 74. mother, but' no wid(5w, child, descendant, father, brother, sister or representative of brother or sister, 74. father, but no widow, child or descendant, 74. no widow, child or representative of child, next of kin take all, 74. when next of kin of deceased husband or wife take: no husband, wife, child, representative of child or next of kin, 75. receipt for may be recorded in court, 403. effect of recorded receipt for, 403. sale, mortgage or lease of real estate for purposes of, see "Disposition of Realty" set-off of debt or obligation to decedent, 403. interest on administrator's share as individual, 403. time of not in advance on motion in accounting, 400. not in any event till 3 months from letters, 399. at any time if distributee in need for support or education, 399. by administrator c. t. a. * not till publication for claims completed or one year from let- ters, 399. when will or decree or need requires earlier payment, 399. specific bequests, 399. bond on early distribution or payment, 399. not till debts and administration expenses paid, 400. when widow takes no descendant, parent, brother, sister, nephew or niece, 73. when barred by divorce, 72. by divorce for her fault, 72. by provision of husband's will in lieu of dower, 72. by provision In husband's will, 72. when widow and descendants take, 72. when widow and next of kin take in general, 73. widow, mother, brother, sister, representative of brother or sister but no child, representative of child, or father, 73. brother, sister, nephew or niece but no descendants or parent, 73. no children or legal representatives thereof, 73. 1388 INDEX References are to pages. DISTRIBUTIVE SHARE authority of temporary administrator to pay, 96. of husband in wife's personalty, see "Husband's title to wife's personalty." of widow, when barred by testamentary provision, 42. DIVIDENDS as assets, see "Assets" when' principal and when income, see "Principal and Income." DIVORCE bars dower in land later acquired by, 39. bars widow's dower, 38-9. final decree only, bars, 39. for husband's fault does not bar widow's dower, 39. in another state, how affects dower, 39. of woman does not prevent release of dower, 45. as bar to distribution to widow of husband's personalty, 72. as affecting woman's domicil, 11. deprives husband of right to personalty of alleged second wife, 69. marriage after, 16. DOCKET of decrees and orders, see "Decrees and Orders." of judgments, see "Actions." DOMICIL definition, 7. distinguished from residence, 7. of incompetent in general, 12. is that of committee, 12. ability to select, 12. determined by appointment of committee, 12. of infant in general, 12. after parents' death, 12. change of, 12. of sister state adjudicating domicil, binding, 8. length of residence to establish, 8-9. married woman, 3 0-11. presumption of, for purpose of succession, 8. proof of in general, 8-10. I'rom one state to another, 0. of woman, 10. separate, of married woman, 10. of soldier, 13. what necessary to constitute, 7. 1389 INDEX References are to pages. DOMICIL — continued. of unmarried woman, 10. of widow, 10. of woman, 10. DOWER definition, 34. essentials of, 34. statute of descents does not affect, 34. test of, 34. on sale, etc., of real estate, see "Disposition of Realty." in what exists in general, 35. when husband seized of estate of inheritance, 36. in defeasible fee, lost on defeasance, 36. in lands title of which in husband without possession or adverse pos- session, 36. in vested remainder on life estate, 36. in lease, 36. in grass, fruits and crops, 36. not in land acquired by man after divorce, 40. in lands husband contracted to purchase and took in another's name, 36. aliening of husband's interest in contract of purchase defeats, 35. death of remainderman-husband before life tenant defeats, 35. only in lands of which husband seized of estate of inheritance, 35. not in lands taken from husband by act of sovereignty, 35. in exchanged lands in general, 36. when lands are "exchanged," 36-7. widow must elect, 36. in mortgaged lands mortgaged by husband before marriage widow entitled to dower in equity, 37. widow entitled as against all except mortgagee and claim- ants under him, 37. contribution to interest on, to entitle widow to dower, 37. when widow joins in mortgage, 37. when widow joins' in deed intended as mortgage, 37. mortgaged to husband, 37. mortgaged by husband, 37. purchase money mortgage, 37. in partnership realty, 38. in trust estate, does not exist, 36. when barred by provision after marriage, in general, 41. one year after husband's death if no election, 42. not by election of committee of incompetent widow, 42. by provision in will in lieu of, in general, 42. 1§90 INDEX References are to pages. DOWER— continued. when barred — continued. by executrix-widow selling land, 44. by widow's consent to sale of realty, 45. by wife's adultery, 39. by jointure in general, 38, 40. bow election of widow takes place, 40. election, when deemed to be made, 40. by provision for woman before marriage in general, 40. when election made and how, 40. assent, to provision must be fairly had, 40. examples of, 41. if not accepted, must elect within one year of husband's death, 41. by election of widow to take provision before marriage, 40. on death of widow before time to elect is up her representatives cannot elect, 41. by divorce for widow's fault, 38, 39. not by laches, default, covin or crime of husband, 38. not by judgment or decree confessed by husband, 38. not by divorce for husband's fault, 39. death of husband without issue, when holds estate on such condition, defeats, 35. death of husband without fulfilling conditions of his title defeats, 35. how affected by divorce in another state, 39. election between, and other provision by will in lieli of, .34. provision by will in lieu of election to take efifect, 44. cannot be retracted, 44. release of in general, 45. in husband's life by joining in deed in general, 45. when wife an infant, 45. to husband, 45. by agreement with him, 45. agreement for, 45. by woman divorced, 45. by attorney-in-fact, 45. DRUNKENNESS definition, 162; as disqualification for administration, see "Appointment." as disqualification for Executor, Testamentary Trustee or Guardian, see such titles. 1391 INDEX Keferences are to pages. DUPLICATE WILLS see "Wills." ELECTION of widow in lieu of dower between dower and provision by will in lieu of, 34. must be made in one year from husband's death, 42. jointure, 40. provision before marriage,, 40. provision after marriage,, 41. by representatives of widow dying within year of husband, 41. by committee of incompetent widow, 41. of provision in will, by widow, effect, 44. EXAMINATION in adoption proceedings, see "Adoption'' of administrators and executors, see sucli titles. EXCEPTIONS only taken on trials of issues of fact, 909. same whether before surrogate or jury, 909. only taken to rulings of law, 909. to determination on challenge of jury, 909. to finding of fact not sustained by evidence, 909. when taken, when jury and when no jury, 909. at and after trial and determination, 909. notice of, filing and form-, ,910. notice of, part of appeal papers, 910. reviewed on appeal, 910. to right of surrogate to award special guardian compenEation, 910. to report of referee to hear and determine, 910. EXCHANGED LANDS dower in, see "Dower" EXECUTION AND ATTACHMENT see "Actions." against co-administrators or co-executors, 142. in actions by administrators and executors, 138. on counterclaim against representative, 137. when to enforce decree, 921. against what enforceable, 921. contents and requisites of execution, 921. decree regarded as judgment for purpose of, 922. issues against individual property of representative, 922. eifect of, against representative, 922. prerequisites to issue against representative, 922. against representative's individual property, from supreme court, 922. 3392 INDEX References are to pages. EXECUTION AND ATTACHMENT— co/ttinMed. against representative for judgment for funeral expenses, 922. against income of trust fund, 922. for costs under decree, 922. for costs under negligence judgment, 923. when returned unsatisfied against representative personally, may go to equity against representative as such, 923. no proceedings supplementary to, allowed, 923. void when by limited representative, 924. EXECUTORS appointment and letters, see "Appointment." jurisdiction of surrogate's and supreme court, see "Jurisdiction." in general definition, 526. distinguished from testamentary trustee, 526. Investment, yearly payment of income, power to sell, makes trustee, 526. duties of, in general, 527. takes legal title to personalty, 527. only can collect, dispose of personalty, foreclosure, etc., 527. may employ own counsel, 528. checking account, with bank, 528. act to be done within specified time from issue of letters means from first letters, 528. burial and funeral expenses, 591. assets and personalty, 591. debts of and claims against decedent, 591. disposition of realty, 592. accounting, 592. actions by and against, see "Actions" ancillary definition, 528. characterization in letters not determinative, 529. same powers, etc., in his field as executor, 529. must transmit property to domiciliary state, 629. payment of creditors in this state, 530. must not allow domiciliary representative to take away assets to detriment creditors, 530. may transfer stock of nonresident corporation at New York o£Sce, 530. liable to account here, 530. has standing to sue as such here, 530. also trustee, legatee or devisee resignation as trustee not afifect powers as executor, 535. proceedings against in one capacity do not affect in another, 536. revocation of letters terjamentary no ground for holding liable a£ trustee, 536. when executor also residuary legatee, 536. when sole executor also sole devisee and legatee, 536. N. Y. E. & S.— 88. 1393 INDEX References are to pages. EXECUTORS— coM*tmMed. bond approval, who may give, 573. approval to be endorsed on bond, 573. executors must personally qualify, 573. what executors must give, 571. form, of executor of inadequate circumstances, 572. when required though will dispenses with, 572. form, of executor holding, etc., property for another, 572. form, of limited executor, 572. penalty, of ancillary executor, ' 672. when no bond required of ancillary executor, 572. not required when no objection made on appointment, 572. co-executors definition, 531. individual powers, disabilities, etc., 531. responsibility for others' acts, 531-2. one may act alone, 532-3. equal title to assets, books, etc., 532-3. signing account jointly as admission of joint liability, 534. suits inter sese, 534. recovery of debt due estate, 534. compensation, 627. debts debt of to decedent as assets, 243. debt of to decedent not released by. appointment in will, 243. debt of to decedent' tried like claim by him against estate, 243. debt of estate to not payable till established, 243. definition, 2. different ones appointed for diver's states power of testator so to appoint, 534. each appointee takes title in own jurisdiction, 534. duties of in each jurisdiction, 535. responsible for assets in own jurisdiction only, 535. objection to discharge of by legatees in another state, 535. expenses of, see "Expraises." foreign ' ' ■ definition, 530. must take out letters before courts will aid, 530. one of two taking out letters alone has standing, 531. may remove property without letters, 531. liability with bank for cheques to pay individual liability, 549. for unhappy settlement, 549. for transfer tax rebate, 540-50. for property in hands wheu, appointed, 550. for property received in another capacity, 550. 1394 INDEX References are to pages, BXBOUTORS— eontirwed. liability — oontimied. liability for interest see "Interest." on moneys kept from investing by proximate accounting, 546. when full rate not earned, 546. begins when legal duty to pay arose, 544. not for more than got unless negligent, 544. when delays in paying over money, 544. failure to set apart and reinvest legacy, 545. when interest small, allowed to hold from year to year, 545. corporate executor, 545. not on funds withheld to meet demands, 545. on note had funds to pay but did not, 545. on checking account, 545. liability for failure to sell stock exchange seat, 269. for failure to sell country seat, 269. liability for contribution as stockholders, 548. liability for debt from firm of which member to decedent, 549. liability for devastavit, 549. liability to persons not parties to account, 545. liability for interest on amount not paid pursuant to decree, 549, liability for investment when also life tenant, 549. Smited definition, 528. oath form, 571. filing, 571. before whom taken, 571. executors must personally qualify, 573. personal liability not on promise to pay debts of testator, etc., unless bound by 'Writ- ing, 548. as bailee, 548. for negligence as ordinary man would be, 548. for interest on deposit in bank in which holds stock, 548. for failure to defend claim, 548. protected by release, 548. not if act according to law at time, 548. powers before letters taking property into possession for safe-keeping, 536. paying funeral expenses, 53B. qualification real source of authority, 537. completing decedent's contract to purchase, 537. service of attachment upon, 537. accepting security from surviving partner, 537. contracts, agreements, debts when estate liable itself, 540. 1395 INDEX References are to pages. EXECUTORS— comtimMed. contracts, agreements, debts — continued. of decedent to buy realty enforceable by devisee, 540, rent, 541. descriptive words of representative capacity in, 541. bound individually if on new consideration for es-tate's benefit, 538. for services rendered executor, 539. endorsement, 539. lease, 539. with broker to find buyer, 539. signing notes, 539. extension of mortgage, 539. chattel mortgage, 539. powers pending appeal under letters from surrogate, has all powers save to sell realty undei testamentary power, 537. suit against to establish creditors' claim, 537. when appeal taken after letters issued, 538. testator's copartnership sale of deceased's interest to life beneficiary, 543. may require sale and accounting by surviving partner, 543. what time allowed for winding up, 543. how good will computed, 544. purchaser of surviving partner's interest bound to wind up as latter would be, 544. liability for interest earned on estate assets in business, 544. cannot continue save to convert, 541. under pmvcr in will, 541. individual liability for continuing without power, 542. liability as copartners with surviving partners, 542. liable for net profits or property diverted and interest, 542. no salary for running business, 543. only assets in business at death liable for firm debts, 543. liability for injury to one employed in continuing business, 543. new bond or sureties grounds, 573. petition who may make, 573. not needed by executor in accounting proceeding, 574. when may be made, 574. allegation of interest, 574. contents, 574. citation not necessary when sought in pending accounting, 575. when issues, 576. who to be cited, 575. contents, 575. 1396 INDEX References are to pages. EXECUTORS— contimted. new bond or anretie&—contimied. hearing, order or decree when sought in pending accounting, 575. in distinct proceeding, 576. revocation of letters on failure to file, 576. may transfer stock, 268. personal profit not allowed, 546. by voting themselves sum from corporation in which estate held stock, 546. surrogate cannot make executor return to estate salary from corpo- ration in which he held office and the estate stock, 546. unfair sale of corporate stock which was assets, 546. brokerage commissions, 547. when also beneficiaries, 547. personal purchase not allowed of trust property, 547. holds for estate, 547. proper if never took letters though named in will, 547. not from himself of securities for trust investments, 547. not of claims against estate, 547. as to transfer tax, see "Transfer Tax." revocation of letters testamentary jurisdiction of surrogate, 576. jurisdiction of supreme court, 576. when executor also trustee, 577. striking out objectionable matters from moving papers, 577. reference on dispute of allegations for, 577. by issue of letters to another, 577. without petition on citation, grounds, 577. grounds for petition disagreement with co-executors or beneficiaries, 580. refusal or neglect to obey order or law, 580. false suggestion of material fact to get letters, 581. happeni-ng of 'Contingency whereupon office to cease, 581. inadequate circumstances, 581. removal from state, 581. unauthorized investments, 578. improvident management or injury, 578. other misconduct, 578. dishonesty, 578. drunkenness, 578. improvidence, 578. want of understanding, 578. opening accounts in own name, 578. when unauthorized investments benefit estate, 579. failure to sell realty, 579. 1397 INDEX References are to pages, EXECUTORS— conttMMed. revocation of letters testamentary — contin/ued. grounds for petition — oontinued. leased premises^ 580. personal profit, 580. conduct prejudicial to estate, 580. in general, 578. legal incompetency or disqualification, 678. waste, 578. improper application of assets, 579. petition who may make, 582. contents, 582. must contain all grounds relied on, 582. citation issued in surrogate's discretion, 583. who to be cited, 583. contents, 583. hearing and decree effect of, when executor also trustee, 585. effect of, in general, 585. when powers cease, 585. hearing of right on citation's return, 584. decree revoking or dismissing, 584. kind of proof suflScient for revocation, 584. account and delivery of property, 585. decree not affect validity of executor's acts, 585. order suspending executor pending proceeding for when made, 583. service on executor, 583. binding from signature, 583. effect on acts of executor, 584. does not affect liability of legatee for property reeeiyed, 584. supplementary definition, 531. no power till qualifies, 531. effect of issuance of letters to, 531. when gets letters, 531. transfer tax, see "Transfer Tax." EXEMPTIONS on sale, etc., of real estate, see "Disposition of Realty." ' articles in which intestate had oi)ly undivided interest are exempt, 66. setting apart by compulsion petition who may make, 245. contents, 245. 1398 INDEX References are to page*. EXEMPTIONS— co»ttn«€cZ. setting apart — continued. by compulsion — continued, citation when issues, 246. contents, 246. decree may require personal payment by representative, 246. by statute to widow, husband and child property and money exempt, 244. no cash or property allowance in lien of non-existing specific exemptions, 244. conversion to recover, 245. right to passes to representative, 245. waived by return of inventory continuing, etc., 245. may be set apart on accounting if omitted in inventory, 245. in transfer tax, 122. to children, by statute not good if mother survives father, or father, mother, 70. in general, 70. apply to minor children only, 70. to husband, by statute, of wife's personalty, 67. to widow, by statute when barred by husband's will, 66. may be set aside on accounting if not set aside by appraisers, 66. not affected by appraisprs' failure to set aside, 66. good agannst everyone save administrator for purpose of inventory, 66. not in lieu of quarantine, 24. no money allowance (beyond $150) for non-existing exempt articles, 66. of what consist, 65. of personal property only if husband have family, 65. of personal property, 65. EXPENSES of administration what are, 220. include expenses of representative's bond, compensation foi' legal serv- ices and commissions, 220. accounting allowance to representative in nature of, 220. preferred in payment to funeral expenses, 220. distinguished from costs, 220. judgments as, 221. of public administrators, 221. fai court proceedings general rule that trust estate liable for, 590. . for proving will, 590. proving will in other state, 590. in unsuccessful probate proceedings, 590. 1399 INDEX References axe lo pages. EXPENSI^ — continued. in court proceedings — eontimied. appeals, 590. referee's fees, 590. in defeating tumecessary accounting, 591. stenographic charges, 220. ejectment from estate premises, 226. settled in one action, settled for good, 226. when numerous trials had, 226. trust property must usually bear, 225. of appeal, when and when not allowed, 225. amount paid doctor in negligence action, 225. when many trials had, 225. costs and stenographer's fees, 226. for legal services how value of fixed, 223. examples, 224. not for services rendered administrator as individual, 223. incidental individual benefit to administrator immaterial, 223. what determines whether allowed or not, 223. how amount determined, 223. allowed to de facto administrator, 223. to counsel to preceding representative, 223. in general, 222. to be allowed administrator and not counsel, 222. to be set forth in account as paid, 222. not allowed when due to unintelligent selection of counsd by administrator, 222. contingent fees to counsel, 222. burden to establish reasonableness of, etc., 588. agreement for, 588. surcharge on executors, 588. when due to executor's fault, 588. allowance to executor for when also attorney, 589. how amount arrived at, 589. examples of amounts allowed,, 589. allowed if reasonable, 588. allowed on accounting, 588. allowed directly to executor, 588. should be set forth in account, 588. additional counsel, 588. personal liability for, 588. not while enjoined from acting, 588. for services which administrators should perform, 221. for travelling, 221. sale, mortgage or lease of real estate to pay debts, etc., see "Disposi- tion of Realty." of burial and funeral, see "Burial and Funeral." 1400 INDEX Beferences are to pages. EXPENSES— coMtinited. of legal assistance to county treasurer as administrator, 407. of public administrators, 406. of married woman's illness, liability of husband for unless wife charges against her estate, 231. services which executors should render, 588. collecting interest, 588. looking after repairs, 588. paying taxes, 588. employment of real estate agent, 588. travelling outlays, 588. what are, 586. bond premium, 586. legal services, 586. eolnmissions, 586. allowance for making account, 586. distinguished from costs, 586. preferred in payment to funeral expenses, 586. keeping testator's house running, 586. by temporary administrator payment by surrogate's authority, 224. surrogate cannot compel payment by, 224. when time to pass upon, 225. petition for payment to counsel, 225. objections to, 225. FATHER distribution to, see "Distribution." inheritance by and descent to, 50. FEE defeasible dower in, 35. FEES of stenographer liability of administrator for, 108. for stenographic minutes (copy), 1014. in surrogate's court transcript of decree, 1013. copy of proceedings and evidence, 1013. recording various matters, 1013. certificate in general, 1013. comparing and certifying copy of will or paper, 1013. comparing and certifying case, 1013. recording bond or undertaking, 1013. appointing guardian to receive bounty, prize money, pension, etc., 1013. 1401 INDEX Beferences are to pages. I-ELONS as administrators, see "Appointment." definition, 160. FIDELITY COMPANY as surety of administrator's bond, 200. EIEM NAME see "Partnership." JTIXTUKES see "Assets." FOREIGN ADMINISTRATORS AND EXECUTORS see "Administrator" or "Executors," and "Definitions." actions by and against, see "Actions." FOREIGN LETTERS record and use in New York authentication necessary when granted in State of United Stutes of America seal of court' or officer, 476. signature of judge or officer, 476, certificate under great seal, 476. of proofs of record authenticated, 476. authentication necessary when granted in foreign country as prescribed by foreign laws, 477. certificate of judge or oflScer, 477. attest of United States consul, 477. of certificate as to proofs accompanying letters, 477. FOREIGN WILLS probate and record in New York authentication necessary when proved in foreign country as prescribed by foreign laws, 477. certificate of judge or officer, 477. attest of United States consul, 477. of certificate as to proofs accompanying will, 477. proper to record both original and translation, 478. authentication of copy to be recorded when probated in State of United States of America seal of court or officer, 475. signature of judge and clerk, 475. certificate under great seal, 475. signature of custodian of seal, 475. if executed according to own law, wherever executed and whether of realty or personalty, 471. 1402 INDEX References are to pages. FOREIGN WILLS— comtwrned. probate and record in New York — continued. if executed in Great Britain or dependepcies by U. S. citizen, etc., whether of realty or personalty must affect property here, 471. must have been duly proven in foreign jurisdiction, 471. certified copy filed and recorded here, 471. same proceedings had as for domestic will, 471. exception as to citation, 471. to whom letters issued, 472. if executed according to domiciliary law and of personalty only non-residence of testator essential, 472. "domicil" and "residence" synonymous, 472. when testator is resident of another state, 472. if executed outside New York in United States of America, Canada, Great Britain, according to its law and of personalty only, 415. surrogate's rules to be consulted, 471. of realty or personalty executed according to New York law provable in New York, wherever executed, 473. of realty or personalty of U. S. citizen, etc., in Great Britain, or dependencies provable here, 47] . if affect realty in New York recordable here if executed according to domiciliary law and there admitted and filed, 473. in what N. Y. counties recordable, 473. must be authenticated, 473. when authenticated copy alone sufficient, 473. petition, 474. when no proofs, or statement thereof, of will filed or recorded in foreign office, 474. when a court or tribunal is foreign and has original so that authenticated copy recordable here, 474. realty in New York does not pass under foreign will unless so executed as to pass it under New York law, 475. FOSTER PARENTS to be of religion of blood parents in adoption from institution, 19-20. see "Adoption," "Descent," "Distribution." FUNDS custody of, see "Custody." collection of, see "Collection." FXJNEEAL see "Burial and "uneral." FUNERAL EXPENSES authority of temporary administrator to pay, 97. 140.3 INDEX References are to pages. FUNERAL EXPENSES — continued. liability of administrator giving individual note for, 108. see "Burial and Funeral" and "Expenses," GAMBLER as administrator, 161. GIFT as determining descent, 50. GOOD WILL see "Partnership" and "Assets." GRAJSTD-NEPHEW inheritance by and descent to, see "Descent." GRAND-NIECE inheritance by and descent to, see "Descent." GUARANTY COMPANY as surety on administrator's bond, 200. GUARDIANS jurisdiction of surrogate's and supreme courts over, see "Jurisdiction." definition, 2, 705. duties, 705. no contract binding on ward's estate save by statute, 706. no contract binding on ward's person, 706. may appoint attorney to receive payment. of morlgage, 706. how cheques and deeds signed by, 706. domicil is ward's also, 12. ancillary definition, 714. for infant outside state but in U. S. A., powers, 714. effect of appointment, 714. for infant in foreign country, powers, 715. may not compromise, etc, or sell claim, 715. accounting by parties inter sese binds ward if of age and no fraud, 766. effect of limited release by ward, 766. recording of instrument settling, 766. effect of record of instrument settling, 766. definitions and kinds intermediate, 765. final, 765. 1404 INDEX References are to pages. GUARDIANS— eoM ■ of adoption acknowledgment of, 22. to be filed with county clerk, 22. contents, 22. who to sign, 22. 1416 INDEX References are to pages. INTENT in establishment of domicil, 8. INTEREST on claims against decedent, see "Debts of and Claims against Decedent." administrator not liable for, on distributive shares, when delay in bringing him to account and fund paid out on claims, 114. administrator also banl^er liable for, if deposits estate money in his bank, 114. administrator or executor not chargeable with, unless uses money or might have had interest, 114. ' liability of administrator for, 114. liability of administrator, on loan by intestate to partnership, 114. liability of executor for, 114. liability of testamentary trustee for, see "Testamentary Trustees." on legacy, see "Legacies." ' on legacy to be paid by administrator c. t. a. when unwarrantedly delayed accounting, 114. temporary administrator liable for, in amount bank would have paid for deposit, 114. on transfer tax, see "Transfer Tax." INTERPRETEES see "Attendants, Messengers and Interpreters." INTEREOGATORIES see "Commission and Letters Rogatory." INTESTATE AND INTESTACY presumption of death, 7. presumption of death intestate, 7. definition, 2. INVENTORY see "Appraisal and Inventory." by guaxdiah, see "Guardians." INVESTMENTS by guardians, see Guardians. administrator cannot purchase from himself securities for, 118. administrator investing in own name guilty of misdemeanor, 118. purchase of by administrator from himself, 115. in what administrator may invest, 118. administrator may require personal bonds and guaranties to accompany, 118. ' premiums paid on guaranties of payment accompanying investments chargeable to income, 118. executor liaWe for if on sole security of individual, 553. executor liable for interest could have made on, 553. 1417 INDEX Eefereuoes are to pages. INVESTMENTS— cojiftmued. , ij,l by executor may be approved or rejeeted by beneficiaries if unauthorized, 554. by executor approved by failure to object thereto mi accounting, 554. authorized, for executors, 552. executors may require guaranties, 552. executor cannot purchase from himself, 552. executor must keep estate property distinct from own, 552. executor must not make or deposit in own name, 553. by executor under general power in will, 553. by executor leaving estate in deceased's firm, 553. by executor in foreign realty, 553. ISSUE "lawful," definition, 76. presumption of death with or without, 7. JOINTURE acceptance of as bar to dower, 38, 40. JOINT LEGACY see "L^acies." JOINT VENTURE - , in name of one, on death vests in his personal representativfe, 112. JUDGMENT against co-administrators or co-executors, 142. in actions by and against administrators and executors, see "Actions." JUDICIAL SETTLEMENT see "Accounting." definition, 349. JURISDICTION see specific titles, e. g., "Probate," "Administra,tors," etc. of clerks, see "Clerks of Surrogates." of surrogate to appoint administrators, executors, guardians and testa- mentary trustees, see "Appointment." concurrent and conflicting of surrogate's and supreme courts accountings special facts necessary to get into supreme couj-t, 819. supreme court's jurisdiction determined on trial, not by demurra-, ,,, . ;819. what circumstances give supreme court jurisdiction, 819. supreme court's jurisdiction when lien on lands in question, 819. of suprettie court when fund held in two capacities, 819. of suprero' twirt when debt of life tenant in issue, 820. 1418 INDEX Keferences are to pages, JUEISDICnON— contintted. concurrent and conflicting of surrogate's and supreme courts — contimted. accountings — continued. of surrogate only, by representative of deceased representative, 820. of supreme court when sale of realty involved, 820. of supreme court as part of action to construe will, for conven- ience and to avoid multiplicity of actions, 820. of supreme court when agency of accountant also involved, 820. of supreme court, of non-resident's representative's account, 820. of supreme court, surviving partner, representative of deceased co-partner, 821. of supreme court, on removal of trustee, though his account pend- ing in surrogate's court, 821. of supreme court, though trustee given discretion as to sale of realty, 821. surrogate's cannot, if involves review of supreme, 821. either, when obligor's bond requires account to any coutt having authority, 822. in general ' ■ of accounting by ward in connection with application to supreme court to set aside surrogate's accounting decree, 828. of appointment of successor-trustee, 828. of supreme court, when representatives' duties are conflicting be- cause acting in different estates, 828. denial by one court of relief, not on merits, not render case res adjudicata in other, 828. left to surrogate if has adequate jurisdiction, 827. left to surrogate as to all matters subsequent to appointment by him of representative, 827. no aotioti to recover distributive share of resident's estate, 818. supreme court cannot direct defendant's administra.tor, 818. supreme court cannot appoint receiver on appeal from surrogate's court, 819. not in supreme court, of motion for new trial in affirmed surro- gate proceeding, 819; ■ eourt first acquiring in general, 826. when supreme court will take in place of surrogate's; 826. of supreme court for distributive share when proceeding pending in surrogate's court, 826. when action begun before proceeding for accounting, 826. of claim that property included in estate was accountant's in- dividually, 826. of supreme court to construe will when not yet sought by surro- gate, 826. when suit first begun in supreme court, 827. of accounting, by supreme eourt, when not yet sought by surro- gate, 827. 1419 INDEX References are to pages. JURISDICTION— coMtmued. concurrent and conflicting of surrogate's and supreme courts — oontinued. court first acquiring — continued. of accounting by administrator against trustee, by supreme court, when proceeding pending in surrogate's, 827. ■ , courtto which administrator as individual is party,, 827. when relief inadequate in one court of suit between co-executors, one of whom of deceased partner, 825. to set aside release for fraud, 825. when representative, insolvent or acting collusively to creditor's prejudice, 825. to set aside bill of sale made by decedent for fraud, 825. as to temporary administrator being given power over realty, 825. to distribute only, 826. to pay legacy, 826. to authorize compromise binding on unborn infants, 826. term of :office , ., not by supreme court unless special facts exist, 822. of supreme court, not questionable by demurrer, 822. j^ of supreme court, when necessary to declare lien on realty, 822. wills , , of supreme court, to construe, not unless special facta require, 822. of supreme court, not to proba,te, 822. of supreme court, to construe, when attempt to determine rela- , tions standing, 823. »rer guardians of surrogate's court in general, 823. to enjoin, 823. to direct conversion from personalty to realty, 823. to direct cancelation of policy, 823. to exhaust principal while income exists for ward's support, 823. to give infant control of funds, 823. to direct , payijaent of ward's ; bills to be incurred, 823. to determine disputed demand of application, 823. for ward's support, 823. to allow intervention in action in foreign land, 824. of supreme court in general, 824. over custody and care of, 824. residence not domicil determines, 824. not acquired, by bringing infant into state by stratagem, 824. against inferior court's decree, 824. to direct payment to without bond, 824. to direct sale of lands, 824. appointed by, subject to duties of guardian appointed by gnr- rogate's court, 824. appointed by must file copy, in surrogate's court, 824. 1420 INDEX Refereuces are to pages, JURISDICTION— coutwjiied. of supreme court over one named executor in second will in action to declare first will irrevocable, 836. of surrogates and surrogates' courts in genpral not defined by Constitution but by statute, 829. by Constitution, 829. can legislature add to — or only regulate, 829. only such as given by statute and incidental thereto, 829. itemized, statutory povirers, 829-831. once shown, may decide all questions in proceeding, 831. determination binding elsewhere, only if had jurisdiction, 831. whether right or wrong, 831. assent cannot confer, 832. not dependent on recital in decree, 832. can be asserted only according to statute, 832. to complete predecessor's unfinished business, 832. to complete, certify and sign predecessor's papers, 832. to exemplify and certify records and papers, 832. to sign papers wherever he may be, 833. to administer oaths, takes affidavits, proofs and acknowledgments and certify same, 833. equitable jurisdiction, in general, 833. to determine fraud as to creditor in transfer by decedent oi person- alty, 833. whether Constitution bars equitable powers in, 833-4. equity jurisdiction bounded by statutory restrictions, 834. to pass on equitable defenses to release, 834-5. to declare trust, 835. to try decedent's title to realty under tax deed, 835. of equitable question, must be between parties and necessary t« be determined, 835. purpose of grant of equitable jurisdiction, 835. who proper parties to equitable proceeding, 836. not of question of title between living parties, 836. common law, in general, 836. incidental, in general, 836. to strike scandalous or improper matter from will or papers, 836. to destroy papers, 836. to compel attorney to disclose address, 837. to order substitution of attorneys, 837. to order attorney to turn over papers, 837. to set aside stipulation under which rights have accrued, 837. to determine effect of conveyances and releases by remainderman, 837. to determine validity of assignment by life devisee of rents and profits, 837. of application by non-resident creditor in contempt, 837. attack upon, in general, 837-8. 1421 INDEX Beferences are to pages. JURISDICTION— contMMted. of surrogates and surrogates' courts in general — oontimued. may be attacked in any way, if no jurisdiction ' existed of parties or subject-matter, 838. •■■ attack of jurisdiction to grant letters, 838. attack, of appointment of ancillary administrator c. t. a., 838. attack, because party not served, 838. . ^ attack, for failure to enter debts adjudged against estate, to take proper bond, to post notices of sale, 838. attack, of adjudication as to decedent's residence, 838. attack, on adjudication of ^amount of assets in proceeding to mort- gage realty, 839. attack, on adjudication of testacy, 839. attack, on admission of will, 839. attack, on letters issued on improper allegation of deathy 839. attack, on ancillary letters issued without consent of foreign repre- sentatives, 839. attack, on letters when decedent non-resident, 839.' on attack, what proof of lack of jurisdiction needed, 839. attack, effect of allegation of jurisdictional facts in pleading or de- cree or order, 839. ■ preventing exercise of, in general, 840. writ of prohibition, to prevent exercise of, 840. . ' writ of prohibition from removing representative eos par^?, 840. writ of prohibition, to prevent progress of probate, 840.' injunction, when proper, 840. enjoining removal of administrator after suit by him in supreme court for accounting, etc., 840. . . ,, no mandamus to do away with requirement of notice to administra- tor before issues execution against, 840. m as to property passing direct to heirs or devisees, 841. !■ as to property in issue between administrator as individual and third parties, 841. '■ ' , - of issue of fraud as answer to accounting) i 841j of fraudulent transfer of property by decedent, 841. over administrators i in general, 841. ■: -■ to enjoin, 841. as to property passing direct to heirs and devisees; 841. as to property in issue between administrator as individual and third parties, 841J to authorize extension of mortgage by, 841. of issue of fraud as answer to accounting) 841. ■ . of fraudulent transfer of property^ by decedent, 841.- over executors in general, 842. to enjoin, 842. to compel, 842. • to enforce payment and delivery by,' 842, 1422 : INDEX Rfeferences are to pages. JURISDICTION— comtmtted. of surrogates and surrogates' courts in general — continued. over executors in general — continued. to compel to pay widow value of exemptions, 842. to determine widow's right to exemptions under antenuptial agree- ment, 842. to compel pajrtoent of infant's legacy when will gives executor dis- cretion as to time, 842. to decree specific performance ' of contract by, 842. to compel deposit of securities where co-executors may get, 843. over Indians over estates and wills of, in general, 843. Seneca Indians, 843. when no peacemaker's court exists, 843. when peacemaker's court exists, 844. of county where reservation is, 844. Tonawanda Indians, 844. over testamentary trustees in general, 843. to compel, 843. to enjoin, 843. to determine meaning of clause creating trust, 843. JURY TRIAL before surrogate and jury like in trial term, supreme court, 903. where had in surrogate's own court, 905. at trial term of supreme court, 905. in county court, 905. notice of trial, 905. note of issue, 905. settlement of issues, 905. framing issues in advance in New York county, 905. practice before Surrogate Fowler, New York county, 905. practice in Broiix citinty, 906.' demand for must*be seasonably made, 905. personally, through attorney, guardian, committee, 905. ■ drawing the jurbrs ■ by surrogate's order, 906. powers of various surrogates-, 906-7. where and how drawn, 907. minutes of drawing, 907. • sheriff's duties as to, 907. pay of jurors, 908. exemption of jurors from further service, 908. order for necessity, 905. 1423 INDEX References are to pages, JURY TRlAI^-contmued. order for — continued. statement of questions when in supreme or county court, 905. only authority necessary for trial in supreme or county court, 90S. . , only matters to be proven by statute of wills to be included in, 906. when proper under stipulation, for hearing before surrogate "in pursuajice , , , when whereabout of distributee or legatee unknown, 990. when legacy or distributive share cannot be paid 6 months after decree, 990. when legatee or distributee unknown on accounting decree, 990. fund due infant legatee dying after issue but before return of citation, 991. statute for deposit of surplus moneys constitutional, 999. deposit of surplus moneys on foreclosure of decedent's property, 991. as security fol* payment of money ' (feposited with surrogate, 991. supervision of comptroller over, 991. how held and disposed of and invested, 991. collection of principal and interest, 992. annual reports as to, 992. where deposited, 992. compensation to trust depositary, 992. general rules respecting, 992. effect on payor's liability, 992. payment to surrogate instead of to court not enough, 992. receipt from siirrogate for, not discharge, 993. surrogate retains control of wherever deposited, 993. supreme court no jurisdiction over, 993. direction by court as to investment, 993. surrendered only on court order, 994. petition to ascertain rights to legacy or shart 6t unknown distributee or legatee, 994. notice to attorney general of petition to get unknown legatee's or dis- tributee's legacy or share, 994. reference or trial to determine rights of claimant to legacy or share, 994. to what surrogate application made to ascertain rights to, 994. what proof prerequisite for order for payment of, 994. surrogate may distribute decedent's interest ;ii> partition deposited in his court, 995. when surrogate may distribute decedent's share , from partition paid into his court, 995. proceedings to distribute proceeds of foreclosure in surrogate's court, 995. to recover judgment against public administrator from surplus money due decedent, 995. -it >-i • ; '' payment of infant's partition shares though invested with other funds, 996. withdrawal of assets deposited by obligor and sureties in trust company, 995. suit on note deposited with trust company'as against giving bond, 996. gross sum in lieu of life, dower or curtesy interest, 996. 1432 INDEX References are to pages. MORTGAGED LANDS dower in, see "Dower." MORTGAGES as assets, see "Assets." see "Disposition of Realty." administrator not generally allowed payments of interest on, 117. direction to executor to pay relieves devisee, 483. executor personally bound' for payment of if so states in assignment, 483. executor not liable for interest on, if mortgage not due at testator's death, 483. not payable from personalty here if lands in other state, 117. which intestate not pei'soilalljr liable to pay, administrators should not, 117. land primarily chargeable with, 117. claim for interest on, not allowed when paid by person to whom land crai- veyed, 117. ' ' when mortgagor's representatives bound to pay, 117. when administrator allowed payments of interest on, 117. devisee of land need not pay, when mortgage security to a«coittmodation en- dorser of mortgagor's note, 117. MOTHER distribution to, see "Distribution." inheritance by, see "Descent." MOTIONS to decide title to bank deposit, 929. to compel temporary administrator to file decedent's papers, 929. to get inspection on contested probate, 929. for bill of particulars of persons unduly influencing testator, 929. to open decree, 929. to conform decree to truth, 929. to amend notice of appeal by adding names, 930. for reargument, 930. for consolidation of two probates, where heard, 930. calendars of, 930. specifying papers for, in orders, 930. affidavit of merits, 930. statement of no previous application, when made ex parte, 930. time of service of notice of, 930. time of service of order to show cause, 930. when opposite party does not appear, granted by default, 931. NEXT OF KIN definition, 3, 70. distribution to, see "Distribution." of deceased husband or wife, distribution to, see "Distribution." husband and wife not, 70. 1433 INDEX Eefepences are to pages* NEW BONDS AND SUEETIBS i a .;;.(.) ■: see "Bonds;" "Administrators," "Guardians," and,, "Testamentary . Trus- tees.'' of testamentary trustee , ' ; order or decree in pending accounting proceeding, 6§6i,, , when require new bond or new sureties, 687. , , i., removing trustee on failure to give, 687. i releasing sureties on filing of bond, 687. grounds, 685. petition who may make, 685. not necessary; when sought by trustee in priding accounting, 685. contents, 686. citation not necessary when sought by trustee in pending accounting, 686. when issueSi 686. contents, 686. who have .notice, 686. NEW HEARING OR TRIAL surrogate's jurisdiction, 927-8. grounds in general, 928. only in same way as court of record, 928. ; prerequisites when ground is newly-discovered evidence, 928. papers on which sought, for newly-discovered evidence, 928. not of will for misdirection, if justice done, 928. when allowed before referee on accounting, 928. , reviewing accounting on death of representative pending referee's rq>ort, 928. motion for, 929. NEPHEW inheritance by and descent to, see "Descent." distribution to, see "Distribution." NIECE inheritance by and descent to, see "Descent." distribution to, see "Distribution." NON-INHABITANTS as administrators, see "Appointment." NON-JURY TRIAL decision by surrogate, 909. decision to be written and direct decree, 909. decision need not contain facts found or conclusions of law, 909. separate trial of issues proper,r909. , . 1434 INDEX Beferences are to pages. NON-RESIDENTS as administrators, see "Appointment." NOTICE of appearance, see "Parties." ♦ published to creditors to reduce administrator'^ bond, 201. of application for appointment of temporary administrator, 882. of appeal, see "Appeal." of appraisal and inventory, see "Appraisal and Inventory." NOTICE TO CKEDITOES TO PRESENT CLAIMS see "Claims.'' OATH of administrators form all except public, 199. administrator c. t. a., 199. anciljary, 199. county treasurer, 199. public, 199. filing, 199. of appraisers, see "Appraisal and Inventory." of executors, see "Executors." of guardians, see "Guardians." of testamentary trustee form, 683. filing, 683. before whom may be taken, 683. OBJECTIONS definition, 867. form and contents, 867. must be verified, 867. must state objections as made by person verifying, 867. must controvert facts stated in aflSdavit or account — otherwise facts proven by mere statement, 867. filed before return day of citation, 868. to demand jury trial, 868. allegations must be stated as made by person verifying, 868. allegations not on information and belief, effect, 868. denial of sufficient knowledge, etc., to form belief, effect, 868. must be verified, 868. verification to be made by whom, 868. form of affidavit of verification, 869. when affidavit of verification to state grounds of belief, 869. surrogate may order service of copy, 869. efl'ect of failure to serve copy when ordered, 869. 1435 INDEX OBJECTIONS — contimied. References are to pages. withdrawal only on consent or on notice of application therefor, 869. to appointment of and letters to admiuistraiors who may file, 193. Tdjien may be filed, 193. contents, 194. filing operates as stay till disposed of, 194. to probate, see "Probate." OFFICERS OF SURROGATE'S COURT appointment and removal, 939. salary, 939. powers, 939. OPENING of decrees and orders, see "Decrees and Orders." ORDER see "Decrees and Orders." abrogating adoption from institution ' when made, 30. effect, 30. of adoption when made, 25. " ' contents, 25. to be filed with county clerk, 25. when a court and when a judge's order, 26. not to mention illegitimacy, 25. directing new name for child, effect, 26. for payment of funeral expenses, 234-5. by temporary administrator, 234—5. ORDER TO SHOW CAUSE see ""Process." ORIGIN " domicil of, see "Domicil." PAPERS see "Proceedings in Surrogates' Courts." how acknowledged; etc., when required to be "acknowledged, verified or proved, and duly certified," 855-860. examples of sufficient acknowledgments and proofs, 860. when due proof of facts therein stated, 861. PARTIES respondent, who are, 884. surrogate's jurisdiction of what parties has, 884. 1436 INDEX Keferences are to pages. PARTIES — continued. surrogate's jurisdiction — continued. essential to make decree effective, 884. presumptively proven by recital of, 884. by appearance and consent, 884. by citation, 884. by waiver, 884. appearance infant by general guardian, 885. lunatic by committee, 886. idiot by committee, 885. habitual drunkard by committee, 885. when interest depends on survivorship, 885. written authority for from nonresident or one not elted, 885. by competent adult in person on by attorney, 884-5. in person only in contempt, by order on by law, 885. no substitution of attorneys by order unless cause pending, 885. of attorney for non-resident guardian, 885. of one sued individually and as executor by distinct attorneys, 885. compulsory effect in general, 889. of general notice of, 889. of temporary administrator on widow's motion for allowance pend- ing contest of will, 889. when no citation issued, 889. to contest will, 889. by attorney for non-resident served, 889. on appeal, 889. cures defect in citation, 889. charges parties cited with knowlec^e of relief asked, 889. special appearance, 889. answer solely to object to jurisdiction, 889. when special guardian appointed for incompetent who is found competent, 890. by counsel under treaties of United States with other lands, 887-8. for adult foreigners interested, by waiver and consent, 888. when treaty gives right to "intervene," may receive property from public administrator, 888. for infant foreigners on accountipg, 888. obviating need of special guardian, 888. ■otice of contents and form, 886. when person appearing has not been citedj 886. by non-resident served with citation, 886. 1437 INDEX Beferences are to pages. PARTIES— continued. appearance — continued. by special guardian when necessary, 886. when permissible though not necessary, 886. who eligible, 886. when needed for infant, 886. when needed for lunatic, idiot or habitual drunkard, 886-7. when persons or their whereabouts unknown, 887. consent to act needed before entering, on duties, 887. for infant, not till infant served, 887. vacating order appointing on showing competency of party to appear himself, 887, "who is a "party" for whom appointed, 887. PARTNER see "Partnership." PARTNERSHIP no interest on share of . deceased partner, 113. testimony that deceased only member of, 112. continuance by administrator, liability for interest on loan to ^rtnership by de- cedent, 114. by administrator' c. t. a., after time authorized by will does not make consenting beneficiaries partners,- 111. administrator must account for prbfits, 111. by administrator of agreement to make, use and sell machines. 111. liability of administrator individually, 105. debt estate of deceased partner released on acceptance of liability of part- nership, 112. . . . , ' estate of deceased partner liable for, 111. subordinated as, against deceased partner's estate to his individual cred- itors, 112. ;,,(,.,.,,,.,., representative of deceased partner liable on common-law proof sur- vivor without means. 111. , representative of deceased partner liable after execution unsatisfied against survivor. 111. representative of deceased partner not liable if creditor negligent as against survivor. 111. good will method of computing value of, 112-3. is assets for deceased partner's representative, 112. exists only in connection with business, 112. comprises firm name, 112. goes to estate of surviving partner, 112. right to use firm name, dies with last Surviving partner, 112. 1438 INDEX References are to pases, PAETNERSHIP— co»Wn«€d. of intestate in general, 109. surviving partner's power to wind up, 109. legal representative's only interest is in distributive share of liquida- tion, 109. representative may call survivor to account, 110. administrator cannot control bank deposit, 110. representative cannot sue to recover its assets, 110. administrator may share in profits of bankrupt pai'tnership, 110. liability of administrator receiving assets, 110. 1 administrator may have receiver appointed or let survivor liquidate, 110. of testator, see "Executors." lia.bility of administrator for using assets, of for new purposes, 109. liabilities and duties of surviving partner must show fairness of purchase of deceased partner's interest, 114. cannot appropriate firm assets, 113. compensation for continuing, by articles or consent, 113. no commission or compensation for winding up, 113. realty retains character on partner's death, 112. dower in, 36, 38. PAYMENT ■- .. see titles for specific subjects. PERSONAL PROPERTY see "Assets." authority or temporary administrator over, 95-6. is distributed, 3. exemptibns from, by statate, for' Widow, husband and minor child, see "Ex- emptions." title of husband to that of wife, whether through statutory exemptions or ; distributiwi or ait common law, see "Husband's Title to Wife's Per- sonalty." PETITTOX definition, 862. contents, in general, 862. verification, '862. allegations to be by person verifying, 862. on information and belief, eiffect of, 862. denial of sufficient knowledge, etc., effect of, 862. standard form, 862-4. facts stated proven unless controverted, 864. entitling to two kinds of relief and praying one kind with prayer for other relief, what relief granted, 864. 1439 INDEX References are to pages. PETITION— comtmited. joining prayer for settlement of account and for payment of distributive share, 864. uncontroverted allegation of residence and assets held true, 864. aust be verified, 864. who may verify in diffeput contingencies, 864-5. , in singular number, stated to be and signed by two, with verification nam- ing only one not defective, .865. affidavit of yerificaition, 865. grounds of belief stated when not verified by party, 865. verification that affiant "knows the contents — and that the same are true," 865. service of copy by order of court, and failure to so serve, 865, later than original one without court permission to amend original disre- garded, 865. amendrnent on probate when allowed, 865. for abrogation of adoption from institution who may make, 29. to what court made, 29. grounds, 29. contents, 29. , :,■.:.,.•. verification, 29. , , , . for appointments all kinds administrators, see "Appointment." to compel payment of funeral expenses, further petition for same, 233, 234. for new bond by administrators, see "Bonds.", .r i • .i for new bond by executors, guardians or testamentary trustees, see such titles. ■' : . ■ to set aside exempt property, 245. PLEADINGS in actions by and against administra.toiF» ajid executbrs, see "Actions." PLEADINGS IN SURROGATE'S COURT. I regarded as on plesi^er's knowledge, exce|)t vrhea on information and belief, 855. . . effect when sufficient knowledge or information to form belief is denied, 855. who must verify under possible contingencies, 855. affidavit of verification, 855. when verification to give grounds of belief, 855. how acknowledged, etc., when required to be "acknowledged^ verified or proved, and duly certified," 855^860. examples of sufficient acknowledgments ,and proofs, 860. i when due proof of facts therein stated, 861. ex parte, of little value, 861. endorsement, 861. custody, .861. examination, 861. 1440 INDEX References are to pages. PLEADINGS IN SURROGATE'S COXfRT— continued. acknowledgment, 861. drawing, 861. service, 861. / conformity to rules, 861. indorsement, 861. filing, 861. folioing. S61. determined by law when hearing comes on, 854. contents in general, 854. surrogate may require service of copy, 854. party not serving, by surrogate's order, in defaiHt, 854. verification of all if first verified, 854. no verification When pleader privileged from testifying, 854. cannot be used against pleader in criminal prosecution, 854. allegations and denials to be by pleader, 854. PLEDGE of assets ancillary administrator may, 98. POSTPONEMENT see "Proceedings in Surrogates' Conrts." POWER OF SALE OF REALTY see "Disposition of Realty." inapplicable when testator executes deed, 93. PREFERENCES in appointment of administrators, see "Appointment." PRESUMPTION of competency to inherit does not exist, 48. of death testate or intestate, 7. with or without issue, 7. in appointment of temporary administrator, 6. in general, 4. ct time of death does not result from grant of administration, 6. in general, 6. of destruction of adoption papers, 26. of domicil for purpose of succession, 8. of heirs, 48. of legitimacy, 16. of marriage • from reputation and cohabitation after death of spouse of one party, 17. N. T. E. & S.— 91. 1441 INDEX References are to pages. PRESUMPTION— oowtwwed. of marriage — continued. in general, 14. destroyed by woman's admission contra, 14. that relation between divorced couple illicit in inception so continues, 14. that relation illicit in inception continues so, 14. that requisites of marriage abroad same as here, 13. of residence where domieil is, 8. of survivorship — none, 6. PRINCIPAL AND INCOME dividends stock dividend received by trustees, 667. stock in new company from old company's capital, 668. treatment by trustees as principal, 668. examples of specific cases, 668. presumptively are income, 666. declared before owner's death principal, though payable after, 667. declared after beneficiary's death, 667. when reserved to certain date on sale of stock, 667. from sale of lands received by railroad for building railway arc income, 667. increase of stock by declaration of cash dividend on understanding stock be bought with cash, 667. right to accrues when declared, 665. holder of stock when declared gets, 665. scrip, 665-6. ordinary, go to life tenant, 666. extraordinary, go to life tenant unless entrench on ca{HtaI, 666. when entrench' on capital may go to life tmant or remainderman, 666. intent in will governs, 666. investments loss or gain usually goes to capital, 671. sinking fund, 671. premiums in purchase of securities, 671. rents accrued since testator's death, income, 669. rents, interest and dividends accrued since trustor's death and during life tenant's life, income, 669. damages to trust realty through erection of elevated, 669. proceeds of sale of land bought in by trustees on foreclosure, 669. taxes, repairs and improvements, 669. carrying charges, 670. fire insurance premiums required by mortgage plsced by trustor on tmst realty, 670. improvements ^on realty, 670. trustee's expenses in defending trust, 670. trustee's accounting costs, 070. 1442 INDEX References are to pages, PROBATE domieil of married testatrix, 11. of married woman's will, what is her domieil? 11. delay in appointment of temporary administrator, 95, of foreign wills, see "Foreign Wills" what jurisdiction surrogate has to take proof of and admit wills, 478. must be petition, citation, service or appearance, 478. to take proof of how will was before altered, 478. as to making and effect of antenuptial agreement, 478." to grant widow also life tenant allowance pending contest, 478. to inquire into testator's domieil after courts of another state hava admitted a will of same testator, 478. to a,llow discontinuance of proceedings, 478-9. to adjourn proceeding, 479. to suspend proceeding and appoint temporary administrator pending appeal, 479. to declare proceeding abated, 479. to try two wills together, 479. what surrogater has jurisdiction when two wills presented to different surrogates, 480, when decedent had, interest in realty in county, 480. as affected by allegation of residence in petition, 480, bond belonging to non-resident on which resident is surety gives jurisdiction, 480. debt owing by resident to non-resident gives jurisdiction, 480. ■upreme court's jurisdiction • action to establish, in general, 480. when action to establish maintained, 480. judgment when established, 481. generally supreme court has no jurisdiction of wills, 481. no action to establish non-resident's will probated in state of resi- dence, 481. to pass on pre-nuptial agreement to leave property, 481. to appoint commission to take proof of will, 481. to enjoin in surrogate's court, 481. not by one claiming legal estate to have will declared valid, 481. when judgment establishing affects construction or validity, 482. when adjudged that exemplified copy be recorded by surrogate and that he issue letters, 482. what provable as will immaterial that ineffectual to pass title, 482. only appointing executors and no more, 482. devising realty and appointing executor and no more, 482. mistake in naming executor, 483. mistake concerning effect of trust conveyance, 483. when retention for long period precludes probate, 483. residence changed since execution, 483. 1443 INDEX References are to pages. PROBATE — contiimed. what provable as will — eontinued. original when exemplified copy of fofei^ will has been rejected, 483- papers referred to in will, 483. books of account referred to in will, 484. schedule signed and attested like will, 484. last will only, 484. petition necessity of, 486. who may make, 486. duty of one named executor to present, 487. person empowered as attorney for non-resident, 487. form and contents, 487-8. residence and assets as established by allegations in, 489. for nuncupative will, 489. statements in as to adopted children, 489. filing copy of will with, 489. dtation who to have notice will of personalty only, 489. will of realty only, 489. will of both realty and personalty, 490, tenants of realty, 490. devisees and legatees, 490. grandson while son lives, 490. waiver of, 490. when two testamentary papers offered, 490. contents and form, in general, 491. answer not by putting in issue validity of bequest, 491. demand for jury to appear in, 491. general rules applicable to answers apply, 491. abjections and contest who may make person interested in event, 492. person interested in property disposed of by will, 492. person interested in other will of same testator, 492. person pecuniarily and not sentimentally interested, 492. person bequeathed less under another will, 492. status of contestant tried before factum proved, 492. brothers and sisters when widow and children survive, 493, public administrator of foreign state, 493. legatee under will offered, 493. children of first cousin when first cousin survives, 493. the state, 493. lienor on realty when iwill destroys lien, 493-4. receiver in supplementary proceedings, 494. 1444 INDEX References sre to pages. PKOBATF — continued. objections and contest — continued. I who may make — oontiiuied. trustee rather than special guardian when fnnd in tmit tor infant, 494. representatives of deceased contestant, 494. must be filed before proponent's case closed, 494, form and contents, 494. must demand jury trial, if desired, 494. notice of trial of, 494. note of issue of, 494. security for costs, 495. duty of executor when made, 495. notice of, to parties, 495. service o^ 496. notice of, to legatees, beneficiaries and devisees, 495. contents of such notice, 495. decree not binding in contested probate on persons named in notice of objec- tions filed or directed to be notified if not served, 496. of foreign state not conclusive as to decedent's residence, 496. hearing or trial if no contest, before surrogate or clerk, 496 if contest, before surrogate alone unless jury demanded in objections or answer, 496. no jury in proceeding pending Sept. 1, 1914, 497. barden and order of proof surrogate must be satisfied as to factum and capacity, 497. burden always on proponent, 497. ordinary rules of evidence apply, 497. when testator blind, 497. when testator deaf, .dumb and illiterate, 497-8. all dema,nds of statute of wills must be satisfied, 498. burden of proving undue influence, 498. practice in New York county, 499. proof of written will, in general, 499. on reversal of decree holding will revoked, witnesses' testimony, see "Wit- nesses,'' 499. by testimony of witnesses, see "Witnesses." by proof of handwriting of testator and witnesses, see "Witnesses." when witness forgets or testifies against execution, see "Witnesses." proof of nuncupative will two witnesses necessary as to execution and tenor, 604. proof to be reduced to writing, 504. testamentary capacity must be proven, 501. whether must be made in extremis, 504. of mariner, 504. 1445 INDEX References are to pages, VROBATE— continued. lost or destroyed will in surrogate's court necessary facts to be proven, 504. presumption of destruction with intent to revoke, 505. witnesses to execution need not be subscribing witnesses, 505. destruction must be through intervening human agency, 605. in supreme court when action to establish maintainable, 505. judgment for probate and letters from surrogate's court, 506. proof necessary, 506. who may bring action, 506. burden of proof, 506-7. presumption as to destruction or existence, 507. holographic will , same firoof required as in ordinary will, 507. verdict and decree decision and order when no jury, 511. verdict and order or decision when jury, 511. decree formally embodies verdict or decision, 511. verdict in surrogate's court entered in his minutes, 511. verdict in other court certified to surrogate, 511. decree must state if probate contested, 511. no decision allowed on behalf of contestant who withdrew contest, 511. decree must revoke previously granted letters of administration, 511. decree admitting later will must revoke letters on former will, 512. decree must state if will valid to pass real or personal property or both, 512. effect of decree admitting probate, in general, 512. effect of decree denying probate, in general, 512. contestant not appealing from decree bound, 512. effect of decree of probate by foreign court, 512. decree of probate no estoppel as to testator's residence, 512. decree of probate conclusive as to competency, 512. decree binds personal representatives of kin dying pending probate proceedings who appeared, 512. decree conclusive as to formal validity, 512. sufficiency of certificate of probate, 513. motions in proceedings for affecting contested probate to be made al trial term, 513. for judgment on jury's findings, 513. for new trial after jury's verdict, 513. transferring issues to supreme court for trial, 514. for new trial in supreme court, 514. PROBATE OF HEIRSHIP surrogate's jurisdiction, 985. 1446 INDEX References are to paces. PROBATE OF BSIRSBXB— continued petition when may be presented, 986. who may make, 986. contents, 986. prayer, 986. what surrogate has jurisdiction, 986. citation when issued, 986. to whom, 986. contents, 986. hearing surrogate must give, 986. burden on petitioner, 986. decree when rendered, 987. effect, 987. recording, 987. PROCEEDINGS IN SURROGATES' COURTS all matters before surrogate are, 847. commenced by petition, 847. governed by practice in force when petition filed, 847. if no petition filed, no jurisdiction, 847. if no petition filed, may hold till filed, 847. application for discovery is special proceeding, 847. application by attorney to vacate satisfaction of decree as in disregard of lien, is, 847. application to open, etc., decree, on motion, is, 847. general rules of practice binding in, 847. portions of Code not in surrogate's Code applicable, 847-8. to change attorney, 848. references governed by general rules of practice, 848. BO right to physical examination in, 848. abatement and revivor not abated by death of party if survivors go on, 853. of compulsory accounting, not abated on surrogate's own motion on accountant's death, 853. of probate, not abated by contestant's, executor's or kin's death, 854. of removal of trustee, abates on petitioner's death, 854. consolidation of probate of first and second wills, 848. of several proceedings pending same in whole or part, 852. , of compulsory and voluntary accountings, 852-3. of contested probate of two scripts, 853. of different accountings by co-administrators, 853. dismissal of probate, not while any one cited supports will, 848. 1447 INDEX References are to pages. PROCEEDINGS IN SURROGATES' COVRTsS—contimted. dismissal — continued. of probate, when all parties, cited and major, ask, 848. of revocation of probate, on failure to cite, 848. of probate of second will, when proponent cited on probate of first, 848. on return of citation for revocation or removal, 848. to compel payment of funeral expenses when no money on hand, 849. on return of citation to compel payment, 848. postponement and adjournment power, in general, 851. necessary when all necessary parties not notified or waived or ap- peared, 851. by clerk or deputy clerk, 851. of probate till production of insane witness, 851. to obtain witnesses, 851. on making order for sale, mortgage on lease of realty, 851. on stipulation, 851. on failure to appear on return of process, 851. of probate of prior will pending appeal from judgment declaring void another will, 851. of probate, in surrogate's discretion, 852. of probate, pending indictment against witnesses, 852. of probate, when petitions presented to difi'erent surrogates, 852. stay and injunction of stay by surrogate ; injunction by supreme court, 849. no injunction when question solely of trustee's right to deduct from income for overpayments, 849. stay of accounting pending determination of title in bankruptcy to property of estate, 849. no stay of decree from which appeal taken, 849. enjoining petition for letters as widow when settlement had on state- ment not widow, 849. perfected appeal as stay of, 849. appeal from decree or order revoking, suspending or removing no stay, 850. appeal from decree granting letters or admitting will on affirmance thereof no stay when order grants letters, 850. appeal from order or decree of commitment no stay unless ilndertaking given, 850. appeal from decree directing payment or deposit no stay unles under- taking given, 850. appeal from order or decree allowing execution no stay unless under- taking given, 850. for failure to pay coats of motion, 851. PROCESS IN SURROGATES' COURTS definition, 869. kinds, 869, 870. 1448 INDEX References are to pages. PROCESS IN SUREOGATES' COVRTS— continued. where returnable, 870. may be served and executed anywhere in state, 870. sheriflF in any county may execute warrant of attachment, 870. sheriff to convey person arrested to place where warrant of attachment returnable, 870. warrant of attachment directed to sheriff, 870. citation returnable not over i months from date, 870. in case of public administrators, 870. jurisdiction of surrogate to compel • party 's attendance, 870. jurisdiction of surrogate to issue citations, 870. jurisdiction of surrogate to issue supplemental citations, 870. jurisdiction of surrogate to issue other process, 870. jurisdiction of surrogate to issue subpoena, 870. jurisdiction of surrogate to issue subpoena duces tecum, 870. jvirisdiction of clerk or deputy clerk to issue when surrogate can, 870-1. void if facts prerequisite to issue not proven, 871. proof of service by sheriff's certificate when he serves, 882. by affidavit of person serving, 883. by written admission, 883. age of person making afiidavit of service, 883. contents of affidavit of service, 883. who must make affidavit of service by publicafion, 883. who must make affidavit of mailing, 883. affidavit of service by publication by "manager," 883. contents of affidavit of personal service out of state, 88X PRODUCE as assets, see "Assets" dower in, 36. PRODUCTION of will, see "Wills" and "Discovery." of assets, see "Discovery." PROOF see specific titles, of adoption by oral agreement not sufficient, 25. treatment as child insufBcient, 25-6. taking name of another insufficient, 26. of time of death, 6. of domicil of woman, 10. of widow, 10. of unmarried woman, 10. of married woman, 10. 1449 INDEX References are to paces. PROOF — contimued. of illegitimacy, burden of, 16. of marriage, 13. of survivorship necessary, 6. PROVISION before marriage barring dower, 40. wben widow put to election, 41. PUBLIC ADMINISTRATOR see "Administrator" actions by and against, 143; and see "Actions." bond, see "Bond" oath, see "Oath" commissions, compensation, legal assistance and office expenses, 406. rights as to assets, 235. PUBLICATION of wills, see "Wills." of notice to creditors, see "Notice to Creditors." QUARANTINE definition, 33, ,65. when ceases, 33. in lands of which dowable only, 33. holds good whether estate solvent or not, 33. extent of, 33. statutory exemptions of widow not in lieu of, 34. no allowance for nursing during, 34. REAL PROPERTY definition — includes, for purposes of descent, every estate, interest, etc., 49, descends, 3. descent of, see "Descent" power of representative over, see "Disposition of Realty" power of ancillary administrator as to, 98. authority of temporary administrator over, 96-7. sale of by administrator c. t. a., 92. by trustee of supreme court, 93. by administrator appointing appeal; 106. see "Disposition of Realty." REFERENCE compensation of referee recovery of excess paid before report delivered, 899. compulsory, by surrogate order, 900. 1450 INDEX References are to pages. REFERENCE— co»*tn«e